# Title 40 — Municipal Government

## Chapter 40-47 — City Zoning

### § 40-47-01. Cities may zone - Application of regulations.

For the purpose of promoting health, safety, morals, or the general welfare of the
community, the governing body of any city may, subject to the provisions of chapter 54-21.3,
regulate and restrict the height, number of stories, and the size of buildings and other structures,
the percentage of lot that may be occupied, the size of yards, courts, and other open spaces,
the density of population, and the location and use of buildings, structures, and land for trade,
industry, residence, or other purposes. The regulations may provide that a board of adjustment
may determine and vary the application of the regulations in harmony with the regulations'
general purpose and intent and in accordance with general or specific rules contained in the
regulations. The governing body of a city may establish institutional controls that address
environmental concerns with the department of environmental quality as provided in section
23.1-10-16.
### § 40-47-01.1. Extraterritorial zoning - Mediation - Determination by administrative law

judge - Definition.
1. a. A city may, by ordinance, extend the application of a city's zoning regulations to
any quarter quarter section of unincorporated territory if a majority of the quarter
quarter section is located within the following distance of the corporate limits of
the city:
(1) One mile [1.61 kilometers] if the city has a population of fewer than five
thousand. A city that has exercised its authority under this subdivision has
joint zoning and subdivision regulation jurisdiction from one-half mile [.80
kilometer] to one mile [1.61 kilometers] with the other political subdivision.
(2) Two miles [3.22 kilometers] if the city has a population of five thousand or
more, but fewer than twenty-five thousand. A city that has exercised its
authority under this subdivision has joint zoning and subdivision regulation
jurisdiction from one mile [1.61 kilometers] to two miles [3.22 kilometers]
with the other political subdivision.
(3) Four miles [6.44 kilometers] if the city has a population of twenty-five
thousand or more. A city that has exercised its authority under this
subdivision has joint zoning and subdivision regulation jurisdiction from two
miles [3.22 kilometers] to four miles [6.44 kilometers] with the other political
subdivision.
b. Any section or portion of a section of unincorporated territory within the area of
joint zoning and subdivision regulation jurisdiction in which a plat or site plan has
been presented before May 1, 2009, remains subject to the zoning designations
and the regulations in place on May 1, 2009, unless changed as allowed under
this section.
c. The extraterritorial zoning jurisdiction and authority to receive applications and
issue permits under this section may be changed by written agreement between
the city and the other political subdivision.
2. Joint jurisdiction is jurisdiction in which the other political subdivision has jurisdiction to
receive applications and issue permits and impose administrative fees for applications
and permits. In addition, under this jurisdiction the other political subdivision may
adopt, modify, and enforce any zoning designation or regulation and approve any
subdivision plat or regulation. For a decision to be final, the other political subdivision
shall give written notice to the city. The city may request negotiation as to any decision
made by the other political subdivision under the other political subdivision's
jurisdiction within thirty days of notice. If negotiation is not requested, the decision of
the other political subdivision is final. If the governing body of the other political
subdivision and the city do not come to an agreement as to the disputed zone or
subdivision regulation within thirty days of request for negotiation, the dispute must be
submitted to a committee for mediation. The committee must be comprised of one

member appointed by the governor and two members of the governing body of the
other political subdivision and two members of the governing body of the city. The
governor's appointee shall arrange and preside over the meeting and act as mediator
at the meeting. A meeting may be continued until the dispute has been resolved or
until the mediator determines that continued mediation is no longer worthwhile. If the
mediation committee is unable to resolve the dispute to the satisfaction of the
governing bodies, the dispute must be resolved by the board of county commissioners.
3. Notwithstanding subsection 2, in any section or portion of a section of unincorporated
territory in which there would otherwise be joint jurisdiction and in which a plat or site
plan has been presented before May 1, 2009, the city has jurisdiction to receive
applications and issue permits and impose administrative fees for applications and
permits relating to zoning and subdivision regulation. In addition, under this jurisdiction
the city may adopt, modify, and enforce any zoning designation or regulation and
approve any subdivision plat or regulation. For a decision of the city made after May 1,
2009, to be final, the city shall give written notice of the decision of the governing body
of the political subdivision that would otherwise have jurisdiction. The governing body
may request negotiation as to any decision made by the city under the city's
jurisdiction within thirty days of notice. If negotiation is not requested, the decision of
the city is final. If the city and governing body of the political subdivision that would
otherwise have jurisdiction do not come to an agreement as to the disputed zoning or
subdivision regulation within thirty days of the request for negotiation, the dispute must
be submitted to a committee for mediation. The committee must be comprised of one
member appointed by the governor and two members of the governing body of the
other political subdivision and two members of the governing body of the city. The
governor's appointee shall arrange and preside over the meeting and act as mediator
at the meeting. A meeting may be continued until the dispute has been resolved or
until the mediator determines that continued mediation is no longer worthwhile. If the
mediation committee is unable to resolve the dispute to the satisfaction of the
governing bodies, the dispute must be resolved by the board of county commissioners.
4. If a quarter quarter section line divides a platted lot and the majority of that platted lot
lies within the quarter quarter section, a city may apply its extraterritorial zoning
authority to the remainder of that platted lot. If the majority of the platted lot lies outside
the quarter quarter section, the city may not apply its extraterritorial zoning authority to
any of that platted lot.
5. A city exercising its extraterritorial zoning authority shall hold a zoning transition
meeting if the territory to be extraterritorially zoned is currently zoned. The city's zoning
or planning commission shall provide at least fourteen days' notice of the meeting to
the zoning board or boards of all political subdivisions losing their partial zoning
authority. The purpose of the zoning transition meeting is to review existing zoning
rules, regulations, and restrictions currently in place in the territory to be
extraterritorially zoned and to plan for an orderly transition. The zoning transition
meeting must take place before the city's adoption of an ordinance exercising
extraterritorial zoning.
6. If two or more cities have boundaries at a distance where there is an overlap of
extraterritorial zoning authority under this section, the governing bodies of the cities
may enter into an agreement regarding the extraterritorial zoning authority of each city.
The agreement must be for a specific term and is binding upon the cities unless the
governing bodies of the cities agree to amend or rescind the agreement or unless
determined otherwise by an administrative law judge in accordance with this chapter. If
a dispute arises concerning the extraterritorial zoning authority of a city and the
governing bodies of the cities involved fail to resolve the dispute, the dispute must be
submitted to a committee for mediation. The committee must be comprised of one
member appointed by the governor, one member of the governing body of each city,
and one member of the planning commission of each city who resides outside the
corporate city limits. The governor's appointee shall arrange and preside over the
meeting and act as mediator at the meeting. A meeting may be continued until the

dispute has been resolved or until the mediator determines that continued mediation is
no longer worthwhile.
7. If the mediation committee is unable to resolve the dispute to the satisfaction of the
governing bodies of all the cities involved, the governing body of any of the cities may
petition the office of administrative hearings to appoint an administrative law judge to
determine the extraterritorial zoning authority of the cities in the disputed area. A
hearing may not be held until after at least two weeks' written notice has been given to
the governing bodies of the cities involved in the dispute. At the hearing, the governor's
appointee who mediated the meetings under subsection 6 shall provide information to
the administrative law judge on the dispute between the cities involved and any
proposed resolutions or recommendations made by a majority of the committee
members. Any resident of, or person owning property in, a city involved in the dispute
or the unincorporated territory that is the subject of the proposed extraterritorial zoning,
a representative of such a resident or property owner, and any representative of a city
involved, may appear at the hearing and present evidence on any matter to be
determined by the administrative law judge. A decision by the administrative law judge
is binding upon all the cities involved in the dispute and remains effective until the
governing bodies of the cities agree to a change in the zoning authority of the cities.
The governing body of a city may request a review of a decision of an administrative
law judge due to changed circumstances at any time ten years after the decision has
become final. An administrative law judge shall consider the following factors in
making a decision under this subsection:
a. The proportional extraterritorial zoning authority of the cities involved in the
dispute;
b. The proximity of the land in dispute to the corporate limits of each city involved;
c. The proximity of the land in dispute to developed property in the cities involved;
d. Whether any of the cities has exercised extraterritorial zoning authority over the
disputed land;
e. Whether natural boundaries such as rivers, lakes, highways, or other physical
characteristics affecting the land are present;
f. The growth pattern of the cities involved in the dispute; and
g. Any other factor determined to be relevant by the administrative law judge.
8. For purposes of this section, the population of a city must be determined by the last
official regular or special federal census. If a city has incorporated after a census, the
population of the city must be determined by a census taken in accordance with
chapter 40-22.
9. When a portion of the city is attached to the bulk of the city by a strip of land less than
one hundred feet [30.48 meters] wide, that portion and strip of land must be
disregarded when determining the extraterritorial zoning limits of the city. This
subsection does not affect the ability of a city to zone land within its city limits.
10. For the purposes of this section, a section or a quarter quarter section is as
determined in the manner provided by 2 Stat. 313 [43 U.S.C. 752]. When appropriate,
the phrase "quarter quarter section" refers to the equivalent government lot.
11. As used in this section, "other political subdivision" means a political subdivision, not
including another city, which would otherwise have zoning or subdivision regulation
jurisdiction.
### § 40-47-01.2. Agreements to not oppose annexation void.

The zoning commission or governing body may not require as a condition of approval of a
request to amend or modify a zoning regulation the execution of an agreement by the owner of
the property requesting the amendment or modification stating that the owner will not oppose
the annexation of the property by the municipality. This section does not apply to property
located within one quarter mile [.40 kilometer] of the municipality's corporate limits or to an
agreement that contains a provision whereby the municipality agrees to provide a municipal
service or services before the annexation. Any agreement entered in violation of this section is
void.

### § 40-47-01.3. Extraterritorial zoning - Limitation.

Notwithstanding any other provision of law, a city that exercises extraterritorial jurisdiction
under this chapter may not impose building permit fees on any section of unincorporated
territory which are higher than the building permit fees within the city exercising the jurisdiction.
### § 40-47-02. Division of city into districts to carry out regulations.

The governing body may divide the city into districts of such number, shape, and area as
may be deemed best suited to carry out the purposes of this chapter, and may regulate and
restrict the erection, construction, reconstruction, alteration, repair, or use of buildings,
structures, or land within such districts. All regulations shall be uniform for each class or kind of
buildings throughout each district, but the regulations in one district may differ from those in
other districts.
### § 40-47-03. Regulation for zoning made for what purposes.

The regulations provided for in this chapter shall be made in accordance with a
comprehensive plan and shall be designed to:
1. Lessen congestion in the streets;
2. Provide for emergency management, including floodplain management as provided
under section 40-05-27. "Emergency management" means a comprehensive
integrated system at all levels of government and in the private sector which provides
for the development and maintenance of an effective capability to mitigate, prepare for,
respond to, and recover from known and unforeseen hazards or situations, caused by
an act of nature or man, which may threaten, injure, damage, or destroy lives,
property, or our environment;
3. Promote health and the general welfare;
4. Provide adequate light and air;
5. Prevent the overcrowding of land;
6. Avoid undue concentration of population; and
7. Facilitate adequate provisions for transportation, water, sewage, schools, parks, and
other public requirements.
The regulations shall be made with reasonable consideration as to the character of each district
and its peculiar suitability for particular uses with a view to conserving the value of buildings and
encouraging the most appropriate use of land throughout the city. The comprehensive plan shall
be a statement in documented text setting forth explicit goals, objectives, policies, and
standards of the jurisdiction to guide public and private development within its control.
### § 40-47-04. Determining and enforcing regulations - Public hearing and notice thereof -

Publication of regulations, restrictions, and boundaries.
1. The governing body of a city which uses zoning regulations shall provide for the
manner in which the regulations and restrictions must be established, enforced, or
supplemented, and for the manner in which the boundaries of the districts must be
established and from time to time changed. A copy of each proposed regulation,
restriction, or boundary must be filed with the city auditor. No regulation, restriction, or
boundary may become effective until after a public hearing at which parties in interest
and citizens shall have an opportunity to be heard. Notice of the hearing must be
published once a week for two successive weeks before the time set for the hearing in
the official newspaper of the city. The notice must contain the following items:
a. The time and place of the hearing.
b. A description of any property involved in any zoning change, by street address if
streets have been platted or designated in the area affected.
c. A description of the nature, scope, and purpose of the proposed regulation,
restriction, or boundary.
d. A statement of the times at which it will be available to the public for inspection
and copying at the office of the city auditor.

2. Upon establishment of any regulation, restriction, or boundary hereunder, the
governing body of a city shall file a certified copy thereof with the city auditor and shall
cause notice of the same to be published in the official newspaper of the city. The
notice must describe the nature, scope, and purpose of the regulation, restriction, or
boundary and must state the times at which it will be available to the public for
inspection and copying at the office of the city auditor.
3. The governing body of a city, a city zoning commission, and a board of adjustment
shall state the grounds upon which any request for a zoning amendment or variance is
approved or disapproved, and written findings upon which the decision is based must
be included within the records of the governing body, commission, or board.
### § 40-47-05. Amendments to or repeals of zoning regulations - Protest - Required vote

for passage.
Regulations, restrictions, and boundaries may be amended, supplemented, changed,
modified, or repealed from time to time. If a protest against a change, supplement, modification,
amendment, or repeal is signed by the owners of twenty percent or more:
1. Of the area of the lots included in such proposed change; or
2. Of the area adjacent, extending one hundred fifty feet [45.72 meters] from the area to
be changed, excluding the width of streets,
the amendment shall not become effective except by the favorable vote of three-fourths of all
the members of the governing body of the city. The provisions of section 40-47-04 relating to
public hearings, official notice, and publication of regulations, restrictions, and boundaries shall
apply equally to all changes or amendments provided in this section; provided, that protests in
writing must be filed with the city auditor prior to the time set for the hearing.
### § 40-47-05.1. Zoning - Nonconforming structure.

1. Notwithstanding any other provision of law or zoning ordinance, a nonconforming
structure devoted to residential use and located in a residential zoning district may be
repaired, replaced, improved, maintained, restored, or rebuilt in its entirety even
though the structure is damaged beyond fifty percent of its value if:
a. An application for a building permit is submitted within six months of the date the
damage occurs;
b. Restoration begins within one year of the date the damage occurred;
c. The lot or parcel upon which the structure dedicated to residential use is located
abuts a public right of way; and
d. The new structure will not:
(1) Occupy a portion of the lot which was not occupied by the damaged
structure;
(2) Have more square footage than the damaged structure;
(3) Exceed the height or number of stories of the damaged structure;
(4) Diminish the number of off-street parking spaces located on the property
from the number of spaces before the damage;
(5) Violate existing building and fire codes;
(6) Violate existing sanitary or health standards imposed by the local health
district;
(7) Pose a risk to public health or safety;
(8) Encroach upon a public right of way; or
(9) Encroach upon any neighboring property.
2. Under subsection 1, expansion of a nonconforming structure is prohibited unless the
expansion is in compliance with applicable zoning ordinances and state laws and
rules. The zoning authority shall determine whether a proposed expansion is in
compliance.
3. Under subsection 1, a nonconforming structure may not be moved unless the
movement or relocation will bring the structure into compliance with all applicable
zoning ordinances.

4. Notwithstanding subsection 1, the zoning authority shall regulate the repair,
replacement, improvement, maintenance, restoration, rebuilding, or expansion of
nonconforming uses and structures in floodplain areas to the extent necessary to
maintain eligibility in the national flood insurance program and adhere fully to all
applicable floodplain management ordinances without increasing flood damage
potential or increasing the degree of obstruction to floodflows in the floodway.
5. Notwithstanding section 40-47-13 and subsections 1, 2, and 3, the zoning authority
may create a less restrictive ordinance or regulation.
6. Unless the city determines that the repair, replacement, improvement, maintenance,
restoration, or rebuilding of a nonconforming structure will violate subdivision d of
subsection 1, the city shall issue a building permit to a property owner that meets the
qualifications under subsection 1.
7. For purposes of this section, "nonconforming structure" means a structure that was
legal before a change in ordinance made the structure nonconforming.
### § 40-47-06. Zoning commission - Appointment - Duties - Preliminary and final report.

The governing body of a city desiring to avail itself of the powers conferred by this chapter
shall appoint a commission, to be known as the zoning commission, to recommend the
boundaries of the various original districts and appropriate regulations to be enforced therein. In
addition to the members appointed by the city, the zoning commission shall include at least one
person residing outside of the corporate limits of a city having a population of less than five
thousand, two persons residing outside the corporate limits of a city having a population of five
thousand or more, but less than twenty-five thousand, or three persons residing outside the
corporate limits of a city having a population of twenty-five thousand or more if zoning authority
is exercised pursuant to section 40-47-01.1. Such persons shall be appointed by the board or
boards of county commissioners of the county or counties within which such zoning authority is
to be exercised and shall reside within the territorial limits of the zoning regulation authority
exercised by the city, if such persons are available and will serve on the zoning commission. Of
the members of the commission appointed by a board or boards of county commissioners
pursuant to this section, the first member appointed shall hold office for five years, the second
member appointed shall hold office for three years, and the third member appointed shall hold
office for one year. Thereafter, the members shall be appointed for terms of five years. Such
commission shall make a preliminary report and hold public hearings thereon before submitting
its final report. The governing body shall not hold its public hearings or take action until it has
received the final report of the zoning commission. If a city has a planning commission, it may
be appointed as the zoning commission.
### § 40-47-07. Board of adjustment - Members - Term - Hear and decide appeals and

review orders.
The governing body may provide for the appointment of a board of adjustment consisting of
five members, each member to be appointed for a term of three years. The board of adjustment
shall hear and decide appeals from and shall review any order, requirement, decision, or
determination made by an administrative official charged with the enforcement of any ordinance
adopted pursuant to this chapter. It shall hear and decide all matters referred to it or upon which
it is required to pass under any such ordinance. The concurring vote of four members of the
board shall be necessary to reverse any order, requirement, decision, or determination of any
such administrative official or to decide in favor of the applicant any matter upon which it is
required to pass under any such ordinance, or to effect any variation in such ordinance. Upon
request of the board, the governing body shall have the right to appoint an alternate member of
said board of adjustment, who shall sit as an active member when and if a member of said
board is unable to serve at any hearing.
### § 40-47-08. Appeal to board of adjustment - Taking - Filing - Time - Transmitting record.

An appeal to the board of adjustment may be taken by any person aggrieved or by any
officer, department, board, or bureau of the city. The appeal shall be taken within the time

prescribed by rule of the board by filing with the officer from whom the appeal is taken and with
the board of adjustment a notice of appeal, specifying the grounds thereof. The officer from
whom the appeal is taken forthwith shall transmit to the board of adjustment all the papers
constituting the record upon which the action appealed from was taken.
### § 40-47-09. Hearing of appeal by board of adjustment - Notice - Authority of board -

Items taken into consideration by board.
The board of adjustment shall fix a reasonable time for the hearing of the appeal and shall
give due notice thereof to the parties. It shall decide the appeal within a reasonable time. Upon
the hearing, any party may appear in person or by agent or by attorney. The board may reverse
or affirm, in whole or in part, or may modify, the order, requirement, decision, or determination
appealed from, and shall make such order, requirement, decision, or determination as in its
opinion ought to be made in the premises, and to that end, the board shall have all the powers
of the officer from whom the appeal is taken. If there is practical difficulty or unnecessary
hardship in the way of carrying out the strict letter of the ordinance, the board, in passing upon
an appeal, may vary or modify any of the regulations or provisions of the ordinance relating to
the use, construction, or alteration of buildings or structures or the uses of land so that the spirit
of the ordinance shall be observed, public safety and welfare secured, and substantial justice
done.
### § 40-47-10. Effect of appeal to board of adjustment - Restraining order.

An appeal to the board of adjustment stays all proceedings in furtherance of the action
appealed from unless the officer from whom the appeal is taken certifies to the board of
adjustment after the notice of appeal shall have been filed with the officer that by reason of facts
stated in the certificate a stay, in the officer's opinion, would cause imminent peril to life or
property. In such a case, proceedings shall not be stayed except by a restraining order which
may be granted by the board of adjustment or by a court of record on application and on due
cause shown after notice to the officer from whom the appeal is taken.
### § 40-47-11. Determination of board of adjustment reviewable.

Every decision of the board of adjustment is subject to review in the following manner:
1. A decision of the board of adjustment may be appealed to the governing body of the
city by either the aggrieved applicant or by any officer, department, board, or bureau of
the city. The appeal must be filed with the city auditor within fifteen days after notice of
the decision of the board of adjustment. The governing body of the city shall fix a time,
within thirty days, for the hearing of the appeal and shall give due notice of the hearing
to the parties. The governing body of the city shall decide the appeal within a
reasonable time. Any party may appear in person or by agent or by attorney at the
hearing of the governing body on the appeal. The governing body of the city may
reverse or affirm the decision of the board of adjustment, in whole or in part, or may
modify the order, decision, or determination appealed.
2. A decision of the governing body of the city on an appeal from a decision of the board
of adjustment may be appealed to the district court in the manner provided in section
28-34-01.
### § 40-47-12. Instituting action to restrain, correct, or abate violations.

If any building or structure is erected, constructed, reconstructed, altered, repaired,
converted, or maintained, or if any building, structure, or land is used in violation of this chapter
or of any ordinance or other regulation made under the authority conferred by this chapter, the
proper local authorities of the city, in addition to other remedies, may institute any appropriate
action or proceeding:
1. To prevent such unlawful erection, construction, reconstruction, alteration, repair,
conversion, maintenance, or use;
2. To restrain, correct, or abate such violation;
3. To prevent the occupancy of the building, structure, or land; or

4. To prevent any illegal act, conduct, business, or use in or about such premises.
### § 40-47-13. Conflict between regulations adopted under this chapter and other laws,

ordinances, or regulations.
If the regulations made under the authority of this chapter require a greater width or size of
yards or courts, or require a lower height of building or a lesser number of stories, or require a
greater percentage of lot to be left unoccupied, or impose other higher standards than are
required in any other statute or local ordinance or regulation, the provisions of the regulations
made under the authority of this chapter shall govern. If the provisions of any other statute or
local ordinance or regulation require a greater width or size of yards or courts, or require a lower
height of building or a lesser number of stories, or require a greater percentage of lot to be left
unoccupied, or impose other higher standards than are required by the regulations made under
the authority of this chapter, the provisions of such statute or local ordinance shall govern.
