The City of Minot has asked a judge to dismiss a lawsuit brought by neighbors of First Western Bank & Trust, who allege the city failed to follow its zoning ordinance in approving the bank's expansion more than a year ago.
Residents who filed the lawsuit last April now have also raised concern that the bank is out of compliance with the city's parking ordinance.
Back in March 2013, the city gave First Western a variance to reduce required parking from 113 spots to 105 spots in connection with a bank expansion at 900 S. Broadway. Residents say First Western has no more than 97 parking spots available today. They are asking the city not to issue the bank an occupancy permit to use the new addition until the bank has the necessary parking.
A new addition to First Western Bank in Minot rises up behind the existing bank building along South Broadway Tuesday. Neighbors have sued over city variances allowed in the construction of the building.
Neighbors also say the city may have erred in determining the necessary parking. City ordinance requires four parking spaces per 1,000 square feet of building. Residents say the city had incorrect footage information, and as a result, the bank is between 54 and 56 spots short of the the needed parking.
Acting city attorney Kelly Hendershot said the city has taken the matter under review since receiving a July 23 letter from neighbors. Bank officials at First Western had no comment at this time.
The lawsuit filed in North Central District Court in Minot states that the city failed to follow its zoning procedures in granting the parking variance and other variances to First Western in 2013. Residents are asking the court to order repeal of the variances.
The city is seeking dismissal because plaintiffs failed to file in a timely manner under a state law that gives people 30 days after a decision to appeal.
The plaintiffs argue that courts previously have ruled that a legitimate claim can't be dismissed. However, the city responded that supportive cases cited by plaintiffs relate to ongoing violations of rights, which this case is not.
"Plaintiffs would have this Court void the grant of the variances (more than thirteen months after the fact) and then, presumably seek injunctive relief requiring FWBT to tear down the addition to the bank building and the other improvements to the real property. Under this logic, Plaintiffs could have brought this suit years after the fact with the same effect," the city's brief stated. "Obviously, the requirement (that) decisions of governing bodies be challenged within thirty days was established to address the very issue now being raised."
According to the lawsuit, city ordinance requires that variances be acted on by either the board of adjustment or the planning commission. Before granting a variance, the planning commission must find that the variance can be granted "without substantial detriment to the public good and without actually impairing the general purpose and intent of the comprehensive plan as established by zoning regulations and provisions."
Neither the planning commission, board of adjustment nor city council specifically found that the bank's variance requests can be granted without substantial detriment to the public good and without impairing the general purpose and intent of the comprehensive plan, according to the complaint.
On March 4, 2013, the city council granted the parking reduction, a setback along Ninth Avenue Southwest from the required 25 feet to the existing four feet and a variance to the screening between commercial and residential districts. It did so without a recommendation from its planning commission, which on Feb. 25, 2013, tabled the bank's variance requests to allow bank representatives to continue discussions with the neighbors. Residents had voiced concerns about the size of the building proposed near their homes with minimal setback.
The city's response to the lawsuit claims the city council had the authority to act on the variance requests, regardless of whether the planning commission made a decision.
The council acted after receiving a memorandum from the city engineer that issues between the bank and residents had been resolved. The memo stated that the agreed-upon modifications lower the required parking to 104 spaces, and the bank and neighbors will work to choose trees and shrubs. Attached to the memo was a letter from Joe and Kelly Schmidt, indicating they no longer oppose the variances.
The Schmidts are plaintiffs in the case, along with Barry and Susan Hoffer, Michael and Nancy Lucy, Steve Muus and Fae Self.
Plaintiffs responded that the memorandum and letter from the Schmidts was not mentioned in the city council minutes, and there is no evidence that the information was provided to the council before the vote. Nor is it relevant, they argue, because it doesn't change the essence of the complaint that the city violated its zoning ordinance.
Plaintiffs are represented by attorneys Allen Hoberg and Beth Baumstark of Bismarck and the city by attorneys Randall Bakke and Shawn Grinolds of Bismarck.