DANDURAN v. EDDY COUNTY ZONING BOARD (2026)

[¶1] Larry Danduran appeals from a judgment dismissing his amended complaint against the Eddy County Zoning Board, the Eddy County Commissioners, and Eddy County (collectively “the County”). The amended complaint challenges actions of the Zoning Board ¹ and the Commissioners relating to approval of amendments to Eddy County's wind-energy zoning regulations. The district court properly determined it lacked subject matter jurisdiction of the amended complaint and dismissed it. We affirm the judgment of dismissal.

I

[¶2] On June 11, 2025, the Eddy County Zoning Board held a public hearing to consider proposed amendments to the Eddy County zoning ordinance. During the hearing, Danduran asserted certain members of the Zoning Board and some County Commissioners had conflicts of interest and should not participate in the zoning process. Danduran also presented information he believed demonstrated those conflicts.

[¶3] Before a July 8, 2025 Zoning Board meeting, Danduran requested an opportunity to address the Zoning Board regarding the proposed amendments and his conflict-of-interest concerns. The county auditor informed Danduran the July 8 meeting would be a decisional meeting at which public comment would not be allowed. At that meeting, the Zoning Board voted to recommend adoption of the proposed amendments and forwarded its recommendation to the County Commission.

[¶4] On July 9, 2025, the County Commission voted to adopt the recommended amendments. Danduran continued to raise objections to the zoning process, including allegations that public comment had been improperly restricted and that members of the Zoning Board and some County Commissioners participated in the decision despite disqualifying conflicts of interest. Following an August 29, 2025 grievance hearing, the County Commission declined to alter its decision and adopted the zoning changes.

[¶5] On September 29, 2025, Danduran commenced this action seeking declaratory and injunctive relief against the County. The complaint alleged three counts: violation of N.D.C.C. § 11-33-08; violation of Eddy County Zoning Ordinance § 7.3.3; and conflict of interest violations. The complaint requested the district court void the County Commission's action adopting the zoning regulations, order recusals where conflicts exist, and award Danduran's costs and such other relief as just and appropriate. Danduran filed an amended complaint on October 16, 2025. The amended complaint alleged the same causes of action and requested the same relief. The amended complaint referenced N.D.C.C. § 44-04-22 under the conflict of interest count.

[¶6] The County moved to dismiss Danduran's amended complaint on October 24, 2025. The County argued Danduran's claims constitute a challenge to a local governing body's zoning decision and could only be reviewed through the statutory appeal procedures provided in N.D.C.C. §§ 11-33-12 and 28-34-01. Danduran responded, alleging he was not challenging the zoning decision but bringing claims based on independent statutory and procedural violations involving public participation, county ordinances, and conflicts of interest.

[¶7] In addition to this action, on September 30, 2025, Danduran appealed the County Commission's decision under N.D.C.C. § 28-34-01. On November 5, 2025, Danduran filed a motion to dismiss his appeal with prejudice. The district court dismissed Danduran's appeal with prejudice on November 18, 2025.

[¶8] After briefing, on January 22, 2026, the district court granted the County's motion to dismiss. The court concluded Danduran's claims were directed at the fairness and validity of the zoning proceedings and that he was required to file an appeal under N.D.C.C. § 28-34-01. The court noted Danduran filed a separate administrative appeal under N.D.C.C. § 28-34-01 but voluntarily dismissed that proceeding. The court concluded it lacked subject matter jurisdiction over Danduran's action for declaratory and injunctive relief and dismissed the complaint.

II

[¶9] Danduran argues the district court erred in granting the County's motion to dismiss because his claims concern independent statutory and constitutional violations, rather than a challenge to the substantive rezoning decision itself. He contends his claims were properly brought as a separate civil action for declaratory and related relief and were not subject to the exclusive-remedy provisions governing statutory zoning appeals.

[¶10] We review a district court's dismissal under N.D.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction de novo when the jurisdictional facts are undisputed. Lavallie v. Jay, 2020 ND 147, ¶ 5, 945 N.W.2d 288. Rule 12(h)(3) requires the district court to dismiss the action if it determines it lacks subject matter jurisdiction. Id. ¶ 7.

[¶11] County zoning practices are governed by N.D.C.C. ch. 11-33. Section 11-33-12, N.D.C.C., provides that “[a]ny person ․ aggrieved by a decision of the board of county commissioners under this chapter, may appeal to the district court in the manner provided in section 28-34-01.” See also Dakota Res. Council v. Stark Cnty. Bd. of Cnty. Comm'rs, 2012 ND 114, ¶ 8, 817 N.W.2d 373. This Court has consistently held that where section 28-34-01 review is available, the statutory appeal is the exclusive vehicle for grievances of the type that could have been litigated through it. See Banderet v. Sargent Cnty. Water Res. Dist., 2019 ND 57, ¶ 12, 923 N.W.2d 809 (stating “an aggrieved party must appeal a local governing body's decision rather than seek injunctive or declaratory relief against the enforcement of the decision”); Hector v. City of Fargo, 2014 ND 53, ¶ 23, 844 N.W.2d 542 (stating “a statutory appeal provides an adequate legal remedy for reviewing a local governing body's decision, and in those cases where an appeal is authorized by law, an action for equitable relief generally is not available.”); Olson v. Cass Cnty., 253 N.W.2d 179, 182 (N.D. 1977) (holding “[i]f the grievance of the person challenging a board's decision is of a type that could have been fairly litigated on appeal, then that statutory appeal is an adequate legal remedy, and no suit for injunction will lie as a substitute”). Appeals from local governing bodies must be taken within thirty days of their decision. N.D.C.C. § 28-34-01(1) (“The notice of appeal must be filed with the clerk of the court within thirty days after the decision of the local governing body”). “Timely filing of an appeal from a decision of a [local governing body] is mandatory to invoke a district court's appellate subject matter jurisdiction over the appeal.” Sholy v. Cass Cnty. Comm'n, 2022 ND 164, ¶ 9, 980 N.W.2d 49 (quoting Grand Forks Homes, Inc. v. State, 2011 ND 65, ¶ 20, 795 N.W.2d 335). “Where a party fails to appeal an adverse decision of a zoning board in the time allowed, the decision of the board is final. A party may not collaterally attack the decision in a different proceeding.” Rakowski v. City of Fargo, 2010 ND 16, ¶ 11, 777 N.W.2d 880 (quoting 8A Eugene McQuillin, Law of Municipal Corporations § 25.304 (Supp. 2009) (footnotes omitted)).

[¶12] On September 2, 2025, the County Commission adopted the recommended amendments. On September 30, 2025, Danduran filed a notice of appeal under N.D.C.C. § 28-34-01, but ultimately dismissed it with prejudice. The deadline to appeal under section 28-34-01 expired on October 2, 2025. Although Danduran initially filed a notice of appeal under section 28-34-01, he voluntarily dismissed that proceeding and did not otherwise obtain review through the exclusive statutory appeal process. Rather, Danduran commenced this action seeking declaratory and injunctive relief.

[¶13] Although Danduran characterizes his claims as independent statutory and constitutional violations, the Court looks to the substance of the amended complaint, including the relief requested, to determine the true nature of the action. Prod. Credit Ass'n of Mandan v. Olson, 280 N.W.2d 920, 923 (N.D. 1979) (“Although the prayer for relief does not constitute part of the complaint, the court may look to the prayer for relief as a means of clarifying the contentions of the parties and the issues raised.”). Here, the amended complaint seeks to void the County Commission's September 2, 2025 zoning action and compel the allegedly conflicted officials to recuse themselves. Thus, the amended complaint challenges the validity of the rezoning proceedings and the resulting zoning decision based on alleged procedural defects in the decision-making process. That type of challenge falls within the exclusive statutory review procedure governing zoning decisions and must be pursued through the appeal procedure set forth in N.D.C.C. §§ 11-33-12 and 28-34-01. See Banderet, 2019 ND 57, ¶¶ 14-15, 923 N.W.2d 809; Olson, 253 N.W.2d at 182-83.

[¶14] In Olson, landowners sought injunctive relief rather than pursuing the statutory appeal process, arguing the county board failed to comply with statutory requirements when authorizing the installation of a culvert. 253 N.W.2d at 181-83. This Court held the challenge concerned the correctness and propriety of the board's decision and therefore had to be raised through the statutory appeal procedure rather than a separate action. Id. at 182-83.

[¶15] Likewise, in Banderet, landowners sought declaratory and injunctive relief challenging a water resource district's drainage-project decision, arguing the district failed to comply with statutory procedures governing public participation and project approval. Banderet, 2019 ND 57, ¶¶ 10-15, 923 N.W.2d 809. The Court concluded the landowners’ allegations concerned the correctness of the district's decision and could not be pursued through a collateral action because a statutory appeal provided an adequate remedy. Id. ¶¶ 12-15.

[¶16] Danduran's claims are analogous. Although framed as violations of public-comment requirements, conflict-of-interest provisions, and county zoning procedures, the alleged defects all arise from and relate to the manner in which the Zoning Board and County Commission reached their rezoning decisions. As in Olson and Banderet, the amended complaint seeks to invalidate governmental action based on alleged procedural errors occurring during the decision-making process. Because those claims challenge the validity and propriety of the zoning decision itself, they fall within the exclusive statutory review procedure established by N.D.C.C. §§ 11-33-12 and 28-34-01 and were required to be raised through a timely statutory appeal.

[¶17] In his brief, Danduran argues his “claims are independent statutory and constitutional claims arising under North Dakota's Open Meetings Law (N.D.C.C. §§ 44-04-20.1 and 44-04-22)[.]” Danduran did not cite section 44-04-20.1 in the amended complaint. More importantly, Danduran provides no meaningful argument or authority to support his position he has independent claims under sections 44-04-20.1 and 44-04-22. See Hoever v. Wilder, 2024 ND 58, ¶ 5, 5 N.W.3d 544 (explaining a party waives an issue by not providing supporting argument); Trosen v. Trosen, 2022 ND 216, ¶ 33, 982 N.W.2d 527 (“We do not consider arguments that are not adequately articulated, supported, and briefed.”). Although not cited by Danduran, N.D.C.C. § 44-04-21.2(1) provides certain sections of N.D.C.C. ch. 44-04 “may be the subject of a civil action brought by an interested person or entity.” If a court finds any of the identified sections have been violated by a public entity, the court may award declaratory and injunctive relief. Id. “For an intentional or knowing violation of section 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21, the court may also award damages in an amount equal to one thousand dollars or actual damages caused by the violation, whichever is greater.” Id. Fatal to Danduran's position, neither section 44-04-20.1 nor section 44-04-22 is identified in section 44-04-21.2(1) as a section that “may be the subject of a civil action[.]”

[¶18] Danduran's claims challenge the validity of the rezoning proceedings and resulting zoning decision. Danduran's appropriate remedy to challenge the rezoning proceedings and decision was to file a timely appeal under N.D.C.C. § 28-34-01. The district court properly concluded it lacked jurisdiction over this action.

III

[¶19] Danduran's remaining arguments are inadequately briefed, without merit, or unnecessary to our decision. We affirm the judgment of dismissal.

FOOTNOTES

1.   In this opinion, we use the title “Zoning Board” because Danduran used that title in the amended complaint and his briefs. The exhibits show the actual title is the “Eddy County Zoning Commission.”

Bahr, Justice.

[¶20] Lisa Fair McEvers, C.J. Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Mark A. Friese