AGO 81-001.

• Case Date: January 20, 1981
• Court: North Dakota

North Dakota Attorney General Opinions 1981. AGO 81-001. STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 81-1Date Issued: January 20, 1981Requested by: William F. Lindell, City Attorney for the City of Washburn- QUESTION PRESENTED - Whether the change by a city commission in the zoning of a parcel of land is an action that can be referred to the voters.- ATTORNEY GENERAL'S OPINION - It is my opinion that an action by a city commission or a city council in changing the zoning of a parcel of land cannot be referred to the voters under chapter 40-12 of the North Dakota Century Code. - ANALYSIS - Section 40-12-08 of the North Dakota Century Code (N.D.C.C.) reads in part:

"An ordinance which has been adopted by the governing body of a municipality may be referred to the electors of the municipality by a petition protesting against such ordinance."

An action taken by a city in amending the zoning classification of a particular parcel of land is not of the same nature as the enactment of an ordinance as contemplated by section 40-12-08, N.D.C.C. There are real and substantive differences in the procedures to be followed in enacting an ordinance and in amending a zoning restriction. The procedures to be followed by a municipality in enacting an ordinance are set forth in chapter 40-1 1, N.D.C.C. section 40-1 1-01, N.D.C.C., prescribes the enacting clause which must be used in every ordinance. Section 40-11-02, N.D.C.C., requires that all proposed ordinances receive two readings at least one week apart prior to adoption. Section 40-1 1-08, N.D.C.C., requires the city auditor to record all ordinances in an ordinance book. The procedures to be followed in amending a zoning ordinance are set forth in chapter 40-47, N.D.C.C. Subject to certain minimal requirements set forth in the chapter, cities are allowed to establish their own procedures. Briefly, section 40-47-04, N.D.C.C., requires that a copy of any proposed regulation be filed with the city auditor and that a public hearing be held following a notice published once a week for two successive weeks in the city's official newspaper. Section 40-47-05, N.D.C.C., provides that the requirements of section 40-47-02, N.D.C.C., also apply to amendments and provides that upon protest of twenty percent of the owners of, favorable vote of three-fourths of all members of the governing...