North Dakota Supreme Court Hears Arguments in Posey v. Homer Township Over Zoning Procedures and Appeal Rights

At oral argument before the North Dakota Supreme Court, appellant counsel William Black argued that Homer Township repeatedly failed to follow its own zoning ordinance procedures, depriving Ricky Posey of procedural due process and requiring the case be remanded for further proceedings.

Black told the court Posey’s claims focus on the township’s failure to follow its procedural steps — missed inspections, untimely hearings and a final decision issued the same day a zoning commission made recommendations — and not on the substantive merits of the plat. “When the local governing body fails to follow its own rules, it undermines public confidence in the legitimacy of its decisions,” Black said, urging the court to recognize a distinct procedural right to be heard.

Responding for Homer Township, Jackson Bratcher asked the justices to affirm the lower court. Bratcher said the township initiated a process that culminated in a final, appealable decision and that Posey failed to pursue the statutory appeal route under chapter 28-34 and related provisions. “Posey did appeal that decision, and the appeal was dismissed due to the court lacking personal and subject matter jurisdiction,” Bratcher told the court, arguing statutory appeal remedies and North Dakota precedent limit collateral civil challenges.

The arguments turned on two linked questions: whether a local governing body’s failure to follow an ordinance’s procedures can itself constitute a constitutional due-process violation distinct from ordinary statutory noncompliance, and whether the statutory appeal process forecloses a separate civil action when the appealing party did not pursue the appeal correctly.

Counsel cited case law at length. Bratcher pointed to prior North Dakota decisions — including Chester v. Nierson, Sinski Rentals v. Grand Forks, and Olson v. Cass County — for the proposition that chapter 28-34 appeals permit courts to review a local governing body’s procedural compliance. Black contended that the remedy for a denied opportunity to be heard is meaningful in its own right and that the district court erred in treating Posey’s action as untimely when no final order existed at the outset.

Justices probed both sides on exhaustion and timing. A justice asked whether failing to follow a statutory procedure always equates to a constitutional due-process violation; another pressed whether Posey’s failure to perfect an appeal deprived courts of jurisdiction. Counsel differed on whether Posey had a final order to appeal and whether equitable relief was available when statutory appeal processes exist.

The court reserved decision and took the case under advisement. The justices adjourned until a later public rules meeting; no ruling was announced from the bench.

Next steps: the court will issue a written decision after taking the matter under advisement.