FARGO — The question of whether the North Dakota legislature can prevent Fargo from using its 20-year-old zoning law to prohibit gun and ammunition sales in Fargo neighborhoods is headed to court.
The City Commission voted 4-1 to take the case to Cass County District Court in a matter that could eventually reach the state Supreme Court.
The issue arose after a state law passed by legislators this spring took away the powers from cities or counties to restrict any type of gun sales or businesses through zoning regulations.
It said civil action could be taken against cities if the state law was ignored.
Although the new law passed in the House by a wide 81-11 margin, it was narrower in the Senate where the vote was 26-20.
The city zoning regulation banning the sale of firearms, ammunition and producing ammunition for sale or resale as a "home occupation" was proposed and passed by the City Commission in July of 2001 along with "adult entertainment type uses." Also prohibited in neighborhoods have been mortuaries, pet kennels, dispatch centers and motor vehicle repair shops.
City Attorney Erik Johnson, who researched the possibility of a court case, said the city and state laws are in conflict and pointed to parts of the 1889 North Dakota Constitution where "local control is mandated."
He said that article is "to provide for maximum local self government by all political subdivisions ..."
Johnson also pointed to the constitution's "home rule mandate" that allows counties and cities to establish local power. Fargo did so by a vote in 1970, and 133 other cities in North Dakota adopted the same system.
Under that provision, Johnson said, the local charter and ordinances supersede any state law within the city limits.
Furthermore, he said, state law delegates all zoning authority to cities, counties and townships. He said there are no state zoning regulations.
Thus, Johnson said, the new law raises the questions of whether the city has any zoning regulation authority such as setbacks from property lines, off-street parking requirements, signage and landscape requirements.
He questioned whether the state law would allow a firearms retailer to build a store in the upscale Rose Creek neighborhood or one of the city's older historic neighborhoods.
Johnson emphasized the city's home occupation law was not a Second Amendment matter as it doesn't prevent people from owning or possessing guns or selling their own personal firearms and ammunition from their homes.
It does prohibit people from running a business in their home where they sell firearms or ammunition, he said.
Johnson said they will be using the Serkland Law Firm of Fargo to argue the case in court as they do in many matters where issues advance to a courtroom setting.
They hope to have the issue before the court before the state law takes effect on Aug. 1.
Commissioner Dave Piepkorn, who was vehement about the state law that took away local control, emphasized that it wasn't about the Second Amendment but about local control that the state legislature was taking away.
"We will be successful," Piepkorn said about the court case.
That's not how Commissioner Tony Gehrig, the lone vote against advancing the court case, sees it.
He said the state law supersedes any local law, and the city can't ignore it.
The city is going to waste "tens of thousands of dollars" and pay damages over the case, he said.
"We are going to lose," Gehrig said.
He told the other commissioners he's lost on his share of issues, and the Commission should just "take its lumps and move on."
In past meetings, federally licensed gun dealers said they would simply use their homes to register or transfer guns for city residents that are purchased from others, across state lines or from the internet, and make sure the buyer is legal.
They said other retail stores aren't interested in doing the paperwork needed for that job..
The licensed gun dealers, however, are also allowed to sell guns and ammunition to others.