Fargo’s method for determining special assessments was appropriate

by Kaitlin Heinen

D & P Terminal v. City of Fargo
(North Dakota Supreme Court, July 18, 2012)

D&P Terminal (D&P) and others appealed to the North Dakota Supreme Court after the district court upheld the decision of the Board of City Commissioners of Fargo to approve special assessments against their properties along 12th Ave. N, where the North Dakota Department of Transportation and City of Fargo planned reconstruction. The district court held that the Board did not violate D&P’s due process rights, nor had the Board been shown to be arbitrary, capricious, or unreasonable in its decision.

North Dakota Supreme Court addressed the standard of review applied to special assessments decisions: the Courts cannot try special assessment cases anew; the Court begins with the presumption that the assessments are valid; and the burden lies with the challenging party to demonstrate that the assessments are invalid. As a result, the Court must affirm the decision of the local governing body unless it acted arbitrarily, capriciously, or unreasonably, or if there is not enough evidence to support its decision. Arbitrary, capricious, or unreasonable conduct consists of incorrect interpretation and application of the controlling law at the time of the decision.

The Commission is governed by N.D.C.C. §40-23-07 to determine the amount assessed to each property in an improvement district.  The Board adopted Fargo’s Infrastructure Funding Policy to make assessments uniform across varying improvements projects. This Policy uses “caps,” that is, maximums, of the amount of listed items assessed based on front footage or square footage of the property. The suggested benefit amount is usually less than the actual cost of improvements, which is then sent to the Commission as a recommendation for its final decision in the final assessments. D&P argued that the use of a “formula” – like the use of front footage or square footage to determine the benefits to property – is barred by the North Dakota Supreme Court’s previous decision in Robertson. The North Dakota Supreme Court rejected D&P’s arguments that the front footage or square footage used in this policy constitutes a “formula.” The Court previously rejected similar arguments in Hector, so the Commission did not fail to properly determine the benefits to each of their properties based on this precedent. The Supreme Court reiterated its rationale, first expressed in Hector:

A municipality has broad discretion to choose the method used to decide what benefits a property receives from an improvement and to apportion the costs to individual properties. A municipality may adopt any method to apportion benefits that is fair and legal and secures an assessment that is in proportion to the benefits as nearly as possible when no rule of apportionment prescribed by statute or charter exists. The process of quantifying benefits accruing to each lot inevitably rests on the judgment and discretion of the special assessment commission. There simply is no precise formula for quantifying benefits. Assessments may be apportioned according to frontage, area, value of, or estimated benefits to, the property assessed, or according to districts or zones, or on any other reasonable basis that is fair, just, and equitable. However, the method used to apportion the assessment cannot be arbitrary and must have some relation to the benefits. [citations omitted]

D&P’s arguments based on Robertson were lacking because they failed to acknowledge the Court’s multiple decisions after Robertson that have previously upheld the use of “formulas,” including front footage, area, and even value to determine benefits to assessed property. In addition, §2801 of the 1905 Revised Codes, which was the primary statute in question in Robertson, required the Commission to personally inspect each lot in the improvement district. That has since been amended by the legislature (1999 N.D. Sess. Laws ch. 366), which has effectively eliminated this requirement of personal inspections, which would be “wholly impractical and unmanageable” today, as compared to the year 1914 when Robertson was decided. The Court concluded then that Robertson is no longer precedent, having been decided nearly 100 years ago. The evolved case law on special assessments in North Dakota since Robertson has changed enough to include a much more limited standard of review such as the use of front footage or square footage to determine the benefits to assessed property.

The North Dakota Supreme Court affirmed, concluding that the Commission did not use an inappropriate method to determine the benefits to D&P Terminal, Inc. and Potter Enterprises’ properties included in the improvement district. “Formulas” in use by special assessment Commission are permissible.

Non-profit association has standing to challenge major North Dakota coal gasification facility; loses on merits

by Gary Taylor

Dakota Resource Council, et al. v. Stark County Board of County Commissioners
(North Dakota Supreme Court, June 7, 2012)

Great Northern planned to construct and operate a coal gasification facility on 8,100 acres of land in Stark County. Great Northern’s planned complex would include a coal gasification plant, chemical fertilizer plant, electrical power plant, coal mine, solid waste landfill, and facilities for manufacture and storage of hazardous, explosive, and odorous products. Great Northern submitted an application to the Stark County Zoning Commission (Commission) to change the zoning of the land from agricultural to industrial and to allow nine conditional uses of the land, including “[m]ineral and other substance exploration or excavation and mining [in] accordance with provisions of Sec. 6.10” of the Stark County Zoning Ordinance. The Commission scheduled a hearing and sent notice by certified mail to all persons who owned land within 200 feet of the boundaries of the proposed rezoned tract. Following the hearing, the Commission voted to recommend that the County Board of Supervisors (Board) approve the application, conditioned upon Great Northern obtaining all necessary local, state, and federal permits or approvals. The Board subsequently approved the application to rezone the property from agricultural to industrial and approved the requested conditional uses. The Board’s approval was subject to several express conditions, including a requirement that Great Northern “obtain all the necessary local, state and federal approvals, licenses and permits relative to the operation of the coal mine.”

The Dakota Resource Council (Council) is a membership-based non-profit corporation which, among other things, works for preservation of family farms, regulation of coal mining and oil and gas development, protection of ground water and clean air, and sound management of solid and toxic wastes. Neighbors United is an unincorporated association which promotes the protection of farming and ranching. The Council, Neighbors United, and several individuals who owned land near the rezoned tract appealed the Board’s decision to the district court. The district court initially determined that the Council, Neighbors United, and the individual landowners had standing to challenge the Board’s decision, but the district court affirmed on the merits the Board’s decision to rezone the property and allow the conditional uses.

The Council, Neighbors United, and landowners appealed.  The Board and Great Northern cross-appealed, arguing that the Council lacked standing to appeal the Board’s decision to the district court.

Standing.  The North Dakota Supreme Court noted at the outset that “standing is the concept used to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented to the court.”  A not-for-profit association such as the Council that has not suffered an injury itself must satisfy a three-pronged test to demonstrate standing: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. In addition, a nonprofit membership corporation has standing to seek judicial review on behalf of its members, of governmental or municipal regulations directly affecting such members.  The Board and Great Northern challenged the Council’s standing only on the first prong of the test.  The Court affirmed the district court’s conclusion that the Council had standing in this case, at the same time acknowledging that it presented a “close question.” The Stark County Zoning Ordinance requires that, when a proposed amendment to the Zoning Ordinance and Map affects a property use, all property owners within 200 feet of the affected property must be notified of the hearing by personal service or certified or registered mail. In this case, the record demonstrated that at least two individuals identified as Council members received notice of the scheduled hearing from Stark County by certified mail because they owned property within 200 feet of the proposed rezoned tract.  The Court saw the notice requirement “effectively [as] a legislative determination that landowners within 200 feet of the proposed rezoned property have a significant, protectable interest in the Board’s decision whether to grant an application to rezone the property and permit requested conditional uses.  The notice requirement established that Kenneth Kudrna and Randall Kudrna’s property interests were affected by the Board’s decision in a manner different than that suffered by the public generally, and they were more than just an elector and resident taxpayer affected by the decision….We do not believe it can be seriously argued that an 8,100 acre industrial complex, including a coal gasification plant, chemical fertilizer plant, electrical power plant, coal mine, solid waste landfill, and facilities for manufacture and storage of hazardous, explosive, and odorous products, would not adversely affect the Kudrnas’ use and enjoyment of their respective properties located within 200 feet of the proposed complex.”

Rezoning decision.  The Council contended that the Board failed to correctly interpret and apply the Stark County Zoning Ordinance. The Court began this analysis by noting that although interpretation of an ordinance presents a question of law fully reviewable on appeal, the interpretation of a zoning ordinance by a governmental entity is a quasi-judicial act, and a reviewing court should give deference to the judgment and interpretation of the governing body rather than substitute its judgment for that of the enacting body.  The Council argued that Great Northern was required by the ordinance to submit all application materials necessary to apply for a land disturbance permit.  The Board disagreed.  The Court disagreed, as well.  The Board, construing its Zoning Ordinance in light of the facts presented in this case, concluded that the Zoning Ordinance allowed the Board to issue a conditional use permit for mining operations, subject to the requirement that Great Northern ultimately comply with another section of the ordinance and obtain a land disturbance permit before commencing any exploration, excavation, or mining activities on the property.  The Board viewed the granting of the conditional use permit as merely the first step in a lengthy and complex process, and its approval of the conditional use was contingent upon Great Northern complying with all of the enumerated special conditions imposed upon the conditional use permit.  The Court concluded that “this is a reasonable interpretation of the Zoning Ordinance, and we give deference to the Board’s interpretation and will not substitute our judgment for that of the Board.”

The district court decision was affirmed in all respects.

County establishes easement for road by adverse posession across livestock ranch (ND)

by Gary Taylor

McKenzie County v. Reichman
(North Dakota Supreme Court, January 24, 2012)

In 2006, McKenzie County sued Reichman, alleging a road that “Flat Rock Road” which crosses her ranch  had been used by the public in an open, general, continuous, and uninterrupted manner for at least 20 successive years and seeking a prescriptive easement and formal declaration as a public road.  According to Reichman, the public’s use of the road through her ranch significantly increased after she purchased the ranch in 2000, including an increase in traffic attributable to the oil industry. As a result, she sought to restrict public use of the road, including placing gates or cattle guards across the road as part of her livestock operation.  She claimed any public use of the road was permissive, and there had been no continuous, adverse, hostile, and uninterrupted use of the road for the prescriptive 20-year period. She counterclaimed for damages for inverse condemnation. After a trial, the district court declared a prescriptive easement in favor of McKenzie County, and Reichman appealed.

The North Dakota Supreme Court began by noting that a party claiming a road by prescription must establish by clear and convincing evidence the general, continuous, uninterrupted, and adverse use of the road by the public under a claim of right for 20 years.  The court then recited the extensive presentation of the history of the land and the road dating back to 1920 presented at the trial court.  Important to the court was the fact that the County constructed a graded road in the 1950s with the knowledge and consent of the adjacent landowners, including the then-owner of the Reichman property.  The County provided maintenance for the road, including grading, plowing snow, placing scoria on the road, and installing culverts and bridges. Testimony was presented that the road was only blocked for short periods when ranchers moved livestock.  According to the court, the 20-year period for measuring a prescriptive use begins when a burden is placed on the land and relates back to the inception of the adverse use which, in this case, was the point in time in the 1950s when the County first constructed a graded road.  “The expenditure of public funds for construction and maintenance of a road is evidence of an adverse use….Gates across roads are indicative of permissive (contrasting to an adverse) use, but gates for working livestock which do not deny access or interfere with public traffic do not mandate a permissive use.”  Therefore. the court determined that McKenzie County had, in fact, established a prescriptive easement and the right to a formal declaration of Flat Rock Road as a public road.

The court further stated that the width of a prescriptive easement for a road is not limited to that portion of the road actually traveled, but may include the shoulders and ditches that are needed and have actually been used to support and maintain the traveled portion of the road during the prescriptive period.  Considering the district court declared the road to be a public road “as it presently exists,” the Supreme Court remanded the case for a determination of the prescriptive road either by width, by metes and bounds, or by other suitable description as the road existed at the commencement of the action.

City’s interpretation of own ordinance entitled to deference

by Gary Taylor

Mertz v. City of Elgin, North Dakota
(North Dakota Supreme Court, July 21, 2011)

Melvin Mertz applied for a permit to build a fence on the lot line at the edge of his residential property in Elgin, North Dakota. Elgin’s city attorney opined the fence violated city ordinances that prohibited a structure from being built within seven feet of the lot line along a side yard. Elgin’s city council denied Mertz’s application based upon the city attorney’s opinion. The district court affirmed the denial by Elgin’s city council, stating the interpretation and application of the ordinances was reasonable.  Mertz appealed.

The North Dakota Supreme Court observed that the local governing body’s decision must be affirmed unless it acted arbitrarily, capriciously, or unreasonably, or if there is not substantial evidence supporting the decision. “The interpretation of a zoning ordinance by a governmental entity is a quasi-judicial act, and a reviewing court should give deference to the judgment and interpretation of the governing body rather than substitute its judgment for that of the enacting body.” The city attorney opined the proposed fence would violate city ordinances prohibiting the building of a structure within seven feet of the lot line of a side yard. A structure is, “Something constructed or built, or a piece of work artificially built up or composed of parts joined together in some definite manner.” The city attorney opined a fence is a structure, which meant a fence must be seven feet from the lot line, and the Elgin city council agreed with the interpretation.  The Court concluded based on the definition that it was reasonable for Elgin to decide a fence is a structure and prohibited within seven feet of the side yard lot line.

Mertz argued that if a fence is a structure, the ordinances lead to an absurd result where a fence can only be built seven feet from the lot line. The Court stated that Elgin has the authority to regulate and restrict the size of yards and locations of structures, and that Mertz had not proven there is no legitimate governmental purpose or that the ordinances are arbitrary.

Mertz also argued the Elgin city council acted without making findings on evidence, and there was not substantial evidence to support or justify its decision; however, the city council minutes showed the city council relied upon the city attorney’s opinion, and that opinion was available and contained the rationale of why the proposed fence would violate the ordinances. The record shows Elgin had on file Mertz’s permit application, a drawing of Mertz’s lot with the proposed fence, a statement of the zoning and planning commission that the members of the commission had no issue with the fence based upon a visual examination, the city attorney’s letter of his opinion based upon a reading of the ordinances, and a copy of the ordinances. The record supports the city council’s decision, and we can discern the rationale for the city council’s decision.

Mertz argued other residents in Elgin had structures within seven feet of their lot lines, and the drawing included with Mertz’s permit application showed his neighbor’s garage is twelve inches from the lot line. However, there was nothing on the record indicating whether the ordinances were in effect when these structures were built. From the record, the Court could not say Mertz’s permit application was arbitrarily denied while others were not prohibited from building within seven feet of the side yard lot line.

The Supreme Court affirmed the district court order affirming the decision by the Elgin city council.

North Dakota law allows inclusion of property outside city limits in city special assessment district

by Melanie Thwing

Hector v. City of Fargo
(North Dakota Supreme Court, August 31, 2010)

The Fargo Board of City Commissioners created four improvement districts for the construction of a sewer system, water mains and storm sewers. Fred Hector owns property in these districts, and was assessed for the improvements. Through the Special Assessment Commission he voiced objections to these assessments, but the Commission approved the assessments.

He then appealed to the district court, which ultimately affirmed the assessments. In appealing to the Supreme Court of North Dakota, Hector argues that the creation of these districts and the assessment for his property in these special districts is unlawful because the land is outside the city limits of the City of Fargo. 

 N.D.C.C. § 40-23-19, states:
Any property that was outside the corporate limits of the municipality at the time of contracting for an improvement, which is benefited by the improvement and is subsequently annexed to the municipality, may be assessed for the improvement subject to the same conditions … the governing body may create one or more improvement districts comprising all or part of the annexed territory….”

Also, § 40-23-25 states that when contracting for improvements, the commission must first prepare and file a list of any foreseeable future improvements on land outside of the city limits. This acts as a safe guard for any buyers looking to purchase within these zones, giving them notice to future projects.

Finally § 40-23-17 allows for the municipalities to create these improvement districts and then, “allows for the city to put the money up front but then to recapture it when the property is annexed or when there are actual benefits to that resident.”

All statutes point the Supreme Court to the conclusion that the special improvement districts were created lawfully, and the evidence reflected that the special assessments had not yet been implemented or levied on Hector’s property located outside city limits at the time of the litigation.  The law also allows for the city to levy not only property within city limits, but also the annexed property. For these reasons, the Supreme Court affirms the district court’s decision.

Although house not yet built, landowner had standing to claim injury from CAFO approval

by Allison Arends

Hagerott v. Morton County Board of Commissioners
(North Dakota Supreme Court, February 22, 2010)

In 2008 Fred Berger applied to the Morton County Commission for a conditional use permit that would relocate an existing feed operation to a proposed site that was zoned for agricultural use.  The Morton County Feeding Operation ordinance requires a minimum separation of one mile between feedlots and residences.  Berger’s application indicated that there were no existing residences within one mile of his proposed feed lot; however, Donald Hagerott had also applied for a building permit in 2008 in order to build a house for his son, Mark Hagerott. The house would sit within one mile of the proposed feedlot. The Morton County Building Department issued him a building permit, noting that it was null and void if construction was delayed or suspended for a period of 180 days. Although the Hagerott’s placed a mobile home on the property they did, in fact, delay construction for over 180 days.  Hagerott maintained that the delay was a result of Berger’s pending application for the feedlot.

The commission approved Berger’s application for a 8,000 animal feeding operation and Hagerott appealed. The district court found that Hagerott did not have standing to challenge the commission’s approval.  Hagerott then appealed to the North Dakota Supreme Court.

The North Dakota Supreme Court first noted that for an individual to have standing, he must have some legal interest that may be enlarged or diminished by the decision to be appealed from, and such party must be injuriously affected by the decision. In regards to Hagerott’s standing the court found that, “the commission’s decision to grant a conditional use permit for a feedlot within the one mile odor setback of the proposed house has the effect of diminishing and injuriously affecting his personal and individual interest in his land in a manner different than that suffered by the public generally,” therefore making him factually aggrieved by the issuance of Berger’s conditional use permit and providing him with standing to appeal the commission’s decision.

In response to Hagerott’s second claim, the court first made clear that a county commission’s decision to issue a conditional use permit must be affirmed unless the commission acted arbitrarily, capriciously, or unreasonably, or if there is not substantial evidence supporting the decision. The court went on to find that the commission correctly concluded that the Hagerotts did not have an “existing residence”  within one mile of Berger’s proposed feedlot after extensive consideration of what constitutes an existing residence.  The court also found that there was no evidence that the Hagerott’s made substantial expenditures in reliance on the zoning ordinance and therefore had no protection against zoning changes prohibiting that use. The court found that the commission issued the conditional use permit through a “reasoned discussion and mental process for the purposes of achieving a reasoned and reasonable interpretation,” and therefore did not act arbitrarily, capriciously or unreasonably.  The North Dakota Supreme Court therefore affirmed the district court’s decision.

Challenge to Fargo (ND) planning commission decision untimely

by Allison Arends

Rakowski v. City of Fargo
(North Dakota Supreme Court, January 26, 2010)

FM City Development owned several lots next to Rakowski’s property near North Dakota State University campus. FM intended to develop the property by constructing a three-story mixed-use building with both commercial and residential space. FM applied to the City of Fargo for a conditional use permit to allow residential use of the property, which was zoned Limited Commercial, and to reduce the required number of on-site parking spaces for the development. Rakowski (neighboring landowner) was given notice of the City Planning Commission’s public hearing, and although Rakowski did present his objections at the public hearing, he failed to file a timely appeal from the City Planning Commission when they granted the conditional use permit.

Rakowski appealed the City’s decision to the district court, specifically objecting to the reduction of the required number of on-site parking spaces. Rakowski argued that the City had improperly granted the conditional use permit because it did not comply with the City’s Land Development Code. The City’s Code sets specific standards for the number of required off-street parking spaces for commercial and residential land uses.

The Court, however, determined that although the Development Code does provide restrictions,

“It allows the City to reduce the number of required parking spaces through adoption of an Alternative Access Plan. If a parking reduction of more than 25 percent, the request must be considered by the City Planning Commission, which is authorized to issue a conditional use permit to the City commission allowing the reduction in parking. An aggrieved party may appeal the decision of the City Planning Commission to issue or deny conditional use permit to the City Commission.”

The Court also noted that, “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.” Because Rakowski failed to file a timely appeal, the court held that the City Planning Commission’s decision to issue a conditional use permit adopting an alternate access plan was proper.






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