Bateman v. City of Grand Forks

• Decision Date: 17 April 2008
• Docket Number: No. 20070217.,20070217.
• Citation: 747 N.W.2d 117,2008 ND 72
• Parties: Suellen BATEMAN, Appellant v. CITY OF GRAND FORKS, Appellee.
• Court: North Dakota Supreme Court

747 N.W.2d 117

2008 ND 72

Suellen BATEMAN, Appellant v. CITY OF GRAND FORKS, Appellee.

No. 20070217.

Supreme Court of North Dakota.

April 17, 2008.

Beth Angus Baumstark (argued), and Derrick L. Braaten (appeared), Sarah Vogel Law Firm, P.C., Bismarck, N.D., for appellant.

Howard D. Swanson, City Attorney, Grand Forks, N.D., for appellee.

SANDSTROM, Justice.

[¶ 1] Suellen Bateman appeals from a district court judgment affirming a flood-control special assessment levied against her property. We conclude the district court did not err in concluding that the Special Assessment Commission did not abuse its discretion in apportioning the assessments and that the assessment on Bateman's property was not arbitrary, capricious, or unreasonable. We affirm.

I

[¶ 2] In 1997, the city of Grand Forks suffered from a devastating flood, which caused millions of dollars in damage to private and public property. As a result, a massive permanent flood protection project was devised, which included flood levees, flood walls, tieback levees, pumping facilities, storm water improvements, retention ponds, gated pipes, outfall structures, and modification and extension of the English Coulee diversion channel. The goal of the project was to reduce direct flooding from the Red River of the North, to reduce backup flooding into the English Coulee from the Red River, to reduce flooding from the English Coulee, and to reduce overland flooding. Part of the financing for the project came from special assessments imposed on properties that benefit from the project. The assessments occurred in three rounds, with the first assessment in 2001, the second in 2003, and the third in 2006. The 2006 assessments were levied against property recently annexed to the city of Grand Forks within the special assessment district that had not previously been assessed.

[¶ 3] For all three rounds of assessments, the Special Assessment Commission calculated the benefits and special assessments using the effective front footage for residential properties and square footage for non-residential properties. The Special Assessment Commission found that 32 percent of the area of the city is residential in nature and 68 percent is nonresidential in nature. The Special Assessment Commission found the front footage formula reasonably approximates the usable space of residential properties and the square footage reasonably approximates the usable space of non-residential properties. The Special Assessment Commission considered other assessment methods, including assessments based on property elevation, property value, distance from the river, type or style of construction presently existing on a property, whether a property was currently in the one-hundred-year floodplain, whether a property had structures damaged in the 1997 flood, and square footage of existing buildings, but concluded those methods did not accurately quantify the benefit received from the enhanced flood protection. The Special Assessment Commission reduced the area assessed on undeveloped agricultural property by 30 percent because it concluded that would be the approximate area necessary to accommodate future platting of public right-of-way for streets, infrastructure, and utilities, and therefore should be excluded from the square footage calculation of benefit. The Special Assessment Commission also reduced cemetery assessments and the assessments on certain properties near or adjacent to the English Coulee because it concluded those properties receive a reduced benefit from the project.

[¶ 4] On June 19, 2006, the Grand Forks City Council approved the recommendation of the Special Assessment Commission to assess all newly annexed properties located within the assessment district. The Special Assessment Commission determined benefits and assessments for the newly annexed properties and created a list of the benefits and proposed assessments for each property. Notice of the proposed assessments and a public hearing to consider objections was published in the local newspaper on September 9 and 16, 2006.

[¶ 5] Bateman owns non-residential, agricultural land within the city limits of Grand Forks, west of Interstate 29, and within the boundaries of the city's flood protection system. A portion of the property, consisting of approximately 1.28 acres, was annexed in 2003. Other portions of the property were already within city limits and had been assessed in 2001 and 2003 for the flood protection project. In August 2006, the Special Assessment Commission sent Bateman written notice that on the basis of the property's area, the recently annexed portion of her property would be assessed $4,195.61 for the flood protection project. Bateman's property received a 30 percent reduction in the area assessed because the property is undeveloped agricultural land. The property is in an area that was previously identified as a future assessment area for the flood protection project, but had not been assessed in 2001 or 2003 because it was not within the city limits.

[¶ 6] On September 27, 2006, the Special Assessment Commission held a public hearing to consider protests and objections. Bateman appeared at the hearing and protested the assessment, questioning why her property would be assessed since it is located four miles from the river and did not benefit from the flood protection project. The Special Assessment Commission rejected Bateman's protest and approved the assessment without modification. Bateman received written notice that the Special Assessment Commission did not modify the proposed assessment and that she could protest the assessment at a City Council meeting on October 16, 2006. Notice of the confirmation of the special assessments was published in the newspaper.

[¶ 7] In October 2006, Bateman sent the City a written appeal objecting to the Special Assessment Commission's actions. The City Council considered Bateman's objections to the assessment at an October 16, 2006, City Council meeting, and Bateman appeared at the meeting with her attorney to protest the assessment. Bateman argued her property should not be assessed because her property does not receive a special benefit from the project, and she objected to the procedure the City used to annex and assess her property. The City Council denied Bateman's protests and certified the assessment. On November 6, 2006, the City Council adopted written findings about Bateman's protest.

[¶ 8] Bateman appealed the decision to the district court. The court ruled the City complied with state law by calculating the benefit each parcel of land receives; the Special Assessment Commission's decision to specially assess Bateman's land was not arbitrary, capricious, or unreasonable, because the property is especially benefitted by the project; and Bateman failed to demonstrate the Special Assessment Commission acted arbitrarily, capriciously, or unreasonably in apportioning the special assessments. The court affirmed the City Council's decision and entered judgment for the City.

[¶ 9] The district court had subject matter jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 40-26-01. The plaintiff's appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 40-26-01.

II

[¶ 10] This Court's review of a decision about special assessments is limited partially because of the separation of powers doctrine:

The special assessment commission is in essence a legislative tribunal created by legislative authority to "(1) determin[e] the benefits accruing to the several tracts of land in an improvement district by reason of the construction of an improvement and (2) assess[] the costs and expenses thereof against each tract in proportion to the benefit received." Accordingly, judicial review is limited to assuring that local taxing authorities do not act arbitrarily, capriciously, or unreasonably. Courts are not to act as a super grievance board, and we do not try special assessment cases anew or reweigh the evidence. Rather, we begin with the presumption that assessments for local improvements are valid, and the burden is on the party challenging the validity of the assessments to demonstrate they are invalid.

Serenko v. City of Wilton, 1999 ND 88, ¶ 20, 593 N.W.2d 368 (citations omitted).

[¶ 11] Section 40-23-07, N.D.C.C., provides the statutory requirements that must be followed in deciding benefits and apportioning assessments:

Whenever the commission makes any special assessment, the commission shall determine the particular lots and parcels of land which, in the opinion of the commission, will be especially benefited by the construction of the work for which the assessment is to be made. The commission shall determine the amount in which each of the lots and parcels of land will be especially benefited by the construction of the work for which such special assessment is to be made, and shall assess against each of such lots and parcels of land such sum, not exceeding the benefits, as shall be necessary to pay its just proportion of the total cost of such work, or of the part thereof which is to be paid by special assessment, including all expenses incurred in making such assessment and publishing necessary notices with reference thereto and the per diem of the commission.

This Court has said there are three requirements that must be met for a special assessment to conform to N.D.C.C. § 40-23-07:

"The special benefit accruing to each lot or parcel of land from the improvement must be determined. The special assessment levied against each lot must be limited to its just proportion of the total cost of the improvement. The assessment against any lot or parcel of land must not exceed the benefit which has been determined to have accrued thereto."

Cloverdale Foods Co. v. City of Mandan, 364 N.W.2d 56, 61 (N.D.1985) (quoting Northern Pacific R.R. v. City of Grand...