Patterson v. City of Bismarck

• Decision Date: 24 October 1973
• Docket Number: No. 8866,8866
• Citation: 212 N.W.2d 374
• Parties: Rose PATTERSON et al., Plaintiffs and Respondents, v. The CITH OF BISMARCK, a municipal corporation, et al., Defendants andAppellants. Civ.
• Court: North Dakota Supreme Court

Page 374

212 N.W.2d 374

Rose PATTERSON et al., Plaintiffs and Respondents, v.The CITH OF BISMARCK, a municipal corporation, et al Defendants andAppellants.

Civ. No. 8866.

Supreme Court of North Dakota.

Oct. 24, 1973.

Syllabus by the Court

1.Notice by publication of the establishment of a parking improvement district was sufficient under due process caluse, and it was not necessary to serve property owners personally.

2.An opportunity to be heard with right of review upon the question of assessments for benefits is all that is required to satisfy the due process provision of the Constitution of the United States and North Dakota.

3.At some point in the process before the property owner's liability for a special assessment becomes finally established, due process requires that the owner be given notice and the opportunity to object to the proposed assessment of the property.

4.In a special assessment proceeding personal notice or notice by mail is not a prerequisite to due process per se.Actual notice of such hearing in addition to constructive notice is sufficient.

5.As a general rule the Court will not interfere with the taxation or assessment law as violative of the Fourteenth Amendment unless the action of the taxing authority has been palpably arbitrary or grossly unequal in its application to the property owners concerned.

6.Generally, all presumptions are in favor of the validity of assessments for local improvements and the burden is on persons attacking the validity of assessments to show that they are invalid.

7.For reasons stated in the opinion, the property owners have not sustained the burden of showing the action of the special assessment commission thereafter confirmed by the city governing body as being arbitrary, capricious or unlawful.

8.Section 185 of the North Dakota Constitution does not prohibit the state or any county or city from making loans or donations as extending its credit where such loans or donations are made and credit is extended in connection with the operation of any industry, enterprise, or business by the state, the county or city.

9.A special improvement district established for the purpose of constructing a multi-level parking garage is within the province of Section 40--22--09, N.D.C.C.

10.For reasons stated in the opinion the determination of size and form of a special assessment district involves judgment and discretion of the governing body and the Court will not substitute its judgment for that of the commission making such judgment.

11.When there is substantial evidence to support the decision of a special assessment commission, which is shown not to be invalid as a result of fraud or mistake, or by some defect in the proceeding which would render the special assessment invalid, the decision of the special assessment commission as confirmed by the city governing body will be affirmed.

Rausch & Chapman, Bismarck, for plaintiffs and respondents.

John A. Zuger, City Atty., City of Bismarck, and Arthur B. Whitney, Minneapolis, Minn., for defendants and appellants.

RAY R. FRIEDERICH, District Judge.

This is an appeal from a judgment of the District Court of Burleigh County restraining the City of Bismarck from levying and collecting special assessments and for the refund of those assessments already paid under protest in connection with the construction and operation of a parking ramp in Parking Improvement DistrictNo. 17.

The case has previously been before this Court on limited issues, and a new trial was granted on all issues.SeePatterson v. City of Bismarck, 188 N.W.2d 734(N.D.1971).

The facts and circumstances giving rise to the suit are as follows:

The Board of City Commissioners of Bismarck for many years prior to this action recognized a parking problem within the city, and in 1956 appointed a Parking Advisory Commttee with instructions among other things to inventory and analyze the existing parking problem along with the economic impact of parking upon the city, and to suggest methods of acquiring and financing public parking facilities.This advisory committee in projecting the anticipated parking needs of the city recommended the acquisition of property for public parking at Sixth Street and Broadway and the use of the special assessment method as the only satisfactory means of acquiring and financing parking lots.Among its recommendations the committee stated:

'The lots already acquired adjacent to the central business area may be 'remped' as the need materializes and the demand for parking increases to make this a practicality.'

The concern of the city administration as it pertained to parking in the central downtown business section of Bismarck at about this time is further indicated by a revision of the zoning ordinance passed in July of 1954 which exempted from providing off-street parking, (1) any building replacing a building existing at the date of the ordinance, (2) any new building being constructed on vacant land, or (3) any building in which floor space was increased by any additions or structural alterations.The ordinance previously in effect and which governs all areas in the business and commercial district of Bismarck not exempted by this zoning ordinance requires off-street parking according to a formula outlined in the ordinance.The geographic area encompassed by the 1954 ordinance exempting certain areas from furnishing off-street parking space includes what is now Parking Improvement DistrictNo. 17, and the ordinance provides that in this area parking will be provided by the City of Bismarck by eminent domain or other authorized legal means, and assessment made against the benefited property.

A traffic engineering study for the city requested in 1962 from a private consulting firm found the greatest traffic congestion and parking problem where Main, Broadway, and Thayer Avenues intersected Third, Fourth, Fifth, and Sixth Streets.To alleviate the traffic congestion this study recommended prohibition of parking for 30 to 40 feet from the crosswalks and approaches to some of these intersections.

A parking study by the same consulting firm in November of 1962 found the greatest parking problem at the intersection of Thayer Avenue and Fifth Street.They recommended a parking lot on the south side of Broadway between Fifth and Sixth Streets.Their findings as to the habits and preferences of people visiting the area were:

'Almost 50 percent of the people walked less than 100 feet.Only 2 percent of the people are required to walk over 800 feet.The clear implication is that any new parking facility would have to be located within 400 feet, and preferably within 200 feet, of the principal shopping and business destinations to attract any appreciable patronage.'

The most comprehensive study of the problem in 'downtown Bismarck' was compiled in 1968 by a committee of interested residents, officials of the city, and a firm of planning consultants.This study covered an area of 96 blocks considered the business and commercial area of Bismarck.It found the four blocks bounded by Third Street, Fifth Street, Broadway, and Main Avenue (largely within Parking Improvement DistrictNo. 17) to constitute almost 25 percent of the total taxable valuation of this area.As to parking problems it found:

'1.'In the four central blocks (all within Parking Improvement DistrictNo. 17), only 81,000 sq. ft. is available onstreet and off-street to serve more than 500,000 sq. ft. of floor area.Thus, the parking area for these four blocks is less than one-sixth the total floor area.'

2.'Although the city has been active in providing additional off-street parking areas, serious deficiencies still exist around major traffic generators.'

In its recommendations to the city administration the same committee stated:

'The downtown improvement plan suggests three principal locations for the development of further off-street parking: south of Thayer Avenue between 2nd Street and the alley between 3rd Street and 4th Street, north of Main Avenue between 2nd Street and the alley line between 3rd Street and 4th Street, and on the west side of 6th Street between Thayer Avenue and the alley between Broadway and Main Avenue.Each of these proposed locations might be purchased and developed in stages, probably beginning as open, off-street parking areas, and eventually being developed into multi-level parking garages. . . .'

In accordance with the information thus received and the recommendations made, the city administration proceeded to acquire the property on which the present parking ramp is constructed.The particular site, among others, was acquired by the formation of separate special improvement districts in 1963, 1964, and 1966.The 1963 district was larger in area than Parking Improvement DistrictNo. 17, but the area actually assessed was the same.The 1964 and 1966 districts comprised the same area as DistrictNo. 17.

The ordinance creating Parking Improvement DistrictNo. 17 was passed by the Board of City Commissioners of Bismarck in October of 1968.It comprises an area slightly over 10 1/2 city blocks in the central business district of Bismarck and for all practical purposes is rectangular with the parking ramp or parkade, as it is referred to, located almost directly in the center.The problem areas for parking and traffic congestion pointed up in the studies and surveys heretofore referred to are either entirely or largely within the area comprising Parking Improvement DistrictNo. 17.The resolution declaring the necessity of the improvement adopted at the same time as the ordinance and stating the reason and nature of the improvement is as follows:

'It is hereby found, determined and declared that for the purpose of alleviating traffic congestion, preventing the development of blight and implementing orderly plans for urban development and urban renewal it is necessary that adequate and suitable space be...