Patterson v. City of Bismarck

• Decision Date: 23 June 1971
• Docket Number: No. 8715,8715
• Citation: 188 N.W.2d 734
• Parties: Rose PATTERSON et al., Plaintiffs and Respondents, v. The CITY OF BISMARCK et al., Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 734

188 N.W.2d 734

Rose PATTERSON et al., Plaintiffs and Respondents, v.The CITY OF BISMARCK et al., Defendants and Appellants.

Civ. No. 8715.

Supreme Court of North Dakota.

June 23, 1971.

Syllabus by the Court

1.In the construction of a statute the intention of the lawmakers must be deduced from a view of the whole statute, and of every part thereof taken and compared together.

2.Subsection 5(f) of Section 40--60--02 of the North Dakota Century Code provides the formula under which leases for a parking facility may be offered by a municipality, and does not pertain to the power of financing the facility, and therefore does not prohibit a municipality that has leased out the facilities and has issued bonds from levying taxes or assessing special assessments as a primary source of revenue for the payment of any warrants or bonds which a municipality may have issued in connection with the construction of such a facility.

3.Where it appears from the record that material facts are absent from the record, a new trial may be granted by the Supreme Court under Section 28--27--32, North Dakota Century Code.

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.

ADAM GEFREH, District Judge.

This appeal is from a judgment rendered in favor of the plaintiffs in an action in the District Court of Burleigh County to enjoin the collection of certain special assessments levied against the plaintiffs' property in the City of Bismarck.The defendants have requested a trial de novo in the Supreme Court.The project for which the assessments were levied is a parking facility to provide off-street parking facilities for the principal business district of Bismarck, which facility was constructed under the powers granted under Chapter 40--60 of the North Dakota Century Code.

The action to enjoin the collection of the special assessments alleged several grounds as the basis for declaring the special assessments against the properties of the plaintiffs invalid.However, the trial court at the outset of the trial indicated to the parties that it was concerned with the interpretation of Section 40--60--02 subsection 5(f) of the North Dakota Century Code and inquired whether the parties would stipulate that the City of Bismarck issued bonds for the total amount of the cost of the parking facility and that the City of Bismarck leased out all of the parking facility.No reference was made in the stipulation as to the type of bonds that were issued.This stipulation was agreed to by the parties whereupon the court proceeded to a discussion of Section 40--60--02 subsection 5(f) of the North Dakota Century Code indicating to the parties that under this subsection the city, having leased the entire facility, is precluded from levying special assessments.

The defendants thereafter offered as exhibits in evidence all the official proceedings had by the city in connection with this parking facility which the court received.The plaintiffs did not introduce any evidence, but indicated to the court that they had testimony to offer in support of their allegations in the complaint, but would not offer any if the court was prepared to rule on the one issue that the court raised and on that basis rested.The parties thereupon rested and the court issued its decision.

The first issue before this court is whether or not the trial court's decision should be sustained.

The City of Bismarck determined to use the special assessment route as the primary source of financing a combined parking and commercial facility with the provision that the special assessments would be reduced to the extent that rentals would be derived from both the parking and commercial facilities.The plaintiffs in their complaint have challenged this combination method of construction and financing on several grounds, but the trial court did not rule on any of those issues raised.The court, after the parties had stipulated that the City of Bismarck had leased out all of these facilities and had issued bonds for the total cost of construction, concluded that Section 40--60--025(f) North Dakota Century Code, which provides that leases of the facilities must be adequate to pay for the principal and interest for all bonds becoming due during the terms of the leases, precludes a municipality from levying any special assessments.

The State Legislature in 1967 enacted Chapter 40--60 entitled 'Promotion and Acquisition of Municipal Parking Facilities.'The purpose of this legislation is clearly stated in section 40--60--01 North Dakota Century Code, which reads in part:

'* * * The withdrawal of a disproportionate amount of land for this purpose from use for commercial development and from the tax base of municipalities is undesirable and can be avoided, when the growth of business areas makes it economically feasible, by the construction of multi-level parking ramps and garages, and by making the space above, below or adjacent thereto available for commercial development and use.'

Section 40--60--02 North Dakota Century Code grants the power to municipalities to implement the legislative policy declared in Section 40--60--01, and reads as follows:

'1.To acquire, construct, improve, develop and extend parking facilities.

'2.To provide funds for this purpose by the budgeting of current funds, the levy of taxes or special assessments, or the issuance of bonds or other obligations, or by any combination of these means, pursuant to and in accordance with the provisions of the North Dakota Century Code, chapters 21--03, 40--22 to 40--27, 40--35, 40--40, 40--41 and 40--57, and of all other applicable laws now in force or hereafter enacted.

'3.To devote to this purpose any land, buildings, structures or equipment which may be owned by the municipality, and are determined by its governing body to be useful therefor and not required for another municipal purpose, and whose use for this purpose is not restricted by the terms of any conveyance or judgment by which such properties were acquired.

'4.To operate and maintain parking facilities and establish and collect rates, charges and rentals for the use thereof by all public and private persons, firms and corporations.

'5.To lease parking facilities, and any part thereof, to any public or private person, firm or corporation, upon such terms as the governing body may determine; provided that:

'a.No lease may be executed for a longer term, or shall be subject to extension at the option of the lessee for an additional term or terms, exceeding the maximum period prescribed by the North Dakota Century Code, section 47--16--02.

'b.Every lease shall provide that title to all real property, buildings, and improvements on real property or in buildings subject to the lease, whether or not previously owned or acquired, constructed or financed by the municipality, and title to all other real and personal property subject to the lease which was previously owned or is acquired, constructed or financed by the municipality, shall be and remain in the municipality.

'c.If the entire site of any parking facilities and all improvements constructed thereon are leased, the lease shall specify the amount of space to be operated and maintained exclusively for public parking of motor vehicles, and the area of such space shall be not less than two times the area of the space, if any, to be made available within the facilities for commercial use.

'd.Any lease may permit the sublease of part or all of the facilities, but the minimum parking space specified in accordance with subsection c shall be used or subleased soley for public parking, and all other space in the facilities shall be used or subleased solely for commercial or industrial use furthering the policies and purposes declared in the North Dakota Century Code, chapter 40--57, and may be so used notwithstanding any provisions of that chapter precluding the use of previously owned municipal property or of municipally operated property for the projects therein authorized.

'e.If under the terms of the lease sthe lessee is to construct and finance the lessee is to construct and finance be provided at the leased site, the lease may permit the lessee's interest therein to be mortgaged to secure the repayment of money borrowed by the lessee for this purpose, upon reasonable terms approved by the governing body of the lessor, and may allow the mortgagee a reasonable time to cure any default in the payment of rentals and the performance of covenants under the lease, prior to the termination thereof by the lessor.

'f.Every lease or part or all of the facilities at a particular site shall provide for the payment by the lessee of all costs of the operation and maintenance of the leased property including, but without limitation, all taxes and special assessments validly levied on the premises or leasehold, adequate insurance against loss of or damage to the leased property and loss or damage to other persons or property from any and all operations conducted thereon, and for payment by the lessee of net annual rentals at least sufficient to pay all principal and interest becoming due during the lease term on any amount of bonds issued by the municipality to pay capital costs of the leased property, and at least sufficient to reimburse the municipality for any other expenditure made by it to pay such capital costs, in annual amounts such that, if continued uniformly over the useful life of the facilities, the total amount of such investment would be repaid in full with interest at five percent per annum on the balance thereof from time to time remaining unpaid; and

'g.The leasehold created by any such lease is classified as personal property, and any such portion of such premises not used solely for public...