Pietsch v. Ward Cnty., Case No. 1:18-cv-00023

• Decision Date: 10 March 2020
• Docket Number: Case No. 1:18-cv-00023
• Citation: 446 F.Supp.3d 513
• Parties: John PIETSCH; Arlan Irwin as Trustee for the Albert and Grace Irwin Trust; Ward County Farm Bureau, a North Dakota Non-Profit Corporation; and Ward County Farmers Union, a North Dakota Non-Profit Corporation, Plaintiffs, v. WARD COUNTY, a Political Subdivision of the State of North Dakota; and the Board of County Commissioners for Ward County, North Dakota, Defendants.
• Court: U.S. District Court — District of North Dakota

446 F.Supp.3d 513

John PIETSCH; Arlan Irwin as Trustee for the Albert and Grace Irwin Trust; Ward County Farm Bureau, a North Dakota Non-Profit Corporation; and Ward County Farmers Union, a North Dakota Non-Profit Corporation, Plaintiffs,

v.WARD COUNTY, a Political Subdivision of the State of North Dakota; and the Board of County Commissioners for Ward County, North Dakota, Defendants.

Case No. 1:18-cv-00023

United States District Court, D. North Dakota.

Signed March 10, 2020

Franklin J. Falen, Teresa Lynn Slattery, Falen Law Offices, LLC, Cheyenne, WY, for Plaintiffs.

Lawrence E. King, Alyssa Lovas, John E. Ward, Zuger Kirmis & Smith, Bismarck, ND, for Defendants.

MEMORANDUM AND ORDER

Peter D. Welte, Chief Judge

I. INTRODUCTION

In exchange for approval of plat applications on property abutting section lines and existing roadways, a Ward County, North Dakota ("Ward County" or the "County"), zoning ordinance mandates that landowners dedicate a predetermined fee-title right of way to the County. See Ward County, N.D., Zoning Ordinance ch. 3, art. 24, § 4(A)(12).¹ The ordinance's apparent purpose is to facilitate road construction and maintenance, but the dedication requirement applies regardless of whether the County demonstrates a need for the right of way for future road projects. As a compounding factor, the exclusive method to avoid dedication forces a landowner to apply for a variance and prove a hardship. And even if a variance is requested, the County need not consider the applicant's proposed use of the property or any attendant financial harm resulting from the dedication. At its core, the ordinance appears to imbue Ward County with the authority to take for free what it would otherwise have to pay for through eminent domain. In that sense, the ordinance seems to be an affront to the Takings Clause of the United States Constitution.

But this is not a takings case. Instead, the Plaintiffs have chosen to wield two alternative legal theories—substantive and procedural due process—to vindicate their claims. In a single-count amended complaint invoking 42 U.S.C. § 1983, the Plaintiffs lodge both facial and as-applied constitutional challenges against the dedication ordinance. Doc. No. 30. They seek nominal damages and, much more significantly, an order declaring the ordinance unconstitutional, along with an accompanying permanent injunction barring further enforcement. Now pending are cross motions for summary judgment. Doc. Nos. 40, 42. Because due process is a square peg in a round hole here, the ordinance escapes unscathed.

II. BACKGROUND

Despite the voluminous record, the facts present as straightforward and uncontested. Prior to addressing the Plaintiffs' claims, a summary of the dedication ordinance is necessary. A brief introduction of the parties and this case's procedural history follows.

A. The Dedication Ordinance

Outside of incorporated cities, North Dakota has designated 33-foot right-of-way easements for public roads on each side of every section line (for a total of 66 feet) since before statehood. See N.D. Cent. Code § 24-07-03. Counties, as political subdivisions of the state, lack independent authority to construct and maintain roadways unless they create a home-rule charter. See Doc. No. 30, ¶ 18. Ward County has adopted such a charter, so it may "[p]rovide for zoning, planning, and subdivision of public or private property within the county limits but outside the zoning authority of any city or organized township." N.D. Cent. Code § 11-09.1-05. As a natural extension, the County is permitted to provide for and regulate a county road system, as well as "acquire, hold, operate, and dispose of property within or without the county limits, and exercise the right of eminent domain" for that road system. Ward County, N.D., Home Rule Charter art. 2(a), (f). No one quarrels with the statutory easement mandate or the County's usual eminent domain procedures.

Equally uncontroversial is the North Dakota Century Code provision that spells out the procedure for approval of a subdivision plat. The basic building block says, "No subdivision ... shall be made ... except in accordance with a plat as finally approved by the board of county commissioners." N.D. Cent. Code § 11-33.2-12. Before a county commission can approve a plat, though, the county's planning commission and the relevant township get an opportunity to weigh in on the proposal. See id. These recommendations are nonbinding.

Once a plat application works its way up the ladder for final approval, the board of county commissioners is required to consider certain factors. If an applicant satisfies the statutory criteria, the commission must approve the plat—if not, mandatory disapproval follows:

In determining whether a plat shall be finally approved or disapproved, the board of county commissioners shall inquire into the public use and interest proposed to be served by the subdivision.... If it finds that the proposed plat makes appropriate provisions for the public health, safety, and general welfare and for such open spaces, drainage ways, streets, alleys, other public ways, water supplies, sanitary wastes, parks, playgrounds, sites for schools and school grounds, and that the public use and interest will be served by the platting of such subdivision, and that the proposed plat complies with a county resolution, if any, regulating or restricting the subdivision of land, to the extent that such resolution does not conflict with the provisions of this section, such plat shall be finally approved with such conditions as the board of county commissioners may deem necessary. If it finds that the proposed plat does not make appropriate provisions, or that the public use and interest will not be served, or that the proposed plat does not so comply with the aforementioned resolution, then the board of county commissioners shall disapprove the proposed plat....

Id. The plat approval statute has one final—and critical—sentence, which states, "Dedication of land to any public body may be required as a condition of subdivision approval and shall be clearly shown on the final plat." Id. The challenged Ward County ordinance does just that, mandating the dedication of fee-title right of way along section lines and roadways to the County as a condition for outlot and subdivision plat approval. See W.C.Z.O. ch. 3, art. 24, § 4(A)(12). For section lines, township roads, frontage roads, and rural subdivision roads, the County requires 40 feet from each side of the center line (for a total of 80 feet); for county roads, 75 feet from each side (for a total of 150 feet). Id.

The genesis for the expanded dedication requirement came from local engineers and developers informing the County that the 33-foot statutory right of way allotted insufficient space for road construction projects. Doc. No. 44-5 at 60:11-64:15. Enacted on April 6, 2010 by the Board of County Commissioners for Ward County ("County Commission")—unanimously and with no opposition during the public comment period—the ordinance's stated purpose largely mirrors the Century Code's requirements for plat approval:

In order to provide for the proper arrangement of streets in relation to other existing and planned streets, and to the master plan of the City of Minot; to provide for adequate and convenient open spaces, for recreation, for light and air; in order to avoid congestion of population; in order to provide for traffic, for utilities, for access of fire-fighting apparatus; in order to provide for and improve the public health, safety and general welfare of the County of Ward, the following rules and regulations for the [platting] and subdivision of zoned land within the County of Ward are made part of this regulation in accordance with the laws of the State of North Dakota.

W.C.Z.O. ch. 3, art. 24, § 1; see also Doc. No. 46 (audio recording of April 6, 2010 County Commission meeting filed conventionally). The County Commission does not have to articulate a specific need for right of way when approving a plat application. Doc. No. 30, ¶ 25. Rather, the dedication requirement applies as a matter of course to all subdivision and outlot plats. Doc. No. 44-5 at 87:10-20.

Because of this uniform approach, Ward County has essentially stripped itself of any discretion to approve a subdivision or outlot plat that does not comply with the dedication requirement. See Doc. No. 44-5 at 87:10-20. A landowner therefore has a single path to avoiding dedication—a variance. Doc. No. 44-1 at 20:17-24. The variance process begins with the applicant paying a mandatory $100 application fee. See Doc. No. 44-9. From there, the application passes to the Ward County Planning Commission ("Planning Commission") and the appropriate township for comment. See Doc. No. 30, ¶¶ 47, 51. The variance request is then presented to the County Commission for an up or down vote. Id. ¶ 49. At that point, the County Commission must determine whether the dedication would impose a hardship. See W.C.Z.O. ch. 3, art. 24, § 8(A). The burden to prove a hardship rests with the applicant. Doc. No. 44-6 at 20:12-21. Circumstances constituting a hardship are limited to physical characteristics of the property. Doc. No. 44-1 at 20:17-24. Although in practice the County Commission considers the applicant's proposed use of the property if included with a variance request, it is not required to, and any motion to approve a variance must state the hardship on the property itself. See Doc. Nos. 44-5 at 111:15-112:1; 44-6 at 19:15-22. Purely economic justifications cannot support a hardship variance. Doc. No. 44-1 at 20:17-24.

A few ancillary matters are important to mention at this juncture as well. An appeal process is available for landowners that receive an adverse decision on a plat application, permitting review by a North Dakota state district court.² W.C.Z.O. ch. 3, art. 24, § 13(C). North Dakota also recognizes actions for inverse condemnation, through...