Becker v. Burleigh Cnty.

924 N.W.2d 393

Renee BECKER, Rick Bischof, Jacqueline Bischof, Dr. Craig Lambrecht, Jewel Lambrecht, Dr. Josh Rampton, Dr. Karen Rampton, Todd Tescher, and Lindsey Tescher, Dr. Attas Boutrous, Tim Clausnitzer, Stacey Clausnitzer, Gary Hanson, Darlyne Hanson, Howard Malloy, Lori Malloy, Tony Masset, Gretchen Masset, John Miller, Dr. Brenda Miller, Kim Parson, Sharon Parson, John Shaffer, Mary Shaffer, James Volk, Catherine Volk and Dr. Josh Rampton and Dr. Karen Rampton, PlaintiffsandDr. Attas Boutrous, Tim Clausnitzer, Stacey Clausnitzer, Gary Hanson, Darlyne Hanson, Howard Malloy, Lori Malloy, Tony Masset, Gretchen Masset, John Miller, Dr. Brenda Miller, Kim Parson, Sharon Parson, John Shaffer, Mary Shaffer, James Volk, Catherine Volk, Dr. Josh Rampton and Dr. Karen Rampton, Plaintiffs and Appellants

v.BURLEIGH COUNTY, Lincoln Township, and Burleigh County Water Resource District, Defendants and Appellees

No. 20180259

Supreme Court of North Dakota.

Filed March 13, 2019

Sean T. Foss (argued) and Stephen P. Welle (appeared), Fargo, N.D., for plaintiffs and appellants.

Scott K. Porsborg (argued) and Austin T. Lafferty (appeared), Burleigh County Special Assistant State’s Attorneys, Bismarck, N.D., for defendants and appellees Burleigh County and Lincoln Township.

David R. Bliss, Bismarck, N.D., for defendant and appellee Burleigh County Water Resource District.

Tufte, Justice.

[¶1] Attas Boutrous and other landowners appeal from a judgment dismissing their action against Burleigh County, its Water Resource District, and Lincoln Township to halt a flood protection project in the Fox Island subdivision in Bismarck, denying their request for a preliminary injunction, dismissing their inverse condemnation action, and ordering them to pay Burleigh County and Lincoln Township $18,756.75 in costs and disbursements. Because we conclude the district court correctly applied the law and there are no genuine issues of material fact, we affirm the judgment.

I

[¶2] The Fox Island subdivision is located in Lincoln Township ("Township") in Burleigh County ("County"). Because the Township is unincorporated and unorganized, it is governed by the Burleigh County Board of County Commissioners with respect to roads, highways, and bridges. See N.D.C.C. §§ 24-06-01 and 24-07-04(1). On April 5, 1994, the original owners of Fox Island dedicated the streets in the subdivision to the "public use forever":

[The] owners and proprietors of the property shown on the annexed plat have caused that portion described hereon to be surveyed and platted as "Fox Island subdivision" to the City of Bismarck, North Dakota and do so dedicate streets as shown hereon including all sewer, culverts, water and gas distribution lines and other public utility lines, whether shown hereon or not, to the public use forever.

They also dedicate easements to run with the land, for gas, electric, telephone and other public utilities or services under those certain strips of land designated hereon as "utility easements".

On the same day, the Board of County Commissioners "approved the subdivision of land on the attached plat ... [and] accepted the dedication of all streets shown thereon." The plat containing the dedication and County approval was recorded with the register of deeds.

[¶3] Flood events on the Missouri River in 2009 and 2011 prompted Fox Island residents to request the Burleigh County Water Resource District ("District") to devise a flood mitigation project. The District conducted a public input hearing to consider several alternatives and eventually chose to build a levee which would be partially constructed by raising public roadways within Fox Island by one to two feet. The lead engineer and project manager for the District’s proposed flood control project explained:

The plan selected by the BCWRD, with the assistance and input from the Fox Island Homeowners Association, included roadway grade raises along Gallatin Loop, Gallatin Drive, and Far West Drive, and would tie into a larger project that was constructed performed [sic] by the City of Bismarck, which included grade raises on Tavis Road, Mills Avenue, and Riverwood Drive. Burleigh County and the City of Bismarck jointly constructed the flood control gates and pump station on the Tavis Road causeway.

[¶4] Approximately 80 percent of the affected landowners voted in favor of creating a special assessment district for the project. On February 9, 2018, the County, on behalf of the Township, granted the District "an easement over, upon and in the land hereinafter described for the purpose of constructing and maintaining an earthen flood control levee, which includes a roadway grade raise and associated modifications, for the purposes of protecting property on Fox Island from the waters of the Missouri River."

[¶5] On March 9, 2018, several landowners ("landowners") whose properties abut the subdivision’s streets commenced this action challenging the legality of the project. They contended that the original 1994 dedication of the property only conveyed an easement to the public for travel rather than for flood control, that the landowners own fee simple title in the property to the middle of the street abutting their property, and that the County and Township overstepped their authority in granting the easement to the District. The landowners also brought a claim for inverse condemnation and requested a preliminary injunction to halt the project from proceeding. They also moved for a temporary restraining order, which was denied. The district court granted summary judgment dismissing all of the landowners’ claims and ordered the landowners to pay the County and Township $18,756.75 for their costs and disbursements.

II

[¶6] The landowners argue the district court erred in granting summary judgment dismissing their claims.

[¶7] Our standard of review for summary judgments is well established:

Summary judgment is a procedural device under N.D.R.Civ.P. 56(c) for promptly resolving a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. The party seeking summary judgment must demonstrate there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law. In deciding whether the district court appropriately granted summary judgment, we view the evidence in the light most favorable to the opposing party, giving that party the benefit of all favorable inferences which can reasonably be drawn from the record. A party opposing a motion for summary judgment cannot simply rely on the pleadings or on unsupported conclusory allegations. Rather, a party opposing a summary judgment motion must present competent admissible evidence by affidavit or other comparable means that raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record raising an issue of material fact. When reasonable persons can reach only one conclusion from the evidence, a question of fact may become a matter of law for the court to decide. A district court’s decision on summary judgment is a question of law that we review de novo on the record.

Dahms v. Nodak Mut. Ins. Co. , 2018 ND 263, ¶ 6, 920 N.W.2d 293 (quoting Pettinger v. Carroll , 2018 ND 140, ¶ 7, 912 N.W.2d 305 ).

A

[¶8] The District argues that the district court should have denied the request for a preliminary injunction because the landowners failed to exhaust their administrative remedies. The District contends the landowners’ remedy was to appeal from its decision to construct the flood project rather than to collaterally attack its decision in a later civil lawsuit.

[¶9] "[T]he doctrine of separation of powers requires those who seek judicial review of administrative matters to first exhaust their administrative remedies." Med. Arts Clinic, P.C. v. Franciscan Initiatives, Inc. , 531 N.W.2d 289, 296 (N.D. 1995). Generally, injunctive relief cannot be granted against public officials or entities. See Black Gold OilField Servs., LLC v. City of Williston , 2016 ND 30, ¶ 14, 875 N.W.2d 515. However, injunctive relief may be granted against public entities without exhaustion of administrative remedies where the plaintiff challenges the legality and validity of a decision rather than the public entity’s wisdom, propriety, or correctness in making the decision. See, e.g. , id. at ¶¶ 14-17 ; Braunagel v. City of Devils Lake , 2001 ND 118, ¶¶ 10-12, 629 N.W.2d 567 ; Frey v. City of Jamestown , 548 N.W.2d 784, 787 (N.D. 1996).

[¶10] Here, the landowners are not challenging the wisdom, propriety, or correctness of the District’s plan for constructing the flood control project. Rather, they challenge the legality of the easement granted by the County to the District for construction of the project. Consequently, the landowners were not required to exhaust their administrative remedies by appealing from the District’s decision.

B

[¶11] The landowners argue the district court erred in ruling that use of the Fox Island streets for flood protection is within the purpose of the 1994 dedication from the original landowners.

[¶12] The landowners rely on this Court’s decision in Donovan v. Allert , 11 N.D. 289, 91 N.W. 441 (1902), to support their argument that flood protection is not a primary use of streets. In that case, the Court held that the erection of telephone poles on streets did not fall within the purpose of a dedication of streets for public use because the uses of streets were confined to travel and transportation. 11 N.D. at 293, 91 N.W. at 443. The Court explained:

The primary use of a street or highway is confined to travel or transportation. Whatever the means used, the object to be attained is passage over the territory embraced within the limits of the street. Whether as a pedestrian, or on a bicycle, [or] in a vehicle drawn by horses or other

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