City of Fargo v. Wieland, 20190153

936 N.W.2d 55

CITY OF FARGO, a political subdivision of the State of North Dakota, Plaintiff and Appellee

v.Karen C. WIELAND, Defendant and Appellant

No. 20190153

Supreme Court of North Dakota.

Filed December 12, 2019

Jane L. Dynes, Fargo, ND, for plaintiff and appellee.

Jonathan T. Garaas, Fargo, ND, for defendant and appellant.

McEvers, Justice.

[¶1] Karen Wieland appeals from a judgment allowing the city of Fargo to take her property for flood mitigation purposes and awarding her $939,044.32 in just compensation, attorney fees, costs, and statutory expenses. Because the district court did not misapply the law in concluding the taking of Wieland’s property was necessary for a public use, we affirm the judgment.

I

[¶2] Wieland owned a home located at Copperfield Court in Fargo. The property, which abuts Drain No. 27, frequently flooded. After the 2009 flood in Fargo, Wieland and other area residents asked the City to fix the banks on Drain No. 27 to provide flood protection, and the City began examining possible solutions to the flooding problems. The City engineering staff and consulting engineers held public information meetings with landowners in the Copperfield Court area. In February 2012, the City held a meeting with the landowners and informed them that the recommended flood protection plan would require the acquisition of the Wieland property and other property to build an earthen levee for permanent flood protection. In August 2012, the Board of City Commissioners approved the recommended project and directed staff to prepare implementation and funding plans for the project.

[¶3] Wieland and the City for years discussed the voluntary acquisition of her property. The City eventually offered Wieland the property’s appraised value of $725,000 plus statutory costs and moving expenses. Wieland rejected the offer. On December 19, 2016, the City issued a "resolution of necessity" stating "it is necessary for the city of Fargo to acquire [Wieland’s property] to allow for such use as the construction of a flood protection project to protect the city of Fargo." In Brandt v. City of Fargo , 2018 ND 26, ¶¶ 1, 14, 905 N.W.2d 764, we affirmed dismissal of Wieland’s challenge to the City’s resolution of necessity because there was no statutory basis authorizing the appeal.

[¶4] After further negotiations with Wieland failed, the City in April 2017 brought this eminent domain action seeking to acquire Wieland’s property for flood protection purposes. The district court granted partial summary judgment concluding that permanent flood protection was a public use authorized by law and that the taking of Wieland’s property was necessary to the use. Following a trial, the jury awarded Wieland $850,000 as just compensation for the taking. The court awarded her an additional $89,044.32 for attorney fees and other costs.

II

[¶5] Wieland argues the district court erred in granting summary judgment in favor of the City on the eminent domain questions of public use and necessity.

[¶6] Our standard for reviewing 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.

Brock v. Price , 2019 ND 240, ¶ 10, 934 N.W.2d 5 (quoting Smithberg v. Smithberg , 2019 ND 195, ¶ 6, 931 N.W.2d 211 ).

[¶7] Wieland argues the district court erred in granting summary judgment because she raised a genuine issue of material fact to preclude summary judgment, and because the City presented no evidence to support the court’s decision that the requirements of N.D.C.C. § 32-15-05 have been satisfied. Section 32-15-05, N.D.C.C., provides:

Before property can be taken it must appear:

1. That the use to which it is to be applied is a use authorized by law.

2. That the taking is necessary to such use.

3. If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use.

A

[¶8] In Montana-Dakota Utils. Co. v. Behm , 2019 ND 139, ¶ 9, 927 N.W.2d 865, we discussed the requirement of "public use":

Where a property owner contests "public use" under N.D.C.C. ch. 32-15, "there is a presumption a use is public when the Legislature has declared it to be and we treat the Legislature’s decision with the deference due a coordinate branch of government." City of Medora v. Golberg , 1997 ND 190, ¶ 8, 569 N.W.2d 257. Nevertheless, "the ultimate decision regarding whether a proposed use of property is, in fact, a public use is a judicial question." Id.

The Legislature has declared "[f]lood control projects" to be a "public use" by giving municipalities the power:

To acquire, construct, maintain, operate, finance, and control flood control projects, both within and adjacent to such municipality, and for such purpose to acquire the necessary real property and easements therefor by purchase and eminent domain, in accordance with chapter 32-15, and to adopt such ordinances as may reasonably be required to regulate the same.

N.D.C.C. § 40-05-01(67).

[¶9] The City’s resolution of necessity in this case states:

WHEREAS, the Red River of the North, its tributaries, and associated drain system, are prone to frequent flooding which presents significant risk to the inhabitants of the city, property, infrastructure, and the economy of the city of Fargo and the surrounding communities;

WHEREAS, the city of Fargo has identified viable flood control and protection options;

WHEREAS, the city of Fargo has undertaken considerable effort, at considerable expense, to construct flood control and protection projects to protect the city of Fargo from anticipated flood events;

WHEREAS, the city of Fargo, based on information and recommendation provided by the city of Fargo Engineering Department and consulting engineers, have identified properties necessary to be acquired in order to accomplish real and meaningful flood protection to the inhabitants, property, infrastructure, and economy of the city of Fargo; and

WHEREAS, the city of Fargo has, or will, continue to negotiate in good faith to secure the identified necessary properties.

NOW THEREFORE, BE IT RESOLVED THAT the public use for the properties identified is a use provided for by law;

BE IT FURTHER RESOLVED THAT it is necessary for the city of Fargo to acquire the following identified properties to allow for such use as the construction of a flood protection project to protect the city of Fargo: [Wieland’s property].

[¶10] Wieland argues the City’s resolution of necessity is "fatally flawed" because it allows the City to "condemn first, decide what do to with the property later." Wieland relies on City of Stockton v. Marina Towers LLC , 171 Cal.App.4th 93, 88 Cal.Rptr.3d 909, 921-22 (2009), in which the court held a resolution of necessity describing a project as the "acquisition of additional land in conjunction with potential development" was invalid because it did not sufficiently define the project. The court reasoned:

We fail to discern how this language notifies the property owner and the public what project is intended for the property. The project is described as the "acquisition of additional land" in "conjunction with potential development." But to say that the project is the "acquisition of additional land" is the same as saying the project is the condemnation itself. To state that the acquisition is "in conjunction" with potential development or that it is "consistent with" redevelopment activities going on in the area adds nothing[.]

Id.

[¶11] The City’s resolution of necessity in this case does not suffer from the same infirmities as the resolution invalidated in Marina Towers . The City specifically describes the purpose as a "flood protection project," and this description is analogous to examples given by the Marina Towers court that it said would satisfy the requirement of a brief description of a public use: "A statement, for example, that the public use is an ‘elementary school and grounds’ or ‘right of way for a freeway’ or ‘open space to be maintained in its natural condition’ would satisfy this requirement." 88 Cal.Rptr.3d at 921 (internal citation omitted).

[¶12] Wieland argues the resolution of necessity is invalid because N.D.C.C. § 61-16.1-38 requires that "complete plans and specifications" for a dike "must be presented first to the state engineer." Wieland’s argument fails because N.D.C.C. ch. 61-16.1 governs the operations of water resource districts, not municipalities.

[¶13] Wieland also argues that, because at the time the resolution of necessity was adopted and the eminent domain action was commenced N.D.C.C. § 48-01.2-01(20) defined a "public improvement" as any improvement "on public or nonpublic land" exceeding the monetary...