City of W. Fargo v. McAllister

974 N.W.2d 393

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

v. Mark Alexander MCALLISTER, Defendant and AppellantandAlerus Financial, N.A.; and all other persons unknown claiming an estate or interest in or lien or encumbrance upon the real property described in the Complaint, whether as heirs, devisees, personal representatives, creditors or otherwise, Defendants

No. 20210360

Supreme Court of North Dakota.

FILED MAY 12, 2022

Christopher M. McShane, West Fargo, ND, for plaintiff and appellee.

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

Jensen, Chief Justice.

[¶1] Mark McAllister appeals from an amended judgment of condemnation allowing the City of West Fargo to use its eminent domain power to acquire a right of way across his property. We conclude the district court did not err in holding West Fargo was authorized to use quick-take eminent domain procedures for its sewage improvement project. We further conclude the court did not abuse its discretion in granting West Fargo's motion in limine to exclude testimony from trial that the taking impacted McAllister's property's conformance with the city's setback requirements. We affirm.

I

[¶2] The relevant facts of this case are recited in City of W. Fargo v. McAllister , 2021 ND 136, ¶¶ 2-5, 962 N.W.2d 591 :

In August 2017, West Fargo passed a resolution determining it was necessary to construct a sewer improvement project. The project consisted of the design and installation of two sewer pipes between West Fargo and Fargo. To complete the project, West Fargo had to acquire a right of way across certain private property, including McAllister's.

West Fargo sued McAllister, seeking to use its quick-take eminent domain power to acquire immediate possession of a right of way across McAllister's property. West Fargo appraised the compensation for the property rights obtained on McAllister's property at $36,000 and deposited that amount with the clerk of court. McAllister resisted, arguing West Fargo was prohibited from taking immediate possession of a right of way across his property. After an evidentiary hearing, the district court concluded West Fargo was entitled to take immediate possession of a right of way across McAllister's property.

Before the trial on the issue of McAllister's just compensation, West Fargo moved to exclude testimony that the taking caused McAllister's property to become nonconforming under West Fargo City Ordinances based on front yard setback requirements. The district court granted the motion, concluding as a matter of law that the easement obtained by West Fargo had no effect on the front yard setback requirements under the West Fargo City Ordinances and ordered that testimony relating to that issue would be excluded at trial.

The parties stipulated to the entry of a condemnation judgment in favor of West Fargo. West Fargo agreed to pay McAllister $36,000; however, the determination of McAllister's costs and disbursements, including attorney's fees and appraisal expenses, was reserved for a later date. The parties also stipulated to the entry of an order certifying the condemnation judgment as final under N.D.R.Civ.P. 54(b). The district court entered a condemnation judgment and certified the judgment as final under Rule 54(b).

[¶3] In the first appeal, because McAllister's costs and disbursements, including reasonable attorney's fees, had been left undecided, this Court concluded the district court abused its discretion by inappropriately certifying the condemnation judgment as final under N.D.R.Civ.P. 54(b). McAllister , 2021 ND 136, ¶¶ 12-13, 962 N.W.2d 591. The appeal was therefore dismissed without reaching the merits. Id. On remand the court entered an amended judgment of condemnation including an award of McAllister's attorney's fees and costs. Neither party has challenged the award of attorney's fees and costs.

II

[¶4] McAllister raises multiple legal issues contending the district court erred in concluding West Fargo was authorized to use quick-take eminent domain procedures under N.D.C.C. ch. 40-22 for its sewage improvement project.

[¶5] "Statutory interpretation is a question of law, fully reviewable on appeal." Schmitz v. N. Dakota State Bd. of Chiropractic Exam'rs , 2022 ND 52, ¶ 9, 971 N.W.2d 892 (quoting State v. Bearrunner , 2019 ND 29, ¶ 5, 921 N.W.2d 894 ). "The primary purpose of statutory interpretation is to determine legislative intent." Id. "Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears." Id. ; see N.D.C.C. § 1-02-02.

[¶6] Our review of constitutional provisions is similar to our interpretation of statutory provisions. We have summarized our review of constitutional provisions as follows:

When interpreting constitutional provisions, "we apply general principles of statutory construction." State ex rel. Heitkamp v. Hagerty , 1998 ND 122, ¶ 13, 580 N.W.2d 139 (quoting Comm'n on Med. Competency v. Racek , 527 N.W.2d 262, 266 (N.D. 1995) ). We aim to give effect to the intent and purpose of the people who adopted the constitutional provision. Id. We determine the intent and purpose of a constitutional provision, "if possible, from the language itself." Kelsh v. Jaeger , 2002 ND 53, ¶ 7, 641 N.W.2d 100. "In interpreting clauses in a constitution we must presume that words have been employed in their natural and ordinary meaning." Cardiff v. Bismarck Pub. Sch. Dist. , 263 N.W.2d 105, 107 (N.D. 1978).

"A constitution ‘must be construed in the light of contemporaneous history—of conditions existing at and prior to its adoption. By no other mode of construction can the intent of its framers be determined and their purpose given force and effect.’ " Hagerty , 1998 ND 122, ¶ 17, 580 N.W.2d 139 (quoting Ex parte Corliss , 16 N.D. 470, 481, 114 N.W. 962, 967 (1907) ). Ultimately, our duty is to "reconcile statutes with the constitution when that can be done without doing violence to the language of either." State ex rel. Rausch v. Amerada Petroleum Corp. , 78 N.D. 247, 256, 49 N.W.2d 14, 20 (1951). Under N.D. Const. art. VI, § 4, we "shall not declare a legislative enactment unconstitutional unless at least four of the members of the court so decide."

Sorum v. State , 2020 ND 175, ¶¶ 19-20, 947 N.W.2d 382.

[¶7] Article I, section 16, of the North Dakota Constitution, states in relevant part:

When the state or any of its departments, agencies or political subdivisions seeks to acquire right of way, it may take possession upon making an offer to purchase and by depositing the amount of such offer with the clerk of the district court of the county wherein the right of way is located. The clerk shall immediately notify the owner of such deposit. The owner may thereupon appeal to the court in the manner provided by law, and may have a jury trial, unless a jury be waived, to determine the damages ....

This language adopted in 1956 "authorize[d] the legislature to enact ‘quick take’ condemnation procedures for the state and its departments, agencies, or political subdivisions." Eberts v. Billings Cnty. Bd. of Comm'rs , 2005 ND 85, ¶ 10, 695 N.W.2d 691 ; see also Sauvageau v. Bailey , 2022 ND 86, ¶ 13 ; Johnson v. Wells Cnty. Water Res. Bd. , 410 N.W.2d 525, 528-29 (N.D. 1987) (superseded by statute recognized by Sauvageau , at ¶ 18 ). "The ‘quick take’ authorization in N.D. Const. art. I, § 16 is not self-executing, and legislation is necessary to effectuate the quick take authority." Eberts , at ¶ 10.

[¶8] Section 40-22-01, N.D.C.C., provides municipalities with authority to defray the expense of certain types of improvements, including water supply and sewerage systems, by special assessments:

Any municipality, upon complying with the provisions of this chapter, may defray the expense of any or all of the following types of improvements by special assessments:

1. The construction of a water supply system, or a sewerage system, or both, or any part thereof, or any improvement thereto or extension or replacement thereof, including the construction and erection of wells, intakes, pumping stations, settling basins, filtration plants, standpipes, water towers, reservoirs, water mains, sanitary and storm sewer mains and outlets, facilities for the treatment and disposal of sewage and other municipal, industrial, and domestic wastes, and all other appurtenances, contrivances, and structures used or useful for a complete water supply and sewerage system.

....

(Emphasis added.) Section 40-22-05, N.D.C.C., provides an exception to eminent domain proceedings under N.D.C.C. ch. 32-15, i.e. , a quick-take procedure, when the interest sought for an improvement authorized under N.D.C.C. ch. 40-22 is a "right of way," stating in relevant part:

Whenever property required to make any improvement authorized by this chapter is to be taken by condemnation proceedings, the court, upon request by resolution of the governing body of the municipality making such improvement, shall call a special term of court for the trial of the proceedings and may summon a jury for the trial whenever necessary. The proceedings shall be instituted and prosecuted in accordance with the provisions of chapter 32-15, except that when the interest sought to be acquired is a right of way for the opening, laying out, widening, or enlargement of any street, highway, avenue, boulevard, or alley in the municipality, or for the laying of any main, pipe, ditch, canal, aqueduct, or flume for conducting water, storm water, or sewage , whether within or without the municipality, the municipality may make an offer to purchase the right of way and may deposit the amount of the offer with the clerk of the district court of the county wherein the right of way is located, and may thereupon take possession of the right of way forthwith .... The municipality may levy special assessments to pay all or any part of the judgment and at the

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