Ferguson v. City of Fargo

886 N.W.2d 557

Edward P. FERGUSON and Lavonna M. Ferguson, Plaintiffs and Appellees

v.CITY OF FARGO, Defendant and Appellant.

No. 20160067.

Supreme Court of North Dakota.

Oct. 4, 2016.

Michael S. Raum (argued) and Elizabeth L. Alvine (appeared), Fargo, N.D. for plaintiffs and appellees.

Jane L. Dynes (argued) and Ronald H. McLean (on brief), Fargo, N.D. for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] The City of Fargo appealed a judgment declaring an ordinance relating to construction on property located near rivers unconstitutional under the equal protection clauses of the North Dakota and United States Constitutions. We reverse, concluding the ordinance's distinction between platted and unplatted property is rationally related to Fargo's interest in limiting new construction on property near rivers.

I

[¶ 2] After historic flooding, Fargo enacted Ordinance 4818 in May 2012 relating to construction on property near the Red, Wild Rice, and Sheyenne Rivers. According to the affidavit of Fargo's city engineer, Fargo enacted Ordinance 4818 to “strictly limit, or entirely prevent, new construction within a specified distance from all river banks and drains to protect the health and safety of its citizens, protect private property and protect City infrastructure from floodwaters, slumping and the unstable river bank soils of the Red River Valley.” The ordinance establishes two setback areas located a certain distance from a river's center line: (1) the Minimal Disturbance Zone Setback (“MDZS”), and (2) Limited Disturbance Zone Setback (“LDZS”). The setback areas apply to all lands along the Red, Wild Rice, and Sheyenne Rivers. With limited exceptions, construction is generally prohibited within the setback areas.

[¶ 3] The ordinance creates a distinction between platted and unplatted property regarding the ordinance's exceptions to the prohibition on construction. Platted property has been subdivided into blocks and lots. Unplatted property has not been subdivided. Owners of vacant property platted before the ordinance's effective date may apply for a waiver from Fargo's city commission. The granting of a waiver allows the property owner to construct new buildings or structures within the setback areas. Owners of unplatted property may not apply for a waiver allowing construction of new buildings within the setback areas.

[¶ 4] Edward and Lavonna Ferguson own approximately 6 acres of unplatted property adjacent to the Sheyenne River that is partially within the ordinance's setback areas. Fergusons began occupying the property in 1998 and Fargo annexed the property in 2002. After Ordinance 4818 went into effect, Fergusons requested a waiver seeking to develop their property into multiple single-family duplexes. The Fargo city commission denied Fergusons' request because the property is not platted.

[¶ 5] The Fergusons brought a declaratory judgment and inverse condemnation action against Fargo, seeking a declaration that Ordinance 4818 violates the equal protection clauses of the North Dakota and United States Constitutions because it treats platted and unplatted property differently. In response Fargo argued it had a legitimate interest in treating platted and unplatted property differently to limit or prevent new construction on river property subject to flooding. After a hearing on the parties' competing summary judgment motions, the district court concluded that the ordinance treated platted and unplatted property differently and that “[p]latting does not change the character of the land at issue” and “[w]hether land is platted or unplatted does not make it more or less likely to be subject to slumping or flooding.” The court concluded the ordinance's distinction between platted and unplatted property was not rationally related to Fargo's interest in preventing new construction on river bank lands subject to soil instability or flooding and the management of waiver requests. The court declared the ordinance unconstitutional as applied to Fergusons and others similarly situated. The court also dismissed Fergusons' inverse condemnation claim without prejudice.

II

[¶ 6] Fargo argues Ordinance 4818 is constitutional under the equal protection clauses of N.D. Const. art. I, § 21 and U.S. Const. amend. XIV, § 1, because the distinction between platted and unplatted property is rationally related to a legitimate government interest in limiting new construction on property subject to flooding.

[¶ 7] We discussed the applicable standard of review for summary judgment in McCrothers Corp. v. City of Mandan, 2007 ND 28, ¶ 7, 728 N.W.2d 124 :

Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without 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. Whether the district court properly granted summary judgment is a question of law that we review de novo on the record. Summary judgment is appropriate if the issues in the case are such that the resolution of any factual disputes will not alter the result.

(Citations omitted.)

[¶ 8] Neither party argues there are disputed issues of material fact; the sole issue to be resolved involves the constitutionality of Ordinance 4818. In considering the constitutionality of a statute, this Court has stated:

Whether a statute is unconstitutional is a question of law, which is fully reviewable on appeal. Best Products Co., Inc. v. Spaeth, 461 N.W.2d 91, 96 (N.D.1990). “ ‘All regularly enacted statutes carry a strong presumption of constitutionality, which is conclusive unless the party challenging the statute clearly demonstrates that it contravenes the state or federal constitution.’ ” In re P.F., 2008 ND 37, ¶ 7, 744 N.W.2d 724 (quoting Olson v. Bismarck Parks and Recreation Dist., 2002 ND 61, ¶ 11, 642 N.W.2d 864 ). “ ‘The justice, wisdom, necessity, utility and expediency of legislation are questions for legislative, and not for judicial determination.’ ” Manikowske v. North Dakota Workmen's Comp. Bureau, 338 N.W.2d 823, 825 (N.D.1983) (quoting Asbury Hosp. v. Cass County, 72 N.D. 359, 7 N.W.2d 438, 442 Syllabus ¶ 11 (1943)). This Court exercises the power to declare legislation unconstitutional with great restraint. MCI Telecomms. Corp. v. Heitkamp, 523 N.W.2d 548, 552 (N.D.1994).

Teigen v. State, 2008 ND 88, ¶ 7, 749 N.W.2d 505. Those principles apply to municipal ordinances. See Olson v. City of West Fargo, 305 N.W.2d 821, 823–24 (N.D.1981).

[¶ 9] The equal protection clause does not forbid classifications, but prevents “government decisionmakers from treating differently persons who are in all relevant respects alike.” Hamich, Inc. v. State ex rel. Clayburgh, 1997 ND 110, ¶ 31, 564 N.W.2d 640. The rational basis standard of review is generally applied when legislation regulates economic or social matters without using suspect classifications or involving fundamental rights. Id. The parties here agree Ordinance 4818 is subject to the rational basis standard of review.

[¶ 10] Under the rational basis test, a governmental classification will be sustained “unless it is arbitrary and bears no rational relationship to a legitimate governmental interest.” Teigen, 2008 ND 88, ¶ 25, 749 N.W.2d 505. “This test has been described as ‘a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary.’ ” Hamich, 1997 ND 110, ¶ 31, 564 N.W.2d 640 (quoting Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) ). We have further stated:

For purposes of rational basis review, equal protection does not demand that a legislature or governing decisionmaker actually articulate at any time the purpose or rationale supporting its classification; however, there must be an identifiable purpose that may conceivably or reasonably have been that of the government decisionmaker. Thus, if a reviewing court can conceive of a reason justifying the choice made by the legislature or government decisionmaker in service of a legitimate end, the statute [or ordinance] does not violate the equal protection clause.

Haugland v. City of Bismarck, 2012 ND 123, ¶ 42, 818 N.W.2d 660 (quoting Hamich, at ¶ 32).

[¶ 11] Here, Fargo's stated primary purpose in enacting Ordinance 4818 was to limit or prevent new construction within setback areas near river banks and drains to protect its citizens, protect private property, and protect city infrastructure from Red River Valley floodwaters. Fargo's rationale for the ordinance is aptly explained in an affidavit of April Walker, Fargo's city engineer:

Following the historic 2009 flooding in Fargo, the Board of City Commissioners for the City of Fargo and City Staff, with input from developers, builders and others in the community, worked to develop an ordinance to limit construction on land adjacent to the Wild Rice River, the Sheyenne River and the Red River within the City of Fargo and its extraterritorial jurisdiction.

The City of Fargo, its representatives and staff, are knowledgeable of the flooding and river bank instability issues associated with the Red and Wild Rice rivers. They are also knowledgeable regarding the river bank instability problems relating to the Sheyenne River. The City used the best information available to it in drafting its river setback ordinance.

The existence of the Sheyenne Diversion does not alleviate the need to limit new construction along the Sheyenne River's banks. During the process of drafting the river setback ordinance, the City Commission heard testimony from NDSU Geology Professor Donald Schwert.

Professor Schwert stated that the geological setting of the rivers in the Fargo–Moorhead area is identical. The rivers are flowing over the same

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