Holter v. City of Mandan ( 2020 )

Dissent on Petition for Rehearing filed 9/21/20
Filed 7/22/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 202
Deborah Holter, Petitioner and Appellant
v.
City of Mandan, a political subdivision of
The State of North Dakota, Respondent and Appellee
No. 20190277
Appeal from the District Court of Morton County, South Central Judicial
District, the Honorable Cynthia M. Feland, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice, in which Justices VandeWalle and
Crothers joined. Justice Tufte filed a dissenting opinion, in which Chief Justice
Jensen joined.
William C. Black, Bismarck, ND, for petitioner and appellant.
Malcolm H. Brown (argued), Mandan, ND, and Amy M. Oster, Bismarck, ND,
for respondent and appellee.
Holter v. City of Mandan
No. 20190277
McEvers, Justice.
[¶1] Deborah Holter appeals a district court judgment dismissing her appeal
of the Mandan Board of City Commissioners’ decision to specially assess her
property for street improvements. We affirm.
I
[¶2] In February 2015, a public hearing was held regarding needed repairs to
streets and alleys. In March 2015, the Board adopted a resolution creating
Street Improvement District No. 199 and a resolution declaring the cost of the
improvements would be specially assessed against the benefited properties in
the district in amounts proportionate to but not exceeding the benefits
the properties received from the improvements. The improvement district
included construction on streets between 4th Avenue Northeast to Mandan
Avenue and between Main Street and 3rd Street Northeast in Mandan. The
minutes reflect that the total cost of the project was estimated to be $3,653,297
and approximately five percent of the project would be paid by city sales tax,
with the remainder to be assessed to the benefiting properties. 1
[¶3] The actual cost of the improvements was $3,316,595.73. The City paid
$225,000, 2 and the remaining amount of $3,091,595.73 was specially assessed
to the properties especially benefited by the improvements. In July 2017, the
Mandan Special Assessment Commission published a notice of a meeting in
August 2017 that contained the items of expense of the improvement,
allocation of a portion of the cost to the City, and the net amount to be assessed.
The notice provided a list of properties found to be especially benefited by the
construction performed in the project and the amounts to be assessed. The
notice provided:
1 Five percent of the estimate is roughly $182,665.
2 More than 6.75% of the total costs.
2
We the undersigned, constituting the Special Assessment
Commission of the City of Mandan do hereby certify that the
following is a true and correct list of the particular lots of land
which, in the opinion of the Commission, are especially benefited
by the construction performed . . . showing the amount against
each lot or tract, the same is a true and correct assessment of the
property there in described to the best judgement of the members
of the Commission.
(Emphasis added.)
[¶4] In August 2017, the Special Assessment Commission approved the
proposed assessments against the especially benefited properties and moved
the decision to the Board for its consideration. The Board approved the special
assessments in October 2017.
[¶5] Holter owns three undeveloped residential lots in the improvement
district. Each lot was assessed $15,928.40, for a total of $47,785.20. Holter
objected to the assessments against her properties, claiming they exceeded the
value of the benefits they receive. She also argued the method for determining
the assessments was unfair because corner lot owners and non-corner lot
owners were not treated equally.
[¶6] Holter appealed the Board’s decision approving the special assessments
to the district court. The court twice remanded the case to the City for further
findings on the value of the benefits to Holter’s properties. On the second
remand, the Special Assessment Commission met and determined that under
the City’s Special Assessment Policy, Holter’s properties were benefited by the
amounts assessed against them. Additional findings from the November 2018
meeting stated:
Winks [commissioner] moved in conformance with the City of
Mandan’s Special Assessment Policy and the methods prescribed
therein, were used to decide the benefits and costs to the Holter
properties/parcel number B20-1, B20-2 and B20-3 in the amount
of $15,928.40 for each parcel and that the parcels are specially
benefitted in that amount by reason of the improvements in Street
Improvement District 199.
3
[¶7] The court affirmed the City’s special assessments against Holter’s
properties. The court concluded the special assessments to Holter’s properties
under the City’s policy were consistent with the amounts assessed to other
properties and were not arbitrary, capricious, or unreasonable.
II
[¶8] Holter contends the City failed to determine the value of the benefit to
her properties and her properties were assessed in an amount exceeding the
benefit to the properties.
[¶9] We exercise a limited review of challenges to special assessments in part
because of the separation of powers doctrine:
The special assessment commission is in essence a legislative
tribunal created by legislative authority to “(1) determin[e] the
benefits accruing to the several tracts of land in an improvement
district by reason of the construction of an improvement and (2)
assess[] the costs and expenses thereof against each tract in
proportion to the benefit received.” Accordingly, judicial review is
limited to assuring that local taxing authorities do not act
arbitrarily, capriciously, or unreasonably. Courts are not to act as
a super grievance board, and we do not try special assessment
cases anew or reweigh the evidence. Rather, we begin with the
presumption that assessments for local improvements are valid,
and the burden is on the party challenging the validity of the
assessments to demonstrate they are invalid.
Bateman v. City of Grand Forks, 2008 ND 72, ¶ 10, 747 N.W.2d 117 (quoting
Serenko v. City of Wilton, 1999 ND 88, ¶ 20, 593 N.W.2d 368).
[¶10] Section 40-23-07, N.D.C.C., governs a special assessment commission’s
decision relating to benefits and assessments:
The commission shall determine the amount in which each of the
lots and parcels of land will be especially benefited by the
construction of the work for which such special assessment is to be
made, and shall assess against each of such lots and parcels of land
such sum, not exceeding the benefits, as is necessary to pay its just
4
proportion of the total cost of such work, or of the part thereof
which is to be paid by special assessment, including all expenses
incurred in making such assessment and publishing necessary
notices with reference thereto and the per diem of the commission.
[¶11] This Court has stated three requirements must be satisfied for a special
assessment to comply with N.D.C.C. § 40-23-07:
The special benefit accruing to each lot or parcel of land from the
improvement must be determined. The special assessment levied
against each lot must be limited to its just proportion of the total
cost of the improvement. The assessment against any lot or parcel
of land must not exceed the benefit which has been determined to
have accrued thereto.
Bateman, 2008 ND 72, ¶ 11, 747 N.W.2d 117.
[¶12] This Court looks at whether, on its face, the legislative act was arbitrary,
capricious, or legally unreasonable. This Court stated in Ulvedal v. Bd. of Cty.
Comm’rs of Grand Forks Cty., 434 N.W.2d 707, 708-09 (N.D. 1989):
Several decades ago, this court addressed the proper role of
courts in reviewing a tax assessment by a local governing body.
Appeal of Johnson, 173 N.W.2d 475 (N.D. 1970). In that earlier
appeal, also from an assessment of real estate in Grand Forks, this
court surveyed how courts in other states approached review of
assessments of property for tax purposes. We concluded that “it is
not for the court to substitute its judgment for that of the lawfully
designated taxing authorities, . . .” Id. at 484. When “there is
substantial evidence to support the appraisal made by the
assessing authorities and no evidence of any discrimination,” id.
at 484, a decision of county commissioners should be upheld.
Later, in Shaw v. Burleigh County, 286 N.W.2d 792 (N.D.
1979), this court carefully defined the scope of “de novo” review of
a county commissioner’s decision under NDCC 11-11-43. A
decision about zoning was under review. This court recognized
that it was examining the exercise of “a legislative function and
not a judicial one.” Id. at 795. For separation of powers reasons, we
held:
“. . . that a ‘de novo’ hearing, as applied to judicial review of
decisions of the Board of County Commissioners under
5
Section 11-11-43, N.D.C.C., means a trial to determine
whether or not the Board acted arbitrarily, capriciously, or
unreasonably. Section 11-11-43, N.D.C.C., must be treated
as merely providing the procedure by which the proceeding
may be brought before the court to determine whether or not
the Board acted properly.” 286 N.W.2d at 797.
Thus, a reviewing court may not reverse a local governing
body’s action simply because it finds some of the material
considered more convincing. Only when there is such an absence
of evidence or reason as to amount to arbitrary, capricious or
unreasonable action, can a reviewing court reverse. Both the
district court and this court are limited to this scope of review.
Shaw, supra at 797.
This limited review, carefully explained in Shaw, had been
anticipated in Johnson:
“[T]he taxation of property is a legislative rather than a
judicial function, . . . ‘[t]he court must presume, in the
absence of contrary evidence, that the assessing officers
performed their duty, and the court will not set aside an
assessment merely because of a difference of opinion as to
value. (Citations omitted)’” 173 N.W.2d at 481-482.
We have continued to employ this restricted concept in
reviewing decisions by local governing bodies. Thus, in Haman v.
City of Surrey, 418 N.W.2d 605 (N.D. 1988), we affirmed that a
city's special assessment commission had not acted arbitrarily,
oppressively or unreasonably in assessing benefits from water and
sewer improvements. See also Cloverdale Foods Company v. City
of Mandan, 364 N.W.2d 56 (N.D. 1985).
[¶13] As such, a municipality has broad discretion to determine benefits and
apportion assessments and costs to properties within an improvement district.
Bateman, 2008 ND 72, ¶ 16, 747 N.W.2d 117. There is no exact formula for
quantifying benefits. Id. “[A]n ‘assessment may be apportioned according to
frontage, area, value of, or estimated benefits to, the property assessed, or
according to districts or zones, or on any other reasonable basis that is fair,
just, and equitable.’” Serenko, 1999 ND 88, ¶ 21, 593 N.W.2d 368 (quoting
Cloverdale Foods Co. v City of Mandan, 364 N.W.2d 56, 61 (N.D. 1985)). “The
method used to apportion the assessment cannot be arbitrary and must have
some relation to the benefits.” Bateman, at ¶ 16.
6
[¶14] Here, the City assessed Holter’s property under its Special Assessment
Policy. See N.D.C.C. § 40-22-01.2 (stating a city with a population over 10,000
must have written policies “which will be applied for cost allocation among
properties benefited by a special assessment project”). The purpose of the
City’s policy is to “provide for and ensure consistent, uniform, fair and
equitable treatment, insofar as is practical, lawful and possible for all property
owners in regards to the assessment of cost for benefits to properties for the
qualifying improvements as listed in the [Century Code].” The policy states
the special assessment commission is responsible for determining the benefits
to property within the improvement district.
[¶15] Section 3.2 of the City’s policy, relating to street improvement districts,
provides:
Typical benefit allocations on single-family, residential properties
can be assessed by determining a unit cost. The allocation is based
on a unit cost, if similar in size, by applying an equal cost share to
each parcel/lot within the district. A unit cost may be determined
by taking the total project costs and dividing by the total lots
within the district.
[¶16] The City assessed properties benefited by the street improvements on
the basis of linear feet. Holter’s three residential lots each contained 100 linear
feet. The City assessed each lot $15,928.40, for a total of $47,785.20.
[¶17] Holter asserts the City failed to determine the value of the benefits to her
properties. She claims the assessments exceed the benefits to her properties
in violation of N.D.C.C. § 40-23-07. She contends the assessments were
unreasonable because they were slightly less than the total value of the
properties. To support her argument, Holter provided a letter from a real
estate agent stating the approximate value of her three lots was $50,000 to
$75,000.
[¶18] This Court has, in numerous opinions, approved the use of formulas such
as front footage, area or value to determine the benefits to assessed properties.
D & P Terminal, Inc., v. City of Fargo, 2012 ND 149, ¶ 14, 819 N.W.2d 491
(citing Hector v. City of Fargo, 2012 ND 80, ¶ 45, 815 N.W.2d 240; Bateman,
7
2008 ND 72, ¶ 16, 747 N.W.2d 117; Serenko, 1999 ND 88, ¶ 21, 593 N.W.2d
368; Cloverdale, 364 N.W.2d at 61; Buehler v. City of Mandan, 239 N.W.2d 522,
523, 526 (N.D. 1976); Fisher v. City of Minot, 188 N.W.2d 745, 746-47 Syll. ¶ 2
(N.D. 1971)).
[¶19] Holter raises arguments similar to those addressed in Serenko. In
Serenko, 1999 ND 88, ¶ 22, 593 N.W.2d 368, property owners in a street
improvement district were assessed based on the square footage of their lots.
Some landowners disagreed with the assessments, claiming the “method did
not sufficiently individualize the determination of benefits to their properties,
and failed to properly consider the undeveloped nature of their property.” Id.
In rejecting the argument, this Court stated:
We have rejected similar arguments in the past and upheld
assessments based upon square footage of the property. Although
the landowners and Serenkos may disagree with the special
assessment commission’s choice of method, and with its conclusion
their properties were substantially benefitted by the street
improvement project, it is not our function to reweigh the evidence.
The landowners and Serenkos have failed to meet their burden of
demonstrating the commission acted arbitrarily, capriciously, or
unreasonably.
Id. at ¶ 23 (citations omitted).
[¶20] Here, Holter’s properties were assessed under the City’s Special
Assessment Policy. The City uses the policy to determine benefits and
assessments to properties in an improvement district. The special assessment
commission determined that under the policy, the improvements benefited
Holter’s properties in the amount assessed to them, $47,785.20.
[¶21] Although the City’s determination of benefits and assessments is based
on a formula similar to others upheld by this Court, this case does raise some
concerns. Under the City’s policy, the terms “benefit” and “assessment” appear
to be used interchangeably, which may explain why the special assessment
commission determined the amount of the benefit to Holter’s properties
equaled the amounts assessed to them. However, the Special Assessment
8
Commission did more than simply take the total cost of the project and divide
it by using the formula. It first deducted $225,000 from the costs and expenses.
In doing so, it determined the benefits for all properties assessed was less than
the total cost of the work. While the findings by the Special Assessment
Commission on the amount of the benefit may be somewhat conclusory, the
amount of the benefit was determined to be less than the total cost and was
determined to be a just proportion of the total cost based on the City’s formula.
[¶22] Despite the City’s difficulty in explaining the determination of benefits,
we nevertheless conclude the assessments to Holter’s properties satisfy
N.D.C.C. § 40-23-07. The special assessment commission determined the
benefits under the City’s policy, and the assessments do not exceed the
benefits.
[¶23] Under this Court’s limited standard of review, we conclude the City did
not act arbitrarily, capriciously, or unreasonably in determining the benefits
and assessments to Holter’s properties.
III
[¶24] We have considered Holter’s remaining arguments and conclude they
are either without merit or not necessary to our decision. The judgment is
affirmed.
[¶25] Lisa Fair McEvers
Daniel J. Crothers
Gerald W. VandeWalle
9
Tufte, Justice, dissenting.
[¶26] Because I believe the majority is going further than our precedent
requires, and in doing so interprets an important procedural protection out of
N.D.C.C. § 40-23-07, I respectfully dissent.
[¶27] In short, the problem is this: the City calculated its determination of
benefit to Holter’s property using the same formula by which it calculated the
costs it assessed to that property. Under the City’s policy, the benefit
determination for a lot is defined as the unit cost allocation. The City’s
reduction of total assessments by five percent does not convert what is a cost
allocation into a benefit determination. The City policy thus subverts the
express intent of the statute that costs assessed to a lot be limited to no more
than the benefit. The majority acknowledges the City’s interchangeable use of
assessment and benefit but appears to announce a rule that affirms the City’s
direct allocation of cost because something less than 100% of the total cost is
assessed against the properties in the district.
[¶28] As the majority explains, we have long approved formulaic allocation of
costs by the assessed lots’ area or front footage. We have also approved
formulas to determine benefits to a property based on front footage, area, or
value. D&P Terminal v. City of Fargo, Inc., 2012 ND 149, ¶ 14, 819 N.W.2d
491. Where we have approved formulas to calculate benefits, they were applied
under N.D.C.C. § 40-23-07 to set “‘caps,’ or maximums” to limit the assessed
costs. Id. at ¶ 8 (“These caps are generally based upon front footage or square
footage of the assessed property, and the suggested benefit amount is generally
less than the actual cost of the improvements.”); Hector v. City of Fargo, 2012
ND 80, ¶ 5, 815 N.W.2d 240 (“The amount determined under the formula is
considered to be the amount the property benefits from the improvement
without considering the actual cost of the improvement.” (emphasis added)).
[¶29] Here, by defining the benefit in terms of the lot’s unit costs, the City has
eliminated part of the statutory protection for property owners. “When an
assessment exceeds the benefits to the property assessed, the excess is a taking
of property without due process of law.” Bateman v. City of Grand Forks, 2008
ND 72, ¶ 20, 747 N.W.2d 117 (citing Cloverdale Foods Co. v. City of Mandan,
10
364 N.W.2d 56, 61 (N.D. 1985)). To avoid becoming a “super grievance board,”
Hector, 2012 ND 80, ¶ 13, 815 N.W.2d 240, this Court has incrementally
reduced its review of special assessments. On the issue of whether assessed
costs exceed benefits, the majority now applies our increasingly limited
standard of review to approve the City’s ipse dixit that benefit equals cost 3 and
thereby avoid review under a statute designed to protect against
uncompensated takings. Under the City policy, it is impossible to arrive at a
finding that costs exceed benefits. That should be a clear warning there is
something amiss. The rule announced by the majority reduces the standard of
review, limited though it may be, to something that is neither a standard nor
provides any review.
[¶30] When the City voted to accept a bid and proceed with the project, it
legislatively determined that the total project cost was justified by the total
benefit of the project. We properly do not review that legislative decision. That
is the only point in this process where any determination was made that cost
did not exceed benefit. But that determination was made as to total project cost
and total project benefit, not to the benefit accruing to each lot.
[¶31] This Court has consistently identified three separate requirements of
N.D.C.C. § 40-23-07: (1) determine the “special benefit” to each lot; (2) assess
costs against each lot “limited to its just proportion of the total cost”; and (3)
ensure “[t]he assessment against any lot or parcel of land must not exceed the
benefit which has been determined to have accrued thereto.” Hector, 2012 ND
80, ¶ 42, 815 N.W.2d 240; Bateman, 2008 ND 72, ¶ 11, 747 N.W.2d 117;
Cloverdale Foods, 364 N.W.2d at 61. By merging the determination of benefits
with costs, the City satisfies only requirement 2, that costs are assessed in
proportion to benefits, and only because it ensures they are identical and so
always at a 1:1 ratio.
3The City defines benefit equal to cost, whether or not it assesses total cost less 5% or total cost less
6.75%. Majority, at ¶¶ 2-3. Whether the City assesses 100% of total costs or 95% or 93.25%, the benefit
determination is still calculated as a function of cost and so cannot supply the limitation as intended
by the statute.
11
[¶32] The Majority, at ¶ 21, generously notes the City policy appears to use the
terms “benefit” and “assessment” interchangeably. This is another indication
that the policy does not comply with the statutory requirement to compare
assessed costs with benefits and ensure the costs do not exceed the benefits.
Because the City policy uses the terms interchangeably, it is essentially
comparing the assessed amount with itself. In every instance, A = A. Costs will
never exceed benefits where benefits by definition equal costs.
[¶33] In deferring to the City’s subversion of the statute, the majority makes
the same error. Reasoning that by deducting a modest percentage of the total
project cost from the total amount assessed, the City had decoupled cost and
benefit, the majority infers the City “determined the benefits for all properties
assessed was less than the total cost of the work,” and “the amount of the
benefit was determined to be less than the total cost.” Majority, at ¶ 21. This
statement cannot be squared with the statutory requirement that the costs
“not exceed[] the benefits.”
[¶34] By applying the standard as I suggest we should, we would not
substitute our judgment for that of the board. Reweighing evidence is properly
not within the scope of judicial review under separation of powers. Instead, we
review only to ensure the local taxing authority does not act “arbitrarily,
capriciously, or unreasonably, or there is not substantial evidence supporting
the decision.” D&P Terminal, Inc. v. City of Fargo, 2012 ND 149, ¶ 5, 819
N.W.2d 491. What is not beyond judicial review is to ensure the City makes
some determination of benefits that is separate from its allocation of costs so
that it might ensure that the allocated costs do not exceed the benefit, as
required by the statute and ultimately by the takings clause. By approving the
use of a single formula to calculate both benefits and costs, the majority allows
the City to shortcut the statutory process and avoid the requirement to ensure
the benefit to each lot does not exceed the costs.
[¶35] We have never before said an assessment process may treat costs and
benefits interchangeably so long as they are proportional. Consistent with our
prior cases, I would interpret N.D.C.C. § 40-23-07 to require some reasonable
determination of estimated benefits to each lot, independently from
12
assessment of costs. “[N]o precise formula for quantifying benefits” is
required—a city may determine benefits by frontage, area, value, or “any
other reasonable basis that is fair, just, and equitable.” Hector, 2012 ND 80,
¶ 43, 815 N.W.2d 240 (quoting Serenko v. City of Wilton, 1999 ND 88, ¶ 21,
593 N.W.2d 368); Cloverdale Foods Co., 364 N.W.2d at 61-62 (approving
determination of benefits received from sewer project by “water use” method)
(relying on per lot use of parking ramp to determine benefits in Patterson v.
City of Bismarck, 212 N.W.2d 374 (N.D. 1973)). But because N.D.C.C. § 40-23-
07 requires the benefit to be compared to allocated cost, the benefit
determination may not be calculated by the same formula that allocates cost.
To do so misapplies the law.
[¶36] Under the City’s policy, if the bids for a project are higher than expected,
the City’s benefit determination will increase by an identical percent. New
pavement and sidewalks increase the value of adjacent property, which would
constitute a benefit under N.D.C.C. § 40-23-07. But the benefit is not
necessarily the same as or connected to the cost of the project. It is one thing
to say property along a street will benefit from new pavement by an amount
proportional to its area or frontage. It is quite another to say that if the cost of
paving doubles, the benefit also doubles.
[¶37] The problem is best illustrated by two examples. Suppose the City
decides to proceed with a paving project based on its engineer’s estimate that
it will cost $5 million. In this example, if the City were to make an independent
determination, it would find the project was expected to benefit the affected
area by approximately $6 million. But applying City policy section 3.2,
(reproduced in Majority, at ¶ 15) it calculates benefits to each lot as a function
of unit costs, and so proceeds with a finding that both costs and benefits are $5
million and then spreads an equal cost and benefit proportionally to each lot.
During the project, suppose there is a labor strike, materials shortage, or other
disruption that results in project costs doubling to a total of $10 million. Under
the City policy, because the costs have doubled, the benefits have also doubled.
A project that it initially determined by formula would benefit the affected lots
by a total of $5 million it now determines by formula would benefit those lots
by the increased total cost of $10 million. One can readily see that if the City
13
followed the statute and the cases we have decided before today, the City would
have had to determine benefit without regard to cost and would have had to
limit the assessment of costs to its pre-project determination of benefits, which
in this hypothetical would be $6 million.
[¶38] For a second illustrative example, suppose the existing pavement is five
years old and is in usable condition. The City could bid the same repaving
project at the same cost as in the first example. Because of the way the City
policy determines benefit from cost, it will again conclude that each lot benefits
according to its proportional fraction of the cost. But in this instance, the
pavement to be replaced is still in reasonable condition and so the actual
benefit to the adjacent properties is the difference between five-year-old
pavement and new pavement, a negligible improvement no matter how it is
determined. These examples illustrate the dangers inherent in conflating costs
with benefits.
[¶39] Paragraph 21 of the majority opinion also expands this Court’s deference
to political subdivisions in special assessment cases beyond the arguments
presented by the City. Paragraph 21 asserts “the Special Assessment
Commission did more than simply take the total cost of the project and divide
it by using the formula. It first deducted $225,000 from the costs and expenses.
In doing so, it determined the benefits for all properties assessed was less than
the total cost of the work.” The City argued, and the majority affirms, that the
City satisfied the statutory requirement to determine benefit, because it need
not determine benefit separately from cost. But at no point in this Court or in
the district court did the City ever articulate this deduction as a rationale
supporting its determination of benefit in the special assessment process.
There is not a single reference to the $225,000 reduction of costs and expenses
in the City’s brief to this Court, and the record does not reflect that particular
rationale ever having been asserted as a justification or an explanation by the
City to the district court—not in the first appeal to the district court, and not
after either of the two district court remands to the City demanding an
explanation of the benefits. This case appears to represent the first instance
where this Court, in the absence of any satisfactory explanation of how a
political subdivision determined the amount of benefit to each lot resulting
14
from a special assessment project, engaged in its own search of the record to
invent an explanation on behalf of a political subdivision. While great
deference should be afforded to the legislative function of a political
subdivision, this Court should not be satisfied by any conceivable justification
that the Court can imagine, in the absence of a rational explanation being
provided by the political subdivision.
[¶40] I would conclude the City did not comply with the requirements of
N.D.C.C. § 40-23-07, reverse the district court, and remand to the City to re-
determine the benefits to Holter’s lots without considering the actual per-lot
cost and then assess only those costs that do not exceed the benefits.
[¶41] I respectfully dissent.
[¶42] Jerod E. Tufte
Jon J. Jensen, C.J.
Jensen, Chief Justice, Dissenting On the Denial of the Petition for
Rehearing.
[¶43] The majority has denied Holter’s petition for rehearing. I have voted to
grant the petition for rehearing. The petition, in part, requests an opportunity
to address the rationale underlying the majority’s affirmance of the special
assessment. Paragraph 21 of the majority opinion asserts “the Special
Assessment Commission did more than simply take the total cost of the project
and divide it by using the formula. It first deducted $225,000 from the costs
and expenses. In doing so, it determined the benefits for all properties assessed
was less than the total cost of the work.” What paragraph 21 of the majority
opinion omits is recognition that the City never advanced that argument in
this Court or in the district court. This Court, not the City, articulated the
$225,000 deduction as a rationale supporting the City’s determination of
benefit in the special assessment process. There is not a single reference to the
$225,000 reduction of costs and expenses in the City’s brief to this Court. The
record does not reflect the City ever advancing the rationale articulated by this
Court as a justification or an explanation to the district court—not in the first
15
appeal to the district court, and not after either of the two district court
remands to the City demanding an explanation of the benefits. The petition, in
part, seeks an opportunity to address the rationale of this Court, an
opportunity the Holter has never been given because the rationale was never
advanced by the City and was first articulated in the opinion of this Court
issued subsequent to the briefing and oral argument.
[¶44] This Court rightfully affords great deference to local taxing authorities.
However, we should not extend that deference to the point that we deny
taxpayers an opportunity to address the rationale this Court ultimately selects
as the rationale for affirming the decision of a local taxing authority. Justice
VandeWalle noted the danger of overextending and understating this Court’s
review of local tax authorities as follows:
If the courts are to review these actions, and it is not necessary as
a matter of constitutional right that they be empowered to do so, it
should be a meaningful review recognizing the limitations thereon
by the doctrine of separation of powers. Anything less than a
meaningful review gives a false sense of adherence to our system
of checks and balances which makes the judicial branch little more
than an apologist for the actions of the executive branch of
government, on the one hand, or a usurper of powers on the other.
Neither is a desirable result.
Koch Hydrocarbon Co. v. State By & Through State Bd. of Equalization, 454
N.W.2d 508, 515 (N.D. 1990) (VandeWalle, Justice, concurring specially).
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[¶45] My concern is a decision founded on rationale never advanced by the
taxing authority, without providing a taxpayer an opportunity to respond,
makes this Court “little more than an apologist for the actions of the executive
branch of government.” Following a rehearing we may elect not to alter our
prior opinion, but we should at least allow taxpayers an opportunity to respond
to a rationale articulated first by this Court and a rationale that was never
previously advanced by the taxing authority.
[¶46] Jon J. Jensen, C.J.
Jerod E. Tufte
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