D&P Terminal v. City of Fargo
D&P Terminal, Inc.; Potter
Enterprises; and William F.
D&P Terminal, Inc.; Potter Appellants
City of Fargo, a political
subdivision of the State
of North Dakota, Respondent and Appellee
East Central Judicial District,
Judge Wickham Corwin
|Nature of Action:||Tax Related|
|Term:||11/2011  Argument: 11/30/2011 10:00am|
|ND cite:||2012 ND 149|
819 N.W.2d 491
Listen to recording of oral argument in MP3 format
Appellant's Statement of the Issues:|
1.Is a special assessment arbitrarily and unconstitutionally imposed upon a landowner's lot when there has never been a determination of the amount the lot has especially benefitted by the municipal improvement?
2.Can a special assessment be sustained when a Special Assessment Commission failed to strictly observe statutory mandates of N.D.C.C. Chap. 40-23? (a).Can a special assessment district be sustained when a special assessment district merely applies Fargo's Infrastructure Funding Policy to an improvement district without determining the amount a particular lot is especially benefited by the construction of the work?(b)Has the Special Assessment Commission failed to prepare an assessment list that complies with statute and follow statutory due process requirements?
3.Can a special assessment be sustained when a city auditor's certificate of costs includes: (a) higher construction costs than existed under known, public construction contracts, and resulting payments into NDDOT based upon said contracts; (b) arbitrary city engineering/design fees, based upon a percentage of alleged costs, even though project engineering was performed by NDDOT, and paid under contract to NDDOT; and (c) the inclusion of costs for an earlier bridge project that was bid and constructed prior to the Resolution of Necessity?
4.Is a special assessment valid when a city, or its Special Assessment Commission, failed to honor a 15% cap on special assessments found within the city's adopted Resolution of Necessity?
5.Was the Fargo City Commission's decision to uphold the special assessment arbitrary, capricious, unreasonable, not supported by substantial evidence or based upon the misapplication of existing law?
Appellee's Statement of the Issues:
Whether the District Court Judgment upholding the Fargo City Commission's October 4, 2010 approval of the Special Assessment Commission's assessment list for Improvement District 5547 should be affirmed.
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|1||06/29/2011||NOTICE OF APPEAL: 06/27/2011|
|2||07/25/2011||Amended Notice of Appeal|
|3||07/27/2011||ELECTRONIC RECORD ON APPEAL (ENTRY NOS. 1-86).|
|6||08/12/2011||Received 8 corrected pages for ATB.|
|7||08/12/2011||Received 5 corrected pages for ATA.|
|8||08/15/2011||Received 3 corrected title pages for ATA.|
|11||09/08/2011||E-FILED BRIEF - AEB|
|12||09/09/2011||Rec'd $25.00 AEB e-file surcharge. (receipt no. 20651)|
|13||09/12/2011||Rec'd 7 copies of AEB from Central Duplicating.|
|14||09/22/2011||REPLY BRIEF of Appellants|
|15||09/23/2011||DISK - ryb|
|16||10/06/2011||NOTICE OF ORAL ARGUMENT SENT|
|17||11/29/2011||ANNOUNCED DISQUALIFICATION: Maring, Mary Muehlen|
|18||11/29/2011||SITTING WITH THE COURT: Graff, Benny A.|
|19||11/30/2011||APPEARANCES: Jonathan T. Garaas; Jane L. Dynes|
|20||11/30/2011||ARGUED: Jonathan T. Garaas; Jane L. Dynes|
|21||11/30/2011||ORAL ARGUMENT WEBCAST|
|23||07/18/2012||UNANIMOUS OPINION: Crothers, Daniel John|
|24||07/18/2012||Costs on appeal taxed in favor of Appellee|
|25||07/19/2012||Judgment Sent to Parties|
|26||08/01/2012||PETITION FOR REHEARING|
|28||08/20/2012||ACTION BY SUPREME COURT. Denied|