D&P Terminal v. City of Fargo

20110194 D&P Terminal, Inc.; Potter
Enterprises; and William F.
Rakowski, Petitioners
---------
D&P Terminal, Inc.; Potter Appellants
Enterprises
v.
City of Fargo, a political
subdivision of the State
of North Dakota, Respondent and Appellee

Appeal from: District Court, East Central Judicial District, Cass County
Judge Wickham Corwin
Nature of Action: Tax Related
Counsel:
Appellant: Jonathan T. Garaas
Appellee: Ronald H. McLean
Appellee: Jane L. Dynes
Term: 11/2011   Argument: 11/30/2011  10:00am
ND cite: 2012 ND 149
NW cite: 819 N.W.2d 491

Listen to recording of oral argument in MP3 format

Issues: 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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Docket entries:
106/29/2011 NOTICE OF APPEAL: 06/27/2011
207/25/2011 Amended Notice of Appeal
307/27/2011 ELECTRONIC RECORD ON APPEAL (ENTRY NOS. 1-86).
408/06/2011 APPELLANT BRIEF
508/06/2011 APPELLANT APPENDIX
608/12/2011 Received 8 corrected pages for ATB.
708/12/2011 Received 5 corrected pages for ATA.
808/15/2011 Received 3 corrected title pages for ATA.
908/15/2011 DISK-ATB (CD-ROM)
1009/08/2011 APPELLEE BRIEF
1109/08/2011 E-FILED BRIEF - AEB
1209/09/2011 Rec'd $25.00 AEB e-file surcharge. (receipt no. 20651)
1309/12/2011 Rec'd 7 copies of AEB from Central Duplicating.
1409/22/2011 REPLY BRIEF of Appellants
1509/23/2011 DISK - ryb
1610/06/2011 NOTICE OF ORAL ARGUMENT SENT
1711/29/2011 ANNOUNCED DISQUALIFICATION: Maring, Mary Muehlen
1811/29/2011 SITTING WITH THE COURT: Graff, Benny A.
1911/30/2011 APPEARANCES: Jonathan T. Garaas; Jane L. Dynes
2011/30/2011 ARGUED: Jonathan T. Garaas; Jane L. Dynes
2111/30/2011 ORAL ARGUMENT WEBCAST
2207/18/2012 DISPOSITION: Affirmed
2307/18/2012 UNANIMOUS OPINION: Crothers, Daniel John
2407/18/2012 Costs on appeal taxed in favor of Appellee
2507/19/2012 Judgment Sent to Parties
2608/01/2012 PETITION FOR REHEARING
2708/02/2012 DISK-PER
2808/20/2012 ACTION BY SUPREME COURT. Denied
2908/28/2012 MANDATE

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