905 N.W.2d 764
N.D.2018Background
- Fargo City Commission passed resolutions of necessity in Dec 2016 authorizing acquisition (including eminent domain) of properties owned by Brandt and Wieland for a flood protection project.
- Brandt appealed the City’s resolution to the district court on Dec 16, 2016; Wieland appealed on Jan 4, 2017.
- The City filed records on appeal and moved to dismiss both appeals; Brandt sought consolidation with a separate eminent domain action and both owners moved to strike materials not presented to the commission.
- Two different district judges dismissed the appeals, holding there was no statutory basis to appeal a city resolution of necessity and that such legislative/political determinations are not reviewable on that appeal.
- The City subsequently commenced eminent domain proceedings; the Supreme Court consolidated the appeals and reviewed whether district courts had jurisdiction to hear direct appeals from the city resolutions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a direct appeal to district court lies from a city resolution of necessity | Brandt/Wieland: §28-34-01 provides the appeal procedure and authorizes appeals from local governing bodies | City: §28-34-01 supplies procedure/time limits but does not create a right to appeal; no statute authorizes direct appeals from city resolutions of necessity | No — §28-34-01 does not grant a right to appeal; a separate statute must authorize the appeal, and none does here |
| Whether district court may review the merits (necessity, evidence, bad faith) of the resolution on that appeal | Brandt/Wieland: resolutions are unsupported, vague, and passed improperly and should be overturned | City: determination to exercise eminent domain is legislative/political and not reviewable on a direct appeal from the resolution; review is limited and occurs in eminent domain proceedings | Court did not reach full merits; held such review belongs in eminent domain proceedings under ch. 32-15, not by direct appeal from the resolution |
| Whether the district court erred by admitting/examining materials not presented to the commission | Brandt/Wieland: district court should have struck extraneous filings and only considered materials before the commission | City: filed record on appeal pursuant to procedure; materials properly before the court as part of the record or in ensuing eminent domain action | Dismissal affirmed; court found no statutory appeal to review such materials on direct appeal and denied relief as moot regarding striking record |
| Whether affirming dismissal forecloses property owners from contesting necessity | Brandt/Wieland: dismissal would prevent judicial review of necessity | City: owners may challenge necessity and other statutory requirements in the pending eminent domain proceedings | Held: Dismissal does not extinguish owners’ ability to litigate necessity in eminent domain proceedings under ch. 32-15 |
Key Cases Cited
- Rudnick v. City of Jamestown, 463 N.W.2d 632 (N.D. 1990) (no appellate jurisdiction absent statutory authorization)
- Investment Rarities, Inc. v. Bottineau County Water Resource Dist., 396 N.W.2d 746 (N.D. 1986) (appeal is statutory creature; dismissal where no statutory right)
- Oakes Municipal Airport Authority v. Wiese, 265 N.W.2d 697 (N.D. 1978) (distinguishing legislative determination to exercise eminent domain from judicial review of necessity; court reviews suitability and abuse of discretion)
- Gissel v. Kenmare Township, 512 N.W.2d 470 (N.D. 1994) (reiterating that exercise of eminent domain is legislative; necessity review occurs in eminent domain proceedings)
- City of Jamestown v. Leevers Supermarkets, Inc., 552 N.W.2d 365 (N.D. 1996) (applying narrow abuse-of-discretion standard for reviewing necessity in eminent domain context)
- Cossette v. Cass County Joint Water Resource Dist., 894 N.W.2d 858 (N.D. 2017) (appeal from water resource district resolution of necessity allowed where a specific statute provides the right)