John Pietsch; Arlan Irwin as Trustee for the Albert and Grace Irwin Trust; Ward County Farm Bureau, a North Dakota Non-Profit Corporation; and Ward County Farmers Union, a North Dakota Non-Profit
Case No. 1:18-cv-00023
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
MEMORANDUM AND ORDER
I. INTRODUCTION
In exchange for approval of plat applications on property abutting section lines and existing roadways, a Ward County, North Dakota (“Ward County” or the “County“), zoning ordinance mandates that landowners dedicate a predetermined fee-title right of way to the County. See
But this is not a takings case. Instead, the Plaintiffs have chosen to wield two alternative legal theories—substantive and procedural due process—to vindicate their claims. In a single-count amended complaint invoking
II. BACKGROUND
Despite the voluminous record, the facts present as straightforward and uncontested. Prior to addressing the Plaintiffs’ claims, a summary of the dedication ordinance is necessary. A brief introduction of the parties and this case‘s procedural history follows.
A. The Dedication Ordinance
Outside of incorporated cities, North Dakota has designated 33-foot right-of-way easements for public roads on each side of every section line (for a total of 66 feet) since before statehood. See
Equally uncontroversial is the North Dakota Century Code provision that spells out the procedure for approval of a subdivision plat. The basic building block says, “No subdivision . . . shall be made . . . except in accordance with a plat as finally approved by the board of county commissioners.”
Once a plat application works its way up the ladder for final approval, the board of county commissioners is required to consider certain factors. If an applicant satisfies the statutory criteria, the commission must approve the plat—if not, mandatory disapproval follows:
In determining whether a plat shall be finally approved or disapprоved, the board of county commissioners shall inquire into the public use and interest proposed to be served by the subdivision. . . . If it finds that the proposed plat makes appropriate provisions for the public health, safety, and general welfare and for such open spaces, drainage ways, streets, alleys, other public ways, water supplies, sanitary wastes, parks, playgrounds, sites for schools and school grounds, and that the public use and interest will be served by the platting of such subdivision, and that the proposed plat complies with a county resolution, if any, regulating or restricting the subdivision of land, to the extent that such resolution does not conflict with the provisions of this section, such plat shall be finally approved with such conditions as the board of county commissioners may deem necessary. If it finds that the proposed plat does not make appropriate provisions, or that the public use and interest will not be served, or that the proposed plat does not so comply with the aforementioned resolution, then the board of county commissioners shall disapprove the proposed plat. . . .
The genesis for the expanded dedication requirement came from local engineers and developers informing the County that the 33-foot statutory right of way allotted insufficient space for road construction projects. Doc. No. 44-5 at 60:11-64:15. Enacted on April 6, 2010 by the Board of County Commissioners for Ward County (“County Commission“)—unanimously and with no opposition during the public comment period—the ordinance‘s stated purpose largely mirrors the Century Code‘s requirements for plat approval:
In order to provide for the proper arrangement of streets in relation to other existing and planned streets, and to the master plan of the City of Minot; to provide for adequate and convenient open spaces, for recreation, for light and air; in order to avoid congestion of population; in order to provide for traffic, for utilities, for access of fire-fighting apparatus;
in order to provide for and improve the public health, safety and general welfare of thе County of Ward, the following rules and regulations for the [platting] and subdivision of zoned land within the County of Ward are made part of this regulation in accordance with the laws of the State of North Dakota.
Because of this uniform approach, Ward County has essentially stripped itself of any discretion to approve a subdivision or outlot plat that does not comply with the dedication requirement. See Doc. No. 44-5 at 87:10-20. A landowner therefore has a single path to avoiding dedication—a variance. Doc. No. 44-1 at 20:17-24. The variance process begins with the applicant paying a mandatory $100 application fee. See Doc. No. 44-9. From there, the application passes to the Ward County Planning Commission (“Planning Commission“) and the appropriate township for comment. See Doc. No. 30, ¶¶ 47, 51. The variance request is then presented to the County Commission for an up or down vote.
A few ancillary matters are important to mention at this juncture as well. An appeal process is available for landowners that receive an adverse decision on a plat application, permitting review by a North Dakota state district court.2
B. Introduction of Parties
The Plaintiffs are two individuals that rеfrained from subdividing property because of the dedication ordinance and two non-profit organizations that oppose the ordinance. The first individual Plaintiff is
The Planning Commission initially recommended approving the variance on April 20, 2017, finding that any property dedicated in excess of the statutory 33-foot right of way would present a hardship for Pietsch. Doc. No. 44-10, p. 3. The Freedom Township Planning and Zoning Commission (“Freedom Township Commission“) concurred. Doc. No. 30, ¶ 51. Both entities then forwarded their nonbinding recommendations to the County Commission. On May 16, 2017, the County Commission denied the variance request because the physical characteristics of Pietsch‘s property fell outside the requirements for a hardship. Doc. No. 44-12, p. 4. The County Commission did not assess the proposed outlot‘s transportation-related impact. Doc. No. 30, ¶ 54. Pietsch accordingly halted his plans to develop the outlot. He still desires to create the outlot if he can do so without dedicating the additional right of way to the County. Doc. No. 44-13. Pietsch neither appealed the County Commission‘s denial of his variance application nor instituted an inverse condemnation action.
Arlan Irwin (“Irwin“) is the second individual Plaintiff. He serves as a trustee for the Albert and Grace Irwin Trust (“Trust“). Doc. No. 44-19. The Trust owns farmland in Freedom Township. Doc. No. 44-15 at 20:5-12. Irwin, as trustee, proposed to create two outlots, dubbed Outlot 6 and Outlot 7, from the Trust‘s total 150.52-acre property. Doc. No. 44-14, p. 2. While Irwin had no immediate plans to develop the outlots, he assumed that Outlot 6, an undeveloped 7.48-acre plat, and Outlot 7, an 8.72-acre plat that included a house and some farm-related structures, would be sold for eventual residential use.
Irwin chose the latter route, submitting a variance application that sought approval of Outlot 6 without the additional right of way. Doc. No. 44-14. Pietsch, who also served as chairman of the Freedom Township Commission at the time, presented the Trust‘s variance application to the Planning Commission on Irwin‘s behalf. Doc. No. 44-17, p. 2. Apparently persuaded, the Planning Commission recommended approval of the variance on March 16, 2017, deeming the additional right of way unnecessary because 191st Avenue Southeast was an “extremely low traffic” gravel road not prone to future development concerns. See
Notwithstanding the recommendation for approval, the County Commission denied the Trust‘s plat appliсation on April 4, 2017. Doc. No. 44-18, p. 3. In doing so, the County Commission did not consider the transportation-related impacts that Outlot 6 presented, instead rejecting the variance because the plat failed to meet the County‘s right of way requirements. See
The remaining Plaintiffs, Ward County Farm Bureau (“WCFB“) and Ward County Farmers Union (“WCFU“), are two organizations that advocate for farmers’ rights and interests in Ward County. Doc. No. 30, ¶¶ 82-83. WCFB represents approximately 1,350 members, and WCFU has roughly 3,000 members. Doc. Nos. 44-21, p. 2; 44-26 at 11:4-6. Pietsch is a member of both organizations. Doc. No. 44-13, p. 2. WCFB‘s stated purpose is “improving prosperity for all North Dakotans by advocating for our state‘s largest, renewable, economic sector: agriculture.” Doc. No. 44-21, p. 12. WCFB holds as one of its beliefs that “[p]roperty rights are among the human rights essential to the preservation of individual freedom.”
The Plaintiffs instituted this action on February 5, 2018. See Doc. No. 1. The complaint seeks declaratory and injunctive relief pursuant to
III. LEGAL STANDARD
A. Summary Judgment
Summary judgment is required “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
For a successful
Injunctive relief is available when necessary to enforce a declaratory judgment. See
B. Facial Versus As-Applied Challenges
Functionally, the Plaintiffs’ objection to the dedication ordinance is twofold because they bring both facial and as-applied challenges. Though this often-murky distinction normally does not alter the applicable substantive law, it does determine the “breadth of the remedy” available. Bucklew v. Precythe, 587 U.S. ___, 139 S. Ct. 1112, 1127 (2019) (quoting Citizens United v. FEC, 558 U.S. 310, 331 (2010)). Illustrating that concept, as-applied challenges are inherently narrow. They inure when a law‘s application violates an individual‘s constitutional rights under the circumstances presented. See United States v. Adams, 914 F.3d 602, 605 (8th Cir. 2019). The resulting remedy is likewise narrow, preventing enforcement of the law to the extent necessary to protect the particular challenger‘s rights—but no further. See Brakebill v. Jaeger, 932 F.3d 671, 678 (8th Cir. 2019). Put differently, an as-applied challenge cannot invalidate a law wholesale. See id.
For that to occur, a winning facial challenge is needed. As the Supreme Court recently explained, “A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications.” Bucklew, 139 S. Ct. at 1127. To prevail on such a claim, a challenger “must show that there is no set of circumstances under which the law[] would be valid.” Calzone v. Hawley, 866 F.3d 866, 870 (8th Cir. 2017) (citing United States v. Salerno, 481 U.S. 739, 745 (1987)). When a challenger makes this stouter showing, then the constitutional defect renders the law completely invalid. “Facial challenges are disfavored” in light of this wide-sweeping result. Brakebill, 932 F.3d at 677 (citing Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449-51 (2008)).
A careful review of the Plaintiffs’ complaint and their briefing on the pending summary judgment motions makes clear that only Pietsch and Irwin bring as-applied claims. The Plaintiffs’ memorandum supporting their motion for summary judgment, for instance, mentions WCFB and WCFU only in passing when arguing the as-applied claims. See Doc. No. 44, pp. 28, 31. At the same time, WCFB and WCFU concede that Ward County has not applied the dedication ordinance to either organization‘s property. Doc. Nos. 44-20 at 11:1-20; 44-26 at 13:9-18. The two organizational Plaintiffs instead seek outright invalidation of the dedication ordinance on behalf of their members. See Doc. No. 44-20 at 17:25-18:6. These are pure facial challenges.
With that baseline, the logical progression for analyzing simultaneous facial and as-applied challenges is to work from narrow to broad. See Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 485 (1989) (explaining that “for reasons relating both to the proper functioning of courts and to their efficiency, the lawfulness of the particular application of the law should ordinarily be decided first“). As a result, when
IV. JURISDICTIONAL ISSUES
Prior to exploring the merits of the Plaintiffs’ constitutional claims, however, the Defendants raise several jurisdictional and prudential considerations that demand attention. More specifically, the Defendants contend that all four Plaintiffs lack standing, that the due process claims are not ripe for adjudication, and that abstention doctrine applies. Each argument falls flat.
A. Standing
The Defendants assert that none of the Plaintiffs have standing, thereby divesting the Court of subject matter jurisdiction. ”
“The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561. With that said, a standing probe cannot become “an assessment of the merits of a plaintiff‘s claim.” Am. Farm Bureau Fed’n v. EPA, 836 F.3d 963, 968 (8th Cir. 2016) (quoting Red River Freethinkers v. City of Fargo, 679 F.3d 1015, 1023 (8th Cir. 2012)). Courts must therefore “assume that on the merits the plaintiffs would be successful in their claims” when undertaking a standing analysis. Id. (quoting Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1106 (D.C. Cir. 2008)).
Applying these principles, the two individual Plaintiffs have standing. The Defendants appear to argue that Pietsch and Irwin lack standing becаuse they cannot establish a
For the remaining two elements, causation is plainly satisfied because the County‘s dedication ordinance, and the County Commission‘s dеcisions to deny Pietsch and Irwin‘s plat applications, led directly to the alleged injuries. Redressability is present, too. An order enjoining the dedication ordinance‘s future enforcement would allow the individual Plaintiffs to pursue their plat applications without the threat of forced property dedication to the County. Pietsch and Irwin meet the elementary requirements for standing.
Whether the two organizational Plaintiffs have standing requires additional consideration. Organizations, like individuals, can possess independent standing subject to the basic three-part test above. See ARRM v. Piper, 367 F. Supp. 3d 944, 953 (D. Minn. 2019). Neither WCFB nor WCFU alleges that the dedication ordinance has directly impaired the value of their property or their property rights. Instead, both organizations claim that their injuries stem from the resources they have expended in opposing the dedication ordinance. “Standing may be found when there is a concrete and demonstrable injury to an organization‘s activities which drains its resources and is more than simply a setback to its abstract social interests.” Nat‘l Fed’n of the Blind of Mo. v. Cross, 184 F.3d 973, 979 (8th Cir. 1999) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)). To meet this standard, specific facts must demonstrate a defendant‘s actions “have perceptibly impaired” the organization‘s activities. Havens Realty Corp., 455 U.S. at 379; see also Ark. ACORN Fair Hous., Inc. v. Greystone Dev., Ltd. Co., 160 F.3d 433, 434 (8th Cir. 1998). Expending resources for or in anticipation of litigation is insufficient to confer standing. See WaterLegacy v. USDA Forest Serv., Case No. 17-cv-276 (JNE/LIB) et al., 2019 WL 4757663, at *12 (D. Minn. Sept. 30, 2019) (citing Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 919 (D.C. Cir. 2015)). Harm that does create standing must impact the organization in a “measurable way,” suсh as through a reduction in membership or a restriction on the organization‘s ability to serve its members. Cross, 184 F.3d at 980.
WCFB and WCFU collectively allocated approximately $8,500 for legal fees to investigate and bring the present claims. These expenditures, however, anticipated the onset of litigation and so cannot create standing. Beyond that, leadership from both organizations contributed approximately 200 hours of time for relevant meetings and travel to oppose the ordinance. WCFB and WCFU also provided education to their members and the public in an effort to repeal or amend the dedication ordinance. These are no doubt drains on organizational resources. Even so, WCFB and WCFU fail to establish how that drain “perceptibly impaired” their activities. They assert only that their expenditures of time and money for educational initiatives and efforts to repeal the
The Plaintiffs cite to Animal Legal Defense Fund v. Reynolds, 297 F. Supp. 3d 901 (S.D. Iowa 2018), as support for their argument, but that case is distinguishable. There, a district court found an animal rights group had standing because it diverted resources to advocate for the repeal of a law that prohibited gaining access to an agricultural facility through false pretenses. Reynolds, 297 F. Supp. 3d at 916-17. The plaintiff alleged that the law was enacted in response to animal rights groups conducting undercover investigations in agricultural facilities. So the plaintiff was forced to divert resources to advocate for the repeal of a law that restricted its ability to promote animal welfare—a direct threat to its organizational mission. See id. Unlike the law in Reynolds, the dedication ordinance here in no way restricts WCFB or WCFU from advocating for farmers. Nor is there evidence that the two organizations have seen membership dwindle or that their activities have been adversely impacted in any other way. To the contrary, the dedication ordinance is “simply a setback to . . . abstract social interests” that WCFB and WCFU have voluntarily elected to contribute money and time towards. Cross, 184 F.3d at 979. Because the dedication ordinance does not interfere with either WCFB or WCFU‘s organizational activities, they have not suffered an injury in fact for standing purposes.
This deficiency is not fatal, however. Apart from traditional standing, associational standing permits organizational plaintiffs to assert claims on behalf of their members in limited circumstances. Midwest Disability Initiative v. JANS Enters., Inc., 929 F.3d 603, 609 (8th Cir. 2019) (citing Friends of the Earth, Inc. v. Laidlaw Envt‘l Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)). Associational standing is available when “(1) the individual members would have standing to sue in their own right; (2) the organization‘s purрose relates to the interests being vindicated; and (3) the claims asserted do not require the participation of individual members.” Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d 978, 986 (8th Cir. 2011) (citations omitted). An organizational plaintiff “need not establish that all of its members would have standing to sue individually so long as it can show that ‘any one of them’ would have standing.” Iowa League of Cities v. EPA, 711 F.3d 844, 869 (8th Cir. 2013) (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975)).
The first and second elements are easily met here. Pietsch is a member of both WCFB and WCFU. As explained above, he has standing to sue in his individual capacity. That is enough to satisfy the initial requirement. For the second element, the Defendants concede that WCFB and WCFU‘s organizational purposes coincide with the interests at stake in this litigation. Doc. No. 50, p. 27. Organizations dedicated to advocating for agriculture certainly have an interest in land-use regulations that predominantly effect farmers such as the challenged dedication ordinance.
More controversial is the third element, which the Defendants contend is the missing ingredient for associational standing. They broadly assert that determining
B. Ripeness
With standing resolved, the next hurdle the Defendants raise is ripeness. “The issue of ripeness, which has both
Beginning with procedural due process, the usual rule is that “a litigant asserting a deprivation of procedural due process must exhaust state remedies before such an allegation states a claim under
In this instance, the Defendants argue that Pietsch and Irwin failed to exhaust available state remedies for their as-applied claims because they did not appeal the denial of their plat applications to a North Dakota state district court or attempt to compel compensation through inverse condemnation. But the Plaintiffs contend the dedication ordinance itself—an established procedure—provides inadequate process, not that the Dеfendants acted randomly or without authority to deprive them of property. The complaint asserts that shifting the burden to landowners to avoid dedicating property by forcing them to apply for a variance, coupled with the narrowly defined standard to obtain such a variance, prevents a meaningful opportunity to be heard. See Doc. No. 30, ¶¶ 104-08. In other words, the Plaintiffs claim the dedication ordinance is
procedurally deficient before any property deprivation occurs. Thus, the Plaintiffs challenge the predeprivation process afforded them, rendering any postdeprivation remedies superfluous for ripeness purposes. Pietsch and Irwin‘s decision to forego additional state-law remedies does not preclude consideration of their as-applied procedural due process claims.
The same holds true for the substantive due process claims. The Defendants argue that the Plaintiffs’ substantive due process claims, both facial and as applied, are an improper attempt to circumvent a similar exhaustion-style ripeness requirement for takings claims. Previously, the Supreme Court held that an action under
The finality requirement does remain applicable, but only to Pietsch and Irwin‘s as-applied substantive due process claims. Further paring down the ripeness standard, Williamson County‘s finality requirement need not be met for facial challenges
Turning to the as-applied substantive due process claims, finality is established when the relevant government entity has “arrived at a definite position . . . that inflicted an actual, concrete injury.” Christopher Lake Dev. Co., 35 F.3d at 1273. Here, the County Commission is the government entity tasked with applying Ward County‘s zoning ordinance. The County Commission arrived at a definite position regarding the application of the dedication ordinance to Pietsch and Irwin‘s proposed plats upon denying their plat applications. See Elliott v. Lake Cty., No. CIV 10-04001-RAL, 2010 WL 4553548, at *5 (D.S.D. Nov. 3, 2010) (finding county‘s denial of permit application was a “definitive position” for ripeness purposes). That action created an actual, concrete injury because it effectively prevented both Plaintiffs from subdividing their property. From that point forward, the available appeal process allowed solely for review of the County Commission‘s decision—an unneeded avenue of potential relief to satisfy finality. The two individual Plaintiffs’ as-applied substantive due process claims therefore clear the finality requirement.
Looping back briefly, the two general ripeness requirements for both the procedural and substantive due process claims are also satisfied. The as-applied claims were sufficiently developed factually, and therefore fit for judicial decision, when Ward County denied Pietsch and Irwin‘s plat applications. And all the facial claims met this standard as soon as the County Commission enacted the dedication ordinance on April 6, 2010.6 See Comprehensive Health of Planned Parenthood Great Plains v. Hawley, 903 F.3d 750, 755 (8th Cir. 2018) (stating that “facial challenges to regulation . . . are generally ripe the moment the challenged regulation or ordinance is passed“) (quoting Suitum v. Tahoe Reg‘l Planning Agency, 520 U.S. 725, 736 n.10 (1997)). Withholding a court decision on this issue, meanwhile, would do nothing more than unnecessarily prolong the constitutional uncertainty surrounding the ordinance. See McDonald‘s Corp. v. Nelson, 822 F. Supp. 597, 605 (S.D. Iowa 1993). The Plaintiffs’ substantive and procedural
C. Abstention
The Defendants fall back on abstention doctrine as a last effort to stonewall consideration of the due process claims’ merits. “Abstention is an exception to the general rule that ‘federal courts ordinarily should entertain and resolve on the merits an action within the scope of a jurisdictional grant.‘” Oglala Sioux Tribe v. Fleming, 904 F.3d 603, 610 (8th Cir. 2018) (quoting Sprint Commc‘ns, Inc. v. Jacobs, 571 U.S. 69, 73 (2013)). When employed, abstention serves “to preserve ‘traditional principles of equity, comity, and federalism.‘” Beavers v. Ark. State Bd. of Dental Exam‘rs, 151 F.3d 838, 840 (8th Cir. 1998) (quoting Alleghany Corp. v. McCartney, 896 F.2d 1139, 1142 (8th Cir. 1990)). The particular limb of abstention dоctrine the Defendants call upon derives from Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941).7 Pullman abstention “requires a federal court to refrain from exercising jurisdiction when the case involves a potentially controlling issue of state law that is unclear, and the decision of this issue by the state courts could avoid or materially alter the need for a decision on federal constitutional grounds.” Burris v. Cobb, 808 F.3d 386, 388 (8th Cir. 2015) (quoting Moe v. Brookings Cty., 659 F.2d 880, 883 (8th Cir. 1981)). Refining this principle, if “there is no ambiguity . . . the federal court should not abstain but should proceed to decide the federal constitutional claim.” Moe, 659 F.2d at 883 (citation omitted).
Abstention is inappropriate here because the dedication ordinance is unambiguous. The ordinance is perfectly clear in what it demands—uniform right of way dedication along section lines and roadways in exchange for plat approval. See W.C.Z.O. ch. 3, art. 24, § 4(A)(12). The Plaintiffs do not contend the County Commission should have construed the dedication ordinance in an alternate way that would skirt the constitutional issues. They assert that the ordinance itself, as plainly written, violates the Constitution. Further, there are no unsettled questions of state law because the Century Code overtly authorizes counties to condition plat approval on dedication of land to the public. See
Indeed, the Defendants have not even suggested how Ward County‘s dedication ordinance is unclear. They seem to argue that abstention is warranted simply because, first, a state court has not ruled on the Plaintiffs’ claims and, second, land-use regulation is an arena best left to state courts. That is not enough to trigger Pullman abstention. No doubt, land-use regulation is an important state interest with which federal courts are normally hesitant to interfere. See Night Clubs, Inc. v. City of Fort Smith, 163 F.3d 475, 480 (8th Cir. 1998). But if a federal court were required to abstain whenever a state court could pass upon identical constitutional questions, abstention would become the near-universal rule rather than the carefully limited exception. Where, as here, a litigant lodges federal constitutional claims
In sum, Pietsch and Irwin have standing in their individual capacities. WCFB and WCFU have standing to sue on behalf of their members. The procedural and substantive due process claims are ripe for review, and abstention is unwarranted. As a result, the Court possesses subject matter jurisdiction and will proceed to the merits.
V. DUE PROCESS CLAIMS
The Fourteenth Amendment familiarly forbids a state entity to “deprive any person of life, liberty, or property, without due process of law.”
A. Protected Property Interest
North Dakota law establishes a protected interest in the ability to subdivide property, so the due process claims’ first element is satisfied. “To have a constitutionally cognizable property interest in a right or a benefit, a person must have ‘a legitimate claim of entitlement to it.‘” Austell v. Sprenger, 690 F.3d 929, 935 (8th Cir. 2012) (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)). “Property interests are not created by the Constitution, ‘they are created and their dimensions are defined by . . . an independent source such as state law.‘” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 539 (1985) (quoting Roth, 408 U.S. at 577). When a state-created property interest exists, “federal constitutional law determines whether that interest rises to the level of a ‘legitimate claim of entitlement’ protected by the Due Process Clause.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 757 (2005) (emphasis and internal quotations omitted). To that end, “a state statute . . . can create a constitutionally protected property interest, first, when it contains particularized substantive standards that guide a decision maker and, second, when it limits the decision maker‘s discretion by using mandatory language (both requirements are necessary).” McGuire v. Indep. Sch. Dist. No. 833, 863 F.3d 1030, 1034 (8th Cir. 2017) (ellipses in original) (quoting Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir. 1999)) (in turn citing Jennings v. Lombardi, 70 F.3d 994, 995-96 (8th Cir. 1995)). The government entity‘s “discretion must be limited such that the [statute] ‘mandat[es] the outcome to be reached upon a finding that the
Both parties overlook the origin of the protected property interest in this case. The Plaintiffs breeze past this element, cursorily claiming a protected property interest in the ability to subdivide property by asserting that the dedication ordinance infringes on an amorphous right to exclude others. They do not specifically identify how North Dakota law engenders a legitimate claim of entitlement to subdivide property. On the opposite end of the spectrum, the Defendants mangle the distinct concept of a protected property interest with the analysis for establishing a fundamental right for certain substantive due process claims.
Nonetheless, the Plaintiffs do identify, albeit in piecemeal fashion, the correct state-created property interest—the ability to subdivide property—and the correct provision of North Dakota law that anchors a legitimate claim of entitlement to that interest—North Dakota Century Code §
Supporting this notion, the North Dakota Supreme Court has held, in accord with the statute‘s plain language, that a county commission has no duty to approve a plat application where one of the statutory factors is absent. See Dahm v. Stark Cty. Bd. of Cty. Comm‘rs, 2013 ND 241, ¶ 19, 841 N.W.2d 416. The Dahm opinion also conspicuously left open whether a mandatory duty to approve a plat application is triggered if an applicant satisfies the statutory criteria in full. Id. (“Because [the Stark County Commission] found Dahm‘s application was at odds with [a statutory factor], it was under no duty to approve the request.“). At the same time, the court framed the statute‘s requirements in mandatory, rather than permissive, terms. Id. (“In determining whether a plat shall be approved or disapproved, the County Board shall . . .“). Ultimately, the statute significantly limits a county commission‘s discretion to approve or disapprove a plat application through comprehensive substantive considerations while using mandatory language. The sole reason Pietsch and Irwin were prevented from creating their proposed outlots was their refusal to dedicate additional right of way to Ward County. The County Commission did not deny their plat applications based on any other statutory factors. Thus, the Court concludes that the Plaintiffs have a legitimate claim of entitlement, and therefore a protected property interest, in the ability to subdivide property under
B. Procedural Due Process
To round out a procedural due process claim, the Plaintiffs must demonstrate that the Defendants effected a deprivation of their ability to subdivide property without constitutionally sufficient process. See Jenner v. Nikolas, 828 F.3d 713, 716 (8th Cir. 2016). “The essential requirements of due process . . . are notice and an opportunity to respond.” Cleveland Bd. of Educ., 470 U.S. at 546. “Required procedures may vary according
Attempting to brush aside this precedent, the Plaintiffs argue that two Fifth Amendment takings cases should moor the procedural due process standard here. See Dolan v. City of Tigard, 512 U.S. 374 (1994); Nollan v. Cal. Coastal Comm‘n, 483 U.S. 825 (1987). To clarify, the Plaintiffs explicitly disavow that their amended complaint asserts any takings claims. See Doc. No. 51, p. 3. They instead contend that Nollan and Dolan set forth constitutional procedural protections that the dedication ordinance contravenes.
By way of explanation, the Takings Clause of the Fifth Amendment states, “nor shall private property be taken for public use, without just compensation.”
The Plaintiffs posit that the Defendants violated their due process rights beсause Ward County‘s ordinance employs a one-size-fits-all approach that conditions plat approval on property dedication. They point out that the ordinance requires an affected landowner to apply for a variance and then demonstrate a hardship that the County can grant based only on physical characteristics of the property. That approach, they theorize, thwarts the mandate for an individualized determination of an “essential nexus” and “rough proportionality” between the transportation-related impact of a proposed outlot or subdivision plat and the County‘s actual need for right of way to support future road projects.
In their endeavor to extend exaction jurisprudence beyond the Takings Clause and into the realm of procedural due process, the Plaintiffs rely on Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013), a progeny of Nollan and Dolan. That reliance is misplaced. Koontz held that denial of a development permit for refusing to accede to a government demand for an unconstitutional exaction violates the Takings Clause. See Koontz, 570 U.S. at 607. Grounding this conclusion on the doctrine of unconstitutional conditions, the Supreme Court explained, “Extortionate demands for property in the land-use permitting context run afoul of the Takings Clause not because they take property but because they impermissibly burden the right not to have property taken without just comрensation.” Id. at 607.
Although a violation of the Takings Clause, in a Koontz scenario, a landowner
To start, the Plaintiffs do not seek money damages, but rather an injunction barring further enforcement of the dedication ordinance either globally or particular to Pietsch and Irwin. As opposed to money damages, securing injunctive relief is independent of the Fifth Amendment‘s particular remedy of just compensation. That is because a completed taking is not necessary to enjoin a land-use regulation under the doctrine of unconstitutional conditions. Quite distinctly, all that is needed is a showing that the challenged demand for an exaction “impermissibly burden[s] the right not to have property taken without just compensation.” Id. at 607 (emphasis added). As confirmation, Justice Kagan explained that а Koontz-type plaintiff “is entitled to have the improper condition removed” and may sue “to invalidate the purported demand as an unconstitutional condition” without resorting to anything other than the Takings Clause. Id. at 620, 634 (Kagan, J., dissenting) (agreeing with the majority on this issue). No question, where a plaintiff seeks monetary relief for an impermissible denial of a permit predicated on an unconstitutional exaction, tolerating an alternative remedy makes perfect sense because there is no taking and just compensation is therefore unavailable. But for injunctive relief, the analysis begins and ends with the Fifth Amendment. Permitting federal judges to strike down land-use regulations as violations of procedural due process because they actually violate the Takings Clause is assuredly not a door the Supreme Court opened in Koontz.
True enough, due process is a “flexible” concept. Mathews v. Eldridge, 424 U.S. 319, 334 (1976). But adopting the Plaintiffs’ contorted position would break—not bend—procedural due process protection. See Lind v. Midland Funding, L.L.C., 688 F.3d 402, 405 (8th Cir. 2012) (“Despite this flexibility, for more than a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.“) (cleaned up). Nollan and Dolan were decided more than 25 years ago, and Koontz nearly seven years ago. Despite the length of time that has elapsed, the Plaintiffs do not cite to, and the Court has yet to discover, a single case that supports their novel theory. Underscoring this рoint, the Supreme Court has expressly rejected, on multiple occasions, attempts to “recast in ‘procedural due process terms‘” otherwise substantive challenges to regulation. Reno v. Flores, 507 U.S. 292, 308 (1993); see also Conn. Dep‘t of Pub. Safety v. Doe, 538 U.S. 1, 7-8 (2003); Michael H. v. Gerald D., 491 U.S. 110, 120-21 (1989). Nollan and Dolan articulate substantive standards for adjudicating takings claims. See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 546 (2005). Those cases plainly have nothing to do with the procedure a landowner is entitled to for
Viewing Pietsch and Irwin‘s as-applied procedural due process claims through the appropriate constitutional lens, the Defendants provided adequate notice of the dedication requirement and an opportunity to be heard. Both Plaintiffs had actual notice that their property was subject to dedication throughout the plat application process. Beyond notice, Pietsch and Irwin were each afforded opportunities to participate in hearings at the Planning Commission and County Commission levels. Even though the County Commission was not bound to consider the economic implications of the dedication requirement when deliberating on Pietsch and Irwin‘s plat applications, the record indicates those factors would have been considered if presented. Doc. No. 44-5 at 112:9-18. Procedural due process mandates a meaningful opportunity to be heard, not a guarantee of a favorable outcome. Pietsch and Irwin knew what the dedication ordinance required and had ample opportunity to present their plat applications and variance requests. Their as-applied claims accordingly fail. Because the dedication ordinance afforded sufficient process to Pietsch and Irwin, the ordinance is not “unconstitutional in all its applications.” Bucklew, 139 S. Ct. at 1127. For that reason, all four Plaintiffs’ facial procedural due process claims falter as well.
C. Substantive Due Process
The substantive due process claims fare no better. “[T]he theory of substantive due process is properly reserved for truly egregious and extraordinary cases.” Novotny v. Tripp Cty., 664 F.3d 1173, 1178 (8th Cir. 2011) (alteration in original) (quoting Myers v. Scott Cty., 868 F.2d 1017, 1019 (8th Cir. 1989)). Substantive due process insulates constitutionally protected property interests and fundamental rights from government conduct that “shocks the conscience.” Gallagher v. Magner, 619 F.3d 823, 840 (8th Cir. 2010) (citations and internal quotation marks omitted) (discussing constitutionally protected property interests); Norris v. Engles, 494 F.3d 634, 638 (8th Cir. 2007) (discussing fundamental rights). As previously established, the Plaintiffs have a constitutionally protected interest in the ability to subdivide property under North Dakota law.
The Eighth Circuit deploys two separate standards for facial and as-applied substantive due process challenges to property deprivations resulting from land-use regulations. See WMX Techs., Inc. v. Gasconade Cty, 105 F.3d 1195, 1198 n.1 (8th Cir. 1997); Bellino Fireworks, Inc. v. City of Ankeny, 332 F. Supp. 3d 1071, 1095-96 (S.D. Iowa 2018); Duffner v. City of St. Peters, Case No. 4:16-CV-01971-JAR, 2018 WL 1519378, at *5-6 (E.D. Mo. Mar. 28, 2018). For as-applied claims, a plaintiff “must demonstrate the ‘government action complained of is truly irrational, that is something more than . . . arbitrary, capricious, or in violation of state law.‘” Koscielski v. City of Minneapolis, 435 F.3d 898, 902 (8th Cir. 2006) (ellipses in original) (quoting Anderson, 4 F.3d at 577). A valid facial challenge, meanwhile, requires a plaintiff to prove that the land-use regulation itself “is arbitrary, capricious and not rationally related to a legitimate public purpose.” WMX Techs., Inc., 105 F.3d at 1198-99 (citing Pennell v. City of San Jose, 485 U.S. 1, 11 (1988)).
The
Their next contention is that the Plaintiffs’ substantive due process claims fail because they are in substance takings claims. This argument lacks merit, too. Unlike the procedural due process claims, the Plaintiffs’ substantive due process arguments do not hinge on Nollan and Dolan—or any other takings jurisprudence for that matter. Were that the case, then the Takings Clause would control as the “explicit textual source” for the claims, and the “more generalized notion of ‘substantive due process‘” would necessarily fade away. Graham v. Connor, 490 U.S. 386, 395 (1989). But in reality, the Plaintiffs’ substantive due process claims assert only that the dedication ordinance is irrational and unrelated to a legitimate government purpose. And the Supreme Court has made clear that apart from a takings challenge, a land-use “regulation that fails to serve any legitimate governmental objective may be so arbitrary or irrational that it runs afoul of the Due Process Clause.” Lingle, 544 U.S. at 542 (citing Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)); see also id. at 548 (Kennedy, J., concurring). Substantive due process claims predicated on the arbitrary or irrational deprivation of a protected property interest are entirely appropriate.
Whether those claims succeed in this case is a different story. Pietsch and Irwin‘s as-applied claims come up well short. Truly irrational government action “bear[s] no relationship whatever to the merits of the pending matter.” Lemke v. Cass Cty., 846 F.2d 469, 472 (8th Cir. 1987) (en banc) (per curiam) (Arnold, J., concurring). Posited examples include making zoning decisions by coin toss or applying an ordinance exclusively to those whose names begin with a letter in the first half of the alphabet. See id.; Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1104 (8th Cir. 1992). Here, the County Commission did not act in a truly irrational manner when denying Pietsch and Irwin‘s plat applications—it simply followed the letter of the dedication ordinance. Pietsch and Irwin wanted to create outlots. Their properties abutted existing roadways, so the ordinance called for them to dedicate right of way. They attempted to avoid dedicating that right of way by applying for variances as the ordinance allowed. The County Commission considered their plat applications and accompanying variance requests, eventually determining Pietsch‘s property did not meet the hardship definition required for a variance and the Trust‘s property did not satisfy the County‘s right of way requirements. Because of those deficiencies, the County Commission denied Pietsch and Irwin‘s plat applications.
From start to finish, the County Commission‘s decisionmaking related exclusively to the merits of Pietsch and Irwin‘s plat applications. There was no coin flipping or alphabetizing, no blatant personal animus, and no other inappropriately irrelevant decisionmaking taking place here. Pietsch‘s contention that Ward County had already decided to reconstruct the road adjacent to his property and Irwin‘s inverse assertion that the County
The heart of the Plaintiffs’ substantive due process theory, however, assails the dedication ordinance as arbitrary, irrational, and unrelated to a legitimate government purpose on its face. Because an alternative standard governs facial challenges in this context, separate analysis is necessary. See Bellino Fireworks, Inc., 332 F. Supp. 3d at 1095-96; Duffner, 2018 WL 1519378, at *5-6. The burden rests with the Plaintiffs to prove that either (1) the dedication ordinance serves no legitimate government purpose or (2) the dedication ordinance is not rationally related to a legitimate purpose. See Karsjens v. Piper, 845 F.3d 394, 407-08 (8th Cir. 2017). The Plaintiffs attack the dedication ordinance from both angles.
Addressing the first prong, “Legislative bodies are given broad latitude in their legislative determinations, ‘and it is not the province of the courts to monitor the inputs into each legislative decision.‘” WMX Techs., Inc., 105 F.3d at 1201. To prеvail on this ground, the Plaintiffs must negate “every conceivable basis which might support” the dedication ordinance. FCC v. Beach Commc‘ns, Inc., 508 U.S. 307, 315 (1993) (citations omitted). The Plaintiffs begin by correctly noting that a regulation‘s “true” purpose is irrelevant when determining if that regulation is rooted in a legitimate government purpose. See WMX Techs, Inc., 105 F.3d at 1201. But they then conduct an about face and proceed to attack what they allege to be the dedication ordinance‘s singular true purpose. Without pointing to one iota of supporting evidence from the record, they assert that the ordinance is intended to create a land bank that allows Ward County to dodge eminent domain proceedings. Merely speculating as to what the Plaintiffs believe the ordinance‘s purpose to be is patently not enough to carry the burden of proof.
Even if Ward County had enacted the dedication ordinance to bypass eminent domain, that would not matter because the ordinance is conceivably designed to provide for public roads, a government interest that the Plaintiffs concede is legitimate. Doc. No. 44, p. 29. Countering the Plaintiffs’ conjecture is concrete evidence that the County Commission passed the dedication ordinance in response to local engineers and developers expressing concern that the statutory 33-foot right of way insufficiently accommodated the labor and equipment demands of modern road projects. Doc. No. 44-5 at 60:11-64:15. The Plaintiffs try to constrict this apparent purpose by claiming the dedication ordinance cannot provide for the creation of roads because it applies to property bordering preexisting roadways. Though creative, this argument ignores that maintaining
Furthermore, the ordinance is rationally related to providing for public roads. Authorizing the acquisition of right of way where roads exist or might be built in the future is clearly related to the dedication ordinance‘s conceivable purpose of facilitating road construction and maintenance. Does the ordinance sweep more broadly than necessary? Almost certainly. The County will not always have an immediate need to construct or rebuild a road every time the ordinance requires a landowner to dedicate property. But on rational basis review, an ordinance need not be narrowly tailored to the task at hand. See Heller v. Doe ex rel. Doe, 509 U.S. 312, 321 (1993) (“[C]ourts are compelled under rational-basis review to accept a legislature‘s generalizations even when there is an imperfect fit between means and ends. A [regulation] does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality.“) (citations and internal quotation marks omitted). The Plaintiffs have failed to demonstrate that there is no rational relationship between the dedication ordinance and the provision of public roads. The facial substantive due process claims likewise fail as a result.
The chief difficulty with substantive due process claims like this one is that they call upon a court to substitute its judgment for that of duly elected officials. The solution to the Plaintiffs’ problems is as much political as it is legal, if not more so. The citizens of Ward County can elect leaders to change the dedication ordinance. Absent the kind of “truly egregious and extraordinary” circumstances that trigger the protections of the Constitution, this Court will not.
VI. CONCLUSION
This opinion is far from a ringing endorsement of Ward County‘s dedication ordinance. Without question, counties possess the authority to take private property to provide for public roads. But doing so via legislative backdoor in a manner that avoids compensating landowners appears to infringe on a right enshrined in our Constitution. That right is not at issue today. The dedication ordinance is not irrational, nor does it deprive effected landowners of notice and an opportunity to be heard. Due process does not fit the bill.
Accordingly, no genuine dispute of material fact remains, and the Defendants are entitled to judgment as a matter of law. The Court has reviewed the entire record, the parties’ filings, and the relevant legal authority. For the reasons above, the Defendants’ motion for summary judgment (Doc. No. 40) is GRANTED. The Plaintiffs’ motion (Doc. No. 42) is DENIED. The complaint against the Defendants is hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this 10th day of March, 2020.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court