Monte L. Rogneby (argued) and Amanda E. Peterson (on brief), Bismarck, N.D., for plaintiff and appellant.
Randall J. Bakke, Bismarck, N.D., for defendant and appellee.
[¶ 1] Erling " Curly" Haugland appeals from a summary judgment dismissing his action against the City of Bismarck for declaratory relief involving Bismarck's implementation of an urban renewal plan and
use of tax increment financing to fund renewal projects in its renewal area. In Haugland v. City of Bismarck, 2012 ND 123, ¶¶ 55, 64, 818 N.W.2d 660, we remanded for further proceedings to resolve: (1) whether Bismarck adopted an appropriate resolution in 1994 to add six city blocks to its renewal area; and (2) whether Bismarck had any pending authorized renewal projects in the renewal area when the district court decided the case in January 2011. On remand, the district court decided an appropriate 1994 resolution existed to add six city blocks to the renewal area and authorized renewal projects in the renewal area were pending in January 2011. We affirm summary judgment concluding Bismarck's urban renewal plan included pending authorized projects for the existing renewal area when the district court decided the case in January 2011. We reverse and remand summary judgment concluding no disputed issues of material fact exist regarding approval of the 1994 plan.
[¶ 2] Haugland sued Bismarck, alleging its adoption of an urban renewal plan and use of tax increment financing to fund renewal projects within its downtown renewal area violated the state and federal constitutions and North Dakota urban renewal law under N.D.C.C. ch. 40-58. After the district court initially granted Bismarck's motion for summary judgment, we held the statutory provisions authorizing tax increment financing were constitutional. Haugland, 2012 ND 123, ¶ 1, 818 N.W.2d 660. We also construed relevant statutory provisions in N.D.C.C. ch. 40-58 and held the record did not establish whether Bismarck's renewal plan complied with two requirements of that chapter. Haugland, at ¶¶ 55, 64. We remanded for further proceedings to determine whether Bismarck passed an appropriate resolution in 1994 to substantially modify its renewal plan and to determine whether Bismarck had any pending authorized renewal projects within the renewal area in January 2011. Id.
[¶ 3] On remand, the district court again granted Bismarck's motion for summary judgment, concluding Bismarck passed an appropriate resolution at a continued public hearing in November 1994 to modify its renewal plan after finding the modified renewal area consisted of slum or blighted areas. The court also determined Bismarck had pending authorized renewal projects within the renewal area in January 2011, including a parking ramp, a quiet rail zone, and the CORE Incentive Program.
[¶ 4] The district court decided the remanded issues by summary judgment, " which is a procedural device for promptly resolving a controversy on the merits without a trial if there are no disputed issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law." Haugland, 2012 ND 123, ¶ 21, 818 N.W.2d 660. " ‘ A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.’ " Hamilton v. Woll, 2012 ND 238, ¶ 9, 823 N.W.2d 754 (quoting Wenco v. EOG Res., Inc., 2012 ND 219, ¶ 8, 822 N.W.2d 701). " ‘ In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record.’ " Wenco, at ¶ 8 (quoting Arndt v. Maki, 2012 ND 55, ¶ 10, 813 N.W.2d 564).
" ‘ On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law.’ " Hamilton, at ¶ 9 (quoting Wenco, at ¶ 8). " ‘ Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.’ " Wenco, at ¶ 8 (quoting Arndt, at ¶ 10).
[¶ 5] Haugland argues Bismarck failed to establish as a matter of law that it complied with the procedural requirements of N.D.C.C. § 40-58-06 for substantially modifying its urban renewal plan in 1994. He claims Bismarck failed to establish it provided proper notice of a public hearing for the November 1994 modification of its renewal plan. He also claims Bismarck failed to establish it made a finding by official resolution that slum or blighted areas exist within the specific renewal area. He asserts that Bismarck must provide a complete copy of the governing body's official resolution under N.D.C.C. § 31-09-10(4) to establish the resolution passed, and that providing only the first page of the resolution and an affidavit expressing a city administrator's " belief" a full resolution was adopted was legally insufficient. Bismarck responds it passed an appropriate resolution in 1994 to modify its renewal plan and asserts it provided adequate documentation to establish adoption of the resolution even though it was able to locate only one of two pages of the official city resolution.
[¶ 6] Under N.D.C.C. § 40-58-05, a municipality may not exercise any of its urban renewal powers until its governing body adopts a resolution finding that " [o]ne or more slum or blighted areas or industrial or commercial properties exist in the municipality" and the " development, rehabilitation, conservation, or redevelopment, or a combination thereof, of the area or properties is necessary in the interest of the public economy, health, safety, morals, or welfare" of the municipality. Section 40-58-06, N.D.C.C., describes the procedure for preparing, adopting, and revising a " renewal plan." Under N.D.C.C. § 40-58-06(1), a municipality may not approve a " renewal plan" for a " renewal area" unless the municipality's governing body by resolution decides the area is a slum area, a blighted area, or consists of industrial or commercial property, and designates the area as appropriate for a " renewal project." A municipality's governing body shall give notice and hold a public hearing on a renewal plan or a substantial modification of a previously approved renewal plan. N.D.C.C. § 40-58-06(3). Following the hearing, the governing body may approve a renewal plan if it makes requisite findings under N.D.C.C. § 40-58-06(4). A renewal plan may be modified at any time, but any proposed modification that " substantially change[s]" a prior renewal plan is subject to the requirements of N.D.C.C. § 40-58-06. N.D.C.C. § 40-58-06(5). In Haugland, 2012 ND 123, ¶¶ 52, 55, 818 N.W.2d 660, we concluded the " plain language of N.D.C.C. § 40-58-06 requires a municipality to give notice and hold a public hearing before the municipality adopts a proposed modification that substantially changes a previously approved renewal plan," and Bismarck substantially changed its renewal plan in 1994 when it added six city blocks to the renewal area.
[¶ 7] In Haugland, we described the record pertaining to Bismarck's 1994 modification of its renewal plan:
" In August 1994, after notice and a public hearing, Bismarck considered a proposal to modify its renewal area to include an additional contiguous area. Haugland appeared at the Bismarck
City Commission meeting and protested the proposed modification of the plan, claiming all debt for the previously approved plan had been paid and the plan must be discontinued. Bismarck sought an Attorney General's opinion, asking if ‘ N.D.C.C. § 40-58-20(10) requires a city to remove an individual parcel from ... an urban development or renewal area after any tax increment-financed improvements to the specific parcel have been individually completed and any tax increment-financed obligations with respect to such parcels have been repaid.’ The Attorney General opined ‘ that N.D.C.C. § 40-58-20(10) does not authorize a city to remove individual parcels from an urban development or renewal area after tax increment-financed improvements to the specific parcel have been individually completed and paid.’ N.D. Op. Att'y Gen. 94-L-282, Oct. 17, 1994. After a continued public hearing in November 1994, Bismarck modified its renewal plan to add about six additional contiguous city blocks to the renewal area. The 1994 modified plan generally identified the same proposed renewal actions as the earlier plans and identified the same items for acquisition and construction within the renewal area."
2012 ND 123, ¶ 11, 818 N.W.2d 660.
[¶ 8] On that record, we remanded for the district court to resolve whether an appropriate resolution existed in 1994 to add the ...