Edward P. Ferguson and Lavonna M. Ferguson, Plaintiffs and Appellees
City of Fargo, Defendant and Appellant
from the District Court of Cass County, East Central Judicial
District, the Honorable John Charles Irby, Judge.
Michael S. Raum (argued) and Elizabeth L. Alvine (appeared),
51 Broadway, Suite 400, Fargo, N.D. 58102-4991, for
plaintiffs and appellees.
L. Dynes (argued) and Ronald H. McLean (on brief), P.O. Box
6017, Fargo, N.D. 58108-6017, for defendant and appellant.
VANDEWALLE, CHIEF JUSTICE.
1] The City of Fargo appealed a judgment declaring an
ordinance relating to construction on property located near
rivers unconstitutional under the equal protection clauses of
the North Dakota and United States Constitutions. We reverse,
concluding the ordinance's distinction between platted
and unplatted property is rationally related to Fargo's
interest in limiting new construction on property near
2] After historic flooding, Fargo enacted Ordinance 4818 in
May 2012 relating to construction on property near the Red,
Wild Rice, and Sheyenne Rivers. According to the affidavit of
Fargo's city engineer, Fargo enacted Ordinance 4818 to
"strictly limit, or entirely prevent, new construction
within a specified distance from all river banks and drains
to protect the health and safety of its citizens, protect
private property and protect City infrastructure from
floodwaters, slumping and the unstable river bank soils of
the Red River Valley." The ordinance establishes two
setback areas located a certain distance from a river's
center line: (1) the Minimal Disturbance Zone Setback
("MDZS"), and (2) Limited Disturbance Zone Setback
("LDZS"). The setback areas apply to all lands
along the Red, Wild Rice, and Sheyenne Rivers. With limited
exceptions, construction is generally prohibited within the
3] The ordinance creates a distinction between platted and
unplatted property regarding the ordinance's exceptions
to the prohibition on construction. Platted property has been
subdivided into blocks and lots. Unplatted property has not
been subdivided. Owners of vacant property platted before the
ordinance's effective date may apply for a waiver from
Fargo's city commission. The granting of a waiver allows
the property owner to construct new buildings or structures
within the setback areas. Owners of unplatted property may
not apply for a waiver allowing construction of new buildings
within the setback areas.
4] Edward and Lavonna Ferguson own approximately 6 acres of
unplatted property adjacent to the Sheyenne River that is
partially within the ordinance's setback areas. Fergusons
began occupying the property in 1998 and Fargo annexed the
property in 2002. After Ordinance 4818 went into effect,
Fergusons requested a waiver seeking to develop their
property into multiple single-family duplexes. The Fargo city
commission denied Fergusons' request because the property
is not platted.
5] The Fergusons brought a declaratory judgment and inverse
condemnation action against Fargo, seeking a declaration that
Ordinance 4818 violates the equal protection clauses of the
North Dakota and United States Constitutions because it
treats platted and unplatted property differently. In
response Fargo argued it had a legitimate interest in
treating platted and unplatted property differently to limit
or prevent new construction on river property subject to
flooding. After a hearing on the parties' competing
summary judgment motions, the district court concluded that
the ordinance treated platted and unplatted property
differently and that "[p]latting does not change the
character of the land at issue" and "[w]hether land
is platted or unplatted does not make it more or less likely
to be subject to slumping or flooding." The court
concluded the ordinance's distinction between platted and
unplatted property was not rationally related to Fargo's
interest in preventing new construction on river bank lands
subject to soil instability or flooding and the management of
waiver requests. The court declared the ordinance
unconstitutional as applied to Fergusons and others similarly
situated. The court also dismissed Fergusons' inverse
condemnation claim without prejudice.
6] Fargo argues Ordinance 4818 is constitutional under the
equal protection clauses of N.D. Const. art. I, § 21 and
U.S. Const. amend. XIV, § 1, because the distinction
between platted and unplatted property is rationally related
to a legitimate government interest in limiting new
construction on property subject to flooding.
7] We discussed the applicable standard of review for summary
judgment in McCrothers Corp. v. City of Mandan, 2007
ND 28, ¶ 7, 728 N.W.2d 124:
Summary judgment is a procedural device for the prompt
resolution of a controversy on the merits without trial if
there are no genuine 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. Whether the
district court properly granted summary judgment is a
question of law that we review de novo on the record. Summary
judgment is appropriate if the issues in the case are such
that the resolution of any factual disputes will not alter
8] Neither party argues there are disputed issues of material
fact; the sole issue to be resolved involves the
constitutionality of Ordinance 4818. In considering the
constitutionality of a statute, this Court has stated:
Whether a statute is unconstitutional is a question of law,
which is fully reviewable on appeal. Best Products Co.,
Inc. v. Spaeth, 461 N.W.2d 91, 96 (N.D. 1990).
"'All regularly enacted statutes carry a strong
presumption of constitutionality, which is conclusive unless
the party challenging the statute clearly demonstrates that
it contravenes the state or federal constitution.'"
In re P.F., 2008 ND 37, ¶ 7, 744 N.W.2d 724
(quoting Olson v. Bismarck Parks and Recreation
Dist., 2002 ND 61, ¶ 11, 642 N.W.2d 864).
"'The justice, wisdom, necessity, utility and
expediency of legislation are questions for legislative, and
not for judicial determination.'" Manikowske v.
North Dakota Workmen's Comp. Bureau, 338 N.W.2d 823,
825 (N.D. 1983) (quoting Asbury Hosp. v. Cass
County, 72 N.D. 359, 7 N.W.2d 438, 442 Syllabus ¶
11 (1943)). This Court exercises the power to declare
legislation unconstitutional with great restraint. MCI
Telecomms. Corp. v. Heitkamp, 523 N.W.2d 548, 552 (N.D.
Teigen v. State, 2008 ND 88, ¶ 7, 749 N.W.2d
505. Those principles apply to municipal ordinances.
See Olson v. City of West Fargo, 305 N.W.2d 821, ...