Paving District 476 Group, SPCM, LLC, Schuler Repair, Feland Brothers Properties, LLC, Hudye Group LP, and Northern Plains Apartments, LLC, Plaintiffs and Appellants
City of Minot, Defendant and Appellee
from the District Court of Ward County, North Central
Judicial District, the Honorable Todd L. Cresap, Judge.
M. Boughey, Bismarck, N.D., for plaintiffs and appellants.
Bradley Wiederholt (argued), Randall J. Bakke (on brief), and
Wade A. Davison (appeared), Bismarck, N.D., for defendant and
1] Paving District 476 Group; SPCM, LLC; Schuler Repair;
Feland Brothers Properties, LLC; Hudye Group LP; and Northern
Plains Apartments, LLC (collectively "landowners")
appeal from an order dismissing their complaint against the
City of Minot. We affirm, concluding the City's alleged
failure to give the landowners notice of the full extent of
the proposed improvements did not violate the landowners'
constitutional due process rights and the landowners'
action to invalidate the assessments for failure to follow
statutory procedural requirements is barred by N.D.C.C.
2] The City received a petition to make improvements to 36th
Avenue Northeast. An engineer's report was completed. The
cover sheet of the report stated the project "would
reconstruct 36th Ave NE from 2nd St NE to 10th St NE to a two
lane urban roadway." The report stated, "The
proposed improvements will include the construction of an
urban street section on 36th Ave NE between 2nd St NE and
13th St NE and new lighting west of 2nd St NE to
Broadway." The report included the estimated cost of the
project, including the work between 10th Street and 13th
3] On October 1, 2012, the City Council approved Resolution
No. 3109, declaring work necessary for an improvement in
Paving District No. 476. The resolution stated the owners of
the property liable to be specially assessed for the
improvements would have thirty days to file written protests
and a hearing would be held to hear protests.
4] In a letter dated October 5, 2012, the City informed
property owners about the creation of the paving district and
the proposed street improvements to install "an urban
street section from 2nd St to 10th St consisting of storm
sewer, curb and gutter, asphalt paving, and street
lighting." The letter advised property owners that the
costs for the project would be assessed to each property
owner proportionate to and not exceeding the benefits they
derive from the improvements. The letter also advised
property owners that they had thirty days to protest the
improvements and a public hearing would be held on December
5] The resolution, including a map of the special assessment
district, was published in the Minot Daily News on October 6
and 12, 2012. The published resolution stated the
Engineer's Report with an estimate of the probable cost
of the work was on file and open for public inspection in the
City Auditor's office. On December 3, 2012, a public
hearing on the resolution was held. On November 4, 2013, the
City Council adopted Resolution 3250 awarding the sale of
warrants to finance the improvements.
6] In June 2015, the City sent property owners in the special
assessment district letters informing them of the amount of
the proposed assessment to their properties and that a public
hearing would be held. On June 7, 2015, a "Notice of
Costs, Benefits, Assessments and Date of Public Hearing for
Paving District" was published in the Minot Daily News.
The notice included maps of the special assessment district
and the amount of the proposed assessment for each property.
On June 22, 2015, the special assessment commission held a
7] At a July 6, 2016, meeting, the City Council approved the
special assessment commission report for the paving district.
Several property owners attended the meeting and spoke before
the council, raising concerns about a change in the area
being improved and about paying for improvements to
properties outside city limits. The minutes from the meeting
indicate the city engineer explained the district was created
and always indicated it was going to 13th Street Northeast,
but a mistake was made when notices were sent out stating
improvements went to 10th Street Northeast; the scope of the
project did not increase; the cost estimates included
improvements to 13th Street Northeast; and notices were not
resent with the corrected information because the costs
remained the same.
8] On October 28, 2015, the landowners sued the City, seeking
a judgment declaring the assessments invalid and the
assessments be held in abeyance until they did not include
the area between 10th and 13th Streets and enjoining the City
from certifying future assessments. They claimed the
assessments are invalid because they did not receive proper
notice, the City violated their due process rights by
expanding the improvements beyond the original parameters and
failing to give notice the improvements included the expanded
area, and they were assessed for improvements between 10th
Street and 13th Street which do not benefit their properties
and constitute a gift to third parties.
9] The City moved to dismiss the complaint, arguing the
landowners failed to meet jurisdictional time limitations
under N.D.C.C. §§&nbs p;40-22-43, 40-26-01, and
28-34-01 and the landowner's constitutional claims are
barred by Serenko v. City of Wilton, 1999 ND 88, 593
10] After a hearing, the district court granted summary
judgment and dismissed the complaint. The court concluded the
landowners were barred from bringing the action because they
failed to appeal or commence the action within the thirty-day
time limit under N.D.C.C. § 40-22-43 and any statutory