S&B Dickinson Apartments I, LLC and Dickinson Properties, LLC, Appellants
Stark County Board of Commissioners, Appellee
from the District Court of Stark County, Southwest Judicial
District, the Honorable Dann E. Greenwood, Judge.
Christopher A. Stafford (argued), Minneapolis, MN, Michael S.
Raum (appeared) and Elizabeth L. Alvine (on brief), Bismarck,
ND, for appellants.
Mitchell D. Armstrong (argued) and Brian Schmidt (appeared),
Special Assistant State's Attorneys, Bismarck, ND, for
1] S&B Dickinson Apartments I, LLC, and Dickinson
Properties, LLC, appeal a judgment affirming the Stark County
Board of Commissioners' denial of their requests for an
abatement of property taxes for the year 2016. We conclude
the district court did not have jurisdiction and the appeals
should have been dismissed because the statutory requirements
for perfecting an appeal were not followed. We reverse and
remand for entry of judgment dismissing the appeals.
2] S&B owns the Sierra Ridge apartment complex in
Dickinson. Dickinson Properties owns the Microtel Inn &
Suites in Dickinson. In January 2017 S&B and Dickinson
Properties applied for an abatement or refund of their 2016
property taxes relating to the subject properties. The
parties argued that changes in the oil and gas industry
reduced demand for housing and lodging properties. The Sierra
Ridge apartments were assessed at $36, 451, 720.00 and
S&B submitted an appraisal valuing the apartment complex
at $16, 550, 000.00. The Microtel was assessed at $5, 305,
000.00 and Dickinson Properties submitted evidence showing
its value was $2, 000, 000.00.
3] On March 20, 2017 the Board denied the requests for
abatement. S&B and Dickinson Properties each appealed the
Board's decision to the district court on March 23, 2017.
S&B and Dickinson Properties also served a notice of
appeal on the state tax commissioner by registered mail.
Proof of service on the tax commissioner was not in the
record on appeal; however, the parties do not dispute the
notice was served more than thirty days after the Board's
decision. After their appeals were consolidated, the court
affirmed the Board's decision denying the requests for
4] The Board argues the district court lacked jurisdiction
and the appeals should have been dismissed because S&B
and Dickinson Properties failed to timely serve a notice of
appeal on the state tax commissioner as required under
N.D.C.C. § 11-11-41.
5] "The right to appeal is governed solely by
statute." Meier v. N.D. Dep't of Human
Serv., 2012 ND 134, ¶ 4, 818 N.W.2d 774. "The
statutory requirements for filing and serving a notice of
appeal from an [administrative] agency order are
jurisdictional." Altru Specialty Serv., Inc. v. N.D.
Dep't of Human Serv., 2017 ND 270, ¶ 8, 903
N.W.2d 721; see also Reliable Inc. v. Stutsman Cty.
Comm'n, 409 N.W.2d 632, 634 (N.D. 1987) ("in
order for a court to have subject matter jurisdiction over an
appeal, the appellant must meet the statutory requirements
for perfecting the appeal"). Subject matter jurisdiction
cannot be waived and can be raised sua sponte at any time in
a proceeding. Garaas v. Cass Cty. Joint Water Res.
Dist., 2016 ND 148, ¶ 4, 883 N.W.2d 436.
6] "An appeal may be taken to the district court from
any decision of the board of county commissioners by any
aggrieved person." N.D.C.C. § 11-11-39. The
procedure for an appeal from a board of county commissioners
is governed by N.D.C.C. § 28-34-01. Section 28-34-01(1),
N.D.C.C., relates to filing the notice of appeal:
"The notice of appeal must be filed with the clerk of
the court within thirty days after the decision of the local
governing body. A copy of the notice of appeal must be served
on the local governing body in the manner provided by rule 4
of the North Dakota Rules of Civil Procedure."
7] If the appeal involves tax matters, N.D.C.C. §
11-11-41 requires a notice of appeal to be served on the
state tax commissioner: "If the decision from which an
appeal is taken relates to tax refunds, tax abatements, or
other matters relating to taxation, in addition to the notice
of appeal required by section 28-34-01, a notice ...