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S&B Dickinson Apartments I, LLC v. Stark County Board of Commissioners

Supreme Court of North Dakota

July 11, 2018

S&B Dickinson Apartments I, LLC and Dickinson Properties, LLC, Appellants
v.
Stark County Board of Commissioners, Appellee

          Appeal 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 appellees.

          OPINION

          Crothers, Justice.

         [¶ 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.

         I

         [¶ 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 abatement.

         II

         [¶ 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 ...


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