IRET Properties LP, IRET Williston Garden Apartments LLC, IRET WRH 1 LLC, RAH Property Owner LLC, IP S&B Williston Properties I LLC, S & B Williston Apartments II LLC C, UC Property Owner LLC, and WRH Holding LLC, Appellants
Williams County Board of Commissioners, Appellee
Motion to Dismiss Appeal from the District Court of Williams
County, Northwest Judicial District, the Honorable Joshua B.
Rustad, Judge, Vacated and Dismissed.
Michael S. Raum and Elizabeth L. Alvine, Fargo, ND, and
Christopher A. Stafford, Minneapolis, MN, for appellants; on
S. Prout, Special Assistant States Attorney, Williston, ND,
for appellee; on brief.
1] The Williams County Board of Commissioners moves for an
order remanding this matter to the district court with
direction that the appeal be dismissed for lack of subject
matter jurisdiction. We grant the Board's motion.
2] On February 21, 2017, the Board heard and considered tax
abatement applications submitted by the appellants-taxpayers
for various properties located in Williston. Also on February
21, 2017, the Board denied the abatement applications. On
March 23, 2017, the taxpayers filed notices of appeal with
the district court. On March 28, 2017, the taxpayers served
their notices of appeal on Board Chairman David Montgomery.
On December 13, 2017, the district court affirmed the
Board's decisions. On appeal to this Court the Board
argues the taxpayers' notice of appeal was untimely, the
courts are without subject matter jurisdiction, and the
appeal should be dismissed.
3] "When jurisdictional facts are not disputed, the
issue of subject matter jurisdiction is a question of law,
which we review de novo." Garaas v. Cass Cnty. Joint
Water Res. Dist., 2016 ND 148, ¶ 6, 883 N.W.2d 436
(internal citation and quotation marks omitted). In
Garaas, this Court recognized N.D.C.C. §
28-34-01 contains two requirements before an appeal from the
decision of a local governing body is perfected:
"Section 28-34-01(1), N.D.C.C., by its plain language
requires a notice of appeal to be filed with the clerk of
court within 30 days of the decision of the local governing
body.... However, N.D.C.C. § 28-34-01(1), also requires
a copy of the notice of appeal be served on the local
governing body 'in the manner provided by rule 4 of the
North Dakota Rules of Civil Procedure.' N.D.C.C. §
Garaas, at ¶ 9. In Garaas we concluded
that, in order for the judicial branch to obtain subject
matter jurisdiction to review a decision of a local unit of
government, the appellant must file the notice of appeal with
the district court within 30 days of the local governing
body's decision and serve the notice of appeal on the
local governing body within 30 days of the decision being
appealed. Id. See also S&B Dickinson Apts. I v.
Stark Cnty. Bd. of Comm'rs, 2018 ND 158, ¶ 22, 914
N.W.2d 503 (within 30 days of order taxpayer must file notice
of appeal with the district court, and serve the notice on
the Board and State Tax Commissioner).
4] Here, the Board's decision denying the taxpayers'
applications was made on February 21, 2017. Based on the
30-day requirement, the taxpayers had until March 23, 2017,
to file and serve their notices of appeal. The taxpayers
filed their notices of appeal by the March 23 deadline.
However, they did not serve their notices of appeal on the
Board until March 28, 2017, which was outside the time
limitation imposed by N.D.C.C. § 28-34-01. Thus, the
taxpayers did not perfect their appeal and the courts lack
subject matter jurisdiction to hear and consider the merits
of the taxpayers' appeal.
5] Under the North Dakota Rules of Appellate Procedure, a
motion to dismiss an appeal may be brought if the appeal is
not authorized by law. See N.D.R.App.P., Rule 27(f).
Where subject matter jurisdiction for an appeal is lacking,
the appeal is not authorized. Mann v. ND Tax
Comm'r, 2005 ND 36, ¶ 7, 692 N.W.2d 490
("This Court must have jurisdiction before we can
consider the merits of an appeal." (quoting Dietz v.
Kautzman, 2004 ND 164, ¶ 6, 686 N.W.2d 110).);
Schaan v. Magic City Beverage Co., 2000 ND 71,
¶¶ 1, 10, 609 N.W.2d 82 (dismissing appeal on
Schaan's motion to dismiss for lack of jurisdiction where
appellant did not file notice of appeal to appellate court in
a timely manner). The Board made a motion to dismiss and,
based on the undisputed timing of service of the notices of
appeal on the Board Chairman, we grant the motion.
6] We vacate the district court's order dated December
13, 2017, and ...