Ferguson v. City of Fargo

CROTHERS, Justice,

dissenting.

[¶ 18] I respectfully dissent.

[¶ 19] Fargo and the majority justify disparate treatment between platted and unplatted property based on what they articulate as the city’s “legitimate interest in reducing damage to private property and city infrastructure from potential flooding” and “legitimate government interest of limiting new construction on property subject to flooding.” Majority opinion, ¶¶ 14 and 15. These justifications oversimplify the issue and mask the real problem.

[¶ 20] Platted property owners can seek waiver of building restrictions within the setback areas. Thus, building can occur in the protected zones notwithstanding the restrictions. But, after adoption of Ordinance 4818 in May of 2012, owners of unplatted property in Fargo and outside of Fargo but within Fargo’s extraterritorial zoning jurisdiction do not enjoy the same right. Denial of the right is simply because their land was not platted before May of 2012. As a result, they have no ability to ever request a waiver from the building restrictions. After May of 2012 owners of unplatted property can plat their property but even if platted cannot apply for a waiver. The plain result is that unplatted property is frozen in time. But platted property is not.

[¶ 21] The differing treatment of adjacent landowners is based solely on whether the land was platted in 2012. This requires consideration whether platting land before May of 2012 advances the governmental interests in reducing flooding and damage to property. Examination shows that it does not.

[¶ 22] The majority concludes, “Fargo’s stated primary purpose, in enacting Ordinance 4818 was to limit or prevent new construction within setback areas near river banks and drains to protect its citizens, protect private property, and protect city infrastructure from Red River. Valley floodwaters.” Majority opinion, ¶ 11. Yet the only protection not subject to waiver is for unplatted lands. Platted lands within setback areas can be developed upon receipt of a waiver.

[¶23] The record shows building continues on the platted land. While the Fer-gusons were barred from applying for a waiver, in 2012 four of their neighbors were granted waivers to build. All of those waivers were within 10 blocks of the Fergusons. All of the waiver properties are on the same street as the Fergusons. All of the waiver properties border the Sheyenne River, just like the Fergusons. The only difference is that the waiver properties happened to be within a platted area before 2012 and the Ferguson’s property is not.

[¶ 24] The rationale advanced by Fargo for its distinction included the following:

“Throughout the process of creating the river setback ordinance, a distinction was made between platted lots and un-platted parcels. This distinction was made to recognize that platted lots had completed the platting process. Owners/developers had invested considerable time and money to obtain ‘platted’ status for their lots through the development process before the River Setback Ordinance was enacted.”

[¶25] While the owner/developer’s investment of time and money may correlate to Fargo’s potential liability for halting all development of platted land, I respectfully submit it provides no rational basis for permitting waivers in platted land and pre*565venting waivers in land that was unplatted in May of 2012.

[IT 26] Fargo also argues the platting process advanced the no-waiver provision for unplatted land:

“Previously subdivided (platted) lands had been through measurable, affirmative steps in the process of development. City staff had already reviewed applications for potential development to assure that utilities, roadways, emergency services and flood plain management requirements could be satisfied.”

[¶ 27] I again respectfully submit that the steps related to plat approval recited above bear no. relationship to whether a particular property is suitable for building or whether a waiver might subsequently be granted for building within the setback area. But even assuming this provides a rational basis for not allowing waivers in unplatted land, it provides absolutely no basis for denying currently unplatted landowners the ability to apply for a waiver if their- property would be platted after May of 2012.

[¶ 28] I would affirm the judgment.
[¶ 29] Daniel J. Crothers