ND Supreme Court Holds Ordinance Did Not Violate Equal Protection in Distinction Between Platted and Unplatted Property

Owners of unplatted property adjacent to river brought a declaratory judgment and inverse condemnation action against the City of Fargo, seeking a declaration that city ordinance relating to construction on property located near rivers violated equal protection under state and federal constitutions because it treated platted and unplatted property differently. The District Court declared the ordinance unconstitutional and dismissed owners’ inverse condemnation claim without prejudice. The City of Fargo appealed under the equal protection clauses of the North Dakota and United States Constitutions.

Fargo argued Ordinance 4818 was constitutional under the equal protection clauses of N.D. Const. art. I, § 21 and U.S. Const. amend. XIV, § 1, because the distinction between platted and unplatted property was rationally related to a legitimate government interest in limiting new construction on property subject to flooding. Here, the waiver process acknowledged the owner’s investment in the development process for platted lots and provides the possibility, if certain criteria were met, for construction within the setback. Since the numbers and dimensions of river lots that might result from the eventual subdivision of un-platted parcels were presently unknowable, this distinction between platted and un-platted lands was meant to address that uncertainty by limiting construction on those undetermined lots. Fargo’s distinction between platted and unplatted property bore a rational relationship to a legitimate government interest of limiting new construction on property subject to flooding. Moreover, the court held Ordinance 4818 and its distinction between platted and unplatted property satisfied the rational basis standard of scrutiny, and did not violate N.D. Const. art. I, § 21 or U.S. Const. amend. XIV, § 1. Accordingly, the court reversed, holding the ordinance’s distinction between platted and unplatted property was rationally related to Fargo’s interest in limiting new construction on property near rivers.

Feguson v City of Fargo, 2016 WL 5939664 (ND 10/4/16)