Agenda - Planning Commission - 02/02/2017

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December 10, 2016 I Volume 10 I Issue 23 Zoning Bulletin Subsequently, the Fergusons brought a declaratory judgment action against Fargo. The Fergusons asked the court to declare that the Ordinance violated the equal protection clauses of the North Dakota Constitution (N.D. Const. art. I, § 21) and the United States Constitution (U.S. Const. amend. XIV, § 1) because it treated platted and unplatted property differently. The City, on the other hand, argued that its distinction between platted and unplatted property was rationally related to a legitimate government interest in limiting new construction on property subject to flooding, and was therefore not in viola- tion of equal protection. The district court agreed with the Fergusons. It found that the Ordinance treated platted and unplatted property differently. The court noted that "[p]lat- ting does not change the character of the land at issue" and "[w]hether land is platted or unplatted does not make it more or less likely to be subject to slump- ing or flooding." The court concluded that the Ordinance's distinction between platted and unplatted property was therefore not rationally related to the City's interest in preventing new construction on river bank lands subject to soil in- stability or flooding and the management of waiver requests. The court declared the Ordinance unconstitutional as applied to the Fergusons and oth- ers similarly situated. The City appealed. DECISION: Judgment of district court reversed. Agreeing with the City, the Supreme Court of North Dakota held that the Ordinance, in making a distinction between platted and unplatted property, did not violate equal protection because it was rationally related to the legitimate government interest of limiting new construction on property subject to flooding. In so holding, the court explained that "[t]he equal protection clause does not forbid classifications, but prevents `government decisionmakers from treating differently persons who are in all relevant respects alike.' " The court further explained that when, as here with the Ordinance, "legislation regulates economic or social matters without using suspect classifications or involving fundamental rights," a rational basis test is employed when determining the constitutionality of the legislation. Under the rational basis test, a governmen- tal classification (such as the distinction of platted and unplatted property here) will be sustained "unless it is arbitrary and bears no rational relationship to a legitimate governmental interest." Here, the court found that the City's interest in distinguishing platted from unplatted property under the Ordinance was to "reduce damage to private property and city infrastructure from potential flooding." The court recognized that limiting new construction near river property was a way to achieve that governmental interest. The court found that the City had distinguished platted from unplatted property near rivers because there were "a finite number of vacant platted properties, and developers and owners h[ad] shown an intent to build in the future [and invested considerable time and money] by completing the platting process or purchasing a platted property." The court concluded that the City's distinction between platted and unplatted property under the Ordinance limited the amount of possible waiver applications under the Ordinance to a finite number and accomplished the City's goal of limiting new 8 © 2016 Thomson Reuters