Petition for Writ of Certiorari — John Pietsch, et al., Petitioners v. Ward County, North Dakota, et al.

App. 1

United States Court of Appeals

for the Eighth Circuit

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No. 20-1728

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John Pietsch; Arlan Irwin, as Trustee for the

Albert and Grace Irwin Trust; Ward County

Farm Bureau, a North Dakota Non-Profit

Corporation; Ward County Farmer’s Union,

a North Dakota Non-Profit Corporation

Plaintiffs - Appellants

v.

Ward County, a Political Subdivision of the

State of North Dakota; The Board of County

Commissioners for Ward County, North Dakota

Defendants - Appellees

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Appeal from United States District Court

for the District of North Dakota - Western

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Submitted: February 18, 2021

Filed: March 16, 2021

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Before LOKEN, BENTON, and KELLY, Circuit Judges.

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App. 2

BENTON, Circuit Judge.

Plaintiffs claim, under 42 U.S.C. § 1983, that Ward

County’s right-of-way dedication ordinance violates

their procedural due process rights. The district court1

dismissed their claims. Pietsch v. Ward Cty., 446

F. Supp. 3d 513 (D.N.D. 2020). Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Plaintiffs are two landowners (John M. Pietsch

and trustee Arlan L. Irwin), the Ward County Farm

Bureau, and the County Farmer’s Union.2 They seek to

enjoin the requirement in the County’s dedication ordinance that plats proposed along roads dedicate to

the public sufficient rights-of-way to meet road width

requirements. See Exhibits A & B, Memorandum

in Support of Summary Judgment (No. 18-0023,

D.N.D. May 1, 2019).

The landowners sought approval for plats without

the required dedications. They applied for variances.

The County Board of Commissioners considers variances through paper application or during a zoning

board meeting. Variances may be approved based on

“extraordinary hardship to the subdivider, because of

1

Honorable Peter D. Welte, United States District Court

Judge for the District of North Dakota.

2

Although the district court found standing for the Farm Bureau and Farmer’s Union, 446 F. Supp. 3d at 528-30, this court

need not address that issue in light of the disposition of this opinion.

App. 3

unusual topography, or other such conditions [that]

would result in retarding the achievement of the objectives of these [zoning] regulations.” Variance decisions

are recorded and stated in minutes of the County Commission.

Plaintiffs argue that the variance procedure violates

the Due Process clauses of the Fifth and Fourteenth

Amendments. (Plaintiffs do not raise a substantive due

process claim on appeal.) The district court granted the

County’s motion for summary judgment. Pietsch, 446

F. Supp. 3d at 541.

“This court reviews de novo a grant of summary

judgment.” Torgerson v. City of Rochester, 643 F.3d

1031, 1042 (8th Cir. 2011) (en banc). “Summary judgment is proper ‘if the pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of

law.’ ” Id., citing Fed. R. Civ. P. 56(c)(2).

II.

Plaintiffs’ arguments all assert that two Supreme

Court decisions—Dolan v. City of Tigard, 512 U.S. 374

(1994) and Nollan v. California Coastal Commission,

483 U.S. 825 (1987)—establish the procedural floor for

ordinances about, and review of, zoning variances.

Dolan and Nollan both interpreted the Takings

clause. See Koontz v. St. Johns River Water Mgmt.

Dist., 570 U.S. 595, 604 (2013). Plaintiffs did not plead

App. 4

any Takings claim before the district court: “the Plaintiffs explicitly disavow that their amended complaint

asserts any takings claims.” Pietsch, 446 F. Supp. 3d

at 536.

Plaintiffs’ due process and unconstitutional conditions claims are an impermissible attempt to recast a

Takings claim. See Lingle v. Chevron U.S.A., Inc.,

544 U.S. 528, 540, 546-48 (2005) (holding that a substantive due process inquiry has “no proper place” in

Takings doctrine, while distinguishing Nollan and Dolan as a special application of unconstitutional conditions doctrine for Takings). See also Reno v. Flores,

507 U.S. 292, 308 (1993) (rejecting substantive regulatory challenge rephrased as procedural due process).

The Court affirmed this principle saying, “the analogy

from the due process context to the takings context is

strained.” Knick v. Township of Scott, 139 S. Ct.

2162, 2174, 2176 (2019) (also observing: “As long as an

adequate provision for obtaining just compensation exists, there is no basis to enjoin government action effecting a taking”).

Plaintiffs claim the County’s dedication rules

could result in an exaction, which would require consideration of nexus and proportionality. But this conflates takings and due process law. “Under Nollan and

Dolan the government may choose whether and how a

permit applicant is required to mitigate the impacts of

a proposed development, but it may not leverage its legitimate interest in mitigation to pursue governmental

ends that lack an essential nexus and rough proportionality to those impacts.” Koontz, 570 U.S. at 606.

App. 5

Koontz authorizes a Takings claim, not a due process

claim: “Nollan and Dolan ‘involve a special application’

of [unconstitutional conditions] doctrine that protects

the Fifth Amendment right to just compensation for

property the government takes when owners apply for

land-use permits.” Id. at 604. Plaintiffs thus have a

remedy for unconstitutional exactions under the Takings clause. See id. at 605; Pietsch, 446 F. Supp. 3d at

520, 522, 538 (discussing alternative remedies). They

cannot claim a redundant remedy under the due process clause. Crown Point Dev., Inc. v. City of Sun

Valley, 506 F.3d 851, 855 (9th Cir. 2007) (“[T]he Fifth

Amendment would preclude a due process challenge

only if the alleged conduct is actually covered by the

Takings Clause.”).

The remaining issues are whether the challenged

zoning ordinance was truly irrational and whether the

County provided sufficient procedural due process.

“Due process claims involving local land use decisions

must demonstrate the government action complained

of is truly irrational, that is something more than arbitrary, capricious, or in violation of state law.” Koscielski v. City of Minneapolis, 435 F.3d 898, 902 (8th

Cir. 2006) (cleaned up). The Court implicitly approved

this test for due process challenges to zoning ordinances. See Lingle, 544 U.S. at 542 (“An inquiry of this

nature has some logic in the context of a due process

challenge, for a regulation that fails to serve any legitimate governmental objective may be so arbitrary

or irrational that it runs afoul of the Due Process

Clause.”), 548-49 (Kennedy, J., concurring) (observing

App. 6

that arbitrariness due process review survives Lingle).

The ordinance here promotes the government’s interest in providing public roads and was not truly irrational. Pietsch, 446 F. Supp. 3d at 538, 540.

“In the zoning context, assuming a landowner has

a protectible property interest, procedural due process

is afforded when the landowner has notice of the proposed government action and an opportunity to be

heard.” Anderson v. Douglas Cty., 4 F.3d 574, 578

(8th Cir. 1993). See generally Bituminous Materials,

Inc. v. Rice Cty., 126 F.3d 1068, 1070 (8th Cir. 1997)

(describing a legitimate claim to entitlement, rather

than a “mere subjective expectancy” as “a protected

property interest”). Since both Peitsch and Irwin received individualized notice and an opportunity to be

heard on their variance applications, the County provided sufficient notice and opportunity for a hearing

about their proposed uses. See Anderson, 4 F.3d at

578; Pietsch, 446 F. Supp. 3d at 523-24, 538 (summarizing plaintiffs’ notice and opportunity to be heard).

See generally Mathews v. Eldridge, 424 U.S. 319, 33334 (1976).

The district court properly granted summary judgment for defendants.

*******

The judgment is affirmed.

App. 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

)

)

)

)

)

)

)

) MEMORANDUM

) AND ORDER

) (Filed Mar. 10, 2020)

Plaintiffs,

) Case No.

vs.

) 1:18-cv-00023

)

Ward County, a Political

)

Subdivision of the State of

North Dakota; and the Board )

of County Commissioners for )

Ward County, North Dakota, )

)

Defendants.

)

John Pietsch; Arlan Irwin

as Trustee for the Albert

and Grace Irwin Trust;

Ward County Farm Bureau,

a North Dakota Non-Profit

Corporation; and Ward

County Farmers Union,

a North Dakota Non-Profit

Corporation,

I.

INTRODUCTION

In exchange for approval of plat applications on

property abutting section lines and existing roadways,

a Ward County, North Dakota (“Ward County” or the

“County”), zoning ordinance mandates that landowners dedicate a predetermined fee-title right of way to

the County. See Ward County, N.D., Zoning Ordinance

App. 8

ch. 3, art. 24, § 4(A)(12).1 The ordinance’s apparent

purpose is to facilitate road construction and maintenance, but the dedication requirement applies regardless of whether the County demonstrates a need for the

right of way for future road projects. As a compounding

factor, the exclusive method to avoid dedication forces

a landowner to apply for a variance and prove a hardship. And even if a variance is requested, the County

need not consider the applicant’s proposed use of the

property or any attendant financial harm resulting

from the dedication. At its core, the ordinance appears

to imbue Ward County with the authority to take for

free what it would otherwise have to pay for through

eminent domain. In that sense, the ordinance seems to

be an affront to the Takings Clause of the United

States Constitution.

But this is not a takings case. Instead, the Plaintiffs have chosen to wield two alternative legal theories—substantive and procedural due process—to

vindicate their claims. In a single-count amended complaint invoking 42 U.S.C. § 1983, the Plaintiffs lodge

both facial and as-applied constitutional challenges

against the dedication ordinance. Doc. No. 30. They

seek nominal damages and, much more significantly,

an order declaring the ordinance unconstitutional,

along with an accompanying permanent injunction

1

The Court refers to § 4(A)(12) throughout as the “dedication

ordinance,” the “ordinance,” or the “dedication requirement” collectively with related provisions located at Doc. Nos. 43-1 and

43-2. In citations, the Court abbreviates “Ward County, N.D.,

Zoning Ordinance” to “W.C.Z.O.”

App. 9

barring further enforcement. Now pending are cross

motions for summary judgment. Doc. Nos. 40, 42. Because due process is a square peg in a round hole here,

the ordinance escapes unscathed.

II.

BACKGROUND

Despite the voluminous record, the facts present

as straightforward and uncontested. Prior to addressing the Plaintiffs’ claims, a summary of the dedication

ordinance is necessary. A brief introduction of the parties and this case’s procedural history follows.

A. The Dedication Ordinance

Outside of incorporated cities, North Dakota has

designated 33-foot right-of-way easements for public

roads on each side of every section line (for a total of

66 feet) since before statehood. See N.D. Cent. Code

§ 24-07-03. Counties, as political subdivisions of the

state, lack independent authority to construct and

maintain roadways unless they create a home-rule

charter. See Doc. No. 30, ¶ 18. Ward County has

adopted such a charter, so it may “[p]rovide for zoning,

planning, and subdivision of public or private property

within the county limits but outside the zoning authority of any city or organized township.” N.D. Cent. Code

§ 11-09.1-05. As a natural extension, the County is permitted to provide for and regulate a county road system, as well as “acquire, hold, operate, and dispose of

property within or without the county limits, and exercise the right of eminent domain” for that road system.

App. 10

Ward County, N.D., Home Rule Charter art. 2(a), (f ).

No one quarrels with the statutory easement mandate

or the County’s usual eminent domain procedures.

Equally uncontroversial is the North Dakota Century Code provision that spells out the procedure for

approval of a subdivision plat. The basic building block

says, “No subdivision . . . shall be made . . . except in

accordance with a plat as finally approved by the board

of county commissioners.” N.D. Cent. Code § 11-33.212. Before a county commission can approve a plat,

though, the county’s planning commission and the relevant township get an opportunity to weigh in on the

proposal. See id. These recommendations are nonbinding.

Once a plat application works its way up the ladder for final approval, the board of county commissioners is required to consider certain factors. If an

applicant satisfies the statutory criteria, the commission must approve the plat—if not, mandatory disapproval follows:

In determining whether a plat shall be finally

approved or disapproved, the board of county

commissioners shall inquire into the public

use and interest proposed to be served by the

subdivision. . . . If it finds that the proposed

plat makes appropriate provisions for the

public health, safety, and general welfare and

for such open spaces, drainage ways, streets,

alleys, other public ways, water supplies,

sanitary wastes, parks, playgrounds, sites

for schools and school grounds, and that the

App. 11

public use and interest will be served by the

platting of such subdivision, and that the proposed plat complies with a county resolution,

if any, regulating or restricting the subdivision of land, to the extent that such resolution

does not conflict with the provisions of this

section, such plat shall be finally approved

with such conditions as the board of county

commissioners may deem necessary. If it finds

that the proposed plat does not make appropriate provisions, or that the public use and

interest will not be served, or that the proposed plat does not so comply with the aforementioned resolution, then the board of

county commissioners shall disapprove the

proposed plat. . . .

Id. The plat approval statute has one final—and critical—sentence, which states, “Dedication of land to any

public body may be required as a condition of subdivision approval and shall be clearly shown on the final

plat.” Id. The challenged Ward County ordinance does

just that, mandating the dedication of fee-title right of

way along section lines and roadways to the County as

a condition for outlot and subdivision plat approval.

See W.C.Z.O. ch. 3, art. 24, § 4(A)(12). For section lines,

township roads, frontage roads, and rural subdivision

roads, the County requires 40 feet from each side of the

center line (for a total of 80 feet); for county roads, 75

feet from each side (for a total of 150 feet). Id.

The genesis for the expanded dedication requirement came from local engineers and developers informing the County that the 33-foot statutory right of

App. 12

way allotted insufficient space for road construction

projects. Doc. No. 44-5 at 60:11-64:15. Enacted on April

6, 2010 by the Board of County Commissioners for

Ward County (“County Commission”)—unanimously

and with no opposition during the public comment period—the ordinance’s stated purpose largely mirrors

the Century Code’s requirements for plat approval:

In order to provide for the proper arrangement of streets in relation to other existing

and planned streets, and to the master plan of

the City of Minot; to provide for adequate and

convenient open spaces, for recreation, for

light and air; in order to avoid congestion of

population; in order to provide for traffic, for

utilities, for access of fire-fighting apparatus;

in order to provide for and improve the public

health, safety and general welfare of the

County of Ward, the following rules and regulations for the [platting] and subdivision of

zoned land within the County of Ward are

made part of this regulation in accordance

with the laws of the State of North Dakota.

W.C.Z.O. ch. 3, art. 24, § 1; see also Doc. No. 46 (audio

recording of April 6, 2010 County Commission meeting

filed conventionally). The County Commission does not

have to articulate a specific need for right of way when

approving a plat application. Doc. No. 30, ¶ 25. Rather,

the dedication requirement applies as a matter of

course to all subdivision and outlot plats. Doc. No. 445 at 87:10-20.

Because of this uniform approach, Ward County

has essentially stripped itself of any discretion to

App. 13

approve a subdivision or outlot plat that does not comply with the dedication requirement. See Doc. No. 44-5

at 87:10-20. A landowner therefore has a single path

to avoiding dedication—a variance. Doc. No. 44-1 at

20:17-24. The variance process begins with the applicant paying a mandatory $100 application fee. See Doc.

No. 44-9. From there, the application passes to the

Ward County Planning Commission (“Planning Commission”) and the appropriate township for comment.

See Doc. No. 30, ¶¶ 47, 51. The variance request is then

presented to the County Commission for an up or down

vote. Id. ¶ 49. At that point, the County Commission

must determine whether the dedication would impose

a hardship. See W.C.Z.O. ch. 3, art. 24, § 8(A). The burden to prove a hardship rests with the applicant. Doc.

No. 44-6 at 20:12-21. Circumstances constituting a

hardship are limited to physical characteristics of the

property. Doc. No. 44-1 at 20:17-24. Although in practice the County Commission considers the applicant’s

proposed use of the property if included with a variance request, it is not required to, and any motion to

approve a variance must state the hardship on the

property itself. See Doc. Nos. 44-5 at 111:15-112:1; 446 at 19:15-22. Purely economic justifications cannot

support a hardship variance. Doc. No. 44-1 at 20:17-24.

A few ancillary matters are important to mention

at this juncture as well. An appeal process is available

for landowners that receive an adverse decision on a

plat application, permitting review by a North Dakota

App. 14

state district court.2 W.C.Z.O. ch. 3, art. 24, § 13(C).

North Dakota also recognizes actions for inverse condemnation, through which a landowner can compel

compensation for property taken by a government entity. See Lenertz v. City of Minot, 2019 ND 53, ¶ 10, 923

N.W.2d 479. And finally, Ward County’s dedication ordinance has generated some political opposition. The

Planning Commission, for example, voted in May 2017

to recommend eliminating the additional dedication

requirement altogether, leaving only the 33-foot statutory easement requirement in place. Doc. No. 30,

¶¶ 33-34. In a June 2017 vote, the County Commission

rejected the Planning Commission’s recommendation.

Id. ¶ 37. To date, the dedication ordinance remains intact. Id. ¶ 38.

B. Introduction of Parties

The Plaintiffs are two individuals that refrained

from subdividing property because of the dedication ordinance and two non-profit organizations that oppose

the ordinance. The first individual Plaintiff is John

Pietsch (“Pietsch”), a farmer residing in Freedom

Township within Ward County. Doc. No. 44-8 at 11:916. Pietsch sought to carve out an approximately 5.3acre outlot from his existing 143.21-acre property. Doc.

No. 44-7, p. 2. He intended to use the outlot for a farm

2

The parties dispute whether an aggrieved landowner is also

entitled to a separate review hearing before the County Commission prior to pursuing an appeal in state district court. See

W.C.Z.O. ch. 3, art. 24, § 13(A)(1). If so, that distinction is immaterial to the resolution of the pending motions.

App. 15

shop to store machinery. Doc. No. 30, ¶ 45. The proposed outlot would have bordered County Road 18.

Doc. No. 44-8 at 15:16-16:11. The County had previously offered to purchase right of way from Pietsch for

a planned reconstruction of County Road 18, but he declined the offer. Id. at 51:6-52:18. When Pietsch later

submitted his outlot application, the dedication ordinance kicked in, which called for him to dedicate right

of way spanning 75 feet. See Doc. No. 44-10. Had Pietsch complied, the County would have obtained right

of way, at no cost, to nearly one acre of the proposed

5.3-acre outlot. See Doc. No. 44-7. Hoping to avoid that

outcome, Pietsch submitted his proposed outlot plat

with an accompanying variance request and paid the

mandatory $100 application fee. Id.; Doc. No. 44-9.

The Planning Commission initially recommended

approving the variance on April 20, 2017, finding that

any property dedicated in excess of the statutory 33foot right of way would present a hardship for Pietsch.

Doc. No. 44-10, p. 3. The Freedom Township Planning

and Zoning Commission (“Freedom Township Commission”) concurred. Doc. No. 30, ¶ 51. Both entities then

forwarded their nonbinding recommendations to the

County Commission. On May 16, 2017, the County

Commission denied the variance request because the

physical characteristics of Pietsch’s property fell outside the requirements for a hardship. Doc. No. 44-12,

p. 4. The County Commission did not assess the proposed outlot’s transportation-related impact. Doc. No.

30, ¶ 54. Pietsch accordingly halted his plans to develop the outlot. He still desires to create the outlot if

App. 16

he can do so without dedicating the additional right of

way to the County. Doc. No. 44-13. Pietsch neither appealed the County Commission’s denial of his variance

application nor instituted an inverse condemnation action.

Arlan Irwin (“Irwin”) is the second individual

Plaintiff. He serves as a trustee for the Albert and

Grace Irwin Trust (“Trust”). Doc. No. 44-19. The Trust

owns farmland in Freedom Township. Doc. No. 44-15

at 20:5-12. Irwin, as trustee, proposed to create two

outlots, dubbed Outlot 6 and Outlot 7, from the Trust’s

total 150.52-acre property. Doc. No. 44-14, p. 2. While

Irwin had no immediate plans to develop the outlots,

he assumed that Outlot 6, an undeveloped 7.48-acre

plat, and Outlot 7, an 8.72-acre plat that included a

house and some farm-related structures, would be sold

for eventual residential use. Id. at 2-4. The Planning

Commission approved Outlot 7 on January 19, 2017.

Doc. No. 44-16, p. 2. Outlot 6, on the other hand, abutted 191st Avenue Southeast, a minimally improved

gravel road that stretches less than 1 6 miles in total

and dead ends in two private driveways. Doc. No. 30,

¶ 60. Because the County classified 191st Avenue

Southeast as a township road, the ordinance required

the dedication of a 40-foot right of way. Id. ¶ 59. At first,

Irwin included only the 33-foot statutory right of way

in the Trust’s plat application for Outlot 6. Doc. No. 4414, p. 2. The Freedom Township Commission recommended approval of the plat without the additional

App. 17

seven feet of right of way.3 Doc. No. 30, ¶ 65. The Planning Commission, however, rejected Irwin’s application and requested that he either include the 40-foot

right of way in an amended plat application or apply

for a variance. Doc. No. 44-16, p. 2.

Irwin chose the latter route, submitting a variance

application that sought approval of Outlot 6 without

the additional right of way. Doc. No. 44-14. Pietsch,

who also served as chairman of the Freedom Township

Commission at the time, presented the Trust’s variance

application to the Planning Commission on Irwin’s behalf. Doc. No. 44-17, p. 2. Apparently persuaded, the

Planning Commission recommended approval of the

variance on March 16, 2017, deeming the additional

right of way unnecessary because 191st Avenue Southeast was an “extremely low traffic” gravel road not

prone to future development concerns. See id.

Notwithstanding the recommendation for approval, the County Commission denied the Trust’s plat

application on April 4, 2017. Doc. No. 44-18, p. 3. In

doing so, the County Commission did not consider

the transportation-related impacts that Outlot 6 presented, instead rejecting the variance because the plat

failed to meet the County’s right of way requirements.

3

Freedom Township’s own zoning ordinance calls for Ward

County to state a reason for right of way taken beyond the statutory 33 feet and to provide compensation to all Freedom Township

residents subjected to the dedication requirement. Doc. No. 30,

¶ 71. Ultimate authority over the conditions for plat approval

rests with the County, so township ordinances lack binding effect

in this regard. See N.D. Cent. Code § 11-33.2-12.

App. 18

See id.; Doc. No. 30 ¶¶ 76-78. Irwin’s desire remains to

create the outlot without dedicating the 40-foot right

of way to the County. Doc. No. 44-19, p. 2. Like Pietsch,

Irwin did not appeal the County Commission’s decision or attempt to obtain compensation through inverse condemnation.4

The remaining Plaintiffs, Ward County Farm Bureau (“WCFB”) and Ward County Farmers Union

(“WCFU”), are two organizations that advocate for

farmers’ rights and interests in Ward County. Doc. No.

30, ¶¶ 82-83. WCFB represents approximately 1,350

members, and WCFU has roughly 3,000 members. Doc.

Nos. 44-21, p. 2; 44-26 at 11:4-6. Pietsch is a member of

both organizations. Doc. No. 44-13, p. 2. WCFB’s stated

purpose is “improving prosperity for all North Dakotans by advocating for our state’s largest, renewable,

economic sector: agriculture.” Doc. No. 44-21, p. 12.

WCFB holds as one of its beliefs that “[p]roperty rights

are among the human rights essential to the preservation of individual freedom.” Id. at 10. WCFU’s mission

statement proclaims that the organization “is dedicated to promoting quality of life for family farmers

and ranchers, educating the community on a broad

base of issues and working for the future of agriculture.” Doc. No. 44-27. Both organizations have set aside

money and time to oppose the dedication ordinance.

4

Realistically, inverse condemnation was never available to

Pietsch and Irwin because Ward County did not acquire title to

any of their property. See Aasmundstad v. State, 2008 ND 206,

¶ 15, 763 N.W.2d 748 (citations omitted) (“To establish an inverse

condemnation claim, a property owner must prove a public entity

took or damaged the owner’s property. . . .”).

App. 19

For instance, WCFB contributed $5,000 in legal fees to

oppose the ordinance, while WCFU chipped in $3,500.

Doc. Nos. 44-22, p. 10; 44-29, pp. 4, 6. Dan Deaver and

Bob Finken, past presidents of WCFB and WCFU, respectively, each engaged in approximately 100 hours of

meetings and travel for the opposition effort at the expense of their organizations. Doc. Nos. 44-21, p. 6; 4428, p. 5. The two organizations also passed resolutions,

wrote letters to the County Commission, educated

members and the community, and encouraged attendance at County Commission meetings. See Doc. Nos.

44-21, p. 4; 44-26 at 66:21-68:5. Beyond the costs to the

organizations themselves, Ward County has enforced

the dedication ordinance against WCFB and WCFU

members. See Doc. No. 44-25, p. 5.

C. Procedural History

The Plaintiffs instituted this action on February 5,

2018. See Doc. No. 1. The complaint seeks declaratory

and injunctive relief pursuant to 42 U.S.C. § 1983 for

procedural and substantive due process violations, asserting Ward County’s dedication ordinance is unconstitutional on its face and as applied. With leave from

the Court, the Plaintiffs filed an amended complaint on

April 2, 2019 that added a claim for nominal damages

flowing from the alleged constitutional violations. See

Doc. No. 30. The Defendants filed an answer to the

amended complaint on June 5, 2019. Doc. No. 49. Both

parties moved for summary judgment on May 1, 2019

and submitted timely response and reply briefs thereafter. Doc. Nos. 42, 44.

App. 20

III. LEGAL STANDARD

A. Summary Judgment

Summary judgment is required “if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); see also Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). “An issue is

‘genuine’ if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving

party.” Schilf v. Eli Lilly & Co., 687 F.3d 947, 948 (8th

Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)). “A fact is material if it ‘might affect the outcome of the suit.’ ” Dick v. Dickinson State

Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Anderson, 477 U.S. at 248). Courts must afford “the nonmoving party the benefit of all reasonable inferences

which may be drawn without resorting to speculation.”

TCF Nat’l Bank v. Mkt. Intelligence, Inc., 812 F.3d 701,

707 (8th Cir. 2016) (quoting Johnson v. Securitas Sec.

Servs. USA, Inc., 769 F.3d 605, 611 (8th Cir. 2014)). “At

summary judgment, the court’s function is not to weigh

the evidence and determine the truth of the matter itself, but to determine whether there is a genuine issue

for trial.” Nunn v. Noodles & Co., 674 F.3d 910, 914 (8th

Cir. 2012) (citing Anderson, 477 U.S. at 249). If the movant demonstrates the absence of a genuine issue of

material fact, “[t]he nonmovant ‘must do more than

simply show that there is some metaphysical doubt as

to the material facts,’ and must come forward with

‘specific facts showing that there is a genuine issue for

trial.’ ” Torgerson v. City of Rochester, 643 F.3d 1031,

App. 21

1042 (8th Cir. 2011) (en banc) (quoting Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586-87 (1986)).

For a successful § 1983 claim, the Plaintiffs must

establish that the Defendants violated rights guaranteed by the Constitution or federal statute while acting

under color of state law. Kelly v. City of Omaha, 813

F.3d 1070, 1075 (8th Cir. 2016). In this action, the

Plaintiffs claim the Defendants violated their Fourteenth Amendment5 substantive and procedural due

process rights through enactment and enforcement of

the dedication ordinance. Local ordinances adopted

under state authority are within the Fourteenth

Amendment’s reach. See Barnes v. City of Omaha, 574

F.3d 1003, 1005 (8th Cir. 2009). From a remedy perspective, a federal court “may declare the rights and

other legal relations of any interested party seeking

such declaration.” 28 U.S.C. § 2201(a). Injunctive relief

is available when necessary to enforce a declaratory

judgment. See 28 U.S.C. § 2202; Powell v. McCormack,

395 U.S. 486, 499 (1969).

5

The complaint asserts due process claims under both the

Fifth and Fourteenth Amendments. But there are no allegations

of constitutional violations by the federal government, so the

Fifth Amendment Due Process Clause is inapplicable. Dusenbery

v. United States, 534 U.S. 161, 167 (2002) (“The Due Process

Clause of the Fifth Amendment prohibits the United States, as

the Due Process Clause of the Fourteenth Amendment prohibits

the States, from depriving any person of property without ‘due

process of law.’ ”); Truong v. Hassan, 829 F.3d 627, 631 n.4 (8th

Cir. 2016) (citations omitted) (“The due process clause of the Fifth

Amendment applies only to the federal government.”).

App. 22

B. Facial Versus As-Applied Challenges

Functionally, the Plaintiffs’ objection to the dedication ordinance is twofold because they bring both

facial and as-applied challenges. Though this oftenmurky distinction normally does not alter the applicable substantive law, it does determine the “breadth of

the remedy” available. Bucklew v. Precythe, 587 U.S.

___, 139 S. Ct. 1112, 1127 (2019) (quoting Citizens

United v. FEC, 558 U.S. 310, 331 (2010)). Illustrating

that concept, as-applied challenges are inherently narrow. They inure when a law’s application violates an

individual’s constitutional rights under the circumstances presented. See United States v. Adams, 914

F.3d 602, 605 (8th Cir. 2019). The resulting remedy is

likewise narrow, preventing enforcement of the law to

the extent necessary to protect the particular challenger’s rights—but no further. See Brakebill v. Jaeger,

932 F.3d 671, 678 (8th Cir. 2019). Put differently, an asapplied challenge cannot invalidate a law wholesale.

See id.

For that to occur, a winning facial challenge is

needed. As the Supreme Court recently explained, “A

facial challenge is really just a claim that the law or

policy at issue is unconstitutional in all its applications.” Bucklew, 139 S. Ct. at 1127. To prevail on such

a claim, a challenger “must show that there is no set of

circumstances under which the law[ ] would be valid.”

Calzone v. Hawley, 866 F.3d 866, 870 (8th Cir. 2017)

(citing United States v. Salerno, 481 U.S. 739, 745

(1987)). When a challenger makes this stouter showing, then the constitutional defect renders the law

App. 23

completely invalid. “Facial challenges are disfavored”

in light of this wide-sweeping result. Brakebill, 932

F.3d at 677 (citing Wash. State Grange v. Wash. State

Republican Party, 552 U.S. 442, 449-51 (2008)).

A careful review of the Plaintiffs’ complaint and

their briefing on the pending summary judgment motions makes clear that only Pietsch and Irwin bring asapplied claims. The Plaintiffs’ memorandum supporting their motion for summary judgment, for instance,

mentions WCFB and WCFU only in passing when arguing the as-applied claims. See Doc. No. 44, pp. 28, 31.

At the same time, WCFB and WCFU concede that

Ward County has not applied the dedication ordinance

to either organization’s property. Doc. Nos. 44-20 at

11:1-20; 44-26 at 13:9-18. The two organizational

Plaintiffs instead seek outright invalidation of the

dedication ordinance on behalf of their members. See

Doc. No. 44-20 at 17:25-18:6. These are pure facial challenges.

With that baseline, the logical progression for analyzing simultaneous facial and as-applied challenges

is to work from narrow to broad. See Bd. of Trs. of State

Univ. of N.Y. v. Fox, 492 U.S. 469, 485 (1989) (explaining that “for reasons relating both to the proper functioning of courts and to their efficiency, the lawfulness

of the particular application of the law should ordinarily be decided first”). As a result, when addressing the

merits of the Plaintiffs’ procedural and substantive

due process claims, the Court will first address Pietsch

and Irwin’s narrower as-applied challenges, and then

move to the broader facial challenges.

App. 24

IV. JURISDICTIONAL ISSUES

Prior to exploring the merits of the Plaintiffs’ constitutional claims, however, the Defendants raise several jurisdictional and prudential considerations that

demand attention. More specifically, the Defendants

contend that all four Plaintiffs lack standing, that the

due process claims are not ripe for adjudication, and

that abstention doctrine applies. Each argument falls

flat.

A. Standing

The Defendants assert that none of the Plaintiffs

have standing, thereby divesting the Court of subject

matter jurisdiction. “Article III limits federal jurisdiction to ‘Cases’ and ‘Controversies,’ and there is no case

or controversy unless the party initiating the action

has standing to sue.” Owner-Operator Indep. Drivers

Ass’n, Inc. v. U.S. Dep’t of Transp., 831 F.3d 961, 966

(8th Cir. 2016) (citing Allen v. Wright, 468 U.S. 737, 750

(1984)). On a foundational level, standing requires (1) an

injury in fact, (2) causation, and (3) redressability.

Hughes v. City of Cedar Rapids, 840 F.3d 987, 992 (8th

Cir. 2016). Breaking these elements down, an injury in

fact is “the actual or imminent invasion of a concrete

and particularized legal interest.” Kuehl v. Sellner, 887

F.3d 845, 850 (8th Cir. 2018) (quoting Sierra Club v.

Kimbell, 623 F.3d 549, 556 (8th Cir. 2010)) (in turn citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992)). When plaintiffs seek declaratory and injunctive relief, “they must show they are experiencing an

App. 25

ongoing injury or an immediate threat of injury.” Webb

ex rel. K.S. v. Smith, 936 F.3d 808, 815 (8th Cir. 2019)

(citing Frost v. Sioux City, 920 F.3d 1158, 1161 (8th Cir.

2019)). Causation is “a causal connection between the

alleged injury and the [defendant’s] challenged action.”

Kuehl, 887 F.3d at 850 (citations omitted). Redressability is “a likelihood that the injury will be redressed

by a favorable decision of the court.” Id. (citations omitted).

“The party invoking federal jurisdiction bears the

burden of establishing these elements.” Lujan, 504 U.S.

at 561. With that said, a standing probe cannot become “an assessment of the merits of a plaintiff ’s

claim.” Am. Farm Bureau Fed’n v. EPA, 836 F.3d 963,

968 (8th Cir. 2016) (quoting Red River Freethinkers v.

City of Fargo, 679 F.3d 1015, 1023 (8th Cir. 2012)).

Courts must therefore “assume that on the merits

the plaintiffs would be successful in their claims” when

undertaking a standing analysis. Id. (quoting Muir v.

Navy Fed. Credit Union, 529 F.3d 1100, 1106 (D.C. Cir.

2008)).

Applying these principles, the two individual

Plaintiffs have standing. The Defendants appear to

argue that Pietsch and Irwin lack standing because

they cannot establish a § 1983 claim for violations of

their due process rights. This argument improperly

conflates the less burdensome standing inquiry with a

full-blown analysis of the due process claims’ merits.

Pietsch and Irwin suffered actual injuries because, as

alleged, Ward County effectively prevented them from

subdividing their property. See Koontz v. St. Johns

App. 26

River Water Mgmt. Dist., 570 U.S. 595, 607 (2013) (noting that “the impermissible denial of a governmental

benefit is a constitutionally cognizable injury”). Pietsch forewent an opportunity to build a planned farm

shop, and Irwin was precluded from selling a portion

of the Trust’s land for future residential development.

And these injuries are ongoing. So long as the dedication ordinance remains on the books, the Plaintiffs will

be unable to receive approval for their plat applications, as well as the economic benefits that follow, without dedicating property to the County. They also assert

the dedication ordinance is procedurally deficient,

enough on its own to create an injury in fact for the

procedural due process claims. See Hughes, 840 F.3d at

994 (“The allegation[ ] that the procedure [for effecting

a property deprivation] is inadequate . . . sufficiently

establishes an injury in fact for Article III standing.”).

Added to that, North Dakota law solidifies that the

ability to subdivide property is a distinct legal interest.

See N.D. Cent. Code § 11-33.2-12.

For the remaining two elements, causation is

plainly satisfied because the County’s dedication ordinance, and the County Commission’s decisions to deny

Pietsch and Irwin’s plat applications, led directly to

the alleged injuries. Redressability is present, too. An

order enjoining the dedication ordinance’s future enforcement would allow the individual Plaintiffs to pursue their plat applications without the threat of forced

property dedication to the County. Pietsch and Irwin

meet the elementary requirements for standing.

App. 27

Whether the two organizational Plaintiffs have

standing requires additional consideration. Organizations, like individuals, can possess independent standing subject to the basic three-part test above. See

ARRM v. Piper, 367 F. Supp. 3d 944, 953 (D. Minn.

2019). Neither WCFB nor WCFU alleges that the dedication ordinance has directly impaired the value of

their property or their property rights. Instead, both

organizations claim that their injuries stem from the

resources they have expended in opposing the dedication ordinance. “Standing may be found when there is

a concrete and demonstrable injury to an organization’s activities which drains its resources and is more

than simply a setback to its abstract social interests.”

Nat’l Fed’n of the Blind of Mo. v. Cross, 184 F.3d 973,

979 (8th Cir. 1999) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)). To meet this standard,

specific facts must demonstrate a defendant’s actions

“have perceptibly impaired” the organization’s activities. Havens Realty Corp., 455 U.S. at 379; see also Ark.

ACORN Fair Hous., Inc. v. Greystone Dev., Ltd. Co., 160

F.3d 433, 434 (8th Cir. 1998). Expending resources for

or in anticipation of litigation is insufficient to confer

standing. See WaterLegacy v. USDA Forest Serv., Case

No. 17-cv-276 (JNE/LIB) et al., 2019 WL 4757663, at

*12 (D. Minn. Sept. 30, 2019) (citing Food & Water

Watch, Inc. v. Vilsack, 808 F.3d 905, 919 (D.C. Cir.

2015)). Harm that does create standing must impact

the organization in a “measurable way,” such as

through a reduction in membership or a restriction on

the organization’s ability to serve its members. Cross,

184 F.3d at 980.

App. 28

WCFB and WCFU collectively allocated approximately $8,500 for legal fees to investigate and bring

the present claims. These expenditures, however, anticipated the onset of litigation and so cannot create

standing. Beyond that, leadership from both organizations contributed approximately 200 hours of time for

relevant meetings and travel to oppose the ordinance.

WCFB and WCFU also provided education to their

members and the public in an effort to repeal or amend

the dedication ordinance. These are no doubt drains on

organizational resources. Even so, WCFB and WCFU

fail to establish how that drain “perceptibly impaired”

their activities. They assert only that their expenditures of time and money for educational initiatives

and efforts to repeal the dedication ordinance could

have been put to alternative uses. See Doc. Nos. 44-21,

pp. 6-7; 44-28, pp. 5-6. But they neglect to explain “how

Defendants’ conduct has impaired their ability to advocate on behalf of the populations they serve, or how

their missions have been frustrated by the alleged diversion of resources.” S.C. ex rel. Melissa C. v. Riverview Gardens Sch. Dist., Case No. 2:18-cv-04162-NKL,

2019 WL 922248, at *2 (W.D. Mo. Feb. 25, 2019).

The Plaintiffs cite to Animal Legal Defense Fund

v. Reynolds, 297 F. Supp. 3d 901 (S.D. Iowa 2018), as

support for their argument, but that case is distinguishable. There, a district court found an animal

rights group had standing because it diverted resources to advocate for the repeal of a law that prohibited gaining access to an agricultural facility through

false pretenses. Reynolds, 297 F. Supp. 3d at 916-17.

App. 29

The plaintiff alleged that the law was enacted in response to animal rights groups conducting undercover

investigations in agricultural facilities. So the plaintiff

was forced to divert resources to advocate for the repeal of a law that restricted its ability to promote animal welfare—a direct threat to its organizational

mission. See id. Unlike the law in Reynolds, the dedication ordinance here in no way restricts WCFB or

WCFU from advocating for farmers. Nor is there

evidence that the two organizations have seen membership dwindle or that their activities have been adversely impacted in any other way. To the contrary, the

dedication ordinance is “simply a setback to . . . abstract social interests” that WCFB and WCFU have

voluntarily elected to contribute money and time towards. Cross, 184 F.3d at 979. Because the dedication

ordinance does not interfere with either WCFB or

WCFU’s organizational activities, they have not suffered an injury in fact for standing purposes.

This deficiency is not fatal, however. Apart from

traditional standing, associational standing permits

organizational plaintiffs to assert claims on behalf of

their members in limited circumstances. Midwest

Disability Initiative v. JANS Enters., Inc., 929 F.3d

603, 609 (8th Cir. 2019) (citing Friends of the Earth,

Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167,

180-81 (2000)). Associational standing is available

when “(1) the individual members would have standing to sue in their own right; (2) the organization’s

purpose relates to the interests being vindicated; and

(3) the claims asserted do not require the participation

App. 30

of individual members.” Sierra Club v. U.S. Army Corps

of Eng’rs, 645 F.3d 978, 986 (8th Cir. 2011) (citations

omitted). An organizational plaintiff “need not establish that all of its members would have standing to sue

individually so long as it can show that ‘any one of

them’ would have standing.” Iowa League of Cities v.

EPA, 711 F.3d 844, 869 (8th Cir. 2013) (quoting Warth

v. Seldin, 422 U.S. 490, 511 (1975)).

The first and second elements are easily met here.

Pietsch is a member of both WCFB and WCFU. As explained above, he has standing to sue in his individual

capacity. That is enough to satisfy the initial requirement. For the second element, the Defendants concede

that WCFB and WCFU’s organizational purposes coincide with the interests at stake in this litigation. Doc.

No. 50, p. 27. Organizations dedicated to advocating for

agriculture certainly have an interest in land-use regulations that predominantly effect farmers such as the

challenged dedication ordinance.

More controversial is the third element, which the

Defendants contend is the missing ingredient for associational standing. They broadly assert that determining whether the dedication ordinance violated the

Fourteenth Amendment Due Process Clause will require the Court to examine how the ordinance has

impacted individual members of WCFB and WCFU.

But where an organizational plaintiff “seeks only declaratory and prospective injunctive relief, the participation of individual [members] . . . is not required.”

Heartland Acad. Cmty. Church v. Waddle, 427 F.3d 525,

533 (8th Cir. 2005). To be sure, the outcome would be

App. 31

different if the two organizations attempted to assert

claims for damages on behalf of their members. See

Mo. Prot. & Advocacy Servs., Inc. v. Carnahan, 499 F.3d

803, 810 (8th Cir. 2007). Those claims would necessitate individualized proof of the dedication ordinance’s

particular application to each effected landowner, as

well as the value of the land dedicated. That is not

the relief the Plaintiffs seek. A hypothetical trial in

this matter could very well require WCFB and WCFU

members to testify as witnesses. That trial would not,

however, require those members to participate as parties, meaning proof of individual claims is unnecessary.

See Neb. Beef Producers Comm. v. Neb. Brand Comm.,

287 F. Supp. 3d 740, 750 (D. Neb. 2018). Consequently,

WCFB and WCFU possess associational standing to

sue on behalf of their members.

B. Ripeness

With standing resolved, the next hurdle the Defendants raise is ripeness. “The issue of ripeness,

which has both Article III and prudential components,

is one of subject matter jurisdiction.” Dakota, Minn. &

E. R.R. Corp. v. South Dakota, 362 F.3d 512, 520 (8th

Cir. 2004) (citation omitted). A general ripeness inquiry looks to “whether the harm asserted has matured enough to warrant judicial intervention.” Parrish

v. Dayton, 761 F.3d 873, 875 (8th Cir. 2014) (cleaned

up). The two factors for examination are “the fitness of

the issues for judicial decision and the hardship to the

parties of withholding court consideration.” Neb. Pub.

Power Dist. v. MidAmerican Energy Co., 234 F.3d 1032,

App. 32

1038 (8th Cir. 2000) (cleaned up). Mindful of those

overarching principles, more specific ripeness standards govern some—but not all—substantive due process claims in the land-use regulation context, as well

as procedural due process claims.

Beginning with procedural due process, the usual

rule is that “a litigant asserting a deprivation of procedural due process must exhaust state remedies before

such an allegation states a claim under § 1983.” Wax’n

Works v. City of St. Paul, 213 F.3d 1016, 1019 (8th Cir.

2000) (citations omitted). Unlike remedy exhaustion in

other contexts, “this requirement is necessary for a

procedural due process claim to be ripe for adjudication.” Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009)

(citing Wax’n Works, 213 F.3d at 1020; Zinermon v.

Burch, 494 U.S. 113, 126 (1990)). There is an exception,

though, based on the manner that an alleged unconstitutional deprivation of property occurs. Namely, “it is

not necessary for a litigant to have exhausted available

postdeprivation remedies when the litigant contends

that he was entitled to predeprivation process.” Keating v. Neb. Pub. Power Dist., 562 F.3d 923, 929 (8th Cir.

2009) (citing Zinermon, 494 U.S. at 132). That is because “the availability of state law postdeprivation

remedies bears relevance only where the challenged

acts of state officials can be characterized as random

and unauthorized.” Coleman v. Watt, 40 F.3d 255, 262

(8th Cir. 1994); see also Lathon v. City of St. Louis, 242

F.3d 841, 844 (8th Cir. 2001). Conversely, “when an established state procedure or a foreseeable consequence

of such a procedure causes the loss, an adequate

App. 33

postdeprivation remedy is of no consequence.” Clark v.

Kansas City Mo. Sch. Dist., 375 F.3d 698, 702 (8th Cir.

2004) (citations omitted).

In this instance, the Defendants argue that Pietsch

and Irwin failed to exhaust available state remedies

for their as-applied claims because they did not appeal

the denial of their plat applications to a North Dakota

state district court or attempt to compel compensation

through inverse condemnation. But the Plaintiffs contend the dedication ordinance itself—an established

procedure—provides inadequate process, not that the

Defendants acted randomly or without authority to

deprive them of property. The complaint asserts that

shifting the burden to landowners to avoid dedicating

property by forcing them to apply for a variance, coupled with the narrowly defined standard to obtain such

a variance, prevents a meaningful opportunity to be

heard. See Doc. No. 30, ¶¶ 104-08. In other words, the

Plaintiffs claim the dedication ordinance is procedurally deficient before any property deprivation occurs.

Thus, the Plaintiffs challenge the predeprivation process afforded them, rendering any postdeprivation

remedies superfluous for ripeness purposes. Pietsch

and Irwin’s decision to forego additional state-law

remedies does not preclude consideration of their asapplied procedural due process claims.

The same holds true for the substantive due process claims. The Defendants argue that the Plaintiffs’

substantive due process claims, both facial and as applied, are an improper attempt to circumvent a similar exhaustion-style ripeness requirement for takings

App. 34

claims. Previously, the Supreme Court held that an action under § 1983 predicated on a takings claim was

not ripe (1) “until the government entity charged with

implementing the regulations has reached a final decision regarding the application of the regulations to the

property at issue,” commonly referred to as the finality

requirement; and (2) “until the owner has unsuccessfully attempted to obtain just compensation through

the procedures provided by the State for obtaining

such compensation,” commonly referred to as the statelitigation requirement. Williamson Cty. Reg’l Planning

Comm’n v Hamilton Bank of Johnson City, 473 U.S.

172, 186, 195 (1985), overruled in part by Knick v. Twp.

of Scott, 588 U.S., 139 S. Ct. 2162 (2019). Some courts

extended Williamson County’s heightened ripeness

standard in full to substantive due process claims

when grounded on underlying facts necessary to sustain a takings claim. See, e.g., John Corp. v. City of

Houston, 214 F.3d 573, 582-83 (5th Cir. 2000) (collecting cases). But the Eighth Circuit has required only

the finality prong for substantive due process challenges to land-use regulations. See McKenzie v. City of

White Hall, 112 F.3d 313, 317 (8th Cir. 1997); Christopher Lake Dev. Co. v. St. Louis Cty., 35 F.3d 1269, 1273

(8th Cir. 1994); see also GBT P’ship v. City of Fargo,

No. A3-00-50, 2001 WL 1820144, at *3 (D.N.D. Nov. 27,

2001). Even if the Court were to diverge from the authority in this circuit, the outcome would now remain

unchanged. Just two days after briefing concluded

in this case, the Supreme Court overruled Williamson County’s state-litigation requirement for takings

claims under § 1983, leaving the finality requirement

App. 35

alone intact. Knick, 139 S. Ct. at 2167. Thus, the Plaintiffs were not required to exhaust any state-law remedies as a prerequisite to pursuing substantive due

process claims.

The finality requirement does remain applicable,

but only to Pietsch and Irwin’s as-applied substantive

due process claims. Further paring down the ripeness

standard, Williamson County’s finality requirement

need not be met for facial challenges to land-use regulations. See San Remo Hotel, L.P. v. City & Cty. of

San Francisco, 545 U.S. 323, 345 (2005); Yee v. City of

Escondido, 503 U.S. 519, 534 (1992); Clayland Farm

Enters., LLC v. Talbot Cty., 672 F. App’x 240, 244 (4th

Cir. 2016); Temple B’Nai Zion, Inc. v. City of Sunny

Isles Beach, 727 F.3d 1349, 1359 n.6 (11th Cir. 2013);

Opulent Life Church v. City of Holly Springs, 697 F.3d

279, 287 (5th Cir. 2012); Asociacion de Suscripcion

Conjunta del Seguro de Responsabilidad Obligatorio v.

Juarbe-Jimenez, 659 F.3d 42, 51-52 (1st Cir. 2011).

This makes intuitive sense “because a facial challenge

by its nature does not involve a decision applying the

statute or regulation.” Church v. City of Medina, Civil

File No. 11-275 (MJD/FLN), 2012 WL 2395195, at *4

(D. Minn. June 25, 2012) (quoting Hacienda Valley Mobile v. Morgan Hill, 353 F.3d 651, 655 (9th Cir. 2003)).

The result is that all four Plaintiffs’ facial substantive

due process claims are subject to nothing more than

general considerations for ripeness.

Turning to the as-applied substantive due process

claims, finality is established when the relevant government entity has “arrived at a definite position . . .

App. 36

that inflicted an actual, concrete injury.” Christopher

Lake Dev. Co., 35 F.3d at 1273. Here, the County Commission is the government entity tasked with applying

Ward County’s zoning ordinance. The County Commission arrived at a definite position regarding the application of the dedication ordinance to Pietsch and

Irwin’s proposed plats upon denying their plat applications. See Elliott v. Lake Cty., No. CIV 10-04001-RAL,

2010 WL 4553548, at *5 (D.S.D. Nov. 3, 2010) (finding

county’s denial of permit application was a “definitive

position” for ripeness purposes). That action created an

actual, concrete injury because it effectively prevented

both Plaintiffs from subdividing their property. From

that point forward, the available appeal process allowed solely for review of the County Commission’s

decision—an unneeded avenue of potential relief to

satisfy finality. The two individual Plaintiffs’ as-applied

substantive due process claims therefore clear the finality requirement.

Looping back briefly, the two general ripeness requirements for both the procedural and substantive

due process claims are also satisfied. The as-applied

claims were sufficiently developed factually, and

therefore fit for judicial decision, when Ward County

denied Pietsch and Irwin’s plat applications. And all

the facial claims met this standard as soon as the

County Commission enacted the dedication ordinance on April 6, 2010.6 See Comprehensive Health of

6

The facial claims potentially accrued for statute of limitations purposes on April 6, 2010 as well. See, e.g., Hillcrest Prop.,

LLC v. Pasco Cty., 754 F.3d 1279, 1281-82 (11th Cir. 2014); Action

App. 37

Planned Parenthood Great Plains v. Hawley, 903 F.3d

750, 755 (8th Cir. 2018) (stating that “facial challenges

to regulation . . . are generally ripe the moment the

challenged regulation or ordinance is passed”) (quoting

Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725,

736 n.10 (1997)). Withholding a court decision on this

issue, meanwhile, would do nothing more than unnecessarily prolong the constitutional uncertainty

surrounding the ordinance. See McDonald’s Corp. v.

Nelson, 822 F. Supp. 597, 605 (S.D. Iowa 1993). The

Plaintiffs’ substantive and procedural due process

claims are accordingly ripe for adjudication.

C. Abstention

The Defendants fall back on abstention doctrine

as a last effort to stonewall consideration of the due

process claims’ merits. “Abstention is an exception to

the general rule that ‘federal courts ordinarily should

entertain and resolve on the merits an action within

the scope of a jurisdictional grant.’ ” Oglala Sioux Tribe

v. Fleming, 904 F.3d 603, 610 (8th Cir. 2018) (quoting

Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 73 (2013)).

When employed, abstention serves “to preserve ‘traditional principles of equity, comity, and federalism.’ ”

Apartment Ass’n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d

1020, 1026-27 (9th Cir. 2007); Kuhnle Bros., Inc. v. Cty. of

Geauga, 103 F.3d 516, 521-22 (6th Cir. 1997). The Defendants

did not raise the statute of limitations in their answer or any subsequent pleadings, operating as a waiver of the defense. See Fed.

R. Civ. P. 8(c)(1); Varner v. Peterson Farms, 371 F.3d 1011, 1016

(8th Cir. 2004).

App. 38

Beavers v. Ark. State Bd. of Dental Exam’rs, 151 F.3d

838, 840 (8th Cir. 1998) (quoting Alleghany Corp. v.

McCartney, 896 F.2d 1139, 1142 (8th Cir. 1990)). The

particular limb of abstention doctrine the Defendants

call upon derives from Railroad Commission of Texas

v. Pullman Co., 312 U.S. 496 (1941).7 Pullman abstention “requires a federal court to refrain from exercising

jurisdiction when the case involves a potentially controlling issue of state law that is unclear, and the decision of this issue by the state courts could avoid or

materially alter the need for a decision on federal constitutional grounds.” Burris v. Cobb, 808 F.3d 386, 388

(8th Cir. 2015) (quoting Moe v. Brookings Cty., 659 F.2d

880, 883 (8th Cir. 1981)). Refining this principle, if

“there is no ambiguity . . . the federal court should not

abstain but should proceed to decide the federal constitutional claim.” Moe, 659 F.2d at 883 (citation omitted).

Abstention is inappropriate here because the dedication ordinance is unambiguous. The ordinance is

perfectly clear in what it demands—uniform right of

way dedication along section lines and roadways in

exchange for plat approval. See W.C.Z.O. ch. 3, art. 24,

§ 4(A)(12). The Plaintiffs do not contend the County

Commission should have construed the dedication

7

The other two branches of abstention doctrine are not implicated. Younger abstention requires an ongoing parallel state

proceeding. See Geier v. Mo. Ethics Comm’n, 715 F.3d 674, 678

(8th Cir. 2013). Burford abstention applies when federal adjudication would interfere with a complex state regulatory scheme

that requires specialized knowledge of state law. See Doe v.

McCulloch, 835 F.3d 785, 788 (8th Cir. 2016).

App. 39

ordinance in an alternate way that would skirt the constitutional issues. They assert that the ordinance itself,

as plainly written, violates the Constitution. Further,

there are no unsettled questions of state law because

the Century Code overtly authorizes counties to condition plat approval on dedication of land to the public.

See N.D. Cent. Code § 11-33.2-12. A reviewing state

court would therefore face nothing more than the exact

federal constitutional questions now before this Court.

Indeed, the Defendants have not even suggested

how Ward County’s dedication ordinance is unclear.

They seem to argue that abstention is warranted

simply because, first, a state court has not ruled on the

Plaintiffs’ claims and, second, land-use regulation is an

arena best left to state courts. That is not enough to

trigger Pullman abstention. No doubt, land-use regulation is an important state interest with which federal

courts are normally hesitant to interfere. See Night

Clubs, Inc. v. City of Fort Smith, 163 F.3d 475, 480 (8th

Cir. 1998). But if a federal court were required to abstain whenever a state court could pass upon identical

constitutional questions, abstention would become the

near-universal rule rather than the carefully limited

exception. Where, as here, a litigant lodges federal

constitutional claims against an unambiguous state

or local regulation, federal courts are bound to adhere

to their “virtually unflagging obligation” to exercise

otherwise proper jurisdiction. Spectra Commc’ns Grp.,

LLC v. City of Cameron, 806 F.3d 1113, 1121 (8th Cir.

2015) (quoting Colo. River Water Conservation Dist. v.

App. 40

United States, 424 U.S. 800, 817 (1976)). To abstain

from deciding this case would spurn that obligation.

In sum, Pietsch and Irwin have standing in their

individual capacities. WCFB and WCFU have standing

to sue on behalf of their members. The procedural and

substantive due process claims are ripe for review, and

abstention is unwarranted. As a result, the Court possesses subject matter jurisdiction and will proceed to

the merits.

V.

DUE PROCESS CLAIMS

The Fourteenth Amendment familiarly forbids a

state entity to “deprive any person of life, liberty, or

property, without due process of law.” U.S. Const.

amend. XIV, § 1. The Amendment includes procedural

and substantive components. Troxel v. Granville, 530

U.S. 57, 65 (2000). Where a property deprivation is alleged, both components require a plaintiff to establish

a constitutionally protected property interest. Ellis v.

City of Yankton, 69 F.3d 915, 917 (8th Cir. 1995). The

two standards diverge from there. Procedural due process safeguards against deprivations of property without sufficient process. In re Kemp, 894 F.3d 900, 908

(8th Cir. 2018). Substantive due process wards off

deprivations resulting from government intrusion into

fundamental rights or arbitrary or irrational government action. See United States v. Fortney, 357 F.3d

818, 821 n.4 (8th Cir. 2004). The Court will initially address whether the Plaintiffs have a protected property

App. 41

interest and then discuss the particularities of the two

due process components.

A. Protected Property Interest

North Dakota law establishes a protected interest

in the ability to subdivide property, so the due process

claims’ first element is satisfied. “To have a constitutionally cognizable property interest in a right or a

benefit, a person must have ‘a legitimate claim of entitlement to it.’ ” Austell v. Sprenger, 690 F.3d 929, 935

(8th Cir. 2012) (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)). “Property interests are not created by the Constitution, ‘they are

created and their dimensions are defined by . . . an independent source such as state law.’ ” Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 539 (1985) (quoting

Roth, 408 U.S. at 577). When a state-created property

interest exists, “federal constitutional law determines

whether that interest rises to the level of a ‘legitimate

claim of entitlement’ protected by the Due Process

Clause.” Town of Castle Rock v. Gonzales, 545 U.S. 748,

757 (2005) (emphasis and internal quotations omitted). To that end, “a state statute . . . can create a constitutionally protected property interest, first, when it

contains particularized substantive standards that

guide a decision maker and, second, when it limits the

decision maker’s discretion by using mandatory language (both requirements are necessary).” McGuire v.

Indep. Sch. Dist. No. 833, 863 F.3d 1030, 1034 (8th Cir.

2017) (ellipses in original) (quoting Dunham v. Wadley,

195 F.3d 1007, 1009 (8th Cir. 1999)) (in turn citing

App. 42

Jennings v. Lombardi, 70 F.3d 994, 995-96 (8th Cir.

1995)). The government entity’s “discretion must be

limited such that the [statute] ‘mandat[es] the outcome

to be reached upon a finding that the relevant criteria

have been met.’ ” Id. at 1035 (second alteration in original) (quoting Ky. Dep’t of Corr. v. Thompson, 490 U.S.

454, 462 (1989)).

Both parties overlook the origin of the protected

property interest in this case. The Plaintiffs breeze

past this element, cursorily claiming a protected property interest in the ability to subdivide property by asserting that the dedication ordinance infringes on an

amorphous right to exclude others. They do not specifically identify how North Dakota law engenders a legitimate claim of entitlement to subdivide property. On

the opposite end of the spectrum, the Defendants mangle the distinct concept of a protected property interest

with the analysis for establishing a fundamental right

for certain substantive due process claims.

Nonetheless, the Plaintiffs do identify, albeit in

piecemeal fashion, the correct state-created property

interest—the ability to subdivide property—and the

correct provision of North Dakota law that anchors a

legitimate claim of entitlement to that interest—North

Dakota Century Code § 11-33.2-12. Set out in full

above, § 11-33.2-12 provides more than a dozen painstakingly specific factors that a county commission

must weigh before passing judgment on a plat application. If a county commission finds the statutory criteria

satisfied, the plat “shall be finally approved.” N.D.

Cent. Code § 11-33.2-12. If not, “then the board of

App. 43

county commissioners shall disapprove the proposed

plat.” Id. The plat approval statute therefore contains

precisely the particularized substantive standards

and discretion-limiting language necessary to form the

basis for a legitimate claim of entitlement to a statecreated property interest.

Supporting this notion, the North Dakota Supreme Court has held, in accord with the statute’s

plain language, that a county commission has no duty

to approve a plat application where one of the statutory factors is absent. See Dahm v. Stark Cty. Bd. of

Cty. Comm’rs, 2013 ND 241, ¶ 19, 841 N.W.2d 416. The

Dahm opinion also conspicuously left open whether a

mandatory duty to approve a plat application is triggered if an applicant satisfies the statutory criteria in

full. Id. (“Because [the Stark County Commission]

found Dahm’s application was at odds with [a statutory factor], it was under no duty to approve the request.”). At the same time, the court framed the

statute’s requirements in mandatory, rather than permissive, terms. Id. (“In determining whether a plat

shall be approved or disapproved, the County Board

shall . . . ”). Ultimately, the statute significantly limits

a county commission’s discretion to approve or disapprove a plat application through comprehensive

substantive considerations while using mandatory

language. The sole reason Pietsch and Irwin were prevented from creating their proposed outlots was their

refusal to dedicate additional right of way to Ward

County. The County Commission did not deny their

plat applications based on any other statutory factors.

App. 44

Thus, the Court concludes that the Plaintiffs have a legitimate claim of entitlement, and therefore a protected property interest, in the ability to subdivide

property under North Dakota Century Code § 11-33.212.

B. Procedural Due Process

To round out a procedural due process claim, the

Plaintiffs must demonstrate that the Defendants effected a deprivation of their ability to subdivide property without constitutionally sufficient process. See

Jenner v. Nikolas, 828 F.3d 713, 716 (8th Cir. 2016).

“The essential requirements of due process . . . are notice and an opportunity to respond.” Cleveland Bd. of

Educ., 470 U.S. at 546. “Required procedures may vary

according to the interests at stake, but the fundamental requirement of due process is the opportunity to be

heard at a meaningful time and in a meaningful manner.” Bus. Commc’ns, Inc. v. U.S. Dep’t of Educ., 739 F.3d

374, 380 (8th Cir. 2013) (cleaned up). Mirroring the

general standard, “In the zoning context . . . procedural

due process is afforded when the landowner has notice

of the proposed government action and an opportunity

to be heard.” Anderson v. Douglas Cty., 4 F.3d 574, 578

(8th Cir. 1993).

Attempting to brush aside this precedent, the

Plaintiffs argue that two Fifth Amendment takings

cases should moor the procedural due process standard

here. See Dolan v. City of Tigard, 512 U.S. 374 (1994);

Nollan v Cal. Coastal Comm’n, 483 U.S. 825 (1987). To

App. 45

clarify, the Plaintiffs explicitly disavow that their

amended complaint asserts any takings claims. See

Doc. No. 51, p. 3. They instead contend that Nollan and

Dolan set forth constitutional procedural protections

that the dedication ordinance contravenes.

By way of explanation, the Takings Clause of the

Fifth Amendment states, “nor shall private property

be taken for public use, without just compensation.”

U.S. Const. amend. V. Nollan and Dolan grappled with

a subset of takings jurisprudence pertaining to landuse exactions, which force a landowner to cede a property interest to the government without compensation

as a condition for obtaining a development permit. For

exactions to avoid running afoul of the Takings Clause,

a government entity must identify both an “essential

nexus” and “rough proportionality” between the perceived negative effect of the proposed development

and the condition exacted. See Dolan, 512 U.S. at 391;

Nollan, 483 U.S. at 837. Accomplishing this task requires a zoning authority to “make some sort of individualized determination that the required dedication

is related both in nature and extent to the impact of

the proposed development.” Dolan, 512 U.S. at 391.

The Plaintiffs posit that the Defendants violated

their due process rights because Ward County’s ordinance employs a one-size-fits-all approach that conditions plat approval on property dedication. They point

out that the ordinance requires an affected landowner

to apply for a variance and then demonstrate a hardship that the County can grant based only on physical

characteristics of the property. That approach, they

App. 46

theorize, thwarts the mandate for an individualized

determination of an “essential nexus” and “rough proportionality” between the transportation-related impact of a proposed outlot or subdivision plat and the

County’s actual need for right of way to support future

road projects.

In their endeavor to extend exaction jurisprudence

beyond the Takings Clause and into the realm of procedural due process, the Plaintiffs rely on Koontz v.

St. Johns River Water Management District, 570 U.S.

595 (2013), a progeny of Nollan and Dolan. That reliance is misplaced. Koontz held that denial of a development permit for refusing to accede to a government

demand for an unconstitutional exaction violates the

Takings Clause. See Koontz, 570 U.S. at 607. Grounding this conclusion on the doctrine of unconstitutional

conditions, the Supreme Court explained, “Extortionate demands for property in the land-use permitting

context run afoul of the Takings Clause not because

they take property but because they impermissibly

burden the right not to have property taken without

just compensation.” Id. at 607.

Although a violation of the Takings Clause, in a

Koontz scenario, a landowner is merely denied a permit and does not forfeit any property. That means the

Fifth Amendment’s unique remedy of just compensation for property taken is inaccessible. See id. at 60809. Because of this distinction, “In cases where there is

an excessive demand but no taking, whether money

damages are available is not a question of federal constitutional law but of the cause of action—whether

App. 47

state or federal—on which the landowner relies.” Id. at

609 (emphasis added). Extrapolating from that, the

Plaintiffs contend Koontz opened the door to substituting due process claims for takings claims whenever an

unconstitutional exaction results in the denial of a

land-use permit. That interpretation is flagrantly overbroad.

To start, the Plaintiffs do not seek money damages, but rather an injunction barring further enforcement of the dedication ordinance either globally or

particular to Pietsch and Irwin. As opposed to money

damages, securing injunctive relief is independent of

the Fifth Amendment’s particular remedy of just compensation. That is because a completed taking is not

necessary to enjoin a land-use regulation under the

doctrine of unconstitutional conditions. Quite distinctly,

all that is needed is a showing that the challenged demand for an exaction “impermissibly burden[s] the

right not to have property taken without just compensation.” Id. at 607 (emphasis added). As confirmation,

Justice Kagan explained that a Koontz-type plaintiff

“is entitled to have the improper condition removed”

and may sue “to invalidate the purported demand as

an unconstitutional condition” without resorting to anything other than the Takings Clause. Id. at 620, 634

(Kagan, J., dissenting) (agreeing with the majority on

this issue). No question, where a plaintiff seeks monetary relief for an impermissible denial of a permit

predicated on an unconstitutional exaction, tolerating

an alternative remedy makes perfect sense because

there is no taking and just compensation is therefore

App. 48

unavailable. But for injunctive relief, the analysis begins and ends with the Fifth Amendment. Permitting

federal judges to strike down land-use regulations as

violations of procedural due process because they actually violate the Takings Clause is assuredly not a door

the Supreme Court opened in Koontz.

True enough, due process is a “flexible” concept. Mathews v. Eldridge, 424 U.S. 319, 334 (1976).

But adopting the Plaintiffs’ contorted position would

break—not bend—procedural due process protection.

See Lind v. Midland Funding, L.L.C., 688 F.3d 402, 405

(8th Cir. 2012) (“Despite this flexibility, for more than

a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard; and in order that they

may enjoy that right they must first be notified.”)

(cleaned up). Nollan and Dolan were decided more

than 25 years ago, and Koontz nearly seven years ago.

Despite the length of time that has elapsed, the Plaintiffs do not cite to, and the Court has yet to discover, a

single case that supports their novel theory. Underscoring this point, the Supreme Court has expressly rejected, on multiple occasions, attempts to “recast in

‘procedural due process terms’ ” otherwise substantive

challenges to regulation. Reno v. Flores, 507 U.S. 292,

308 (1993); see also Conn. Dep’t of Pub. Safety v. Doe,

538 U.S. 1, 7-8 (2003); Michael H. v. Gerald D., 491 U.S.

110, 120-21 (1989). Nollan and Dolan articulate substantive standards for adjudicating takings claims.

See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 546

(2005). Those cases plainly have nothing to do with the

App. 49

procedure a landowner is entitled to for property

deprivations in the land-use regulation context. Put

simply, if the Plaintiffs believe the dedication ordinance is invalid because it bucks the Fifth Amendment

takings standards handed down in Nollan and Dolan,

then they should have pursued a Fifth Amendment

takings challenge based on Nollan and Dolan.

Viewing Pietsch and Irwin’s as-applied procedural

due process claims through the appropriate constitutional lens, the Defendants provided adequate notice

of the dedication requirement and an opportunity to

be heard. Both Plaintiffs had actual notice that their

property was subject to dedication throughout the

plat application process. Beyond notice, Pietsch and

Irwin were each afforded opportunities to participate

in hearings at the Planning Commission and County

Commission levels. Even though the County Commission was not bound to consider the economic implications of the dedication requirement when deliberating

on Pietsch and Irwin’s plat applications, the record indicates those factors would have been considered if

presented. Doc. No. 44-5 at 112:9-18. Procedural due

process mandates a meaningful opportunity to be

heard, not a guarantee of a favorable outcome. Pietsch

and Irwin knew what the dedication ordinance required and had ample opportunity to present their plat

applications and variance requests. Their as-applied

claims accordingly fail. Because the dedication ordinance afforded sufficient process to Pietsch and Irwin,

the ordinance is not “unconstitutional in all its applications.” Bucklew, 139 S. Ct. at 1127. For that reason,

App. 50

all four Plaintiffs’ facial procedural due process claims

falter as well.

C. Substantive Due Process

The substantive due process claims fare no better.

“[T]he theory of substantive due process is properly reserved for truly egregious and extraordinary cases.”

Novotny v. Tripp Cty., 664 F.3d 1173, 1178 (8th Cir.

2011) (alteration in original) (quoting Myers v. Scott

Cty., 868 F.2d 1017, 1019 (8th Cir. 1989)). Substantive

due process insulates constitutionally protected property interests and fundamental rights from government conduct that “shocks the conscience.” Gallagher

v. Magner, 619 F.3d 823, 840 (8th Cir. 2010) (citations

and internal quotation marks omitted) (discussing

constitutionally protected property interests); Norris v.

Engles, 494 F.3d 634, 638 (8th Cir. 2007) (discussing

fundamental rights). As previously established, the

Plaintiffs have a constitutionally protected interest in

the ability to subdivide property under North Dakota

law.

The Eighth Circuit deploys two separate standards

for facial and as-applied substantive due process challenges to property deprivations resulting from landuse regulations. See WMX Techs., Inc. v. Gasconade

Cty, 105 F.3d 1195, 1198 n.1 (8th Cir. 1997); Bellino

Fireworks, Inc. v. City of Ankeny, 332 F. Supp. 3d 1071,

1095-96 (S.D. Iowa 2018); Duffner v. City of St. Peters,

Case No. 4:16-CV-01971-JAR, 2018 WL 1519378, at *56 (E.D. Mo. Mar. 28, 2018). For as-applied claims, a

App. 51

plaintiff “must demonstrate the ‘government action

complained of is truly irrational, that is something

more than arbitrary, capricious, or in violation of state

law.’ ” Koscielski v. City of Minneapolis, 435 F.3d 898,

902 (8th Cir. 2006) (ellipses in original) (quoting Anderson, 4 F.3d at 577). A valid facial challenge, meanwhile, requires a plaintiff to prove that the land-use

regulation itself “is arbitrary, capricious and not rationally related to a legitimate public purpose.” WMX

Techs., Inc., 105 F.3d at 1198-99 (citing Pennell v. City

of San Jose, 485 U.S. 1, 11 (1988)).

The Defendants lob two unpersuasive threshold

arguments that can be dispensed with up front. They

first make the blanket assertion that substantive due

process claims always require the invasion of a fundamental right. Not so. After all, the Fourteenth Amendment Due Process Clause does not end at the word

“liberty.” Deprivations of protected property interests

routinely sustain substantive due process claims. See,

e.g., Gallagher, 619 F.3d at 840; Bituminous Materials,

Inc. v. Rice Cty., 126 F.3d 1068, 1070 (8th Cir. 1997).

Their next contention is that the Plaintiffs’ substantive due process claims fail because they are in

substance takings claims. This argument lacks merit,

too. Unlike the procedural due process claims, the

Plaintiffs’ substantive due process arguments do not

hinge on Nollan and Dolan—or any other takings jurisprudence for that matter. Were that the case, then

the Takings Clause would control as the “explicit textual source” for the claims, and the “more generalized

notion of ‘substantive due process’ would necessarily

App. 52

fade away. Graham v. Connor, 490 U.S. 386, 395 (1989).

But in reality, the Plaintiffs’ substantive due process

claims assert only that the dedication ordinance is

irrational and unrelated to a legitimate government

purpose. And the Supreme Court has made clear that

apart from a takings challenge, a land-use “regulation

that fails to serve any legitimate governmental objective may be so arbitrary or irrational that it runs afoul

of the Due Process Clause.” Lingle, 544 U.S. at 542 (citing Cty. of Sacramento v. Lewis, 523 U.S. 833, 846

(1998)); see also id. at 548 (Kennedy, J., concurring).

Substantive due process claims predicated on the arbitrary or irrational deprivation of a protected property

interest are entirely appropriate.

Whether those claims succeed in this case is a different story. Pietsch and Irwin’s as-applied claims

come up well short. Truly irrational government action

“bear[s] no relationship whatever to the merits of the

pending matter.” Lemke v. Cass Cty., 846 F.2d 469,

472 (8th Cir. 1987) (en banc) (per curiam) (Arnold, J.,

concurring). Posited examples include making zoning decisions by coin toss or applying an ordinance exclusively to those whose names begin with a letter in

the first half of the alphabet. See id.; Chesterfield Dev.

Corp. v. City of Chesterfield, 963 F.2d 1102, 1104 (8th

Cir. 1992). Here, the County Commission did not act in

a truly irrational manner when denying Pietsch and

Irwin’s plat applications—it simply followed the letter

of the dedication ordinance. Pietsch and Irwin wanted

to create outlots. Their properties abutted existing

roadways, so the ordinance called for them to dedicate

App. 53

right of way. They attempted to avoid dedicating that

right of way by applying for variances as the ordinance

allowed. The County Commission considered their

plat applications and accompanying variance requests,

eventually determining Pietsch’s property did not

meet the hardship definition required for a variance

and the Trust’s property did not satisfy the County’s

right of way requirements. Because of those deficiencies, the County Commission denied Pietsch and Irwin’s plat applications.

From start to finish, the County Commission’s

decisionmaking related exclusively to the merits of

Pietsch and Irwin’s plat applications. There was no

coin flipping or alphabetizing, no blatant personal animus, and no other inappropriately irrelevant decisionmaking taking place here. Pietsch’s contention

that Ward County had already decided to reconstruct

the road adjacent to his property and Irwin’s inverse

assertion that the County had no plans to improve the

gravel road bordering his proposed outlot therefore

miss the mark. Those arguments go to the dedication

ordinance’s alleged structural deficiencies, not the

County Commission’s application of the ordinance

under the circumstances. WMX Techs., Inc., 105 F.3d

at 1198 n.1 (“When one makes an ‘as applied’ challenge, he or she is attacking only the decision that applied the ordinance to his or her property, not the

ordinance in general.”). The dedication ordinance does

not mandate an inquiry into whether Ward County

needs right of way for future road construction projects. So the County Commission cannot be faulted for

App. 54

failing to apply a nonexistent provision of the ordinance. The bottom line is that the County Commission

looked at the dedication ordinance, then looked at the

variance applications, and arrived at the conclusion

that the two were incompatible. That is not truly irrational government action. The as-applied claims end

there.

The heart of the Plaintiffs’ substantive due process theory, however, assails the dedication ordinance

as arbitrary, irrational, and unrelated to a legitimate

government purpose on its face. Because an alternative standard governs facial challenges in this context,

separate analysis is necessary. See Bellino Fireworks,

Inc., 332 F. Supp. 3d at 1095-96; Duffner, 2018 WL

1519378, at *5-6. The burden rests with the Plaintiffs

to prove that either (1) the dedication ordinance serves

no legitimate government purpose or (2) the dedication

ordinance is not rationally related to a legitimate purpose. See Karsjens v. Piper, 845 F.3d 394, 407-08 (8th

Cir. 2017). The Plaintiffs attack the dedication ordinance from both angles.

Addressing the first prong, “Legislative bodies are

given broad latitude in their legislative determinations, ‘and it is not the province of the courts to monitor

the inputs into each legislative decision.’ ” WMX Techs.,

Inc., 105 F.3d at 1201. To prevail on this ground, the

Plaintiffs must negate “every conceivable basis which

might support” the dedication ordinance. FCC v. Beach

Commc’ns, Inc., 508 U.S. 307, 315 (1993) (citations

omitted). The Plaintiffs begin by correctly noting

that a regulation’s “true” purpose is irrelevant when

App. 55

determining if that regulation is rooted in a legitimate

government purpose. See WMX Techs, Inc., 105 F.3d at

1201. But they then conduct an about face and proceed

to attack what they allege to be the dedication ordinance’s singular true purpose. Without pointing to one

iota of supporting evidence from the record, they assert

that the ordinance is intended to create a land bank

that allows Ward County to dodge eminent domain

proceedings. Merely speculating as to what the Plaintiffs believe the ordinance’s purpose to be is patently

not enough to carry the burden of proof.

Even if Ward County had enacted the dedication

ordinance to bypass eminent domain, that would not

matter because the ordinance is conceivably designed

to provide for public roads, a government interest that

the Plaintiffs concede is legitimate. Doc. No. 44, p. 29.

Countering the Plaintiffs’ conjecture is concrete evidence that the County Commission passed the dedication ordinance in response to local engineers and

developers expressing concern that the statutory 33foot right of way insufficiently accommodated the labor

and equipment demands of modem road projects. Doc.

No. 44-5 at 60:11-64:15. The Plaintiffs try to constrict

this apparent purpose by claiming the dedication ordinance cannot provide for the creation of roads because

it applies to property bordering preexisting roadways.

Though creative, this argument ignores that maintaining and rebuilding roads to allow for their safe operation and use is an equally plausible reason to acquire

right of way. The construction and operation of public

App. 56

roads yields a conceivable legitimate government purpose to sustain the dedication ordinance.

Furthermore, the ordinance is rationally related

to providing for public roads. Authorizing the acquisition of right of way where roads exist or might be built

in the future is clearly related to the dedication ordinance’s conceivable purpose of facilitating road construction and maintenance. Does the ordinance sweep

more broadly than necessary? Almost certainly. The

County will not always have an immediate need to construct or rebuild a road every time the ordinance requires a landowner to dedicate property. But on

rational basis review, an ordinance need not be narrowly tailored to the task at hand. See Heller v. Doe ex

rel. Doe, 509 U.S. 312, 321 (1993) (“[C]ourts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect

fit between means and ends. A [regulation] does not

fail rational-basis review because it is not made with

mathematical nicety or because in practice it results in

some inequality.”) (citations and internal quotation

marks omitted). The Plaintiffs have failed to demonstrate that there is no rational relationship between

the dedication ordinance and the provision of public

roads. The facial substantive due process claims likewise fail as a result.

The chief difficulty with substantive due process

claims like this one is that they call upon a court to

substitute its judgment for that of duly elected officials.

The solution to the Plaintiffs’ problems is as much political as it is legal, if not more so. The citizens of Ward

App. 57

County can elect leaders to change the dedication ordinance. Absent the kind of “truly egregious and extraordinary” circumstances that trigger the protections of

the Constitution, this Court will not.

VI. CONCLUSION

This opinion is far from a ringing endorsement of

Ward County’s dedication ordinance. Without question, counties possess the authority to take private

property to provide for public roads. But doing so via

legislative backdoor in a manner that avoids compensating landowners appears to infringe on a right enshrined in our Constitution. That right is not at issue

today. The dedication ordinance is not irrational, nor

does it deprive effected landowners of notice and an opportunity to be heard. Due process does not fit the bill.

Accordingly, no genuine dispute of material fact

remains, and the Defendants are entitled to judgment

as a matter of law. The Court has reviewed the entire

record, the parties’ filings, and the relevant legal authority. For the reasons above, the Defendants’ motion

for summary judgment (Doc. No. 40) is GRANTED.

The Plaintiffs’ motion (Doc. No. 42) is DENIED. The

complaint against the Defendants is hereby DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

App. 58

Dated this 10th day of March, 2020.

/s/ Peter D. Welte

Peter D. Welte, Chief Judge

United States District Court

App. 59

SANITARY REQUIREMENTS

Section 1.

Inspection.

After the adoption of this resolution, no building other

than those used for farming in the zoned areas of

Ward County shall hereafter be erected, reconstructed,

moved, or any work started upon same until proper

permits have been obtained from the Building Inspector as provided by this resolution. The building inspector shall not issue a permit until the following has been

determined:

A.

Source of Water Supply: Whenever a building

is to be and not connected to an approved

water supply, evidence shall be submitted

showing that the system to be provided is considered as being safe and satisfactory by the

State Health Department or other designated

agency.

B.

Sewage Disposal: Whenever a building to be

erected is not connected to an approved sanitary sewer system, evidence shall be submitted showing that the system and the method

of disposal are considered satisfactory by the

State Health Department or other designated

agency. Such information shall include leaching capabilities of the particular soil in question.

App. 60

ARTICLE 24

REGULATIONS GOVERNING THE SUBDIVISION

OF LAND WITHIN THE ZONED AREAS OF

CERTAIN PARTS OF THE UNINCORPORATED

PORTION OF WARD COUNTY

Section 1.

Purpose.

In order to provide for the proper arrangement of

streets in relation to other existing and planned

streets, and to the master plan of the City of Minot; to

provide for adequate and convenient open spaces, for

recreation, for light and air; in order to avoid congestion of population; in order to provide for traffic, for

utilities, for access of fire-fighting apparatus; in order

to provide for and improve the public health, safety

and general welfare of the County of Ward, the following rules and regulations for the plating and subdivision of zoned land within the County of Ward are made

part of this regulation in accordance with the laws of

the State of North Dakota:

A. All subdivisions of lands within six miles of

the City of Minot shall be subdivided according to the master plan of the City of Minot as

provided by Chapter 40-48 of the North Dakota Century Code.

Section 2.

Procedure.

Before preparing the general plan of a subdivision,

the subdivider should consult informally with the

County Planning Commission and the County Engineer concerning the relation of his property to existing

App. 61

conditions, future plans, community facilities, utilities

and services.

Section 3.

Tentative Approval.

A. The subdivider shall apply to the Planning

Commission for tentative approval of a subdivision plat.

B.

Three prints of the preliminary plan of the

subdivision shall be filed with the Planning

Commission at the time application for tentative approval is made. The plat shall comply

with the provisions of Section 5, Item A, of this

section. Fees charged for the filing of a subdivision plat shall be paid in full, on the basis of

estimated number of lots created, at the time

of application for tentative approval.

C.

The Planning Commission shall approve, approve conditionally or disapprove such preliminary plat. If approved with modification

or waiver of certain requirements by the Planning Commission, the reasons therefore shall

be specified. If approved conditionally, the

conditions and reasons therefore shall be

stated. In any conditional approval, the Planning Commission may require the subdivider

to submit a revised preliminary plat. If disapproved, the reasons for that action shall be

stated, and if possible, the Planning Commission shall make recommendations on the basis of which the proposed subdivision may be

approved.

App. 62

D. The action of the Planning Commission shall

be entered on the official records of the Planning Commission, including any conditions

imposed and the reasons for any disapproval

of a preliminary plat. The approval or disapproval of the Planning Commission shall be

noted on two prints of the preliminary plat,

one of which prints shall be returned to the

subdivider and the other retained by the Planning Commission.

E.

Tentative approval of a preliminary plat by

the Planning Commission is not an acceptance of the subdivision plat for record, but

is rather an expression of approval of a general plat as a guide to preparation of a subdivision plat for final approval and recording

upon fulfillment of all requirements of these

regulations.

F.

Tentative approval shall be effective for a

maximum period of twelve months, unless,

upon application by the developer, the Planning Commission grants an extension. If the

final plat has not been submitted for final approval within this time limit, a preliminary

plat must again be submitted to the Planning

Commission for tentative approval.

Section 4.

A.

Design Standards.

Streets and Alleys.

1.

The arrangement, character, extent,

width, grade and location of all streets

shall conform to the Master Plan and

App. 63

shall be considered in relation to existing

and planned streets, to topographical conditions, and to the proposed uses of lands

to be served thereby.

2.

Where it is now shown on the Master

Plan of the City of Minot, the arrangement of streets in a subdivision shall either:

a.

Provide for the continuation or appropriate projection of existing principal streets in surrounding areas; or

b.

Conform to a plan for the neighborhood approved or adopted by the

Planning Commission to meet a particular situation where topographical

or other conditions make continuance of or conformance to existing

streets impractical.

3.

Minor streets shall be so laid out that

their use by through traffic is discouraged.

4.

Where a subdivision abuts or contains an

existing or proposed major street, the

Planning Commission may, at its discretion, require marginal access streets,

reverse frontage of lots with a screen

planting contained in a no-access reservation along the rear property lines, deep

lots with rear service alleys, or other

treatment that it deems advisable to

give adequate protection to residential

App. 64

properties and afford separation of through

and local traffic.

5.

Private streets shall be prohibited.

6.

Reserve strips controlling access to

streets shall be prohibited except where

their control is definitely placed with the

county under conditions approved by the

Planning Commission.

7.

Street jogs shall be avoided.

8.

A tangent at least 100 feet long shall be

introduced between reverse curves on

major and secondary streets.

9.

When connecting street lines deflect from

each other by more than ten degrees, they

shall be connected by a curve of adequate

radius to insure clear visibility for all vehicles.

10. Intersecting streets shall be laid out at as

nearly right angles as possible, and no

such angle of intersection shall be less

than 60 degrees.

11. Property lines at street intersections

shall be rounded with a radius of ten feet,

or of a greater radius where the Planning

Commission may deem necessary. The

Planning Commission may permit chords

or cut-offs in place of rounded corners.

App. 65

12. Unless otherwise shown on the Master

Plan, right-of-way and roadway widths

shall be not less than as follows:

Class of Road

Right of Way

County Roads:

150 ft. (75' from centerline)

Township Roads

& Section Lines

80 ft. (40' from centerline)

Frontage Roads:

80 ft. (40' from centerline)

Rural Subdivision

Roads:

80 ft. (40' from centerline)

Plats proposed along roads shall donate

and dedicate to the public for public use

sufficient right-of-way to meet these requirements.

13. Subdivisions shall be of a design as to

provide building setbacks from the center

line of such highways as to conform to Article 20.

14. Half-streets shall be prohibited except

where essential to the reasonable development of the subdivision in conformity

with the other standards of these regulations, and where the planning commission finds it will be practicable to require

the dedication of the other half when the

adjoining property is subdivided. Wherever there exists a half-street adjacent to

a tract to be subdivided, the other half

shall be platted within such tract.

App. 66

15. Dead-end streets designed to be permanently without outlet shall be no longer

than 500 feet, and shall be provided at the

closed end with a turn-around having an

outside roadway diameter of at least 100

feet.

16. No street names will be used that will duplicate or be confused with the names of

existing streets. Streets that are now or

will eventually be continuations of existing streets shall be called by the names of

the existing streets.

17. All streets shall have a grade of not

less than 0.5 percent. No major street

shall have a grade in excess of 8 percent

and no other street shall have a grade in

excess of 10 percent, or as the Planning

Commission shall approve.

18. The width of all residential alleys shall be

20 feet; all other alleys shall be 30 feet.

19. Dead-end alleys should be avoided, but if

unavoidable, shall be provided with 50

feet in diameter turn-around facilities at

the closed end.

20. Minimum road standards for township

subdivision roads:

Section 6.

Outlot and Subdivision Plat Approval.

A. Final plats of outlots and subdivisions of land

located within the boundaries of the district(s)

covered by this Resolution shall be approved

App. 67

by the Board of Ward County Commissioners

in accordance with the procedures described

in North Dakota Century Code Section 1133.212 and/or as it may be amended. The

Ward County Planning Commission is hereby

empowered to investigate and to conduct public hearings into the public use and interest

proposed to be served by proposed plats and

to consider the public health, safety and welfare elements of. NDCC 11-33.2-12 paragraph

3 and, if relevant, the potential effect on the

value of adjoining property in making a recommendation for approval or disapproval to

the Board of Ward County Commissioners. No

outlot or subdivision plat of land included

within the boundaries of the zoning districts

covered by this Resolution shall be recorded

in the office of the Ward County Register of

Deeds until approved by the Board of Ward

County Commissioners.

B.

A parcel of land of 40 acres or more, or land to

be used for farming shall not require a plat so

long as it is not irregularly shaped, can easily

be described, and has access from a public

road.

Section 7.

Vacation.

Vacation of subdivisions, plats, outlets, streets or alleys

or any part thereof, shall be with the approval of the

Ward County Planning Commission and shall conform

to the rules as the Planning Commission may set

forth.

App. 68

Section 8.

A.

Variances.

Hardship.

1.

Where it can be shown in the case of

a particular proposed subdivision, that

strict compliance with the requirements

of these regulations would result in extraordinary hardship to the subdivider

because of unusual topography, or other

such conditions would result in retarding

the achievement of the objective of these

regulations, then the Planning Commission may vary, modify or waive requirements so that substantial justice may be

done and the public interest secured; provided that such variance, modification or

waiver will not have the effect of nullifying the intent and purpose of these regulations, or of the Master Plan.

2.

In no case shall any variance, modification or waiver be more than a minimum

easing of the requirements; in no case

shall it have the effect of reducing the

traffic capacity of any major or secondary

street; in no case shall it be in conflict

with existing zoning regulations.

3.

In granting variances, modification or

waivers, the Planning Commission may

require such conditions as will in its judgment; secure substantially the objectives

of the standards and regulations so affected.

App. 69

B.

Large Scale Developments.

1.

Section 9.

These regulations may be modified by

the Planning Commission in the case of

a plan for a new town or a complete community or neighborhood unit, with a building and development program which, in

the judgment of the Planning Commission, provides and dedicates adequate

public open spaces and improvements

for the circulation, recreation, education,

light, air and service needs of the tract

when fully developed and which provides

such covenants, financial guaranties, and

other legal assurances that the plan will

be followed and will be achieved.

Fees.

A. In order to cover the costs of examining plans,

advertising and holding public hearings, and

other expenses incidental to the approval of a

subdivision, the subdivider shall pay a fee at

the time of application for tentative approval

of a preliminary plat. Such fee will be based

upon the estimated number of lots created. At

the time of application for final approval of

the subdivision the required fee will be recalculated on the basis of the actual number

of lots created, and an adjustment of the fee

will be made, the subdivider to pay an additional amount or to receive a refund of any

portion of the fee if the subdivider fails to apply for final approval of the subdivision. If,

because of the failure of the subdivider to

App. 70

submit a final plat within 12 months after receiving tentative approval of a preliminary

plat, it is necessary to re-submit a preliminary

plat for tentative approval, the subdivider

shall be required to pay the fee currently in

effect at the time of resubmission.

B.

The fees for approval of a subdivision or outlot

plat shall be charged and collected at the following rates:

Number of Lots in Subdivision

Fee

1 to 25

$50.00

26 to 50

$75.00