IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2024 ND 172

Senske Rentals, LLC, Petitioner and Appellant

v.

City of Grand Forks, Respondent and Appellee

No. 20230397

Appeal from the District Court of Grand Forks County, Northeast Central 

Judicial District, the Honorable Lonnie Olson, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and Justice 

Bahr joined. Justice McEvers filed an opinion concurring in part and dissenting 

in part, in which Justice Crothers joined.

Daniel M. Baczynski (argued), West Fargo, ND, and DeWayne A. Johnston 

(on brief), Grand Forks, ND, for petitioner and appellant.

Jenna R. Bergman (argued), Minneapolis, MN, and Corey J. Quinton (on brief), 

Fargo, ND, for respondent and appellee.

Corrected Opinion Filed 9/13/24 by Clerk of the Supreme Court Corrected Opinion Filed 9/17/24 by Clerk of the Supreme Court
1

Senske Rentals v. City of Grand Forks

No. 20230397

Tufte, Justice.

[¶1] Senske Rentals appeals a district court order affirming a City of Grand 

Forks decision to specially assess property for street improvements. The central 

issue in this appeal is whether the City’s special assessment commission 

properly determined the benefits accruing to Senske’s property as required by 

N.D.C.C. § 40-23-07. We conclude N.D.C.C. § 40-23-07 requires a determination 

of special benefits independent of, and without regard to, the cost of the 

improvement project, and Senske has shown the City did not make such a 

determination. We reverse the district court order and remand to the City.

I

[¶2] Senske owns property in a subdivision affected by a City of Grand Forks 

improvement project to pave gravel roads and install street lighting. In January 

2021, the city council approved a resolution of necessity creating a special 

assessment district for the project and referred the project to the City’s special 

assessment commission. The City engineers prepared an estimate for the cost 

of the project, and notice was provided to affected property owners. The 

commission discussed the matter and found “[t]he benefits received from the 

project are for access, both for property and fire protection, dust suppression, 

pedestrian accommodations and provides some drainage control and to provide 

lighting for pedestrian safety.” The commission then voted to “assign benefits” 

to the affected property on the basis of frontage, sideage, and square footage.

[¶3] Property owners were notified of the potential assessments. Public input 

meetings were held in February and March of 2021 during which property 

owners expressed concerns regarding the assessments. The city council reviewed 

and approved amendments to the project and increased the City’s share of the 

project. The City opened construction bids and approved the low bid of $3.8 

million. Notice of the special assessments was provided to the affected property 

owners via letter in August 2022. At a public meeting on September 6, 2022, the 

city council passed a resolution directing the commission to levy special 
2

assessments in the amount of approximately $2.5 million on the property in the 

special assessment district.

[¶4] The commission held a public hearing on September 29, 2022. Jim Senske, 

on behalf of Senske Rentals, protested the proposed assessments, contesting the 

assessments as excessive. The commission ultimately approved the special 

assessments. Through counsel, Senske filed a letter of protest and appealed the 

special assessments to the city council.

[¶5] On October 24, 2022, the city council held a hearing on Senske’s appeal. 

Senke argued that the policy did not fairly allocate costs and that the commission 

did not determine the special benefit as required by law. Senske agreed the City 

provided “a very good cost analysis” but argued “when I look at legislative 

dictate that says the special assessment commission needs to look at a project 

and determine a benefit, I don’t see that as a cost analysis.” He asked the council 

to send the matter “back to the special assessment commission and say okay put 

a number on the benefit.” Senske explained he appeared at the commission 

meeting to discuss it and they said “you’ll have to go talk to the city 

engineering—we don’t make any of those determinations.” Mr. Senske 

emphasized his argument was the determination of benefit: “I don’t see that it is 

something that should first be dependent on cost.” He requested the city council 

“not accept special assessment commission’s failure to do the analysis required 

by law separate from the money.”

[¶6] At the city council hearing, Senske was asked if he agreed the special 

assessment commission had followed the policy, to which he said, “We don’t 

know that because they simply said . . . city council sent us the number. We’re 

taking that number and moving forward. There wasn’t any analysis done; there 

wasn’t a benefit found.” Referring to our decision in Bateman v. City of Grand 

Forks, 2008 ND 72, 747 N.W.2d 117, Senske explained that a city may consider a 

variety of possibilities for determining benefit and what it would be. After 

Senske concluded, a council member asked: “Don’t we always special assess 

based upon . . . the financial cost of the project per square foot? That’s the way 

we do it; that’s the way we’ve always done it? Correct?” The City Attorney 

responded, “I believe that’s correct.”
3

[¶7] The City’s attorney then provided an explanation of the statutory 

requirements for special assessments, the City’s adopted policy for assessments 

and benefits, how the policy was followed for this project, and case law relating 

to special assessments. The city council, concluding the commission followed the 

City’s policy and its actions were not arbitrary, capricious, or unreasonable, then 

approved the commission’s findings for the project. The city council denied 

Senske’s appeal and voted to approve the recommendations of the commission, 

certified the special assessments for the project, and approved the findings for 

the project.

[¶8] On November 23, 2022, Senske appealed to the district court, arguing the 

commission erred in its decision and the special assessment amounted to an 

unconstitutional taking. Senske also moved that additional evidence be 

submitted for the appeal and later moved to strike from the record a “Benefit 

and Assessment” chart. The court granted Senske’s motion to allow the record 

to be supplemented with an electronic recording of the October 24, 2022 appeal 

hearing, and denied his other motions. On October 13, 2023, the court affirmed 

the city council’s decision to approve the commission’s determination on the 

special assessments for the project. Senske appeals.

II

[¶9] Senske argues the district court erred in denying his motion to strike the 

“Benefit and Assessment” chart from the record on appeal. Senske also appeals 

the court’s denial of his untimely motion to supplement the record. The Benefit 

and Assessment chart is a critical document in this appeal because it contains the 

commission’s determination of the amount of benefits to each lot. Because it is 

unnecessary to our decision, we need not consider and do not address the district 

court’s denial of Senske’s motion to supplement the record.

[¶10] Senske argues the Benefit and Assessment chart should be excluded from 

the record on appeal because it violates N.D.C.C. § 28-32-44, which limits the 

record on appeal from an administrative order. Senske’s argument is misplaced 

because the record on appeal is not governed by N.D.C.C. § 28-32-44, which 

controls the certified record for administrative appeals, but by N.D.C.C. § 28-34-
4

01, which governs the record for appeals from decisions of a local governing 

body. Subsection 28-34-01(2), N.D.C.C., provides:

2. The appellee shall prepare and file a single copy of the record on 

appeal with the court. Within thirty days, or such longer time as 

the court by order may direct, after the notice of appeal has been 

filed in the court, and after the deposit by the appellant of the 

estimated cost of a transcript of the evidence, the local governing 

body shall prepare and file in the office of the clerk of the court 

in which the appeal is pending the original or a certified copy of 

the entire proceedings before the local governing body, or such 

abstract of the record as may be agreed upon and stipulated by 

the parties, including the pleadings, notices, transcripts of all 

testimony taken, exhibits, reports or memoranda, exceptions or 

objections, briefs, findings of fact, proposed findings of fact 

submitted to the local governing body, and the decision of the 

local governing body in the proceedings. If the notice of appeal 

specifies that no exception or objection is made to the local 

governing body’s findings of fact, and that the appeal is 

concerned only with the local governing body’s conclusions 

based on the facts found by it, the evidence submitted at the 

hearing before the local governing body must be omitted from 

the record filed in the court. The court may permit amendments 

or additions to the record to complete the record.

[¶11] Although the district court analyzed the issue under N.D.C.C. § 28-32-44, 

under N.D.C.C. § 28-34-01(2), the court also has discretion whether to allow 

amendments or additions to the record. Compare N.D.C.C. § 28-32-44(8) (“The 

court may permit amendments or additions to the record filed by the 

administrative agency in order to complete the record.”) with N.D.C.C. § 28-34-

01(2) (“The court may permit amendments or additions to the record to complete 

the record.”). The question under both provisions is whether the court abused its 

discretion in declining to strike the Benefit and Assessment chart from the 

record.

[¶12] As required under N.D.C.C. § 28-34-01(2), the city council filed the record 

on appeal in December 2022. Section 28-34-01(2), N.D.C.C., permits amendments 

to the record. The district court found Senske’s motion to strike the Benefit and 

Assessment document was made approximately eight months after the record 
5

had been filed—months after the deadline for filings related to completeness of 

the record—and Senske provided no reasonable grounds for delay. The court 

also found the documents were appropriate to be included in the record on 

appeal.

[¶13] The district court had discretion whether to strike the document from the 

record filed by the city council. N.D.C.C. § 28-34-01(2). The court’s findings that 

the document was relevant and that Senske’s motion was untimely and provided 

no grounds for delay are supported by the record. We conclude the court did not 

abuse its discretion in denying Senske’s motion to exclude the Benefit and 

Assessment chart from the record.

III

[¶14] Senske argues the commission failed to perform the required benefit 

analysis under N.D.C.C. § 40-23-07. To address this claim, we must first consider 

our scope of review and the statutory framework governing special assessments.

A

[¶15] Our scope of review in an appeal from a decision of a local governing body 

is the same as the district court’s. Senske Rentals, LLC v. City of Grand Forks, 2023 

ND 55, ¶ 10, 988 N.W.2d 598 (“Senske I”). Our review of challenges to special 

assessments is limited in part because of the separation of powers doctrine:

The special assessment commission is in essence a legislative 

tribunal created by legislative authority to (1) determine the benefits 

accruing to the several tracts of land in an improvement district by 

reason of the construction of an improvement and (2) assess the costs 

and expenses thereof against each tract in proportion to the benefit 

received. Accordingly, judicial review is limited to assuring that 

local taxing authorities do not act arbitrarily, capriciously, or 

unreasonably. Courts are not to act as a super grievance board, and 

we do not try special assessment cases anew or reweigh the 

evidence. Rather, we begin with the presumption that assessments 

for local improvements are valid, and the burden is on the party 

challenging the validity of the assessments to demonstrate they are 

invalid.

Filed by Clerk of Supreme Court 9/13/24
6

Id. (cleaned up).

[¶16] We “independently determine the propriety of the [governing body’s] 

decision without giving special deference to the district court decision.” Grand 

Prairie Agric., LLP v. Pelican Twp. Bd. of Supervisors, 2021 ND 29, ¶ 6, 955 N.W.2d 

87 (quoting Gowan v. Ward Cnty. Comm’n, 2009 ND 72, ¶ 5, 764 N.W.2d 425). “The 

governing body’s failure to correctly interpret or apply the law is arbitrary, 

capricious, and unreasonable conduct.” Id.

[¶17] The interpretation of an ordinance or a statute is a question of law, which 

is fully reviewable on appeal. Hagerott v. Morton Cnty. Bd. of Comm'rs, 2010 ND 

32, ¶ 13, 778 N.W.2d 813.

Our primary purpose in interpreting a statute is to determine 

the legislative intent, and we start with the plain language of the 

statute and give each word of the statute its ordinary meaning. City 

of Fargo v. Hofer, 2020 ND 252, ¶ 8, 952 N.W.2d 58. We give words 

their plain, ordinary, and commonly understood meaning, unless 

they are specifically defined or a contrary intention plainly appears. 

N.D.C.C. § 1-02-02. Statutes are construed as a whole and are 

harmonized to give meaning to related provisions. Gooss v. Gooss, 

2020 ND 233, ¶ 7, 951 N.W.2d 247. “We presume the legislature did 

not intend an absurd or ludicrous result or unjust consequences, and 

we construe statutes in a practical manner, giving consideration to 

the context of the statutes and the purpose for which they were 

enacted.” Laufer v. Doe, 2020 ND 159, ¶ 11, 946 N.W.2d 707 (quoting 

PHI Fin. Servs., Inc. v. Johnston Law Office, P.C., 2020 ND 22, ¶ 10, 937 

N.W.2d 885).

Grand Prairie Agric., 2021 ND 29, ¶ 7. “The statutes granting cities the power to 

make special assessments must be strictly construed, and the conditions imposed 

must be specifically observed and performed.” Nandan, LLP v. City of Fargo, 2015 

ND 37, ¶ 15, 858 N.W.2d 892 (citing Dakota Land Co. v. City of Fargo, 224 N.W.2d 

810, 813 (N.D. 1974)). “The omission of any of the statutory conditions is fatal to 

the legality of all proceedings attempted to be had under it.” Id.

B

[¶18] Section 40-23-07, N.D.C.C., governs determinations of special assessments:
7

The commission shall determine the amount in which each of the 

lots and parcels of land will be especially benefited by the 

construction of the work for which such special assessment is to be 

made, and shall assess against each of such lots and parcels of land 

such sum, not exceeding the benefits, as is necessary to pay its just 

proportion of the total cost of such work, or of the part thereof which 

is to be paid by special assessment, including all expenses incurred 

in making such assessment and publishing necessary notices with 

reference thereto and the per diem of the commission.

See also N.D.C.C. §§ 40-23-11 (“No assessment shall exceed the benefits as 

determined by the commission to the parcel of land assessed.”), 40-23-15 (“[N]o 

assessments as adjusted shall exceed the benefits to the parcel of land on which 

it is assessed as determined by the assessment commission.”).

[¶19] We have long identified three primary requirements that must be satisfied 

for a special assessment to comply with N.D.C.C. § 40-23-07:

The special benefit accruing to each lot or parcel of land from the 

improvement must be determined. The special assessment levied 

against each lot must be limited to its just proportion of the total cost 

of the improvement. The assessment against any lot or parcel of land 

must not exceed the benefit which has been determined to have 

accrued thereto.

Senske I, 2023 ND 55, ¶ 12; Hector v. City of Fargo, 2012 ND 80, ¶ 42, 815 N.W.2d 

240; Bateman, 2008 ND 72, ¶ 11; Cloverdale Foods Co. v. Mandan, 364 N.W.2d 56, 

61 (N.D. 1985); Northern Pac. Ry. Co. v. City of Grand Forks, 73 N.W.2d 348, 351 

(N.D. 1955).

[¶20] When reviewing the determination of benefits accruing to each lot under 

the first part of this test, we have stated:

In summary, a reviewing court may not reverse a local 

governing body’s action simply because it finds some of the material 

considered more convincing. A reviewing court can only reverse 

when there is such an absence of evidence or reason as to amount to 

arbitrary, capricious, or unreasonable action. As such, a 

municipality has broad discretion to determine benefits and 

apportion assessments and costs to properties within an 
8

improvement district. There is no exact formula for quantifying 

benefits. An assessment may be apportioned according to frontage, 

area, value of, or estimated benefits to, the property assessed, or 

according to districts or zones, or on any other reasonable basis that 

is fair, just, and equitable.

Senske I, 2023 ND 55, ¶ 14 (cleaned up).

C

[¶21] Section 40-23-07, N.D.C.C., plainly outlines three primary requirements 

the commission must follow in making special assessments. First, the 

commission must determine the amount of special benefit to each lot from the 

improvement. Second, the commission must assess against each lot “its just 

proportion” of the costs to be specially assessed, whether that is the “total cost” 

or a “part thereof which is to be paid by special assessment.” Third, those two 

amounts must be compared to ensure the special assessment against each lot 

does “not exceed[] the benefits.”

[¶22] Much of the statutory structure for municipal special assessments 

originated in the 1905 act. See Scott D. Wegner, Not So Special: Special Assessments 

and the Fading Concept of Benefit, 97 N.D. L. Rev. 67 (2022). The language at issue 

here is in all material respects unchanged from the 1905 act, which required the 

commission to:

determine the amount in which each of said lots and parcels of land 

will be especially benefitted by the construction of the work . . . and 

thereupon assess against each of such lots and parcels of land, such 

sum, not exceeding such benefits, as shall be necessary to pay its just 

proportion of the total cost of such work, or such part thereof as is 

to be paid by special assessment . . . .

1905 N.D. Sess. Laws ch. 62, § 166. Since 1905, the most significant changes in the 

statutory scheme or our review of actions taken under it were the removal of trial 

de novo in the Supreme Court, Haman v. City of Surrey, 418 N.W.2d 605, 607 (N.D. 

1988), and the removal of the requirement that commissioners personally view 

the lots to be assessed. D&P Terminal, Inc. v. City of Fargo, 2012 ND 149, ¶ 15, 819 

N.W.2d 491.
9

[¶23] Our jurisprudence has consistently, if not always clearly, distinguished 

between a claim that the commission erred in determining benefit and a claim 

that the commission failed to follow the process required by statute. Bateman, 

2008 ND 72, ¶¶ 10-11 (describing “statutory requirements that must be 

followed” while declining to reweigh evidence or try cases anew); Haman, 418 

N.W.2d at 607-08 (affirming City on “critical factual issue” of the extent of benefit 

after two-day bench trial and separately considering whether required statutory 

notice was provided); Soo Line R.R. Co. v. City of Wilton, 172 N.W.2d 74, 79 (N.D. 

1969) (distinguishing question of whether there is substantial evidence to 

support the decision of the special assessment commission from question of 

whether there was a defect in the proceedings); Hale v. City of Minot, 201 N.W. 

848, 849 (N.D. 1924) (concluding Hale stated a cause of action by pleading the 

City had “wholly failed to follow the requirements of the statute in determining 

the benefits and making the assessments”). We defer on a commission’s factual 

determinations, but we do not defer on questions of legal interpretation, 

including whether the required process has been followed. Hector, 2012 ND 80, 

¶ 13 (“A local governing body’s failure to correctly interpret and apply 

controlling law constitutes arbitrary, capricious, and unreasonable conduct.”). If 

the statutory process was followed, we defer to the commission’s factual 

determination of benefits based on its consideration of the information before 

it—we do not reweigh the information the commission relied on in determining 

special benefit.

[¶24] The commission must have some basis for its determination of benefits. 

Northern Pac. Ry. Co., 73 N.W.2d at 352 (reversing and remanding for entry of 

injunction where record contained “only the statement the benefits exceeded the 

assessment” and each lot’s assessment was made “without regard to its location, 

character, present use or adaptability for future use”). Our cases consistently 

describe the factual information considered by the commission as the basis for 

determining benefits. See, e.g., Bateman, 2008 ND 72, ¶¶ 22-24; Serenko v. City of 

Wilton, 1999 ND 88, ¶ 23, 593 N.W.2d 368; Farmers Union v. Grand Forks Cnty., 

443 N.W.2d 907, 909 (N.D. 1989); Haman, 418 N.W.2d at 607-09.

[¶25] The “amount” of special benefit to a lot is related to but distinct from its 

“just proportion.” Section 40-23-07 provides: “The commission shall determine 
10

the amount in which each of the lots and parcels of land will be especially 

benefited by the construction of the work for which such special assessment is to 

be made.” It is this “amount” that is then used to limit the assessment to “such 

sum, not exceeding the benefits.” In order to compare two things and determine 

whether one exceeds the other, they must be in the same unit of measurement. 

A special assessment will be denominated in dollars. To ensure the assessment 

does not exceed the benefits, the “amount” of special benefit must also be in 

dollars. The statute’s limitation of assessment not exceeding benefit protects 

against concerns of unconstitutional takings. Bateman, 2008 ND 72, ¶ 20 (citing 

Cloverdale Foods, 364 N.W.2d at 61). The statute’s requirement that assessments 

on a lot be in “just proportion” to benefit also protects against due process 

concerns. Northern Pac. Ry. Co., 73 N.W.2d at 350-51 (“compliance with the 

foregoing statutory requirements [Section 40-2307 (N.D.R.C. 1949)] would 

undoubtedly remove all constitutional objections”).

[¶26] We have approved the use of “formulas” by special assessment 

commissions in determining benefit. We have not carefully distinguished 

between determining the amount or the proportion. The cases show we have 

approved formulas in situations where the “formula” was applied to determine 

relative benefits for purposes of “just proportion” and also as a factor in 

determining the amount of benefit to a lot. We have used the term “formula” in 

reference to apportionment by front feet, square feet, and sideage. See, e.g., 

Bateman, 2008 ND 72, ¶ 3. These “formulas” can only yield a relative benefit, not 

an absolute benefit.

D

[¶27] We recognize the importance of stare decisis in maintaining stability in the 

law, but we must also ensure that our interpretations faithfully reflect the plain 

meaning of statutes and give effect to intent expressed in the legislation. The 

doctrine of stare decisis is not absolute, and it is our duty to correct prior errors, 

particularly when new arguments or different facts reveal flaws in our previous 

reasoning. See Green v. Green, 2009 ND 162, ¶ 5, 772 N.W.2d 612 (overruling Lagro 

v. Lagro, 2005 ND 151, 703 N.W.2d 322); Kadrmas, Lee & Jackson, P.C. v. Bolken, 508 

N.W.2d 341, 345-46 (N.D. 1993) (overruling Erenfeld v. Erenfeld, 196 N.W.2d 406 
11

(N.D. 1972) and adopting the reasoning of the dissenters). Although Holter v. City 

of Mandan, 2020 ND 202, 948 N.W.2d 858, is a recent decision of this Court, and 

we acknowledge there is a need for stability in the law, there is also a need to 

faithfully interpret statutes according to their plain meaning, giving effect to 

statutory commands. It is important for us to correct an error when new 

arguments are made or different facts in the record lead us to conclude a prior 

interpretation was incorrect. Here, we reexamine N.D.C.C. § 40-23-07 in light of 

additional arguments and a better-developed record compared to Senske I. We 

conclude that Holter misinterpreted key aspects of the statute governing special 

assessments.

[¶28] This Court’s decision in Holter v. City of Mandan misinterpreted N.D.C.C. 

§ 40-23-07 by approving an assessment process that treated the determination of 

benefits as the same as the allocation of costs, rendering superfluous the 

requirement to ensure a lot’s assessments do not exceed benefits to that lot. By 

relying on the City’s decision to pay $225,000 from general funds and specially 

assess the remainder, the majority did not account for section 40-23-07, N.D.C.C., 

which expressly contemplates that only ”part thereof which is to be paid by 

special assessment.” Despite acknowledging the Mandan policy used “benefit” 

and “assessment” interchangeably, Holter, 2020 ND 202, ¶ 21, the majority 

approved a method that used the same formula to determine both cost and 

benefit. Prior to Holter, we had consistently recognized two separate statutory 

requirements relating to determination of benefit: (1) assessment in proportion 

to each lot’s special benefit and (2) assessment not exceeding the benefit to each 

lot. By extending our prior approvals of formulas, Holter merged the two 

separate statutory requirements for determination of benefits. See Wegner, supra, 

at 114 (“As one commentator stressed, ‘[i]n order to understand the procedures 

usually followed, it is important to distinguish between the allocation of costs 

and the allocation of benefits.’”). For the reasons stated in the dissenting 

opinions, this was error, and Holter is to that extent overruled. Holter v. City of 

Mandan, 2020 ND 152, ¶¶ 26-42, 946 N.W.2d 524 (Tufte, J., dissenting); Holter, 

2020 ND 202, ¶¶ 43-46 (Jensen, C.J., dissenting from denial of petition for 

rehearing). Insofar as it permits a determination of special benefits to a lot to be 

calculated as a share of the costs, Holter is overruled. To be clear, section 40-23-

07, N.D.C.C., permits allocation of the entire cost, but only if the cost assessed to 
12

each lot is “not exceeding the benefits.” Even if we assume the decision to move 

forward with the project was a legislative judgment that the total project cost did 

not exceed the total project benefit, the commission may specially assess to a lot 

only those project costs that do not exceed the amount the lot is “especially 

benefited by the construction of the work.”

[¶29] The actions of the City and the majority opinion in Holter flow from the 

imprecision in our prior decisions approving of “formulas.” Holter, 2020 ND 202, 

¶ 18 (collecting cases). Formulas involve math. Lawyers often acknowledge 

math as a weakness. Many are fond of saying they went to law school because 

they were bad at math. See Arden Rowell & Jessica Bregant, Numeracy and Legal 

Decision Making, 46 Ariz. St. L.J. 191, 193 (2014) (“judges and jokesters alike share 

the assumption that attorneys struggle with numbers”). Despite the risks of 

mixing law and math, the problem we resolve here is one familiar to lawyers: 

inconsistent understandings of the word “formula.” We illustrate the 

permissible and impermissible application of formulas to better explain our 

reasoning.

[¶30] In Bateman, we approved use of a “front footage formula.” 2008 ND 72, 

¶ 3. The challenge in Bateman was to the City’s apportionment of assessments. 

Id. at ¶¶ 1, 8, 15. We said, “There is no precise formula for quantifying benefits,” 

which reasonably may be understood to mean determining a quantity or amount 

of benefits. Id. at ¶ 16. But the decision approves only of assessing according to 

frontage to “secure an assessment in proportion to the benefits” and thus satisfy 

the statutory requirement for “just proportion.” Id. See also Serenko, 1999 ND 88, 

¶¶ 21-23 (approving of square footage formula to satisfy statutory directive of 

“just proportion” and rejecting invitation to reweigh evidence of special benefit); 

Cloverdale Foods, 364 N.W.2d at 61-62 (approving formula to apportion benefits); 

Buehler v. City of Mandan, 239 N.W.2d 522, 525-26 (N.D. 1976) (rejecting argument 

that “special assessment commission is required to apply the provisions of 

Chapter 40-23.1, N.D.C.C., when it uses square feet as a factor in determining 

special benefits”).

[¶31] Our decision in Hector v. City of Fargo describes “a formula to determine 

the benefit a property receives for various projects based on front footage or 
13

square footage.” 2012 ND 80, ¶ 44. The City of Fargo “formula does not consider 

the actual cost of the improvements and the benefit calculated is generally less 

than the actual cost.” Id. Other than front footage or square footage, the opinion 

does not indicate what other information the formula depends on. Id. Our 

decisions in Hector and later that year in D&P Terminal, Inc., rejected a challenge 

to the same Fargo assessment policy. 2012 ND 149, ¶ 10. These decisions ratify a 

use of formulas in support of benefit determinations that is consistent with our 

interpretation of N.D.C.C. § 40-23-07 here. In both cases, a formula was used to 

determine relative benefit between lots for purposes of allocating special 

assessments according to the lots’ “just proportion” under the statute. D&P 

Terminal, at ¶¶ 9-10. In each case, the separate requirement that assessments not 

exceed benefits was not at issue, and, moreover, the policy specified that benefit 

was determined without regard to cost and applied as a cap or a maximum 

assessment, consistent with that requirement.

[¶32] One simple formula to calculate the amount of benefit to a lot resulting 

from an improvement project might be: BENEFIT = (FRONTAGE FEET OF LOT) 

x (estimated BENEFIT per foot). Such a simple formula could be used to 

determine benefit, but to get a number or amount of benefit out of the formula, 

we must supply a number for benefit per foot. If the commission starts with the 

total project cost and the total area of all lots in the improvement district, the 

formula would cancel out to a simple cost allocation. The commission can use 

this formula to determine that a lot with 150 front feet benefits twice as much as 

a lot with 75 front feet. But until it determines how many dollars per front foot a 

lot will benefit, it cannot arrive at an amount that either lot is especially 

benefitted.

[¶33] If, as the majority concluded in Holter, it sufficed to specially assess only 

part of a project, Holter, 2020 ND 202, ¶ 21, the “not exceed the benefits” language 

would be superfluous. To illustrate with an example, suppose the commission 

determines total cost for a proposed improvement is $1,000,000. If the city 

resolves to pay $225,000 from general revenue and specially assess the $775,000 

remainder, that would constitute assessment of a “part thereof which is to be 

paid by special assessment.” N.D.C.C. § 40-23-07. Suppose, due to the nature of 

the project, the general benefit to the city as a whole is $500,000, and the special 
14

benefit to the property in the improvement district is $500,000. If the hypothetical 

district consists of ten similarly situated lots fronting on the improvement and 

benefitting equally, and each lot benefits in proportion to its frontage, then each 

lot receives $50,000 in special benefit and would be assessed $77,500 as its “just 

proportion” of the amount specially assessed. In this hypothetical, a formula is 

used to determine both special benefit and just proportion of assessed cost. It is 

clear that the “not exceeding the benefits” requirement would be violated here 

because applying the special benefit per lot as a “cap” or “maximum” indicates 

that the lots may not be assessed more than the $50,000 per lot special benefit. 

This becomes apparent only if the determination of special benefit, here, $500,000 

for the district or $50,000 per lot, is determined as the commission’s exercise of 

judgment independent of the project costs. The city or its commission must make 

two judgments: 1) does the total of the present and likely future benefits resulting 

from a project exceed the total cost of the project; and 2) what portion of the 

benefits of the project are received by the city at large or the general public and 

what portion are special benefits to the property in the district.

E

[¶34] The applicable portion of the City policy applied by the commission states:

The determination of benefits is the jurisdiction of the Special 

Assessment Commission.

. . . .

A common method of distributing benefits often used by the 

Commission is to assign half of the benefit of a street or utility to 

properties on each side of the street or utility. Thereafter, the 

assignment of benefits is further distributed among the properties 

on each side.

. . . .

Typical benefits are based on effective front footage with 1.0 for 

frontage, 1/3 for sideage, and variable for rearage (if utilized). 

Square footage may be used if distribution by effective front footage 

results in an unbalanced distribution, such as odd shaped 

commercial lots.

Each property receives a “frontage” benefit for the street paralleling 

the front of the lot and a “sideage” benefit for the nearest street 
15

paralleling the side of the lot. Properties that “side” near a classified 

street are given a sideage from their nearest local street in lieu of 

from the classified street.

[¶35] Here, the commission determined the benefit in accordance with the City’s 

policies, finding:

 9. Benefits received from the project are for access, both for 

property and fire protection, dust suppression, pedestrian 

accommodations and provides some drainage control and to 

provide lighting for pedestrian safety. 

10. That the Commission has received no comments or objections 

with respect to the special assessments. . . .

. . . . 

12. That the special assessments levied against the property 

described in attachment A [the Benefit and Assessment chart] 

are made in accordance with the city’s standardized policies and 

formulas utilizing square footage & frontage assessments.

[¶36] Senske’s argument emphasizes the lack of evidence in the record that a 

benefit analysis was completed. The record contains only the Benefit and 

Assessment chart. The City argues the Benefit and Assessment chart is sufficient 

to show it complied with the statute. The commission tersely determined that 

Senske’s properties benefited from the project, and approved the chart listing 

each parcel’s property number, legal description, units, benefit and assessment. 

Senske did not provide a specific argument on the method the commission 

should have used to determine the benefit. That is not his role, nor is it the role 

of this Court. “Where the record is silent as to how benefit was determined, [1] 

we presume the determination of benefit is consistent with applicable ordinance 

and policy and [2] the resulting assessment is valid, and Senske has the burden 

to demonstrate the determination of benefit did not comply with N.D.C.C. § 40-

23-07.” Senske I, 2023 ND 55, ¶ 16.

[¶37] Senske met his burden to show the determination of benefit did not 

comply with N.D.C.C. § 40-23-07. Northern Pac. Ry Co., 73 N.W.2d at 351. Unlike 

in Senske I, the record here shows Senske repeatedly argued to the city council 

that the statute required the special assessment commission to determine an 

amount of benefit based on independent judgment and evidence, and not simply 
16

make a cost allocation. After arguing for an independent determination of benefit 

to be applied as a limit under the statute, the City conceded it had conducted a 

cost allocation rather than an independent determination of benefit. One council 

member asked: “Don't we always special assess based upon ... the financial cost 

of the project per square foot? That's the way we do it, that's the way we've 

always done it? Correct?” The City Attorney responded, “I believe that's 

correct.” That acknowledgment of applying a straight cost allocation without 

regard to benefit sets this case apart from our cases prior to Holter.

[¶38] Before Holter, our special assessment decisions rejected appeals asking us 

to reweigh or reconsider evidence on which the special assessment commission 

made its finding of benefits. See, e.g., Bateman, 2008 ND 72, ¶ 24; Haman, 418 

N.W.2d at 607; Soo Line R.R. Co., 172 N.W.2d at 79-82. In Holter, after twice being 

asked to make findings on benefit, the commission simply stated its bottom line 

finding that the policy was applied to decide the “benefits and costs” to each 

parcel in the amount of $15,928.40. 2020 ND 202, ¶ 6.

[¶39] Here, like in Northern Pac. Ry. Co. v. City of Grand Forks, the City presented 

nothing but a conclusory statement: “There is only the statement the benefits 

exceeded the assessment.” 73 N.W.2d at 352. In Northern Pacific, this Court 

reversed the district court’s dismissal of an action to enjoin special assessments 

for a parking lot. Id. at 350. The district court heard testimony from the chairman 

of the special assessment commission about how benefits were determined 

“upon a front footage basis . . . without regard to its location, character, present 

use or adaptability for future use.” Id. at 351-52. We explained: “At what rate per 

front foot benefits were determined is not shown by the record.” Id. at 352. 

Because the record revealed only the application of a front footage formula and 

nothing to show how the amount per front foot was determined, we “presumed 

from the record that the amount necessary to levy against each front foot in order 

to raise the amount of the cost of the parking lot was first computed and that the 

benefits were thereafter determined at a slightly greater sum per front foot.” Id.

at 352. Because the statute requires apportionment according to benefits, “the 

front footage method is only acceptable when it achieves that result.” Id.
17

[¶40] It bears emphasis that neither N.D.C.C. § 28-34-01 nor § 40-23-07 requires 

the commission to make detailed findings of fact. Section 40-23-07 requires the 

commission to exercise independent judgment in estimating present and future 

benefit based on evidence and personal knowledge. Here, Senske must show that 

the determinations made by the commission are arbitrary and capricious. The 

City’s conceded cost allocation incorrectly applies the law by determining 

benefits dependent on costs and is thus arbitrary, capricious, and unreasonable. 

Grand Prairie Agric., 2021 ND 29, ¶ 6.

IV

[¶41] We have considered the remaining arguments raised and conclude they 

are either unnecessary to the decision or are without merit.

[¶42] We reverse the order of the district court and remand to the City for a 

determination of special benefit to Senske’s lots independent of the cost of the 

project and application of that special benefit as a limit on assessments to each 

of Senske’s lots.

[¶43] Jon J. Jensen, C.J.

Jerod E. Tufte

Douglas A. Bahr

McEvers, Justice, concurring in part and dissenting.

[¶44] I agree with section II of the majority concluding the district court did not 

abuse its discretion denying Senske’s motion to exclude the Benefit and 

Assessment chart from the record. Majority, at ¶¶ 9-13. I respectfully disagree 

with the majority that the City’s determination of benefits was arbitrary, 

capricious, or unreasonable. I would affirm.

[¶45] Regarding section III, I agree with the majority that Senske argues there 

was no analysis done and no benefit found under N.D.C.C. § 40-23-07. Majority, 

at ¶¶ 6, 14. I also generally agree with subsections III(A) and (B) setting forth the 

scope of this Court’s review and the governing authority for determining special 
18

assessments. Majority, at ¶¶ 15-20. My disagreement lies in the majority’s view 

of Senske’s arguments and the majority’s statutory analysis.

[¶46] In my view, Senske’s argument fails on both points. There was a 

determination of benefit determined after considering the City’s policies and 

considering this specific project and input from the public. Senske repeatedly 

argues the wrong chapters of law and ignores the appropriate standard of 

review. Senske argues, “When weighing factual findings against the evidence, 

the Court considers whether factual conclusions ‘are reasonably supported by 

the greater weight of the evidence.’” Our scope of review in an appeal from a 

decision of a local governing body is the same as the district court and is very 

limited. Senske Rentals, LLC v. City of Grand Forks, 2023 ND 55, ¶ 10, 988 N.W.2d 

598 (“Senske I”) (relying on Tibert v. City of Minto, 2006 ND 189, ¶ 8, 720 N.W.2d 

921). Our review of challenges to special assessments is limited in part because 

of the separation of powers doctrine:

The special assessment commission is in essence a legislative 

tribunal created by legislative authority to (1) determine the benefits 

accruing to the several tracts of land in an improvement district by 

reason of the construction of an improvement and (2) assess the costs 

and expenses thereof against each tract in proportion to the benefit 

received. Accordingly, judicial review is limited to assuring that 

local taxing authorities do not act arbitrarily, capriciously, or 

unreasonably. Courts are not to act as a super grievance board, and 

we do not try special assessment cases anew or reweigh the 

evidence. Rather, we begin with the presumption that assessments 

for local improvements are valid, and the burden is on the party 

challenging the validity of the assessments to demonstrate they are 

invalid. 

Id. (cleaned up); see also Soo Line R.R. Co., 172 N.W.2d 74, 75 (N.D. 1969) (stating 

“the assessment of benefits made by the special assessment commission and 

confirmed by the city commission for street, curb, and gutter improvements 

which involve judgment and discretion will not be reviewed by the court, and it 

is not the province of the court to substitute its judgment for that of the 

commission making such decision, but merely to determine whether the 

commission was within its jurisdiction, was not mistaken as to the applicable 
19

law, and did not act arbitrarily, oppressively, or unreasonably, and to determine 

whether there is substantial evidence to support or justify the determination”).

[¶47] Chapter 40-23, N.D.C.C., governs assessments of benefits. As provided in 

N.D.C.C. § 40-23-05, when a special assessment is used to pay for an 

improvement, the municipality must estimate the total cost and “the governing 

body may direct assessments to be levied for the payment of all or any part of such 

cost . . . .” (Emphasis added.) See also Hector v. City of Fargo, 2012 ND 80, ¶ 37, 815 

N.W.2d 240 (noting a city may assess for all or any part of the total cost of an 

improvement). Under N.D.C.C. § 40-23-05, the city auditor is required to notify 

the chairman of the special assessment commission of the total cost, so far as it 

has been ascertained, and the commission must consider the cost in determining 

the special assessment.

[¶48] More specifically, determinations of special assessments and what 

properties are especially benefited by an improvement are addressed under 

N.D.C.C. § 40-23-07, stating in relevant part:

Whenever the commission makes any special assessment, the 

commission shall determine the particular lots and parcels of land 

which, in the opinion of the commission, will be especially benefited 

by the construction of the work for which the assessment is to be 

made. The commission shall determine the amount in which each of 

the lots and parcels of land will be especially benefited by the 

construction of the work for which such special assessment is to be 

made, and shall assess against each of such lots and parcels of land 

such sum, not exceeding the benefits, as is necessary to pay its just 

proportion of the total cost of such work, or of the part thereof which 

is to be paid by special assessment, including all expenses incurred 

in making such assessment and publishing necessary notices with 

reference thereto and the per diem of the commission. However, as 

an alternative to the procedure provided in this section, the special 

assessment commission may, in its discretion, determine and 

allocate the cost of special assessments in accordance with the 

method provided for in chapter 40-23.1.

[¶49] The following three requirements must be satisfied for a special 

assessment to comply with N.D.C.C. § 40-23-07:
20

The special benefit accruing to each lot or parcel of land from the 

improvement must be determined. The special assessment levied 

against each lot must be limited to its just proportion of the total cost 

of the improvement. The assessment against any lot or parcel of land 

must not exceed the benefit which has been determined to have 

accrued thereto.

Senske I, 2023 ND 55, ¶ 12 (quoting Bateman v. City of Grand Forks, 2008 ND 72, 

¶ 11, 747 N.W.2d 117). “This Court looks at whether, on its face, the legislative 

act was arbitrary, capricious, or legally unreasonable.” Id. at ¶ 13 (citing Holter 

v. City of Mandan, 2020 ND 202, ¶ 12, 948 N.W.2d 858). The majority views the 

statutory requirements as a step-by-step process, with each step to be completed 

independently. Majority, at ¶ 21. I view the requirements of N.D.C.C. § 40-23-07 

to be considered in their totality and not in a step-by-step process. The statute 

must also be considered in conjunction with N.D.C.C. § 40-23-05. While a city 

may have a policy that determines the benefits without considering the actual 

cost of the project, N.D.C.C. § 40-23-07 sets forth no particular requirement for 

determining the amount by which a property is especially benefited. See Hector, 

2012 ND 80, ¶ 5 (discussing a method by which the City of Fargo determined the 

amount a property benefits by using a formula without considering the “actual 

cost” of the improvement).

[¶50] A special assessment commission has discretion in determining the 

method of setting a dollar amount of a special benefit, and benefits may be 

conferred “by the valuation, front foot, area, or any other method.” Cloverdale 

Foods Co. v. City of Mandan, 364 N.W.2d 56, 61 (N.D. 1985). For example, in a case 

involving a waste-water lagoon facility improvement, the special assessment 

commission may determine the benefit based on the quantity of water 

consumption of the user. Id. at 62. I see nothing in N.D.C.C. § 40-23-07 that 

precludes a situation where the cost of the improvement and the benefit 

determined may not be the same. The special assessment must only be limited 

to the property’s just proportion of the total cost and may not exceed the benefit.

[¶51] Using cost as part of the formula to determine how much a property is 

especially benefited is a method consistent with the alternative means for 

specially assessing properties allowed for under N.D.C.C. § 40-23-07, which is to 

Filed by Clerk of Supreme Court 9/17/24
21

apply the method provided in chapter 40-23.1. The alternate method to 

determine special assessment uses specific assessment rates per square foot. 

N.D.C.C. § 40-23.1-03. Under this section, the special benefits are determined by 

applying a formula to the total costs. N.D.C.C. § 40-23.1-03(1)(a); -03(2)(b). Both 

methods provide a formula which requires a sum to be divided into the total cost 

of the improvement. N.D.C.C. § 40-23.1-03(1)(b); -03(2)(b). The second method 

specifically states the assessment rate for each assessible unit of frontage “shall 

be determined by dividing that portion of the total cost of the improvement 

representing special benefits by the aggregate sum of all assessable units.” N.D.C.C. 

§ 40-23.1-03(2)(b) (emphasis added). There is no legislative ban on determining 

the amount of special benefit based on the cost of the improvement.

[¶52] When reviewing the determination of benefits, we have stated:

In summary, a reviewing court may not reverse a local 

governing body’s action simply because it finds some of the material 

considered more convincing. A reviewing court can only reverse 

when there is such an absence of evidence or reason as to amount to 

arbitrary, capricious, or unreasonable action. As such, a 

municipality has broad discretion to determine benefits and 

apportion assessments and costs to properties within an 

improvement district. There is no exact formula for quantifying 

benefits. An assessment may be apportioned according to frontage, 

area, value of, or estimated benefits to, the property assessed, or 

according to districts or zones, or on any other reasonable basis that 

is fair, just, and equitable.

Senske I, 2023 ND 55, ¶ 14 (cleaned up).

[¶53] Here, the commission determined the special benefit in accordance with 

the City’s policies, as reflected in its September 29, 2022 findings:

1. That the Special Assessment Commission has jurisdiction and is 

exercising its judgment and discretion in the determination and 

certification of assessments and benefits for Project #7539, Special 

Assessment Improvement District #737.

. . . .
22

6. That the Special Assessment Commission is familiar with the area 

within the improvement district and is familiar with the project.

. . . .

8. That the Special Assessment Commission for the City of Grand 

Forks, North Dakota specifically finds that all properties within 

Project ... are especially benefited from the project and the amounts 

of the assessments are set forth in attachment A.

9. Benefits received from the project are for access, both for property 

and fire protection, dust suppression, pedestrian accommodations 

and provides some drainage control and to provide lighting for 

pedestrian safety. 

10. That the Commission has received no comments or objections 

with respect to the special assessments. The Commission considered 

all public comments, whether oral or written, concerning the project, 

the manner of assessments, the benefits therefrom, and objections 

thereto at the Special Assessment Commission Hearings on 

September 29, 2022. 

11. That the Special Assessment Commission finds that the project 

provides primary benefits to property located within Special 

Assessment Improvement District #737.

12. That the special assessments levied against the property 

described in attachment A are made in accordance with the city’s 

standardized policies and formulas utilizing square footage & 

frontage assessments.

[¶54] Much of Senske’s argument on appeal hinges on the lack of evidence in the 

record that a benefit analysis was completed. First, the term “benefit analysis” is 

not mentioned in N.D.C.C. § 40-23-07, and I have been unable to find any 

authority that a “benefit analysis” must be completed. The special assessment 

commission is required to determine the amount by which properties are 

especially benefited. How that determination is made is left to the discretion of 

the commission.
23

[¶55] Second, if there is a lack of evidence in the record, Senske bears at least 

part of the blame. Despite being given information on estimated costs and an 

opportunity to object to the project, Senske did not protest the project until after 

the notice of the special assessment was provided to benefited property owners. 

As noted by the majority, the district court did not abuse its discretion including 

the Benefit and Assessment chart as part of the record. Majority, at ¶ 13. The 

commission determined Senske’s properties especially benefited from the 

project, and included an amount for each affected property’s benefit. Senske has 

not argued his properties were not benefited by the project, only that he 

disagrees with the dollar amount of the benefit attributed. According to the 

minutes of the special assessment hearing held on September 29, 2022, “Senske 

shared that he is not happy with how the project went and thinks the properties 

are being assessed excessively. Senske expressed that he thinks excess costs are 

due to poor planning of the project . . . .” Senske did not provide a specific 

argument that the benefit determined was in error, nor did he provide any 

alternative method the commission should have used to determine the benefit. 

Rather, he has conceded that the commission likely followed the City’s policies 

for determining the benefit. “Where the record is silent as to how benefit was 

determined, we presume the determination of benefit is consistent with 

applicable ordinance and policy and the resulting assessment is valid, and 

Senske has the burden to demonstrate the determination of benefit did not 

comply with N.D.C.C. § 40-23-07.” Senske I, 2023 ND 55, ¶ 16.

[¶56] I see very little difference in this case and Senske I. The majority uses this 

case as a vehicle to overturn Holter, 2020 ND 202, in which Justice Tufte, joined 

by Chief Justice Jensen, dissented. Majority, at ¶¶ 27-29. While acknowledging 

the need for stability in the law, the majority justifies overturning Holter because 

we should correct an error when new arguments are made or different facts in 

the record lead us to conclude a prior interpretation is incorrect. Majority, at ¶ 27. 

While I agree with the premise, I disagree that Senske made any new legal 

argument or provided any new facts that would bring about a different result 

than that reached in Senske I.

[¶57] Here, as in Senske I, Senske relies on Justice Tufte’s dissent in Holter to 

argue the calculation used by the commission to determine the benefit did not 
24

satisfy N.D.C.C. § 40-23-07. Besides the dissent in Holter, the only case Senske 

cites involving North Dakota caselaw on special assessments is Bateman, 2008 

ND 72. The only new legal argument Senske makes here is that this Court should 

reverse because N.D.C.C. § 28-32-46(5) requires the commission to make detailed 

findings of fact that are supported by the preponderance of the evidence. This 

argument fails because N.D.C.C. § 28-32-46(5) does not apply to decisions of 

local governing bodies. Rather, Senske must show that the determinations made 

by the commission are arbitrary, capricious, or unreasonable.

[¶58] As in Senske I, Senske’s properties were assessed under the City’s Special 

Assessment Policy. 2023 ND 55, ¶¶ 15-17. In Senkse I, Senske argued the City’s 

method of deriving the benefit was in error stating, the “method employed by 

the Special Assessment Commission is to take the cost of construction provided 

by the City Engineer and divide that amount by the square foot of the property 

and assess it by 100% or 50% depending on the lot frontage or property type.” 

Here, the only new factual argument made is that there is a lack of evidence in 

the record that a benefit analysis was performed, an argument which could only 

be agreed with if this Court agreed the benefit analysis should be stricken from 

the record. Here and in Senske I1, the benefit was determined based on the cost 

of the project, using the cost of construction in accordance with the square 

footage of the property or according to lot frontage or lot sideage. The assessment 

was determined by reducing the cost by a percentage (20%) for the type of 

project. After issues were raised about the cost of the project, as noted by the 

district court, the record reflects the project’s unique circumstances were 

considered and adjustments were made to reduce the cost share of the 

assessment, resulting in apportioning approximately 50% to the City and 50% to 

the benefited property owners.

[¶59] According to the majority, Senske met his burden to show the 

determination of the benefit did not comply with N.D.C.C. § 40-23-07 based on 

the factual record. Majority, at ¶ 37. The majority states:

1

 In Senske I, 2023 ND 55, ¶ 2, the standard percentage of the City’s share of a pond project was 15%, but 

after considering the circumstances, the City’s share of the project was increased to 50%.
25

Unlike in Senske I, the record here shows Senske repeatedly argued 

to the city council that the statute required the special assessment 

commission to determine an amount of benefit based on 

independent judgment and evidence, and not simply make a cost 

allocation. After arguing for an independent determination of 

benefit be applied as a limit under the statute, the City conceded it 

had conducted a cost allocation rather than an independent 

determination of benefit. One council member asked: “Don’t we 

always assess based upon ... the financial cost of the project per 

square foot? That’s the way we do it, that’s the way we’ve always 

done it? Correct?” The City Attorney responded, “I believe that’s 

correct.” That acknowledgement of applying a straight cost 

allocation without regard to benefits sets this case apart from our 

cases prior to Holter.

Majority, at ¶ 37. I agree with the majority that a council member and the City 

Attorney made these statements. However, I disagree that this Court should 

treat the statements of a council member or the City Attorney as concessions that 

there was some error in applying N.D.C.C. § 40-23-07. While N.D.C.C. § 40-23-

07 requires the special assessment commission to use independent judgment or 

discretion, it does not preclude the use of a policy or a formula to determine how 

each property is especially benefited. The discretion may be applied in 

determining the method of setting a dollar amount for the benefit or in the 

determination of the assessment. Based on the evidence presented, that is exactly 

what was done. The commission used a policy as the method to determine the 

benefit. Based on city policy and the input from property owners, the amount of 

the assessment was reduced by an additional percentage based on the particular 

concerns for this project.

[¶60] The majority interprets N.D.C.C. § 40-23-07 to require the commission to 

exercise its judgment independent of the project’s costs, stating: 

The city or its commission must make two judgments: 1) does the 

total of the present and likely future benefits resulting from a project 

exceed the total cost of the project; and 2) what portion of the 

benefits of the project are received by the city at large or the general 

public and what portion are the special benefits to the property in 

the district.
26

Majority, at ¶ 33. Respectfully, the majority is engrafting requirements on special 

assessment commissions that are not contained in N.D.C.C. § 40-23-07.

[¶61] The discretion granted to a special assessment commission in determining 

benefits is broad:

Included within the broad discretion accorded to the special 

assessment commission is the discretion to choose the method used 

to determine benefits and apportion costs to individual properties 

within the improvement district . . . . Where no rule of 

apportionment is prescribed by statute or charter, the municipality 

may adopt any mode that would be fair and legal and such as would 

secure an assessment in proportion to the benefits accruing as nearly 

as practicable. Absolute equality in not to be expected. . . . The 

process of quantifying benefits accruing to each lot inevitably rests 

on the judgment and discretion of the special assessment 

commission. There simply is no precise formula for quantifying 

benefits. The statutory directive is just proportion, not absolute 

uniformity.

Serenko v. City of Wilton, 1999 ND 88, ¶¶ 21-22, 593 N.W.2d 368 (cleaned up) 

(emphasis added) (upholding assessment to apportion costs based upon square 

footage of the property where that method was determined by the special 

assessment commission to best approximate the benefits of a street repair project 

to the lots in the improvement district); Holter, 2020 ND 202, ¶¶ 18-23 (indicating 

“[t]he special assessment commission determined the benefits under the City’s 

policy, and the assessments do not exceed the benefits.”); Senske I, 2023 ND 55, 

¶ 17 (“[W]e have routinely approved the use of formulas such as front footage 

area or value to determine the benefits assessed to properties.”).

[¶62] As in Senske I, I would conclude Senske has not met its burden to show the 

assessments are invalid or that the commission failed to comply with the 

statutory requirements under N.D.C.C. § 40-23-07.

[¶63] As noted by the majority, the commission must have some basis for its 

determination of benefits. Majority, at ¶ 24 (relying on Northern Pac. Ry. Co. v. 

City of Grand Forks, 73 N.W.2d 348, 352 (N.D. 1955)). Northern Pacific does not 

stand for the proposition that formulas cannot be used to determine the amount 
27

a property specially benefits, but rather, this Court noted: “Where, as in this 

state, special assessments must be apportioned according to benefits the foot 

frontage method is only acceptable when it achieves that result. It can only be 

used in cases where benefits conferred upon the assessed property are equal and 

uniform.” 73 N.W.2d at 352. In Northern Pacific, this Court concluded that use of 

the foot frontage method of assessment of a parking lot resulted in the railway 

being assessed more than its proportionate share of the cost of the improvement. 

Id. at 354.

[¶64] I agree with the majority that the amount a property is especially benefited 

must be denominated in dollars. Majority, at ¶ 25. I disagree with the majority 

that the “amount” of special benefit to a property is necessarily related to but 

distinct from its “just proportion” of the costs. Id. It may be, depending on the 

method chosen for determining a dollar amount on the benefit to a property, but 

putting a dollar amount on property especially benefited in some instances can 

only be calculated using a proportionate share of the total cost. That does not 

mean the property owner is necessarily stuck paying the entire amount—that is 

what the special assessment commission is tasked with, determining a fair share 

of the cost depending on the type and “amount” of benefit received. As used in 

N.D.C.C. § 40-23-07, the term “amount” means more than just a dollar amount. 

See Black’s Law Dictionary (6th ed. 1990) (defining amount as “[t]he whole effect, 

substance, quantity, import, result, or significance”). Putting a dollar amount on 

the benefits received from a project such as the one at hand is difficult to quantify 

because some of the benefits are intangible. How do you place a dollar amount 

on the value of improved access to a property and for improved fire protection, 

dust suppression, pedestrian accommodations, drainage control, and lighting for 

pedestrian safety?

[¶65] Senske agreed that he wanted the project done but complained about the 

cost to him. It is clear that his property that abuts the improvements will be 

especially benefited (he benefits at a greater amount than the general public). 

Paving the roads improves access to his business and allows for quicker response 

times for fire suppression, and installing drainage and lighting protects his 

property. The majority is unrealistic in suggesting a municipality determine 

benefit, especially when benefits are intangible, without estimating how much 

Filed by Clerk of Supreme Court 9/17/24
28

the project will cost. Section 40-23-05, N.D.C.C., specifically requires, when a 

special assessment is required for an improvement, the municipality must 

estimate the total cost and forward the information to the special assessment 

commission. The statute also allows the governing body to direct assessments to 

be levied for the payment of all or any part of such cost. Id.

[¶66] The legislature has specifically rejected the notion that special benefit must 

be one that increases the market value of the parcel of land being assessed due 

to an improvement. See failed H.B. 1307, 66th Legis. Assemb. (N.D. 2019). Pulling 

some number out of the air to put a dollar value on how a property is especially 

benefited without first considering the cost of the project would certainly be 

viewed as arbitrary, capricious, or legally unreasonable. Rather, the cost of a 

project may be the starting point, and then the amount to be specially assessed 

as a proportional share to those properties especially benefiting from the project 

can be determined as compared to other taxpayers living in the City.

[¶67] After determining the total cost of $4.177 million, the commission applied 

its policy to determine the amount especially benefited to Senske by calculating 

and assigning the proportion of benefit based on different percentages, 

depending on whether the property was on a local street or a classified street. 

Local streets were assessed using 100% (meaning approximately 50% of the cost) 

of the benefit for frontage and 33% benefit for sideage. Classified streets were 

assessed using 100% (meaning 80% of the cost) of the benefit based on a square 

footage of the first 140 feet and 25% benefit for square footage beyond the first 

140 feet. The commission found, “All costs for this project will be special assessed 

to the benefitting properties except for an 80% City share for classified streets 

(27th & 24th Ave N.) and a 40% City share for local streets (20th & 26th Aves N and 

N 43rd & 44th Sts.).” The additional 40% cost sharing shows the special 

assessment commission applied its discretion, as this reduction was the result of 

public input meetings for the purpose of making the project more financially 

viable for property owners, and the result of the additional portion of the cost 

being taken on by the City resulted in and approximate 50/50 cost share.

[¶68] The majority takes issue with the use of formulas to determine benefit 

because “[t]hese ‘formulas’ can only yield a relative benefit not an absolute 
29

benefit.” Majority, at ¶ 26. The premise may be correct, but it is irrelevant. There 

is no requirement under N.D.C.C. § 40-23-07 to calculate an “absolute” benefit. 

That may be impossible. The absolute benefit to each property owner may vary 

depending on how they use their property. For example, a business with many 

customers accessing their property will receive a higher absolute benefit than a 

business that serves their customers offsite. A property owner that receives 

timely fire suppression will receive a higher absolute benefit than a property 

owner who has no fire to suppress. Yet, all property owners receive the 

opportunity to have a fire suppressed in a timely manner should it occur.

[¶69] The majority adopts a formula to calculate the amount of benefit to a lot 

resulting from an improvement project: BENEFIT = (FRONTAGE FEET OF LOT) 

x (estimated BENEFIT per foot). Majority, at ¶ 32. No such formula is required 

by N.D.C.C. § 40-23-07. Would the result have been different if the City first used 

80% of the cost of the project to estimate the special benefit to properties in the 

special assessment district? My answer is no. Whether the City’s policy was to 

only assess 80% of the cost or to cap benefits at 80% of the cost, either method 

satisfies the portion of N.D.C.C. § 40-23-07 that the benefit cannot exceed the 

cost. The special assessment commission considered the circumstances of these 

property owners and reduced the percentage to the assessments even further. 

This can hardly be considered arbitrary, capricious, or unreasonable. In my view, 

the special assessment commission may consider the total cost of the project 

when determining the dollar value of special benefits.

[¶70] Because the majority reverses, it deemed it unnecessary to address the 

discovery issue raised by Senske. Since I would affirm, I will answer the 

question. Senske argues the district court erred in denying discovery when the 

denied discovery was necessary to support an independent claim alleging an 

unconstitutional taking, which the court later dismissed. Because it is unclear 

whether this argument is distinct from the arguments regarding 

supplementation of the record, I address the discovery argument as part of that 

argument.

[¶71] Senske’s arguments to the district court to supplement the record included 

the certified record on appeal must have sufficient evidence upon which a court 
30

could determine whether a special assessment represents an unconstitutional 

taking. Senske further argued the city council was required to make a record of 

all testimony, written statements, documents, exhibits, and other evidence 

presented under N.D.C.C. §28-32-36, and was required under N.D.C.C. § 28-32-

44(4)(h), to produce a transcript of the hearing. Senske did not argue to the court 

this taking claim was an independent action as a separate legal reason to allow 

discovery. The court applied N.D.C.C. ch. 28-32 to the motions to supplement 

the record. The correct statute to apply is N.D.C.C. § 28-34-01 when considering 

whether to supplement the record on appeal from a local governing body.

[¶72] As noted in Grand Forks Housing Authorities v. Grand Forks Board of County 

Commissioners,

Section 28-34-01(3), N.D.C.C., allows a court to order 

additional evidence be taken, heard, and considered by the local 

governing body if the court determines that such additional 

evidence is material and that there are reasonable grounds for the 

failure to adduce such evidence in the hearing or proceeding had 

before the local governing body. When a statute provides that a 

court may order additional evidence be heard, the decision lies 

within the discretion of the court. Therefore, we review the district 

court’s denial of the Housing Authority’s motion to remand for an 

abuse of discretion. A district court abuses its discretion when it acts 

arbitrarily, capriciously, or unreasonably or when it misinterprets or 

misapplies the law.

2010 ND 245, ¶ 11, 793 N.W.2d 168 (cleaned up); see also Grand Forks Homes, Inc. 

v. Grand Forks Bd. of Cnty. Comm’rs, 2011 ND 50, ¶ 8, 795 N.W.2d 381 (applying 

the standard to N.D.C.C. § 28-34-01(3)).

[¶73] Under N.D.C.C. § 28-34-01(3), if the district court determines additional 

evidence is material and there are reasonable grounds for the failure to adduce 

such evidence in the hearing or proceeding before the local governing body, the 

court may order that such additional evidence be taken, heard, and considered 

by the local governing body. The district court found Senske’s motion to 

supplement the record with testimony, documents, and correspondence between 

committee members was untimely and Senske provided no reasonable grounds 

for the failure to offer the evidence in the proceeding below. The court also found 

Filed by Clerk of Supreme Court 9/17/24
31

the additional evidence was not relevant or material and that Senske admitted 

the additional evidence would be largely duplicative of the record prepared for 

the appeal. The court denied Senske’s request to supplement the record with 

documents or testimony, with one exception: the city council hearing recording.

[¶74] It was within the district court’s discretion whether or not to allow 

amendments or additions to the record. The court’s findings that the documents 

were not relevant or material, that Senske’s motion was untimely and provided 

no grounds for delay, and that the additional evidence was duplicative are 

supported by the record. The court granted Senske’s request to supplement the 

record with the recording of the city council’s hearing. Notwithstanding the 

court’s application of the wrong statute, applying the court’s findings under the 

correct statute, I would conclude the court did not abuse its discretion.

[¶75] Addressing more specifically Senske’s argument that the district court 

erred in denying it necessary discovery, I begin with the standard of review:

A district court has broad discretion regarding the scope of 

discovery, and the court’s discovery decisions will not be reversed 

on appeal unless the court abuses its discretion. A court abuses its 

discretion when it acts in an arbitrary, unreasonable, or 

unconscionable manner, when it misinterprets or misapplies the 

law, or when its decision is not the product of a rational mental 

process leading to a reasoned determination. An abuse of discretion 

by the district court is never assumed, and the burden is on the party 

seeking relief affirmatively to establish it. The party seeking relief 

must show that the court positively abused its discretion and not 

that the court made a “poor” decision.

Franciere v. City of Mandan, 2020 ND 143, ¶ 18, 945 N.W.2d 251 (cleaned up).

[¶76] Senske’s argument that “[b]ecause Senske was denied discovery, the court 

later dismissed the cause of action because it was based on ‘bare assertions’ 

instead of evidence” misconstrues the district court’s holding. Senske argued to 

the district court that the previous five years of assessments on its properties 

should be considered in determining whether an unconstitutional taking had 

occurred. The court held:
32

Senske has provided no legal authority for the proposition 

that a “takings” analysis must include any and all prior special 

assessments separate and distinct from the one specifically before 

the Court. Further, much of Senske’s legal argument on this issue is 

based on bare assertions.

[¶77] When a party fails to cite to any relevant authority it is not error for a 

reviewing court to consider the argument waived. See Krueger v. Grand Forks 

Cnty., 2014 ND 170, ¶ 30, 852 N.W.2d 354 (agreeing with the district court that a 

party’s failure to make an argument that is adequately articulated, supported, 

and briefed will not be considered).

[¶78] Senske cited no authority to the district court that it is entitled to discovery 

beyond the statutory provisions permitting amendments or additions to 

complete the record in an appeal from a local governing body, and no authority 

to support a holding that prior special assessments should be part of the record. 

I would conclude the court did not abuse its discretion in denying additional 

discovery when the request was not adequately supported.

[¶79] I would affirm, concluding the City’s determination of benefits was not 

arbitrary, capricious, or unreasonable.

[¶80] Daniel J. Crothers

Lisa Fair McEvers