Lawsuit seeks repeal
Farm groups to sue Ward County over right-of-way policy
The Ward County Farm Bureau and Ward County Farmers Union announced Monday they will file a lawsuit in federal court this week to challenge Ward County’s road right-of-way donation policy.
The groups allege the policy is a taking of private property without clear public need, due process or just compensation. The Fifth Amendment to the U.S. Constitution requires those criteria be met to take property, said Ward County Farmers Union President Bob Finken, Douglas.
“The present county policy is an unfair, illegal and disproportionate manner of funding public roads,” said John Pietsch, Minot, board member for the county Farm Bureau. “No one wants to go to court, but we honestly feel all avenues have been exhausted. Therefore, the only option is to take legal action against the Ward County Commission in federal court. The goal is to stop this 20-year-old policy before it has the ability to hurt any more Ward County landowners.”
Since 2015, Farm Bureau and Farmers Union members have protested the policy that requires landowners platting parcels of 40 acres or less to dedicate and donate right of way along county or township roads. The right of way is 75 feet on each side of a county road and 40 feet on each side of a township road.
By law, a statutory easement of 33 feet exists from the center of township and county roads, but easements differ from dedications in that the landowner retains ownership. With the dedication, the landowner donates the 33 feet plus the additional footage and no longer owns the land.
Last year, the county planning commission proposed eliminating the right-of-way policy, but the county commission rejected the change. Commissioners recently hired an engineering firm to begin drafting a comprehensive land use plan, which will include discussion on the right-of-way policy.
“I think the policy we have in place is pretty good,” Commission Chairman Alan Walter said. However, he added, there is room for change, particularly in instances in which roads will never be built or improved because of terrain or other circumstances. He noted the commission has approved variances to waive the donations in situations where there is no need for the right of way.
Pietsch said instances have occurred in which right of way had to be donated despite the slim likelihood of future road improvements. Taking land without an intent to use it is illegal, he said.
Ward County Commissioner John Fjeldahl, who has opposed the policy, called the lawsuit unfortunate.
“It’s too bad it couldn’t have gotten resolved a long time ago. I agree with their position on it. I don’t think we should take any right of way without compensation,” he said.
Pietsch said the county should have placed a moratorium on the policy while completing the comprehensive plan. Because that did not happen, the farm groups retained Frank Falen with Budd-Falen Law Offices in Cheyenne, Wyo., to proceed legally. They hope for a win in court to set a legal precedent regarding right-of-way policies that benefits landowners across the state and nation.
The lawsuit seeks the repeal of the policy and the groups’ court costs. Pietsch said he believes those who have paid for variances also should be reimbursed.
“But we want this policy ended, and the sooner the better,” he said.
The North Dakota Farm Bureau is providing technical and financial support.
“This is a grassroots movement to correct a government over-reach,” said North Dakota Farm Bureau President Daryl Lies, Douglas. “I am not afraid to call it a taking. I am not going to apologize for that term.”
County commissioners have objected to describing the donation policy as a “taking” and have cited the road improvement benefit to the landowner as a justification for the policy.
“First and foremost, both Ward County Farm Bureau and the Ward County Farmers Union place a high priority on safe, well maintained, quality roads,” Pietsch said. “We do have a disagreement with Ward County on how these roads should be funded. Second, it should be pointed out the township and county roads belong to the public. Therefore, the greatest burden of funding these roads shouldn’t be placed on the backs of individual landowners who’ve had the misfortune to plot at the wrong time. The present county policy is an unfair, illegal and disproportionate manner of funding public roads.”
Although the policy has been long-standing, it has become controversial in recent years due to its application beyond rural subdivision developments near Minot. Its reach has extended to young families establishing farm homes and agricultural producers making outlet changes to rural properties.
“The enduring commitment from both farm groups from the start was to work with Ward County honestly, respectfully and in good faith to resolve this unjust and unconstitutional policy. Ward County Farmers Union and Ward County Farm Bureau have made every effort to work with the Ward County commissioners with basically no results,” Pietsch said. “This legal action is taken as the last alternative in rectifying the constitutional rights violation by Ward County against its citizens.”
The county’s legal representation in a lawsuit would come under its coverage with the North Dakota Insurance Reserve Fund.