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Published September 05 2012

Developer sues Fargo for permit denial

FARGO – A north Fargo developer is suing the city for denying building permits on land the company was once able to develop but no longer can because of expansion of the Federal Emergency Management Agency flood plain.

City leaders will meet in executive session today to discuss the pending litigation brought by Highland Park Properties, LLC.

Cass County court records show Highland Park Properties’ complaint is dated Dec. 20, 2011; however, the lawsuit wasn’t filed in court until May 30. A trial is set for June 2013.

According to the developer’s complaint:

Highland Park Properties purchased land to develop a subdivision near 64th Avenue North along the Red River. The property isn’t in city limits but is in Fargo’s extraterritorial area, giving the city control over zoning and building permits.

The developer states that when the property was purchased, it wasn’t in the floodway or within the city’s setbacks, areas near rivers, drains or the designated floodway where new development is prohibited.

The subdivision plat was approved in 2006, and “thereafter, Highland incurred substantial costs to prepare the property for construction by adding infrastructure, including roads, sewer, water service, cable TV, phone service and street, and raising the level of the property,” the complaint states.

When Highland Park Properties sought to sell the land in 2010, FEMA’s flood maps were being revised. The revisions put the land in the flood plain, but the developer sought an exemption because the property had been raised in compliance with FEMA requirements.

However, Highland Park Properties needed the backing of Fargo officials in order to secure the exemption. The developer alleges city officials first advised they would agree to it, but then backed out.

“In or around June 2010, the city informed Highland for the first time that it would not support the (application) and raised concerns about construction on the property,” the complaint states.

City leaders allegedly told Highland Park officials that because the adjustments to FEMA’s flood map put the property within the city’s setback area, building permits would likely not be issued for the subdivision.

Highland Park officials allege city officials strung them along, first indicating willingness to compromise but then failing to make a decision on the permit.

“Without the ability to obtain a permit and build any structures on the property, Highland is deprived of all economically viable use of the property,” the complaint states.

Attorneys for Fargo deny “each and every allegation” brought forth by the developer and are asking for the lawsuit to be dismissed with prejudice. In answering the complaint, the city states that Highland Park’s property didn’t meet the requirements for an exemption from FEMA’s revised flood map.

The city called on Highland Park Properties to use “its strictest burden of proof” to prove city officials reneged on agreeing to the exemption application and/or the building permit.

The city also countered Highland Park Properties’ complaint by stating that the developer didn’t properly exhaust all remedies to get a waiver from the city’s moratorium on riverside development.

The city also alleges that the developer “has not been deprived of all economical or beneficial use of the property” and that the claim “is not well grounded in fact or law.”

Readers can reach Forum reporter Kristen Daum at (701) 241-5541

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