roadways present an open and obvious danger to pedestrians being struck by vehicular traffic .
In rejecting Morales ’ claim that Weatherford had a duty to protect him from the open and obvious danger presented by the roadway , the Court explained pedestrians routinely come upon roads with traffic and protect themselves by being alert , watching , and listening for traffic , and walking along the outside of the road in the direction of traffic . The Court determined there was nothing to suggest Weatherford should have anticipated its roadway was any more dangerous than other roads that pedestrians safely use every day .
Senske Rentals , LLC v . City of Grand Forks , 2024 ND 172 . Filed 9 / 12 / 24 .
Senske Rentals appealed the district court ’ s order affirming the city of Grand Forks ’ decision to specially assess property for street improvements . The Court reversed the district court and remanded to the city because the special assessment commission did not properly determine the benefits accruing to Senske ’ s property as required by N . D . C . C . § 40-23-07 . The Court concluded 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 . The city did not make that determination as required by statute .
Senske ’ s property is in a subdivision impacted by a city improvement project to pave gravel roads and install street lighting . In January
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2021 , the city 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 commission found certain benefits for the project , and then voted to assign benefits to the affected property owners , including Senske , based on their frontage , sideage , and square footage . At a public meeting on September 6 , 2022 , the city council passed a resolution directing the commission to level special assessments totaling approximately $ 2.5 million on the property in the special assessment district . During a September 29 , 2022 , hearing , Senske protested the proposed assessments , arguing they were excessive . Notwithstanding , the commission approved the assessments .
Senske challenged the assessments against his property at the district court , which ruled in the city ’ s favor . Senske appealed , arguing the commission failed to perform the required benefit analysis under N . D . C . C . § 40-23-07 . The Court agreed . The Court explained it has long identified three primary requirements that must be satisfied for a special assessment to comply with N . D . C . C . § 40-23-07 , including a determination of special benefits accruing to the property . The commission must have some basis for a determination of this benefit .
The Court noted , with respect to other decisions related to interpreting N . D . C . C . § 40-23-07 , it was reexamining the statute in light of additional arguments and a better-developed record . Senske argued , and the Court agreed , there was a lack of evidence in the record that a benefit analysis was completed as required by statute . The Court held Senske met his burden to show the determination of benefit did not comply with N . D . C . C . § 40-23-07 . The city ’ s cost allocation incorrectly applied the law by determining benefits dependent on costs and was thus arbitrary , capricious , and unreasonable . The Court reversed the district court ’ s order and remanded to the city to determine the special benefit to Senske ’ s property independent of the costs of the project and application of that special benefit as a limit on the assessments against his property .
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