40-01-01. Definitions.

In this title, unless the context or subject matter otherwise requires:

1. “City” includes cities incorporated under the city council form and city commission system of government, unless the contrary shall appear.
2. “Executive officer” means the mayor in council cities or the president of the board of city commissioners in commission cities.
3. “Governing body” means the city council or the board of city commissioners, as the case may be, of a municipality concerned or affected.
4. “Municipal corporation” or “municipality” includes all cities organized under the laws of this state, but shall not include any other political subdivision.
5. “Warrant” means an order drawn by the proper official of the city on its treasury, the warrant or order to be so drawn that when signed by the auditor in an appropriate place it becomes a check on the depository of such city, and no warrant upon the treasury shall be delivered or mailed to the payee or the payee’s agent or representative until such warrant has been signed by the auditor and entered on the auditor’s books as a check drawn on a bank depository.

40-01-02. Municipalities are bodies corporate.

Municipalities shall be bodies politic and corporate under the name and style of “city of _____________________________________ ” and under such name may sue and be sued, contract and be contracted with, acquire and hold real and personal property for corporate purposes, and have an official seal which may be changed at pleasure.

40-01-03. Judicial notice of existence and change of organization to be taken by courts.

Courts shall take judicial notice of the existence of a municipality by the name and style designated at the time of its incorporation, and of the change of the form of the organization of any municipality from its original form to any other type of organization provided by this title.

40-01-04. Vested rights.

All rights and property of every kind and description vested in any municipal corporation previous to any change in its form of organization shall be vested in the same municipal corporation upon its being incorporated under a different type of organization as provided by this title. No rights or liabilities in favor of or against such corporation existing at the time of a change in the form of its organization, and no action or prosecution of any kind shall be affected by such change, but the same shall stand and progress as if no change had been made. When by reason of a change in the form of organization, there is made available a different remedy which is applicable to any right existing before such change became effective, such remedy shall be additional to the remedies theretofore provided.

40-01-05. Ordinances and resolutions remain in force — Legal identity not changed.

A change in the form of organization of a municipality shall not change its legal identity as a municipal corporation. All ordinances and resolutions in force therein at the date of such change shall continue in full force and effect until repealed or amended.

40-01-06. Bonds, contracts, and conveyances — How signed and countersigned.

All bonds, contracts, and conveyances of a municipality, except as otherwise provided, shall be signed by the executive officer and countersigned by the auditor or clerk, as the case may be.

40-01-07. Property exempt from taxation and sale on execution.

Lands, houses, moneys, claims receivable, and property and assets of every kind and description belonging to a municipality shall be exempt from taxation and from sale on execution.

40-01-08. Removal of building when taxes and special assessments or share of bonded indebtedness are due — Lien — Penalty.

No person may remove a building from any lot or tract of land in any municipality, unless it is assessed as personalty or exempt from taxation, until after the taxes and special assessments then due have been paid, nor until the owner shall have paid into the sinking fund for the retirement of any bonded indebtedness of the municipality an amount equal to the just share of the tax which would then be required against the property in the municipality to pay the principal outstanding, less amount in sinking funds, of the bonded indebtedness of the municipality. The phrase “taxes and special assessments then due” means all taxes and special assessments that have been levied plus a pro rata estimated tax for the current assessment year. For property classified as residential, “special assessments then due” means the sum of the installments of special assessments certified to the county auditor for extension on the tax list plus the pro rata installment of the special assessment to be certified in the current assessment year. If the building is removed without the payment of the taxes and special assessments and pro rata share of bonded indebtedness, the taxes, special assessments, and pro rata share of bonded indebtedness shall be a lien on the building notwithstanding its removal as well as upon the lot, lots, tract, or tracts of land from which the building was removed. This section does not apply where a building is removed to permit the erection or installation of improvements equal or greater in value than the building removed. Any person violating the provisions of this section is guilty of a class A misdemeanor.

40-01-09. Official newspaper of municipality.

The official newspaper as chosen by the electors of the county shall be the official newspaper of the municipality in which it is published, and such official notices and legal publications as the municipality is required to publish by law shall be published therein. In municipalities where the official newspaper is not published, the governing body of the municipality, annually by resolution at its first meeting in May, or as soon thereafter as practicable, shall designate a newspaper published in the municipality, or if there is not one published, then it shall designate a newspaper which is circulated in the municipality, as the official newspaper of the municipality, including park districts therein, for the publication of notices and legal publications, including legal notices and official statements of the school districts embracing or encompassed by the municipality.

40-01-09.1. Publication of city government proceedings — Electorate to decide.

Beginning with the 1996 biennial municipal elections, and every four years thereafter, all cities in North Dakota, regardless of their form of government, must put on the ballot the question of whether the minutes of its governing body shall be published in its official newspaper. If voters approve publication, the governing body shall, within seven days after each of its meetings, give its official newspaper, for publication, the complete minutes, or a complete summary showing the substantive actions taken at the meeting.

Roll call votes must be published, but may be indicated as “unanimous” when appropriate. A list of the individual checks written by the city and approved by the governing body, showing the payee and the amount of each check, must be published. However, employee salary checks need not be published if the governing body elects to publish an annual salary schedule for each employee. When applicable, these minutes may be labeled as being published subject to the governing body’s review and revision. The minutes shall continue to be published until disapproved at a succeeding quadrennial election.

40-01-10. Certificate of publication filed in auditor’s office — Conclusive evidence — When bill for publication audited.

After any ordinance, notice, resolution, or other proceeding has been published, a copy of the publication, together with the affidavit of publication stating the length of time it has been published, shall be filed with the city auditor. Such affidavit shall be conclusive evidence of the publication. The bill for the publication shall not be audited until such affidavit is filed.

40-01-11. Publication by a city or park district in which no official newspaper is published.

Whenever any ordinance, notice, or other instrument is required by law to be published in a city or park district in which no official newspaper is published, such publication may be made or such notice given by publication of such ordinance, notice, or other instrument in the official newspaper designated pursuant to section 40-01-09. In a county in which no newspaper is published, any notice required by law to be published may be published in a newspaper printed in an adjoining county and having a general circulation in said county.

40-01-12. Claims and accounts against municipalities audited.

No account or claim against a municipality to be paid from any fund, including a municipal utilities fund, shall be allowed by the governing body thereof until a full itemized statement in writing has been filed with the governing body or unless otherwise authorized by the governing body pursuant to contract or other action. The governing body, in its discretion, may require the filing of any additional information which it may deem necessary to the proper understanding and audit of any claim or account and it may require the filing of a sworn statement in such form as it may prescribe. Every account or claim which is allowed by the governing body shall be shown in the minutes of the proceedings of the governing body except that wages and salaries of persons employed by the city may be consolidated and allowed in one order as provided by subsection 15 of section 40-16-03 and reference made in the proceedings of the governing body to the payroll record certified to the city auditor.

40-01-13. Payment of accounts by municipality.

No account or claim shall be paid by a municipality unless the same has been audited and allowed by the governing body thereof. Approval by the governing body shall be recorded in the record of its proceedings and this shall be sufficient to indicate approval without requiring a majority of the members of the governing body to sign or initial the voucher or order for payment. No moneys shall be drawn from the treasury of a municipality except upon a warrant from the auditor thereof signed by the executive officer of the municipality and attested by its auditor or clerk.

40-01-14. Office of municipality located in more than one county — Form of official proceeding — Seal.

The officers of a municipality which consists of territory located in more than one county may maintain an office for the performance of their duties in any portion of the municipality. All official proceedings shall be headed with the name of the municipality and of each county of which a portion is embraced within such corporate limits and the name of the state. The official seal which may be used by such municipality shall contain all of such names.

40-01-15. Assessors where municipality is in more than one county — Powers and duties of assessors.

In any municipality which contains territory located in more than one county, an assessor shall be elected or appointed in accordance with the law applicable to such form of municipality for that portion of the municipality situated in each county. Such assessor must be a resident of the county in which the assessor is to act and shall have the same powers and duties as an assessor in a municipality situated within the limits of one county.

40-01-16. Duty of auditor relating to assessments in municipality located in more than one county.

The auditor of a municipality embracing territory in more than one county shall transmit the appropriate assessment books, with a certified copy of the minutes showing the proceedings of the board of equalization, to the county auditor of each county in which the municipality is situated. The auditor shall apportion correctly the amount of any tax levy to be certified to each county in accordance with the valuations as determined finally by the equalization board.

40-01-17. County treasurers’ duties relating to municipality located in more than one county.

If a municipality contains territory located in more than one county, the county treasurer of each county in which such municipality is located shall perform the same duties in relation to all property returned as assessed by the municipality in the county of which the treasurer is an officer as the treasurer performs with relation to property situated in a municipality wholly within such county.

40-01-18. Other provisions applicable to municipalities situated in more than one county.

The holding of elections, organization of the board of elections, the election and term of office of the original officers, and the powers and duties of officers of a city embracing territory in more than one county shall be governed by the provisions of this title relating to cities under the council form of government, or to cities under the commission system of government, as the case may be.

40-01-19. Provisions of title shall apply to all cities.

All cities in North Dakota shall be governed by the provisions of this title.

40-01-20. Daylight saving time prohibited.

No city or other political subdivision within the state shall adopt daylight saving time or any other seasonal standard of time which varies from the time in effect in such city or political subdivision during the greater portion of the year. All ordinances, resolutions, or other enactments, whether enacted prior to or subsequent to the effective date of this section, are hereby nullified.

40-01-21. Removal of city advisory or policy decisionmaking members.

The executive officer of a city and a sixty percent majority of the members-elect of a city’s governing body at a regular meeting of such body may remove any member of an appointive agency, board, or commission which has spending, borrowing, or eminent domain powers and acts in an advisory capacity or assists in policy decisionmaking.

40-01-22. Antitrust immunity of cities and city governing bodies.

All immunity of the state from the provisions of the Sherman Antitrust Act [Act July 2, 1890, c. 647; 26 Stat. 209; 15 U.S.C. 1 et seq.] is hereby extended to any city or city governing body acting within the scope of the grants of authority contained in sections 40-05-01, 40-05-02, and 40-05.1-06. When acting within the scope of the grants of authority contained in sections 40-05-01, 40-05-02, and 40-05.1-06, a city or city governing body shall be presumed to be acting in furtherance of state policy.

40-01-23. Authorization to organize and participate in an organization of city governments.

1. Cities incorporated under the statutes of North Dakota are hereby authorized upon motion of the city governing body to organize and participate in an organization of city governments.
2. The organization or organizations authorized hereunder must be organized pursuant to chapter 10-33.

40-01-24. Firefighters may solicit charitable contributions from motorists.

Notwithstanding section 39-10-34 or any other provision of law, a city, by resolution, may permit permanent, on-duty or off-duty, full-time firefighters employed by the city or volunteers serving the city to solicit charitable contributions from motorists under the following conditions:

1. The solicitation is limited to one charitable organization annually which is qualified under section 501(c)(3) of the Internal Revenue Code [26 U.S.C. 501(c)(3)] and is registered under state law.
2. The solicitation is limited to three days in the calendar year.
3. The charitable organization provides the city proof of commercial general liability insurance against claims for bodily injury and property damage that may occur on the public streets, roads, or right of ways as a result of the actions of those soliciting.

40-01.1-01. Advisory study of local governance options.

An advisory study committee may be established under this chapter to provide local citizens and leaders with the means for fully and adequately studying options available for positioning their local governments for effective, creative, and efficient service in the future, in a manner suited to the economic, social, geographic, demographic, and other circumstances influencing the needs and resources of local communities. An advisory study committee is encouraged to prepare a comprehensive program for the performance of local government functions and the furnishing of local government services within the jurisdiction of the governing body or cooperating governing bodies that established the committee. In its study, the committee may consider:

1. The need for maintaining citizen access to, control of, and participation in local government;
2. The existing land use within the area, including the location of highways and natural geographic barriers to, and routes for, transportation;
3. The need for organized local government functions, services, and controls; the present cost and adequacy of local government functions, services, and controls; probable future needs for those functions, services, and controls; and the probable effect of alternative courses of action on the cost and adequacy of local government functions, services, and controls;
4. The trends in population density and distribution, and the potential or likelihood for significant growth or decline;
5. The tax base and other factors bearing on the capacity for local government to provide essential functions and services necessary to the general welfare of local citizens;
6. The boundaries of existing units of local government;
7. Data necessary for analyzing the strengths, weaknesses, challenges, and opportunities that are unique to the community; and
8. Other factors that may affect the provision of local government functions, services, and controls.

40-01.1-02. Local advisory study committee.

1. The governing body or electors of a county, city, city park district, township, school district, or any other political subdivision of this state may establish an advisory committee to study the existing form and powers of that political subdivision for comparison with other forms and powers available under the laws of this state. A local advisory study committee is established:
   1. By a majority vote of the governing body; or
   2. By a petition signed by ten percent or more of the total number of qualified electors of the political subdivision voting for governor at the most recent gubernatorial election and submitted to the governing body.
2. The governing body shall appoint the members of the advisory study committee and set the duration of the committee. The members are not entitled to receive compensation, but may receive actual and necessary expenses incurred in the performance of official duties as determined by the governing body.
3. The governing body may provide office and meeting space and legal, clerical, facilitation, training, and other assistance to the study committee, and may appropriate funds in its final budget, or expend any unexpended balances in its general fund otherwise designated for current expenditure, for the necessary expenses of the advisory study committee. The committee, with the approval of the governing body, may:
   1. Employ and fix the compensation and duties of necessary staff;
   2. Contract and cooperate with other individuals and public or private agencies considered necessary for assistance, including institutions of higher education;
   3. Establish advisory subcommittees that may include persons who are not members of the study committee;
   4. Hold public hearings and community forums and use other suitable means to disseminate information, receive suggestions and comments, and encourage public discussion of the committee’s purpose, progress, conclusions, and recommendations;
   5. Cooperate with a like committee established pursuant to this section by another political subdivision in the conduct of the study. A cooperative study does not preclude a study committee from making separate recommendations to the governing body; and
   6. Do any other act consistent with and reasonably required to perform its advisory function.

40-01.1-03. Cooperative advisory study committee.

1. The governing bodies of any two or more political subdivisions, including any combination of counties, cities, city park districts, townships, school districts, or other political subdivisions, may establish an advisory committee to study the potential for cooperative or combined efforts for providing local government functions and services. A cooperative advisory study committee is established:
   1. By execution of a joint powers agreement between participating political subdivisions or by joint resolution pursuant to separate majority votes of each participating governing body; or
   2. By petitions signed by ten percent or more of the total number of qualified electors of each affected political subdivision voting for governor at the most recent gubernatorial election and submitted to the governing bodies.
2. The composition and duration of the advisory study committee is as prescribed in the joint powers agreement, resolutions of the governing bodies, or petitions. However, the governing bodies may agree, by joint resolution, to limit the duration or composition of the advisory study committee created by petition pursuant to subdivision b of subsection 1. Any vacancy may be filled as prescribed in the agreement, resolution, or petitions or, if not prescribed, by the governing body that was represented by the person vacating the position.
3. A governing body may agree to provide office and meeting space and legal, clerical, facilitation, training, and other assistance to the study committee, and may appropriate funds in its final budget, or expend any unexpended balances in its general fund otherwise designated for current expenditure, for the necessary expenses of the advisory study committee. The committee, with the approval of the governing body, may:
   1. Employ and fix the compensation and duties of necessary staff;
   2. Contract and cooperate with other individuals and public or private agencies considered necessary for assistance, including institutions of higher education;
   3. Establish advisory subcommittees that may include persons who are not members of the study committee;
   4. Hold public hearings and community forums and use other suitable means to disseminate information, receive suggestions and comments, and encourage public discussion of the committee’s purpose, progress, conclusions, and recommendations; and
   5. Do any other act consistent with and reasonably required to perform its advisory function.

40-01.1-04. Advisory recommendations.

A local or cooperative advisory study committee established for one or more political subdivisions may recommend that a local governing body or the electors pursue any course of action permitted by law or home rule charter for that political subdivision. The committee may recommend:

1. With respect to a county:
   1. Execution of a joint powers agreement between the county and one or more other political subdivisions or the state for the cooperative or joint administration of any service or function pursuant to chapter 54-40.3 or as otherwise specifically provided by law, or an agreement between the county and a tribal government pursuant to chapter 54-40.2.
   2. Exercise of the county’s general authority to contract pursuant to section 11-10-01 and any other law, including service agreements with public or private parties under the terms and conditions of the agreements.
   3. Combination or separation of any elective or appointive county office and corresponding functions, or redesignation of any county office as elective or appointive, pursuant to chapter 11-10.2.
   4. Change in the number of county commissioners pursuant to chapter 11-12.
   5. Establishment of a county home rule charter commission for initiating the adoption of a home rule charter or the amendment or repeal of a home rule charter pursuant to chapter 11-09.1, or the adoption, amendment, or repeal of ordinances for implementing a home rule charter. The recommendation may include a specific nonbinding proposal or draft for a home rule charter or amendment to a home rule charter.
   6. Adoption of the consolidated office form of county government pursuant to chapter 11-08.
   7. Adoption of the county manager form of county government pursuant to chapter 11-09.
   8. Use of other statutory tools relating to social and economic development, land use, transportation and roads, health, law enforcement, administrative and fiscal services, recording and registration services, educational services, environmental quality, water, sewer, solid waste, flood relief, parks and open spaces, hospitals, public buildings, or other county functions or services, including creation of cooperative county job development authorities pursuant to section 11-11.1-03, multicounty health units pursuant to chapter 23-35, regional planning and zoning commissions pursuant to section 11-35-01, boards of joint county park districts pursuant to chapter 11-28 or a combination of boards of park commissioners with a city pursuant to chapter 40-49.1, or human service zones pursuant to chapter 50-01.1.
   9. Participation in a community or leadership development, assessment, education, planning, or training program offered by any public or private agency, institution, or organization.
   10. Sharing of elective or appointive county officers with other counties, cities, or other political subdivisions pursuant to chapter 11-10.3.
   11. Initiation of the multicounty home rule charter process or the amendment or repeal of a multicounty home rule charter pursuant to section 11-09.1-04.1, or the adoption, amendment, or repeal of ordinances to implement the charter. The recommendation may include a specific nonbinding proposal or draft for a multicounty home rule charter.
   12. Initiation of the county-city home rule process or the amendment or repeal of a county-city home rule charter pursuant to chapter 54-40.4, or the adoption, amendment, or repeal of ordinances to implement the charter. The recommendation may include a specific nonbinding proposal or draft for a county-city home rule charter.
   13. Transfer of a power or function of another political subdivision to the county pursuant to chapter 54-40.5.
   14. Creation of a county consolidation committee pursuant to chapter 11-05.1.
   15. That any other action be taken that is permitted by law.
   16. That no action be taken.
2. With respect to a city:
   1. Execution of a joint powers agreement between the city and one or more other political subdivisions or the state for the cooperative or joint administration of any service or function pursuant to chapter 54-40.3 or as otherwise specifically provided by law, or an agreement between the city and a tribal government pursuant to chapter 54-40.2.
   2. Exercise of the city’s general authority to contract pursuant to section 40-05-01 and any other law, including service agreements with public or private parties under the terms and conditions of the agreements.
   3. Combination of city officers pursuant to section 40-14-04 or 40-15-05 or the sharing of officers with other cities, counties, or other political subdivisions pursuant to chapter 11-10.3.
   4. An increase or decrease in the number of members of the governing body of a city pursuant to section 40-06-09.
   5. Establishment of a city home rule charter commission for initiating the adoption of a home rule charter or the amendment or repeal of a home rule charter pursuant to chapter 40-05.1, or the adoption, amendment, or repeal of ordinances for implementing a home rule charter. The recommendation may include a specific nonbinding proposal or draft for a city home rule charter or amendment to a home rule charter.
   6. Adoption of the commission form of city government pursuant to chapter 40-04.
   7. Adoption of the modern council form of city government pursuant to chapter 40-04.1.
   8. Adoption of the city manager plan pursuant to chapter 40-10.
   9. Sharing an appointive city officer and function with another city, the county, or another political subdivision pursuant to chapter 11-10.3.
   10. Initiation of the multicity home rule process or the amendment or repeal of a multicity home rule charter pursuant to section 40-05.1-05.1, or the adoption, amendment, or repeal of ordinances to implement the charter. The recommendation may include a specific nonbinding proposal or draft for a multicity home rule charter.
   11. Initiation of the county-city home rule process or the amendment or repeal of a county-city home rule charter pursuant to chapter 54-40.4, or the adoption, amendment, or repeal of ordinances to implement the charter. The recommendation may include a specific nonbinding proposal or draft for a county-city home rule charter.
   12. Participation in a community or leadership development, assessment, education, planning, or training program offered by any public or private agency, institution, or organization.
   13. Use of other statutory tools for social and economic development, land use, transportation, health, fire and police protection, street construction and maintenance, assessment, financing, accounting, legal, environmental quality, water, sewer, solid waste, flood relief, parks and open spaces, hospitals, public buildings, or other city functions or services, including the creation of cooperative city job development authorities pursuant to section 40-57.4-03.
   14. Transfer of a power or function of the city to the county pursuant to chapter 54-40.5.
   15. Consolidation of cities pursuant to chapter 40-53.2.
   16. Dissolution of a city pursuant to chapter 40-53.1.
   17. That any other action be taken that is permitted by law.
   18. That no action be taken.
3. With respect to a township:
   1. Execution of a joint powers agreement between the township and one or more other political subdivisions or the state for the cooperative or joint administration of any service or function pursuant to chapter 54-40.3 or as otherwise specifically provided by law, or an agreement between the township and a tribal government pursuant to chapter 54-40.2.
   2. Exercise of the township’s general authority to contract pursuant to section 58-03-01 and any other law, including service agreements with public or private parties under the terms and conditions of the agreements.
   3. Participation in a community or leadership development, assessment, education, planning, or training program offered by any public or private agency, institution, or organization.
   4. Combination of the offices of township clerk and treasurer pursuant to section 58-05-02 or the sharing of officers with other townships or other political subdivisions pursuant to chapter 11-10.3.
   5. An increase in the number of board of township supervisors from three to five pursuant to section 58-04-02.1.
   6. Contract with the county, another political subdivision, or any individual for assessor services pursuant to section 58-05-02.
   7. Consolidation of boards of township officers pursuant to chapter 58-05.1.
   8. Transfer of a power or function of the township to the county pursuant to chapter 54-40.5.
   9. Creation of an organized civil township pursuant to chapter 58-02.
   10. Division or annexation of a township pursuant to chapter 58-02.
   11. Dissolution of the township pursuant to chapter 58-02.
   12. That any other action be taken that is permitted by law.
   13. That no action be taken.
4. With respect to a city park district:
   1. Execution of a joint powers agreement between the city park district and one or more other political subdivisions or the state for the cooperative or joint administration of any service or function pursuant to chapter 54-40.3 or as otherwise specifically provided by law, or an agreement between the city park district and a tribal government pursuant to chapter 54-40.2.
   2. Exercise of the city park district’s general authority to contract pursuant to section 40-49-04 and any other law, including service agreements with public or private parties under the terms and conditions of the agreements.
   3. Participation in a community or leadership development, assessment, education, planning, or training program offered by any public or private agency, institution, or organization.
   4. An increase or decrease in the number of board members pursuant to sections 40-49-07.1 and 40-49-07.2.
   5. Transfer of a power or function of the city park district to the county pursuant to chapter 54-40.5.
   6. Combination of the city board of park commissioners with other city or county boards of park commissioners pursuant to chapter 40-49.1.
   7. Sharing of officers with other city park districts or other political subdivisions pursuant to chapter 11-10.3.
   8. Dissolution of the city park district pursuant to sections 40-49-07.1 and 40-49-07.2.
   9. That any other action be taken that is permitted by law.
   10. That no action be taken.
5. With respect to a school district:
   1. Execution of a joint powers agreement between the school district and one or more other political subdivisions or the state for the cooperative or joint administration of any service or function pursuant to chapter 54-40.3 or as otherwise specifically provided by law, including the exercise of the general powers to make contract for joint educational endeavors, or an agreement between the school district and a tribal government pursuant to chapter 54-40.2.
   2. Participation in a community or leadership development, assessment, education, planning, or training program offered by any public or private agency, institution, or organization.
   3. An increase or decrease in the number of school board members pursuant to section 15.1-09-01.
   4. Sharing of officers with other school districts or other political subdivisions pursuant to chapter 11-10.3.
   5. School district annexation or reorganization.
   6. Transfer of a power or function of the school district to the county pursuant to chapter 54-40.5.
   7. That any other action be taken that is permitted by law.
   8. That no action be taken.
6. With respect to other political subdivisions, including rural ambulance service districts, rural fire protection districts, irrigation districts, hospital districts, soil conservation districts, and recreation service districts:
   1. Execution of a joint powers agreement between the political subdivision and one or more other political subdivisions or the state for the cooperative or joint administration of any service or function pursuant to chapter 54-40.3 or as otherwise specifically provided by law, or an agreement between the political subdivisions and a tribal government pursuant to chapter 54-40.2.
   2. Participation in a community or leadership development, assessment, education, planning, or training program offered by any public or private agency, institution, or organization.
   3. Sharing of officers with other political subdivisions pursuant to chapter 11-10.3.
   4. Transfer of a power or function of the political subdivision to the county pursuant to chapter 54-40.5.
   5. That any other action be taken that is permitted by law.
   6. That no action be taken.

40-02-01. Requisites for incorporation as city.

Any contiguous territory in this state, not exceeding four square miles [1036.00 hectares] in area, not already included within the corporate limits of any incorporated municipality, may become incorporated as a city whether such territory is located in one or more counties, under the following conditions:

1. If the territory has residing therein a population of not more than five hundred inhabitants, it may become incorporated as a city under the council or modern council form of government. If the territory has residing therein a population of not less than five hundred inhabitants, it may become incorporated as a city under the council or modern council form of government, or as a city under the commission system of government.
2. If the proposed municipal corporation has, in the view of the board of county commissioners of the county in which the proposed municipal corporation is located, all the qualities necessary to ensure continued viability as a functioning unit of municipal government.

40-02-02. Census required.

Prior to the commencement of any proceedings to incorporate territory as a municipality, the persons intending to submit the petition for incorporation shall cause a census of the resident population of the territory to be taken not more than sixty days previous to the time when the petition is submitted to the board of county commissioners as provided in this chapter. The census shall show the name of every elector and of every head of a family residing within the territory on that day and the number of persons then belonging to that family, and the census shall be verified by the affidavit of the person taking it.

40-02-03. Survey required.

The persons intending to make application for the incorporation of a municipality as provided in this chapter shall cause to be made an accurate survey and map of the territory intended to be embraced within the limits thereof. The survey shall be made by a practical surveyor and shall show the courses and distances of the boundaries and the quantity of land contained therein. The accuracy of such survey and map shall be verified by the affidavit of the surveyor written thereon or annexed thereto.

40-02-04. Survey, map, and census subject to examination — Notice.

The survey, map, and census required under the provisions of this chapter, when completed and verified, shall be left for a period of not less than thirty days at some convenient place within the territory described therein for examination by those having any interest in the application for incorporation. There shall be attached to such survey, map, and census a notice which explains:

1. The purpose of the map, survey, and census.
2. That a petition for incorporation is to be circulated and will be submitted to the board of county commissioners at a time certain as specified in the notice.
3. That upon receipt of the petition the board of county commissioners will designate a time and place to consider the petition.
4. That a notice of the time and place for the hearing will be published once a week for two weeks prior to the hearing in the official county newspaper and in other newspapers as the board of county commissioners may deem appropriate.

Copies of such notice, together with a statement showing where the survey, map, and census may be examined, shall be posted for at least thirty days in three conspicuous and public places within the territory to be affected.

40-02-05. Petition for incorporation — Contents — Census and survey to accompany — Hearing — Notice.

A petition for the incorporation of a municipality under this chapter shall be addressed to the board of county commissioners of the county in which the proposed municipality is located and if such municipality is located in more than one county, to the board of county commissioners of the county wherein the greater part of the territory is situated, and shall be signed by not less than one-third of the qualified electors residing within the territory described in such petition, and by the owners of not less than fifty percent in assessed value of the property located within the territory described in such petition.

1. The petition shall show:
   1. The boundaries of the proposed municipality, and the assessed valuation of all property located within such boundaries.
   2. The number of inhabitants residing within such boundaries.
   3. The name of the proposed municipality, which shall be different from that of every other municipality in this state.
   4. A request that the question of incorporating the territory described in the petition as a city under the council form of government or a city under the commission system of government, as the case may be, be submitted to the qualified electors residing within the territory.
2. The petition, when submitted, shall be accompanied by:
   1. An incorporation plan showing how municipal services, including fire and police protection, street construction and maintenance, sewers, water, garbage disposal, planning, zoning, accounting, assessment, financing, and legal services, will be provided; and
   2. Any other information that may reasonably be required by the board of county commissioners to whom the petition is addressed including, but not limited to, population, population density, per capita assessed valuation, proximity to populated areas, likelihood of significant growth, need for services, present cost and adequacy of services, and effect of proposed action and alternative actions on adjacent areas.

The petition shall be filed in the office of the county auditor, accompanied by a verified copy of the census required under this chapter and by a duplicate map of the survey of the proposed municipality, and shall be submitted to the board of county commissioners at the time indicated in the notice described in section 40-02-04 or as soon thereafter as the board can receive and consider the same. The board of county commissioners to whom the petition is addressed shall designate a time and place for consideration of the petition and shall notify the petitioners of that time and place. The petitioners shall then cause a notice containing the substance of the petition, and the time and place it will be heard, to be published once a week for two consecutive weeks in the official county newspaper or newspapers of the county or counties and in other newspapers as deemed appropriate by the board of county commissioners of each county embracing the territory to be incorporated.

40-02-06. Board of county commissioners to consider petition.

Before hearing the petition, the board of county commissioners shall require proof, either by affidavit or by oral examination of witnesses before it, that notice as required by section 40-02-05 was given and that the survey, map, and census were subject to examination in the manner and for the period required by this chapter. All interested persons shall have the opportunity to comment at the hearing. The board shall have the authority to approve or disapprove, with or without amendment, the petition for incorporation. Before taking action on a petition, the board may consider such factors as the permanent nature of the community, the necessity for incorporation shown by the community, the ability of the community to assume municipal responsibilities, and the showing that the burdens and benefits of incorporation will be equal and just.

The board of county commissioners shall make a written record of its findings on each of the assertions contained in the petition and shall provide any interested person with a copy of those findings. If the board is satisfied that the petition should be approved, it shall make an order fixing the time and the places within the boundaries of the proposed municipality at which an election may be held to determine the question of incorporation as requested in the petition. If the territory described in the petition is located in more than one county, the board shall, after consultation with the board of the other county involved, designate a separate election place in each county in which any part of the territory described in the petition is situated. The board shall name the persons to act as judges of the election in each such election place.

40-02-06.1. Appeal of board of county commissioners’ action — Scope of review.

Any final action taken by a board of county commissioners on a petition for incorporation may be appealed to the district court in accordance with the procedure provided in section 28-34-01. The review on appeal extends only to the determination of whether the board of county commissioners has pursued its authority regularly and has not exceeded its jurisdiction or abused its discretion under the provisions of this chapter.

40-02-07. Notice of election.

The board of county commissioners to which a petition is submitted under this chapter shall give notice of the election on the question whether or not the municipality described in the petition shall be organized. The notice shall be published in one issue of a newspaper or newspapers published within the territory described in the petition, and such publication shall be made at least ten days prior to the date set for the election. If no newspaper is published within the territory, the notice shall be published in the official county newspaper or newspapers and in other newspapers as deemed appropriate by the board of county commissioners of each county embracing the territory to be incorporated.

40-02-08. Polling hours at election on question of incorporation.

At the election called to vote on the question of incorporation of a municipality under this chapter, the polls shall be opened at nine a.m. on the day specified in the notice and shall be kept open until seven p.m. At such election, the voters first shall proceed to the election of three inspectors, who, after being chosen and qualified and one of their number elected clerk, without delay shall proclaim that the polls are open.

40-02-09. Form of ballot.

The ballots to be used at an election to pass upon the question of the organization of a municipality under the provisions of this chapter shall be in substantially the following form:

Shall (city under the council form of government, or city under the commission system of government, as the case may be) be organized out of the following described territory (describe territory involved)? Yes ⎭ No ⎭

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40-02-10. Election returns — To whom made — Duty of board of county commissioners.

The election officials acting in each place in which votes are cast in an election held under this chapter shall return to the board of county commissioners which ordered the election a verified statement of the results of the election showing the number of votes cast for and against incorporation at their polling place. The returns shall be verified by the affidavit of the election officials. The returns shall be canvassed by the board of county commissioners, and the results of the canvass and of the election shall be entered upon the minutes of the proceedings of such board. If a majority of the votes cast on the question at the election favored incorporation, the board shall make an order declaring that the territory described in the petition has been incorporated as a city under the council form of government or as a city under the commission system of government, as the case may be, by the name described in the petition, stating that name, and shall cause the order to be entered in the minutes of its proceedings. If the territory is located in more than one county, a certified copy of such order shall be submitted immediately to each of the other counties within which a portion of the territory described in the order is situated. The auditor of each county to which a certified copy of the order is submitted shall make a record of the order in the minutes of the board of county commissioners of such county.

40-02-11. Division into wards.

If a majority of the votes cast on the question at the election provided for in this chapter favored incorporation as a city, the board of county commissioners that ordered the election shall, if the territory has been incorporated as a city under the council form of government, divide the city into wards. The city may not be divided into wards unless it has more than six hundred inhabitants. If the city has more than six hundred inhabitants, one ward must be formed for each two council members to which the city is entitled. In cities of more than fifteen thousand inhabitants, however, the number of wards is limited to seven originally, and that number may be increased thereafter as provided in this title. Each ward must be formed from contiguous territory, and all wards must be numbered consecutively and must have, as nearly as practicable, the same number of inhabitants. After the election of council members, the governing body of the city shall form or establish wards pursuant to law.

40-02-12. Order of incorporation — Recording — Filing — As evidence.

An order of incorporation of a city under the council form of government, under the provisions of this chapter, as made by the board of county commissioners to which the petition for incorporation is addressed, shall be conclusive evidence of the incorporation of the territory described in the order in all suits by or against the municipality described therein. The board shall cause a certified copy of the order to be filed for record in the office of the recorder of each county affected and a certified copy shall also be filed in the office of the secretary of state.

40-02-13. Procedure in the case of incorporation of city under the commission system of government.

If the municipality organized under the provisions of this chapter is a city under the commission system of government, the board of county commissioners shall make returns to the secretary of state, and a patent shall be issued by the governor in accordance with the applicable provisions of chapter 40-04, and with like effect.

40-02-14. Board of county commissioners to establish election precincts.

The territory embraced within the boundaries of a municipality organized under this chapter shall be divided by the board of county commissioners which made the order of incorporation into election precincts. If the municipality is situated in more than one county, there shall be at least as many election precincts as there are portions of counties embraced within such municipality.

40-02-15. Division of property and indebtedness between municipality and township.

If a municipality is organized under the provisions of this chapter from territory which has been a part of a civil township, any property owned, and any debts owed, by the township prior to the separation shall be divided between the municipality and the township in the proportion which the valuation of the property in the municipality bears to the valuation of the property in the township. The valuations used shall be the valuations as equalized by the board of county commissioners at the last equalization previous to the separation. Real estate which is owned jointly shall belong to the municipality if it is situated therein, and in such case, the municipality shall pay to the township its proportion of the value thereof and shall assume its just proportion of any indebtedness thereon.

40-02-16. Arbitration of differences between township and newly organized municipality upon division of property and indebtedness.

If the officers of a township and of a municipality which has been organized from territory situated therein cannot agree upon the valuation of any real estate, or of any indivisible property which is held jointly, or upon the just apportionment of the joint indebtedness, the officers of the township or municipality, upon five days’ notice of the time and place, may apply to the director of the office of administrative hearings for arbitration of such differences. Thereupon, the director shall appoint three residents of the county, not residents or taxpayers of the municipality or township involved, to act as arbitrators. After being duly sworn to perform the duties imposed upon them, the arbitrators shall view and appraise the property and fix the valuation thereof for the purpose of making the division. If the property to be divided is personal property and no satisfactory arrangement can be made otherwise, it must be sold at public auction to the highest bidder, and the municipality and township may bid at the sale. The township and municipality involved in the arbitration shall share equally in the costs and expenses of the arbitration. The director of the office of administrative hearings shall request payment from the township and municipality and the township and municipality shall pay to the office of administrative hearings both the costs and expenses of the arbitration proceedings and the cost of the services provided by the arbitrators and the director of the office of administrative hearings.

40-03.1-01. Change from council system of government — Petition required.

Any city which shall have operated for more than six years since the adoption of the city council system of government or since the last election at which the question of changing from the council system was rejected by a vote of the qualified electors, may change its organization thereunder and adopt the city commission form of government. The proceeding to change shall be initiated by a petition asking for such change signed by not less than forty percent of the qualified electors of the city, as determined by the total number of qualified electors voting at the preceding general election. The signatures to such petition need not be appended to a single paper, but one of the signers upon each paper shall make oath before an officer competent to administer oaths that each signature appearing upon such paper is the genuine signature of the person whose name it purports to be. Each petition, in addition to the names of the signers, shall contain the name, address, and age of each petitioner, and the length of the petitioner’s residence in the city. Any petitioner shall be permitted to withdraw that petitioner’s name from a petition within five days after the petition is filed.

40-03.1-02. City auditor to pass on sufficiency of petition.

Within thirty days after a petition to change from the council system of government is filed, the city auditor shall examine the petition and ascertain from the voters’ register whether or not the petition is signed by the required number of qualified electors. The city auditor shall attach to the petition the city auditor’s certificate showing the result of the city auditor’s examination, and if the city auditor finds the petition to be insufficient, the city auditor’s certificate shall show the reason for such determination. An insufficient petition may be amended within ten days after the city auditor’s certificate is made. Within thirty days after an amended petition is filed, the city auditor shall make an examination thereof, and if the city auditor’s certificate shows such amended petition to be insufficient, the petition shall be returned to the person filing the same without prejudice to the filing of a new petition. If the city auditor shall find the petition or the amended petition to be sufficient, the city auditor shall place the same with the city auditor’s certificate before the governing body of the municipality.

40-03.1-03. Procedure when petition to change from council system of government is filed — Special election — Ballot.

When a petition to change from the council system of government, together with the city auditor’s certificate of sufficiency, is filed with the governing body of a municipality, the governing body shall call a special election at which only the question of changing from the council system of government will be submitted. The date of such election shall not be less than thirty days nor more than ninety days after the date of the auditor’s certificate has been filed. The election shall be conducted, returns thereof made, and the result thereof declared in all respects as are other city elections. Notice of such election shall be given by the publication of the proposition to be voted upon, the places where the election will be held, and the date of the election, in each newspaper published in the city, not more than twenty days and not less than five days before the date of such election. The ballot to be used at the election provided for in this section shall be in substantially the following form:

Shall the city of change from its organization under the council system of government and become a city under the commission form of government? Yes ⎭ No ⎭

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40-03.2-01. Change from council system of government — Petition required.

Any city incorporated as a city under the council form of government may change its organization thereunder and adopt the modern council form of government. The proceeding to change shall be initiated by a petition asking for such change signed by not less than one-third of the qualified electors of the city. For the purpose of this section, the term “qualified electors of the city” means the total number of qualified electors voting at the preceding general election of the city. The signatures to such petition need not be contained in a single paper, but one of the signers upon each paper shall make oath before an officer competent to administer oaths that each signature appearing upon such paper is the genuine signature of the person whose name it purports to be. Each petition, in addition to the names of the signers, shall contain the address of each petitioner, and the length of the petitioner’s residence in the city. Any petitioner shall be permitted to withdraw that petitioner’s name from a petition within five days after the petition is filed.

40-03.2-02. City auditor to pass on sufficiency of petition.

Within thirty days after a petition to change from the council system of government is filed, the city auditor shall examine the petition and ascertain from the voters’ register whether or not the petition is signed by the required number of qualified electors. The city auditor shall attach to the petition the city auditor’s certificate showing the result of the city auditor’s examination, and if the city auditor finds the petition to be insufficient the city auditor’s certificate shall show the reason for such determination. An insufficient petition may be amended within ten days after the city auditor’s certificate is made. Within thirty days after an amended petition is filed, the auditor shall make an examination thereof, and if the city auditor’s certificate shows such amended petition to be insufficient, the petition shall be returned to the person filing the same without prejudice to the filing of a new petition. If the city auditor shall find the petition or the amended petition to be sufficient, the city auditor shall place the same with the city auditor’s certificate before the governing body of the municipality.

40-03.2-03. Procedure when petition to change from council system of government is filed — Special election — Ballot.

When a petition to change from the council system of government, together with the city auditor’s certificate of sufficiency, is filed with the governing body of a municipality, the governing body shall call a special election at which only the question of changing from the council system of government will be submitted. The date of such election may not be less than thirty days nor more than ninety days after the date the auditor’s certificate has been filed. The election must be conducted, returns thereof made, and the result thereof declared in all respects as are other city elections. Notice of such election must be given by the publication of the proposition to be voted upon, the places where the election will be held, and the date of the election, in each newspaper published in the city, not more than twenty days and not less than five days before the date of such election. The ballots to be used at the election provided for in this section must be in substantially the following form:

Shall the city of change from its organization under the council system of government and become a city under the modern council form of government with a five-member (or seven-member, nine-member, or eleven-member) council? Yes ⎭ No ⎭

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40-04-01. Incorporation as commission city.

Any city in this state having a population of not less than five hundred inhabitants may become incorporated as a city under the commission system of government as provided in this section. If one-tenth of the qualified electors of the municipality, based upon the votes cast for the office of governor at the last preceding general election, petition the governing body of the municipality to submit to a vote of the qualified electors the question of whether the city shall become incorporated as a city under the commission system of government, the governing body shall submit the question to the qualified electors, appoint a time when and place or places where the election shall be held, and designate the judges and clerks at the election. The question may not be submitted more than once in every four years.

40-04-02. Notice of election.

Notice of an election to be held under this chapter shall be given by the executive officer of the city by publication in the official newspaper of the city as provided in section 40-01-09 for at least twenty days.

40-04-03. Form of ballot.

The ballots to be used at such election shall be in substantially the following form:

Shall the city of (naming the city) become organized as a city under the commission system of government? Yes ⎭ No ⎭

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40-04-04. Returns and canvass of election — Certificate to secretary of state — Officers to continue until election.

The officials of an election held under the provisions of this chapter shall make a return of such election to the governing body of the city and such governing body shall canvass such returns and cause the result of the canvass to be entered upon the records of the city. If a majority of the votes cast on the question at such election shall be for city organization under the commission system, the auditor shall certify the adoption of such form of government and a copy of the proceedings concerning the same to the secretary of state together with the result of any special census taken in such city. The city officers then in office shall exercise the powers conferred upon like officers of a city operating under the commission system of government until their successors are elected and qualified.

40-04-05. Patent issued to city by governor.

Upon the certification of the matters described in section 40-04-04, the government shall issue letters patent, under the great seal of the state, reciting the facts, defining the boundaries of the city, and constituting the city a body corporate and politic by the name of the city of _________ (specifying the name of the city), and declaring that it shall be governed by the provisions of this title applicable to cities under the commission system of government.

40-04-06. Patent to city to be recorded — Use as evidence.

A patent issued by the governor under the provisions of this chapter shall be recorded in the office of the secretary of state. Any patent so issued and recorded and the record thereof, or a certified copy thereof, shall be conclusive evidence in all courts and places of the due incorporation of the city mentioned therein and of all the facts therein recited.

40-04-07. Special election called to elect city commissioners.

Within twenty days after the issuance of a patent incorporating any city under the provisions of this chapter, the executive officer of the city voting such incorporation shall call a special election for the purpose of electing the first board of city commissioners. The election shall be held as provided in section 40-21-02.

40-04-08. Change from or to commission system of government — Petition required.

Any city that has operated for more than six years under or since changing from the city commission system of government may change its governmental organization and adopt the city council form of government or the modern council form of government or revert to the city commission form of government. The proceeding to change or revert shall be initiated either by a resolution by the governing body or by a petition asking for such change signed by not less than twenty-five percent of the qualified electors of the city. In no event, however, shall the petition contain less than thirty signatures. In any city having six or more municipal election precincts, not more than twenty percent of the petitioners may reside in any single precinct. For purposes of this section, the term “qualified electors of the city” means the total number of qualified electors voting for the office of the chief executive officer of the city at the preceding city election. The signatures to such petition need not be appended to a single paper, but one of the signers upon each paper shall make oath before an officer competent to administer oaths that each signature appearing upon such paper is the genuine signature of the person whose name it purports to be and that such person purports to be not less than eighteen years of age and a resident of the city. Each petition, in addition to the names of the signers, shall contain the name of the street upon and the number of the house in which each petitioner resides. Any petitioner shall be permitted to withdraw that petitioner’s name from a petition within five days after the petition is filed. If the proceeding to change from or revert to a commission system of government is initiated by petition, the question may not be placed on the ballot more often than every four years.

40-04-09. City auditor to pass on sufficiency of petition to change from commission system of government.

Within thirty days after a petition to change from the commission system of government is filed, the city auditor shall examine the petition and ascertain whether or not the petition is signed by the required number of qualified electors. The city auditor shall attach to the petition the city auditor’s certificate showing the result of the city auditor’s examination, and if the city auditor finds the petition to be insufficient the city auditor’s certificate shall show the reason for such determination. An insufficient petition may be amended within ten days after the city auditor’s certificate is made. Within thirty days after an amended petition is filed, the city auditor shall make an examination thereof, and if the city auditor’s certificate shows such amended petition to be insufficient, it shall be returned to the person filing the same without prejudice to the filing of a new petition. If the city auditor shall find the petition or the amended petition to be sufficient, the city auditor shall place the same, with the city auditor’s certificate, before the governing body of the municipality.

40-04-10. Procedure upon filing of petition to change from or revert to commission system of government — Election — Ballot.

When a petition to change from or revert to the commission system of government, with the city auditor’s certificate of sufficiency, is filed with the governing body of a city, or when a resolution to change or revert has been adopted, the governing body shall call a special election at which only the question of changing from or reverting to the commission system of government will be submitted. The date of such election shall not be less than sixty days nor more than ninety days after the date of the auditor’s certificate that a sufficient petition has been filed. The ballot to be used at the election shall include the issue presented in the petition or resolution in substantially one of the following forms:

CHANGE FROM COMMISSION SYSTEM OF GOVERNMENT Shall the city of change from its organization under the commission system of government and become a city under the council form of government? Yes ⎭ No ⎭ Shall the city of change from its organization under the commission system of government and become a city under the modern council form of government with a five-man council? Yes ⎭ No ⎭ Shall the city of change from its organization under the commission system of government and become a city under the modern council form of government with a seven-man council? Yes ⎭ No ⎭ Shall the city of change from its organization under the commission system of government and become a city under the modern council form of government with an eleven-man council? Yes ⎭ No ⎭ REVERSION TO COMMISSION SYSTEM OF GOVERNMENT Shall the city of revert from the council form of government to the commission system of government? Yes ⎭ No ⎭ Shall the city of revert from the modern council form of government with a five-man council to the commission system of government? Yes ⎭ No ⎭ Shall the city of revert from the modern council form of government with a seven-man council to the commission system of government? Yes ⎭ No ⎭ Shall the city of revert from the modern council form of government with an eleven-man council to the commission system of government? Yes ⎭ No ⎭

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40-04-11. Procedure when election favors changing from commission system of government.

If a majority of the votes cast on the question at the election provided for in section 40-04-10 favor the proposition submitted at such election, the officers elected at the next biennial election shall be those prescribed by the provisions of this title relating to cities organized under the city council form of government. Upon the qualification of such officers, the city shall become a city under the council form of government.

40-04.1-01. City council — Membership — Terms.

The governing body of a city operating under the modern council form of government is the city council, which is composed of not less than four members, one of whom is the mayor, all elected at large or by wards. Candidates for the council shall run for either mayor or council member but not both at the same time. The terms of members of the council shall be four years, or until their successors are elected and qualified. However, the council shall establish by ordinance a procedure whereby one-half of all council members, as nearly as is practicable, are elected biennially. The number of council members may be increased or decreased pursuant to section 40-06-09.

40-04.1-02. Compensation of council members.

The members of the council are entitled to receive such compensation for their services as is fixed by ordinance.

40-04.1-03. Vacancies on city council — How filled.

If a vacancy occurs in the office of councilman by death, resignation, or otherwise, the city may call a special election to fill such vacancy for the unexpired term or may after fifteen days of the date of such vacancy appoint a person from the ward or city at large by which the councilman previously holding was elected or appointed to fill such vacancy until the next city election, at which election the unexpired term shall be filled.

40-04.1-04. Restrictions on council member.

A city council member is not eligible for any other office the salary of which is payable out of the city treasury and may not hold any other office under the city government.

40-04.1-05. Meetings — Regular, special, and for organization.

The city council shall hold its regular meetings at least once a month and may prescribe by ordinance the manner in which special meetings may be called. The city council shall establish by resolution or ordinance the date of its regular meetings. The first meeting for the organization of the city council must be held on the fourth Tuesday in June of each even-numbered year.

40-04.1-06. Mayor.

The mayor shall preside at meetings of the council, and be the recognized head of the city for all ceremonial purposes and by the governor for purposes of military law. The mayor continues to have all the rights and privileges as a member of the council. If a vacancy occurs in the office of mayor or if the incumbent is absent or disabled, a mayor pro tempore shall be selected by the council from among their number to act for the unexpired term or during continuance of the absence or disability.

40-04.1-07. Council — Duties and powers.

The council shall perform all duties prescribed by law or by city ordinances and shall see that the laws and ordinances are faithfully executed.

40-05-01. Powers of all municipalities.

The governing body of a municipality shall have the power:

1. Ordinances. To enact or adopt all such ordinances, resolutions, and regulations, not repugnant to the constitution and laws of this state, as may be proper and necessary to carry into effect the powers granted to such municipality or as the general welfare of the municipality may require, and to repeal, alter, or amend the same. The governing body of a municipality may adopt by ordinance the conditions, provisions, and terms of a building code, a fire prevention code, a plumbing code, an electrical code, a sanitary code, vehicle traffic code, or any other standard code which contains rules and regulations printed as a code in book or pamphlet form by reference to such code or portions thereof alone without setting forth in said ordinance the conditions, provisions, limitations, and terms of such code. When all or part of any such code has been incorporated by reference into any ordinance, it has the same force and effect as though it had been spread at large in such ordinance without further or additional posting or publication. A copy of such standard code or portion thereof shall be filed for use and examination by the public in the office of the city auditor of such municipality prior to adoption. The adoption of any such standard code by reference shall be construed to incorporate such amendments thereto as may be made therein from time to time, and such copy of such standard code so filed shall at all times be kept current in the office of the city auditor of such municipality. The adoption of any such code or codes heretofore by any municipality is hereby validated. Fines, penalties, and forfeitures for the violation thereof may be provided within the limits specified in this chapter notwithstanding that such offense may be punishable also as a public offense under the laws of this state.
2. Finances and property. To control the finances, to make payment of its debts and expenses, to contract debts and borrow money, to establish charges for any city or other services, and to control the property of the corporation.
3. Appropriation. To appropriate money for corporate purposes only, and to provide for the payment of debts and expenses of the corporation.
4. Tax levy. To levy and collect taxes on real and personal property for general and special purposes.
5. Borrowing money. To borrow money on the credit of the corporation for corporation purposes and to issue bonds therefor as limited and provided by title 21.
6. Refunding obligations. To issue bonds in place of or to supply means to meet maturing bonds, or for the consolidation or funding of bonds or any floating indebtedness of the municipality in the manner provided in title 21.
7. Certificates of indebtedness. To borrow money in anticipation of revenues to be derived from taxes already levied as provided and limited in title 21.
8. Streets, sidewalks, and public grounds. To lay out, establish, open, alter, repair, clean, widen, vacate, grade, pave, park, or otherwise improve and regulate the use of streets, alleys, avenues, sidewalks, crossings, and public grounds, and to acquire, construct, maintain, and operate parking lots and facilities for motor vehicles; to regulate or prevent any practice having a tendency to annoy persons frequenting the same; and to prevent and regulate obstructions and encroachments upon the same.
9. Powers relating to parks — Planting grass and trees — Powers respecting parks. To regulate the planting of trees and grass on boulevards, berms, parks, parkways, and public grounds, and to exercise the same powers as are granted to a board of park commissioners respecting the parks of the municipality, if any, until the municipality has been organized into a park district.
10. Lighting of public places. To provide for the lighting of streets, alleys, avenues, parks, and public grounds.
11. Lights to inhabitants of city. To provide for the furnishing of lights to the inhabitants of the city.
12. Gas and water mains — Sewers — Electric light and gas plants. To regulate the laying of gas or water mains and pipes, and the building, laying, or repairing of sewers, tunnels, and drains, and the erecting of gas and electric light plants. Any company or association of persons organized for the purpose of manufacturing illuminating gas or electricity to supply municipalities and the inhabitants thereof shall have authority, subject to existing rights, with the consent of the governing body of the municipality, to erect gas or electric light works and lay down pipes and string wires or poles in streets or alleys subject to such regulations as the municipality may prescribe by ordinance.
13. Structures under sidewalks — Snow and obstructions. To regulate the use of all structures under sidewalks and to require the owner or occupant of any premises to keep the sidewalks in front of or along such premises free from snow or other obstruction.
14. Streets — Cleanliness of and injury to. To regulate and prevent the throwing or depositing of ashes, offal, dirt, garbage, or any offensive matter in, and to prevent injury to, any street, avenue, alley, or public ground.
15. Curbs and gutters. To provide for and regulate curbs and gutters.
16. Advertising and obstructions in public places. To regulate and prevent the use of streets, sidewalks, and public grounds for signs, signposts, awnings, telegraph and telephone poles, posting handbills and advertisements, the exhibition or carrying of banners, placards, advertisements, or handbills, and the flying of flags, banners, or signs across the streets or from houses.
17. Traffic and sales in public places. To regulate traffic and sales upon the streets, sidewalks, and public places.
18. Speed of vehicles and locomotives. To regulate the speed of vehicles and locomotives within the corporate limits of the corporation, except that the speed limit for vehicles on those streets designated as part of any state highway shall be determined by mutual agreement with the director of the department of transportation.
19. Numbering lots. To regulate the numbering of houses and lots.
20. Naming streets. To name and change the name of any street, avenue, alley, or other public place.
21. Railroad companies — Ditches and rights of way. To require railroad companies to make, keep open, and repair ditches, drains, sewers, and culverts along and under their tracks so that filthy and stagnant pools of water cannot stand on their grounds or right of way and so that the natural or artificial drainage of adjacent property shall not be impeded. To require railroad companies to fence their respective railroads or any portion of the same and construct cattle guards and public roads and keep the same in repair within the limits of the corporation.
22. Extending ways and pipes over railroad property. To extend by condemnation, subject to chapter 32-15, or otherwise any street, alley, or highway over, under, or across, or to construct or lay any sewer, water pipe, or main under or through, any railroad track, right of way, or land of any railroad company within the corporate limits.
23. Culverts, drains, and cesspools. To construct and keep in repair culverts, drains, sewers, catch basins, manholes, cesspools, vaults, cisterns, areas, and pumps within the corporate limits.
24. Licenses. To fix the amount, terms, and manner of issuing and revoking licenses.
25. Plumbers and plumbing business. To adopt, by ordinance, if it has a system of waterworks or sewerage, rules and regulations governing plumbing, drainage, and ventilation of plumbing within the limits of the municipality. The standards provided for in such ordinance, however, shall not be lower than the minimum standards provided for in any state plumbing code adopted pursuant to chapter 43-18, but may be higher than such standards. It may prescribe rules and regulations for all materials, constructions, alteration and inspection of pipes, tanks, and fixtures by which water is supplied to the citizens of the municipality, or by which waste or sewage is carried, and may provide that such pipes, tanks, and fixtures shall not be placed in any building in the municipality except in accordance with plans which are approved under the provisions of said ordinance, and that no plumbing shall be done except by plumbers registered and licensed under state law and under the ordinance, except by a property owner on that person’s own premises which are occupied as that person’s home or place of residence. The ordinance may provide that all work done by an owner upon that person’s own premises must comply with the provisions of the state plumbing code or a local ordinance, whichever shall prescribe the highest standards. Before the municipality may require a plumber to be licensed by the municipality, it shall provide standards for plumbing in a municipality equal to or in excess of those provided by the state plumbing code. A municipality may adopt the state plumbing code as a whole as an ordinance of the municipality by reference without the necessity of publishing the text therefor.
26. Transient business and amusements. To license, tax, regulate, remove, suppress, and prohibit fortune-tellers, astrologers, and all persons practicing palmistry, clairvoyancy, mesmerism, and spiritualism, hawkers, peddlers, pawnbrokers, theatricals and other exhibitions, shows and amusements, ticket scalpers, and employment agencies, and to revoke the license at pleasure, except that the provision in this subsection with reference to hawkers and peddlers shall not apply to persons selling or offering for sale the products raised or grown on land within this state.
27. Draymen, taxi drivers, porters, and others pursuing like occupations. To license, tax, regulate, and prescribe the rates charged by draymen, parcel delivery men, busdrivers, taxi drivers, porters, expressmen, watermen, and others pursuing like occupations, and the operation of taxicabs. Provided, all motor vehicles used in ridesharing arrangements, as defined in section 8-02-07, are not taxicabs.
28. Runners for stages and other things or persons. To license, regulate, tax, and restrain runners for stages, buses, cars, public houses, or other things or persons.
29. Alcoholic beverages. To regulate the use and to regulate and license the sale of alcoholic beverages subject to the provisions contained in title 5.
30. Bowling alleys, pool, billiards, theaters, and motion picture theaters. To license, regulate, and tax bowling alleys, theaters, motion picture theaters, and pool or billiard tables, or any other tables or implements kept or used for similar purposes in any public place.
31. Markets, market houses, and slaughterhouses. To establish, purchase, erect, lease, rent, manage, maintain, regulate, and provide for the use of markets and market houses, municipal slaughterhouses, or abattoirs.
32. Dairy, meat, and food products — Inspection and regulation of sale. To provide for the inspection of milk, cream, and butter sold within the limits of the municipality, and of any dairy or dairy herd kept for the production of such milk, cream, and butter. To prescribe the terms upon which sales of such milk, cream, and butter may be made and to fix penalties for violations. To prescribe regulations for the slaughtering of animals to be sold as meat. To prescribe generally sanitary and regulatory provisions as applied to food products sold within the limits of the municipality and to prohibit the sale of impure and diseased milk or other food products.
33. Public peace in municipality. To provide for keeping and preserving the peace and quietude of the municipality, prevent disorderly conduct, prohibit public intoxication, and prevent and suppress riots, affrays, disturbances, and disorderly assemblies in any place.
34. Fire limits. To prescribe fire limits within which wooden buildings shall not be erected, placed, or repaired without permission; provide that when a building within such limits has been damaged by fire, decay, or otherwise to the extent of fifty percent of its valuation, it shall be torn down and removed; prescribe the manner of ascertaining such damage; provide for the removal of any structure or building erected contrary to the prescribed rules; declare each day’s continuance of such building or structure a separate offense and to prescribe the penalties therefor; and define fireproof material.
35. Fire hazards. To prevent and provide for remedying any dangerous construction or condition of any building, enclosure, or manufactory, or any equipment used therein; regulate and prevent the carrying on of manufactories creating a fire hazard; prevent a deposit or keeping of ashes or refuse in unsafe places; and require all buildings and places to be put and kept in a safe condition.
36. Waterworks system. To purchase, acquire by eminent domain in accordance with chapter 32-15, erect, lease, rent, manage, and maintain any system of waterworks, well reservoirs, pipes, machinery, buildings, and all other property comprising a waterworks system, such as hydrants, supply of water, fire stations, fire signals, fire engines, or fire apparatus that may be of use in the prevention and extinguishment of fires, and to fix and regulate the rates, use, and sale of water.
37. Fire equipment — Use beyond municipal limits. To use its fire department to attend to fires and render assistance to other municipalities within or without this state, or to private property, including farm buildings located outside the city limits, and the fire department, its members, and apparatus, when engaged outside the limits of the municipality, shall be deemed to be engaged in the performance of a public duty as fully as if serving within the limits of the municipality.
38. Storage of combustible material — Use of fireworks and open flame lights. To regulate and prohibit the storage of combustible or explosive material, the use of open flame lights, the building of bonfires, and the use or sale of firecrackers and fireworks.
39. Lumberyards. To regulate or prohibit the keeping of any lumberyard and the keeping or selling of any lumber or other combustible material within the fire limits.
40. Steam boilers. To provide for the inspection of steam boilers.
41. Jails. To establish, maintain, and regulate a jail and, with the consent of the board of county commissioners, to use the county jail for the confinement of persons charged with or convicted of the violation of any ordinance.
42. Cruelty to animals. To prohibit and punish cruelty to animals.
43. Vagrants and prostitutes. To restrain and punish vagrants, mendicants, and prostitutes.
44. Nuisances. To declare what shall constitute a nuisance and to prevent, abate, and remove the same.
45. Health regulations. To make regulations necessary or expedient for the promotion of health or for the suppression of disease.
46. Cemeteries. To establish, maintain, and regulate cemeteries within or without the municipality, acquire land therefor by purchase or otherwise, and cause cemeteries to be removed, and to prohibit the establishment thereof within, or within one mile [1.61 kilometers] of, the corporate limits.
47. Animals and poultry. To regulate or prohibit the running at large of animals and poultry, provide for the establishment and maintenance of public pounds for the impounding of any animals or poultry running at large or tethered in any street in violation of municipal ordinances, establish procedures for the impounding and discharging of animals and poultry impounded, make the expenses and fines imposed a lien upon such stock or poultry, and provide for the sale of the stock or poultry to satisfy such lien.
48. Packinghouses and other offensive businesses. To control the location and regulate the management and construction of packinghouses, renderies, bone and soap factories, slaughterhouses, livery stables, and blacksmith shops, and to prohibit any offensive or unwholesome business within, or within one mile [1.61 kilometers] of, the corporate limits.
49. Unwholesome or nauseous places. To compel the owner of any cellar, stable, pigsty, privy, sewer, or other unwholesome or nauseous thing or place to cleanse, abate, or remove the same, and to regulate the location thereof.
50. Public buildings. To construct, operate, and maintain all public buildings necessary for the use of the municipality.
51. Auctioneers, brokers, lumberyards, and public scales. To license, tax, and regulate auctioneers, brokers, lumberyards, and public scales.
52. Supplies. To provide that supplies needed for the use of the municipality shall be furnished by contract let to the lowest responsible bidder.
53. Secondhand and junk stores. To license, tax, and regulate secondhand and junk stores and to forbid and punish the purchase and receipt by them from minors of any articles without the written consent of their parents or guardians.
54. Insure public property. To insure the public property of the municipality.
55. Real and personal property. To acquire by lease, purchase, gift, condemnation, or other lawful means and to hold in its corporate name for use and control as provided by law, both real and personal property and easements and rights of way within or without the corporate limits or outside this state for all purposes authorized by law or necessary to the exercise of any power granted.
56. Transfer property. To convey, sell, dispose of, or lease personal and real property of the municipality as provided by this title.
57. Franchises. To grant franchises or privileges to persons, associations, corporations, or limited liability companies, any such franchise, except when given to a railroad company, to extend for a period of not to exceed twenty years, and to regulate the use of the same, franchises granted pursuant to the provisions of this title not to be exclusive or irrevocable but subject to the regulatory powers of the governing body.
58. Airports. To acquire, establish, construct, expand, own, lease, control, equip, improve, maintain, operate, regulate, and police airports and landing fields within or without the geographic limits of the municipality as provided in title 2.
59. Public works project. To accept aid from, cooperate and contract with, and to comply with and meet the requirements of any federal or state agency for the establishment, construction, and maintenance of public works, including dams and reservoirs for municipal water supply, for water conservation, flood control, prevention of stream pollution, or sewage disposal. In furtherance thereof to acquire by purchase, lease, gift, or condemnation the necessary lands, rights of way, and easements for such projects, and to transfer and convey to the state or federal government, or any agency thereof, such lands, rights of way, and easements in consideration of the establishment and construction of, and the public benefits which will be derived from any such project. To enter into an agreement with any such government, agency, or municipality within or without this state, to hold such government, agency, or municipality harmless from any and all liability or claim of liability arising from the establishment, construction, and maintenance of such works, and to indemnify such government, agency, or municipality for any such liability sustained by it and to pay all costs of defending against any such claim. In furtherance thereof to acquire by purchase, lease, gift, or, subject to chapter 32-15, condemnation, the necessary lands, rights of way, and easements for such projects, and to transfer and convey to such government, agency, or municipality, such lands, rights of way, and easements in consideration of the establishment and construction of, and the public benefits which will be derived from any such project, or to pay the cost of the acquisition of such lands, rights of way, and easements by such government, agency, or municipality. All actions herein authorized may be taken by resolution duly adopted by the governing body of the municipality. Any and all actions and proceedings heretofore taken by any municipality which are within the authority granted by this subsection are hereby legalized and validated.
60. Special improvement assessments — Satisfaction. To make assessments as limited by the laws of this state for local improvements on property adjoining or benefited thereby, to collect the same in the manner provided by law, and to satisfy the tax lien on lands subject to special assessments.
61. Public water supply. To prevent the pollution of or injury to any water supply belonging to the municipality or any public water supply within, or within one mile [1.61 kilometers] of, the limits of the municipality.
62. Band. To levy a tax as provided in this title for the purpose of providing a fund for the maintenance or employment of a band for municipal purposes.
63. Radio reception. To regulate the installation and operation of motors and other electrical or mechanical devices so as to prevent interference with radio reception.
64. Municipal plants. To sell, convey, and dispose of the plant or equipment of any public utility owned by the municipality and to contract for the leasing or operation of such plant, equipment, or utility by others, and to grant to the lessee or operator under such a contract the right to purchase such plant, equipment, or utility upon such terms and conditions as may be expressed in the contract, after authorization as provided by this title.
65. Public dances. To license, tax, and regulate public dances or public dancehalls.
66. Light and power plants and gas transmission or distribution systems. To purchase, acquire by eminent domain in accordance with chapter 32-15, erect, lease, rent, manage, and maintain electric light and power plants, gasworks, steam heating plants and appurtenances for distribution, and to regulate and fix the rates to its patrons and to jointly, with other municipalities, acquire by eminent domain, erect, construct, lease, rent, manage, and maintain any artificial or natural gas transmission or distribution lines or plants.
67. Flood control projects. To acquire, construct, maintain, operate, finance, and control flood control projects, both within and adjacent to such municipality, and for such purpose to acquire the necessary real property and easements therefor by purchase and eminent domain, in accordance with chapter 32-15, and to adopt such ordinances as may reasonably be required to regulate the same.
68. Public restrooms. To acquire, construct, maintain, operate, finance, and control public restrooms and facilities within such municipality, and for such purpose to acquire the necessary real property therefor by purchase and eminent domain, in accordance with chapter 32-15, and to adopt such ordinances as may reasonably be required to regulate the same.
69. Employee pension system. To adopt, by ordinance, a city employee pension system that may provide all rules and regulations governing its operation and discontinuance, provided other pension systems allowed by statute are not in effect, excepting firefighters relief associations and federal social security, or in order to consolidate existing pension plans. In addition to all other rules and regulations deemed necessary and proper by the governing body, it may provide as to matters pertaining to membership, tax levies in an amount not exceeding the total levies authorized by chapters 40-45 and 40-46, membership fees and assessments, management, investments, acceptance of money and property, retirement conditions and payment amount, continuance of system and discontinuance procedures, discontinuance payments, entrance into contracts with an insurance firm or firms for coverage of the employee pension system.
70. Television towers. To construct and maintain relay and booster towers for the improved reception of educational and entertainment television programs.
71. Contracts. To contract and be contracted with.
72. Community development block grant program. To loan or grant money to and secure a mortgage from individuals, associations, corporations, or limited liability companies and to purchase ownership shares or membership interests in corporations, limited liability companies, or other business associations as provided through the procedures established by the state’s community development block grant program established pursuant to the Housing and Community Development Act of 1974 [Pub. L. 93-383; 88 Stat. 633; 42 U.S.C. 5301 et seq.]. This power applies to all community development block grant transactions of the governing body, including any transactions prior to July 1, 1987. A city is not lending its funds or extending its credit to any individual, association, or organization under this subsection and no general liability on the part of the city is incurred.
73. Encouragement of arts. To, consistent with section 54-54-01, appropriate and disburse city moneys and to accept and disburse moneys received from federal, state, county, city, or private sources for the establishment, maintenance, or encouragement of arts within the city. The authority of a city under this subsection is supplemental to the authority provided in chapter 40-38.1.
74. To expend city funds for the purpose of participating in an organization of city governments under section 40-01-23.
75. To participate and enact or adopt ordinances necessary for participation in the nation’s historic preservation program as a certified local government, as provided for under 36 CFR 61.5.
76. Lease of waterworks or sewage systems. To lease, for a term not to exceed ninety-nine years, the plant or equipment of any waterworks, mains, or water distribution system and any property related thereto pursuant to subsection 5 of section 40-33-01 or to lease, for a term not to exceed ninety-nine years, any sewage system and all related property for the collection, treatment, purification, and disposal in a sanitary manner of sewage pursuant to section 40-34-19.
77. Appointed board budgets. To require that financial records, including all revenues, expenditures, fund balances, and complete budgets, be submitted to the governing body of the municipality at a time and in a format requested by that governing body by all boards, authorities, committees, and commissions with members appointed by the governing body before the governing body’s approval of the budget and tax levy.
78. To expend city funds as a donation for a capital improvement project to a nonprofit health care facility within the city.

40-05-01.1. Assessment of costs of work done necessary for the general welfare.

Whenever it becomes necessary for the general welfare, public health, fire protection, or public safety to order an owner or occupant of property to do certain work provided for by ordinance, and such owner or occupant refuses to conduct or comply with such order, the work may be done by the municipality and the owner or occupant of such property billed for the same by the municipality, or whenever a municipality for the general welfare, public health, fire protection, or public safety establishes by ordinance and maintains and operates a garbage and rubbish collection and removal system, the cost of such service may be charged to the owner or occupant of the property served. If such bill is not paid when due, the amount thereof may be assessed against the premises on which such work is done, or for which the service is rendered, and collected and returned in the same manner as other municipal taxes are assessed, certified, collected, and returned. This section shall not be construed to limit or affect in any manner any methods which now or in the future may be used for the collection of costs incurred by the municipality for the purposes set forth in this section, but the remedies provided for herein shall be in addition to such methods.

40-05-01.2. Remedies additional and not restrictive. [Repealed]

Repealed by omission from this code.

Note.

The provisions of section 40-05-01.2 have been combined with section 40-05-01.1.

40-05-01.3. City traffic ordinances to apply to streets within mobile home parks.

Every city ordinance regulating the operation or equipment of motor vehicles or regulating traffic shall apply to the private ways, streets, lanes, and alleys of mobile home parks, trailer parks, and campgrounds containing five or more lots for occupancy by mobile homes, travel trailers, or tents.

40-05-02. Additional powers of city council and board of city commissioners.

The city council in a city operating under the council form of government and the board of city commissioners in a city operating under the commission system of government, in addition to the powers possessed by all municipalities, shall have power:

1. Street railway and railway tracks. To permit, regulate, or prohibit the locating, constructing, or laying of railway or street railway tracks in any street, alley, or public place, and any permission given to a street railway may not be for a longer period than fifty years.
2. Sale of milk. To license the sale of milk.
3. Lumber, wood, coal, hay, and merchandise — Municipal scales. To regulate the inspecting, weighing, and measuring of lumber, firewood, coal, hay, and other articles of merchandise; establish or purchase one or more city scales and to require dealers in hay, coal, firewood, or any other commodity, which, in the judgment of the governing body, should be weighed upon the city scales, to use such scales in the sale of such commodity; and charge a reasonable fee for the use of such scales.
4. Fences and party walls. To regulate partition fences and party walls.
5. Jail, house of correction, workhouse. To establish, maintain, and regulate a city jail, house of correction, and workhouse for the confinement and reformation of disorderly persons convicted of violating any city ordinance and to appoint necessary jailers and keepers.
6. Building permits. To provide by ordinance and to fix the fees for the issuance of building permits.
7. Building construction — Fire escapes. To prescribe the manner of constructing buildings, structures, and the walls thereof, require and regulate the construction of fire escapes on buildings, and provide for the inspection of all buildings within the limits of the municipality and for the appointment of a building inspector.
8. Bridges, viaducts, tunnels, and overhead pedestrian bridges. To construct, keep in repair, and regulate the use of bridges, viaducts, overhead pedestrian bridges, and tunnels.
9. Police. To regulate the police of the municipality and to pass and enforce all necessary police ordinances.
10. Hospitals and medical dispensaries. To establish, control, and regulate hospitals and medical dispensaries.
11. Census. To provide for the taking of a census of the city, but no city census may be taken more often than once in every three years.
12. Redistricting city. To redistrict the city into wards and to prescribe the boundaries thereof.
13. Zoning. To adopt a zoning ordinance as provided in this title; regulate the location of junk shops, coalyards, garages, machine shops, power laundries, hospitals, and undertaking establishments; and establish building lines fixing the distance from the property line at which buildings may be erected.
14. Traffic regulation. To regulate, control, or restrict within designated zones, or congested traffic districts, except that the speed limit for vehicles on those streets designated as part of any state highway must be as determined by mutual agreement with the director of the department of transportation, the use of streets, alleys, or other public ways by various classes of traffic.
15. Driving while intoxicated. To prohibit by ordinance the operation of any motor vehicle or other conveyance upon the streets, alleys, or other public or private areas to which the public has a right of access for vehicular use within the city by any person under the influence of intoxicating liquor or a controlled substance.
16. Tourist camps. To license, regulate, and fix the location of any public or private tourist camp within the city.
17. Water supply. To withdraw from any stream, watercourse, or body of water within or without a city, or within or without, or bordering upon, this state, a supply of water reasonably sufficient for the needs of the inhabitants of the city, and to supply the facilities for the storage of water for all other necessary municipal purposes.
18. Dams for municipal water purposes. To erect dams upon or across streams, watercourses, or bodies of water within or without, or bordering upon, the boundaries of this state, and to improve, alter, or protect the bed, banks, or course thereof.
19. Water supply — Acquire necessary property. To acquire by gift, grant, lease, easement, purchase, or, subject to chapter 32-15, by eminent domain, and to own, operate, maintain, and improve, all lands, structures, power plants, public works, and personal property, whether within or without this state, necessary for the maintenance and conservation of its water supply.
20. Abandoned or unclaimed personal property. To provide by ordinance for the taking, storage, and disposal of any personal property abandoned or left unclaimed upon the streets, alleys, or other public ways of the city for a period exceeding ten days, and, after holding such property for a period of not less than sixty days, to sell the same at public sale after a notice published or posted at least ten days before the sale, and at such place, and in such manner as may be provided by ordinance. Upon the sale of the property, the city shall convey to the purchaser a merchantable title by a bill of sale. At any time within six months after the sale, the owner of the property, upon written application, is entitled to receive the proceeds of the sale from the city, less the necessary expense of taking, storing, and selling the property. The owner of the property may reclaim it at any time prior to the sale upon payment of the necessary expense of taking and storing.
21. Auditoriums and public buildings. To take charge of a fully completed auditorium or other property originally purchased or acquired for public use by public subscription, donation, sale of stock, or otherwise, if such auditorium or other property has been abandoned or lost by the original owner or owners, their successors or assigns, and to operate, maintain, repair, and keep such property for public use. In the ownership, management, use, or operation thereof, the city must be deemed to be exercising a governmental function.
22. Dogs. To license dogs, and to regulate the keeping of dogs, including authorization for their disposition or destruction in order to protect the health, safety, and general welfare of the public provided, however, that license fees are waived in the case of an assistance dog.
23. Substandard buildings or structures. The governing body of any city shall have the authority to provide by ordinance for the demolition, repair, or removal of any building or structure located within the limits of such city or other territory under its jurisdiction, which creates a fire hazard, is dangerous to the safety of the occupants or persons frequenting such premises, or is permitted by the owner to remain in a dilapidated condition. Any such ordinance must provide for written notice to the owner of a hearing by the governing body before final action is taken by such body. It must also provide a reasonable time within which an appeal may be taken by the owner from any final order entered by such governing body to a court of competent jurisdiction. The amount of the cost of any demolition, repair, or removal of a building or structure constitutes a lien against the real property from which the cost was incurred and the lien may be foreclosed in judicial proceedings in the manner provided by law for loans secured by liens on real property. If this amount is not adequate to cover the cost of demolition, repair, or removal, the city has a lien for the amount of the additional costs on all real property owned, or later acquired, by the owner in the city. If the city provides the amount of the lien and the name of the owner, the county auditor shall enter on the tax list the amount of the additional cost as a tax lien. The tax lien is enforceable by the city in the same manner as a tax lien by a county. This subsection in no way limits or restricts any authority which is now or may hereafter be vested in the state fire marshal for the regulation or control of such buildings or structures.
24. Assault and battery. To prohibit by ordinance and prescribe the punishment for the commission of assault and battery within the jurisdiction of the city.
25. Theft. To prohibit by ordinance and prescribe the punishment for the commission of theft, as defined by chapter 12.1-23, within the jurisdiction of the city.
26. Peace bonds. To provide by ordinance for the issuance of peace bonds by the municipal judge in accordance with the procedure in chapter 29-02.
27. Public transportation. To provide by ordinance for the purchase, acquisition, or establishment, and operation of a public transportation system. In the alternative, to provide for payments under a contract, approved by the governing body of the city, with a private contractor, for the provision and operation of a public transportation system within the city.
28. Traffic violation hearings. To enact an ordinance equivalent to section 39-06.1-04; provided, that the penalty assessed may not exceed that authorized by section 40-05-06.
29. Marijuana possession. To prohibit by ordinance any person, except a person operating a motor vehicle, from possessing not more than one ounce [28.35 grams] of marijuana, as defined by section 19-03.1-01, within the jurisdiction of a city, and to prescribe the punishment, provided the penalty assessed is subject to subsection 9 of section 19-03.1-23.
30. Establishment of administrative boards. To establish administrative boards or committees for the limited purpose of adjudicating a violation of a noncriminal city ordinance or noncriminal city code. An administrative board or committee may impose fines or other noncriminal penalties, including issuing orders of suspension and revocation of a permit or license. A decision by an administrative board or committee is subject to appeal to the governing body of the municipality.

40-05-02.1. Parking privileges for handicapped. [Repealed]

Repealed by S.L. 1967, ch. 293, § 5.

40-05-02.2. City may levy excise tax on nonprofit liquor dealers by ordinance.

1. Any city, through the enactment of an ordinance to such effect, may levy a local excise tax, not in excess of fifty percent, upon the proceeds from gross sales of liquor, as defined by subsection 6 of section 5-01-01, by any nonprofit corporation licensed by the city to sell such liquor; provided, however, that no city may levy the tax herein provided for unless such nonprofit corporation is the only person, firm, association, corporation, or limited liability company within the corporate limits of such city licensed to sell such liquor.
2. The city in levying the excise tax provided for in subsection 1 shall provide within the levying enactment a method of computation, collection, and disposition of such tax revenue, and a procedure whereby any person aggrieved by such procedure may appeal to the governing body of the city. The right of appeal from a decision of the governing body of such city to the district court of the district wherein such city is located may not be restricted. An appeal taken under this section must be in accordance with the procedure provided in section 28-34-01.

40-05-03. Cities having population of fifteen thousand may provide for regulation and inspection of food markets.

The governing body of any city having a population of fifteen thousand or more may enact ordinances providing for the regulation and inspection of food markets, stores, and other places where food intended for human consumption is sold at retail.

40-05-04. Powers of village. [Repealed]

Repealed by S.L. 1967, ch. 323, § 285.

40-05-05. Cities may contract for electrical energy or gas.

The governing body of any city may enter into a contract with any person, partnership, association, corporation, limited liability company, or the United States or any department or agency thereof to provide for:

1. The furnishing of electrical energy or gas to the inhabitants of the city and to the city for all purposes; or
2. The sale to and the purchase by the city for a term of not to exceed ten years, of electrical energy or gas required for city purposes.

The making and execution of any such contract must be authorized by a resolution of the governing body adopted by a majority of the members thereof at a regularly assembled meeting of such body. Nothing contained in this section shall deprive the public service commission of any of its regulatory powers with reference to contract rates.

40-05-06. City fines and penalties limited.

1. Except as provided in subsections 2 and 3, the fine or penalty for the violation of any ordinance, resolution, or regulation of a city may not exceed one thousand five hundred dollars, and the imprisonment may not exceed thirty days for one offense.
2. For every violation of a city ordinance that regulates the operation or equipment of a motor vehicle or which regulates traffic, except those ordinances listed in section 39-06.1-05, a fee may be established, by ordinance, which may exceed, by up to one hundred percent, the limit, for an equivalent category of violation, set forth in section 39-06.1-06.
3. For every violation of a city ordinance enforcing the requirements of title 40, Code of Federal Regulations, section 403 relating to publicly owned treatment works, or prohibiting shoplifting, vandalism, criminal mischief, or malicious mischief, the penalty may not exceed a fine of one thousand five hundred dollars, imprisonment for thirty days, or both such fine and imprisonment.
4. This section does not prohibit the use of the sentencing alternatives, other than a fine or imprisonment, provided by section 12.1-32-02 for the violation of a city ordinance, nor does this section limit the use of deferred or suspended sentences under subsections 3 and 4 of section 12.1-32-02.

40-05-07. Village fines and penalties limited — Remission. [Repealed]

Repealed by S.L. 1967, ch. 323, § 285.

40-05-08. Municipal licenses for sale of agricultural products limited — Exception.

No municipality shall impose any license fee or charge against the producer or grower of any agricultural product grown or produced upon lands located in this state nor in any manner limit or restrict the free sale thereof by such grower or producer. This provision, however, shall not restrict the right of any municipality to utilize any power given to it to regulate, as reasonable health measures, the inspection and sale of products intended for human consumption.

40-05-09. Purchase of firefighting equipment — How paid — Limitations.

Upon a declaration by resolution duly passed that an emergency exists and that it is desirable and necessary that firefighting apparatus and equipment be acquired for municipal purposes, the governing body of any municipality may enter into a contract or contracts for the purchase of such property. The purchase price of such property may be payable in annual installments, but all moneys paid annually under any such contract shall be available and shall be paid from the authorized tax levy of the municipality. Under this section, contracts may not be entered into which will create aggregate future obligations of the municipality in an amount in excess of one percent of the value of all taxable property within the municipality and such contracts shall not be in excess of ten thousand dollars.

40-05-09.1. Tax levy for fire department stations. [Repealed]

40-05-09.2. Contracting for fire protection service.

Any city may contract with a nonprofit corporation for the provision of fire protection and firefighting services if the nonprofit corporation has been in existence and has provided fire protection and firefighting services to the contracting city for a period of not less than twenty years.

The governing body of the city may provide funding from revenues derived from its general fund levy authority for contracted fire protection services and may also expend moneys otherwise available for the provision of such service.

40-05-10. Municipalities to have powers of townships.

In addition to the powers conferred by this title, each incorporated municipality shall have and shall exercise, within its limits and in the manner prescribed by law, the same powers as are conferred upon townships by the laws of this state.

40-05-11. Foreign city — Power to acquire by right of eminent domain, purchase, lease, own, and hold real estate in this state — Liability.

Any city of another state situated within five miles [8.05 kilometers] of the boundary line of this state may purchase, lease, own, and hold real estate in this state for waterworks or sewerage purposes and may improve the land for municipal purposes in the same manner as a city situated in this state, and may lease, let, or convey the land. Any city so situated may acquire, by purchase, gift, devise, or, subject to chapter 32-15, condemnation, any property, corporeal or incorporeal within this state, as may be necessary or convenient for the construction and maintenance of an electric power transmission line, which electric power transmission line has the function of connecting a municipal power plant, owned and operated by that city, with distribution facilities owned by the government of the United States for distributing electric power generated at Garrison Dam. Such foreign city is liable for all damages growing out of or incident to the ownership, use, or occupation of any such real estate in this state as if it were a municipality of this state.

40-05-12. Foreign city — Power to sue and defend in courts of this state.

Any city of another state authorized by section 40-05-11 to own, lease, occupy, or hold real estate in this state shall have the same right as a city of this state to sue by its corporate authorities and in its corporate name in the courts of this state for the protection of any rights acquired in real estate in this state and to defend actions in its corporate name relating to the ownership, use, or occupation of real estate acquired.

40-05-13. Foreign city — Power to convey realty — Regulations governing.

Any real estate in this state owned by a city situated in another state may be conveyed by a warranty or quitclaim deed executed by and on behalf of such city in its corporate name by its executive officer and city auditor. The deed, when so executed and when acknowledged by the executive officer and city auditor for and on behalf of the city, before an officer competent to take acknowledgments, shall be entitled to record.

40-05-14. Agreements for construction and maintenance of streets between municipalities and counties.

The governing body of any municipality of ten thousand population or less and the boards of county commissioners of the several counties may enter into agreements for the construction and maintenance of streets within such municipalities by the boards of county commissioners. Said municipalities shall pay, on a reimbursable basis, such sums as are agreed upon.

40-05-15. Unclaimed motor vehicles — When sale permitted — Bill of sale evidence of title. [Repealed]

Repealed by S.L. 1973, ch. 319, § 15.

40-05-16. Programs and activities for senior citizens — Expenditure of funds.

The governing body of any city is authorized to establish or maintain programs and activities for senior citizens, including the expansion of existing senior citizen centers which will provide recreational and other leisure-time activities, informational, health, welfare, counseling, and referral services for senior citizens, and assist such persons in providing volunteer community or civic services. The governing body is authorized to expend funds received from state, federal, or private sources for the public purposes provided for in this section. No expenditure authorized by this section shall be made to defray any expenses of any organization or agency until such organization or agency is incorporated under the laws of this state as a nonprofit corporation and has contracted with the governing body in regard to the manner in which such funds will be expended and the services to be provided. An organization or agency and its program which receives such funds shall be reviewed or approved annually by the governing body to determine its eligibility to receive funds under the provisions of this section.

40-05-17. City restriction of adult establishments — Definitions.

1. As used in this section, unless the context otherwise requires:
   1. “Adult bookstore” means a bookstore having as a preponderance of its publications, books, magazines, and other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas as defined in this subsection.
   2. “Adult establishment” means either an adult bookstore, an adult motion picture theater, an adult mini-motion picture theater, or a massage business, all as defined in this subsection.
   3. “Adult mini-motion picture theater” means an enclosed building with a capacity for less than fifty persons used for presenting motion pictures, a preponderance of which are distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas as defined in this subsection, for observation by patrons of the theater.
   4. “Adult motion picture theater” means an enclosed building with a capacity of fifty or more persons used for presenting motion pictures, a preponderance of which are distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas as defined in this subsection, for observation by patrons of the theater.
   5. “Massage” means the manipulation of body muscle or tissue by rubbing, stroking, kneading, or tapping, by hand or mechanical device.
   6. “Massage business” means any establishment or business wherein massage is practiced, including establishments commonly known as health clubs, physical culture studios, massage studios, or massage parlors.
   7. “Sexually oriented devices” means without limitation any artificial or simulated specified anatomical area or any other device or paraphernalia that is designed in whole or in part for specified sexual activities.
   8. “Specified anatomical areas” means:
      1. Less than completely and opaquely covered human genitals and pubic regions, buttocks, or female breasts below a point immediately above the top of the areola.
      2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
   9. “Specified sexual activities” means:
      1. Human genitals in a state of sexual stimulation or arousal;
      2. Acts of human masturbation, sexual intercourse, or sodomy; or
      3. Fondling or other erotic touchings of human genitals and pubic regions, buttocks, or female breasts.
2. A determination of preponderance need not be based on whether or not a numerical majority or plurality of the materials are distinguished or characterized by their emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas. When making a determination as to whether an establishment displays, sells, distributes, or exhibits a preponderance of materials which are so distinguished or characterized, the governing body or factfinder shall consider the totality of the circumstances and may consider, among other factors deemed relevant, any of the following:
   1. Dominant theme of the establishment.
   2. Total impression of the emphasis placed on such materials by the establishment.
   3. Externalities of the establishment including, the manner of packaging or display and advertising which demonstrates the dominant theme or emphasis being placed on such materials by the establishment.
   4. Obtrusive characteristics of the materials which tend to distract from and dominate the other classes of materials.
   5. Manner of display of the materials.
   6. Advertising emphasis.
   7. Whether the establishment prohibits minors from entering the premises or any portion thereof.
3. The governing body of any city may, by ordinance, provide that:
   1. No building, premises, structure, or other facility that contains any adult establishment, as defined in subsection 1, shall contain any other kind of adult establishment.
   2. No building, premises, structure, or other facility in which sexually oriented devices, as defined in subsection 1, are sold, distributed, exhibited, or contained shall contain any adult establishment, as defined in subsection 1.

40-05-18. Garbage removal — Number of contractors allowed.

In any city with a population of not less than five thousand persons, the governing body shall, if permitted by ordinance or by law to allow more than one person or firm to contract with commercial enterprises for the private collection or removal of garbage, allow all persons or firms wishing to do so to enter into private garbage removal contracts with commercial enterprises.

40-05-19. City funding for animal shelters — Sterilization of animals.

The governing body of the city may provide funding from revenues derived from its general fund levy authority for the construction, operation, or maintenance of animal shelters. Voter-approved levy authority authorized by electors of a city under this section before January 1, 2015, remains in effect through taxable year 2024 or for the time period authorized by the electors, whichever expires first.

The levy authorized by this section may be used to defray expenses of any organization or agency incorporated under the laws of this state as a nonprofit corporation that has contracted with the governing body of the city in regard to the manner in which the funds will be expended and the services will be provided. No unclaimed dog or cat may be released for adoption by an animal shelter that receives funds from the levy under this section without being first sterilized, or without a written agreement and deposit from the adopter guaranteeing that the animal will be sterilized.

40-05-20. Programs and activities for handicapped persons — Expenditure of funds.

The governing body of any city or park district may establish or maintain programs and activities for handicapped persons, including recreational and other leisure-time activities and informational, health, welfare, transportation, counseling, and referral services. The governing body may provide funding from revenues derived from its general fund levy authority and may expend funds received from state, federal, or private sources for the public purposes provided for in this section. No expenditure may be made to defray any expenses of any organization or agency until the organization or agency is incorporated under the laws of this state as a nonprofit corporation and has contracted with the governing body in regard to the manner in which the funds will be expended and the services will be provided. An organization or agency that receives the funds must be reviewed or approved annually by the governing body to determine its eligibility to receive funds under this section.

40-05-21. Centennial coordinating committee. [Repealed]

Repealed by S.L. 2011, ch. 54, § 15.

Effective Date.

The repeal of this section by section 15 of chapter 54, S.L. 2011 became effective August 1, 2011.

40-05-22. Golf carts on city streets.

The governing body of a city may allow by an ordinance the operation of golf carts on the city streets. The ordinance may not allow a golf cart on federal, state, or county highways in the city, except for the perpendicular crossing of these highways. The ordinance may not allow the operation of a golf cart on city streets except for daytime travel between the owner’s place of residence and a golf course. Golf carts that are allowed to operate on the city streets as the result of an ordinance are exempt from the title, registration, and equipment provisions of title 39.

40-05-23. Limitation on authority — Seed.

Notwithstanding any other law, a city may not impose any requirements or restrictions pertaining to the registration, labeling, distribution, sale, handling, use, application, transportation, or disposal of seed. This section does not apply to city zoning ordinances.

40-05-24. Duties of cities granting property tax incentives.

1. Notwithstanding any other provision of law, before granting a property tax incentive on any parcel of property that is anticipated to receive a property tax incentive for more than five years, the governing body of a city shall send the chairman of each county commission and the president of each school district affected by the property tax incentive a letter, by certified mail, which provides notice of the terms of the proposed property tax incentive.
2. Within thirty days from receipt of the letter, each affected county and school district shall notify the city, in writing, whether the county or school district elects to participate in granting the tax incentive on the county or school district portion of tax levied on the property. The notification from a county or school district electing not to participate must include a letter explaining any reason for which the entity elected not to participate and whether the county or school district is willing to negotiate the terms of the property tax incentive with the city.
3. If the city does not receive a response from an affected county or school district within thirty days of delivery of the letter, the county and school district must be treated as participating in the property tax incentive.
4. The term “negotiation” as used in this section means the governing body of an affected county or school district may negotiate the terms of participating in the tax incentive, including the duration of the tax incentive and the taxable value selected for the base year for purposes of computing tax increments.
5. If an agreement is reached through negotiation under this section, the property tax incentive must be applied in accordance with the agreement.
6. Property subject to a development agreement entered pursuant to section 40-58-20.1 before August 1, 2017, and all amendments to the development agreement, is not subject to the requirements under this section.

40-05.1-00.1. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

1. “City officers” means the elected and appointed officers of the city and includes the governing body of the city and its members.
2. “Executive officer” means the chief officer in whom resides the power to execute the laws of the city.
3. “Governing body” means the body which performs the legislative functions of the city.

40-05.1-01. Enabling clause.

Any city may frame, adopt, amend, or repeal home rule charters as provided in this chapter.

40-05.1-02. Methods of proposing home rule charter.

The governing body of any city may on its own motion cause a home rule charter to be framed and submitted for adoption to the qualified electors of the city in the manner provided in this chapter, or such proposal may be made in a petition filed with the governing body and signed by not less than fifteen percent of the qualified electors of the city voting in the last city election.

40-05.1-03. Charter commission — Membership — Preparation and submission of charter — Compensation and expenses — Publication or distribution.

Within sixty days after proceedings have been initiated for a home rule charter, the governing body of the city shall appoint a charter commission, composed of at least five members, to frame the charter, unless a petition proposing a charter pursuant to section 40-05.1-02 prescribes the composition of the commission or the manner by which the composition of the commission is to be determined. The chairman of the charter commission shall be designated by the governing body and shall be a charter commission member. Compensation and expenses of commission members shall be as determined by the governing body. The governing body may furnish the charter commission with office space, clerical help, legal and other assistance, and supplies, and may appropriate and pay for same out of its general funds. The charter commission shall hold at least one public hearing on the proposed charter, and may use other suitable means to disseminate information, receive suggestions and comments, and encourage public discussion of the proposed charter. The commission shall prepare and submit the charter within one year after appointment, unless the governing body allows additional time for submission of the charter. The proposed charter shall then be published once in the city’s official newspaper as provided in section 40-01-09. However, cities with a population of one thousand or less may, in lieu of publishing the charter in a newspaper, distribute copies of the charter door-to-door and have them posted and available at prominent locations in the city. In the event a city does not publish the charter in a newspaper, it must still publish a notice of the election.

40-05.1-04. Submission of charter to electors.

At least sixty days, but no more than two years, after submission of the charter to the governing body of the city, the proposed charter must be submitted to a vote of the qualified electors of the city at a regular or special city election, or at any statewide election that is held within that time, or at a special city election held concurrently with any statewide election. If the proposed charter has been submitted to a vote of the qualified electors of the city, the governing body of the city may call a special election to resubmit the proposed charter to a vote of the qualified electors of the city, and the special election must take place at least sixty days after the call for the special election. The governing body may amend the proposed charter prior to its resubmission to the electors.

40-05.1-05. Ratification by majority vote — Supersession of existing charter and state laws in conflict therewith — Filing of copies of new charter.

If a majority of the qualified voters voting on the charter at the election vote in favor of the home rule charter, the charter is ratified and is the organic law of the city, and extends to all its local and city matters. The charter and the ordinances made pursuant to the charter in such matters supersede within the territorial limits and other jurisdiction of the city any law of the state in conflict with the charter and ordinances and must be liberally construed for such purposes. One copy of the charter ratified and approved must be filed with the secretary of state and one with the auditor of the city to remain as a part of its permanent records. Thereupon the courts shall take judicial notice of the new charter.

40-05.1-05.1. Multicity home rule.

1. Two or more cities may draft and submit for adoption a multicity home rule charter to the electors of each city pursuant to this section. The other provisions of this chapter apply to a multicity home rule charter, except as otherwise provided by this section.
2. The process for drafting and submitting a multicity home rule charter may be initiated by:
   1. Separate motions by the governing bodies of the participating cities;
   2. The execution of a joint powers agreement between participating cities; or
   3. A petition filed with each governing body of two or more cities and signed by ten percent or more of the total number of qualified electors of each city voting for governor at the most recent gubernatorial election.
3. Within sixty days after proceedings are initiated for a multicity home rule charter, the boards of governing bodies shall enter into a joint powers agreement specifying the procedure for framing the charter, which may include the establishment of a single cooperative charter commission with membership representing each city. As an alternative, the governing bodies in each affected city may establish a separate charter commission pursuant to section 40-05.1-03 to frame the charter in cooperative study with the charter commission of any other affected city. The charter commissions must submit a single joint report and proposed charter.
4. The charter commission, during its deliberation, may hold public hearings and community forums and use other suitable means to disseminate information, receive suggestions and comments, and encourage public discussion on the subject of the proposed multicity home rule charter, and may report periodically to the affected governing bodies on their progress. In preparing the charter, the charter commission may:
   1. Include any of the available powers enumerated in section 40-05.1-06;
   2. Provide for adjustment of existing bonded indebtedness and other obligations in a manner which will provide for a fair and equitable burden of taxation for debt service;
   3. Provide for the transfer or other disposition of property and other rights, claims, assets, and franchises of the cities;
   4. Provide for the reorganization, abolition, or adjustment of boundaries of any existing boards, commissions, agencies, and special districts of the city governments, including city park districts;
   5. Include provisions for transition in implementing the charter, including elements that consider the reasonable expectations of current officeholders or personnel such as delayed effective dates for implementation at the end of a current term or a future term, upon the occurrence of a vacancy, or on a date certain;
   6. Include provision for the limited application or temporary implementation of the charter, including provisions that permit implementation on an experimental or pilot basis such as the expiration of the charter on a date certain in the future, required reapproval of the charter by the electors at a future date, or a phased-in implementation of various aspects of the charter; and
   7. Include other provisions that the charter commission elects to include and which are consistent with state law.
5. The proposed charter or accurate summary of the charter must be published in the official newspaper of each affected city, at the expense of each city, at least once during two different weeks within the thirty-day period immediately preceding the date of election. However, a city with a population of one thousand or less may, instead of publishing the charter in a newspaper, distribute copies of the charter door-to-door and have them posted and available at prominent locations in the city.
6. If a majority of the qualified electors voting in each city on the charter vote in favor of the multicity home rule charter, it is ratified and becomes the organic law of the cities on the first day of January following the election or other effective date specified in the charter.
7. The amendment or repeal of a multicity home rule charter may proceed pursuant to the amendment and repeal provisions of section 40-05.1-07 on a multicity basis. A majority vote of the qualified electors voting in each city in the election is required to adopt any amendment of a multicity charter. A majority vote of the qualified electors of only one or more participating cities is required to repeal a multicity charter.

40-05.1-06. Powers.

From and after the filing with the secretary of state of a charter framed and approved in reasonable conformity with the provisions of this chapter, such city, and the citizens thereof, shall, if included in the charter and implemented through ordinances, have the following powers set out in this chapter:

1. To acquire, hold, operate, and dispose of property within or without the corporate limits, and, subject to chapter 32-15, exercise the right of eminent domain for such purposes.
2. To control its finances and fiscal affairs; to appropriate money for its purposes, and make payment of its debts and expenses; to contract debts, borrow money, issue bonds, warrants, and other evidences of indebtedness; to establish charges for any city or other services; and to establish debt limitations.
3. To levy and collect property taxes and special assessments for benefits conferred, for its public and proprietary functions, activities, operations, undertakings, and improvements, and establish mill levy limitations. Notwithstanding any authority granted under this chapter, all property must be assessed in a uniform manner as prescribed by the state board of equalization and the state supervisor of assessments and all taxable property must be taxed by the city at the same rate unless otherwise provided by law.
4. To levy and collect an infrastructure fee. The fee must replace a general special assessment on all property for payment of infrastructure maintenance costs through a utility bill issued by a municipality. The money collected under this subsection may not be used for any purpose other than infrastructure maintenance costs. If a home rule city levies an infrastructure fee, the home rule city also may levy and collect green field special assessments. As used in this subsection:
   1. “General special assessments” means special assessments levied for the purpose of maintaining existing roads and infrastructure and special assessments levied for the construction or repair of arterial roads and infrastructure that provide a benefit to the entire community.
   2. “Green field special assessments” means special assessments levied for infrastructure costs associated with the development of agricultural or undeveloped property.
5. To levy and collect excises, fees, charges, franchise and license taxes, sales and use taxes, farm machinery gross receipts taxes, alcoholic beverage gross receipts taxes, a city lodging tax, and a city restaurant tax. For purposes of this section, any taxes imposed under this section on farm machinery, farm irrigation equipment, and farm machinery repair parts used exclusively for agricultural purposes, or on alcoholic beverages, which were in effect on December 31, 2005, become gross receipts taxes after December 31, 2005. After December 31, 2005, any portion of a charter or any portion of an ordinance passed pursuant to a charter which does not conform to the requirements of this section is invalid to the extent it does not conform. The invalidity of a portion of a charter or ordinance because it does not conform with this subsection does not affect the validity of any other portion of the charter or ordinance of the eligibility for a refund under section 57-01-02.1. Ordinances enacted after August 1, 2017, may not allow for the collection and levy of any tax not otherwise specified under this section. Sales and use taxes and gross receipts taxes levied under this section:
   1. Must conform in all respects with regard to the taxable or exempt status of items under chapters 57-39.2, 57-39.5, 57-39.6, and 57-40.2 and may not be imposed at multiple rates with the exception of sales of manufactured homes or mobile homes.
   2. May not be newly imposed or changed except to be effective on the first day of a calendar quarterly period after a minimum of ninety days’ notice to the tax commissioner or, for purchases from printed catalogs, on the first day of a calendar quarter after a minimum of one hundred twenty days’ notice to the seller.
   3. May not be limited to apply to less than the full value of the transaction or item as determined for state sales and use tax purposes, except for farm machinery gross receipts tax.
   4. Must be subject to collection by the tax commissioner under an agreement under section 57-01-02.1, with the exception of a city lodging or city restaurant tax, and must be administered by the tax commissioner in accordance with the relevant provisions of chapter 57-39.2, including reporting and paying requirements, correction of errors, payment of refunds, and application of penalty and interest.
6. To fix the fees, number, terms, conditions, duration, and manner of issuing and revoking licenses in the exercise of its governmental police powers.
7. To provide for city officers, agencies, and employees, their selection, terms, powers, duties, qualifications, and compensation. To provide for change, selection, or creation of its form and structure of government, including its governing body, executive officer, and city officers.
8. To provide for city courts, their jurisdiction and powers over ordinance violations, duties, administration, and the selection, qualifications, and compensation of their officers; however, the right of appeal from judgment of such courts shall not be in any way affected.
9. To provide for all matters pertaining to city elections, except as to qualifications of electors.
10. To provide for the adoption, amendment, and repeal of ordinances, resolutions, and regulations to carry out its governmental and proprietary powers and to provide for public health, safety, morals, and welfare, and penalties for a violation thereof.
11. To lay out or vacate streets, alleys, and public grounds, and to provide for the use, operation, and regulation thereof.
12. To define offenses against private persons and property and the public health, safety, morals, and welfare, and provide penalties for violations thereof.
13. To engage in any utility, business, or enterprise permitted by the constitution or not prohibited by statute or to grant and regulate franchises therefor to a private person, firm, corporation, or limited liability company.
14. To provide for zoning, planning, and subdivision of public or private property within the city limits. To provide for such zoning, planning, and subdivision of public or private property outside the city limits as may be permitted by state law.
15. To exercise in the conduct of its affairs all powers usually exercised by a corporation.
16. To fix the boundary limits of said city and the annexation and deannexation of territory adjacent to said city except that such power shall be subject to, and shall conform with the state law made and provided.
17. To contract with and receive grants from any other governmental entity or agency, with respect to any local, state, or federal program, project, or works.

It is the intention of this chapter to grant and confirm to the people of all cities coming within its provisions the full right of self-government in both local and city matters within the powers enumerated herein. The statutes of the state of North Dakota, so far as applicable, shall continue to apply to home rule cities, except insofar as superseded by the charters of such cities or by ordinance passed pursuant to such charters.

40-05.1-06.1. Sales tax revenue transfer to school districts prohibited.

Notwithstanding the provisions of chapters 54-40 and 54-40.3 or any other provision of law, revenue from sales, use, or other excise taxes levied under this chapter may not be transferred to or for the primary benefit of a school district except for payment of bonded indebtedness incurred before April 19, 2007, or for capital construction and associated costs approved by the electors of the city before April 19, 2007.

40-05.1-07. Amendment or repeal.

The home rule charter adopted by any city may be amended or repealed by proposals submitted to and ratified by the qualified electors of the city in the same general manner provided in section 40-05.1-02 and section 40-05.1-04 for the adoption of the charter. Amendments may be proposed by the governing body of the city or by petition of the number of electors provided in section 40-05.1-02 and submitted to the voters at the same election. The voters may at their option accept or reject any or all of the amendments by a majority vote of qualified electors voting on the question at the election. A proposal to repeal a home rule charter that has been adopted must likewise be submitted to the electors of the city as set forth in this section. One copy of a ratified amendment or a repeal of a home rule charter must be filed with the secretary of state and one with the city auditor. Upon proper filing of the amendment or repeal, the courts shall take judicial notice of the amendment or repeal.

40-05.1-08. Commission — Terms of office — Vacancies.

The terms of office of the members of the charter commission shall be four years. Any vacancy on said commission shall be filled by the governing body of the city.

40-05.1-09. Restriction on proposals to amend or repeal. [Repealed]

Repealed by S.L. 1993, ch. 401, § 53.

40-05.1-10. Manner of calling and holding elections.

The elections provided for in this chapter shall be called and held in the same manner as is provided for the calling and holding of city elections except that all qualified voters of the city shall be eligible to vote at such elections. The form of ballot shall be prescribed by the charter commission so that the voter may signify whether the voter is for or against the proposed home rule charter or the amendment or repeal, as the case may be.

40-05.1-11. Effect of amendment or repeal on salary or term of office.

Repeal of a home rule charter shall cause the city affected by such repeal to revert to the form of government of such city immediately preceding adoption of the home rule charter and when positions to which officials were elected under the home rule charter are substantially the same as positions under the form of government to which the city reverts upon repeal, such elected officials shall continue to exercise the authority of such position for the salary prescribed by the home rule charter until expiration of their terms of office as prescribed by the home rule charter. No amendment of a home rule charter shall shorten the term for which any official was elected or reduce the salary of the official’s office for that term.

40-05.1-12. Former powers preserved.

All powers heretofore granted any city by general law are hereby preserved to each home rule city, respectively, and the powers so conferred upon said cities by general law, are hereby granted to home rule cities.

40-05.1-13. Vested property — Claims for relief — Actions saved.

The adoption of any charter hereunder or any amendment thereof shall never be construed to destroy any property, action, claims for relief, claims, and demands of any nature or kind whatever vested in the city under and by virtue of any charter theretofore existing or otherwise accruing to the city, but all such claims for relief, claims, or demands vest in and inure to the city and to any persons asserting any such claims against the city as fully and completely as though the said charter or amendment had not been adopted hereunder. The adoption of any charter or amendment hereunder shall never be construed to affect the right of the city to collect by special assessment any special assessment theretofore levied under any law or charter for the purpose of public improvements, nor affect any right of any contract or obligation existing between the city and any person, firm, corporation, or limited liability company for the making of any such improvements and for the purpose of collecting any such special assessments and carrying out of any such contract.

40-06-01. Jurisdiction of governing body.

Except as otherwise provided by law, a governing body of a municipality has jurisdiction:

1. Over any commons or public grounds belonging to such municipality and with the consent of the majority of the owners thereof shall have power to regulate the banks, shores, and wharves of that portion of any navigable stream within the corporate limits; and
2. In and over all places within one-half mile [804.67 meters] of the municipal limits for the purpose of enforcing health ordinances and regulations, and police regulations and ordinances adopted to promote the peace, order, safety, and general welfare of the municipality.

40-06-02. Meetings to be public — Journal of proceedings to be kept.

All meetings of the governing body shall be open to the public, and a journal of its proceedings shall be kept.

40-06-03. Quorum.

A majority of the members of the governing body of a municipality shall constitute a quorum to do business but a smaller number may adjourn from time to time. The governing body may compel the attendance of absentees under such penalties as may be prescribed by ordinance, and may employ the police of the municipality for that purpose.

40-06-04. Reconsidering or rescinding vote at special meeting.

No vote of the governing body of a municipality shall be reconsidered or rescinded at a special meeting unless there is present at such special meeting as large a number of members as were present when such vote was taken.

40-06-05. Rules of procedure — Expelling members.

The governing body of a municipality shall determine its rules of procedure, punish its members or persons present for disorderly conduct by fine, and with the concurrence of two-thirds of its members may expel a member from a session but may not expel the member a second time for the same offense. The governing body may fine or expel any member for neglect of duty or for unnecessary absence from its sessions.

40-06-06. Conviction of bribery — Office deemed vacant.

Any member of a city governing body convicted of bribery shall be deemed to have vacated that member’s office.

40-06-07. Exercise of power through ordinance when method of procedure not set out.

The governing body of a municipality may provide by ordinance the details necessary for the full exercise of any power conferred upon it by any law of this state when the manner of exercising such power is not specified otherwise.

40-06-08. Action on committee reports deferred upon request.

Upon the request of any two members present, any report of a committee of the governing body shall be deferred for final action to the next regular meeting after the report is made.

40-06-09. Change in number of members of city governing body — Election.

1. The process for increasing or decreasing the number of members of a city governing body pursuant to sections 40-04.1-01, 40-08-03, and 40-09-01 may be initiated:
   1. By resolution approved by a majority vote of the governing body of the city; or
   2. By a petition signed by ten percent or more of the total number of qualified electors of the city voting for governor at the most recent gubernatorial election and submitted to the governing body of the city.
2. The governing body of the city shall submit the question of increasing or decreasing the number of members of the city governing body to the electors of the city at any regular city election or primary or general election as specified in the resolution or petition submitted pursuant to subsection 1. The question requires an affirmative vote of those voting on the question for passage.
3. If an increase in the number of members of the city governing body is approved by the electors, the additional members must be elected at the next regular city election or as specified in the resolution or petition pursuant to subsection 1. The additional members shall hold office for terms of four years and until a successor is elected and qualified, unless different terms are specified in the resolution or petition pursuant to subsection 1. The terms of office must be arranged on a staggered basis as otherwise provided by law.
4. If a decrease in the number of members of the city governing body is approved by the electors, the offices identified for abolition shall continue until the time when the terms of those offices expire. A different procedure for abolition of the offices may be specified in the resolution or petition pursuant to subsection 1.
5. All statutory provisions relating specifically to a ten-member council or eleven-member council, whether repealed or amended by chapter 401 of the 1993 Session Laws House Bill No. 1347, including sections 40-08-03.1, 40-08-03.2, 40-08-04, 40-08-04.1, 40-08-06.1, and 40-12-01, continue to apply to those councils existing on August 1, 1993, until such time as an increase or decrease occurs in the number of members of those councils pursuant to this section.

40-08-01. City council — Who constitutes.

The governing body of a city operating under the council form of government is the city council, which is composed of the mayor and council members.

40-08-02. Governing body is judge of election and qualifications of members.

The city council shall be judge of the election and qualifications of its own members.

40-08-03. Number of council members.

The number of council members is not less than three. The number of council members may be increased or decreased pursuant to section 40-06-09.

40-08-03.1. Change to ten council members and mayor — Petition required. [Repealed]

Repealed by S.L. 1993, ch. 401, § 53.

40-08-03.2. City auditor to pass on sufficiency of petition requesting change to ten council members and mayor. [Repealed]

Repealed by S.L. 1993, ch. 401, § 53.

40-08-04. Election of council members.

In cities containing six hundred inhabitants or less, the council members must be elected at large. Except as provided in section 40-08-04.2, in all other cities operating under the council form of government, the council members must be elected by wards.

40-08-04.1. Procedure when petition to change to ten council members and mayor is filed — Special election — Ballot. [Repealed]

Repealed by S.L. 1993, ch. 401, § 53.

40-08-04.2. Election at large of council members from wards — Option.

Notwithstanding any other provision of law, the governing body of a city having a population not exceeding five thousand and which is operating under the council form of government may provide by ordinance for the election of all council members at large. If the council members are elected at large pursuant to this section, the governing body of the city may establish wards in accordance with section 40-08-04 and require that the council members elected from each ward must be residents of the ward.

40-08-05. Qualifications of council members.

An individual is not eligible to the office of council member if the individual is not a qualified elector of and resident within the ward for which the individual was elected, except that in cities where council members are elected at large and not required to be a resident of the ward for which the individual is elected pursuant to section 40-08-04.2, the individual must be a qualified elector of and a resident within the city.

40-08-06. Term of office of council members — Staggered terms provided for in cities where other than ten council members elected.

Council members shall hold office for four years and until their successors are elected and qualified. Terms of council members must be arranged so that one-half of the council members in any city, as nearly as practicable, are elected in any one election. When a city first adopts the council form of government or changes the number of council members, or when a city that has adopted the commission system of government returns to the city council form of government as provided by section 40-04-08, the alternation of the terms of the council members must be perfected as follows: of the council members elected in each ward, the one receiving the greater number of votes shall serve until the fourth Tuesday in June following the second succeeding biennial election and the one receiving the lesser number of votes shall serve until the fourth Tuesday in June following the biennial election succeeding the council member’s election; if the city is not divided into wards, the one-half of the council members elected in the entire city receiving the greater number of votes shall serve until the fourth Tuesday in June following the second succeeding biennial election and the one-half of the council members elected in the entire city receiving the lesser number of votes shall serve until the fourth Tuesday in June following the biennial election succeeding their election. Whenever, for any reason, vacancies exist on the council which require an unexpired term to be filled by election, the unexpired term must be designated on the ballot separate from any other regular term or terms that may also appear on the ballot. Candidates seeking nomination to an unexpired term are required to indicate whether or not they are seeking a regular term of office or an unexpired term of office on their nominating petitions as set forth in section 40-21-07.

40-08-06.1. Terms of office under ten council members — Staggered terms provided for — Nominating petition requirements. [Repealed]

Repealed by S.L. 1993, ch. 401, § 53.

40-08-07. Compensation of council members.

Each council member is entitled to receive compensation for services as established by ordinance.

40-08-08. Vacancies on council — How filled.

If a vacancy occurs in a city council office by death, resignation, or otherwise, the city council may call a special city election to fill the vacancy for the unexpired term, or may, after fifteen days of the date of the vacancy appoint a person from the ward in which the council member previously holding was elected or appointed to fill the vacancy until the next city election, at which election the unexpired term must be filled. Upon petition of five percent of the qualified electors of the ward, as determined by the total number of votes cast in that ward in the last city general election, the council shall call a special election to fill a vacancy occurring more than six months before the next city election, if the petition has been submitted within fifteen days and before four p.m. of the fifteenth day of the date of the vacancy or of the vacancy being filled by appointment. If the petition is mailed, it must be in the possession of the council or its representative before four p.m. on the fifteenth day after the vacancy occurs or after the vacancy was filled by appointment.

40-08-09. Restrictions on members of council.

1. Except as provided in this section, no member of the city council shall:
   1. Be eligible to any other office the salary of which is payable out of the city treasury;
   2. Hold any other office under the city government; or
   3. Hold a position of remuneration in the employment of the city.
2. A member of the city council may serve as an ambulance crew member employed by the city or under a contract with the city and be remunerated for those services or as a volunteer firefighter or ambulance crew member for the city and be compensated for attending training or responding to emergency calls or may be reimbursed for expenses incurred in attending training or in responding to emergency calls.
3. A member of the city council in a city having a population of five hundred or fewer may hold a position of remuneration in the employment of the city if no other qualified individual is available to hold the position of remuneration at an equal cost to the city. The decision to employ the member of the city council must receive the unanimous approval of the other members of the council, and the approval must be documented in the official minutes of the council. This subsection does not apply to appointed officer positions under section 40-14-04.

40-08-10. Meetings of council — Regular, special, and for organization.

The city council shall hold its regular meetings at least once a month on a date certain established by resolution or ordinance of the council, and may prescribe by ordinance the manner in which special meetings may be called as well as the establishment of any additional regular meetings desired. If a regular meeting falls upon a holiday, the meeting must be held upon the next business day with the same effect as if conducted upon the day appointed. All regular and special meetings must be held at a time and place designated by the city council. The first meeting for the organization of the city council must be held on the fourth Tuesday in June of each even-numbered year.

40-08-11. When president and vice president of council elected.

At the organization meeting in each even-numbered year, the members of the city council shall proceed to elect from their number a president and a vice president who shall hold their respective offices until their successors are elected at the organization meeting following the next biennial election.

40-08-12. Publication of proceedings. [Repealed]

Repealed by I.M. approved November 8, 1994, S.L. 1995, ch. 637, § 2.

40-08-13. Presiding officer of council in absence or disability of mayor — President of council.

The president of the city council shall be the presiding officer of the council in the absence or temporary disability of the mayor. In the absence or disability of the mayor and president of the city council, the vice president shall be the presiding officer.

40-08-14. Mayor — Qualifications — Term.

The chief executive officer of the city is the mayor. The mayor shall be a qualified elector within the city and shall hold office for four years and until a successor is elected and qualified.

40-08-15. Compensation of mayor.

The mayor shall receive such compensation as the city council may direct by ordinance.

40-08-16. Vacancy in office of mayor — Filled by election or by council — President of council to be acting mayor.

If a vacancy occurs in the office of mayor, the city council may call a special city election to fill such vacancy for the unexpired term or may, after fifteen days from the date of such vacancy, elect one of its members to act as mayor. The member so elected shall possess all the rights and powers of the mayor until the next election and until a mayor is elected and qualified. Upon petition of five percent of the qualified electors, as determined by the total number of votes cast in the city in the last city general election, the council shall call a special election to fill a vacancy occurring more than six months prior to the next city election, provided such petition is submitted within fifteen days of the date of such vacancy. During the interim between the date when a vacancy occurs in the office of mayor and election and qualification of a successor, the president of the city council shall be the acting mayor.

40-08-17. Absence or disability of mayor — Acting mayor.

During the absence of the mayor from the city or during the mayor’s temporary disability, the president of the city council shall be the acting mayor and shall possess all the powers of the mayor. In the absence or disability of the mayor and president of the city council, the vice president of the city council shall be the acting mayor.

40-08-18. Mayor to preside at council meetings — Voting power of mayor.

The mayor shall preside at all meetings of the city council, but shall not vote except in case of a tie, when the mayor shall cast the deciding vote.

40-08-19. Mayor may remove appointive officers — Reasons for removal to be given.

The mayor may remove any officer appointed by the mayor whenever the mayor is of the opinion that the interests of the city demand such removal, but the mayor shall report the reasons for such removal to the council at its next regular meeting.

40-08-20. Mayor may suppress disorder and keep peace.

The mayor may exercise within the city limits the powers conferred upon a sheriff to suppress disorder and keep the peace.

40-08-21. Release of prisoners by mayor — Report to council. [Repealed]

Repealed by S.L. 1987, ch. 375, § 16.

40-08-22. Mayor to perform duties prescribed by law — Enforce laws and ordinances.

The mayor shall perform all duties prescribed by law or by the city ordinances and shall see that the laws and ordinances are faithfully executed.

40-08-23. Inspection of books, records, and papers of city by mayor.

The mayor, at any time, may examine and inspect the books, records, and papers of any agent, employee, or officer of the city.

40-08-24. Ordinance or resolution signed or vetoed by mayor.

The mayor shall sign or veto each ordinance or resolution passed by the council. Any action vetoed by the mayor may be overridden by the city council as provided under section 40-11-05.

40-08-25. Messages to council.

The mayor annually and from time to time shall give the council information relative to the affairs of the city and shall recommend for its consideration such measures as the mayor may deem expedient.

40-08-26. Mayor may call on residents to aid in enforcing ordinances.

When necessary, the mayor may call on each resident of the city over the age of eighteen years to aid in enforcing the laws and ordinances of the city.

40-08-27. Police chief and police officers appointed by mayor.

The mayor may appoint any number of police officers the mayor and the city council deem necessary to preserve the peace of the city and the mayor shall appoint one of the number as chief of police. Such appointment shall be subject to the approval of the council.

40-08-28. Mayor may administer oaths.

The mayor of each city may administer oaths and affirmations.

40-09-01. Board of city commissioners — Composition.

The governing body of a city operating under the commission system of government is the board of city commissioners which is composed of the president of the board of city commissioners and not less than three city commissioners. The number of city commissioners may be increased or decreased pursuant to section 40-06-09.

40-09-02. Governing body is judge of election and qualifications of members.

The board of city commissioners shall be the judge of the election and qualifications of its own members.

40-09-03. Regulations governing election of commissioners.

The members of the board of city commissioners must be elected at large and not by wards. Each voter may vote for one of the candidates for the office of president of the board of city commissioners and for as many candidates for the office of city commissioner as there are commissioners to be elected. Candidates for the city commission may run for either the office of city commissioner or the office of president of the board of city commissioners but not both in the same election. A candidate may run for only one office in a city at any given election.

40-09-04. Commissioners — Terms — Resignations.

Each commissioner and the president of the board of city commissioners shall hold office for four years commencing on the fourth Tuesday in June of the year in which the officer was elected and until a successor has been duly elected and qualified. The commission shall establish by ordinance a procedure whereby one-half of all commissioners, as nearly as practicable, are elected biennially. The president or any other member of the board may resign from office by filing a written resignation with the city auditor, who shall submit the resignation to the board of city commissioners at its next regular meeting or at a special meeting called for consideration of the resignation. The resignation is effective upon its acceptance by the board.

40-09-05. President and board of commissioners succeed to powers and duties of mayor and council.

If the city previously was organized under the council form of government, the first president and the other members of the first board of city commissioners elected after a city has incorporated under the city commission system of government are the successors of the mayor and council members of the city. Upon the qualification of the president and other members of the board, all the powers, rights, and duties of the mayor and council of the city cease. Whenever the city previously, under the decree or judgment of any court or under any law, ordinance, or resolution, has been entitled to representation through the mayor of the city and one or more of the council members of the city, on the board of directors of any incorporated company in which the city may own stock or be interested, it must be represented on the board of directors by the president of the board of city commissioners and by two other members of the board to be selected by the board.

40-09-06. Style of board — Oath and salary of commissioners.

The commissioners and the president of the board constitute the board of city commissioners and shall take an oath faithfully to perform the duties of their respective offices. The monthly salary of each city commissioner must be fixed by ordinance. The president of a commission may receive a salary of up to fifty percent more than the level set for each commissioner upon resolution by the board of city commissioners.

40-09-07. Bond and oath of commissioner. [Repealed]

Repealed by S.L. 2011, ch. 294, § 5.

Effective Date.

The repeal of this section by section 5 of chapter 294, S.L. 2011 became effective April 4, 2011, pursuant to an emergency clause in section 6 of chapter 294, S.L. 2011.

40-09-08. President of board as executive officer — Duties — No veto power.

The president of the board of city commissioners shall be the executive officer of the city and shall see that all the laws of the city are enforced. The president shall have the right to vote as a member of the board but shall have no veto power.

40-09-09. Vice president and acting president of board — Powers to act.

At the first meeting of the board after each biennial election, one of its own members shall be elected vice president. The vice president shall perform all the duties of the office of president in the absence or disability of the president to act. In the absence or disability to act of both the president and the vice president, the board shall elect one of its members as acting president, who shall have all the powers and perform all the duties of the president during the absence or disability.

40-09-10. Filling vacancies in board.

If a vacancy occurs in the office of a city commissioner or president of the board of city commissioners, the board may call a special city election to fill such vacancy for the unexpired term, or may, after fifteen days from the date of such vacancy appoint a person to fill such vacancy until the next city election, at which election the unexpired term shall be filled. Upon petition of five percent of the qualified electors, as determined by the total number of votes cast in the city in the last city general election, the commission shall call a special city election to fill a vacancy occurring more than six months prior to the next city election, provided such petition has been submitted within fifteen days of the date of such vacancy.

40-09-11. Meetings of board — Regular and special — Action on departmental matters.

The board of city commissioners shall meet in regular meeting at least once a month and at such additional times as the board, by ordinance, may establish. All regular meetings shall be held at a time and place to be designated by the board. No action of the board shall be effective unless upon a vote of a majority of a quorum of the members of such board. No final action shall be taken in any matter concerning the special department of any absent commissioner unless such business has been made a special order of the day or such action is taken at a regular meeting of the board. Special meetings may be called at any time by the president or any two members of the board to consider matters mentioned in the call of such meeting. Written notice of any special meeting shall be given to each member of the board.

40-09-12. Departments of administration of city divided among commissioners — Duties.

The board of city commissioners, by a majority vote of all the members thereof, shall designate from among its members:

1. A police and fire commissioner who shall have under that commissioner’s special charge the enforcement of all police regulations of the city and the general supervision of the fire department of the city.
2. A commissioner of streets and improvements who shall have under that commissioner’s special charge the supervision of the streets and alleys of the city and who shall be charged with responsibility for the lighting, cleaning, and sanitary condition of the streets and alleys and with the enforcement of all rules and regulations relating thereto, and with the preservation of the health of the inhabitants of the city. That commissioner shall have under that commissioner’s special charge the supervision of all public improvements and shall see that all contracts for such improvements and the conditions of all grants of franchises or privileges are complied with faithfully and performed.
3. A waterworks and sewerage commissioner who shall have under that commissioner’s special charge the waterworks and sewerage department of the city and who shall see to the enforcement of all regulations with respect to those departments and all revenue pertaining to those departments.
4. A commissioner of finance and revenue who shall have under that commissioner’s special charge the enforcement of all laws for the assessment and collection of taxes of every kind and the collection of all revenues belonging to the city, from whatever source the same may be derived, and who shall examine into and keep informed as to the finances of the city.

The duties assigned to the various members of the board by this section may be otherwise distributed by a majority vote of the board’s members.

40-09-13. Accounts — Audited by respective commissioners — Approved by board.

The commissioner who is the head of each department shall audit all accounts against it, but before payment the accounts shall be acted upon and approved by at least three members of the board of city commissioners. Approval by at least three members of the board of city commissioners shall be recorded in the record of the board and this shall be sufficient to indicate approval without requiring the approving members to sign or initial the voucher or order for payment of the account.

40-09-14. Rules and regulations governing departments and agencies of city made by board.

The board of city commissioners shall have the sole authority to pass and adopt rules and regulations concerning the organization, management, and operation of all the departments of the city and the other agencies created by it for the administration of the city’s affairs.

40-09-15. Special police — President of board may call — Powers. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

40-09-16. Board may summon and compel attendance of witnesses and books — Punish for contempt — Process.

Whenever it is necessary for the more effective discharge of its duties, the board of city commissioners may summon and compel the attendance of witnesses and the production of books and papers before it. The board may punish for contempt of the board with the same fines and penalties as a district judge may inflict for contempt of the district court. All process necessary to enforce the powers conferred by this section must be signed by the president of the board, attested by the city auditor, and served by any member of the police force of the city.

40-09-17. Restrictions on members of board.

1. Except as provided in this section, a member of the board of city commissioners may not:
   1. Be eligible to any other office the salary of which is payable out of the city treasury;
   2. Hold any other office under the city government; and
   3. Hold a position of remuneration in the employment of the city.
2. A member of a board of city commissioners may serve as an ambulance crew member employed by the city or under a contract with the city and be remunerated for those services or as a volunteer firefighter or ambulance crew member for the city and be compensated for attending training or responding to emergency calls or may be reimbursed for expenses incurred in attending training or in responding to emergency calls.
3. A member of the board of city commissioners in a city having a population of five hundred or fewer may hold a position of remuneration in the employment of the city if no other qualified individual is available to hold the position of remuneration at an equal cost to the city. The decision to employ the member of the city commission must receive the unanimous approval of the other members of the commission, and the approval must be documented in the official minutes of the commission. This subsection does not apply to appointed officer positions under section 40-15-05.

40-10-01. Petition for city manager — Contents — Notice of election — Election.

Twenty-five percent or more of the qualified electors of a city, as shown by the number of votes cast for the executive officer of the city at the preceding city election, may petition for the city manager plan of government. Within thirty days after such petition is filed with the city auditor, the governing body of the city shall provide for the submission of such proposal to the qualified electors of the city at an election to be held within ninety days after such filing. The city auditor shall give thirty days’ notice of the date of the election and of the purposes thereof. The notice of election shall state briefly the powers of the city manager if the plan should be adopted. The election shall be held, the votes canvassed, and the results declared in the same manner as in the case of city elections.

40-10-02. Vote required to adopt plan — Effective date.

If a majority of the votes cast on the question at the election favors the adoption of the city manager plan, the governing body shall declare the plan adopted and shall fix the date when the plan becomes effective. The date must be after the first regular meeting of the governing body in the month of July following the election.

40-10-03. City manager — How selected — Qualifications — Compensation — Term.

The city manager shall be the chief administrative officer of the city and shall be chosen by the governing body solely on the basis of the person’s qualifications. The choice shall not be limited to the inhabitants of the city or state and a majority vote of the members of the governing body shall be necessary to make the choice. The city manager shall receive a compensation of not less than one thousand dollars a year and shall be chosen for an indefinite term.

40-10-04. Removal of city manager — Summary proceedings — Charges brought — Suspension — Absence or disability of city manager.

The city manager may be removed from office summarily by the governing body at any time within six months after appointment. After that period, the city manager may be removed only pursuant to written charges made and filed with the city auditor by the executive officer or by some member of the governing body. Upon the filing of the charges if the city manager desires a hearing thereon, the city manager shall file a written demand for such hearing within three days after the notice of the filing of such charges has been served upon the city manager. In the absence of such demand, the city manager shall be deemed to have waived a hearing, but shall not be removed finally until a hearing is had or waived. Pending such hearing or the waiver thereof, the city manager may be suspended by the governing body. During the absence or disability of the city manager, the governing body shall designate some properly qualified person to perform the duties of the city manager’s office. The decision of the governing body on the selection or removal of a city manager or of a person to perform the duties of such office shall be final.

40-10-05. Powers of governing body.

The governing body shall have in addition to other powers granted by law the following powers:

1. It may inquire into the conduct of any office, department, or agency of the city.
2. It may by ordinance establish, change, and abolish offices, departments, and agencies, other than those required by law, and may add to or take away from the duties of the various offices, departments, and agencies.

40-10-06. Duties of city manager.

The city manager shall:

1. Be responsible to the governing body of the municipality for the proper administration of all of the affairs of the city.
2. Prepare and submit to the governing body an annual preliminary budget as provided for under chapter 40-40, and shall be responsible for the administration of the final budget, subject to the control of the governing body as to changes in the same.
3. Be responsible for law enforcement.
4. Appoint and remove, subject to civil service regulations if in effect, all heads of administrative departments and employees of the city however, the city manager shall neither appoint nor remove the head of any department without first consulting with the governing body.
5. Keep the governing body advised of the financial condition of the city and make such recommendations as may seem desirable.
6. Be responsible for the purchase of all supplies, materials, and equipment for the operations of the city provided, that for any purchase the cost of which exceeds one thousand dollars, the governing body shall establish the procedure for purchasing the same.

40-10-07. Conflict of powers and duties of city manager and other officers — Who to govern.

If the powers granted to a city manager by this chapter shall conflict with or shall be opposed to the powers or duties imposed upon or granted by law to the executive officer or governing body, the powers or duties imposed or granted by law to the executive officer or the governing body shall be deemed to be suspended for and during the period in which the city manager plan is in force in the city and during the employment of a city manager thereunder.

40-10-08. Election to determine question of retention of city manager plan — Procedure thereafter.

At any time after the city manager plan has been in force in any city for a period of five years or more, the governing body of the city may submit at any regular election the question of whether or not such plan shall be retained. If a petition signed by forty percent or more of the qualified electors of the city, as shown by the votes cast for the executive officer at the preceding city election, requesting the submission of such question is filed with the city auditor, the governing body shall submit such proposal to the qualified electors of the city at an election to be held within ninety days after the filing of such petition. The signatures to such petition need not be appended to a single paper, but each single paper so used shall clearly state the purpose of the petition at the top of the paper, and each signature shall have been placed thereon not more than ninety days prior to the date on which the petition is filed in the office of the city auditor. Upon each paper one of the qualified electors signing such petition shall, under oath before an officer competent to administer oaths, swear that that person witnessed the signing of each signature appearing on such paper and that each signature appearing upon such paper is the genuine signature of the person whose name it purports to be. Each petition, in addition to the names of the signers, shall contain the name of the street and the number of the house in which each petitioner resides, the length of the petitioner’s residence in the state of North Dakota and in the city, and the date on which the petitioner signed the petition. Any petitioner shall be permitted to withdraw the petitioner’s name from a petition at any time prior to action by the governing body calling the election as provided herein. Such question shall not be submitted more than once in every five years. If a majority of the votes cast on the question at the election shall be against retaining the city manager plan, the city shall revert to the plan in force previous to the adoption of the city manager plan, and the provisions of this chapter shall not be applicable to such city except after another compliance with its terms. The governing body shall fix the date, not less than three months nor more than six months after an election at which the majority vote on the question is against the retention of the city manager plan, when such plan shall cease to be operative in the municipality.

40-11-01. Enacting clause for ordinances.

The enacting clause of every ordinance adopted by a municipal corporation shall be: “Be it ordained by the _____________________________________________________________________ (governing body) of the city of _____________________________________________________________________ .” Such caption, however, may be omitted when the ordinances are published in book form or are revised and digested.

40-11-02. Procedure in passing ordinances.

All ordinances shall be read twice and the second reading and final passage shall not be had in less than one week after the first reading. After the first reading and before final passage, an ordinance may be amended. Except as otherwise specifically provided, a majority of all of the members of the governing body must concur in the passage of an ordinance and in the creation of any liability against the city and in expending or appropriating money.

40-11-03. Yea and nay vote on passage — When required.

The yeas and nays shall be taken and entered on the journal of the governing body’s proceedings upon the passage of all ordinances and upon all propositions creating any liability against the city or providing for the expenditure or appropriation of money, and in all other cases at the request of any member.

40-11-04. Ordinance required for the transfer of property.

Every municipality shall enact an ordinance providing for the conveyance, sale, lease, or disposal of personal and real property of the municipality. When the property to be disposed of is estimated by the governing body of the municipality to be of a value of less than two thousand five hundred dollars, the property may be sold at private sale upon the proper resolution of the governing body. In all other cases, the property may be sold only at public sale or as provided under section 40-11-04.2. This section and sections 40-11-04.1 and 40-11-04.2 do not apply to a lease by a municipality to the state, or any agency or institution of the state, of any waterworks, mains, and water distribution system and any equipment or appliances connected therewith and any real property related thereto pursuant to subsection 5 of section 40-33-01 or of any sewage system and all related property for the collection, treatment, purification, and disposal in a sanitary manner of sewage pursuant to section 40-34-01.2.

40-11-04.1. Real property transfer requirements.

Upon resolution by the governing body of a city authorizing the public sale of real property, a notice containing a description of the property to be sold and designating the place where and the day and hour when the sale will be held shall be published in the city’s official newspaper as provided in section 40-01-09 once each week for two consecutive weeks with the last publication being at least ten days in advance of the date set for the sale. The notice shall specify whether the bids are to be received at auction or as sealed bids as determined by the governing body of the city. The property advertised shall be sold to the highest bidder if that person’s bid is deemed sufficient by a majority of the members of the governing body.

40-11-04.2. Transfer of real property by nonexclusive listing agreements.

As an alternative to the procedure established under section 40-11-04.1, the governing body of a city may by resolution describe the real property of the city which is to be sold; provide a maximum rate of fee, compensation, or commission; and provide that the city reserves the right to reject any and all offers determined to be insufficient. After adoption of the resolution, the governing body of a city may engage licensed real estate brokers to attempt to sell the described property by way of nonexclusive listing agreements.

40-11-05. Ordinances and resolutions adopted in council cities — Mayor’s veto power — Reconsideration after veto.

An ordinance or resolution adopted by the city council of a city operating under the council form of government is not enacted until the ordinance or resolution is approved by the mayor or passed over the mayor’s veto. An ordinance or resolution passed by the governing body of a city operating under the council form of government must be deposited in the office of the city auditor for the approval of the mayor. If the mayor approves the ordinance or resolution, the mayor shall sign the ordinance or resolution. An ordinance or resolution not approved by the mayor must be returned by the mayor with the mayor’s objections in writing to the next regular or special meeting of the council occurring not less than five days after the passage of the ordinance or resolution. The veto may extend to an entire ordinance or resolution or to any one or more items or appropriations contained in any ordinance or resolution making an appropriation. If a veto extends to only a part of an ordinance or resolution, the residue takes effect. If the mayor fails to return any ordinance or resolution with the mayor’s objections within the time specified in this section, the mayor is deemed to have approved the ordinance or resolution. Any veto of an ordinance or resolution may be overridden by the city council, if two-thirds of its members pass a motion to override the veto. Upon such action, the ordinance or resolution is effective notwithstanding the veto. The vote to pass an ordinance or resolution over the mayor’s veto must be taken by yeas and nays and entered in the journal.

40-11-06. Publication of ordinances.

The title and penalty clause of every ordinance imposing any penalty, fine, imprisonment, or forfeiture for a violation of its provisions, after the final adoption of the ordinance, shall be published in one issue of the official newspaper of the city.

40-11-07. Effective date of ordinances.

Ordinances finally approved by the governing body of a municipality and which require publication shall take effect and be in force from and after the publication thereof unless otherwise expressly provided in the ordinance. Ordinances which do not require publication shall take effect and be in force from and after the final approval thereof unless otherwise expressly provided therein.

40-11-08. Ordinance book required — Ordinance book and certified copies of ordinances as evidence.

Each municipality shall keep an ordinance book. The city auditor shall record in such book all ordinances finally passed and approved, and when any ordinance has been published, the city auditor shall record therein the affidavit of publication or of posting. The ordinance book, or copies of ordinances as recorded therein, certified by the city auditor, shall be received as evidence without further proof. If the ordinances of a municipality have been printed in book or pamphlet form by authority of the governing body of the municipality, such book or pamphlet shall be received as evidence of the existence of the ordinances therein contained.

40-11-09. Enactment and revision of ordinances.

The executive officer of a municipality may appoint, by and with the advice and consent of the governing body of the municipality, one or more competent persons to prepare and submit to the governing body, for its adoption or rejection, an ordinance for the revision or amendment of existing ordinances or for the enactment of new and additional ordinances for such municipality. The attorney for the municipality, if it has an attorney, shall be appointed as one of the persons to prepare and submit such ordinance. The compensation of the revisor or revisors, including that of the attorney, shall be determined by the governing body and shall be paid out of the municipal treasury. Such revision, including any additional ordinances and amendments to existing ordinances contained therein, may be passed as a single ordinance and may be published in pamphlet or book form, by and under the authority of the governing body of the municipality, and shall be valid and effective without publication in a newspaper or posting.

40-11-09.1. Presumption of regular adoption, enactment, or amendment of resolution or ordinance.

Three years after the adoption or amendment of a resolution or the enactment or amendment of an ordinance by the governing body of a city it is conclusively presumed that the resolution or ordinance was adopted, enacted, or amended and published as required by law.

40-11-10. Action for violation of ordinance in corporate name — Previous prosecution, recovery, or acquittal no defense.

Any action brought to recover any fine, to enforce any penalty, or to punish any violation of an ordinance of any municipality shall be brought in the corporate name of the municipality as plaintiff. A prosecution, recovery, or acquittal for the violation of any such ordinance may not constitute a defense to any other prosecution of the same person for any other violation of any such ordinance, notwithstanding that the different claims for relief existed at the time of the previous prosecution and if united, would not have exceeded the jurisdiction of the court.

40-11-11. Summons to issue on violation of ordinance — When warrant of arrest to issue.

In all actions for the violation of an ordinance, the first process shall be a summons, but a warrant for the arrest of the offender shall be issued upon the sworn complaint of any person that an ordinance has been violated and that the person making the complaint has reasonable grounds to believe the person charged is guilty of such violation. Any person arrested under a warrant shall be taken without unnecessary delay before the proper officer to be tried for the alleged offense.

40-11-12. Commitment of guilty person for nonpayment of fines or costs.

Any person upon whom any fine or costs, or both, has been imposed for violation of a municipal ordinance may, after hearing, be committed upon order of the court to jail or other place provided by the municipality for the incarceration of offenders until the fine or costs, or both, are fully paid or discharged by labor as provided in section 40-18-12. The court may not commit a person under this section when the sole reason for the person’s nonpayment of fines or costs, or both, is the person’s indigency. An order of commitment under this section shall not be for a period in excess of thirty days. As used in this section, “fine” does not include a fee established pursuant to subsection 2 of section 40-05-06.

40-11-13. Fines and forfeitures for violation of ordinances paid into treasury.

All fines, penalties, and forfeitures collected for offenses against the ordinances of a city, including those fines, penalties, and forfeitures collected as a result of a judgment of a district court rendered pursuant to section 40-18-19, must be paid into the city’s treasury at such time and in such manner as may be prescribed by ordinance.

40-12-01. Initiative and referendum apply only in commission and modern council cities.

The provisions of this chapter relative to the initiating and referring of municipal ordinances shall apply only in cities operating under the commission and modern council system of government.

40-12-02. Submission of proposed ordinance by petition — Filed with city auditor — Request in petition.

Any proposed ordinance may be submitted to the governing body of the municipality by a petition signed by qualified electors thereof equal in number to fifteen percent of the votes cast for all candidates for the executive officer at the preceding regular municipal election. The petition must be filed in the city auditor’s office and must contain a request that the ordinance set out in the petition be submitted to a vote of the qualified electors of the city if it is not passed by the governing body of the municipality.

40-12-03. Requirements of petitions for initiative and referendum.

Only qualified electors of the city may sign petitions provided for in this chapter. Each petition, in addition to the names of the petitioners, must contain the name of the street upon, and the number of the house in, which each petitioner resides. It must also be accompanied by the affidavit of one or more qualified electors of the city stating that the signers were qualified electors of the city at the time of signing and the number of signers upon the petition at the time when the affidavit was made.

40-12-04. Signatures to petition — Requirements — Oath — Withdrawal.

The signatures to a petition to initiate or refer an ordinance need not all be appended to one paper. One of the signers of each paper shall make an oath before an officer competent to administer oaths that the person believes the statements in the paper to be true and that each signature to the paper is the genuine signature of the person whose name it purports to be. Any petitioner may withdraw that petitioner’s name from a petition within five days after the date of the filing of the petition with the city auditor.

40-12-05. City auditor to determine sufficiency of initiative petition — Certificate attached to petition.

Within ten days after the filing of a petition to initiate an ordinance, the city auditor shall examine the petition and ascertain from the voters’ register whether or not the petition is signed by the requisite number of qualified electors. The governing body of the municipality shall allow such extra help for the examination of the petition as it deems necessary. The city auditor shall attach to the petition the city auditor’s certificate showing the result of the examination and if the petition is insufficient, the city auditor shall state in the city auditor’s certificate the reasons therefor. If the city auditor’s certificate shows the petition to be insufficient, it may be amended within ten days from the date of the certificate. Within ten days after any such amendment, the city auditor shall make an examination of the amended petition, and if the city auditor’s certificate attached thereto shall show the amended petition to be insufficient, it shall be returned to the person filing the same without prejudice to the filing of a new petition to the same effect. If the petition is sufficient, the city auditor shall submit it to the governing body of the municipality without delay.

40-12-06. Duty of governing body after receiving petition for proposed ordinance.

After receiving the petition for the initiation of a proposed ordinance, the governing body of the municipality shall:

1. Pass the ordinance without alteration within twenty days after the attachment of the auditor’s certificate to the accompanying petition;
2. Call a special election, unless a general city election is fixed within ninety days thereafter, and submit to the vote of the qualified electors of the municipality the initiated ordinance without alteration; or
3. If the petition is signed by not less than twenty-five percent of the qualified electors as defined in section 40-12-02, pass the ordinance without change within twenty days after the filing of the petition or submit the initiated ordinance at the next general municipal election, if the election occurs not more than thirty days after the city auditor’s certificate of sufficiency is attached to the petition, and if no general municipal election is to be held within thirty days after the city auditor’s certificate of sufficiency is attached to the petition, it shall call a special election.

40-12-07. Adoption of proposed ordinance — Effect — Repeal or amendment of initiated ordinance.

If a majority of the qualified electors voting on an initiated ordinance vote in favor thereof, it shall become a valid and binding ordinance of the municipality. Any ordinance proposed by a petition and adopted by a vote of the people cannot be repealed or amended except by a vote of the people so long as the municipality remains under the commission system of government.

40-12-08. Petition to refer ordinance — Suspension of ordinance — Requirements of petition.

An ordinance which has been adopted by the governing body of a municipality may be referred to the qualified electors of the municipality by a petition protesting against such ordinance. Such petition shall be signed by qualified electors of the municipality equal to at least ten percent of the entire vote cast for all candidates for executive officer of the municipality at the preceding regular municipal election and shall be presented to the governing body of the municipality within ten days and before four p.m. on the tenth day after the ordinance described in the petition became effective. If a petition is mailed to the governing body of the municipality, it shall be in the possession of such body before four p.m. on the tenth day after the ordinance became effective. Unless the ordinance protested against was passed by a four-fifths vote of the members of the governing body of the municipality for the immediate preservation of the public peace, health, and safety and contains a statement of its urgency, it shall be suspended upon the filing of the petition. The petition provided for in this section shall be in all respects in accordance with the provisions of sections 40-12-02, 40-12-03, and 40-12-04, except as to the number of signers required, and shall be examined and certified by the city auditor in all respects as provided in section 40-12-05.

40-12-09. Referred measure — Submission — Result of election.

When a referendum petition is filed, the governing body of the municipality shall reconsider the ordinance described therein, and if it is not entirely repealed, the governing body shall submit it to the vote of the qualified electors of the municipality at the next regular municipal election or at a special election to be called for that purpose as provided in section 40-12-06. The ordinance shall not go into effect or become operative unless a majority of the qualified electors voting on the same shall vote in favor thereof. If the referred ordinance was not suspended by the filing of the referendum petition, it no longer shall be effective if it is disapproved by a majority vote of the qualified electors voting on the same.

40-12-10. No limitation on number of ordinances that may be voted on at one election — Limitation on special elections.

Any number of proposed or referred ordinances may be voted on at the same election in accordance with the provisions of this chapter. There shall be not more than one special election in any period of six months for such purposes.

40-12-11. Publication of proposed or referred ordinance or proposition before election.

The city auditor shall cause any ordinance or proposition to be submitted to the electors under this chapter to be published once in each newspaper published in the municipality. The publication shall be made not more than twenty days nor less than five days before the submission of the ordinance or proposition to a vote.

40-12-12. Form of ballots to be used in voting on initiated or referred ordinance.

The ballot to be used in voting upon an initiated ordinance shall be in substantially the following form:

Shall an initiated ordinance relating to (stating the nature of the proposed ordinance) be adopted? Yes ⎭ No ⎭

Click to view

The ballot to be used in voting upon a referred ordinance shall be in substantially the following form:

Shall ordinance no. relating to (stating the nature of the proposed ordinance) approved by the board of city commissioners be approved? Yes ⎭ No ⎭

Click to view

40-12-13. Propositions submitted for repeal or amendment to initiated or referred ordinance — Election — Vote required.

The governing body of the municipality may submit a proposition for the repeal of or an amendment to an ordinance adopted under the provisions of this chapter. The proposition shall be voted upon at any succeeding regular municipal election. If the proposition submitted receives a majority of the votes cast thereon at such election, the ordinance shall be repealed or amended, as the case may be.

40-13-01. Qualifications of elective and appointive officers.

A person is not eligible to hold an elective municipal office unless that person is a qualified elector of the municipality and has been a resident of the municipality for at least nine months preceding the election. A person is not eligible to hold an appointive office unless that person is a citizen of the United States. A person in default to the municipality is not eligible to any office.

40-13-02. Bonds of city officials — Requirements — Approvals — Additional bonds.

The auditor, municipal judge, assessor, and the city manager of any city, and such other officers as the governing body may direct, before entering upon the discharge of the duties of their respective offices, shall execute and deliver to the city their separate bonds payable to the city, conditioned for the honest and faithful performance of their official duties. The bond must be in an amount fixed by the governing body of the city. The bond of the auditor must be set by resolution of the governing body of the city at a regular meeting in June of each year in an amount at least equal to twenty-five percent of the average amount of money that has been subject to the auditor’s control during the preceding fiscal year, as determined by the total of the daily balances of the auditor for the calendar year divided by the figure three hundred or the sum of two hundred fifty thousand dollars whichever is least. All official bonds must be approved by the executive officer of the city and filed in the office of the city auditor. The bonds must conform to the law applicable to the bonds of state officers and employees except that no personal surety may be accepted on any bond. A city may not pay the premium on any bond except a bond written in the state bonding fund or a bond procured to replace a bond canceled by the state bonding fund. The governing body at any time may require new and additional bonds of any officer.

40-13-03. Oaths of municipal officers.

Every person elected or appointed to any municipal office, before the person enters upon the discharge of the duties thereof, shall take and subscribe the oath of office prescribed for civil officers, and, except in the case of the auditor, shall file the same with the city auditor within ten days after notice of the election or appointment has been given. The oath of the city auditor shall be filed in the office of the auditor of the county in which the municipality is located. Refusal to take the oath of office, as required by this section, shall also be deemed a refusal to serve and, therefore, a failure to qualify for the office pursuant to section 44-02-01.

40-13-04. Salaries of officers and employees fixed by ordinance — Diminution of officers’ salaries during term prohibited.

Except when otherwise provided by law, any officer or employee of a city is entitled to receive the salary, fees, or other compensation fixed by ordinance or resolution. After having been once fixed, the salary of an officer may not be diminished to take effect during the term for which the officer was elected or appointed.

40-13-05. Officers not to be interested in contracts or work of municipality — Exception.

Except as otherwise provided by law, no municipal officer, in a municipality having a population of ten thousand or more according to the last federal decennial census, shall be directly or indirectly interested in:

1. Any contract, work, or business of the municipality;
2. The sale of any article the expense, price, or consideration of which is paid from the municipal treasury or by any assessment levied by any act or ordinance; or
3. The purchase of any real estate or other property belonging to the municipality or which shall be sold for taxes or assessments or by virtue of any process issued in any suit brought by the municipality.

Provided, however, that the foregoing shall not be applicable if unanimously approved by the other members of the governing body of the political subdivision by a finding unanimously adopted by such other members and entered in the official minutes of the governing body, to be necessary for the reason that the services or property obtained are not otherwise available at equal cost.

40-13-05.1. Municipal officers — Contracts — Disclosure required — Penalty.

A municipal officer may not refuse or fail to disclose to the governing board of which that person is a member any personal interest, direct or indirect, in any contract requiring the expenditure of municipal funds. Any person who violates this section is guilty of an infraction and is, in addition, subject to removal from office.

40-13-06. Penalty for illegal interest in contract of municipality — Contract void. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

40-13-07. Office deemed vacant on removal from municipality or failure to qualify.

When any officer removes from a municipality or refuses or neglects for ten days after official notification of that person’s appointment to qualify and enter upon the discharge of the duties of the office, the office shall be deemed vacant.

40-13-08. Vacancy existing in appointive office — How filled.

Whenever a vacancy occurs in an appointive office, the same proceedings shall be had to fill such vacancy as are provided for in case of an appointment in the first instance.

40-13-09. Vacancies to be filled for unexpired term.

Unless otherwise specifically provided in this title, every person elected or appointed to fill a vacancy in a municipal office shall hold the office and discharge the duties thereof for the unexpired term.

40-13-10. Delivery of property, books, and other effects to successor in office.

Within five days after notification and request, any officer of a municipality whose term has expired shall deliver to the person’s successor in office all property, books, and effects of every description in the person’s possession belonging to the municipality or pertaining to the person’s office. Upon the person’s refusal to deliver such property, books, and other effects, the person shall be liable for all damages caused thereby and subject to a penalty prescribed by ordinance.

40-13-11. Additional duties, powers, and privileges of officers may be defined by ordinance.

The duties, powers, and privileges of all officers of every character in any way connected with a municipal government, not defined in this title, shall be defined by the governing body. The definition by this title of the duties of municipal officers shall not preclude the governing body from defining by ordinance further and additional duties to be performed by any such officer.

40-13-12. Municipal officers liable to criminal prosecution — Fine — Removal from office. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

40-13-13. Nepotism by city officials restricted.

The head of an executive or administrative department of a city may not appoint that individual’s spouse, son, daughter, brother, or sister to any position under the control or direction of that individual, unless the appointment has previously been approved by the governing body of the city.

40-14-01. Officers to be elected in council cities.

The following officers must be elected in each city operating under the council form of government:

1. A mayor.
2. The council members required under sections 40-08-03 and 40-08-04.

Each city operating under the council form of government may choose to have a municipal judge who is elected.

40-14-02. Terms of elective officers.

The terms of office of the mayor and council members are provided in chapter 40-08. All other elective officers in a city operating under the council form of government shall hold their respective offices for four years and until their successors are elected and qualified.

40-14-03. When term of elective officer begins.

Under the city council form of government, the term of each elective officer commences on the fourth Tuesday of June of the year in which the officer is elected.

40-14-04. Appointive officers in council cities — Appointment of more than one assessor.

1. The mayor, with the approval of the city council, shall appoint the following officers:
   1. A city auditor;
   2. A city assessor;
   3. A city attorney;
   4. A city engineer; and
   5. Such other officers as the city council deems necessary and expedient.
2. The city assessor shall be appointed at the first meeting of the city council in September of each odd-numbered year. If the city council of a city containing five thousand or more inhabitants shall declare, by resolution, that it is necessary to appoint more than one assessor, the mayor, with the approval of the council, may appoint one or two additional city assessors.
3. The city council, including a city council under the modern council form of government, by a majority vote may dispense with any appointive office and provide that the duties of that office be performed by other officers.

40-14-05. Term of appointive officers.

The term of all appointive officers of a city operating under the council form of government commences on the first day of July succeeding their appointment unless otherwise provided by ordinance, and the officers shall hold their respective offices for two years, and until their successors are appointed and qualified.

40-14-06. Officers commissioned by warrant — City auditor to receive certificate of appointment.

All officers elected or appointed, except the city auditor, council members, and mayor, must be commissioned by warrant signed by the auditor and the mayor or president of the city council. The mayor shall issue a certificate of appointment to the auditor.

40-14-07. Holding of other offices by city auditor prohibited. [Repealed]

Repealed by S.L. 1975, ch. 372, § 1.

40-15-01. Officers to be elected in commission cities.

The following officers shall be elected in each city operating under the commission system of government:

1. A president of the board of city commissioners.
2. Four city commissioners.

Each city operating under the commission system of government may choose to have a municipal judge who shall be elected.

40-15-02. Terms of elective officers.

The terms of office of the president of the board of city commissioners and of each commissioner shall be as provided in chapter 40-09. The municipal judge shall hold office for four years and until the judge’s successor is elected and qualified.

40-15-03. When term of elective officers begins.

The term of each elective officer in a city operating under the commission system of government commences on the fourth Tuesday in June of the year in which the officer is elected.

40-15-04. Extension of terms of officers in commission cities elected to terms expiring in 1943 and 1945. [Repealed]

Repealed by omission from this code.

40-15-05. Appointive officers in commission cities — Right to dispense with offices.

At the first meeting after the qualification of its members, or as soon thereafter as possible, the board of city commissioners shall appoint the following officers:

1. A treasurer;
2. An auditor;
3. An attorney;
4. One or more assessors;
5. A city health officer who shall be a physician;
6. A street commissioner;
7. A chief of the fire department;
8. A chief of police;
9. One or more police officers;
10. A city engineer;
11. A board of public works; and
12. Such other officers or boards as the board of city commissioners may deem necessary.

The board of city commissioners by a majority vote may dispense with any appointive office and provide that the duties thereof shall be performed by other officers or boards, by the board of city commissioners, or by a committee or committees thereof.

40-15-06. Term of appointive officers.

The terms of all appointive officers of a city operating under the commission system of government commences on the first day of July succeeding their appointment unless otherwise provided by ordinance, and the officers shall hold their respective offices for the term provided by ordinance, and until their respective successors are qualified.

40-15-07. Appointive officers — Removal upon hearing — Suspension — Appointment and removal of temporary officer.

Any person appointed to any office of a city operating under the commission system of government and any employee of the city may be removed by a majority vote of all the members of the board of city commissioners, but no officer or employee shall be removed except for cause and unless charges are preferred against the person and the person is accorded an opportunity to be heard in the person’s own defense. Within ten days after charges are filed against any such person in the office of the city auditor, the board shall proceed to hear and determine the case upon its merits. The president of the board of city commissioners, or the board, by a majority vote of its members, may suspend any officer or employee against whom charges have been preferred until the disposition of the charges. The president may appoint a person to fill any vacancy temporarily until charges against the incumbent of such office have been disposed of. Any person appointed by the president without confirmation may be removed by the president when the president deems it is for the best interests of the city.

40-16-01. Office of city auditor — Location — Salary.

Each city auditor of each city shall keep the city auditor’s office at the meeting place of the governing body or at such place as designated by the governing body. The city auditor’s salary shall be fixed by the city governing body and the city auditor shall receive no fees or per diem in addition thereto.

40-16-02. Deputy auditor — Appointment — Duties — Liability.

The city auditor, with the consent and approval of the governing body of the city, may appoint a deputy and file such appointment in the city auditor’s office. The deputy, if one is appointed, shall aid in the performance of the duties of the office under the auditor’s direction and in the absence or disability of the auditor, or if there is a vacancy in the office of the auditor, the deputy shall perform the duties of the auditor. The auditor and the surety on the auditor’s official bond shall be liable for the acts of the deputy.

40-16-03. Duties of city auditor in general.

It shall be the duty of each city auditor:

1. Meetings. To attend all meetings of the governing body and keep a complete record of its proceedings. The official proceedings are to be signed by the auditor when they are prepared and by the executive officer upon board approval at a subsequent meeting.
2. Records. To keep all papers and records of the city.
3. Records. To maintain a complete record of all financial transactions of the city which includes receipts, disbursements, fund balances, and other assets, liabilities, and equity.
4. Bonds and evidences of indebtedness. To examine and countersign all bonds, orders, or other evidences of indebtedness of the city before the same become valid.
5. Books of account. To keep regular books of account in which the city auditor shall enter all indebtedness of the city and which at all times shall show the financial condition of the city, the amount of bonds, orders, certificates, or other evidences of indebtedness issued by the governing body, the amount of all bonds, orders, certificates, or other evidences of indebtedness which have been redeemed, and the amount of each outstanding.
6. List of bonds, orders, and other evidences of indebtedness. To make and keep a list of outstanding city bonds, orders, certificates, or other evidences of indebtedness showing to whom and for what purpose the same were issued, when and where each is payable, the rate of interest each bears, and to recommend such action to the governing body as will secure the punctual payment of the principal and interest of such bonds or other indebtedness.
7. Countersign contracts. To countersign all contracts made in behalf of the city if the necessary funds have been provided to pay the liability incurred thereunder, to countersign certificates of work authorized by any committee of the governing body, or by any city officer. Each contract made in behalf of a city or to which a city is a party shall be void unless countersigned by the auditor.
8. Present communications. To present to the governing body for its consideration at its next meeting all communications, claims, and other matters filed in the city auditor’s office.
9. Ordinances and official bonds. To record all ordinances adopted and licenses granted by the city and all official bonds of city officers in books kept for that purpose which shall be open to public inspection at reasonable times.
10. Work certificates. To keep a list of all certificates issued by the city for work or any other purpose.
11. Accounts with officers. To keep accounts with all receiving and disbursing officers of the city showing the amount they have received from the different sources of revenue, and the amount which they have disbursed under the direction of the governing body.
12. Record of official acts. To keep a record of the city auditor’s official acts and doings and to enter all contracts in an indexed book which shall be open to the inspection of the public.
13. Special assessment lists. To make a list of all certificates for the payment of which special taxes are to be levied in each year in time for the same to be inserted in the tax roll in the form of a schedule of special taxes and to certify to the correctness thereof. The certified schedule shall be prima facie evidence of the legality and regularity of the taxes levied in pursuance thereof, but no irregularity in the making of such lists shall invalidate any such special tax.
14. Receipts. To issue prenumbered duplicate receipts for all moneys paid into the city treasury from whatever source received specifying the date and amount of such payment and upon what account such money is paid. Such receipts shall be recorded numerically in the record of receipts.
15. Disbursements. Submit all claims against the city to the governing body for approval. Upon approval, the auditor shall draw and countersign, along with the executive officer, a warrant in payment of the claim. No warrant shall be delivered or mailed until such warrant has been recorded in the disbursement record. Approval of all claims shall be recorded in the official proceedings of the governing body showing the warrant number, payee, and amount, except that salaries and wages may be consolidated in one order, and this shall be sufficient to indicate approval without requiring a majority of the members of the governing body to sign or initial the voucher or order for payment.
16. Monthly reconcilement. To reconcile monthly the bank statements listing all deposits in transit and outstanding checks.
17. Additional duties. To perform, from time to time, such duties not required specifically by the provisions of this chapter as the governing body may direct.
18. Training. For an individual who is appointed to the position of city auditor, to complete, within one year of assuming office, training based on a curriculum specific to that office and approved by a statewide association representing cities.

40-16-04. Reports of city auditor.

The city auditor of each city shall prepare and submit to the governing body of the city reports as follows:

1. Monthly financial statement. A monthly financial statement shall be prepared showing the revenues, expenditures, transfers, and fund balances.
2. Annual financial statement. An annual financial statement shall be prepared, on or before March first, showing the revenues, expenditures, transfers, and fund balances of the city for the year ended December thirty-first. This financial statement shall be retained in the office of the city auditor as a permanent public record.

40-16-05. Auditor to publish statement.

Within sixty days after the close of each fiscal year, the auditor of each city shall make and cause to be published in the official city newspaper a financial statement of the city showing the receipts and disbursements on account of each fund during the last preceding year.

40-16-06. Claims and demands against city filed with auditor — Duty of auditor.

All claims and demands against a city, whether founded on contract or otherwise, and to be paid from any fund, including a municipal utilities fund, shall be filed with the city auditor. The city auditor shall examine each claim filed and determine whether or not it is properly itemized and certified in the form prescribed in section 54-14-04. If a claim is filed on a contract, the city auditor shall determine whether or not the items charged are correct and were incurred by proper authority. The auditor shall endorse the auditor’s approval upon any claim that the auditor finds to be correct. If the city auditor disapproves any claim in whole or in part, the auditor shall report the auditor’s reasons therefor to the governing body. The city auditor shall report all evidence taken by the auditor in connection with any claim. No claim shall be considered by the governing body until it shall have been examined and reported upon by the auditor and audited and adjusted by the proper committee or member of the governing body.

40-16-07. Auditor may take testimony.

A city auditor may administer oaths and affirmations to witness and take testimony in connection with any of the duties imposed upon the city auditor by the laws of this state.

40-16-08. Auditor a member of board of public works in commission city.

The city auditor in a city operating under the commission system of government shall be ex officio secretary of the board of public works and shall perform the duties of a member of such board.

40-16-09. Copies of books, records, and transcripts of records of city auditor as evidence.

Copies of any and all books, papers, documents, or instruments duly filed and kept in the office of a city auditor and transcripts from the records of the proceedings of the governing body of a city certified by the city auditor shall be evidence in all courts and places in like manner and with the same force and effect as if the originals were produced.

40-16-10. Destruction of city records. [Repealed]

Repealed by S.L. 1981, ch. 276, § 3.

40-16-11. Funds — Controlled by governing body — Exceptions — Disbursement on order.

All funds in the city treasury, except school funds, funds created and set apart for the payment of interest and principal of the debt of the city, and funds collected on special assessments, shall be under the control of the governing body of the city and shall be drawn out when authorized by a vote of the governing body, upon the order of the executive officer countersigned by the city auditor.

40-16-12. Special funds not to be paid out for any other purpose.

The city auditor shall pay out funds appropriated for special purposes only for the purposes for which they were appropriated even though the governing body directs to the contrary.

40-16-13. Warrants — Cancellation — Destruction — Description in minutes.

The governing body, at a regular meeting, may cancel and destroy all warrants drawn on any fund of the city which have remained on file for a period of one year or more next preceding the regular meeting at which the cancellation takes place. The governing body may cancel and destroy all warrants and checks which have been subject to payment and which have not been presented for payment for a period of one year or more next preceding such regular meeting. The governing body, before canceling and destroying any such warrants or checks, shall cause to be entered in the minutes of its proceedings a brief description of the warrant or check, containing the name of the payee, and the number, date, and amount of each warrant or check to be canceled and destroyed. If the party entitled to any such warrant or check, or to payment thereon, shall appear thereafter and give good and sufficient reason for that party’s delay in calling for such warrant or check or in presenting the same for payment, the governing body may issue to that person a new warrant or check in the amount to which that person is entitled, except for the statute of limitations.

40-16-14. Auditor not to commingle city’s money — Violation forfeits office.

The city auditor shall keep the city’s money separate from other moneys, and shall not, either directly or indirectly, use the city’s money, warrants, or other obligations in the auditor’s custody and keep it for the auditor’s own use and benefit or for that of any other person or persons. If the auditor is convicted of a violation of this section, the city auditor’s office shall be forfeited and shall become vacant.

40-16-15. Assume the duties of the city treasurer.

The city auditor shall assume all functions and duties of the city treasurer when indicated in other chapters of the code.

40-16-16. Delegation of powers and duties.

The city council or city commission may delegate any functions and duties of the city auditor to an officer appointed under section 40-14-04 or 40-15-05.

40-18-01. Jurisdiction and qualifications of municipal judge.

1. The municipal judge within a city having a population of five thousand or more must be licensed to practice law in this state, unless no person so licensed is available in the city. In a city with a population of less than five thousand, the municipal judge need not be licensed to practice law in this state, nor may the judge be required to be a resident of the city. The municipal judge has jurisdiction to hear, try, and determine offenses against the ordinances of the city.
2. In a city with a population of less than five thousand, the city may, by resolution or ordinance, require that municipal judges of the city be licensed to practice law in this state.
3. Notwithstanding any other provision of law, the municipal court has no jurisdiction to hear, try, and determine an offense which would be a violation of section 39-08-01 or equivalent ordinance, if the individual charged with the offense has twice previously been convicted of a violation of section 39-08-01 or equivalent ordinance within the seven years preceding the commission of the offense charged or if the individual charged with the offense has three times previously been convicted of a violation of section 39-08-01 or equivalent ordinance within the fifteen years preceding the commission of the offense charged. If such an offense is charged in the municipal court and the municipal judge has notice of a violation of section 39-08-01 or equivalent ordinance twice within the seven years, or three times within the fifteen years, preceding the commission of the offense charged, the municipal judge shall dismiss the charge, without prejudice, and direct that the charge be filed against the individual in district court.
4. Notwithstanding any other provision of law, a municipal court in which the judge is not a person licensed to practice law in this state has no jurisdiction to hear, try, and determine an offense that would be a violation of section 39-08-01 or equivalent ordinance.

40-18-02. City justice of the peace — Jurisdiction and procedure. [Repealed]

Repealed by S.L. 1959, ch. 268, § 34.

40-18-03. Vacancy in office of municipal judge — Temporary absence of municipal judge.

If a vacancy exists in the office of municipal judge by death, resignation, or otherwise, it must be filled by appointment by the executive officer, subject to confirmation by the governing body of the city. An appointee shall qualify and hold office until the next city election and until a successor is elected and qualified. The governing body may appoint an alternate municipal judge to serve when the municipal judge is unable to serve due to temporary absence, interest, disqualification, or disability. The alternate judge must be compensated at a rate set by the governing body and shall possess the qualifications of a municipal judge.

40-18-04. Office hours of municipal judge. [Repealed]

Superseded by N.D.R.Crim.P. 56.

40-18-05. Municipal judge is conservator of the peace — Powers on Sunday restricted.

The municipal judge within the judge’s city shall be a conservator of the peace and shall have power to bring persons before the municipal judge forthwith for trial. The municipal judge’s court shall be open every day except Sunday to hear and determine cases cognizable before the municipal judge. The municipal judge shall perform no official act on Sunday but may receive complaints, issue process, take bail, and receive verdicts.

40-18-06. Salary of municipal judge — Payment of funds to treasury.

The municipal judge must be paid a salary by the city and may not be paid in relation to fees or fines collected by the municipal court. The municipal judge’s salary may not be reduced during the municipal judge’s term of office.

At the end of each month, the municipal judge shall make and file with the city auditor a written report under oath showing an account of all fees, fines, costs, forfeitures, and any other monetary consideration collected by the court during the preceding month and showing the actions in which the fees were collected. The municipal court shall pay the amount of fees, fines, costs, forfeitures, and any other monetary consideration collected to the city treasury at the end of each month. The judge’s salary may not be paid until the judge has complied with this section.

40-18-06.1. Municipal court clerk — Appointment — Salary — Authority.

The governing body of a city, with the consent of its municipal judge, may appoint any qualified person to serve as municipal court clerk or deputy clerk for municipal ordinance violations. A municipal court clerk or deputy clerk is entitled to receive a salary as fixed by the governing body. The municipal judge is responsible for the supervision of the municipal court clerk or deputy clerk when the clerk or deputy clerk is performing judicial or administrative functions on behalf of the municipal court. The municipal judge may assign responsibilities to the municipal court clerk or deputy clerk, including the administration of the office of the municipal court and the supervision of other personnel of that office. The supreme court may adopt rules for the qualifications of municipal court clerks and deputy clerks, the extent and assignment of authority by municipal judges, and the conduct of the office, including rules for training sessions and for continuing education.

40-18-06.2. Transfer of municipal ordinance cases to district court — Abolition of office of municipal judge.

With the agreement of the governing body of the county, the presiding judge of the judicial district in which the city is located, and the state court administrator, the governing body of a city may, by ordinance, transfer some or all of the cases of the municipal court to the district court serving the county in which the city is located. These cases are deemed district court cases for purposes of appeal. The governing body of a city with a population of less than five thousand, upon transferring all municipal court cases to the district court, may abolish by resolution the office of municipal judge. The term of office of the municipal judge elected to serve that city terminates upon the last day of the month in which all municipal cases have been transferred to district court or the expiration of the judge’s term, whichever occurs first.

40-18-07. Warrants of arrest issued by municipal judge — Service of warrant. [Repealed]

Superseded by N.D.R.Crim.P., Rule 4.

40-18-08. Warrants issued by municipal judge to run to whom. [Repealed]

Superseded by N.D.R.Crim.P., Rule 4.

40-18-09. Subpoena of witnesses — Continuance of trial — Verbal notice to witnesses to attend. [Repealed]

Superseded by N.D.R.Crim.P., Rule 17.

40-18-10. Trials for misdemeanors before municipal judge governed by justice court procedure. [Repealed]

Repealed by S.L. 1967, ch. 327, § 4.

40-18-11. How proceedings in criminal cases not provided for in this chapter to be governed. [Repealed]

Superseded by N.D.R.Crim.P., Rules 1, 54.

40-18-12. Commitment for violation of city ordinance — Limitation — Labor in lieu of fine — Diagnosis and treatment of persons convicted while driving under the influence.

If the defendant is found guilty of the violation of a municipal ordinance and is committed as provided in section 40-11-12, the governing body may provide by ordinance that the defendant work for the city at such labor as the defendant’s strength and health permit, not exceeding eight hours in each working day. For that work, the person so imprisoned must be allowed for each day, exclusive of board, ten dollars on account of the fines and costs assessed. If a person is convicted under an ordinance prohibiting driving or being in physical control of a vehicle while under the influence of an intoxicating liquor or a narcotic drug, the court shall order the person to an appropriate licensed addiction treatment program for addiction evaluation.

40-18-13. Sentencing alternatives — Suspension of sentence or imposition of sentence.

Subject to section 40-05-06, a municipal judge may use the sentencing alternatives provided by section 12.1-32-02 and may suspend any sentence the judge imposes or defer the imposition of any sentence during the good behavior of any person adjudged to have committed an offense, or for other reasonable cause, under subsection 3 or 4 of section 12.1-32-02, except that a municipal judge may not suspend a sentence or the imposition of sentence for driving a motor vehicle in violation of an operator’s license suspension, revocation, or restriction or for a violation of section 39-08-01 or equivalent ordinance if that suspension of sentence or suspension of the imposition of sentence is prohibited under section 39-06-17 or 39-06-42 or chapter 39-08.

40-18-14. Municipal judge may enforce orders and judgments and punish for contempt.

A municipal judge may enforce due obedience to the court’s orders and judgments. The judge may fine or imprison for contempt committed in the judge’s presence while holding court, as well as for contempt of process issued, and of orders made by the judge. When an act or omission constituting a contempt in a municipal court is not committed in the presence of the municipal judge, an affidavit alleging the facts may be filed and a warrant of arrest thereupon may issue on which the person accused may be arrested and brought before the municipal judge immediately. The person must be given a reasonable opportunity to employ counsel and defend against the alleged contempt. After hearing the allegations and proofs, the municipal judge may discharge the person or adjudge the person guilty and may punish by fine or imprisonment or both. The fine in any case may not be more than one thousand five hundred dollars and the imprisonment may not be more than thirty days.

40-18-14.1. Judgment for fine or costs.

If the judgment provided for in section 40-18-14 imposes a fine or assesses a cost, the municipal judge may order an authenticated copy of the judgment be filed in the office of the clerk of any district court of any county in the state. The clerk of district court shall treat the municipal court judgment in the same manner as a civil judgment of any district court of any county of the state.

40-18-14.2. Notice of filing.

1. At the time of filing a judgment under section 40-18-14, the municipal court judge shall order an affidavit providing the name and last-known mailing address of the defendant and otherwise complying with section 28-20-15 be filed.
2. Upon the filing of the judgment and affidavit as provided in section 40-18-14, the clerk of municipal court shall mail notice of the filing of the municipal judgment to the defendant at the defendant’s last-known address and file proof of mailing with the district court. The notice must include the name and mailing address of the municipal court.
3. An execution of other process for enforcement of a municipal court judgment filed under this section may not be issued until ten days after the date the judgment is filed.

40-18-14.3. Stay.

If the defendant shows the district court of any county that an appeal from the judgment provided in section 40-18-14 is pending or will be taken, the court shall stay enforcement of the municipal court judgment until the appeal is concluded or the time of appeal expires.

40-18-14.4. Fees.

The municipal judge shall order a filing fee of ten dollars to be paid to the clerk of the district court.

40-18-14.5. Effect of filing.

Upon filing of a judgment under section 40-18-14 with the district court in accordance with this chapter, the judgment is enforceable only in the same manner as provided for a judgment for money in a civil action.

40-18-15. Trials in nonjury cases arising under the ordinances of a city.

An action for the violation of a city ordinance for which the right to a jury trial does not otherwise exist or in which the defendant has timely and appropriately waived a right to a jury trial in writing pursuant to rules of the supreme court may be tried and determined by the municipal judge without the intervention of a jury. In the event of an adverse verdict in a municipal court trial, a defendant may appeal as provided in section 40-18-19, but a waiver of jury trial in the municipal court proceeding also constitutes a waiver of jury trial in the district court.

40-18-15.1. Transfer to district court — Expenses of prosecution — Division of funds and expenses between city, county, and state.

A matter may be transferred to district court for trial if within twenty-eight days after arraignment the defendant has requested in writing to transfer the case to district court and to exercise the defendant’s right to a jury trial. After a transfer to district court, if the defendant waives a jury trial, the matter must be remanded to the municipal court for disposition if the defendant and prosecuting attorney agree to the remand. Unless remanded to the municipal court by agreement of the parties, the district court shall retain jurisdiction for sentencing. The city shall provide a prosecuting attorney and, in the case of any indigent defendant, a defense attorney. The city may contract with the county, state, or any individual or entity for prosecution or defense services. In the contract, the city, county, and state may agree to a division of all fees, fines, costs, forfeitures, and any other monetary consideration collected from cases transferred under this section, which must be paid to the city and county treasury and state general fund at least once each quarter. At the time of payment, the clerk of district court shall account under oath to the city auditor, county, and state treasurer for all money collected. In the contract the city, county, and state may also agree to a division of expenses, including jury and witness expenses, related to cases transferred under this section. In the absence of a contract all fees, fines, costs, forfeitures, and any other monetary consideration collected from transferred cases must be deposited in the state general fund.

40-18-16. Procedure when jury demanded in court of municipal judge. [Repealed]

Repealed by S.L. 1973, ch. 327, § 2.

40-18-17. Challenges for cause to jurors in court of municipal judge. [Repealed]

Repealed by S.L. 1973, ch. 327, § 3.

40-18-18. Fee of juror in court of municipal judge. [Repealed]

Repealed by S.L. 1973, ch. 327, § 4.

40-18-19. Appeals from determinations of municipal judge.

An appeal may be taken to the district court from a judgment of conviction or order deferring imposition of sentence in a municipal court in accordance with the North Dakota Rules of Criminal Procedure. An appeal is perfected by notice of appeal. A perfected appeal to the district court transfers the action to such district court for trial anew. On all appeals from a determination in a municipal court, the district court shall take judicial notice of all of the ordinances of the city. No filing fee may be required in district court for the filing of an appeal from a judgment of conviction for the violation of a municipal ordinance. Expenses necessary for the adequate defense of a needy person in an appeal to district court from a judgment of conviction for the violation of a municipal ordinance, as approved by the presiding district judge, must be paid by the city wherein the alleged offense took place.

40-18-20. Demand for change of judge.

Any party to a proceeding pending in any municipal court may obtain a change of judge pursuant to section 29-15-21, except that either a district judge or a municipal judge may be appointed to act in place of the disqualified judge. The alternate municipal judge, if any, is automatically appointed to preside in the case.

40-18-21. Change of venue in municipal court. [Repealed]

Superseded by N.D.R.Crim.P., Rule 21.

40-18-21.1. Change of venue — Reliable electronic means.

1. A municipal judge may change the venue of a proceeding under this chapter upon consideration of the following factors:
   1. Convenience to the parties and witnesses;
   2. Judicial efficiency;
   3. Available facilities; and
   4. Administration of justice.
2. A municipal judge may not change the venue of a proceeding if any party to the proceeding objects to the change.
3. A municipal judge may use contemporaneous audio or audiovisual transmission by reliable electronic means in accordance with rule 52 of the North Dakota Supreme Court Administrative Rules. A municipal judge who presides over a proceeding through contemporaneous audio or audiovisual transmission by reliable electronic means is equivalent to a municipal judge who is physically present at the proceeding.

40-18-22. Continuing education of municipal judge and alternate judge required.

Each municipal judge and alternate judge shall comply with continuing judicial education requirements established by supreme court rule. The city shall reimburse the judge for necessary expenses of travel and subsistence as other city officials are so reimbursed.

If any judge fails to fulfill the requirements of this section, without being excused by the supreme court, the state court administrator shall report the judge’s failure to the judicial conduct commission for appropriate action.

40-19-01. Duties of city assessor.

The city assessor within the city shall perform all the duties necessary in assessing the property within the city for the purpose of levying the municipal, county, school, and state taxes. Such assessors shall be governed by and shall make assessments and returns as is provided in title 57 and in this chapter.

40-19-02. City assessor may list property prior to April first — Duty of county auditor. [Repealed]

Repealed by S.L. 1983, ch. 598, § 25.

40-19-03. Return of assessment roll by city assessor.

When the assessment is completed, and on or before the first day of April in each year, the city assessor shall return the assessment roll to the city auditor. The assessment roll shall be open to the inspection of the public until the meeting of the board of equalization of the municipality. The city auditor shall deliver the assessment roll to the board of equalization of the municipality at its regular meeting.

40-19-04. Compensation of village assessor. [Repealed]

Repealed by S.L. 1967, ch. 323, § 285.

40-20-01. City attorney — Duties — Docket.

The city attorney shall:

1. Conduct all law business in which the city or any of its departments is interested.
2. Furnish written opinions, when requested, upon all questions submitted to the city attorney by the governing body or any of the departments of the city.
3. Draft all ordinances, bonds, contracts, leases, conveyances, and other instruments that may be required by the officers of the city.
4. Examine tax and assessment rolls and all proceedings in reference to the levying and collecting of city taxes.
5. Keep a docket of all cases to which the city may be a party in any court of record in which must be entered briefly all steps taken in each such case and such docket must be open to public inspection at all reasonable hours.
6. Perform all other duties that may be prescribed by the governing body or by the ordinances of the city or the statutes of the state.

40-20-02. Assistant city attorneys — Appointment — Special counsel authorized.

With the consent and approval of the governing body of the city, the city attorney may appoint assistants to do any or all of the acts which the city attorney is required to do under this chapter, but the city attorney shall be responsible to the city for the acts of such assistants. The governing body of the city, however, may employ and pay special counsel when it deems such counsel to be necessary for the best interests of the city.

40-20-03. City engineer — Qualifications — Duties — Compensation — Plans or surveys — Preservation and transfer to successor.

The city engineer must be a practical surveyor and engineer. The city engineer shall keep an office in some convenient place in the city and the governing body, by ordinance, shall prescribe the city engineer’s duties and compensation for services performed for the city. All surveys, profiles, plans, or estimates made by the city engineer for the city are the property of the city and must be carefully preserved in the office of the engineer and must be open to the inspection of all interested persons. The surveys, profiles, plans, estimates, and all books and papers pertaining to the city engineer’s office shall be delivered by the engineer at the expiration of the city engineer’s term of office to the successor city engineer or to the governing body of the city.

40-20-04. When city engineer or chief of police to be street commissioner.

In cities having no street commissioner, the city engineer shall perform the duties and have the authority of street commissioner, and in cities having no street commissioner or city engineer, the chief of police shall perform the duties and have the authority of street commissioner.

40-20-05. Chief of police and police officers — Powers and duties — Hot pursuit.

1. The chief of police shall perform duties prescribed by the governing body for the preservation of the peace. The chief of police may administer oaths to police officers under the chief’s supervision. Within the city limits, and for a distance of one and one-half miles [2.41 kilometers] in all directions outside the city limits, the police officers of the city shall perform the duties and exercise the powers of peace officers as defined and prescribed by the laws of this state.
2. A police officer in “hot pursuit” may continue beyond the one and one-half mile [2.41 kilometers] limit to make an arrest, in obedience to a warrant or without a warrant under the conditions of section 29-06-15, if obtaining the aid of peace officers having jurisdiction beyond that limit would cause a delay permitting escape. As used in this subsection, “hot pursuit” means the immediate pursuit of an individual endeavoring to avoid arrest. The jurisdiction limits in subsection 1 do not apply to a police officer acting pursuant to a joint powers agreement with another jurisdiction.
3. Police officers shall serve and execute any warrant, writ, process, order, or notice issued by a municipal judge within the city in any civil or criminal action or proceeding for or on account of a violation of any city ordinance or in any action or proceeding in which the city is a party or is interested beneficially. The police, within the limits prescribed in this section, may serve and execute all writs and process issued by justices in civil actions. In addition to the duties set out in this section, the police shall perform such other duties as may be prescribed by ordinance or statute.

40-20-06. Arrest by chief of police or policeman outside of city — Fees.

No chief of police or policeman shall receive any fee for going outside of the city to make an arrest for violation of a state law unless the board of county commissioners is satisfied that a delay in obtaining the sheriff or a sheriff’s deputy to make the arrest would have permitted an escape.

40-20-07. Municipalities to furnish blue uniforms to police officers.

Any municipality of this state which employs full-time police officers shall furnish each such police officer with a summer-weight and a winter-weight uniform. The uniforms must be blue in color.

40-21-01. Qualified electors in municipal election — Restrictions.

Every resident of a municipality who is qualified to vote therein at general elections may vote at all municipal elections held therein. When elections are held by wards or precincts, a person may not vote in any place other than the ward or precinct of which the person is a resident.

40-21-02. City elections — When held — Notice — Polls — Agreements with counties — Judges and inspectors.

Biennial municipal elections must be held on the second Tuesday in June in each even-numbered year.

1. Thirty days before the filing deadline for candidate names to be printed on the ballot, an official notice of this deadline along with a list of the offices to appear on the ballot must be published in the official newspaper of the city as provided by section 40-01-09.
2. Ten days’ notice of the time and place of the election and of the offices to be filled at the election must be given by the city auditor by publication in the official newspaper of the city as provided by section 40-01-09.
3. The governing body of a city shall enter into an agreement with the governing body of the county or counties in which the city lies concerning the use of a single canvassing board, the sharing of election personnel, the printing of election materials, the publishing of legal notices, and the apportioning of election expenses.
4. For city elections that are not held under an agreement with any county, the governing body of the city shall appoint one inspector and two judges of election for each polling place in the city at least ten days before the election is held and the polls must be opened and closed as provided for the opening and closing of polls at statewide elections. In voting precincts in which over three hundred votes are cast in any previous election, the governing body may appoint two election clerks for each polling place. For a city election that is not held under an agreement with any county in a precinct in which seventy-five or fewer votes were cast in the last city election, the governing body of the city may appoint one inspector and one judge for each polling place.
5. When a city enters into an agreement with the county to hold the city election in conjunction with the county election, the deadline for giving notice of the city election along with the offices to be filled at the election may be adjusted in order to meet the publishing requirements of the county. Each city governing body that enters into an agreement with the county must notify the county auditor, in writing, immediately after the candidate filing deadline on the sixty-fourth day before the election of the offices to be filled at the election and any measures to appear on the ballot.

40-21-03. Elections in council cities — Polling places — Polls open — Notice — Judges, clerks, and inspectors — Agreements with counties. [Repealed]

Repealed by S.L. 1995, ch. 390, § 3.

40-21-03.1. Designation of polling places for municipal elections.

The governing body of any city at the time of calling any general or special municipal election, or prior to the time of registration for said election, if such registration is required by law, when officers of said city are not to be elected by wards or districts, may by resolution designate such voting precincts and polling places for said election as it may deem necessary for the conduct of the same and shall in giving notice of said election designate such voting precincts and polling places.

40-21-04. Annual election held in villages — Board of trustees to be inspectors. [Repealed]

Repealed by S.L. 1967, ch. 323, § 285.

40-21-05. Compensation of inspectors, judges, and clerks at municipal elections.

Each inspector, judge, or clerk of any regular or special municipal election shall receive compensation as determined for election officials in section 16.1-05-05. The amounts determined to be due election officials at municipal elections shall be paid from the funds of the municipality holding the election. In the event a special municipal election is held on the same date as a statewide, districtwide, or countywide election, and if the same election officials perform services for both elections, the city shall not be required to pay the election officials, except for any extra officials necessary for such special municipal election.

40-21-06. Reference to party ballot or affiliation in petition of candidate for municipal office prohibited.

No reference may be made to a party ballot nor to the party affiliation of a candidate in a petition to be filed by or in behalf of a candidate for nomination to a public office in any incorporated city in this state.

40-21-07. Petition for nomination of elective official in cities — Signatures required — Withdrawal of petition — Contents.

A candidate for any public office in an incorporated city may be nominated by filing with the city auditor, before four p.m. on the sixty-fourth day before the holding of the election, a petition signed by not less than ten percent of the number of qualified electors who voted for that office in the last city election. A candidate shall also file a statement of interests as required by section 16.1-09-02. If multiple candidates were elected to the office at the preceding city election at which the office was voted upon, the number of signatures must equal at least ten percent of the total votes cast for all candidates divided by the number of candidates that were to be elected to that office at that election. Qualified electors who sign a petition must reside within the ward or precinct in and for which that officer is to be elected, if the election is by wards, or within the corporate limits of the city, if the officer is elected at large. In cities operating under the commission system of government the required petition may be signed by the qualified electors at large residing within the city. If a petition is mailed, it must be in the possession of the city auditor before four p.m. on the sixty-fourth day before the holding of the election. However, no more than three hundred signatures may be required and the signatures may be on separate sheets of paper. Petitions must meet the specifications of nominating petitions pursuant to section 16.1-11-16. If a city election is not combined with a state or county election according to section 40-21-02, a candidate may be nominated by filing the required petition with the city auditor before four p.m. on the sixty-fourth day before the holding of the election. A candidate may withdraw the candidate’s nominating petition at any time before the applicable deadlines for filing nominating petitions provided for in this section. Nominating petitions required by this section may not be circulated or signed prior to January first preceding the election. Any signatures to a nominating petition obtained before that date may not be counted. A nominating petition for a special election may not be circulated or signed more than thirty days before the time when a petition for a special election must be filed. A candidate for city council may run for either the office of mayor or council member but not both in the same election. A candidate for the city commission may run for either the office of city commissioner or the office of president of the board of city commissioners but not both in the same election. A candidate may run for only one office in a city at any given election.

40-21-08. Ballots in municipalities — Arrangement.

The auditor of the city shall place only the names of the persons nominated upon the ballot. The auditor shall arrange the offices upon the ballot in the order in which they are named in the statutes. The auditor shall determine the arrangement of the names of the candidates upon the ballot by conducting a drawing immediately after the candidate filing deadline on the sixty-fourth day before the election. The city auditor shall set the date, time, and location for conducting the drawing and shall give advance notice of the drawing to the candidates involved.

40-21-09. Election districts in council cities — Division and consolidation by ordinance — Ballots to be kept separate by wards.

Each city operating under the council form of government in which council members are elected at large constitutes an election district or voting precinct, and in all other cities each ward constitutes an election district or voting precinct. Whenever the number of electors in any two or more contiguous wards does not exceed one hundred as determined by the number of votes cast at the last city election, the council, by ordinance, may consolidate those two or more wards into one precinct for voting purposes. In any city containing less than four hundred electors as determined by the number of votes cast at the last city election, the council, by ordinance, may consolidate all the wards of the city into one precinct for voting purposes. An ordinance dividing or consolidating wards must be passed and takes effect before the time of giving notice of the election. Wards and precincts established under this section constitute election districts for all state, county, and city elections. In city elections, separate ballot boxes and pollbooks must be provided and kept for each precinct. The terms “wards”, “precincts”, and “election districts” have the same meaning except where two or more wards are consolidated into one precinct for voting purposes or where one ward is divided into more than one precinct for voting purposes. This section does not prohibit the use of one building as the election polling place for more than one ward or the installation of electronic voting systems from separate wards in one building.

40-21-10. Registration of voters.

The governing body of any city may require the registration of voters in any election held or conducted within the municipality at such time and place or places as the governing body may designate.

40-21-11. Clerks appointed to fill vacancies — Oath, powers, and duties of judges and clerks of municipal elections.

When necessary, the judges of election at a municipal election shall appoint clerks to fill vacancies. The judges and clerks of a municipal election shall take the same oath and have the same powers and authority as judges and clerks of general state elections.

40-21-12. Counting ballots — Returns — Canvass of returns by governing body of municipality. [Repealed]

Repealed by S.L. 2005, ch. 185, § 18.

40-21-13. Municipal elections to be governed by rules applicable to county elections — Absent voting.

The manner of conducting, voting at, keeping poll lists, and canvassing votes at municipal elections, recounts, and contests of the results of the elections is governed, as nearly as possible and except as otherwise provided in this chapter, by the laws of this state applicable to elections and contests in the case of county officers. Absent voters’ ballots must be available in municipal elections in accordance with chapter 16.1-07.

40-21-14. City auditor to notify of election or appointments.

The city auditor, within five days after the result of an election is declared or the appointment of an officer is made within the municipality, shall notify each person elected or appointed to municipal office of that person’s election or appointment. Within the same period of time, the city auditor shall also notify the state supreme court of the election or the appointment of any municipal judge or alternate judge.

40-21-15. New election upon failure to elect.

If there is a failure to elect an officer required to be elected, the governing body of the municipality may order a new election.

40-21-16. Special elections conducted in same manner as general elections.

Special municipal elections to fill vacancies or for any other purpose must be held and conducted by the inspectors and judges of election of the several polling places in the same manner and the returns must be made in the same form and manner as at regular municipal elections.

40-21-16.1. City canvassing board — Composition.

For any city election not held in conjunction with a county election, the city canvassing board must be composed of the city auditor, city attorney, mayor or commission president, and two members of the city commission or council, or appointed replacements for any of these officials. An individual who served on an election board during the election may not serve as a representative on the canvassing board for that same election. The city canvassing board must be comprised of at least five members.

40-21-17. Highest number of votes elects in municipal election — Procedure on tie vote.

The person having the highest number of votes for any municipal office shall be declared elected to such office. In case of a tie vote in the election of any municipal officer, a recount must be conducted pursuant to section 16.1-16-01. If a recount results in a tie vote, the choice must be determined by a drawing of names in the presence of the governing body of the municipality and in a manner it directs. A candidate involved in a tie vote may withdraw the candidate’s name from consideration if the candidate is willing to sign a statement to that effect in the presence of and witnessed by the filing officer of the election. If no candidates remain, the office is to be filled according to the rules for filling an office when a vacancy exists.

40-22-01. Power of municipalities to defray expense of improvements by special assessments.

Any municipality, upon complying with the provisions of this chapter, may defray the expense of any or all of the following types of improvements by special assessments:

1. The construction of a water supply system, or a sewerage system, or both, or any part thereof, or any improvement thereto or extension or replacement thereof, including the construction and erection of wells, intakes, pumping stations, settling basins, filtration plants, standpipes, water towers, reservoirs, water mains, sanitary and storm sewer mains and outlets, facilities for the treatment and disposal of sewage and other municipal, industrial, and domestic wastes, and all other appurtenances, contrivances, and structures used or useful for a complete water supply and sewerage system.
2. The improvement of the municipal street system and any part thereof, including any one or more of the processes of acquisition, opening, widening, grading, graveling, paving, repaving, surfacing with tar, asphalt, bituminous, or other appropriate material, resurfacing, resealing, and repairing of any street, highway, avenue, alley, or public place within the municipality, and the construction and reconstruction of overhead pedestrian bridges, pedestrian tunnels, storm sewers, curbs and gutters, sidewalks, and service connections for water and other utilities, and the installation, operation, and maintenance of streetlights and all types of decorative streetlighting, including but not restricted to Christmas streetlighting decorations.
3. The improvement of boulevards and other public places by the planting of trees, the construction of grass plots and the sowing of grass seed therein, and the maintenance and preservation of such improvements by the watering of such trees and grass, the cutting of such grass, and the trimming of such trees, or otherwise in any manner which may appear necessary and proper to the governing body of the municipality.
4. The acquiring of the necessary land and easements and the construction of the necessary works, within and without the municipality, for flood protection of properties within the municipality.
5. The acquiring or leasing of the necessary property and easements and the construction of parking lots, ramps, garages, and other facilities for motor vehicles.

In planning an improvement project of a type specified in any one of the foregoing subsections, the governing body may include in such plans any and all items of work and materials which in its judgment are necessary or reasonably incidental to the completion of an improvement project of such type.

40-22-01.1. Restoration of property damaged in flood control or during a declared disaster or emergency — Special assessments for costs.

When any city has constructed any temporary emergency flood control protection devices or works to protect property located within a portion of a city from flood damage or expended funds for the protection of the city from flood or other peril under chapter 37-17.1 or otherwise, the city may maintain and remove material used in the construction of the temporary emergency flood control protection devices or works and the repair damages to land, buildings, or personal property caused by the operation of its equipment upon the property while in the process of installing or removing the temporary emergency flood protection systems. The city may create by resolution of its governing board a special assessment district encompassing the protected area. Special assessments against the property within the district must be imposed to cover the costs incurred by the city in constructing and maintaining the emergency flood protection devices or works and in removing the material used and in repairing the damages caused by the operation of equipment while installing or removing the temporary emergency flood protection systems. The amount to be assessed must be established by a resolution adopted by the governing board. Special assessments against any property in the district must be determined and made in the same manner as is provided for improvements by special assessments to the extent consistent herewith, and the certification and collection, including lien provisions, applicable to other special assessments are applicable hereto. Provided, however, that the provisions of sections 40-22-15, 40-22-17, and 40-22-18, relating to a resolution of necessity and protests against special assessments, sections 40-22-10, 40-22-11, and 40-22-29, relating to engineers’ reports, plans, and estimates, and section 40-22-19, relating to contract proposals, do not apply to special assessment districts created under this section.

40-22-01.2. Municipal policy providing special assessment determination methods for allocation of assessments among and within classes of property.

Within five months of this section becoming applicable to a city, the governing body of each city with a population exceeding ten thousand shall adopt written policies, after a public hearing for consideration of the policies, which will be applied for cost allocation among properties benefited by a special assessment project. Policies established under this section must provide separately the policy that will be applied for cost allocation for each kind of special assessment and the cost allocation method for residential, commercial, and agricultural property and for any property subject to separate or special assessment factors or assessment rates.

History. S.L. 2015, ch. 281, § 1, eff August 1, 2015.

Effective Date.

This section became effective August 1, 2015.

40-22-01.3. Power of municipality to defray expense of improvements — Infrastructure fee.

1. Notwithstanding section 40-22-01, a municipality may levy and collect an infrastructure fee. The fee must replace a general special assessment on all property for payment of infrastructure maintenance costs through a utility bill issued by a municipality. The money collected under this subsection may not be used for any purpose other than infrastructure maintenance costs. If a municipality levies an infrastructure fee, the municipality also may levy and collect green field special assessments.
2. As used in this section:
   1. “General special assessments” means special assessments levied for the purpose of maintaining existing roads and infrastructure and special assessments levied for the construction or repair of arterial roads and infrastructure that provide a benefit to the entire community.
   2. “Green field special assessments” means special assessments levied for infrastructure costs associated with the development of agricultural or undeveloped property.

40-22-02. Sewerage system — Establishment, maintenance, and alteration — Vote required.

The governing body of any municipality may establish, maintain, and alter a general system of sewerage for the municipality in such manner and under such regulations as it shall deem expedient and proper. No action shall be taken for the establishment of a sewerage system except upon the affirmative vote of two-thirds of the members of the governing body. When a sewerage system is established, all measures necessary for the construction of sewers as a part of that system may be taken by a vote of the majority of the governing body.

40-22-03. Acquiring property for sewers, water mains, and water supply beyond corporate limits.

When it is necessary to conduct the sewage of a municipality beyond the municipal limits or to acquire a supply of water beyond such limits and to construct mains or aqueducts to conduct such water to the municipal limits, the governing body, by grant, purchase, or condemnation proceedings, may acquire private property over which to construct the sewer, or upon and over which to establish facilities for obtaining and storing such water supply and aqueducts or mains for conducting the same to the corporate limits. Public property may likewise be acquired for such purposes by grant or purchase from the government or public corporation owning the same. The cost of acquiring such property and of building such sewer or other facilities upon or over the property may be included in the cost of construction or acquisition of a municipal waterworks or sewerage system and in the special assessments levied therefor, or the entirety of such a project may be completed as an improvement to an existing waterworks or sewage system and special assessments may be levied therefor in accordance with the provisions of this title.

40-22-04. Discharge of sewage — Regulations governing. [Repealed]

Repealed by S.L. 1975, ch. 575, § 2.

40-22-05. Condemnation of land and rights of way for special improvements — Taking of possession — Trial — Appeal — Vacation of judgment.

Whenever property required to make any improvement authorized by this chapter is to be taken by condemnation proceedings, the court, upon request by resolution of the governing body of the municipality making such improvement, shall call a special term of court for the trial of the proceedings and may summon a jury for the trial whenever necessary. The proceedings shall be instituted and prosecuted in accordance with the provisions of chapter 32-15, except that when the interest sought to be acquired is a right of way for the opening, laying out, widening, or enlargement of any street, highway, avenue, boulevard, or alley in the municipality, or for the laying of any main, pipe, ditch, canal, aqueduct, or flume for conducting water, storm water, or sewage, whether within or without the municipality, the municipality may make an offer to purchase the right of way and may deposit the amount of the offer with the clerk of the district court of the county wherein the right of way is located, and may thereupon take possession of the right of way forthwith. The offer shall be made by resolution of the governing body of the municipality, a copy of which shall be attached to the complaint filed with said clerk of court in accordance with section 32-15-18. The clerk shall immediately notify the owner or owners of the land wherein the right of way is located of the deposit, by causing a notice to be appended to the summons when served and published in said proceedings as provided in the North Dakota Rules of Civil Procedure, stating the amount deposited or agreed in the resolution to be deposited. The owner may thereupon appeal to the court by filing an answer to the complaint in the manner provided in the North Dakota Rules of Civil Procedure, and may have a jury trial, unless a jury be waived, to determine the damages. However, upon due proof of the service of said notice and summons and upon deposit of the aggregate sum agreed in said resolution, the court may without further notice make and enter an order determining the municipality to be entitled to take immediate possession of the right of way. If under laws of the United States proceedings for the acquisition of any right of way are required to be instituted in or removed to a federal court, the proceedings may be taken in that court in the same manner and with the same effect as provided in this section and the clerk of the district court of the county in which the right of way is located shall perform any and all of the duties set forth in this section, if directed to do so by the federal court. The proceedings shall be determined as speedily as practicable. An appeal from a judgment in the condemnation proceedings shall be taken within sixty days after the entry of the judgment, and the appeal shall be given preference by the supreme court over all other civil cases except election contests. No final judgment in the condemnation proceedings awarding damages to property used by a municipality for street, sewer, or other purposes shall be vacated or set aside if the municipality shall pay to the defendant, or shall pay into court for the defendant, in cash, the amount so awarded. The municipality may levy special assessments to pay all or any part of the judgment and at the time of the next annual tax levy may levy a general tax for the payment of the part of the judgment as is not to be paid by special assessment. For the purpose of providing funds for the payment of the judgment, or for the deposit of the amount offered for purchase of a right of way as provided above, the municipality may issue warrants on the fund of the improvement district as provided in section 40-24-19, in anticipation of the levy and collection of special assessments and of any taxes or revenues to be appropriated to the fund in accordance with the provisions of this title. The warrants may be issued upon the commencement of the condemnation proceedings or at any time thereafter. Upon the failure of the municipality to make payment in accordance with this section, the judgment in the condemnation proceedings may be vacated.

40-22-06. Agreement with state agency, county, water resource district, or federal agency for certain improvements.

Any municipality in this state, through its governing body, may enter into an agreement with any state agency, the board of county commissioners, or water resource board of the county in which the municipality is located, or a joint water resource board which jurisdiction includes the municipality, or any federal agency, or any combination thereof, for the improvement of streets, sewers, water mains, flood control projects, or of any of such facilities, under the terms of which the contract for such work is to be let by the state agency, the board of county commissioners, water resource board, joint water resource board, the federal agency, or any combination thereof, and for this purpose may create a special improvement district or districts. No such agreement may be entered into until and unless the governing body certifies that it has obtained authority in accordance with this section to issue improvement warrants to finance the amount that the municipality will be obligated to pay thereunder, over and above the amount of any bonds which have been voted and any other funds which are on hand and properly available for such purpose. If any portion of the cost is to be paid by the levy of special assessments, the governing body shall by resolution declare the necessity of the improvement, setting forth its general nature, the approximate amount or fraction of the cost which the municipality will be obligated to pay under the agreement, and the fact that this amount, or such lesser amount as the governing body may specify, is proposed to be paid by the levy of special assessments upon property determined to be benefited by the improvement. Any portion of the cost for which the municipality is obligated and which is not assessed upon benefited property or paid from other funds may be agreed to be paid by general taxation of all the taxable property in the municipality, if approval for the incurring of such debt is obtained and provision for the payment thereof is made in accordance with section 40-24-10. The resolution of necessity must be published once each week for two consecutive weeks in the official newspaper of the municipality and protests may be filed and their sufficiency to bar the improvement must be determined in accordance with sections 40-22-16 through 40-22-18. However, if under the terms of the resolution of necessity the portion of the cost of the project to be assessed upon benefited property does not exceed twenty-five percent of the total cost to be paid by the state agency, county, water resource board, joint water resource board, federal agency, and municipality, written protests by the owners of seventy-five percent of the property liable to be assessed for the improvement shall be required to bar further proceedings with reference thereto. At any time after the period for filing protests has expired and the protests filed, if any, have been heard and determined to be insufficient, the governing body may issue warrants on the fund of the improvement in the total amount for which the municipality is obligated under the agreement, and may cause to be certified to the special assessment commission that portion of the cost to be borne by the property owners within the district, and the assessment of such amount may be made and such warrants may be issued as in other cases provided for in chapters 40-23 and 40-24.

40-22-06.1. Cities with population of over ten thousand may enter into agreement with highway department or county for certain improvements. [Repealed]

Repealed by S.L. 1963, ch. 294, § 2.

40-22-07. Dispensing with preliminary requirements in making improvements in conjunction with highway department or county. [Repealed]

Repealed by S.L. 1963, ch. 294, § 2.

40-22-08. Improvement districts to be created.

For the purpose of making an improvement project of one of the types specified in section 40-22-01 and defraying the cost thereof by special assessments, a municipality may create water districts, sewer districts, water and sewer districts, street improvement districts, boulevard improvement districts, flood protection districts, and parking districts, and may extend any such district when necessary. The appropriate special improvement district may be created by ordinance or resolution. The district shall be designated by a name appropriate to the type of improvement for the making of which it is created, and by a number distinguishing it from other improvement districts. Nothing herein, however, shall prevent a municipality from making and financing any improvement and levying special assessments therefor under any alternate procedure set forth in this title.

40-22-09. Size and form of improvement districts — Regulations governing.

Any improvement district created by a municipality may embrace two or more separate property areas. Each improvement district shall be of such size and form as to include all properties which in the judgment of the governing body, after consultation with the engineer planning the improvement, will be benefited by the construction of the improvement project which is proposed to be made in or for such district, or by any portion or portions of such project. A single district may be created for an improvement of the type specified in any one of the subsections of section 40-22-01, notwithstanding any lack of uniformity among the types, items, or quantities of work and materials to be used at particular locations throughout the district. The jurisdiction of a municipality to make, finance, and assess the cost of any improvement project shall not be impaired by any lack of commonness, unity, or singleness of the location, purpose, or character of the improvement, or by the fact that any one or more of the properties included in the district is subsequently determined not to be benefited by the improvement, or by a particular portion thereof, and is not assessed therefor. There may be omitted from a water or sewer district, in the discretion of the governing body, properties within the corporate limits which are benefited by the improvement therein but do not abut upon a water or sewer main, without prejudice to the right and power of the municipality subsequently to assess such properties to the extent and in the manner permitted by law. The governing body may by resolution enlarge an improvement district in which an improvement is proposed or under construction upon receipt of a petition therefor signed by the owners of three-fourths of the area to be added to the district.

40-22-10. Engineer’s report required — Contents.

1. After a special improvement district has been created, the governing body of a municipality, if the governing body deems it necessary to make any of the improvements set out in section 40-22-01 in the manner provided in this chapter, shall direct the engineer for the municipality, or some other competent engineer if the municipality does not have a competent municipal engineer, to prepare a report as to the general nature, purpose, and feasibility of the proposed improvement and an estimate of the probable cost of the improvement, including:
   1. A separate statement of the estimated cost of the work for which proposals must be advertised under section 40-22-19; and
   2. A separate statement of all other items of estimated cost not included under subsection 1 which are anticipated to be included in the cost of the improvement under sections 40-23-05 and 40-23.1-04.
2. An engineer’s report under this section also must include information describing how the special assessment district was created including any considerations as to which properties are determined to receive a benefit from the proposed improvement.

40-22-11. Approval of plans, specifications, and estimates — Approval establishes grade of street.

At any time after receiving the engineer’s report required by section 40-22-10, the governing body may direct the engineer to prepare detailed plans and specifications for construction of the improvement. The plans and specifications shall be approved by a resolution of the governing body of the municipality. If the plans and specifications include the establishment of the grade of a street and such grade has not been established previously by ordinance, the resolution approving the plans, specifications, and estimates shall constitute an establishment of the grade.

40-22-12. Requirements of plans, specifications, and estimates when improvement is paving or beautification of streets.

If an improvement to be financed by special assessments consists in paving or repaving any street, alley, or public place, the governing body of the municipality may require the plans, specifications, and estimates for the improvement to be made for one kind of pavement or several different kinds of pavement as it may deem advisable. If the contemplated improvement consists of planting trees, constructing grass plots, sowing grass seed thereon, or otherwise parking or beautifying any of the streets, highways, avenues, alleys, lanes, or other public grounds within the municipal limits, the governing body may require the plans, specifications, and estimates to show the probable costs of making, constructing, or maintaining such improvements or any of them.

40-22-13. Municipal engineer to retain copy of plans, specifications, and estimates — Sale of copies.

The engineer acting for the municipality shall retain a copy of the plans, specifications, and estimates which have been prepared for any improvement on file in the engineer’s office. The engineer shall furnish to any person applying therefor copies of the same, and, if the engineer is an officer of the municipality, the engineer may charge one dollar an hour for the time necessarily employed in making such copies.

40-22-14. Plans, specifications, and estimates filed in office of city auditor.

The plans, specifications, and estimates shall be the property of the municipality and shall be filed in the office of the city auditor and shall remain on file in the city auditor’s office subject to inspection by any interested person.

40-22-15. Resolution declaring improvements necessary — Exception for sewer and water improvements — Contents of resolution — Publication of resolution.

After the engineer’s report required by section 40-22-10 has been filed and approved, the governing body of the municipality, by resolution, shall declare that it is necessary to make the improvements described therein. However, a resolution is not required if the improvement constitutes a water or sewer improvement as described in subsection 1 of section 40-22-01, nor if the governing body determines by resolution that a written petition for the improvement, signed by the owners of a majority of the area of the property included within the district, has been received. The resolution must refer intelligibly to the engineer’s report and include a map of the municipality showing the proposed improvement districts. The resolution must then be published once each week for two consecutive weeks in the official newspaper of the municipality.

40-22-16. Sewer or water improvements and parking lots in municipalities may be paid for by service charges.

A municipality constructing a sewer or water improvement or a parking lot under the special assessment method may resolve in the resolution or ordinance required by section 40-22-08 in the case of a sewer or water improvement, or in the resolution required by section 40-22-15 in the case of a parking lot, that a portion of the cost of the improvement shall be raised by service charges for the use of the improvement, and of the utility or parking system of which it forms a part. If the municipality so resolves, it may determine, in its resolutions, ordinances, and other proceedings relating to the levying of special assessments and the issuing of warrants to pay the cost of such improvement, that a specified portion or all of such cost shall be assessed specially against any property specially benefited and may cause to be assessed only the portion so determined. In such event the entire remainder of such cost, including interest as well as principal of any warrants issued, over and above the amount of special assessments actually collected and received from time to time in the fund of the improvement district, plus any general taxes pledged in accordance with section 40-24-10 and similarly collected and received, shall be paid from the net revenues derived from said service charges; provided, that nothing herein shall affect the power and duty of the governing body to levy a tax for the payment of a deficiency in the improvement district fund at the times and under the conditions set forth in section 40-26-08. All of the applicable provisions of this title relating to special assessments shall be applicable to such improvements except as to the portion of the cost thereof resolved or ordained to be paid by service charges. The governing body of the municipality shall provide for the establishment, imposition, and collection of service charges for the services furnished by such improvement and the utility or parking system of which it forms a part, and in connection therewith it shall have all the rights and powers respecting such service charges as it would have with respect to like matters if such improvement were made in accordance with chapter 40-35. The net revenues derived from the imposition and collection of such service charges, or such portion thereof as shall be determined by the governing body in said resolutions and ordinances, shall be paid into the appropriate improvement district funds created pursuant to section 40-24-18. Such revenues when collected shall be used and applied in the same manner as moneys paid into such funds from the collection of special assessments. In its resolutions and ordinances, the governing body of any municipality issuing warrants to finance any such improvement may establish an assessment reserve in the fund of the improvement district, to which it may appropriate net revenues of the utility or system from time to time received in excess of amounts required, with special assessments and taxes then on hand, to meet the principal and interest next due on such warrants. Prior to November first of any year, the governing body may by resolution determine the proportion which the amount then on hand in said assessment reserve, and irrevocably appropriated to the payment of said warrant, bears to the aggregate amount of the installment of the special assessments and taxes levied for the improvement which is payable in the following year, including interest thereon, and the governing body may direct the county auditor to reduce, by not more than a proportionate amount, the total of such installment and interest which would otherwise be placed upon the tax list of the municipality for the current year, against each lot and tract of land assessed or taxed for the improvement. If such installment of the special assessment on any property has been prepaid, the governing body may direct the city auditor to refund, out of the assessment reserve, to the owner of the property at the time of such refund as indicated in the records of the recorder of the county, a sum not exceeding a similar proportion of the principal amount of such installment, excluding interest.

40-22-17. Protest against resolution of necessity — Meeting to hear protest.

If, within thirty days after the first publication of the resolution declaring the necessity of an improvement project of the type specified in any one of the subsections of section 40-22-01, the owners of any property within the improvement district file written protests describing the property which is the subject of the protest with the city auditor protesting against the adoption of said resolution, the governing body of the municipality, at its next meeting after the expiration of the time for filing such protests, shall hear and determine the sufficiency thereof.

40-22-18. Protest bar to proceeding — Invalid or insufficient protests — Payment of costs — Tax levy.

If the governing body finds the protests to contain the names of the owners of a majority of the area of the property included within the improvement district, the protests shall be a bar against proceeding with any special assessment for the improvement project. However, the protests do not bar proceeding with the improvement project described in the plans and specifications if the governing body funds the project with funds other than special assessments. If the governing body finds the protests to contain the names of the owners of a majority of any separate property area included within the district, the protests shall be a bar against proceeding with special assessments to be assessed in whole or in part upon property within the area, but shall not bar against proceeding with the improvement project or assessing the cost thereof against other areas within the district, unless the protests represent a majority of the area of the entire district. If the protests represent a majority of the area of the entire district, the protests bar any special assessment for the improvement project. Property owned by a political subdivision is not included when determining whether the protests contain the names of the owners of a majority of the area included within the improvement district or a separate property area unless the political subdivision filed a protest.

The termination of proceedings, by reason of protest or otherwise, shall not relieve the municipality of responsibility for payment of costs theretofore incurred and for payment of the costs a municipality may, if funds on hand and available for the purpose are insufficient, issue its certificates of indebtedness or warrants, or levy a tax which shall be considered a tax for a portion of the cost of a special improvement project by general taxation within the meaning of section 57-15-10. If the protests are found to be insufficient or invalid, the governing body may cause the improvement to be made and may contract or otherwise provide in accordance with this title for the construction thereof and the acquisition of property required in connection therewith and may levy and collect assessments therefor.

40-22-19. Contract proposals.

Proposals for the work of making improvements provided for in this chapter must be advertised for by the governing body in the official newspaper of the municipality once each week for two consecutive weeks. All other provisions for proposals under this chapter are governed by chapter 48-01.2.

40-22-20. Bid to be accompanied by a bond — Bond retained upon failure of bidder to contract — Amount of bond. [Repealed]

Repealed by S.L. 1995, ch. 443, § 29.

40-22-21. Bidder’s bond — Required — Amount. [Repealed]

Repealed by S.L. 1971, ch. 403, § 2.

40-22-22. Execution of bidder’s bond. [Repealed]

Repealed by S.L. 1995, ch. 443, § 29.

40-22-23. Conditions of bidder’s bond. [Repealed]

Repealed by S.L. 1995, ch. 443, § 29.

40-22-24. Bids — Filing — Sealing — Endorsing — Opening — Considering. [Repealed]

Repealed by S.L. 1995, ch. 443, § 29.

40-22-25. Opening of bids — Bids to be entered on minutes — Final action on bids to be deferred. [Repealed]

Repealed by S.L. 1995, ch. 443, § 29.

40-22-26. Petition by property owners to have paving of certain material — Contents.

If the governing body has called for bids on more than one kind of pavement, after the opening of the bids in connection with an improvement consisting of paving or repaving and before the meeting of the governing body to consider the same, the owners of a majority of the property liable to be specially assessed for such paving or repaving may file a written petition with the city auditor indicating that the petitioners have a preference for a certain type of paving or paving material for which bids have been invited. Upon receiving such petition, it shall be obligatory upon the governing body to cause the paving or repaving to be constructed of a kind of paving material indicated in the petition. The petition may consist of a single petition or several separate petitions signed by the owners of a majority of the property liable to be specially assessed for such improvement or by their authorized agents.

40-22-27. Rejection of bids — Readvertising for bids or construction by municipality without contract — Reevaluation of project. [Repealed]

Repealed by S.L. 1995, ch. 443, § 29.

40-22-28. Determination of kind of paving after bids are considered.

If the contemplated improvement consists of paving or repaving, the governing body, after it has opened and considered the bids, shall determine by resolution the kind or kinds of pavement to be laid, and thereafter may proceed to award the necessary contract or contracts.

40-22-29. Engineer’s statement of estimated cost required — Governing body to enter into contracts.

Before adopting or rejecting any bid filed under the provisions of this chapter, the governing body shall require the engineer for the municipality to make a careful and detailed statement of the estimated cost of the work for which proposals were advertised under section 40-22-19. The governing body may not award the contract to any bidder if the engineer’s estimate prepared pursuant to this section exceeds the engineer’s estimate of the cost of the work prepared pursuant to subsection 1 of section 40-22-10 by forty percent or more.

40-22-30. Contractor’s bond — Execution. [Repealed]

Repealed by S.L. 1995, ch. 443, § 29.

40-22-31. Conditions of contractor’s bond. [Repealed]

Repealed by S.L. 1995, ch. 443, § 29.

40-22-32. Approval of bonds — Return of bidder’s bond. [Repealed]

Repealed by S.L. 1995, ch. 443, § 29.

40-22-33. Failure to execute contractor’s bond. [Repealed]

Repealed by S.L. 1995, ch. 443, § 29.

40-22-34. Insufficiency of bonds — New bonds required — Failure to furnish. [Repealed]

Repealed by S.L. 1995, ch. 443, § 29.

40-22-35. Execution and filing of contract.

All contracts entered into for any work provided for in this chapter shall be entered into in the name of the municipality and shall be executed on the part of the municipality by the executive officer and countersigned by the auditor. After the contract is signed by the contractor, it shall be filed in the office of the city auditor.

40-22-36. Contracts — Conditions and terms.

A contract let under the provisions of this chapter shall require the work to be done pursuant to the plans and specifications on file in the office of the city auditor, subject to the approval of the engineer acting for the municipality, and shall provide further:

1. That the governing body shall have the right to suspend the work at any time for improper construction and to relet the contract therefor or to order a reconstruction of the work as to any part thereof improperly done.
2. The time within which the work shall be completed.
3. The period of time for which the work shall be guaranteed as to workmanship and materials.
4. The fund from which the contract price is to be paid by the municipality.
5. That the consideration expressed in the contract is payable only in warrants drawn on the fund described in the contract.
6. That the municipality assumes and incurs no general liability under such contract.
7. That failure of the engineer to reject work and materials which are not up to specifications and acceptance of the job by the engineer shall not release the contractor from liability for any failure on the contractor’s part to perform work or furnish materials in accordance with the plans and specifications.

The engineer acting for the municipality shall supervise and inspect the work during its progress. In addition to any rights which a municipality may have under its contract for construction of part or all of an improvement after a contract has been awarded and before work thereunder has been completed a municipality may, with the consent of the contractor and without advertising for bids, order additional work done by that contractor of the same character as that which was contracted for, whether within or without the improvement district for which the original contract was made, and upon the same terms and conditions specified in the original contract except as to time of performance, and at the same prices for the additional work provided that the total price payable to the contractor for such additional work shall not exceed twenty percent of the amount estimated by the engineer for the municipality to be payable for that character of work under the original contract.

40-22-37. Contractor shall be paid during progress of work — Retainage — Failure to pay — Rate of interest — Investment of retainage.

If the contractor to whom a contract is let properly performs the work therein designated, the governing body, at least once in each calendar month during the continuance of such contract work, shall meet, receive, and consider estimates furnished by the agent, engineer, or architect acting for the municipality or if not so furnished, then by the contractor, and shall allow such estimates in an amount of the estimated value of the labor and material furnished upon such contract, and of the material then upon the ground for use in such contract, subject to retentions equal to ten percent of each estimate presented until such time as the project is fifty percent completed, with no further retainage on estimates during the continuance of the contract. The governing body may, however, upon completion of ninety-five percent of the contract according to the estimates, pay to the contractor ninety-five percent of the amount retained from previous estimates. Any amount retained after ninety-five percent completion of the contract shall be paid to the contractor in such amounts and at such times as are approved by the municipality, upon estimates by its agent, engineer, or architect or the contractor, with final payment of all moneys due to the contractor to be made immediately following completion and acceptance of the project. The governing body, immediately after considering and allowing any such estimate, shall certify and forward the same to the city auditor or other official having the power to draw warrants, who forthwith shall draw a warrant upon the proper fund and transmit the same promptly to the contractor entitled thereto. In case the governing body shall fail or neglect to receive and allow such estimate or certify any estimate or final payment upon completion and acceptance or the proper officer required to issue such warrant shall fail or neglect to issue a warrant as provided herein, for a period of more than thirty days from the date of such estimate or completion date, then said estimate or final payment, together with any retainage properly payable, shall draw interest from its date at the rate per annum of two percentage points below the Bank of North Dakota prime interest rate as set thirty days from the date of such estimate or completion date until the issuance of a proper warrant therefor. Such interest shall be computed and added to the face of said estimate, final payment, or retainage by the officer required to issue such warrant, shall be included in the warrant when drawn, and shall be charged to the fund from which payment for the improvement is to be made. On the amounts of estimates retained, as provided herein, the governing board, authorized committee, or public body in charge of such work may invest or deposit the retained amounts in any financial association or institution in North Dakota earning interest or dividends for the benefit of the contractor. Any amounts so invested or deposited shall remain in the name of the governing board, authorized committee, or public body in charge of such work until final payment of all money due to the contractor is to be made. Further, no contractor shall use such account in any manner whatsoever until released and received by the contractor upon completion of the contract.

40-22-38. Application of chapter to waterworks and water mains — Acquisition of waterworks, sewage treatment and disposal plants, and sewer systems.

The provisions of this chapter relating to water mains and waterworks apply only to municipalities that own or contemplate owning a system of waterworks and water mains. In case of the purchase of a waterworks system or of a sewage treatment or disposal plant or of a system of sewers, either by eminent domain proceedings subject to chapter 32-15, or otherwise, a municipality may create improvement districts, direct the preparation of plans and specifications, adopt a resolution declaring the purchase of such facilities necessary, and take all other proceedings prescribed by this chapter which would be taken in case of the construction of such facilities by the municipality itself for the purpose of defraying the cost thereof by special assessment of the property benefited thereby. The property benefited may be specially assessed for the purchase of such facilities, either separately or as a part of a new system, the same as if said facilities were constructed entirely anew.

40-22-39. Abbreviations, letters, or figures may be used in proceedings for levy and collection of special assessments.

In all proceedings for the levy and collection of special assessments, abbreviations, letters, and figures may be used to denote additions, lots, lands, blocks, sections, townships, ranges, and parts thereof, years, days of the month, and amounts of money.

40-22-40. City auditor to keep complete record of improvements — Record as evidence.

The city auditor shall keep in the city auditor’s office a complete record of all the proceedings taken in the matter of making any improvements under this chapter. Such record shall include all reports and the confirmations thereof, all petitions, orders, appointments of commissioners, notices and proofs of publications, and resolutions of the governing body. Such record, a certified transcript thereof, or the original papers, proofs of publications, orders, or resolutions on file in such office shall be admitted in evidence in any court or place in this state without further proof as evidence of the facts therein contained.

40-22-41. Validation. [Repealed]

Repealed by omission from this code.

40-22-42. Confirmation of certain proceedings for city and village improvements. [Repealed]

Repealed by omission from this code.

40-22-43. Defects and irregularities in improvement proceedings are not fatal.

Defects and irregularities in any proceedings had or to be had under this chapter relating to municipal improvements by the special assessment method, when the proceedings are for a lawful purpose and are unaffected by fraud and do not violate any constitutional limitation or restriction, shall not invalidate such proceedings, and no action shall be commenced or maintained and no defense or counterclaim in any action shall be recognized in the courts of this state founded on any such defects or irregularities in such proceedings, unless commenced within thirty days of the adoption of the resolution of the governing board awarding the sale of warrants to finance the improvement.

40-22-44. Discontinuance of municipal parking lots.

The governing body of a municipality may, if it deems it in the best interests of the municipality, discontinue the operation of a municipal parking lot when there exists a higher and better use for the property. If any portion of the cost of such parking lot has been paid for by special assessment, the governing body shall, prior to making any determination to discontinue, hold a public hearing concerning the continuance or discontinuance of such parking lot. The governing body shall cause to be published once each week for two consecutive weeks in the official newspaper of the municipality a notice of the time when and the place where the governing body will meet to conduct the hearing required by this section. If the governing body, after public hearing, determines that the parking lot may be put to a higher and better use, the governing body is hereby authorized to take the necessary steps to effectuate that use. For this purpose, the governing body is authorized to, but not limited to, enter into and complete negotiations for the sale of the parking lot in question.

40-22-45. Equalization of original assessment.

Whenever any portion of the cost of a parking lot which is to be discontinued has been paid for by special assessment, the useful life of the parking lot shall be determined by the governing body. If the period of time determined to be the useful life of the parking lot has not completely elapsed, the governing body of the municipality shall direct the cancellation of uncollected installments of special assessments previously levied for the same improvement, and the refund of installments paid, plus interest calculated at four and one-half percent per annum on the refunded prepaid installments, from the general fund of the municipality to the extent determined by it to be necessary to make the original assessments and the subsequent assessments bear as nearly as possible the same relation to the total benefits derived from the improvement by the respective properties assessed.

40-22-46. Payment of outstanding warrants — Deposits of surplus in general fund — General fund liable for any outstanding warrants.

Upon the discontinuance of any municipal parking lot under the authority of sections 40-22-44 and 40-22-45, the governing body shall apply the proceeds from the sale of such property, if such property is sold, to the special assessment fund created to bear the cost of creating the parking lot. If there is any surplus after all of the outstanding special assessment warrants or bonds are redeemed, the surplus shall be transferred to the general fund of the municipality. If the proceeds from the sale of such property, if such property is sold, are insufficient to cover the cost of redeeming the outstanding special assessment warrants or bonds, the governing body shall provide for the payment of said warrants or bonds out of the general fund of the municipality.

40-22.1-01. Improvements by special assessments for business promotion.

A municipality may defray the expense of improvements by special assessments for the promotion of business activity and new business development through any means not inconsistent with the purposes of this chapter, including advertising, public information, marketing, maintenance and decoration of public places, promotion of public events, furnishing of music in any public place, providing professional management, planning, and promotion, and the general promotion of trade activities. The governing body of the municipality may make and execute necessary or convenient agreements to exercise the powers and functions under this chapter, including contracts with any entity. In planning an improvement project under this chapter the governing body may include any work and materials which are deemed necessary or reasonably incidental to the project. A municipality may not issue warrants, bonds, or any other form of indebtedness in anticipation of the levy and collection of assessments under this chapter.

40-22.1-02. Improvement districts to be created.

For an improvement project under section 40-22.1-01 and defraying the costs of the project by special assessments, a municipality may create and alter a business improvement district by ordinance or resolution. The governing body of the municipality shall designate the district by an appropriate name and by a number distinguishing it from other improvement districts. A municipality may make and finance any improvement and levy special assessments for the improvement under any alternate procedure in this title. If the proposal for creation of an improvement project under this chapter is made by any person, group, or entity that is not an officer, board, or agency of the municipality, the person, group, or entity shall file a bond or other sufficient security, payable to the municipality, to defray all costs incurred if the improvement project is later barred under section 40-22.1-08. The bond or other sufficient security must be filed with the city auditor prior to the initiation of any further proceedings under this chapter. The governing body of the municipality shall determine the amount and form of the bond or other sufficient security.

40-22.1-03. Size and form of improvement district — Regulations governing.

Any business improvement district created by a municipality may embrace two or more separate property areas. A business improvement district must include all properties which in the judgment of the governing body, after consultation with the city auditor or city auditor’s designee planning the improvement, will be benefited by the creation of all or a portion of the business improvement project. A district may be created without uniformity among the types, items, or quantities of work and materials to be used at particular locations throughout the district. The jurisdiction of a municipality to make, finance, and assess the cost of any improvement project may not be impaired by any lack of commonness, unity, or singleness of the location, purpose, or character of the improvement, or by the fact that any one or more of the properties included in the district is subsequently determined not to be benefited by the improvement, or by a particular portion of the improvement. Upon receipt of a petition signed by the owners of three-fourths of the area to be added to a business improvement district in which an improvement is proposed or created, the governing body may enlarge the district. Any district created under this chapter shall include only property devoted, in whole or in part, to commercial or business use.

40-22.1-04. Auditor’s report required — Contents.

After a business improvement district has been created, the governing body of a municipality, to make any of the improvements set out in section 40-22.1-01 in the manner provided in this chapter, shall direct the city auditor for the municipality or some other person, group, or entity to prepare a report as to the general nature, purpose, and feasibility of the proposed improvement and an estimate of the probable cost of the work.

40-22.1-05. Approval of plans, specifications, and estimates.

At any time after receiving the report required by section 40-22.1-04, the governing body may direct the city auditor or other person, group, or other entity preparing the report to prepare detailed plans and specifications concerning the improvement. The plans and specifications must be approved by a resolution of the governing body of the municipality. The plans, specifications, and estimates are the property of the municipality and must be filed in the office of the city auditor and shall remain on file in that office subject to inspection by the public.

40-22.1-06. Resolution declaring improvements necessary — Contents of resolution — Publication of resolution.

After the report required by section 40-22.1-04 has been filed and approved, the governing body of the municipality shall declare by resolution that it is necessary to make the improvements. A resolution is not required if the governing body determines by resolution that a written petition for the improvement, signed by the owners of a majority of the area of the property included within a district, has been received. The resolution must refer intelligibly to the report and must include a map of the municipality showing the proposed business improvement district. The resolution must be published once each week for two consecutive weeks in the official newspaper of the municipality.

40-22.1-07. Protest against resolution of necessity — Meeting to hear protest.

If, within thirty days after the first publication of the resolution declaring the necessity of a business improvement project, the owners of any property within the improvement district file written protest with the city auditor against the adoption of the resolution and describing the property which is the subject of the protest, the governing body of the municipality, at its next meeting after the expiration of the time for filing protests, shall hear and determine the sufficiency of the protests.

40-22.1-08. Protest bar to proceeding — Invalid or insufficient protest — Payment of costs — Tax levy.

If the governing body finds the protest to contain the names of the owners of one-third or more of the area of the property included within the business improvement district, the protest bars proceeding further with the improvement project described in the plans and specifications. If the governing body finds the protest to contain the names of the owners of one-third or more of any separate property area included within the district, the protest bars proceeding with the applicable portion of the improvement project, but does not bar proceeding with the remainder of the improvement project or assessing the cost of the improvement project against other areas within the district, unless the protest represents one-third or more of the area of the entire district. Termination of proceedings does not relieve the municipality of responsibility for payment of costs incurred. The municipality is not responsible for payment of costs incurred if the improvement project is proposed by any person, group, or entity that is not an officer, board, or agency of the municipality. Payment of the costs incurred for such a barred improvement project must be as provided in section 40-22.1-02. For payment of costs incurred for a barred improvement project proposed by a municipality, the municipality may, if available funds are insufficient, issue its certificates of indebtedness or warrants, or levy a tax which shall be considered a tax for a portion of the costs of a special improvement project by general taxation within the meaning of section 57-15-10. If the protests are found to be insufficient or invalid, the governing body may cause the improvement to be made, levy and collect necessary assessments, and contract for the improvement and acquisition of necessary property or services.

40-22.1-09. Execution and filing of contracts.

All contracts under this chapter must be entered into in the name of the municipality and must be executed for the municipality by the executive officer and countersigned by the auditor. After the contract is signed by the other party, it must be filed in the office of the city auditor.

40-22.1-10. Contracts — Conditions and terms.

A contract executed under this chapter must require the work to be done pursuant to the plans and specifications on file in the office of the city auditor, subject to the approval of the city auditor acting for the municipality, and must provide:

1. The governing body may suspend the work at any time for improper performance and relet the contract or order reperformance of all or any of the work improperly done.
2. The time within which the work is to be completed.
3. The period of time for which the work must be guaranteed or warranted.
4. The fund from which the contract price is to be paid by the municipality.
5. That the consideration expressed in the contract is payable only in warrants drawn on the fund described in the contract.
6. That the municipality assumes and incurs no general liability under the contract.
7. That the failure of the city auditor to reject work and materials which are not up to specifications and acceptance of the job by the city auditor does not release the party from liability for any failure to perform work or furnish materials in accordance with the plans and specifications.

The city auditor acting for the municipality shall supervise and inspect the work during its progress. In addition to any rights which a municipality may have under its contract for establishment and operation of part or all of a business improvement after a contract has been awarded and before contract work has been completed, a municipality may, with the consent of the other party and without advertising for bids, order additional work done by that party of the same character as that which was contracted for, whether within or without the improvement district for which the original contract was made, and upon the same terms and conditions specified in the original contract except as to time of performance, and at the same prices for the additional work; provided, that the total price payable to said party for such additional work may not exceed twenty percent of the amount estimated by the city auditor for the municipality to be payable for that character of work under the original contract.

40-22.1-11. Abbreviations, letters, and figures may be used in proceedings for levy and collection of special assessments.

In all proceedings for the levy and collection of special assessments abbreviations, letters, and figures may be used to denote full or partial additions, lots, blocks, sections, townships, and ranges or years, days of the month, and amounts of money.

40-22.1-12. City auditor to keep complete record of improvements — Record as evidence.

The city auditor shall keep a complete record of all the proceedings in the matter of making any improvements under this chapter. The records must include all reports and confirmations, all petitions, orders, appointments of commissioners, notices and proofs of publication, and resolutions of the governing body. The records, a certified transcript of the records, or the original papers, proofs, publications, orders, or resolutions on file in the auditor’s office may be admitted in evidence in any court or place in this state without further proof as evidence of the facts they contain.

40-22.1-13. Defects and irregularities in improvement proceedings are not fatal.

If the proceedings are for a lawful purpose, unaffected by fraud, and do not violate any constitutional limitation or restriction, defects or irregularities in proceedings under this chapter do not invalidate the proceedings. No action may be commenced or maintained and no defense or counterclaim in any action may be recognized in the courts of this state founded on any defects or irregularities in proceedings under this chapter, unless commenced within thirty days of the adoption of the resolution of the governing body awarding the sale of warrants to finance the improvement.

40-22.1-14. City auditor’s statement of estimated cost required — Governing body to enter into contracts.

Before adopting or rejecting any contract proposed under this chapter, the governing body shall require the city auditor for the municipality to make a careful and detailed statement of the estimated cost of the work. The governing body may not award the contract if the city auditor’s estimate prepared under this section exceeds the estimate prepared under section 40-22.1-04. If all proposals are not rejected, the governing body shall award the contract to that person, firm, corporation, limited liability company, or other entity best able to perform the work, upon the basis of cash payment for the work.

40-23-01. Special assessment commission — Appointment of members — Terms of office.

The executive officer of each municipality, when it shall be found necessary, shall appoint three reputable residents and freeholders of the municipality as members of a commission which shall be known as the special assessment commission. The members appointed to the first special assessment commission in a municipality shall hold office, respectively, for terms designated by the executive officer when the appointments are made, as follows:

1. One member shall hold office until the first meeting of the governing body in April in the first odd-numbered year following that member’s appointment.
2. One member shall hold office until the first meeting of the governing body in April in the second odd-numbered year following that member’s appointment.
3. One member shall hold office until the first meeting of the governing body in April in the third odd-numbered year following that member’s appointment.

At the first meeting of the governing body in April of each odd-numbered year, or as soon thereafter as practicable, the executive officer shall appoint a member of such commission. After the members of the first special assessment commission have been appointed as provided in this section, each appointment shall be made for a term of six years.

40-23-02. Commissioners — Appointments subject to confirmation — Qualifications — Chairman — Compensation.

All appointments made to the special assessment commission shall be subject to the confirmation of the governing body. Upon appointment and confirmation, each commissioner shall file with the city auditor a written acceptance of the appointment and shall take and subscribe the oath required of other municipal officers, which shall be filed with the city auditor. The member of the commission having the shortest term to serve shall act as chairman. No member of the commission shall hold any other municipal office while serving as such member. The appointing authority shall establish the rate of compensation for commissioners and actual expenses incurred by commissioners may be reimbursed at the official reimbursement rates of the appointing authority.

40-23-03. Removal of commissioners — Filling vacancies.

Any member of the commission may be removed by the executive officer, with the consent of a majority of the members of the governing body, for neglect or refusal to perform the duties of the office or for misconduct in office. A vacancy occurring in the commission by removal, resignation, or death shall be filled by appointment by the executive officer as soon as practicable after the vacancy occurs.

40-23-04. Municipal officers and employees to advise commission.

Each officer and employee of the municipality shall give to the special assessment commission such information, advice, and assistance as it may request.

40-23-05. Notice to special assessment commission.

At any time after the contract and bond for any work for which a special assessment is required have been executed and approved by the governing body of the municipality and the total cost of such work shall have been estimated as nearly as practicable, the governing body may direct assessments to be levied for the payment of all or any part of such cost, and the city auditor shall notify the chairman of the special assessment commission and shall certify to the chairman the items of the total cost thereof so far as the same have been ascertained. The chairman immediately shall call a meeting of the commission, which shall proceed as expeditiously as possible to make and return the special assessment as provided in this chapter. The total cost of the improvement which may be certified to the assessment commission shall include the estimated construction cost under the terms of the contract, a reasonable allowance as determined by the governing body for cost of extra work which may be authorized under the plans and specifications, engineering, fiscal agent’s and attorney’s fees for any services in connection with the authorization and financing of the improvement, cost of publication of required notices and printing of improvement warrants, and all expenses incurred in the making of the improvement and levy of assessments therefor. If any error is made in estimating the cost, the governing body may direct a supplemental assessment to be made as provided in section 40-26-02.

40-23-06. Assessments in improvement districts before work completed.

If the work consists of improvements on or additions to sewers or water mains already installed or paving already laid, and all bids for such work were rejected and the work done by the municipality, and if, in the opinion of the engineer acting for the municipality, the work can be done in separate sections or work units, it shall not be necessary that all of the work be completed before the special assessments are made. The governing body, by resolution adopted at any time before or after the work has been commenced, may specify what part of the improvements shall constitute a separate section or work unit, and upon completion of the work in one or more of such separate sections or work units, the special assessments may be made in the same manner and with the same force and effect as if all of the work in the entire improvement district had been completed. Failure for any reason to complete the work in any remaining separate section or work unit included within such improvement district shall not affect the validity of the special assessments made or the special assessment warrants issued for the work completed.

40-23-07. Determination of special assessments by commission — Political subdivisions not exempt.

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. Property owned by a nonprofit entity and used exclusively as a cemetery is exempt from collection of special assessments for benefits conferred under this title and the city in which such property is located shall provide for the payment of special assessments, installments, and interest against such property by the levy of taxes according to law or by payment from other funds available to the city which are derived from sources other than special assessments. Benefited property belonging to counties, cities, school districts, park districts, and townships is not exempt from such assessment, and such public corporations whose property is so assessed shall provide for the payment of such assessments, installments thereof and interest thereon, by the levy of taxes according to law. Nothing in this section may be deemed to amend other provisions of law with reference to the levy of assessments on property sold for delinquent taxes.

40-23-07.1. Validation of prior assessments. [Repealed]

Repealed by omission from this code.

40-23-07.2. Assessment of common area in townhouse development.

If a townhouse development includes a right in the townhouse owners to use any lot or tract as a common area in connection with the townhouse development, the common area shall not be separately assessed for benefits but each lot or tract whose owner has a right to use the common area shall be assessed for the benefit to the common area in the proportion that each owner’s right in the common area bears to all of the owners’ rights in the common area.

40-23-08. Assessments collected by suit from beneficial user of exempt property.

Whenever any real property is exempt from special assessments, or cannot be assessed, as provided in this title, for any improvement for any reason, and such real property otherwise would be assessable for such improvement, an assessment may be levied against the occupant or beneficial user of the property and collected by suit from the occupant or person enjoying the beneficial use thereof.

40-23-09. Assessment list to be prepared — Contents — Certificate attached to assessment list.

The commission shall make or cause to be made a complete list of the benefits and assessments setting forth, by legal description or street address or both, each lot or tract of land assessed, the amount each lot or tract is benefited by the improvement, and the amount assessed against each. There must be attached to the list of assessments a certificate signed by a majority of the members of the commission certifying that the same is a true and correct assessment of the property therein described to the best of their judgment and stating the several items of expense included in the assessment.

40-23-10. Notice of assessments and notice of hearing of objections.

1. Unless otherwise provided under this section, the commission shall cause the assessment list, which list may not include the amount each lot or tract is benefited by the improvement, to be published once each week for two consecutive weeks in the official newspaper of the municipality.
2. If the assessment list includes more than five thousand lots or tracts, the commission may cause it to be filed and made available for public inspection at all times after the first publication of the notice, during reasonable business hours, at such place as must be designated in the published notice.
3. As an alternative to the notice procedures provided in subsections 1 and 2, the commission shall send a letter to all property owners of record on the assessment list stating their assessments. The letter may be sent by certified mail or by regular mail attested by an affidavit of mailing signed by the city auditor. When notice is provided under this subsection, the commission shall cause publication of a map outlining the assessment district with a notification stating that if an individual has not yet received a letter regarding that individual’s assessment, the individual should furnish the city auditor’s office with the individual’s present address and the auditor will then mail a copy of the individual’s assessments.
4. The date set for such hearing must be not less than fifteen days after the first publication of the notice.
5. A copy of the notice must be mailed to each public utility having property on the assessment list at least ten days before the hearing to its address shown on the tax rolls.
6. Any notice under this section must include the time and place of a commission meeting to hear objections to assessments from an interested party or an interested party’s agent or attorney.
7. Any notice under this section must be published on the city’s website.

40-23-11. Alteration of assessments at hearing — Limitations.

At the hearing, the commission may make such alterations in the assessments as in its opinion may be just or necessary to correct any error in the assessment list. The commission may increase or diminish any assessment as may be just and necessary to make the aggregate of all assessments equal to the total amount required to pay the entire cost of the work for which such assessments are made or the part of such cost to be paid by special assessment. No assessment shall exceed the benefits as determined by the commission to the parcel of land assessed.

40-23-12. Confirmation of assessment list after hearing — Filing list.

The special assessment commission, after the hearing, shall confirm the list and attach thereto its further certificate certifying that the list is correct as confirmed by it. The commission thereafter shall file the assessment list in the office of the city auditor.

40-23-13. Publication of notice of confirmation of assessment list and meeting for action upon assessments.

The city auditor shall publish at least once in the official newspaper of the municipality a notice stating that the assessment list has been confirmed by the special assessment commission and filed in the city auditor’s office and is open to public inspection. The notice also shall state the time when and the place where the governing body will act upon such assessment list. The assessment list shall be acted upon by the governing body at a regular or special meeting occurring more than fifteen days after the publication of such notice.

40-23-14. Aggrieved person may file notice of appeal.

Prior to the meeting at which the governing body will act upon the assessment, any aggrieved person may appeal from the action of the special assessment commission by filing with the city auditor a written notice of the appeal, stating therein the grounds upon which the appeal is based.

40-23-15. Governing body to hear and determine appeals and objections to assessments — Altering assessments — Limitations.

At the regular or special meeting of the governing body at which the assessment list is to be acted upon, any person aggrieved by the determination of the special assessment commission in regard to any assessment who has appealed therefrom as provided in section 40-23-14 may appear before the governing body and present the person’s reasons why the action of the commission should not be confirmed. The governing body shall hear and determine the appeals and objections and may increase or diminish any of such assessments as it may deem just, except that the aggregate amount of all the assessments returned by the commission shall not be changed and no assessments as adjusted shall exceed the benefits to the parcel of land on which it is assessed as determined by the assessment commission.

40-23-16. Confirmation of assessment list by governing body — Certifying and filing list.

The governing body shall confirm the assessment list. The city auditor shall attach to the list the city auditor’s certificate that the list is correct as confirmed by the governing body and then shall file the list in the city auditor’s office.

40-23-17. Authority to levy assessments on property not originally assessed.

Any municipality that pays or provides for the payment of part or all of the cost of an improvement may subsequently levy special assessments for the cost of the improvement upon properties benefited by the improvement in the cases and in accordance with the procedure and subject to the conditions set forth in sections 40-23-17 through 40-23-21.

40-23-18. Assessments on property within the corporate limits.

A subsequent assessment may not be levied for any improvement on any property that was within the corporate limits of the municipality on the date of the execution of the first contract for any part of the improvement, unless a special improvement district was originally created for the improvement, and the property on which the subsequent assessment is to be levied was not originally assessed for the improvement but is subsequently included within another improvement district created to finance an improvement that will be connected directly or indirectly with the original improvement. Assessments under this section may be included in a separate column in the special assessment list prepared for the improvement district and levied upon the properties included in the district at the same time and upon the same notices and hearings as provided by law for the other assessments. A resolution determining the necessity of the improvement must have been adopted in the manner prescribed by law, referring to the designation of the district created for the original improvement and stating that a portion of the cost of the improvement is proposed to be assessed upon property within the improvement district.

40-23-19. Assessments on annexed property for previous benefits.

Any property that was outside the corporate limits of the municipality at the time of contracting for an improvement, which is benefited by the improvement and is subsequently annexed to the municipality, may be assessed for the improvement subject to the same conditions and by the same procedure as provided in section 40-23-18. The property that is benefited may also be assessed for any improvement, within or outside the corporate limits, which is determined by the governing body and the special assessment commission to benefit property that was outside the corporate limits at the time of contracting for the improvement, whether or not an improvement district was previously created for the improvement. For this purpose, the governing body may create one or more improvement districts comprising all or part of the annexed territory. The governing body may provide for the levy of special assessments upon such property in the manner provided in this title, but may dispense with the requirements of this title as to the adoption of a resolution of necessity and the advertisement and award of a contract for the improvement. Assessment proceedings under this section are valid notwithstanding any failure of the previous proceedings to comply with the provisions of law regarding improvements to be financed by special assessments. The governing body may use a reasonable depreciation schedule for the improvement in determining the amount of any special assessment subsequently levied under this section.

40-23-20. Equalization of original assessments.

In any assessment proceedings under sections 40-23-17 through 40-23-21 the governing body of the municipality shall have power to direct the cancellation of uncollected installments of special assessments previously levied for the same improvement, and the refund of installments prepaid, to the extent determined by it to be necessary to make the original assessments and the subsequent assessments bear as nearly as possible the same relation to the total benefits derived from the improvement by the respective properties assessed.

40-23-21. Use of collections of subsequent assessments.

1. All collections of special assessments levied pursuant to sections 40-23-17 through 40-23-21 shall be credited as received to the special fund maintained by the municipality for the payment of any outstanding special improvement warrants, refunding improvement bonds, general obligation bonds, or revenue bonds which were issued to finance the improvement for which the assessments were levied, or, if no such obligations are outstanding, to such fund as the governing body may direct.
2. If a governing body of a municipality levied and collected an infrastructure fee under section 40-22-01.3, the funds generated by the fee must be used for the payment of any outstanding special improvement warrants, refunding improvement bonds, general obligation bonds, or revenue bonds issued to finance the improvement. The governing body of a municipality may not use funds generated by an infrastructure fee imposed after July 1, 2021, for the payment of any outstanding special improvement warrants, refunding improvement bonds, general obligation bonds, or revenue bonds, issued before July 1, 2021, for the purpose of financing green field special assessments, as defined in section 40-05.1-06.

40-23-22. State property subject to special assessments.

Real estate within municipalities of this state owned by the state of North Dakota, other than for highway right-of-way purposes, may be subjected to special assessments for special improvements when benefited by such improvement and the state agency or department having control thereof is hereby authorized to expend public funds in payment of such special assessments.

40-23-22.1. City flood control special assessment exemption for state property — Limitations.

1. Notwithstanding any other provision of law, property of the state in a city subject to this section is exempt from special assessments levied for flood control purposes. Upon request by the governing body of the city, the exemption under this section may be completely or partially waived by the legislative assembly or the budget section if the legislative assembly is not in session. Any request considered by the budget section must comply with section 54-35-02.9. A city is subject to the exemption under this section in recognition of state financial assistance for flood control provided to the city pursuant to section 61-02.1-01 or other appropriation or commitment of state funds.
2. The exemption under this section does not apply to any privately owned structure, fixture, or improvement located on state-owned land if the structure, fixture, or improvement is used for commercial purposes unless the structure, fixture, or improvement is primarily used for athletic or educational purposes at a state institution of higher education. An assessment allowed under this subsection must be based on the square footage or front footage of the land occupied by the structure, fixture, or improvement and made against the structure, fixture, or improvement and not against the land on which it is located.

40-23-23. Assessments for parking improvements.

For any improvement consisting of acquiring or leasing of property and easements and construction of parking lots, ramps, garages, and other facilities for motor vehicles, whether constructed pursuant to chapter 40-22, 40-60, or 40-61 or other law authorizing a municipality to acquire facilities used and usable in connection with the parking and storing of motor vehicles, the governing body of the municipality, on or before October first in any year, may cancel all installments of special assessments theretofore levied for such facilities which are due and payable in the following year and all subsequent years, and may levy a new assessment for such facility in accordance with the law authorizing the initial levy of special assessments therefor, except that the amount to be newly assessed shall not exceed the total principal amount of the installments of assessments so canceled. The new assessment shall follow the same district lines as the original assessment district, and the same method of assessment shall be used as was used in the original assessment. If the new assessment causes any prepaid payment to be refunded, the refund plus four and one-half percent interest per annum on the refunded prepaid payment shall be paid to the person, corporation, or limited liability company who prepaid the original assessment. In determining the special benefit and levying the new assessment against any lot or parcel, the previous determination of special benefit in any previous proceeding shall not be binding upon the assessment commission or governing body, but the new assessment levied on any lot or parcel, together with the principal amount of the installments of special assessments previously paid or to be paid in the current year for that lot or parcel with respect to that facility to be assessed, if any, shall not exceed the total special benefit to the lot or parcel from the facility for which the assessment is levied. In levying new assessments pursuant to this authority, an assessment commission and governing body of a municipality may take into account any changes in conditions affecting the benefits derived and to be derived from the improvement for which the assessments were initially levied against the respective properties assessed. Provided, however, that in canceling any special assessments previously levied and in levying new special assessments, a municipality cannot violate any covenants or agreements which it has made with holders of any obligations issued by the municipality to finance the acquisition of that improvement.

40-23-24. Audit of certain special assessment improvements.

If the costs of an improvement determined and assessed under section 40-23-07 or 40-23.1-04 exceed the costs of the work as contained in the engineer’s estimate under section 40-22-10 by seventy percent or more, the governing body of the city shall secure an audit of all costs included in the assessment for the project, prepared in accordance with generally accepted auditing standards. The audit report must include a separate statement of the engineer’s estimate of the cost of the work, the actual cost of the work, the cost of extra work, engineering fees, fiscal agent’s fees, attorney’s fees, publication costs, warrant printing costs, interest costs, and each separate item of expense incurred in making the improvement and levying the assessment for the improvement. The city shall make a copy of the audit report available without charge to any person who requests a copy. The audit report is not required if the costs of an improvement exceed the costs of the work as contained in the engineer’s estimate by seventy percent or more because of a petition to enlarge the district under section 40-22-09 or a request for additional work within the district by the owners of a majority of the area of the property in the district. Audit and copying expenses under this section must be paid by the city and may not be paid from special assessment funds.

40-23-25. Future assessments on annexed property.

The special assessment commission shall prepare and file with the city auditor a list of estimated future assessments on property located outside the corporate limits of the city at the time of contracting for an improvement but which the special assessment commission determines is potentially benefited by the improvement and likely to be annexed to the city.

40-23.1-01. Improvement district — All property to be assessed — Basis.

All property included within the limits of a local improvement district shall be considered to be the property specially benefited by the local improvement and shall be the property to be assessed to pay the cost and expense thereof or such part thereof as may be chargeable against the property specially benefited. The cost and expense shall be assessed upon all the property in accordance with the special benefits conferred thereon in proportion to area and distance back from the marginal line of the public way or area improved.

40-23.1-02. Improvement district — Zones.

For the purpose of ascertaining the amount to be assessed against each separate lot, tract, parcel of land, or other property therein, the local improvement district shall be divided into subdivisions or zones paralleling the margin of the street, avenue, lane, alley, boulevard, park drive, parkway, public place, or public square to be improved, numbered respectively first, second, third, fourth, and fifth.

The first subdivision shall include all lands within the district lying between the street margins and lines drawn parallel therewith and thirty feet [9.14 meters] therefrom.

The second subdivision shall include all lands within the district lying between lines drawn parallel with and thirty and sixty feet [9.14 and 18.29 meters] respectively from the street margins.

The third subdivision shall include all lands within the district lying between lines drawn parallel with and sixty and ninety feet [18.29 and 27.43 meters] respectively from the street margins.

The fourth subdivision shall include all lands, if any, within the district lying between lines drawn parallel with and ninety and one hundred twenty feet [27.43 and 36.58 meters] respectively