With mediation having failed, Mandan's attempt to force annexation of property adjacent the new junior high school enters a new stage with an administrative law judge being called upon to deliver a decision.

A two-day hearing is scheduled for Monday and Feb. 26 in the Mandan City Commission room, starting at 9 a.m. Assigned to the case by the Office of Administrative Hearings is Allen Hoberg. City attorney Malcolm Brown represent the city; attorney Bill Delmore represents 19 property owners; and Tom Kelsch is the attorney for Ronald and Janice Thiel and the Iron Mountain Bison Ranch (formerly the Terry Grazing Association).

Attorney Pat Ward presided over the mediation process, which lasted though most of 2007. An agreement was nearly reached, in Ward's estimation, "but interested nonparties, such as the school district, could not agree in advance to assume the necessary financial burden."

"The ALJ is in a much tougher position than I was, because he has to make a decision,"Ward said. "I wanted a compromise, and we were close, but too much was dependent on the nonparties to the mediation."

The bottom line, according to Ward, is that the school district is bringing about the attempted annexation because of the new junior high school. If the new school wasn't being built, Ward isn't sure the annexation would be necessary, at least not at this time. Quite a bit of the area is hay land, but it may be ripe for development now that the new school is being built.

The school board had discussed providing up to $1 million for the special assessment district, board President Kirsten Baesler said.

"It was provided as part of the mediation package to allow settlement out of court. The landowners didn't accept that offer," Baesler said. "We at the school board decided to then let the special assessment committee determine the school district's portion. Providing the money would have taken an official action, but a vote was never taken."

Hoberg has been an administrative law judge since 1991. In that time, there have been only two other cases like this. He presided over one dealing with the city of Hazen; the other involved West Fargo. In both cases, the decision came down in favor of the city.

The North Dakota Century Code (40-51.2) does provide a checklist of factors for the ALJ to consider, according to Hoberg. But there are some subjective areas, and the decision can include conditions. The attorneys can call witnesses, and Delmore believes it's important that each property owner lay out their own concerns.

In opposition to the annexation, Delmore will provide information that there hasn't been any residential development in the area for 10 to 15 years. He also will focus on the economic burden being placed on his clients.

"What everybody is missing even without the special assessments with annexation, property taxes will go up immediately," Delmore said. "Most of the people I'm representing are on fixed incomes. Some people being brought in have no possible way to connect to city water or sewer. Others will be forced to either subdivide their property or sell it because of the special assessments."

Reid Vogel said the property owners have been 100 percent unified since Mandan proposed the annexation. He said it was the school district's decision where to build the school, and the property owners are happy with the services they now have as provided by the county, rural water and their own septic systems.

"Maybe development will come down the road. But as it stands today, there have been six or seven 'For Sale' signs that been out there for 15 to 20 years, and nothing has happened," Vogel said. "I don't think the city should force annexation until a developer steps forward. The city is putting the cart before the horse."

Hoberg will consider the mediator's report provided by Ward, but most of his decision will depend on the presentations of the facts. If the attorneys request to file written briefs, Hoberg said he would likely grant that, allowing them two weeks. His decision could take up to another 30 days.

"One of the big factors the ALJ has is to weigh the hardship being put on those being annexed. I'm not sure how he'll do that," Ward said.

If there is disagreement with Hoberg's decision, any party may appeal to the district court for a review.

Those opposing the annexation are taking a certain amount of risk in allowing an ALJ decision, said Delmore. He hopes Hoberg will look at the potential proposals that were provided in the mediation process.

(Reach reporter Gordon Weixel at 250-8255 or gordon.weixel@bismarcktribune.com.)