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Lance Hagen

Developer Lance Hagen stands near his property in Lincoln. In 2011, the city of Lincoln installed a road on his property, without any form of reimbursement. A judge recently ordered the city to pay Hagen more than $150,000 in fees and restitution.

The North Dakota Supreme Court has upheld a decision involving a local developer and a road the city of Lincoln built on his property.

The Supreme Court's opinion, which was released on Friday, affirmed South Central District Court Judge James Hill's decision that a road the city built in 2011 constituted a taking of Lance Hagen's property.

In 2017, Hagen, of Lincoln Land Development, filed an inverse condemnation lawsuit against the city for construction of the road, which had previously existed as a small dirt trail. The road leads up to the city's lagoon wastewater treatment site. 

A judge and a jury both ruled in Hagen's favor, and Hill ordered the city pay more than $150,000 to Hagen in costs and attorney fees.

The city appealed the decision that the road improvements constituted a taking of Hagen's property. Brad Wiederholt, one of the city's attorneys, said Monday that they disagree with the Supreme Court's opinion.

Widerholt said there was a "high damages demand" in the Lincoln Land Development lawsuit, so the city "didn't have much of a choice to litigate in court."

"The city disagrees with the Supreme Court's opinion, but the city acknowledges the court has the last word," he said.

Hagen's attorney, Paul Sanderson, said the Supreme Court's opinion was "straightforward" and confirmed his and Hagen's claims.

Sanderson also represented Mike Heinsohn, of Great Western LLC, who also filed a lawsuit against the city of Lincoln for constructing the same road on his property. That case was settled for $160,000.

"The city of Lincoln built a road across landowners' properties, they knew they didn't have an easement before they built it and did it anyways, and continued to fight these landowners all the way down the line, including through an appeal," Sanderson said.

The Supreme Court also remanded Hagen's case back to district court to determine how much Hagen should recoup in attorney fees for defending the appeal, which Sanderson said is more than $20,000.

Both Hagen and Sanderson said a bigger issue than their case is how much the city of Lincoln has paid to litigate both Hagen's and Heinsohn's cases. Lincoln city attorney Justin Hagel previously said the North Dakota Insurance Reserve Fund is covering the city's legal costs and attorneys' fees in Hagen's case.

"We've won every single step of the way, including now at the Supreme Court, and it's just a fleecing of America what has gone on in this case," Sanderson said.

Lincoln Mayor Gerarld Wise said he's also disappointed with the opinion, and is awaiting legal advice on how to proceed.

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(Reach Blair Emerson at 701-250-8251 or Blair.Emerson@bismarcktribune.com)

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