Fargo board denies Horizon Holdings’ bid to reopen appeal of Microsoft building permits

The Fargo Board of Adjustment on Nov. 6 affirmed staff’s decision not to schedule a proceeding on an earlier appeal by Horizon Holdings LLP, ruling the company lacked standing and that its challenge to permits tied to Microsoft’s Commons Building was untimely.

Nicole Crutchfield, Fargo’s planning director, told the board the city treated the campus parcel as a unified development for permitting and relied on the Land Development Code provisions that limit appeals to the person “having legal authority” — typically the record owner, purchaser or a duly authorized agent. Crutchfield said staff concluded Horizon was not the authorized party to appeal permits issued to the 4550 42nd Street South parcel.

Corey Kallstrom, counsel for Horizon Holdings, told the board Horizon owns 3900 Great Plains Drive and argued the city had applied the wrong code section in declining to hear Horizon’s earlier appeal. Kallstrom said Microsoft’s Commons Building was built partially on Horizon’s land and that a 2013 easement addressed the encroachment; he said the recent permit authorizes construction activity, including underground power lines and foundation work, that injures Horizon and therefore makes it an aggrieved party with the right to appeal. “This leaves us the only question before the board is whether Horizon Holdings is an authorized party to appeal the issuance of the permit,” Kallstrom said.

Microsoft’s counsel, Robert Smith, argued the appeal is time barred and procedurally improper. “Any appeal to the board must be filed within 10 days,” Smith told the board, saying Horizon did not meet that deadline and that the permits at issue were issued to Microsoft and evaluated under a different chapter for building‑permit appeals. Smith also said much of the work Horizon objects to was covered by a demolition permit Horizon previously approved and that Horizon has not shown the immediate, direct injury required to establish third‑party standing.

Sean Radnick, the city’s building official, explained that the building code uses an “imaginary” property line when measuring fire‑separation distances for buildings that sit on the same parcel; the city’s review showed separation distances exceeding the minimum required by code. Radnick told the board the easement language at issue is a private covenant that the city treats as a civil matter between owners rather than as a controlling lot line for permit review.

City attorney Ian McLean told the board the 10‑day limit in section 20.0903(b) is applicable and that exempting third parties from that deadline would create persistent uncertainty for applicants. Staff and Microsoft both argued that allowing late third‑party appeals would undermine predictable permitting and could expose applicants to prejudice after construction has progressed.

After questions and a brief recess, the board’s chair moved to affirm staff’s decision that Horizon lacked standing and that the application was untimely; the motion was seconded and carried by roll call votes in favor from Wendell Dodd, Gunkelman, Wilczynski, Worth and Love. The board denied Horizon Holdings’ application for the appeal. The chair told Horizon it may appeal the board’s decision to the City Commission within 10 days.

The dispute centers on private easement and property‑line issues — matters the board identified as appropriate for civil resolution — and on whether the Land Development Code’s appeal deadlines and standing rules bar Horizon’s challenge. The board did not decide whether the underlying Microsoft permits comply with building or land‑development codes; it resolved only the procedural question of whether Horizon may pursue the earlier appeal before this body.

The board adjourned after taking no other business.