Minnesota Appeals Court rules against impact fees for road construction

by Eric Christianson

Harstad v. City of Woodbury
(Minnesota Court of Appeals, September 18, 2017)

The City of Woodbury, Minnesota is a growing suburb of Saint Paul. To reduce the public burden of road construction to new subdivisions, the city passed an ordinance in 2016 which provides that the city may not approve a proposed subdivision if it is deemed “premature.” The city may deem a subdivision “premature” if streets “to serve the proposed subdivision” are not “available,” which is defined as streets “existing or readily extended and funded” as “consistent with the phasing in the comprehensive plan.”

However the city provides that a new development without existing road infrastructure may be deemed mature if the developer is willing to “pays its own way” and “all associated costs” for “public infrastructure” will “be the sole responsibility of the developing property owner.” To determine these associated costs, the city has allocated undeveloped land into three phases, each of which has an estimated associated cost per acre associated for “increased traffic and trips that are generated” by expected development in that area. This fee is referred to as a “major roadway assessment” or MRA and is used as the starting point for a negotiated agreement with developers.

Martin Harstad, of Harstad Hills Inc., submitted an application to to develop 77 acres of phase – two land into a 183 – home residential community called “Bailey Park on July 23, 2015. The city informed Harstad about certain deficiencies in the application. Harstad remedied the majority of them and was then informed by the city that the remaining deficiencies where relatively unimportant. This is significant because once the city receives a complete application under Minnesota law, if it does not deny that application with cause, it is automatically approved. After receiving the cost estimate from the city for the major roadway assessment, Harstad challenged the ability of the city to collect this fee in court. He also made a takings claim, arguing that the city had deprived him of use of his property without compensation. Finally he claimed that his application had already been approved as the statutory period that the city had to deny the claim had elapsed.

The district court found for the city on the latter two claims. The permit was not entirely complete, therefor the statutory period had never begun. The court also found that Harstads takings claims were immature as the permit had never been fully submitted nor had the fee been collected. The court did however find that the city had no power to collect fees to pay for road infrastructure.

The City of Woodbury appealed this decision to the Minnesota Court of Appeals.

The Minnesota Court of Appeals focused its analysis on the question of the power of Woodbury to collect a “major roadway assessment.” The City of Woodbury is a statutory city; thus, it “has no inherent powers beyond those expressly conferred by statute or implied as necessary in aid of those powers which have been expressly conferred.”

The city argues it has express authority to impose the MRA under the plain language of Minn. Stat. § 462.358, subd. 2a . Section 462.358, subdivision 1a, provides that “a municipality may by ordinance” regulate the subdivision of land to , among other things, facilitate “adequate provision for transportation.” Minn. Stat. § 462.35 8, subd. 1a . Subdivision 2a states , in relevant part:

The standards and requirements in the regulations [authorized by subdivision 1a] may address without limitation : the size, location, grading, and improvement of lots, structures, public areas, streets, [and] roads . . . . The regulations may prohibit the issuance of permits or approvals for any tracts, lots, or parcels for which required subdivision approval has not been obtained.

The regulations may permit the municipality to condition its approval on the construction and installation of sewers, streets , electric, gas, drainage, and water facilities, and similar utilities and improvements or, in lieu thereof, on the receipt by the municipality of a cash deposit.

The city maintains that subdivision 2a’s “open-ended language” unambiguously authorizes it to condition subdivision approval on a developer’s agreement to pay an MRA that funds necessary road improvements “without limitation on location.”

The Court disagrees. This section only authorizes city planning not the collection of a fee to cover road construction costs. The Court pointed out the legislature has explicitly authorized municipalities to assess water and sewer connection charges against developers to fund public water and sewer improvements made necessary by development. The legislature has never made similar provisions for roadways.

The court agreed with the district court finding that although the city had communicated with Harstad that the remaining deficiencies in his application were minimal, the fact that they were never corrected meant that the statutory period in which the city had to approve or deny the application never began.

Finally the court affirmed the district courts denial of Harstad’s taking claim. The permit has not yet been denied nor has the major roadway assessment been collected, so no taking could have occurred.

The City of Woodbury has appealed to the Minnesota Supreme Court which accepted to hear the case. A date for oral argument has not been set.

Town properly used its police powers to build roads and levy special assessments after developer failed obligations

First State Bank v Town of Omro
Wisconsin Court of Appeals, November 11, 2015

Barony subdivision is a 74 lot subdivision that received plat approval in 2004. Only 9 lots were developed over the course of the next 5 years, and in 2009 First State Bank took control of the remaining 65 lots in lieu of foreclosure. At the time of foreclosure, sections of the roads in the subdivision were not paved. In 2013 Omro authorized the roads to be finished and specially assessed all the lots within the subdivision for the cost of completing the roads, which was $219,641.60. The Bank challenged Omro’s authority to levy the special assessments.  The issue on appeal was whether a municipality may use its police powers to build roads and levy special assessments against the land after a developer fails their obligation to build the roads.

The Bank claimed that the assessment was improper because: (1)the development agreement required the developer to pay for the roads; (2) the Ordinance prohibited the road work because 70% of the subdivision was not developed; (3) at the time the special assessments were imposed the subdivision’s roads were privately owned; (4) three lots were not specially benefited because they do not abut Omro’s roads; and (5) the wording of the preliminary and final resolutions did not conform with § 66.0703. The circuit court provided summary judgment to Omro.

The first two arguments asked whether Omro acted outside of their authority granted by the legislature. The Bank argued that the Ordinance says that the money for paving roads “will come directly from the developer, from a special assessment on the development, or another method approved by the Town Board” and that “the development agreement will dictate the method of payment for the paving.” The Bank argues that the developer is the only recourse for payment based on this language in the Ordinance and in the developer agreement. However, the language in these documents does not limit Omro’s power to levy special assessments. Just because the agreed upon payment did not work out does not mean alternatives are not allowed as long as Omro follows the appropriate procedures in state law permitting special assessments.

The Bank argued that because 70% of the subdivision was not developed the special assessment could not be levied.  The court pointed out, however, that there is language in the Ordinance that allows for a different schedule if Town Engineer and the Town Board recommend a different action, which they did.

The last three arguments asked whether Omro failed to follow the requirements of Wis. Stat. §66.0703.  The Bank argued that because the lots were privately owned, the special assessment was not for public improvement.  This argument missed the point that the roads within the subdivision were public property.  State law provides that all roads or streets shown on a final plat are dedicated to the public unless clearly marked as private, which these were not.  Therefore, the assessments were clearly for a public improvement.

Next, the Bank argued that three of the lots do not receive “special benefits” from the project because they do not abut the newly paved roads and should not be specially assessed because of this. The Bank demonstrated a genuine issue of fact. The circuit court erred in granting summary judgment on this issue.

The court affirmed the decision ratifying the special assessment of the lots that benefit from the road project, but reverse the decision that found that the lots that do not abut the roads received special benefits and remanded that issue to the lower court.

Montana landowners successfully claim reverse adverse possession of county road created by public prescriptive easement

by Hannah Dankbar and Gary Taylor

Letica Land Company, LLC v Anaconda-Deer Lodge County
Montana Supreme Court, November 17, 2015

Letica Land Company (Letica) and Don McGee appeal a lower court’s ruling that two stretches of a road crossing their properties in Anaconda-Deer Lodge County are public roads.

Modesty Creek Road was established as a county road by the County Commission in 1889. The land across which the road traverses has been owned by the federal government, Anaconda Company, various private interests and most recently Letica and McGee who purchased the land in 1989 and 1997 respectively. Prior to Letica and McGee purchasing the land locked gates were placed on various places in the road that blocked public access, even though the public continued to access the road on a permissive basis. Because of these gates Letica and McGee claim that they were unaware of any public right of access of Modesty Creek Road.

In 2012 county residents asked the County Commission to reaffirm the road as a county road and reopen it to the public. The County Commission voted in approval and Letica filed a complaint. The complaint was denied and McGee joined as a plaintiff to amend the complaint.

The trial court concluded that Modesty Creek Road’s lower branch was a statutorily created road, and that Modesty Creek Road’s upper branch was established as a public road via public prescriptive easement, and that the prescriptive easement had not been terminated by “reverse adverse possession.” The court also found the takings question was not ripe until after an appeal. Letica and McGee appealed, challenging both the declaration of a statutorily created road and the declaration of a public prescriptive easement.

Letica and McGee first claimed that the record does not sufficiently demonstrate that the road was created by petition. They claim that Modesty Creek Road is on some county road maps, but not on others. The court found that this does not qualify as “affirmative steps to indicate intention to abandon” county roads once they are established, further these maps do nothing to provide evidence of the process of how these roads were approved. Letica and McGee also claimed that the lower branch must terminate at the eastern portion of Section 23, Township 6 North, Range 11 West. There is no definitive description in the record of where the road ends, but evidence when taken as a whole, such as testimony and other historical records are consistent enough for the court to conclude that the Dry Gulch is located along Section 22, Township 6 North, Range 11 West and that the lower court correctly took the record as a whole. The lower court’s decision regarding the statutorily created lower branch of the road were affirmed.

Letica and McGee argued that the actions of landowners to block public access throughout the years created in the landowners ownership by adverse possession.  The court emphasized that in Montana a “private individual may not obtain title to a public statutorily created road by a adverse possession.” Since it was established that the lower branch is a statutorily created road and therefore could not be claimed by adverse possession.  This still left open the question of whether reverse adverse possession extinguished the public prescriptive easement on the upper branch.

Locked gates blocked public access to the upper branch from 1980 to 2012. The public who used to use the upper branch found alternate routes and County staff said they would have cut the locks if they were made aware of the issue as they did this in other instances. The record shows that the public “cooperated and adhered” to the permissive use policy. Those who leased land or had water rights along the road had keys to the gates.

After declaring the upper branch a county road in 2012 the County found that the landowners asserted hostile rights for thirty years. However, the court found that the public abandoned this road and the County was aware of the gates and did not remedy the situation.  Montana statute provides that a prescriptive easement may be terminated “by disuse of the servitude by the owner of the servitude for the period prescribed for acquiring title by enjoyment.” The Court reversed the lower court’s ruling that the public prescriptive easement was not terminated by reverse adverse possession.

One justice dissented. Chief Justice McGrath concurred with the resolution of the first issue, and dissents the conclusion of the second issue. He would uphold the lower court’s decision and conclude that “this case would not exist but for the unlawful closure of the lower branch road….[A] person may not illegally block a road created by action of a public government entity, and then use that blockage as evidence to support a claim of reverse adverse possession that extinguishes the public’s prescriptive right to any other property or interest in property.”

Landowner (and predecessors) implicitly dedicate road to township through actions over the course of a century

by Andrea Vaage

Niemi v. Fredlund Township
South Dakota Supreme Court, July 15, 2015

David and Roxie Niemi filed a declaratory judgment action against Fredlund Township, South Dakota seeking a determination that the road traversing their property (their property being known as Section 20) was not a public road. The Niemis claimed the road on their property, locally called “Lewton Road,” was being used by Fredlund Township as a public road. During the hearing in circuit court, several residents and township officials testified that the Township had paid for repairs and the installation of a cattle guard, had paid to “build up” the road from the driveway to Section 20 and a state highway, and that the road was the only access point to a dam and school. Up until an incident in 2011, when Roxie Niemi informed a nearby resident they could not use Lewton Road, no one had been informed the road was not for public use. The evidence indicated that the road had otherwise been used by the public since 1927. The circuit court determined the road was a public road by common law and statutory declaration. The Niemis argued that the circuit court erred.

The Court reviewed the circuit court’s decision for factual error. The standard of proof is the finding of “clear and convincing” evidence that the Niemis or their predecessors implicitly dedicated Lewton Road as a public road. Since no express dedication was made, the Court had to determine whether the dedication was implied through the owner’s conduct and the facts and circumstances associated with the case. The Court found that the previous owners of Section 20 either requested or acquiesced to Township maintenance of the road, and that one owner asked that a cattle guard be built. Roxie Niemi acquiesced to maintenance of the road in both 2007 and 2009. Although Roxie Niemi stated she didn’t want the road to be used for public use during testimony, her actions and conduct showed otherwise. Her testimony could not override her acts and conduct inconsistent with the stated intent.

The evidence also supported the conclusion that the Township accepted the dedication of the road.  It maintained the road since 1927, provided gravel, grading, and construction, and installed a cattle guard and a culvert.  Although the maintenance was not routine or consistent, the evidence established that the Township maintains some other Township roads only when requested by residents.  The fact that the Township declared Lawton Road a “No Maintenance Road” in 2005 further demonstrated that the Township accepted it as a public road.

The Court found that the district court did not err in determining Lewton Road was a public road under common law dedication. The decision was affirmed.

Record did not support the level of inconvenience required to establish private road by necessity

by Hannah Dankbar and Gary Taylor

Price v Judy Hutchinson, Wayne Garman and Ross Garman
Wyoming Supreme Court, December 16, 2014

In February 2011 Price applied to establish a private road across Wayne Garman’s land under Wyo, Stat. Ann. §24-9-101 because his property had no outlet to a public road.  Price preferred the route crossing Garman’s land, but the Garmans argued that Price had three viable access points to public roads and therefore did not qualify for a private road. Price contended that County Road 58 in Crook County, Wyoming does not touch or enter his land, and that in any case the road is a cow trail that does not provide reasonable and convenient access because it is not used or maintained as a public road.  Furthermore, State Highway 14 also did not provide reasonable or convenient access. In summer and fall of 2011 the Crook County Board of Commissioners gathered evidence and tried to make their decision, but malfunctioning audio equipment led the Board to start the process over. On May 1, 2012 the Board denied Price’s application. The District Court upheld this order and an appeal followed.

Price argued that the Board failed to take an preserve a complete record of the proceedings, as required by state statute, when it failed to record the proceedings, and that therefore the orders resulting from those meetings should be reversed.  The court determined that the failure to record the meetings is a procedural failure according to this statute, but because the meetings immediately stopped when the technology failure was discovered, and the meetings were later reconvened with functioning equipment, there was no error or prejudice to Price.

Price questioned whether the Hearing Officer in this case provided legal opinions and advice to the Board violating Wyoming statutes. (Wyoming law allows for the appointment of a Hearing Officer to preside over a hearing to regulate the course of proceedings, receive evidence and address procedural questions). Wyo. Stat. Ann. §16-3-107(k) provides that a person serving as the hearing officer cannot be the representative of an agency  at a hearing of which the agency is a party, but the Board was never a party in this case, so this argument failed. Price argued that the County Attorney should not have been the Hearing Officer and that as such, he should not have offered legal opinion to the Board. Price’s arguments failed. Wyo. Stat. Ann. § 16-3-112(a) and (b) allow for the Hearing Officer to provide recommendations and advice.  It was clear from the record that the Board alone made the decision, and no bias or prejudice resulted from the County Attorney’s responses to the Board’s questions or his clarification of the issues.

Price claims that the Board’s findings were not supported by substantial evidence as required by Wyo. Stat. Ann. § 16-3-14(c)(ii)(E). The court disagreed. The Board gave multiple reasons why County Road 58 is a public road. At the hearing multiple people testified that they use County Road 58 to travel to and from Price’s residence. Just because another road would be more convenient for Price as an individual does not mean that the Board has to approve it.  “Necessity” as the showing required for condemnation of private property to provide access means that existing alternatives must be “obviously impractical and unreasonable.”  Price failed to carry this burden of proof.

Platted village streets constitute “public highway” for purpose of defense to acquiescence claim

by Hannah Dankbar

Haynes v Village of Beulah
Michigan Court of Appeals, December 9, 2014

The Haynes argue that they are entitled to two strips of land within the platted rights-of-way of Lake Street and Commercial Avenue in the Village of Beulah citing the theory of acquiescence. The Haynes own Lots 10,11 and part of Lot 7 in Block 2. These lots are bordered by Lake Street on the northwest side and Commercial Avenue on the southwest side. Before 1968 the prior owners of the Haynes’ property installed railroad ties along Lake Street, separating the portion of the road used for travel from the grass and trees. On the southwest, a rock wall was installed in the 1950s to separate the part of Commercial Avenue used for travel from landscaping plants, a portion of the Haynes’ driveway, a maple tree and a strip of grass owned by the Haynes.

In 2012, the Village of Beulah introduced plans to create angled parking, a new sidewalk and a streetscape in the platted right-of-way of each street and would occupy land owned by the Haynes. The Haynes brought suit to prevent this action. The trial court granted the Village of Beulah’s motion for summary disposition based on MCL 247.190.

MCL 247.190 provides as follows:

 All public highways for which the right of way has at any time been dedicated, given or purchased, shall be and remain a highway of the width so dedicated, given or purchased, and no encroachments by fences, buildings or otherwise which may have been made since the purchase, dedication or gift nor any encroachments which were within the limits of such right of way at the time of such purchase, dedication or gift, and no encroachments which may hereafter be made, shall give the party or parties, firm or corporation so encroaching, any title or right to the land so encroached upon.

Plaintiffs argued that MCL 247.190 does not apply to platted village streets or property acquiescence claims.  The issue in this case is the definition of “public highways,” which is not defined in the statute. “Highway” has been defined through multiple cases and multiple legal dictionaries before the enactment of MCL 247.190. These definitions encompass a broad reading of the term “highway.” Because of this, the Court of Appeals found that the trial court did not err in broadly construing the term to include village streets.

The Haynes also argued that MCL 247.190 does not apply to property acquiescence claims, but the Court of Appeals disagreed. MCL 247.190 provides, “no encroachments” on a public highway “shall give the party or parties, firm or corporation so encroaching, any title or right to the land so encroached upon.” Nothing in the statute permits the court to distinguish between different legal theories used to assert a private right or claim to any portion of a public highway.  A claim for acquiescence constitutes an encroachment.

The Haynes also argued that the unimproved portions of platted right-of-ways are not “public highways” that are entitled to protection under MCL 247.190. The Court of Appeals disagreed with this assertion, as well.  It is sufficient for the spending of public funds on a road in a dedicated right-of-way to constitute public acceptance of the entire width, and therefore have the entire width constitute “public highway,” even if the municipality never improves the specific strips of land within the right-of-way.

Judgment for the Village of Beulah was affirmed.

Plat approval results in town acceptance of public road, but does not obligate town to construct it

by Rachel Greifenkamp

Runkle, et al. v. Town of Albany
(Wisconsin Court of Appeals, June 19, 2014)

In the Town of Albany, Wisconsin several individuals purchased land and built homes along a street called Proverbs Pass. The developer of the subdivision entered into a development agreement with the town to build Proverbs Pass; however, neither the developer nor the town has completed construction or maintained the street. The people who built homes on the road filed a complaint asking the court to direct the town to complete the road and accept it as a town road, meaning the town would be responsible for it’s maintenance. The town admitted that the plat for the road had been approved and recorded with the register of deed but denied that it had any obligation to complete or maintain it as the town had not accepted the street as a town road. The circuit court ruled in favor of the town because certain conditions that were set forth in the development agreement were not met by the developer and the court concluded that that meant the town had not accepted the plat. The homeowners appealed the decision.

The Wisconsin Court of Appeals found that the only issue was whether the town accepted Proverbs Pass as a town road when the town approved and recorded the plat. If the approval does not equal acceptance, then the Town would be correct in assuming no responsibility for the road. If the approval does equal acceptance, the the Town would be required to assume the same responsibility it does for all other town roads. The town argued that acceptance of Proverbs Pass as a town road hinged on the developer meeting conditions in the development agreement, and that those conditions were not met. Based on Wisconsin court precedent, a town accepts a plat when it is approved and recorded in the register of deed, therefore the Court of Appeals reversed the Circuit Court’s ruling and found that the the Town of Albany did in fact accept Proverbs Pass as a town road.  This, however, did not determine whether the town had an obligation to construct and maintain the street.  “The acceptance of a plat by the city does not require that it shall open all the streets and alleys for immediate use.”  This issue was handed back to the circuit court to determine whether any other events or agreements obligated the town to complete construction of Proverbs Pass.

“Unused right-of-way” includes property previously used for roadway purposes

by Gary Taylor

Tunis E. Den Hartog, et al. v. City of Waterloo
(Iowa Supreme Court, May 30, 2014)

The state of Iowa transferred control of a state highway – now known as San Marnan Drive – and its right-of-way to the city of Waterloo in 1983. The city has maintained it by grading and mowing since that time. The city recently reached agreement to transfer the property to Sunnyside South Addition, LLC, for one dollar. Sunnyside proposes to relocate San Marnan Drive in order to place residential development where the road is currently located. Some Waterloo taxpayers filed suit, claiming that the transaction failed to comply with the notice and sale provisions of Chapter 306 of the Iowa Code, which governs the establishment, alteration, and vacation of roads. The city responded that the procedures of Chapter 306 cited by the taxpayers (specifically, section 306.23) only apply to property acquired for roadway purposes that was never used as a roadway.

Iowa Code 306.23 provides in part:

1. The agency in control of a tract, parcel, or piece of land, or part thereof, which is unused right-of-way shall send by certified mail to the last known address of the present owner of adjacent land from which the tract, parcel, piece of land, or part thereof, was originally purchased or condemned for highway purposes, and to the person who owned the land at the time it was purchased or condemned for highway purposes, notice of the agency’s intent to sell the land, the name and address of any other person to whom a notice was sent, and the fair market value of the real property based upon an appraisal by an independent appraiser.
2.  The notice shall give an opportunity to the present owner of adjacent property and to the person who owned the land at the time it was purchased or condemned for highway purposes to be heard and make offers within sixty days of the date the notice is mailed for the tract, parcel, or piece of land to be sold.  An offer which equals or exceeds in amount any other offer received and which equals or exceeds the fair market value of the property shall be given preference by the agency in control of the land. If no offers are received within sixty days or if no offer equals or exceeds the fair market value of the land, the agency shall transfer the land for a public purpose or proceed with the sale of the property.

The parties dispute the meaning of “unused right-of-way.” The city argued that it refers only to land never in use for roadway or related purposes – the implication being that section 306.23 does not apply in this case. The taxpayers argue that the phrase should be read to include any land which the city has determined will no longer be needed or used for roadway purposes. This could include land currently in use for roadway purposes, so long as the city has determined that the land will not be used as such in the future. Under this reading section 306.23 applies and the property should have first been offered to adjacent landowners for purchase at or above fair market value.

In siding with the taxpayers, the Iowa Supreme Court cited several “linguistic and structural cues…the statutory purpose, and the legislative history [of chapter 306].” Noting that the owner of land abutting a highway may suffer special damage because of its vacation, the hearing procedures in chapter 306 protect their unique property interests. The Court looked to several provisions in the chapter that suggest a broad reading of the term “unused”; i.e., to apply to land that will not be used for roadway purposes going forward, regardless of whether it may have been used for such purposes previously.

The Supreme Court remanded for entry of an order prohibiting the city from the sale or transfer of the property to Sunnyside without first following the requirements of section 306.23.

Sierra Club must exhaust administrtative remedies before challenging Iowa DOT highway extension proposal

by Kaitlin Heinen

Sierra Club Iowa Chapter, Linda Biederman, and Elwood Garlock v. Iowa Department of Transportation
(Iowa Supreme Court, June 7, 2013)

The Iowa chapter of the Sierra Club has more than 5000 members residing in the state, some of which hike in Rock Island State Preserve and Rock Island County Preserve. The Iowa Department of Transportation (IDOT) is a state administrative agency that has proposed extending Highway 100 west of Cedar Rapids, which would run adjacent to Rock Island State Preserve and through Rock Island County Preserve, thus negatively impacting the ecosystems in the two preserves.

The Sierra Club Iowa Chapter and two of its members filed a petition for judicial review challenging IDOT’s Highway 100 project. The IDOT responded with a motion to dismiss, which was granted by the district court because the Sierra Club “had not exhausted administrative remedies by first seeking a declaratory order from IDOT under section 17A.9(1)(a).” The Sierra Club did not participate in any administrative proceedings with IDOT prior to filing the petition for judicial review.

On appeal, the Iowa Supreme Court addressed the issue “if a party challenging agency action must seek a declaratory order from the agency under section 17A.9(1)(a) before petitioning for judicial review in order to satisfy the exhaustion doctrine.” Important to note, Iowa Code § 17A.19(1) provides: “A person or party who has exhausted all adequate administrative remedies and who is aggrieved or adversely affected by any final agency action is entitled to judicial review thereof . . . .”  There are situations when a party can bypass the exhaustion doctrine; however, “the Sierra Club has not preserved error on an argument for one of these exceptions to apply.”

The Sierra Club filed a complaint in federal court, captioned “Complaint for Declaratory and Injunctive Relief.” The complaint involved the United States Secretary of Transportation and the Administrator of the Federal Highway Administration as defendants. The Sierra Club alleged that “the secretary and administrator did not follow the applicable federal statutes and regulations when they issued and approved the Final Supplemental Impact Statement for the Highway 100 project.” Because of the complaint’s caption, the Iowa Supreme Court held that the Sierra Club requested declaratory and injunctive relief. Because the Sierra Club sought declaratory relief, “the court must [construe] section 17A.9 to determine whether declaratory orders are mandatory or permissive.” Section 17A.9 was adopted in 1974 as part of the Model State Administrative Procedure Act. When enacted, 17A.9 required “any agency with authority to issue declaratory rulings to do so within thirty days after a party files the petition…Failure of the agency to do so results in the administrative remedy being ‘deemed inadequate or exhausted.’”

To construe such a statute, the court must determine legislative intent. If the statute’s language is unambiguous, the court looks no further. One could argue that “the requirement to file a petition for declaratory relief with the agency is permissive because the word ‘may,’ as found in section 17.9(1)(a), is unambiguous.” The Iowa Code’s rules of statutory construction state: “The word ‘shall’ imposes a duty. . . . The word ‘must’ states a requirement. . . . The word ‘may’ confers a power.” Further, “the legislature’s use of the word ‘may’ usually indicates legislative intent for the statute to apply permissively…[so] a person can argue that a party need not exhaust administrative remedies before filing a declaratory judgment action with the court.” But to the contrary, “when a statute provides a person with an administrative remedy and uses the word ‘may,’ but does not explicitly state the administrative remedy is the exclusive remedy, the person is still required to exhaust the administrative remedy before seeking court intervention…[so] a person can also argue that a party must file a declaratory order with the agency before seeking court intervention, because the Code uses the word ‘may.’” As a result of these competing interpretations, the court found the statute ambiguous.

After assessing the statute in its entirety, the court concluded the legislature’s intent when enacting section 17A.9(1)(a) “requires the Sierra Club to first petition IDOT and therein ask the agency to determine whether IDOT complied with sections 314.23(3) and 314.24 in extending Highway 100 adjacent to the Rock Island State Preserve and through the Rock Island County Preserve.” First, by using the term “inadequate or exhausted,” the legislature indicated that a party must first exhaust his or her administrative remedies before seeking court intervention. Second, an article written by the 1973-1974 counsel to the Subcommittee, Arthur Bonfield, “revealed that the legislature created the administrative procedure for agency-issued declaratory orders to replace the court-provided remedy of declaratory judgments for matters within an agency’s jurisdiction,” which means that the legislature clearly “intended section 17A.9 to be the preferred method for obtaining a declaratory order when a person challenges the agency’s administration of a statute.” Third, “in a declaratory order proceeding, the agency must state in its order the facts it relied upon and the basis for its decision…[which] ensures the agency will make a complete record and the parties will know the rationale supporting the agency’s decision.” Fourth, though the Sierra Club argued it would be futile to ask the agency to reverse its own decision, the court did not agree. In the past, “agencies…have decided many issues within their purview…[with] no evidence to suggest agencies will conduct declaratory order proceedings in a biased, unprofessional manner and without regard for the rules promulgated by the legislature.” Finally, “any party to a declaratory order may seek judicial review of that order…[which] protects a party to a declaratory order proceeding if the agency makes the incorrect decision.”

Therefore, the Iowa Supreme Court “concluded [overall] that the Sierra Club must first seek a declaratory order under Iowa Code section 17A.9(1)(a) before asking the court for relief; and thus, the exhaustion doctrine bars its petition.” The Iowa Supreme Court affirmed the district court’s judgment.

Historic use and maintenance of established unpaved trail as public road

by Victoria Heldt

Clearwater County Board v. Terrance Bowman
(Minnesota Court of Appeals, May 21, 2012)

Mallard Grade is a 10-mile long, unpaved trail in Clearwater County.  It runs north from state highway 200 and was originally a railroad used to transport logs.  The rails were removed in 1913 and since then the trail has been “regularly used for logging, hunting and recreation by the public and for forestry management by the County.”  Terrance Bowman owns land that he purchased in 1996 that intersects Mallard Grade.  In 2009, Bowman erected a gate across Mallard Grade where it enters his property from the south.  Clearwater County requested, both formally and informally, that he remove the gate, but he refused.  The County brought this action to have Mallard Grade declared a public road and to prohibit Bowman from blocking it with a fence.

Minn. Stat. § 160.05 states “when any road or portion of a road has been used and kept in repair and worked for at least six years continuously as a public highway by a road authority, it shall be deemed dedicated to the public to the width of the actual use and be and remain, until lawfully vacated, a public highway whether it has ever been established as a public highway or not.”  The issues taken to district court were (1) whether Mallard Grade was used or worked for six continuous years and, if so, (2) the width of the road.

The County brought forth a team of several witnesses to describe the character and usage of Mallard Grade.  Bruce Cox, the County’s Land Commissioner, testified that the vegetation growth on either side of the trail show that the county had historically maintained the trail to a width of 18 feet and that it had provided “very little maintenance” to the trail.  Milo Fultz, a retired forester and road worker, testified that he installed culverts, trimmed vegetation, filled holes, bladed, and spread gravel over the trail annually for eight to ten years during the 1980s and 1990s.  He estimated the trail to be between 16 and 18 feet wide.  Nicholas Severson, another former forester, testified that he bladed Mallard Grade annually between 1990 and 2004 and that the trail was about 18 feet wide.

Gary Anderson, a township supervisor, stated he used Mallard Grade for logging operations since the 1970s until Bowman put up the gate in 2009.  Virgil Norquist, a property-owner near highway 200 since the mid-1930s, testified that the trail was about 18 feet wide in the 1970s and 1980s.  John Miller, another property-owner, testified that he began using the trail before 1945 to access hunting grounds and that it was best maintained during the 1980s when the logging operations were active.  Bowman testified, however, that the County had not maintained Mallard Grade since he purchased the property in 1996.  He further testified that the trail was only seven and one-half feet wide.

The district court found that Mallard Grade has been used by the public since at least the 1940s and that the County has maintained the trail for eight to ten consecutive years.  It determined the road to be 18 feet wide and to be a public road pursuant to section 160.05 of Minnesota statute.  Bowman appealed.

Bowman first challenged the court’s determination that the road had been kept in repair for at least six years as required by statute.  The Court looked to the extent of the maintenance how it compared to the requirements.  In a previous case brought under the same statute, it was determined that “the maintenance must be of a quality and character appropriate to an already existing public road.”  In Ravenna Twp. v. Grunseth, the Supreme Court ruled a road had not been properly maintained because the county had not installed ditches or culverts and had only graded and graveled the trail twice in 40 years.  In Leeper v. Hampton Hills, Inc., the Supreme Court concluded that a road had been properly maintained by installing culverts, grading and graveling the trail, and plowing the snow during the winter.  The Court noted that the maintenance performed on Mallard Grade was more like that done in the Leeper case than in the Ravenna Twp. case since several people testified to filling potholes, clearing brush, blading, and spreading gravel on the trail.  It determined the trail had indeed been properly maintained for at least six years.

Bowman next argued that the trial court erred in light of his testimony that he never saw any maintenance on Mallard Grade take place since 1996.  The Court concluded that his argument was flawed.  The trail was made into a public road before Bowman purchased his property in 1996 by the fact that the trail had been maintained since the 1980s according to the witnesses.  The road only needed to be maintained for six years from that time on to be considered a public road.

Bowman then challenged the district court’s finding that the road measures 18 feet wide.  The Court noted that a statutorily-dedicated road is established “to the width of the actual use” (Minn. Stat. §160.05, subd. 1).  and that the width of a road “is not limited to that portion of the road actually traveled; it may include the shoulders and ditches that are needed and have actually been used to support and maintain the traveled portion.”  The district court provided an exhibit describing the trail as 18 feet wide.  That conclusion was supported by the testimonies of Cox, Fultz, Severson, Norquist, and Anderson, who all testified about the historical use of the road.  The Court determined the district court’s findings were supported by the record.  It affirmed the decision.

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