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.

MN Court of Appeals affirms decision to allow 450-foot tower on edge of Boundary Waters

by Gary Taylor

State of Minnesota, by Friends of the Boundary Waters v. AT & T Mobility, LLC
(Minnesota Court of Appeals, June 18, 2012)

The Boundary Waters Canoe Area Wilderness (Boundary Waters) is a 1.1 million-acre wilderness area composed of federal and state lands in northeastern Minnesota. The Boundary Waters consists of 1,175 lakes, hundreds of miles of streams and rivers, and surrounding forested areas. It is the most heavily used wilderness area in the country and the only wilderness area that has an airspace reservation prohibiting flights below 4,000 feet. Visitors to the BWCAW value its scenic beauty and remoteness, as well as its lack of evidence of human existence. The Boundary Waters was one of the first federally designated wilderness areas, and it is protected by the federal Wilderness Act of 1964 and the Boundary Waters Act of 1978. The Minnesota legislature also protects the Boundary Waters by statute, recognizing that the it is an area “of surpassing scenic beauty and solitude, free from substantially all commercial activities and artificial development.”

Appellants AT&T Mobility LLC and American Tower Inc. applied for a conditional use permit (CUP) in Lake County, seeking permission to construct a wireless-communications tower. The tower will be approximately 1.5 miles outside of the border of the Boundary Waters.  It will be 450 feet high and have five sets of three guy wires. The tower will be lit with red or white blinking lights 24 hours a day to increase its visibility and comply with federal aviation requirements. The CUP application stated that the proposed tower is “deemed the optimum size tower to provide the most amount of coverage in this rural area with the least amount of visual impact.” The Lake County Planning Commission concluded that there is “a need for this tower for the health and safety of residents, tourists, and businesses.” Lake County approved appellants’ CUP application on July 20, 2009.  Friends of the Boundary Waters Wilderness (Friends) filed a complaint in Hennepin County District Court seeking a declaration that the proposed tower would violate the Minnesota Environmental Rights Act (MERA).  The district court enjoined construction of the proposed tower, determining that the proposed tower would materially adversely affect the scenic and esthetic resources in the Boundary Waters. The district court also determined that appellants failed to establish an affirmative defense under MERA. AT&T and American Tower appealed.

The Minnesota Court of Appeals reversed the district court.  In doing so it cited five factors from a previous case, Schaller v. Blue Earth County, for determining “whether conduct materially adversely affects or is likely to materially adversely affect the environment under MERA”:

(1) The quality and severity of any adverse effects of the proposed action on the natural resources affected; (2) Whether the natural resources affected are rare, unique, endangered, or have historical significance; (3) Whether the proposed action will have long-term adverse effects on natural resources, including whether the affected resources are easily replaceable (for example, by replanting trees or restocking fish); (4) Whether the proposed action will have significant consequential effects on other natural resources (for example, whether wildlife will be lost if its habitat is impaired or destroyed); and (5) Whether the affected natural resources are significantly increasing or decreasing in number, considering the direct and consequential impact of the proposed action.

The Court of Appeals concluded that the district court committed legal error by failing to weigh and analyze the relative severity of the adverse effect of the proposed tower on scenic views in the Boundary Waters under the first factor.    The Court of Appeals noted that the district court’s factual findings established that less than fifty percent of the proposed tower will be visible from less than one percent of the BWCAW’s 1,175 lakes, several of which have scenic views that include signs of human existence already.  According to the Court of Appeals, the district court failed to analyze whether this met the “severe” threshhold of the first factor.

The Court of Appeals also found fault with the district court’s conclusions on the third, fourth and fifth factors. As for the third factor (long-term-adverse-effects factor) “…removal of the proposed tower, which would be located outside of the BWCAW, would immediately eliminate any adverse effect on scenic views in the Boundary Waters, thereby restoring the affected resource to its original condition.”  The district court’s finding with regard to the fourth factor (significant consequential effects on other natural resources factor), that it was “not possible . . . to confidently quantify how many of which species of [migratory] birds will be killed by the [p]roposed [t]ower,” was not sufficient to sustain the conclusion that this factor weighs against the tower. Finally, under the fifth factor (increasing or decreasing of the affected natural resources), although the district court found that scenic views “from the lakes and rivers in the [Boundary Waters] where there are no lasting signs of human impact, are limited and finite resources” and that “[t]hey are not increasing and unless protected they will decrease over time,” The Court of Appeals found the district court in err because it did not “address whether the potential decrease in scenic views is significant.”  Thus, only the second factor (rareness-and-uniqueness factor) weighs strongly against construction of the proposed tower.  Even though the rareness-and-uniqueness factor is compelling, and “each factor need not be met in order to find a materially adverse effect,” the Court of Appeals held that the district court’s factual findings and legal analysis did not sustain its legal conclusion that respondent proved a prima facie case of a materially adverse effect on the scenic and esthetic resources in the Boundary Waters. Because respondent failed to establish a prima facie case for judicial intervention under MERA, The Court of Appeals reversed the district court’s order enjoining construction of the proposed tower without addressing appellants’ other arguments in support of reversal.

Scope of property listed on National Register of Historic Places a matter of city council discretion

by Victoria Heldt

Relators v. City of Dundas, Rejoice! Lutheran Church
(Minnesota Court of Appeals, May 7, 2012)

The Church of the Holy Cross, located in the City of Dundas, is listed on the National Register of Historic Places.  It is described by the Minnesota Historical Society as a “gothic church of locally quarried stone built in 1868.”  In 1964 a parish hall was added to the church and in 1998 a handicapped entry was added to the parish hall.  The church was added to the Register in 1982 after the construction of the parish hall addition.  The application for inclusion of the church on the Register included the statement:  ““The parish hall attached to the south side of the vestry was added in 1964; the similarity in materials and scale make it a sympathetic addition to the building.”  The listing of the property in the Register is simply “Church of the Holy Cross (Episcopal).”  Rejoice! Lutheran Church purchased the Church of the Holy Cross in 2010 with plans to build “a worship and office facility while preserving the historic stone sanctuary and adjacent cemetery.”  The additional office, worship, and classroom space totaled just less than 12,000 square feet.

In August 2010 the church applied for a conditional use permit (CUP) in order to move forward with its plan.  It received the permit, but residents raised the question of whether an environmental assessment worksheet (EAW) was necessary to begin the construction.  John McCarthy, the city zoning administrator, determined no EAW was necessary.  A petition was started to request an EAW be completed and garnered 32 signatures.  The Environmental Quality Board (EQB) determined that the city was the appropriate governing body to make a decision regarding the need for an EAW.  McCarthy responded to the EQB that no decision could be made on the matter until the church filed for a building permit, which it did a few months later.

The requirements stating when an EAW is necessary are found within a body of rules pursuant to the Minnesota Environmental Policy Act (MEPA).  The rules state that an EAW is required for the “destruction, in whole or in part, or the moving of a property that is listed on the National Register of Historic Places.”  In preparation for the hearing, members of the City staff prepared a report for the city council concluding that an EAW was not required.   The city council then received input from Jonathan Reppe (attorney for Dundas residents) who asserted that the property listed on the Register included the parish hall, which was to undergo destruction.  He cited Linda Pate, a preservation specialist from the Historic Preservation Office, who shared that view.

The council also heard from John Klockeman, a member of the Rejoice! building-team committee and a licensed architect, who asserted that the project would not result in the destruction of any of the property listed on the Register.  He argued that the only modifications to be made were the removal of the handicapped entrance that was constructed in 1998 and the removal of some limestone from the parish hall to be used elsewhere in construction.  At the hearing, the council determined that no EAW was necessary since the project would not result in any “destruction, in whole or in part, of a property that is listed on the National Register of Historic Places.”

On appeal, the Court was to determine whether the city council’s decision was arbitrary or capricious, made under an erroneous theory of law, or unsupported by the evidence.  It had to decide whether the council “has taken a ‘hard look’ at the salient problems and has genuinely engaged in reasoned decision-making.”  Upon examining the record, the Court noted that the city council did indeed take the required “hard look” at the situation.  It received input from opponents and proponents, received advice from city staff and legal counsel, and heard comments from the public.  The relators argued that the decision was improper as a matter of law because the property is listed on the Register and will undergo partial destruction; however, the Court noted that “relators point to no authority suggesting that the determination of the scope of the property listed on the
Register is a legal determination, much less that the city erred in making that determination.”  Noting again that the scope of judicial review is simply whether the council “engaged in reasoned decision-making” it affirmed the city council’s decision.

Minn. shoreland zoning variance requirement of unnecessary hardship still applies to requests for area variances

by Victoria Heldt

Ed Mutsch, et al. v. The County of Hubbard, et al., Daniel J. Rehkamp, et al.
(Minnesota Court of Appeals, April 30, 2012)

The Rehkamps own property on Fifth Crow Wing Lake in Hubbard County (County) that is operated as a resort.  The property includes 11 boat slips.  In November 2009 the Rehkamps applied for a conditional use permit (CUP) to convert the resort into a residential planned unit development (PUD).  The request was heard by the County Planning Commission, the Zoning Board of Adjustment (ZBA), and the County Board of Commissioners.  The Board of Commissioners initially approved the CUP with three permanent boat slips and one access dock, per the County’s Shoreland Ordinance.  It recommended that the Rehkamps apply to the ZBA for a variance in order to retain all 11 boat slips.  The Rehkamps did so and were granted a variance.  The entire plan was approved by all necessary boards in April 2010.  Days after approval, Ed Mutsch (a resident on Fifth Crow Wing Lake) filed a complaint challenging the issuance of the variance.  The district court reversed the granting of the variance, concluding that the ZBA’s decision was arbitrary, capricious, and not according to law since it did not consider all the factors required by law.  This consolidated appeal followed.

On appeal, the Rehkamps first argued that Mutsch lacked standing to appeal the ZBA’s actions because he did not participate in the hearings and meetings regarding the variance.  The Court dismissed this argument, noting that Minnesota statute grants the right to appeal a ZBA decision to any aggrieved person without any requirements to participate in initial proceedings.  Since Mutsch is a property owner on Fifth Crow Wing Lake and evidence shows his property value will likely decline as a result of the additional boat slips, he qualifies as an “aggrieved person.”

The second issue questioned what type of zoning variance the ZBA granted since it was never specified during the trial.  Mutsch purported that it was a use variance, which requires a showing of “particular hardship” while the Rehkamps argued it was an area variance, which only requires a showing of “practical difficulties” according to the Minnesota Supreme Court’s opinion in In re Stadsvold (2010). The Rehkamps argued that Mutsch waived the argument that it was a use variance when the issue was not property raised in district court.  The Court agreed, and declined to address the question since it was not properly raised in initial proceedings.  Consequently the Court of Appeals analyzed the variance as an area variance.

Next, the Rehkamps and the County challenged the district court’s determination that the ZBA’s decision was arbitrary and capricious.  The district court concluded the decision was arbitrary because the ZBA failed to consider all of the required factors.  In regard to variances, there are two relevant guidelines for the Court to consider.  Section 1104 of the local Shoreland Ordinance provides a list of factors to consider and requires applicants to show an “unnecessary hardship” to receive a variance.  In addition, a list of factors provided in the Stadsvold opinion is applicable when determining whether an area variance is warranted.  The County first argued that, in light of the Stadsvold decision, section 1104 of the Shoreland Ordinance (unnecessary hardship) no longer applies to area variances in the shoreland zoning area, but rather the “practical difficulties” test solely should be applied.  The Court rejected this argument, ruling that the Stadsvold opinion did not render section 1104 of the Shoreland Ordinance inapplicable to area variances requested on land to which shoreland zoning applies.

The Rehkamps next argued that the BOA “melded” the factors in the Stadsvold opinion with the factors in section 1104.  The ZBA was required to “articulate the reasons for its ultimate decision, with specific reference to relevant provisions of its zoning ordinance.”  The ZBA used a worksheet addressing each of the six Stadsvold factors (practical difficulties) when making its decision.  The Court concluded that, since those six factors are not the same as the factors listed in section 1104, it did not “sufficiently articulate its reasons for ruling that the section 1104 factors (unnecessary hardship) were satisfied.”  It found the ZBA’s decision to be premature, not necessarily arbitrary and capricious.  It therefore remanded that portion of the decision to the ZBA for further consideration of the section 1104 standards.

The Rehkamps’ last argument was that the district court erred when it determined that not all of the ZBA’s findings in regards to the Stadsvold factors (practical difficulties) were supported by the record.  The Court reviewed the evidence that supported each of the ZBA’s findings and found each to be supported by the record.  It therefore reversed that part of the district court decision which found that the ZBA’s decision regarding the Stadsvold factors were not met.

Under Minnesota law, owner of destroyed nonconforming use must apply to rebuild within 180 days of destruction

by Victoria Heldt and Gary Taylor

Daniel S. Ortell v. City of Nowthen
(Minnesota Court of Appeals, April 2, 2012)

This case involves the rebuilding of a nonconforming structure in the City of Nowthen, Minnesota (City).  Under Minnesota Stat. §462.357 a nonconformity may continue

including through repair, replacement, restoration, maintenance, or improvement, but not including expansion, unless:
(2) any nonconforming use is destroyed . . . to the extent of greater than 50 percent of its estimated market value . . . and no building permit has been applied for within 180 days of when the property is damaged. In this case, a municipality may impose reasonable conditions upon a zoning or building permit in order to mitigate any newly created impact on adjacent property or water body.to exist until it is destroyed to the extent of greater than 50% of its value.  At that point, the owner must apply for a building permit within 180 days in order it rebuild.  If he does not apply for a permit, the nonconformity may not continue and “any subsequent use or occupancy must be a conforming one.

Daniel Ortell owned a home that was situated within the 150-foot setback from a county road and was therefore a nonconformity under the zoning code.  In September 2007 Ortell applied for and received a permit to replace his roof, siding, and windows.  In October 2007, a portion of the house was destroyed when roofers swung a boom into the frame and the house collapsed.  The county assessor concluded the house was destroyed by more than 50% of its value.  In November 2007 Ortell began to rebuild his house, but the city building inspector issued a stop-work order since this construction was outside the scope of the original building permit granted in September.  Ortell was provided with an application for a new building permit; however, he did not apply for a building permit at that time due to health problems.  Instead, in January 2010 Ortell applied for a variance to rebuild the house on the existing foundation.  The city council denied the request and the board of adjustment affirmed the denial.  Both parties moved for summary judgment in trial court.  The court concluded the city properly denied the request because Ortell did not demonstrate undue hardship.  However, the court also granted summary judgment to Ortell, stating that the City “improperly denied [respondent] the right to rebuild his destroyed property without a variance based on its determination that he had failed to apply for a permit within 180 days of the accident which destroyed his nonconforming home.”  On appeal, the issue facing the Court was whether the district court erred by concluding that, under Minn. Stat. §462.357, Ortell was entitled to rebuild his house despite not applying for a building permit within 180 days of destruction.

The appellate Court concluded that the statute is ambiguous.  It noted the competing interests between zoning laws (intended to control land use and development) and common law property rights.  Because of these competing interests, nonconformities are usually allowed to continue but not to expand.  The Court further noted that the legislative history of the statute in question shows a progression towards providing greater protection to property owners.  In 2004, the clause regarding a building permit was added under the condition that the permit be requested within 180 days of damage.  Previous to that amendment, no rebuilding was allowed if the nonconformity was damaged greater than 50% of its market value.  The Court further acknowledged that the statute clearly gives cities the right to regulate nonconformities.  It noted that the statute clearly gives a 180-day time limit in which to apply for a building permit.  If it didn’t, the first clause of the statute (which designates that a nonconformity ceases if it is discontinued for more than one year) would be rendered meaningless.  The district court reasoned that the sentence, “[i]n this case, a municipality may impose reasonable conditions . . .” would serve no purpose unless a property owner was permitted to restore a nonconformity.  The Court of Appeals, however, interpreted the phrase to attach to the action of a landowner applying for a building permit within 180 days.  “If a nonconforming property owner may apply at any time, without limit, for a building permit, the first clause of the subdivision, which states that a nonconformity ceases if it is discontinued for a period of more than one year, has no meaning.”  The Court of Appeals concluded that the statute shall be interpreted to permit a property owner to rebuild a nonconformity only if a permit is obtained within 180 days (and that a municipality may apply impose reasonable conditions on an approval of that permit).  The district court’s ruling was reversed.

Public college an owner of land for purposes of initiating special assessment petition

by Victoria Heldt

City of Brainerd v. Brainerd Investment Partnership
(Minnesota Court of Appeals, April 2, 2012)

In this case, the Court consolidated two related appeals into one opinion.  Both appeals involved the City of Brainerd’s attempt to widen a road and to pay for the project with a special assessment tax.  College Drive (a two-lane road) had become a heavily traveled route for regional traffic, so the City sought to reconstruct a portion of it into a four-lane road.  Under chapter 429 of Minnesota statute, there are two methods through which a resolution such as this could be passed.  If at least 35% of the property owners adjacent to the road submit a petition in favor of the project, it would require a simple majority vote of the city council to be passed.  If no such petition is filed, the project would require a four-fifths majority vote of the city council to be passed.

Central Lakes College (CLC) owns more than 35% of the property adjacent to the road; however, since it is an “instrumentality of the State of Minnesota,” it cannot be required to pay any special assessments levied on the property.  Jeff Hulsether (Brainerd’s City Engineer) sent a letter to Kari Christiansen (CLC Vice President of Administrative Services) inquiring if CLC would be willing to pay a portion of the special assessments.  In December 2009, CLC sent a letter stating that it “intended” to pay the special assessments pending budgetary issues.  After reviewing a feasibility report in September 2010, CLC sent a memo to the City confirming that it would pay the assessments.  Subsequently, CLC filed with the city council a petition in favor of the project.  The city council approved the road project by a 4-3 vote.

Brainerd Investment and the Andas appealed, arguing that CLC should not be considered an “owner” of property adjacent to the road project because CLC cannot be subject to special assessments, and that under chapter 249 of Minnesota Statutes, property that is not subject to special assessment cannot be included in the 35% ownership test.  As a result, it was argued, the project needed a four-fifths affirmative vote of the council, not a simple majority vote, to pass.

In January 2011, the City commenced an eminent-domain proceeding in order to get temporary construction easements and permanent utility easements for the property.  Anda challenged the proceeding on the grounds that the City’s failure to comply with Minnesota statute 429 regarding the 35% rule precluded it from taking the property.  Subsequently, the City and the CLC created an official agreement stating CLC will pay the special assessment.  The district court ruled in favor of the City in both cases.

The Court identified two issues at hand.  The first was whether the CLC, as an instrumentality of the State of Minnesota, is considered an owner under statute and can therefore be included when using the 35% ownership test.  The second issue was whether a condemnation petition can be authorized if the assessment process is defective under chapter 429.

In regards to the first argument, appellants cited three attorney general opinions in which the state has been determined not to be an owner under special assessment statutes.  Furthermore, the appellants noted that when the legislature amended chapter 429 in the 1950’s, it relied heavily on the language in one of those opinions.  The Court dismissed the use of the attorney general opinions to support appellants’ arguments, stating that the opinions conflict with the plain language of chapter 429.  The statue allows “owners” of the adjacent properties to petition.  The common definition of an owner is “one who has the right to possess, use, and convey something.”  The CLC clearly fits that description, and should be included as an “owner.”  Appellants further argued that public policy supports their argument because the state has the ability to petition private property owners for additional support.  Appellants further noted that the state (or the CLC) could decline to pay the assessment.  The Court responded that according to the record, the CLC has every intention of helping pay for the project.  It concluded that the district court did not err when it deemed CLC’s petition valid.  Since CLC’s petition was indeed valid, the Court did not consider the condemnation issue.  The district court’s decision was affirmed.

Landowner unable to claim adverse possession over land subject to street easement

by Victoria Heldt

Donald Hector, et al. v. Gary Hoffer, et al., City of Adrian
(Minnesota Court of Appeals, December 12, 2011)

This case involves an undeveloped street easement in the City of Adrian, Minnesota.  The easement was granted in 1891 in order to develop Second Street, but the street was not developed towards the western end.  The Hoffers and the Lonnemans own property on the southern edge of the easement while the Hectors own property to the immediate north and west of the easement.  The Hectors bought their property in 1995 and the Lonnemans and the Hoffers both acquired their properties between 2005 and 2006.  Neither of the deeds conveying the property contained rights to the land under the easement.  When the Hoffers and the Lonnemans purchased their properties, a wire fence and a row of volunteer trees ran through the middle of the easement.  Both the Hoffers and Lonnemans found them to be an eyesore and wanted them removed, but the Hectors disagreed.  Thinking that the fence and trees were on city property, Mark Hoffer asked the city zoning administrator if he could remove them.  The zoning administrator said yes because he believed they were on a city right of way, but the Hectors objected.  After receiving permission from the city administrator, the Hoffers and Lonnemans removed the fence and trees.

The Hectors filed suit in district court initially only making claims against the Hoffers and the Lonnemans.  The Hectors sought a declaration that they owned the property either by title or by adverse possession and requested damages from the Hoffers and Lonnemans for trespass and for the removal of the fence and trees.  The Hectors also claimed that a drain tile (installed by the Hoffers and the Lonnemans) caused drainage onto one of their driveways. Later, the complaint was amended to include counts of trespass and conversion against the City.  The City, the Hoffers, and the Lonnemans all sought summary judgment.  The court granted summary judgment to the City, noting that its advice had been “based on a negligent misrepresentation of law, which is not actionable.”  The court additionally found that the Hectors owned the Property underlying the easement up to and including the fence line but not the property south of the line.  It concluded that the Hoffers and Lonnemans had trespassed and awarded the Hectors $200 in damages for the loss of the fence.  The Hectors appealed.

In its analysis, the Court first noted that, pertaining to the underlying interest of a public easement for a street, any abutting landowner has an interest in the property up to the middle of the street.  Subsequently, under the general rule, the Hoffers, the Lonnemans, and the Hectors would own their respective property underlying the easement up to the center line of the easement.  The Hectors first argued that they own all of the land under the easement since they own two intersecting sides of the land underlying the easement.  The Court focused on the fact that the original platters of the land owned the land both to the north and to the south of the easement.  Due to this fact, when the land was platted into blocks and the title of the Hectors block passed to them, they only took title up to the center of the street line.

Alternatively, the Hectors argued that they owned the entirety of the property under the easement due to adverse possession.  In order to claim property by adverse possession, a party must prove that it has used the property exclusively and continuously for 15 years.  The Hectors argued that Leander Ruffing, the previous owner of their property, had used the land exclusively for over 15 years.  The Court acknowledged that it is not necessary for the current owner to prove continuous ownership for 15 years and that the previous owner’s use could be accounted for in determining adverse ownership.  However, the Court still found that the Hectors failed to prove adverse ownership of the property to the south of the fence since that was not claimed to be used by Ruffing.  The Hectors’ warranty deed was dated October 1995 and they could not prove 15 years of use before the Court’s order in April 2010.  In addition, Victoria Hector herself admitted that the Hoffers and the Lonnemans used a portion of the easement to the south of the fence for a utility trailer.  This fact shows the Hectors did not maintain exclusive use of the property, and therefore the claim for title by adverse possession failed.

The Hectors also challenged the $200 in damages and the court’s failure to assign damages for the loss of trees.  Historically, the amount of damages due for a loss of trees has been measured by the difference in the value of the land before and after the removal of the trees.  The Hectors failed to prove that the value of the land had changed due to the loss of the trees.  Additionally, there was no evidence to show that the trees served an aesthetic purpose.  The Court affirmed the district court’s measure of damages.

The Hectors further argued for punitive damages.  In order for punitive damages to be appropriate, a showing must be made that the defendant “showed deliberate disregard for the rights or safety of others.”  Since the Hoffers and Lonnemans did not think the Hectors owned the trees or the fence (based on comments from the city zoning administrator) they did not show a “deliberate disregard” for the Hectors’ rights.  Consequently, the Court found punitive damages to be inappropriate.

In regards to the claim against the City, the Court found that, even if the district court’s summary judgment were reversed, it would have a minimal affect on the lawsuit since the Hectors were already awarded $200 in damages.  The Court affirmed the district court’s decision.

Development agreements may be reached prior to public utility commission (MN) decision on permits

by Victoria Heldt

Concerned River Valley Citizens, Inc., et al. v. Chisago County, Lent Township, Sunrise River Energy, LLC
(Minnesota Court of Appeals, December 19, 2011)

Concerned River Valley Citizens, Inc. is a non-profit organization that works to promote the development of the St. Croix River Valley while protecting the environmental interests of the area.  Sunrise River Energy, LLC (SRE) is an affiliate of LS Power Group, a company that develops, manages, and operates power-generation facilities.  In 2008, LS Power voiced its desire to construct a power plant next to an existing one in the area and submitted a request to the Midwest Independent Transmission System Operator.  A power plant may not be constructed without a certificate of need and a site permit from the Minnesota Public Utilities Commission (MPUC).  It preempts all local zoning laws.

Prior to seeking the two documents from the MPUC, LS Power and SRE requested legislation to allow a personal-property-tax exemption for the power plant, which it received.  The statute included the conditions that SRE must receive approval from the county board and the township board.  SRE also submitted a development agreement to the county and township boards, both of which approved the proposal.  The agreement contained language that explicitly stated that the document did not serve as a substitute for the two necessary permits from the MPUC.  Concerned River Valley Citizens argued that the county and the township are prohibited from entering into an agreement with SRE until the two permits from the MPUC are obtained.  The district court dismissed the complaint based on failure to state a claim.

On appeal, Concerned River Valley Citizens argued that, because local zoning laws are not preempted until permits from the MPUC have been granted, the development agreement is unlawful since it violates local zoning laws.  The Court disagreed, finding that statute did not require MPUC permits to be obtained before entering into a development agreement.  It only required MPUC permits to be granted before the actual development of the property.  The Court also stated that the township did not act outside of its authority by entering into the development agreement since the agreement is contingent upon SRE getting the necessary permits.

Concerned River Valley Citizens further alleged that the development agreement violated their due process rights because it may have prejudiced future opinions of the project.  The agreement might have been perceived as governmental endorsement of the development before any permits were obtained.  They also claimed that it prevented the public from having a say in discussions regarding the location of the power plant.  The Court disregarded this claim, finding that Concerned River Valley Citizens’ assertions about the prejudicial effect of the development agreements were simply speculation unsupported by facts.  The Court affirmed the district court’s decision in favor of SRE and LS Power.

Landowner could not limit access of easement holder to one specific route

by Victoria Heldt

Enbridge Energy, LP v. Donovan Dyrdal, et al.
(Minnesota Court of Appeals, October 24, 2011)

The Dyrdals own agricultural property that is subject to easements held by Enbridge Energy.  The easements were granted in 2009 by the power of eminent domain and allowed Enbridge “rights of ingress and egress as are reasonably necessary or convenient in the exercise of such easement rights.”  Enbridge, a public-service corporation, installed and maintained pipelines in the easement.  Soon after completing the pipeline installation, Enbridge discovered problems at two locations, so the crew began working to correct them in January of 2010.  They used a field road on the Dyrdal property to access the two spots.  In response, the Dyrdals placed large hay bales across the field road and in the ditch between the problem sites, preventing Enbridge from accessing their work site.  Enbridge claimed this delay cost them an additional $28,697.80 in project costs.

Enbridge sought a declaratory judgment and injunctive relief in district court alleging a breach of easements and a violation of the eminent-domain order, among other things.  They also moved for a temporary injunctive relief to prevent the incident from reoccurring during litigation, which the court granted.  The Dyrdals countered with a claim of immunity under Minnesota’s statute preventing strategic litigation against public participation (SLAPP).  The statute’s goal is to prevent parties from using the threat of costly litigation to silence those who want to debate public issues.  The district court eventually granted Enbridge’s motion for summary judgment on the issue of declaratory relief, finding Enbridge did indeed have the right to access the property to maintain the pipelines.

The Dyrdals appealed, their first claim being that the district court erred when it denied their request for partial summary judgment on the grounds of Minnesota’s anti-SLAPP statutes.  The anti-SLAPP statute can be used to dismiss claims that relate to public participation.  The Court noted that public participation is defined as “speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action.”  The Dyrdals argued that, since Enbridge gained access to the property by means of an eminent-domain procedure, it was acting as a government agent in its actions.  Consequently, they claimed that the anti-SLAPP statue was applicable.  The Court disagreed.  They noted that the power of eminent domain does not make the entity a government agent once the power has been exercised.  In addition, they found that Enbridge was exercising its rights as an easement owner, not a government agent, in accessing the property.  Further, the Dyrdals previously claimed that they placed the hay bales on the road in order to load them and not to interfere with Enbridge’s work.  If that is true, then their conduct was not to “procure favorable actions from Enbridge,” but for their own private farming operations.  As a final note, the Court noted that it had recently found that a preexisting legal relationship could limit a party’s ability to file an anti-SLAPP claim.

The Dyrdals also alleged that the district court abused its discretion when it granted temporary injunctive relief.  In evaluating whether a temporary injunction is appropriate, the Court considers five factors:  1) the nature and background of the relationship between the parties; 2) the balance of harm to the parties; 3) the likelihood that the party seeking the injunction will prevail on the merits of the action; 4) wither there are public-policy considerations; and 5) whether there are any administrative burdens involved in judicial supervision and enforcement of the temporary injunction.  After analysis, the Court found that the first three factors favored Enbridge, while the last two were neutral.

The Dyrdals focused mainly on the third factor.  The Court had reasoned that the language in the eminent-domain ruling showed Enbridge had a clear right to access the property and that constituted a showing that they would most likely win on the merits of the case.  The Dyrdals claimed that the real-estate doctrine of practical location limited Enbridge’s right of entry to one specific route.  The boundary by practical location can be established by acquiescence if one party chooses a specific route and the other agrees accepts it over a period of time.  The Dyrdals contend that an alternative route (and not the field road) that was previously used had been established by acquiescence.  The Court noted the plurality in the phrase “rights of ingress or egress” that appeared in the eminent-domain ruling.  It found that the ruling did not prescribe one specific route of access, so the Dyrdal’s claim was insufficient to disprove the likelihood of Enbridge’s success in a claim.  Additionally, the practical location by acquiescence doctrine requires acquiescence over a period of time.  In this case, the easement was relatively new and substantial time had not passed in which to establish a route by acquiescence.  The Court affirmed the district court’s decision regarding the temporary injunction.

With no vested right to develop under old ordinance, clock requiring agency action does not start

by Victoria Heldt

Kraemer Mining & Materials, Inc v. City of Sauk Rapids
(Minnesota Court of Appeals, July 5, 2011)

In 2004, Kraemer Mining Materials leased 164 acres of land located within the Sauk Rapids Township with the intent to mine granite deposits from the property.    At that time, Joint Board Ordinance 13 governed land use regarding mining operations.  It stated that mining was a conditional use and required a conditional use permit that would expire automatically in five years.  On May 11, 2007 Kraemer requested a conditional use permit and a variance from the five-year limit in Ordinance 13 since they anticipated the project to last between 20 and 40 years.    The Board was informed of Kraemer’s request, but did not review it because the size of the proposed mine required an Environmental Assessment Worksheet (EAW).  Kraemer was notified of the need for an EAW on May 29, 2007.  The same notification also stated that the 60-day deadline for an agency to act on a zoning request (required by Minn. Stat. § 15.99) would not begin to toll until the EAW process was complete.

During the 15 months that it took Kraemer to complete the EAW, the Board amended its zoning ordinances.  The goal of the amendment was to ensure that similar conditions were placed on future mines as those that the Board previously placed on a mine operated by Bauerly Bros. Inc.  In 2005, the Board granted an interim-use permit to Bauerly that contained conditions that were not contained in Ordinance 13.  In August of 2007, the Board adopted Ordinance 23 which it later included as Section 14 in Ordinance 25.  Ordinance 25 codified Ordinance 13 and all subsequent amendments into one easy, user-friendly ordinance.

On August 27, 2008 Kramer was notified that the EAW process was complete, and that it did not need to file an environmental impact statement.  Two days later, on August 29, 2008, Kraemer received a notice from Marney Curfman (City Planner) stating its conditional use permit application was now incomplete as it did not contain all of the information required by Section 14 under Ordinance 25.  The notice also informed Kramer that the 60-day deadline for acting on an application would not start until a complete application was received Although Kraemer felt that Ordinance 13 still applied to their application since it was in effect when the request was submitted, they submitted a second application for a conditional interim use permit (CIUP) that conformed to Ordinance 25.  In January of 2009 the Board unanimously approved Kraemer’s conditional use permit but denied its request for a variance from the five-year limit.

In district court, Kraemer argued that the Board violated the Minn. Stat. § 15.99, requirement that an agency address a permit application within 60 days.  They also claimed that several conditions in Section 14 were invalid under state law a lacked a rational basis.  Kraemer attempted to depose several people (i.e. the City Attorney, City Planner, and Community Development Director) but the Board objected to the depositions.  The court granted summary judgment for the Board.

On appeal, Kraemer brought forth its original two claims in addition to a challenge of the district court’s decision to deny Kraemer’s motion to compel depositions.  Kraemer argued that the Board violated Minn. Stat. § 15.99 based on two points.  It was of the opinion that Ordinance 13, and not Ordinance 25, applied to its application for a permit.  If this were the case, the clock on the 60-day limit would have begun to tick on August 27, 2008, when the environmental review process was complete, and the Board would have had to address it by October 27, 2008.  The Court disagreed with this logic.  It noted that the language of Ordinance 25 was clear in that it was to be “effective immediately.”  This means it applies to pending applications, consistent with the well-recognized principle that “there is no vested right in zoning.”  Only if a development has “progressed sufficiently with the physical aspects of the project or made a binding commitment to develop the property” can a developer use the vested rights principle to avoid the application of new rules.  Kraemer attempted to counter this decision with a previous case (Eagle Lake) where the Court ruled that a new zoning rule should not be retroactively applied.  This argument was rejected because the decision in Eagle Lake in fact held that the city could have discretion on which zoning rule to apply.  In this case, the Board has the discretion to apply the new ordinance if it so chooses.  The second part of Kraemer’s first claim asserts that the Board violated section 15.99 on the grounds that the letter received from the City Planner did not constitute notification by an “agency action” as required by the statute.  The Court dismissed this claim, stating that Curfman’s status as an employee of the City of Sauk Rapids is sufficient evidence that her letter is an agency action.

Next Kraemer contends that a CIUP is a “hybrid” permit that the Board is not authorized to make.  The Court disagreed, noting that Minn. Stat. § 462.3597 specifically allows municipalities to grant permits for interim uses of property.” The fact that the Board referred to the permit as a conditional interim use permit (as opposed to an interim use permit, with conditions) is irrelevant.  It is still simply an interim use permit regardless of its title.  Finally, Kraemer claimed that the five-year limitation on conditional permits lacks a rational basis because it does not “minimize conflicts with future development.”  All future development is hypothetical and the Board cannot predict when development will begin.  The Court decided that the five year limit is reasonably related to the purpose of preserving the transitional nature of the area, which will minimize conflicts with future development.  The Court also dismissed Kraemer’s claim that the mine will not have a detrimental effect on the surrounding property based on many complaints from property owners surrounding the Bauerly mine.

The Court ruled that the district court was correct in its refusal to compel depositions since the Board’s decision would be limited to the administrative record, the information was irrelevant, and the depositions would “impermissibly inquire into the mental impressions of the Board and its staff as well as information protected by attorney-client privilege.”

The Court of Appeals affirmed the district court decision.





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