An Ally In Your Battle To Protect Your Rights

ON YOUR PROPERTY RIGHTS AND CHIEF JUSTICE LORIE SKJERVEN GILDEA

Lorie Skjerven Gildea is the Chief Justice of the Minnesota Supreme Court.  She is the strongest voice in Minnesota history for protecting your rights as a law-abiding citizen to own the property for which you have paid or you are paying.

Frequently, there are bureaucrats or legislators who will try to take your property or restrict your property through regulation.  The government also may help other parties to take nor regulate your lawful use of your property.  The government may also restrict your rights by ignoring the rules on taxes and regulatory inspections.  You also have rights that must be enforced when foreclosure is being pursued.

Here are one- or two-page explanations of 38 cases where Chief Justice Lorie Skjerven Gildea has stood strong for your property rights.

PROPERTY TAKINGS:  Here are brief discussions of nine cases regarding government attempts to take your private property or allow corporations or other people to take your land with or without payment. 

“TAKINGS” BY REGULATION:  Here are brief discussions of sixteen cases where the government tried to restrict owners’ legal use of their land without compensation to the point that the land lost significant value. 

OTHER REGULATIONS ON PROPERTY:  Here are four brief discussions of regulations on property and privacy.  The first case decides whether local “safety” ordinances can be stricter than the state building code.  The other three cases involved evolving rules for “health and safety” inspections of rental properties and the standards of “probable cause” for administrative search warrants.

FORECLOSURE:  The next six cases deal with the rights of property owners and lenders in foreclosure cases.

PROPERTY TAXES:  These three decisions deal with questions about property taxes. 

Chief Justice Lorie Skjerven Gildea has a steady hand and a sharp eye to protect your property rights.

Questions About Your Right To Own Private Property In Minnesota

1.  Can the government take your home or part or all of your land?

2.  Can the government give a corporation or another person the power to take your home or your land if they convince the politicians or bureaucrats that they can do better things with it than you can?

3.  Do tenants have rights if the government takes their landlord's property?

4.  If the government takes a 50-foot strip off your land, but you do not know that until you re-survey the property thirty years later, can you still deserve compensation?

5.  Is your homestead still protected if a family member is convicted of a drug crime?

6.  If the government takes your land, how is a fair level of compensation to be determined?

7.  If a regulation or a road project cuts off your access to your land, can you get a new route or access?

8.  What happens when a government regulation destroys or sharply reduces the value of your land?

9.  What happens when politicians say you can no longer have your campground, a golf course, ur your store in your city?

10.  What happens when your local government gives you a permit to build a house, but a state agency says you cannot, even though the state agency does not have the authority to block you?

11.  What happens when bureaucrats delay your efforts to get a permit, sometimes for over ten years, without making a decision?

12.  Is it your fault if you ignore limits in your permit if you claim you never read your permit?

13.  If you own your house and 2.4 acres in the country, can your neighbor block you from adding a room where you want to do yoga and arts and crafts?

14.  Can the local government search your property without a warrant or probable cause to believe you have violated laws or local rules?

15.  Will your rights be enforced if you get involved in losing or buying a foreclosed property?

16.  Can you avoid "check-kiting" charges if you protest by intentionally using a bad check to "pay" your property taxes with a bad check?

17.  Can a City avoid a ban on taxing church property by disguising an assessment as a "fee" as a "tax?"

You have federal and state rights when someone interferes with your property rights.  You need Chief Justice Lorie Skjerven Gildea to assess  the facts, apply the aw, and protect your rights!

Nine Cases On "Government Takings" Of Private Property

PROPERTY TAKINGS:  Here are brief discussions of nine cases regarding government attempts to take your private property. 

In three decisions, with the Legislature’s help, huge utilities tried to take family homes, farms, and businesses for a multi-billion-dollar power-line between the Monticello power plant and the Rockies without paying the required fair compensation.  Gildea saved family farms, home owners, and tenants.

In a fourth situation, the government tried to take land without fair compensation just because the family did not discover the uncompensated "taking" for three decades.  Gildea said, "if you take, you must pay."

In a fifth case, where the government took a business site, the language of the lease was crucial in allocating the government’s payment for the taken property.  Gildea ruled tenants have rights, which they can waive.

A sixth case emphasized Minnesota’s protection of a family homestead, even from drug forfeitures.  Gildea noted that homesteads have had special protection against all uncompensated "takings."

Two more cases laid out the way courts should define fair compensation for certain kinds of property “takings” cases. Gildea noted that Minnesota's oldest laws hold that "Private property shall not be taken without just compensation."

In a ninth case, the Supreme Court considered a problem where a government taking of two neighbors’ land for a highway led to the need for a second “taking” of a strip of a third neighbor’s land to give access by the first two neighbors to their own long driveways.

The Most Humble Farm Is Protected in "Takings" Cases

1/ “SAVE THE FARM”:  The Minnesota Legislature decided it was important to help utilities to build a huge power-line between the nuclear power plant at Monticello and a transfer station in Fargo.  To help the utilities, the Legislature gave them the power to go into court and seek “eminent domain” power to build seven-story towers on people’s land for the CapX2020 power-line project. 

Some of these towers were to be built just 150 feet from people’s houses.  The line extends 700 miles toward the Pacific Northwest.

To protect the land-owners’ rights, the Legislature required that owners could either negotiate settlements with the utilities to tolerate the towers, or they could ask a court to set a fair price and require the utilities to buy their property.  This was called the “Buy the Farm” option.

Dale and Janet Tauer owned a nine-acre farmstead, and they elected to require the utilities to buy the entire property for a fair price, as required by the statute.  The utilities’ lawyers asked the courts to ignore the statute and consider how small the foot-print of the tower would be compared to the nine-acre plot.

Chief Justice Lorie Gildea wrote: “Absent a constitutional challenge, which this case does not present, we are limited to interpreting the plain language of the statute.  Great River’s proposed interpretation of the Buy-the-Farm statute adds factors to the statute, is inconsistent with the statute’s language, and is unsupported by our case law.  In approving the election, the district court considered the factors listed in the plain language of the statute; the district court found that the Tauers’ land is contiguous, commercially viable, and non-homestead agricultural land.  Great River does not dispute these findings and that ends the inquiry.”

READ THE FULL CASE DECISION:
Great River Energy, et al., Appellants, vs David D. Swedzinski, et al., Respondents.

March 4, 2015    A13-1474,               2015-022*      

https://mn.gov/law-library-stat/archive/supct/2015/OPA131474-030415.pdf

The Most Humble Home Is Protected In "Takings" Cases

2/ “SAVE THE HOUSE”:  Chief Justice Lorie Skjerven Gildea joined Justice Alan Page in protecting the rights of homeowners who were faced with seven-story towers just outside their bedrooms in houses between St. Cloud and Monticello.

The home-owners had been promised the same rights to due process and compensation as the farmers when the Legislature gave the utilities the power of “eminent domain” to seek “quit claim” seizures of land for the CapX2020 power-line.

The utilities’ lawyers tried to claim that homeowners did not really have the right to either negotiate settlements with the utilities to tolerate the towers, or to ask a court to set a fair price and require the utilities to buy their property.

The Supreme Court held that property owners had the right to seek costs for replacing their homes and moving to comparable housing.


READ THE FULL CASE DECISION: 

Northern States Power Company,et al., Respondents, vs. Roger A. Aleckson, et al., Appellants.

May 29, 2013   A11-1116,   2013-078            https://mn.gov/law-library-stat/archive/supct/1305/OPA111116-0529.pdf

Tenants Can Also Be Protected From "Takings" Of Land

3/ PROPERTY RIGHTS OF TENANTS ARE PROTECTED IN EMINENT DOMAIN CASES TOO:  Chief Justice Lorie Skjerven Gildea joined with Justice Alan Page in solidifying the rights of tenants to due process and compensation when the power of “eminent domain” is used to force them from their homes.

The Supreme Court held: “Great care must be exercised to ensure that tenants are treated fairly and equitably.  For example, if the tenant-occupant of a dwelling will not be displaced, but is required to relocate temporarily in connection with the project, the temporarily occupied housing must be decent, safe, and sanitary and the tenant must be reimbursed for all reasonable out-of-pocket expenses incurred in connection with the temporary relocation. Temporary relocation should not extend beyond one year before the person is returned to his or her previous unit or location.”

READ THE FULL CASE DECISION: 
Northern States Power Company,et al., Respondents, vs. Roger A. Aleckson, et al., Appellants.

May 29, 2013   A11-1116,   2013-078            

https://mn.gov/law-library-stat/archive/supct/1305/OPA111116-0529.pdf
See Page 14 of the Opinion.

"Because The Government Says So" Is Not A Substitute For Required Compensaation

7/ “THEY DON’T GET TO KEEP IT WITHOUT PAYING JUST BECAUSE THEY TOOK IT”:  Then-Justice Gildea wrote for the Supreme Court against uncompensated government taking of private property in this case.

The Hebert family registered six plots of land on the north shore of Mitchell Lake in 1953.  The City of Fifty Lakes built a gravel road abutting the north edge of the Herbert plots and other lakefront properties in 1971.  The public used the road for over 30 years.  When re-surveying the plots in 2004, the Heberts discovered that the City had shaved off strips up to 49 feet wide off the north sides of the plots.

The City refused to shift the road-bed.  The City refused to compensate the Heberts, claiming that too much time had passed before the Heberts made a claim.  The City claimed that it had a right to preserve an uncompensated “de facto” taking of the Hebert land.

First, Justice Gildea rejected the City’s claim that it had earned the right to keep the Heberts’ land without compensation in this case through “de facto” taking of the property.  She wrote that “eminent domain proceedings provide private landowners with notice, due process of law, and the opportunity to secure just and fair compensation.  In contrast to the government’s initiation of eminent domain proceedings, a de facto taking would operate informally in this case because there was no court action or formal process initiated by the City.  Allowing the City to acquire the land at issue here by de facto taking would operate in the same way as if the City acquired the land by adverse possession in that in both situations, a landowner is deprived of rights to land due to actions of another.  For all of these reasons, we hold that the City did not acquire an interest in the land at issue by de facto taking.”

Second, Justice Gildea ruled that the passage of time would not bar relief for the property owners if the incursion onto their land was “continuing."

Finally, Justice Gildea returned the case to the trial court for determinations of fact and, if justified, the form and amount of relief for the land owners that should be granted.

She also noted: “Our holding should not be misinterpreted to preclude owners of Torrens property from seeking compensation under the Takings Clause in either the United States or Minnesota Constitution. This issue is not before us and we express no opinion on it.”


READ THE FULL CASE DECISION: 

John Wesley Hebert, et al., Respondents, vs. City of Fifty Lakes, Appellant.

January 17, 2008 2008-008            https://mn.gov/law-library-stat/archive/supct/0801/OPA060215-0117.pdf

Contracts Can Be Crucial In Dividing "Taking" Settlements

9/ “CONTRACTS CAN BE CRUCIAL IN A TAKINGS CASE”:  Noble owned and leased land used by the SuperAmerica located next to the MSP Airport.  In 2004, the Metropolitan Airports Commission secured a court order to acquire the property through eminent domain.

The MAC made a single award of damages for the value of land and improvements to Noble.  The MAC allocated another portion of the award for the value of immovable fixtures and effectively left it to the courts to determine who was entitled to the allocation under the terms of the lease and applicable Minnesota law. 

SuperAmerica sued Noble for the value of the immovable fixtures.  It won in the district court and lost in the Minnesota Court of Appeals.

In 2009, then-Justice Gildea joined the unanimous Supreme Court in awarding the whole settlement for the taking to Noble because of the contract language in the lease.

The lease between Noble and Super America contained a condemnation clause that terminated the lease upon condemnation.  A “damages” clause gave Noble all rights to a condemnation award, with separate language that Noble ‘shall not be entitled to any award made to [lessee] for the fair value of, and cost of removal of stock and fixtures, provided a separate award is permitted by the taking authority directly to [lessee].” 

The commissioners clearly did not make a ‘separate award” “directly” to Super America.  We conclude that section 18(c) does not apportion part of the award to Super America and we therefore affirm the court of appeals decision to grant the fixtures award to Noble.

READ THE FULL CASE DECISION: 

Metropolitan Airports Commission, Respondent, vs. Thomas W. Noble, Respondent.

April 9, 2009                        2009-
https://mn.gov/law-library-stat/archive/supct/0904/OPA062400-0409.pdf

A Family's Homestead Rights Overcome Drug Forfeiture Laws

21/ “HOMESTEAD RIGHTS ARE MORE IMPORTANT THAN DRUG FORFEITURES”:  When a person is convicted of certain crimes, state law allows the court to order the forfeiture of the convict’s property if it was used in the crime or was a fruit of the crime. The court often orders that many of the proceeds of the sale of these assets often go to the budgets of the prosecutors and law enforcement agencies involved in the seizure.

That law conflicted with a set of Minnesota’s oldest laws which prohibit the seizure of a family’s homestead to pay any obligation.  This protection stretches back to territorial days and has always been in the Minnesota Constitution.  Under current law, this homestead shield protects up to 160 acres and a value up to $300,000.

Kent Feigum and Luverne Johnson pleaded guilty to drug felonies in Renville and Yellow Medicine counties.  The district courts ordered the forfeiture of their homesteads.  The Court of Appeals reversed those decisions because the homestead shield barred the seizure of homesteads to satisfy any obligation.

The Supreme Court held that the forfeiture statute was unconstitutional in cases where homesteads were ordered to be forfeited.

. In a concurring opinion Justice Gildea opined: “I join in the majority’s conclusion to affirm the court of appeals, but I write separately because I believe that we should resolve this case without reaching the constitutional question the majority decides.  Respondents argue that Minnesota’s forfeiture statute is unconstitutional because it allows their homestead property to be subject to forfeiture.  Under the constitution, “[a] reasonable amount of property shall be exempt from seizure or sale for the payment of any debt or liability.”  Minn. Const. art I, § 12.  The constitution leaves it to the Minnesota Legislature to determine “[t]he amount of such exemption.”  There are two statutes that relate to the exemption amount in this case: the homestead exemption statute, and the forfeiture statute. We generally avoid reaching constitutional questions “if there is another basis on which a case can be decided.”  

Following our general practice, I would resolve this case based on the language of the two statutes, rather than reaching the constitutional question.  

 In the homestead exemption statute, the legislature provides for property up to a certain value and size to be “exempt from seizure under legal process on account of any debt not lawfully charged thereon.”  In the forfeiture statute, there is no limit on the value of property subject to forfeiture.   (“All property, real and personal, that has been used [in connection with controlled substances crimes] is subject to forfeiture under this section.  The statutes thus conflict.  

The legislature has directed that when two statutes conflict, the more specific provision controls over the general.  (“When a general provision in a law is in conflict with a special provision in another law, the special provision shall prevail and shall be construed as an exception to the general provision.”).  The homestead exemption statute is more specific because it relates to a specific type of property, the homestead, whereas the forfeiture statute applies to all types of property.  Being the more specific statute, the homestead exemption statute therefore controls.  Because the government seeks to forfeit property that falls within the statutory exemption of Minn. Stat. §510.01, I would hold that the forfeiture should have been denied.   


READ THE FULL CASE DECISION:  

David Torgelson, Renville County Attorney vs Kent Feigum

May 22, 2008                       2008-055            

https://mn.gov/law-library-stat/archive/supct/0805/OPA061507-0522.pdf

How To Determine "Minimum Compensation" For A "Taken" Business

33/ “WHAT IS THE MINIMUM-COMPENSATION VALUE OF A TAKEN PROPERTY?”: George Cameron operated a liquor store in his 1885 building in Inver Grove Heights.  The government took his building for a highway project in 2008.

Cameron requested $2,175,000 to purchase vacant land across the street and build a new liquor store.

The County offered him the appraised value of $560,000, He appealed, and a court-appointed panel offered him $655,000.  He appealed, and the district court awarded him $997,000 because the panel had not calculated the value of Cameron’s old basement, which he had used for storage for the business.

The Court of Appeals and the majority of the Supreme Court upheld that award.  Because Cameron was the prevailing party in a “takings” case. They also upheld an award of attorney’s fees of $161,000 which was one-third of the difference between the County’s last offer and the final award.

Chief Justice Gildea joined the dissent of Justice Barry Anderson because they disagreed with the majority’s convoluted and uninstructive definition of the hypothetical “community” where Cameron could move his business for setting the value of his compensation.


READ THE FULL CASE DECISION: 
The County of Dakota, Respondent, vs. George W. Cameron, IV, Appellant.
November 27, 2013                            A11-1273,             2013-167
https://mn.gov/law-library-stat/archive/supct/1311/OPA111273-1127.pdf 

How To Assess The Value Of "Taken" Property

20/ “HOW TO VALUE TAKEN PROPERTY AND ASSESS DAMAGE TO OTHERS”: The Moorhead Economic Development Authority exercised a “quick take” procedure to acquire over 20 properties for a major project.  The developer discovered that there was fuel-oil soil contamination on the former property of Anda and two adjoining plots. 

Under contractual time pressure to deliver Anda’s property and the adjoining properties to a franchise developer, MHA acted quickly to remediate the contaminated properties.  The remediation process for the three properties took approximately one week to complete and cost $1,599,568.

Court-appointed commissioners awarded Anda $488,750 as compensation for the taking of his property. 

Both Anda and MEDA appealed the commissioners’ award to the Clay County District Court.   MEDA also commenced a separate action against Anda to recover damages for the cost of remediating the contaminated discovered on the two adjoining properties, which MEDA alleged was a result of fuel oil leaking from Anda’s properties.  The parties agreed to consolidate the actions.  At trial, the jury found Anda’s property was worth $455,000 “had it not been impaired by fuel oil contamination” and $0 “taking into account the fuel oil contamination.”  The jury also found Anda liable for the contamination of the two adjoining parcels in the amount of $474,512.   The court then concluded that Anda was not entitled to damages for the taking of his property because the cost of remediating Anda’s property exceeded the property’s fair market value.

The Supreme Court held that justice required the case be remanded for a new trial to determine just compensation due Anda for the taking of Anda’s property. When the government condemns property that is contaminated at the time of the taking, the property should be valued “as remediated” rather than as contaminated or as clean. 


READ THE FULL CASE DECISION: 

Moorhead Economic Development Authority, Respondent, vs. Roger W. Nada, et al., Appellants.

September 2, 2010.                            2010-103            

https://mn.gov/law-library-stat/archive/supct/1009/OPA071918-0902.pdf

When The Government Cuts You Off From Your Land

27/ “WHEN ONE TAKING REQUIRES A SECOND TAKING”:  To improve Highway 61 in Cook County, the state had to cut off access to two neighbors’ long driveways.  To restore the neighbors’ access to the land from different angle, the state needed to take a slice of Richard Lepak’s land for an access road.

Lepak challenged the second taking with a claim that this was not for a “public use.”  Lepak lost in the district court and the Court of Appeals.

Chief Justice Gildea joined a unanimous Supreme Court in finding that a public purpose did exist for the taking.  The opinion included a discussion of the power of eminent domain.

“Under the U.S. Constitution, private property shall not “be taken for public use, without just compensation.” The Minnesota Constitution similarly provides that “[p]rivate property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured.” 

"MnDOT is authorized by the Legislature to condemn property to carry out constitutionally mandated goals.  Article 14, section 2, of the Minnesota Constitution creates “a trunk highway system which shall be constructed, improved and maintained as public highways by the state.”  State law provides that the Commissioner of MnDOT “shall carry out the provisions of the Constitution of the state of Minnesota.” 

"In line with that directive, “[t]he [C]ommissioner is authorized to acquire by purchase, gift, or by eminent domain proceedings as provided by law, in fee or such lesser estate as the Commissioner deems necessary, all lands and properties necessary . . . in laying out, constructing, maintaining, and improving the trunk highway system” and “to locate, construct, reconstruct, improve, and maintain the trunk highway system.”  In this manner, MnDOT acts on behalf of the Legislature, in which the sovereign power to condemn private property is vested, to conduct the essential legislative function at issue in this case.”


READ THE FULL CASE DECISION: 

Commissioner of Transportation, Respondent, vs. Richard Lepak, Appellant.

August 10, 2011   2011-081           

https://mn.gov/law-library-stat/archive/supct/1108/OPA091894-0810.pdf

Sixteen Cases On "Regulatory Taking" Without Compensation

Government cannot reduce the value of your property by a great deal with new regulations because due process requires government to compensate you for a “regulatory taking."

“A landowner must be compensated if his or her property sustains a substantial and measurable decline in market value as a result of the application of an ordinance to the property.”

“TAKINGS” BY REGULATION:  Here are brief discussions of sixteen cases where the government tried to restrict owners’ legal use of their land without compensation to the point that the land lost significant value. 

In the first five cases, government tried to use various regulatory powers to destroy the uses of certain kinds of private property. 

In the sixth and seventh cases, a state agency tried to use power it did not have to over-rule a local permit for the use of private property. 

In an eighth  case, a trial judge tried to change the rules in the middle of a land-use dispute. 

In the ninth and tenth cases, property owners sought their rights to timely decisions in permit disputes. 

In an eleventh case, opponents of a valid permit tried to raise issues that might have been considered by the local board if they had raised them in the first and succeeding proceedings. 

In a twelfth case, the Supreme Court was asked to interpret the constricted language of an inflexible statute. 

In the thirteenth and fourteenth cases, the Supreme Court weighed the rights of people to assert their lawful easements across other people’s land. 

In a fifteenth case, the Supreme Court weighed whether an owner could be excluded from her own home for more than a year because the neighbors did not like her drinking after she had stopped all noise and police visits for more than a year. 

In a sixteenth case, a divided court battled over whether a statute could be stretched in a dispute between a landlord and a person who had never lived in an apartment building.

Regulation Can "Take" Most Of The Value Of Your Land

4/ “REGULATORY TAKING”:  Government cannot reduce the value of your property by a great deal with new regulations which due process requires government to compensate you for a “regulatory taking.”

Leon and Judith DeCook bought 240 acres of farmland north of Rochester in 1989.  They developed much of the land into the Oak Summit Golf Course.  This was permitted under current zoning laws even though some of the land was under the regulatory power of the local airport zoning board because it was ruled to be in Airport Approach Zone A.

In 2002, the airport zoning board expanded Approach Zone A to cover most of the golf course, and it excluded golf courses from the list of permitted uses.  The DeCooks alleged that the Board’s decision constituted a taking or damaging of private property for public use for which the DeCooks must be compensated.

A jury found that the new ordinance was a regulatory taking and that the DeCooks must be compensated with $170,000.  But the trial judge ruled that the diminution of value determined by the jury did not constitute a taking as a matter of law and entered judgment in favor of the Board.

The Supreme Court held: “A landowner must be compensated if his or her property sustains a substantial and measurable decline in market value as a result of the application of an ordinance to the property.”


READ THE FULL CASE DECISION: 

Leon S. DeCook, et al., Respondents, vs. Rochester International Airport Joint Zoning Board.

March 30, 2011     2011-032            

https://mn.gov/law-library-stat/archive/supct/1103/OPA090969-0330.pdf

Some Bureaucrats Try To Drive Up Your Costs, Even When They Lose

5/ “SOME BUREAUCRATS”:  If you doubt that some local bureaucrats can be tough on property owners who successfully challenge their abuse of their regulatory powers, consider the case of the Rochester golf course.

After the Supreme Court ordered the case to be returned to the local court for restoration on the jury’s verdict of $170,000 for the DeCooks,  the DeCooks sought their attorney’s fees for three appeals:  the 2007 appeal to the Court of Appeals which overturned the trial court’s dismissal of the DeCooks' initial claim which then required a jury trial; the DeCooks’ 2010 appeal to the Court of Appeals which overturned the trial court’s rejection of the jury’s award of $170,000 to the DeCooks; and their 2007 defense of that decision from the bureaucrats’ appeal to the Supreme Court.

Here, the Supreme Court ordered the airport board to pay $70,000 to the DeCooks for their attorney costs for the 2011 appeal.


READ THE FULL CASE DECISION: 

 Leon S. DeCook, et al., Respondents, vs. Rochester International Airport Joint Zoning Board

March 28, 2012                   2012-026      

https://mn.gov/law-library-stat/archive/supct/1203/ORA090969-0322.pdf

Bureaucrats Cannot "Take" The Value Of Your Open Space Through Inaction

6/ “REGULATORY TAKINGS” CAN INCLUDE “REFUSALS TO AMEND”:  In 2004, Eagan had three competitive golf courses.  The Carriage Hills Golf Course reportedly was losing money, and since 2000 had been in negotiation with the city to make water, sewer, and road improvements to meet the city’s growing housing demand by converting the zoning for the course into “residential.”

Facing opposition from current home-owners, the City Council rejected the re-zoning request in 2004 and the golf course closed.

In 2005, the district court found that the City Council’s denial of the re-zoning request was a “regulatory taking.”  That was reversed by the Court of Appeals in 2006, concluding that the city had rational bases for denying the comprehensive plan amendment, and the property owner had no basis for a takings claim.

Then-Justice Gildea, writing for the Supreme Court, held: “The purpose of the Takings Clause “is to ensure that the government does not require ‘some people alone to bear public burdens which, in all fairness and justice, should be borne by the public.’”  This is precisely what the property owner is arguing in this case—that the denial of the comprehensive plan amendment will preserve open space for the benefit of the entire community while forcing the property owner alone to bear the economic burden.    

“It is well established that the government need not directly appropriate or physically invade private property to effectuate a taking.  In limited circumstances, government regulation of property may result in a taking.  The Supreme Court has observed that “government regulation involves the adjustment of rights for the public good,” and “[o]ften this adjustment curtails some potential for the use or economic exploitation of private property.”  In the context of government regulation, a taking may result when the government “goes ‘too far’ in its regulation, to unfairly diminish the value of the individual’s property, thus causing the individual to bear the burden rightly borne by the public.”  But as the Supreme Court recently noted, “[t]he rub, of course, has been—and remains—how to discern how far is ‘too far.’

 “Determining where a regulation ends and a taking begins “calls as much for the exercise of judgment as for the application of logic.”  Because the concepts of fairness and justice that underlie the Takings Clause “are less than fully determinate,” the Supreme Court has “eschewed any set formula for determining when justice and fairness require that economic injuries caused by public action be compensated by the government.”  Consequently, “the determination of whether a taking has occurred is highly fact‑specific, depending on the particular circumstances underlying each case.” 

“the Supreme Court identified “several factors that have particular significance” in the takings analysis.  “Primary among those factors are ‘[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment‑backed expectations.’  In addition, the ‘character of the governmental action’ may be relevant in discerning whether a taking has occurred.” 

After analyzing the facts of this case as they apply to economic impact, investment-backed expectations, and the character of the government action, Justice Gildea held that under a balancing of factors:  “The citizens of Eagan clearly value the open space that the golf course provides, but if the property owner is forced to leave the property undeveloped for the benefit of neighboring landowners without an opportunity to pursue a reasonable use of the property, the city is, in essence, asking the property owner to carry a burden that in all fairness should be borne by the entire community.  The city’s refusal to change the comprehensive plan designation places a substantial, uncompensated burden on a single property owner.”

She returned the case to the trial court to determine whether there was a “regulatory taking,” and if so, for a determination of the property owner’s damages and appropriate resolution.’’


READ THE FULL CASE DECISION: 

 Wensmann Realty, Inc., et al., Appellants, vs. City of Eagan, Respondent.

July 12. 2007     2007-094 

https://mn.gov/law-library-stat/archive/supct/0707/opa051074-0712.htm

When Bureaucrats Drag Their Feet So Your Neighbor Can Benefit

8/ “INACTION CAN ALSO BE A REGULATORY TAKING”:  Beginning in 2003, Mark Zweber sought permits from Scott County and Credit River Township to convert his land into a housing development. After seven years of qualified approvals and demanded revisions by the two boards, Zweber secured a court order directing Scott County to approve the 40-plot development in 2010.  The County did nothing for over two years.  In 2013, after ten years of bureaucratic lolly-gagging, Zweber was presented with a foreclosure notice by his creditor.

In 2014, Zweber won preliminary motions from the trial court on his federal claims that the local governments had amounted to an unconstitutional taking of property without just compensation under the United States and Minnesota Constitutions and 42 U.S.C. §1983.  Zweber also won early motions on a federal complaint asserting an equal-protection claim, alleging that he had received disparate treatment from that received by Laurent, a similarly situated developer, who had obtained similar permits on adjoining land.

The bureaucrats on the two boards rushed a pre-trial appeal to the Minnesota Court of Appeals, which held in 2015 that the county court did not have the jurisdiction to hear the two federal claims regarding Zweber’s allegations of “regulatory taking.”

In 2016, the Supreme Court held that the county court did have the jurisdiction to decide on Zweber’s claim.  Chief Justice Gildea suggested a more streamlined approach to resolving the matter in a concurring opinion.

READ THE FULL CASE DECISION:
Mark R. Zweber, Appellant, vs. Credit River Township, et al., Respondents.
July 27, 2016                      2016-094        

https://mn.gov/law-library-stat/archive/supct/2016/OPA140893-072716.pdf

What Bureaucrats Cannot Do One Way Cannot Be Done Another Way, This Time

34/ “CLUMSY REGULATION CANNOT KILL A CAMPGROUND”:  Elk River did not want a campground in the City.  First, it passed an ordinance making a campground a non-permitted use of land in the City.  Second, when challenged, the City then passed an ordinance that would require a campground to get a conditional-use permit for the campground.  Third, when Lorraine White secured such a permit, the City alleged that White had violated the permit and revoked it.

The district court held for White, concluding that Wapiti Park’s operation of the campground was a nonconforming use that could not be terminated by revocation of the conditional-use permit.  The Court of Appeals reversed and held for the City.

Chief Justice Gildea joined a unanimous Supreme Court in holding for Wapiti Park’s right to continue.

“A municipality lacks the authority to terminate a nonconforming use by requiring the property owner to obtain a conditional-use permit to continue the use and then revoking the conditional-use permit.  Respondent therefore lacked the authority to terminate appellants’ nonconforming use by revoking the conditional-use permit.”


READ THE FULL CASE DECISION: 

Lorraine White vs. City of Elk River, Respondent.

December 4, 2013              2013-171            A12-681

https://mn.gov/law-library-stat/archive/supct/1312/OPA120681-12042013.pdf

When State Bureaucrats Lack Authority To Over-ride A Local Decision

10/ “WHEN THE STATE LACKS AUTHORITY”:  Hubbard applied to the City of Lakeland for a variance in connection with Hubbard’s efforts to build a new home on a bluff overlooking the lower St. Croix River.  The City granted the variance.

The Department of Natural Resources (DNR) declined to certify the City’s action.  The DNR upheld its decision through a contested hearing pursuant to the Administrative Procedure Act. 

The court of appeals reversed the agency’s decision, concluding that the variance was deemed granted by operation of the “60-day rule” of Minn. Stat. § 15.99. 

Then-Justice Gildea wrote for the Supreme Court: “Because the Minnesota Department of Natural Resources lacked express and implied statutory authority to certify variance decisions by local units of government, the agency’s refusal to certify the variance has no effect.”


READ THE FULL CASE DECISION: 

In Matter of Denial of Certification of Variance Granted to Robert W. Hubbard by the City of Lakeland.

February 11, 2010                              2010-019            

https://mn.gov/law-library-stat/archive/supct/1002/OPA071932-0211.pdf

When State Bureaucrats Lack Authority To Over-ride A Local Decision

11/ “WHEN THE STATE LACKS AUTHORITY”:  Haslund applied to the City of St. Mary’s Point for a variance in connection with Haslund’s efforts to build a new home on a bluff overlooking the lower St. Croix River.  The City granted the variance.

The Department of Natural Resources (DNR) declined to certify the City’s action.  The DNR upheld its decision through a contested hearing pursuant to the Administrative Procedure Act. 

In this case, the Court of Appeals upheld the DNR’s denial of a certification because the City had granted the permit within the 60-day window.

The Supreme Court majority reversed the DNR denial of certification and upheld Haslund’s permit to build the house, but it used a complicated statutory analysis to reach that conclusion.

In a concurring opinion, then-Justice Gildea was more direct.  “I agree with the majority that Haslund should be permitted to develop his property in accordance with the variance he received from the City of St. Mary’s Point, but I reach this result for a different reason.   Because the DNR lacks authority to certify, its refusal to certify is of no effect.  I therefore would reverse the court of appeals.”


READ THE FULL CASE DECISION: 

In re Matter of Denial of Certification of Variance Granted to David Haslund by City of St. Mary's Point.

April 29, 2010                      2010-044            

https://mn.gov/law-library-stat/archive/supct/1004/OPA080427-0429.pdf

Judge Cannot Change Rules In Middle Of Property Lawsuit

16/ “IN SUIT ON LAND REGULATION, JUDGE CANNOT CHANGE RULES MID-STREAM”:  The City of Rochester had many battles over land regulation with Franklin P. Kottschade.  The current battle was over the regulation of two parcels of land in the city.

The district court ordered the City and the owner into arbitration.  When the City later asked the district court to cancel the arbitration and proceed to trial, the district court chose instead to enter judgment in favor of the City.

Chief Justice Gildea joined a unanimous Supreme Court in reversing that result.  It reversed the judgment for the City, returned the case to the district court, and directed the judge to await the results of the arbitration which the district court had ordered.

“The district court must stay a judicial proceeding when it compels arbitration because Minnesota’s Uniform Arbitration Act does not authorize the court to direct the entry of judgment after compelling arbitration.”


READ THE FULL CASE DECISION: 

Rochester, Appellant, vs. Franklin P. Kottschade, et al., Respondents.

June 07, 2017-054

https://mn.gov/law-library-stat/archive/supct/2017/OPA161203-060717.pdf

When Bureaucrats Drag Their Feet On Property Issues

19/ “YOU HAVE A RIGHT TO A TIMELY DECISION, AND . . .”:  A company (500 LLC) wanted to convert an abandoned and vacant building in the Warehouse District of Minneapolis into an office building.  As soon as the company applied to the City for the necessary permits, the City’s Heritage Preservation Commission nominated the empty hovel for designation as a “designated local historic landmark.”  This blocked the company from proceeding with its plans unless it could secure a “certificate of appropriateness” from the Commission.

The company applied for a “certificate of appropriateness” from the Commission.  Eighty-six days later, the Commission denied the request.

In Minnesota, when an owner applies for a property variance or exemption, the government must issue a decision within 60 days, or the government will assume that the request has been granted.

The company sought a court order directing the Commission to issue the certificate because the Commission had missed the deadline.  The company lost in both the district court and the Court of Appeals. 

Chief Justice Gildea joined a unanimous Supreme Court in the result of overturning the lower courts and returning the case to the district court with instructions to direct the Commission to issue the certificate.

“Because the City concedes that it failed to approve or deny 500 LLC’s application for a certificate of appropriateness within 60 days, we reverse the district court’s grant of summary judgment to the City on 500 LLC’s section 15.99 claim and remand for further proceedings consistent with this opinion.”


READ THE FULL CASE DECISION: 

500 LLC, Appellant, vs. City of Minneapolis, Respondent.

September 23, 2013           2013-144              A11-1705,

https://mn.gov/law-library-stat/archive/supct/1309/OPA111705-0925.pdf