IN COURT OF APPEALS
Filed April 10, 2007
Hennepin County District Court
File No. 27-CV-05-008914
Jay M. Heffern, Minneapolis City Attorney, Edward A. Backstrom, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402 (for respondent)
Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.
S Y L L A B U S
1. When a city elects to use its charter rules, the charter provisions must be followed throughout the particular proceeding. State law applies to the extent adopted by the charter or made expressly or impliedly applicable by the state legislature. Where charter rules and statutory provisions overlap, the charter rules govern.
2. A property owner dissatisfied with the city council’s confirmation of a special assessment is not required to have submitted prior written objections in order to preserve the right to appeal under Minneapolis, Minn. City Charter ch. 10, § 6 (2005).
3. A dissatisfied property owner has 30 days following the city council’s confirmation of a special assessment to file an appeal with the mayor or city clerk and an additional ten days to file with the district court under Minneapolis, Minn. City Charter ch. 10, §§ 6, 8 (2005).
O P I N I O N
On appeal from a summary judgment for the city in this special-assessment dispute, pro se appellant argues that the district court miscalculated the filing deadline for challenging a special assessment when it ruled that appellant’s appeal was untimely and, therefore, the district court lacked jurisdiction to address the challenge. We agree and reverse.
On April 19, 2005, the City of
The city’s notice informed recipients that a public hearing would be conducted “pursuant to Chapter 10, Section 6 of the Minneapolis City Charter.” Further, the notice assured recipients that “all written and oral objections” would be heard, and provided the following language regarding written objections and the appeals process:
At the time of the public hearing, the Committee will provide an opportunity for all interested persons to be heard regarding the proposed assessments and the Committee will consider all written and oral objections and statements.
Should a person be
unable to attend and wishes to object or comment, please send a written
objection or statement in sufficient time for it to arrive prior to the time of
the public hearing . . . If the proposed assessment is adopted or adopted as
modified and the owner of the property is dissatisfied with the assessment
against the property, the owner may appeal the assessment to the District Court. To appeal, there must be a written Notice of
Appeal served on the Mayor or City Clerk of the City of
It is undisputed that appellant did not file any objections with the city prior to the public hearing. At the public hearing, appellant and other affected residents submitted a signed petition, declaring a violation of their due process rights and requesting the city to stop all proceedings until Bryn Mawr residents received more information. Appellant conceded that the petition did not state objections to his assessment.
13, 2005, the Minneapolis City Council approved the special assessment. Appellant filed an appeal challenging the
special assessment with the
The district court granted the city’s motion for summary judgment, focusing on the jurisdictional issues that no objections were filed by appellant prior to the public hearing and that appellant’s June 20 filing with the district court was untimely. This appeal followed.
Did the district court err in granting summary judgment?
judgment is appropriate where there are no genuine issues of material fact, and
where the moving party is entitled to judgment as a matter of law.
“[A]ppeals by property owners from
assessments are wholly statutory, there being no common-law right to such
appeal, and that the conditions imposed by the statute must be strictly
complied with.” Wessen v.
Chapter 429 provides that if the
city proceeds under its charter rules for special assessments, “such provisions
shall be deemed to include a requirement that notices of proposed assessments inform property owners of the procedures
they must follow under the charter in
order to appeal the assessments to district court.”
If the proposed assessment is adopted or adopted as modified and the
owner of the property is dissatisfied with the assessment against the property,
the owner may appeal the assessment to the District Court. To appeal, there must be a written Notice of
Appeal served on the Mayor of City Clerk of the City of
This appeals language also complied with
the appeals process disclosure requirement in the city charter rules.
notice upon the Mayor or the City Clerk within thirty days after the City Council has adopted the assessments and by filing the notice with the clerk of the district court within ten days after its service. . . .”
Section 6 is ambiguous. Within the same sentence it states that a property owner may file written objections before an assessment is confirmed, and later indicates that only persons who objected have the right to appeal. The “may” language in section 6 differs from Minn. Stat. § 429.081 (2006), the statutorily prescribed appeals process:
Within 30 days after the adoption of the assessment, any person aggrieved, who is not precluded by failure to object prior to or at the assessment hearing, or whose failure to so object is due to a reasonable cause, may appeal to the district court.
(Emphasis added.) The statute requires either a prior objection in writing or an objection at the assessment hearing. The charter rules, however, do not include that requirement.
The district court cites Wessen for the proposition that failing
to file objections prior to the public hearing provides a basis for dismissal. In Wessen,
however, Minn. Stat. § 429.081 was utilized and not the city’s charter rules.
Given the disclosure requirement of Minn. Stat. § 429.021, subd. 3, which is deemed included if charter rules are utilized, and section 8 of the charter, both of which require disclosure of the appeals process, it is unreasonable that the city would be able to disclose less than the full appeals process. Such would be the case if a property owner was required, under the charter, to preserve a right to appeal by filing a written objection prior to the public hearing, where no mention of this step was made in the notice letter. Section 8 requires disclosure and provides language of the appeals process to be included in the notice sent to affected property owners. If there were an “additional” step required for property owners to preserve the right to appeal, this would always provide the city with an escape route to challenges of special assessments by property owners. Therefore, we conclude that under the charter rules prior objections are not required.
The district court found that appellant’s appeal was untimely. The question becomes what the charter rule states as the timeframe for filing an appeal. Appellant argues that he timely filed, understanding from the city’s April 19th notice that he had 30 days from the city’s adoption of the special assessment to file a notice of appeal with the mayor or city clerk, and “an additional” ten days to file with the district court.
The interpretation of a statute,
charter, or ordinance involves a question of law, which this court reviews de
within 30 days after the city’s adoption of the assessment and upon the district court within 10 days after serving the mayor or city clerk. (Put another way, a total of 40 days).
We accept the latter interpretation given that section 8 requires disclosure of the appeals process to affected property owners, and the language in section 8 is what appears in notices sent to property owners. Therefore, appellant had the right to reasonably assume he had 30 days to file his appeal with the mayor or city clerk and then an additional ten days to file with the district court. The city adopted the special assessment on May 13, 2005. Appellant filed an appeal with both the mayor and the city clerk 28 days later, on June 10, 2005. Then appellant filed the notice with the district court on June 20, 2005. Consequently, appellant timely filed.
Respondent argues that appellant
relies upon a theory for reversal of the summary judgment order that was not
previously argued before the district court.
Respondent contends that appellant asserts a new theory by now claiming
that he complied with section 8 filing requirements. Generally, a party may not “obtain
review by raising the same general issue litigated below but under a different
theory.” Thiele v. Stich, 425
N.W.2d 580, 582 (
both involved in this case and contain filing requirements, this issue was properly addressed.
D E C I S I O N
Because appellant timely filed his appeal with the mayor, city clerk and the district court, the district court erred in granting the city’s summary judgment motion.
 The charter references
chapter 429 only by stating the “attention of the user is called to the
following special acts relating to local improvements and assessments
therefore: . . . (3) Laws 1969, Ch. 499,
authorizing the city, at its option, to make local improvements and levy
special assessments either under its Charter or under M.S. Ch. 429 or other
 Chapter 10 does not define “may.” See Minn. Stat. § 645.44, subds. 15, 15a, 16 (2006) (providing that “may” is permissive, as opposed to “must” and shall” which are mandatory).
 Section 6 states, in relevant part, that
such person so objecting shall have the right to appeal from such order of confirmation of the City Council, to the District Court . . . at any time within thirty days after such order. Such appeal shall be made by serving a written notice of such appeal upon the Mayor or City Clerk . . . and by filing the notice of appeal upon the clerk of district court within ten days after its service.
 Section 8 states, in
relevant party that “the owner may appeal to district court by serving a notice
upon the Mayor or the City Clerk within thirty days after the City Council has
adopted the assessments and by filing the notice with the clerk of district court
within ten days after its service . . . .”