This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (2000).






City of South Haven, a municipal corporation

under the laws of the State of Minnesota,





John James, et al.,





Larry L. Miller, et al.,

Respondents Below.


Filed September 11, 2001


Parker, Judge*


Wright County District Court

File No. CX-00-1675


Michael C. Couri, Couri & MacArthur Law Office, P.O. Box 369, 705 Central Avenue East, St. Michael, MN 55376 (for respondent)


Patrick J. Neaton, Neaton & Puklich, P.L.L.P., 445 Lake, Suite 333, Wayzata, MN 55391 (for appellants)


            Considered and decided by Harten, Presiding Judge, Willis, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N



Appellants John and Lisa James and David McNertney challenge the Wright County District Court’s granting the City of South Haven’s petition to condemn 40 acres of the Jameses’ 150-acre property so the city can build a sewage treatment facility.  Appellants claim that the taking is arbitrary, unreasonable, and unnecessary.  Because the record amply sustains the court’s findings that the proposed taking is “necessary, for a lawful purpose and provided for by law,” we affirm.



            Judicial review in condemnation proceedings is narrowly limited to determining whether the taking serves a public purpose and is necessary.  In re Condemnation by Minneapolis Cmty. Dev. Agency, 582 N.W.2d 596, 598 (Minn. App. 1998), review denied (Minn. Oct. 29, 1998).  Public purpose and necessity are questions of fact, and this court will not reverse those determinations on appeal unless they are clearly erroneous.  Id. at 599.

            Appellants do not dispute the district court’s finding that the city’s construction of a sewage treatment facility is for a public purpose.  If the taking is for a public purpose, courts may only interfere when the taking is manifestly arbitrary or unreasonable.  City of Duluth v. State, 390 N.W.2d 757, 763 (Minn. 1986) (quoting Housing & Redev. Auth. v. Minneapolis Metro. Council, 259 Minn. 1, 15, 104 N.W.2d 864, 874 (1960)).  Appellants argue that the city’s condemnation of the Jameses’ property is “manifestly arbitrary and unreasonable” because the United States Department of Agriculture (USDA) recommended an alternative site, the selected site does not comply with Minnesota Pollution Control Agency (MPCA) recommendations, and the site is the home of an endangered species.         

A condemning authority acts arbitrarily and unreasonably if it acts “in disregard of the best interests of the public, or upon an erroneous theory of the law, or [when] the evidence is practically conclusive against the authority.”  Metro. Sewer Bd. v. Thiss, 294 Minn. 228, 230, 200 N.W.2d 396, 397 (1972) (citation omitted).  The city’s condemnation of the Jameses’ property is not arbitrary or unreasonable.

The city requires and has applied for USDA funds to build the sewage treatment facility.  The USDA has not approved nor rejected the city’s plans.  After reviewing the proposed sites, that agency recommended a site other than the Jameses’ property.  Appellants argue that the possibility that the USDA will not fund the project renders the city’s condemnation arbitrary and unreasonable.  But the city’s ability to construct the sewage treatment facility is not at issue in this court’s review; instead we focus on whether the city’s condemnation of appellants’ land is reasonably necessary to accomplish a public purpose.  See Itasca County v. Carpenter, 602 N.W.2d 887, 890 (Minn. App. 1999) (rejecting property owner’s argument that condemnation was arbitrary and unreasonable because of doubts that proposed road construction could be accomplished).  For this court to review the “practicability of executive and legislative plans and decisions * * * would be contrary to well-settled principles of eminent domain.”  Id. at 891.  Also, the record indicates that the city had adequate reason for not following the USDA’s recommendation.  At the condemnation hearing, the city’s engineer testified that the USDA’s favored site was “very narrow and not well-suited for the type of treatment system that is proposed.” 

Next, appellants argue that the city’s action is arbitrary and unreasonable because the selected site violates the MPCA’s recommendation that pond sites be located at least one-fourth mile from occupied residences.  This argument fails.  McNertney’s home, located on a portion of the Jameses’ property that has not been condemned, will be within one-fourth of a mile from the proposed facility site, but more than one-fourth mile from the wastewater-stabilization pond.  As proposed, the facility and pond site locations do not appear to violate any law or regulation.

Appellants also label the city’s condemnation as arbitrary and unreasonable because they contend that building the proposed sewage treatment facility will encroach upon the Blanding’s turtle’s habitat.  The Blanding’s turtle, a threatened species, is protected under state law.  See Minn. Stat. § 84.0895 (2000); Minn. R. 6134.0200 (2001).  But, there is no evidence that the Blanding’s turtle lives on the 40-acre proposed site.  While McNertney testified that he thinks that the turtle lives on the property because his neighbors have seen the turtle on their property, his neighbors’ property is “swamp” property located one-fourth of a mile away from the Jameses’ property.  No one has seen the turtles on the Jameses’ property and because the Jameses’ property is farmland, rather than the turtles’ wetlands habitat, it is unlikely that there are Blanding’s turtles on the condemned property.

Finally, appellants argue that the taking was unnecessary because there are other sites available.  However, absolute necessity is not required for a public-purpose finding.  City of Duluth, 390 N.W.2d at 764.  Instead, the court must only find that “the proposed taking is reasonably necessary or convenient for the furtherance of a proper purpose.”  Id. at 765 (citation omitted); see also Regents of the Univ. of Minn. v. Chicago & N.W. Transp. Co., 552 N.W.2d 578, 580 (Minn. App. 1996) (requiring record demonstrate a “necessity” either “now or in the near future”), review denied (Minn. Nov. 20, 1996).  The existence of viable alternatives is not sufficient to defeat a necessity finding.  See, e.g., County of Dakota (C.P. 46-06) v. City of Lakeville, 559 N.W.2d 716, 720 (Minn. App. 1997) (finding that despite existence of alternative sites for road construction, taking was reasonably necessary or convenient to further the project’s public purpose).

Although the city studied four additional sites for the sewage treatment facility, it eventually decided that the Jameses’ property was the best site.  The record supports this determination.  The city’s engineer testified that the site was the most desirable from engineering, environmental, and cost perspectives.  To support this conclusion, he stated that two of the four sites were eliminated from consideration because of evidence that the Blanding’s turtle occupies those sites.  Another site, a gravel mine, is not well suited for a sewage treatment facility because it is too narrow.  The last site, also a gravel mine, is located close to wetlands, making it undesirable.  Also, the last two sites are farther away from the city than the Jameses’ property, making those sites a more expensive alternative for the city because it would need to transport the sewage to the facility.

Appellants point out that during the condemnation process, another property owner offered to sell a 78-acre parcel of property to the city for the sewage treatment facility’s construction.  But buying that property was not a viable alternative for the city because that property owner refused to sell less than all 78 acres in the parcel.  The city, which needs only 40 acres to build the sewage treatment facility, determined that it could not afford to buy all 78 acres and might encounter trouble selling the extra 38 acres because that property is a wetland.


*         Retired judge of the Minnesota Court of Appeals, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.