This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-01-333

 

Craig Pollard,
Appellant,

vs.

Carlton County,
Respondent.

 

 

Filed October 30, 2001

Affirmed

Stoneburner, Judge

 

Carlton County District Court

File No. C900219

 

 

A. Blake MacDonald, MacDonald & Downs, 200 Alworth Building, 306 West Superior Street,  Duluth, MN 55802 (for appellant)

 

Marvin E. Ketola, Carlton County Attorney, 202 Courthouse, Box 300, Carlton, MN 55718-0300 (for respondent)

 

 

            Considered and decided by Hanson, Presiding Judge, Randall, Judge, and Stoneburner, Judge.

 

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

            Appellant Craig Pollard petitioned the district court for a writ of mandamus compelling Carlton County to initiate inverse condemnation proceedings, alleging that the county’s realignment of highway 45 constituted a taking.  The district court denied the petition and Pollard appeals.  Because the district court did not err in concluding that the realignment project did not result in a taking, we affirm.

FACTS

 

Pollard is the owner of the Rendezvous Bar in Scanlon.  Pollard describes the bar, which he purchased in 1988, as a “corner neighborhood type blue-collar, workingman’s bar.”  Highway 45 passed in front of the Rendezvous Bar until 1997 when the Carlton County Highway Department rerouted that portion of highway 45 several hundred yards to the east.  Highway 45 now passes behind the bar.  The county notified property owners located near the highway before construction began and invited property owners to attend public hearings regarding the realignment project.  Pollard attended a few meetings but did not file any objections to the proposed realignment and he does not challenge the necessity of the realignment.

The county did not take any land from Pollard during the realignment project.  Realignment, however, changed access to and visibility of Pollard’s bar.  Before realignment, customers could access the bar by turning off of highway 45 onto Jefferson Avenue, south of the bar, or by turning onto Washington Avenue, north of the bar, and then turning onto a frontage road, which ran parallel to the highway.  After realignment, access from highway 45 is by turning onto Washington Avenue for a short distance, then turning onto old highway 45, which is now a dead end cul-de-sac, and then turning into the preexisting Jefferson Avenue entrance.  The district court made a site visit and found that this route takes approximately 20 seconds.  The area of the former corner of old highway 45 and Washington Avenue to the north of the bar is now elevated approximately 16 feet, affecting visibility of the bar from new highway 45.  People driving along the new highway can see the roof and the western side of the building, but not the sign.

Pollard’s gross sales, although at the highest level ever during the construction project, declined after the project was completed.  Pollard’s expert, a real estate appraiser, testified that the loss of sales revenue was due to the change in access to, and loss of visibility of the bar from realigned highway 45.  Although he did not conduct an appraisal of the property either before or after the realignment, and did not calculate a loss in market value, Pollard’s expert testified that, in his opinion, the realignment lowered the property’s market value.  The Carlton County assessor, who testified that he was familiar with the property, increased the fair market value of the property by 10% for property tax purposes for January 1, 2000. 

Other changes occurred at the bar after construction commenced.  Pollard lost two long-term bartenders.  One, who left in January 1998, had worked at the bar for 10 years.  The other bartender resigned in April 1999 because he purchased a competing bar less than a mile from the Rendezvous Bar.  And, in 1999, Pollard implemented a 10% price increase.

The district court determined that current access to the Rendezvous Bar is reasonably convenient and suitable and, therefore, the bar did not suffer a compensable loss.  Alternatively, the district court denied the petition because Pollard failed to establish that the realignment caused a loss in market value of the property.  This appeal followed.

D E C I S I O N

 

“Property owners who believe their property has been taken within the meaning of Minn. Const. art. I, § 13, may petition the court for a writ of mandamus to compel the state to initiate condemnation proceedings under Minn. Stat. ch. 117.”  Grossman Invs. v. State, 571 N.W.2d 47, 50 (Minn. App. 1997), review denied (Minn. Jan. 28, 1998) (citing Gibson v. Comm’r of Highways, 287 Minn. 495, 498-99, 178 N.W.2d 727, 730 (1970)).  A district court reviewing a petition for a writ of mandamus “must decide, as a threshold matter, whether a taking of property has occurred in the constitutional sense.”  Id.  The Minnesota Constitution prohibits the taking of private property for public use without just compensation.  Minn. Const. art. I, § 13.  A taking includes every interference * * * with the possession, enjoyment, or value of private property.  Minn. Stat. § 117.025, subd. 2 (2000). 

A district court’s decision regarding an application for mandamus relief should be reversed on appeal “only where there is no evidence reasonably tending to sustain the trial court’s findings.”  Popp v. County of Winona, 430 N.W.2d 19, 22 (Minn. App. 1988), review denied (Minn. Nov. 23, 1988).  This court is therefore limited to deciding whether the district court’s findings are clearly erroneous.  Citizens State Bank of Hayfield v. Leth, 450 N.W.2d 923, 925 (Minn. App. 1990).  But this court need not defer to the district court’s conclusions of law.  Grossman, 571 N.W.2d at 50 (citation omitted).

“Property owners have a right of reasonably convenient and suitable access to a public street or highway that abuts their property.”  Grossman, 571 N.W.2d.at 51 (quoting Hendrickson v. State, 267 Minn. 436, 446, 127 N.W.2d 165, 173 (1964)).  “Not every denial of immediate or convenient access, however, will support a claim for damages.”  Hendrickson, 267 Minn. at 446, 127 N.W.2d at 173.  The existence of reasonable access depends on the unique circumstances of each case, including the character of the property involved.  Johnson v. City of Plymouth, 263 N.W.2d 603, 607, (Mar. 29, 1978).  Moreover, “[t]he imposition of even substantial inconvenience has not been considered tantamount to a denial of reasonable access.”  Grossman, 571 N.W.2d at 50 (citing Johnson, 263 N.W.2d at 607).

Pollard acknowledges that, under Minnesota law, “a property owner has no vested interest in the continued flow of the main stream of through traffic, and the state may divert it to a new location without being liable for consequential economic losses which owners abutting the old highway may sustain.”  Hendrickson, 267 Minn. at 442, 127 N.W.2d at 170.  But Pollard urges this court to adopt the view of other jurisdictions that any change in road access by the government which adversely affects the nature of the business of the abutting property owner constitutes a taking.  As an error-correcting court, we decline to adopt the reasoning in cases from other jurisdictions that is contrary to our case law.  Such a change in the law may be appropriately addressed by the legislature or the supreme court.  Tereault v Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (stating that the task of extending the law falls to the supreme court or the legislature, but does not fall to this court), review denied (Minn. Dec. 18, 1987).

Pollard relies primarily on Hendrickson to argue that, under Minnesota case law, he should be compensated for the loss of drive-by traffic in front of his bar.  The court held that a compensable taking may have occurred when conversion of a two-lane roadway to a four-lane, controlled-access highway prevented direct access from the main highway to the plaintiffs’ motel.  Hendrickson, 267 Minn. at 437, 439, 445-47, 127 N.W.2d at 167-69, 172-73.  The court noted that the accessibility to the motel from the highway and its proximity to the city of Rochester attracted the patronage of the traveling public and gave the property a special status, and held that the owners “may have been deprived of a substantive right which the construction of an abutting service road does not necessarily restore or replace.”  Id. at 443, 127 N.W.2d at 171.

Hendrickson is distinguishable from this case.  Pollard testified that on any given day he would recognize most of the patrons in the bar.  Pollard produced no evidence that his business depends primarily on the traveling public.  The record supports the district court’s finding that “the bar gets its business from regular patrons and through word of mouth, not from drive-by traffic.” 

The district court viewed the site and traveled and timed the route from realigned highway 45 to the bar.  The record supports the district court’s conclusion that access to the Rendezvous Bar after realignment of highway 45 remains reasonably convenient and suitable.  The district court did not err in concluding that the change in access did not constitute a taking. 

Pollard also contends that the loss of visibility from realigned highway 45 caused sales to decline.  Although loss of visibility is a consideration in determining diminution in value of remaining property where there has been an actual taking of property, “Minnesota appellate courts * * * have never held that a property owner has a right to be seen from an abutting public street.”  Grossman, 571 N.W.2d at 51.  A property owner is not entitled to compensation for loss of visibility unless there is at least a partial taking.  See State v. Strom, 493 N.W.2d 554, 561 (Minn. 1992) (holding that although a property owner abutting a highway has no right to the continuous flow of traffic past the property, if property is actually taken from the landowner by the state “loss of visibility may be taken into account when determining the fair market value of the remaining property.”)  The district court did not err in concluding that loss of visibility alone, under the circumstances of this case, does not constitute a taking.

Because we affirm the district court’s determination that no taking occurred, we need not address the question of whether Pollard established a diminution of the market value of the property caused by the realignment.

            Affirmed.