This opinion will be unpublished and

may not be cited except as provided by

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






Raymond Formanek,





City of Savage,



Filed December 11, 2001


Harten, Judge


Scott County District Court
File No. 199821669


Maureen Williams, Law Office of Maureen Williams, P.O. Box 1895, Burnsville, MN 55337 (for appellant)


David G. Keller, Grannis & Hauge, P.A., Town Centre Professional Building, 1260 Yankee Doodle Road, Suite 200, Eagan, MN 55121 (for respondent)


            Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Foley, Judge.*


U N P U B L I S H E D   O P I N I O N



Appellant landowner challenges the jury verdict on the value of his condemned property as contrary to the evidence because it did not provide for a bridge that he claims is necessary to access his property after the taking.  Appellant also argues that the district court abused its discretion by excluding the testimony of appellant’s appraiser and by admitting respondent’s evidence on access to appellant’s land.  Because the verdict is not perverse and palpably contrary to the evidence and because we see no abuse of discretion, we affirm.



            In 1985, appellant Raymond Formanek purchased for $36,000 an 18-acre parcel of land bordering Highway 13 in Scott County.  He has never farmed, rented, or sought to develop the land, which is designated as a wetland and is part of the Savage Fen Wetland Complex.  The wetland would have to be filled before the land could be developed, and a permit would be needed to fill it.  No fill permits have ever been granted in the Savage Fen Wetland Complex.

In 1998, respondent City of Savage condemned a narrow strip of appellant’s parcel, 2.36 acres, in order to widen Highway 13.  The condemnation commission, in accord with the testimony of an appraiser, awarded appellant $9,147 per acre, or $21,588 for the 2.36 acres.  Appellant challenged this award in district court, claiming that a bridge costing $324,216 is now needed to access his property and that his award should be increased by that amount. 

Prior to trial, respondent moved to exclude evidence of the development cost method of appraisal used by appellant’s appraiser.  Following a two-day hearing in which the appraiser testified, respondent’s motion was granted.

Appellant then moved for a jury trial before a different judge; the motion was granted.  Following trial, the jury awarded appellant $21,598.  Appellant moved unsuccessfully for JNOV or a new trial, arguing that the jury’s verdict was perverse and palpably contrary to the evidence and that the district court abused its discretion in excluding the evidence of appellant’s appraiser and in admitting respondent’s evidence regarding access to appellant’s land.


1.         Perverse Verdict Claim

On review, this court will not set aside answers to special-verdict questions unless they are “perverse and palpably contrary to the evidence” or unless the evidence is so clear that there is no room for differences among reasonable people.  Hanks v. Hubbard Broad., Inc., 493 N.W.2d 302, 309 (Minn. App. 1992) (citation omitted), review denied (Minn. Feb. 12, 1993).

The evidence must be viewed in a light most favorable to the jury verdict.  If the jury’s special verdict finding can be reconciled on any theory, the verdict will not be disturbed.


Id. (citation omitted).

            The jury found that just compensation for appellant was $21,598.  Testimony from the chairman of the condemnation committee indicated that both sides had presented their evidence and had experts testify as to the feasibility of developing of appellant’s property at the condemnation hearing, that the commissioners considered the property itself, its appraisals, its fen character, and its topography, and that the commissioners had determined the value of the property was $9,147 per acre, or $21,588 for the 2.36 acres.[1]  Therefore, the jury’s award of $21,598 to appellant as just compensation can be reconciled to the evidence.

            Appellant claims that the jury’s finding is contrary to evidence that appellant’s property is developable.[2]  However, the jury heard from an appraiser that

I don’t think that it’s economically feasible to develop this property given the soil conditions and the potential issues relating to wetlands that exist.


* * * *


[I]f there’s evidence, if there’s market evidence to suggest that [obtaining a permit to fill a wetland] is a common thing [ ] that occurs, and it’s no big deal to go out and get a permit, fill the wetlands, and develop the property, I don’t need a permit in hand or any more evidence than that to suggest that it’s reasonable. But in this particular case, I didn’t see any evidence to that affect, [sic] that would lead me to believe that in fact a permit [to fill] could have easily been obtained to develop this property.


Therefore, assuming the jury’s verdict implies a finding that appellant’s property is not developable, there was evidence to support that finding.  This finding is not contrary to the evidence, and this court has no basis for overturning the verdict.

2.         Evidentiary Decisions

Absent an erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997). 

a.         Exclusion of Appellant’s Appraiser

The usual method for determining the value of undeveloped property is the comparable sales or market data method, in which the sales prices of comparable pieces of property are used to determine the price at which the subject property would be expected to sell.  See Ramsey County v. Miller, 316 N.W.2d 917, 919 (Minn. 1982).   The district court found that:

[Appellant’s expert] never gave a satisfactory answer when asked why land directly adjacent to or near the subject property, and apparently similar, was not used to derive an initial value.


The district court found that appellant’s appraiser’s oral testimony regarding her use of the comparable sales method was not credible; she provided no written report.  Her testimony indicated that: (1) she relied on information provided by others as to the possibility of obtaining a permit to fill the wetland and the possibility of obtaining a permit to construct the office block and restaurant/nightclub that were envisioned; (2) she had not used comparable properties in the area; and (3) she had used, at least in part, the development cost method, which is inappropriate for undeveloped land and for which she laid no foundation.  See Hansen v. Hennepin County, 527 N.W.2d 89, 94 (Minn. 1995) (giving three elements needed for offer of proof for development cost testimony).  Testimony also indicated that neither a wetland permit nor a development proposal had been submitted, so appellant’s appraiser’s reliance on the granting of the permit or the acceptance of the proposal was unfounded.

            There was no abuse of discretion in excluding the testimony of appellant’s appraiser from the trial.

b.         Admission of Respondent’s Evidence on Access

Appellant moved to exclude respondent’s evidence on the means of access respondent could provide if and when the property is developed.  The district court admitted the evidence because, although appellant’s appraiser did not testify, other witnesses testified about the feasibility and the cost of developing appellant’s property.  Appellant argues that admitting the evidence was an abuse of discretion, relying on City of St. Louis Park v. Almor, 313 N.W.2d 606, 610 (Minn. 1981) (holding “it was fundamental error to admit evidence at the jury trial that the appellants would secure access from the City * * * ”).

But Almor is distinguishable.  In Almor, the owner and the leaseholder-occupant of an office/manufacturing site that became landlocked as a result of a city’s condemnation discussed access with the city prior to the condemnation, but reached no agreement.  At trial, the city’s testimony that it planned to provide access at no cost to the owner and the occupant was admitted over objection, and the jury’s award implied a finding that the owner and the occupant would not need to pay for access.  The supreme court reversed, reasoning that there was access prior to the taking, there was no access after the taking, and the condemnation value of the property should reflect that change.

 Here, the land has never been used; appellant has never sought or needed access.  The need for access is moot unless and until a development proposal is in place.  Respondent testified that, if and when a development proposal is produced, the access issue would be resolved before a plat would be approved. There was no abuse of discretion in admitting testimony on hypothetical access when development of the property is equally hypothetical.


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

[1] The de minimis discrepancy between the $21,588 awarded by the commission and the $21,598 awarded by the jury is not explained.

[2] Appellant’s other claims that the verdict is contrary to the evidence all hinge on the assumption that the property is developable.