This opinion will be unpublished and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

C9-01-1548

 

Shorma Family Trust,

Respondent,

 

vs.

 

Maine Township, a Political Subdivision

of the State of Minnesota,

Appellant.

 

Filed April 16, 2002

Affirmed

Randall, Judge

 

Otter Tail County District Court

File No. C9-00-2

 

Michael T. Feichtinger, Heidi N. Wolf, Quinlivan & Hughes, 400 South First Street, 600 Wells Fargo Center, St. Cloud, MN 56302-1008 (for appellant)

 

Thomas A. Gedde, 28459 Balmoral Drive, Battle Lake, MN 56515 (for respondent)

 

Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Klaphake, Judge.

U N P U B L I S H E D O P I N I O N

R.A. RANDALL, Judge

Appellant Maine Township challenges the district court's judgment declaring invalid a special assessment for road paving because the assessment amount exceeded the benefit to the property. The township contends that the district court erred in finding the property's highest and best use is a single-family residence with lake access. The township claims the record does not support the district court's finding that the assessed property was not enhanced in an amount equal to or greater than the assessment value. We affirm.

FACTS

Respondent Shorma Family Trust owns a 17.5-acre parcel of property with approximately 263 feet of lake frontage. The property is located to the northwest of Pickerel Lake, a pristine lake, in Otter Tail County and is bounded by Sunset Drive on the north and County Road 115 on the west.[1] Respondent is being assessed for paving Sunset Road, which borders the property at issue on the north.

A 4500 square foot single family recreational residence is located on the eastern portion of the property near the lake, and a storage garage is located near the home. There are trees west of the residence, between the residence and Denwood Drive, and bordering the property to within 300 feet of County Road 115. The property has a private driveway coming from County Road 115.

On January 6, 1998, a neighboring lot owner, Dr. Bjerke, petitioned appellant Maine Township to pave Sunset and Denwood Drives. Dr. Bjerke agreed to offset the cost of the project by paying one-third of the cost, not to exceed $20,000, and requested that agricultural property be exempt from the assessment and that only residential property south

of Sunset Drive be assessed.

After a hearing, the township adopted the assessment on December 7, 1999. The improvement's total cost was $49,460.87. The neighbor and another lot owner together paid $15,115.90. Twenty-six landowners, including respondent, were assessed the remaining $34,344.97, each assessed $1,320.96.

Respondent appealed the assessment to the district court, in December 1999, under Minn. Stat. 429.081 (2000) alleging that his property received no benefit from the assessment, that agricultural land should have been assessed, and that the property's highest and best use was the current use which is one lot with a single-family residence. The township contended that respondent's property should be calculated at its highest and best use which it claimed was a ten acre lot with lake access, and then three or four subdivided back lots which would use the newly paved road for access.

Milt Paulson, a licensed real estate broker, testified for the township that the property's highest and best use of the property was to subdivide the property and that the additional lots' values would exceed the remaining property's diminished value. Mr. Paulson testified that the increase in value of each lot would be $700 per lot for "lots fronting on blacktop versus those fronting on gravel." Paulson also testified that he was "not sure if - - the road would add $700 per lot, but then there would be the additional lot value if it were subdivided." Paulson did concede that the proposed ten acre lake home lot could decrease in value if the storage building that went with the home would have to be taken down to subdivide the three to four new lots.

Appraiser, Steve Schierer, a real estate appraiser,testified for respondent that the highest and best use is the current use, which is a single-family residential lakeshore property. Schierer described the lot's unique size, seclusion, and privacy and testified that subdividing the property would possibly result in a net loss due to a loss of privacy from destroyed trees when subdivided. Schierer testified the net loss from subdividing would reduce the property's value greater than the increase from subdividing three to four lots. Schierer also testified that the remainder lot would decrease in value because of a reduction in size. Schierer did state that the monetary loss to the lake home could not be determined until the property was actually listed and sold.

Richard Shorma, the respondent's trustee, like Schierer, testified for respondent that the property's highest and best use was its current use and that the single family home did not receive a benefit from the improvement because his home was already serviced by a driveway from County Road 115.

The district court (1) found that the decision not to assess the agricultural land was not erroneous, (2) found any benefit to the property by subdividing was outweighed by the detriment to the remaining property, the single family lake home, (3) vacated the assessment and ordered that the property not be reassessed, and (4) ordered the township to pay restitution to respondent in the amount of $1,320.97 plus prejudgment interest and disbursements. The township challenges the district court judgment.

D E C I S I O N

In reviewing findings on special assessments, a reviewing court engages in a careful examination of the record to determine if the evidence as a whole supports the district court's findings and the conclusions of law. Carlson-Lang Realty Co. v. City of Windom, 307 Minn. 368, 373, 240 N.W.2d 517, 521 (1976). To warrant reversal, the evidence must be against the findings. DeSutter v. Township of Helena, 489 N.W2d 236, 239 (Minn. App. 1992), review denied (Minn. Sept. 30, 1992). A municipality may levy a special assessment when: (a) the land receives a special benefit from the improvement, (b) the assessment is uniform on the same class of property, and (c) the assessment does not exceed the special benefit. EHW Properties v. City of Eagan,503 N.W.2d 135, 139 (Minn. App. 1993). Because the parties do not dispute here regarding the assessment's uniformity, our focus is on the special benefit.

The township contends that the district court erred when it determined there was no special benefit to respondent by the paved road assessment and contends that the court erred in finding the property's highest and best use was its present use, a single-family residence with lake access. The township asserts that the property's highest and best use is subdividing the current lot into one ten acre single-family residence with lake access, and creating four lots out of the remaining seven and one-half acres.[2] The township argues that subdividing the 17.5-acre lot this way provides a special benefit by increasing the property's total value by $700 per lot resulting in a gain of $2100 to $2800. The township claims that amount is a dollar amount greater than any assumed loss of value to the remaining property.

A special benefit is measured by the increase in market value of the land resulting from the improvement. Carlson-Lang, 307 Minn. at 369, 240 N.W.2d at 519. "The increase in market value is determined by what a willing buyer would pay a willing seller for the property before and then after the improvement has been completed." County of Ramsey v. Town of White Bear, 469 N.W. 2d 479, 482 Minn. App. (1991), review denied (citation omitted) (Minn. Jul. 24, 1991). The assessment cannot result in a taking without fair compensation. Buettner v. City of St. Cloud, 277 N.W.2d 199, 202 (Minn. 1979). Present use, although a consideration, is not the controlling factor in determining if the land has received a benefit from the improvement. Eagle Creek Townhomes, LLP v. City of Shakopee, 614 N.W.2d 246, 250 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000). The test is if the land could be used for purposes that would benefit from the improvement. Id.

The district court found that the property's highest and best use was "to leave said property intact as a single-family residence," because the location to a pristine lake, the large size of the property, and seclusion and privacy from the trees made the current property attractive to a prospective purchaser as is. The court further found that subdividing the property would adversely affect the remaining 10-acre lot's value by destroying its privacy and seclusion and that loss would exceed any claimed increase from subdividing.

The district court considered whether there would be an increase in the property's total value from the subdivision but concluded that the loss of seclusion and privacy outweighed any possible increase in the land's value after the proposed subdivision. The record shows there was conflicting evidence about whether any projected increase in market value would come from the paved road or from the subdivision. Respondent's appraiser testified that due to the unique nature of the recreational property, its size and seclusion being "a very major factor" in its value, subdividing the lot would result in the destruction of trees, thus resulting in the loss of privacy and harm the character of the lake property.

The township's appraiser testified that according to city tax practices, lots bordering a paved road have an additional value of $700 per lot, but conceded that subdividing could result in a fairly significant adverse effect on the value, and that adverse effect could be in excess of $2,800. The record easily supports the district courts findings of facts, and the findings support the district court's legal conclusion on the issues of highest and best use and whether the road improvement actually added value to the property over the amount of the assessment.

We note that the assessment of $1,320.96 is a minimal amount. However, the township concentrated its entire case on highest and best use and subdividing. It failed to enter any evidence that even as a single family home the paved road added value in at least the assessed amount. The only evidence in the record came from the respondent whose expert testified that the road was unnecessary because the property was already accessible by a private driveway to a county road. Thus we do not consider the issue of added value to the property as a single-family home. We affirm the district court on all issues.

Affirmed.



[1] The district court took judicial notice of the fact that "Pickerel Lake is a pristine lake * * * and is highly valued as a recreational lake."

[2] The township's expert testified that three to four lots could be created. The township and then the district court assessed the value on four lots at $700 per lot.