This opinion will be unpublished and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
a Wyoming Corporation,
City of St. Paul,
Ramsey County District Court
File No. C3012044
Tona T. Dove, Daniel J. Beeson, Jay P. Karlovich, LeVander, Gillen & Miller, P.A., 633 South Concord Street, Suite 400, South St. Paul, MN 55075 (for respondent)
Manuel J. Cervantes, St. Paul City Attorney, Eric D. Larson, Assistant City Attorney, 500 City Hall and Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for appellant)
Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
In March 2000, appellant City of St. Paul commenced condemnation proceedings pursuant to chapter 13 of the St. Paul City Charter to acquire temporary and permanent easements over property owned by Sinclair. The easements were being acquired as part of a street project at the intersection of Arcade Street and Maryland Avenue in St. Paul. Sinclair operates a gas station at that intersection.
The St. Paul City Council approved a preliminary order for the project on March 1, 2000, and Sinclair and other affected property owners were notified about an April 5, 2000, public hearing to be held before the city council could approve a final condemnation order pursuant to chapter 13 of the Saint Paul City Charter. Larry Feldsien, Sinclair’s regional engineer, appeared on behalf of Sinclair and objected to the project. Following the hearing, the city council approved the final condemnation order.
The city then determined the value of the property taken. The city gave Sinclair a copy of the city’s appraisal, and Sinclair asked the city for time to obtain its own appraisal. Sinclair did not obtain an appraisal, and on December 20, 2000, the city council held a public hearing to confirm and ratify the taking and the valuation. Sinclair was notified about the hearing, and its attorney appeared at the hearing. The attorney stated at the hearing that Sinclair did not object to the public purpose of the street project but did object to the valuation. Sinclair did not submit an appraisal during the hearing and admitted it had not yet had one prepared.
On January 19, 2001, Sinclair’s attorney sent notice to the city that, in light of this court’s recent decision in In re: Damages to Rapp for Condemnation of Land on County Rd. 61, 621 N.W.2d 781 (Minn. App. 2001), Sinclair planned to challenge the condemnation proceedings if the city did not proceed under Minn. Stat. ch. 117 instead of the city charter.
On February 7, 2001, the city council adopted a resolution ratifying and confirming the condemnation and the award of damages. On March 13, 2001, Sinclair served and filed a petition for alternative writ of mandamus requesting the court to compel the city to institute condemnation proceedings under Minn. Stat. chapter 117. Also on March 13, pursuant to chapter 13 of the city charter, Sinclair filed a notice of appeal of the city council’s condemnation resolution. On July 16, 2001, the city began construction on the project, and on August 9, 2001, the project was completed.
On November 26, 2001, the district court granted Sinclair summary judgment. The court determined that the eminent-domain procedure set forth in the city charter is unconstitutionally void and ordered the city to commence eminent-domain proceedings under Minn. Stat. chapter 117.
In an appeal from a summary judgment, this court asks two questions: (1) whether any genuine issues of material fact exist and (2) whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Where, as here, the material facts are not in dispute, this court does not need to defer to the district court’s application of the law to the undisputed facts. Lefto v. Hoggsbreath Enters., 581 N.W.2d 855, 856 (Minn. 1998).
The district court determined that the condemnation of Sinclair’s property was void because the eminent-domain procedure set forth in the St. Paul City Charter, § 13.03.5(1), does not provide for judicial review of the public purpose and necessity of a condemnation until after the actual taking has occurred.
“A municipal ordinance is presumed constituional.” Hard Times Café, Inc. v. City of Minneapolis, 625 N.W.2d 165, 171 (Minn. App. 2001) (citation omitted). Its constitutionality is a question of law subject to de novo review. Id.
St. Paul City Charter § 13.03.5(1) states:
Any person whose interest in property has been condemned or taken may appeal, or an appeal may be taken on his or her behalf, from the ratification and confirmation of the condemnation or from the award of damages or both. A written notice of appeal shall be filed with the city clerk within forty (40) days of the ratification, confirmation and award of damages.
Minn. Const. art. I § 13, provides, “Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured.”
A condemnation must satisfy the constitutionally imposed public-use requirement. City of Duluth v. State, 390 N.W.2d 757, 762-64 (Minn. 1986); City of Duluth v. Alexander, 404 N.W.2d 24, 26 (Minn. App. 1987) (citing U.S. Const. amends. V, XIV; Minn. Const. art. I, § 13), review denied (Minn. May 20, 1987). To meet the constitutionally imposed public-use requirement, a city must establish that the condemnation of private property is for a public purpose. City of Duluth v. State, 390 N.W.2d at 763-64. In addition, “in all eminent domain cases in this state, necessity, as well as public purpose, must be shown.” Id at 764. Accordingly, a landowner whose land has been taken is entitled to judicial review of the public necessity underlying the condemnation. Id.
This court recently held that there is also a temporal requirement to judicial review in a condemnation proceeding. In re: Damages to Rapp for Condemnation of Land on County Rd. 61, 621 N.W.2d 781, 785 (Minn. App. 2001).
Land may be condemned only after a determination of public purpose and necessity. Therefore, a property owner is entitled to judicial review of the public purpose and necessity of a taking prior to the actual taking of property.
Id. (citations omitted).
In Rapp, this court considered the constitutionality of the condemnation procedures set forth in Minn. Stat. §§ 163.11-.12 (1998), which allowed a county to condemn land for highway purposes by (1) passing a resolution describing the highway and the tracts of land through which the highway will pass, and (2) scheduling a hearing at which the county board will meet to discuss the issue of damages for the condemned property and after which the county may enter into a written agreement regarding the amount of damages to be paid a landowner. Id. The statute then provided:
Subd. 7. Appeal from award. Within 40 days after the filing of the award of damages, any owner or occupant may appeal from the award by filing a notice of the appeal with the court administrator of the district court of the county where the lands lie. * * *
* * * *
Subd. 10. Appeal not to delay prosecution of improvement. After the award of damages has been filed, the board may proceed to open, construct, alter, or change the highway. An appeal from the award of damages shall not delay the prosecution of the proposed improvement, and the county board may proceed as if no appeal had been taken.
Minn. Stat. §163.12 (emphasis added).
This court held that the statute was unconstitutional for two reasons. First, by permitting an appeal only from the award of damages, the statute did not provide for judicial review of the public purpose and necessity of a taking. Rapp, 621 N.W.2d at 786. Second, the statute did not allow for judicial review of the public purpose and necessity of the taking beforethe actual taking occurred. Id.
1. The city argues that chapter 13 of the city charter meets the constitutional requirement that private property not be taken for public use before just compensation is paid or secured because under section 13.03.3(1) of the charter, the city cannot take property until the city pays the awarded “sum of money into the district court to secure compensation to the owner of the property or interest in property being condemned.” But Section 13.03.3 does not prevent the taking from occurring until after the court reviews the public purpose and necessity of the taking; it simply requires that money be paid into court. When the payment is made, title to condemned property passes to the city, and except when the owner retains the right to continued possession, the city has the right to immediately enter the property and begin construction of a project. St. Paul City Charter § 13.03.3(2).
2. The city argues that even if chapter 13 of the city charter suffers from a procedural defect, Sinclair was not denied its constitutional right of review because it could have brought a declaratory-judgment action to seek judicial review of the public purpose and necessity of the condemnation. But this argument does not address the fact that the charter provisions under which Sinclair’s property was actually taken did not provide for judicial review before the actual taking occurred. Even if Sinclair could have used a declaratory-judgment action to obtain a declaration of its rights under the city charter, its failure to do so does not mean that the procedure actually used by the city is constitutionally valid.
3. The city challenges Sinclair’s right to judicial review on the basis of waiver, estoppel, and mootness.
The city argues that Sinclair waived its right to challenge the public utility of the city’s taking because Sinclair conceded during the condemnation proceedings that the project was for a public purpose. Waiver is a voluntary and intentional relinquishment or abandonment of a known right. Montgomery Ward & Co. v. County of Hennepin, 450 N.W.2d 299, 304 (Minn. 1990). Evidence of both intent to waive and knowledge of the right to waive is required. Engstrom v. Farmers & Bankers Life Ins. Co., 230 Minn. 308, 311-12, 41 N.W.2d 422, 424 (1950). Even if Sinclair’s concession that the street project was for a public purpose constituted a waiver of its right to challenge the condemnation on that basis, the city cites no evidence that Sinclair waived its right to challenge the necessity of the taking.
The city contends that it relied on Sinclair’s representation that it was not challenging the public purpose of the construction project and that it therefore began construction on the project based on Sinclair’s representation.
When a party induces another to believe that certain facts exist and the other justifiably relies on that belief and loses rights, the party may be estopped from denying the existence of the facts relied upon.
Stottler v. Meyers Printing Co., 602 N.W.2d 916, 919 (Minn. App. 1999) (citation omitted).
As we have already stated, even if Sinclair conceded that the street project was for a public purpose, there is no evidence that Sinclair conceded that the project is necessary. Therefore, Sinclair did not induce the city to believe that Sinclair would not seek judicial review of the necessity of the taking. Furthermore, Sinclair brought a mandamus action and sought appeal of the taking before the city began construction. Therefore, the city had ample notice that Sinclair was contesting the taking before construction began.
The city argues that because Sinclair conceded that the taking is for a public purpose, its constitutional claims are moot. “If the court is unable to grant effectual relief, the issue raised is deemed to be moot resulting in dismissal of the appeal.” In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989) (citation omitted). As we have already discussed in the context of waiver and estoppel, however, a concession that the taking is for a public purpose does not mean that Sinclair cannot obtain effectual relief on its claim that it was entitled to judicial review of the necessity of the taking before the actual taking occurred. As this court stated in Rapp, even though property has been condemned, and a project has been constructed upon the property, the property owner “still has relief in the form of the return of his property.” 621 N.W.2d at 784 (citation omitted).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.