This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Robert Allen, et al.,


City of Minneapolis,


Filed April 23, 2003


Peterson, Judge


Hennepin County District Court

File No. AP013979


Carla C. Kjellberg, 333 West Parkdale Plaza, 1660 South Highway 100, St. Louis Park, MN  55416 (for appellants)


Jay M. Heffern, City Attorney, Edward A. Backstrom, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN  55402 (for respondent)


            Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant property owners challenge a summary judgment granted respondent City of Minneapolis in a special-assessment appeal.  We affirm.


Appellants are 155 residents of the Field-Regina neighborhood in Minneapolis whose property was assessed to pay for a street-lighting project completed by the city.  The project involved replacing widely spaced, intense light fixtures on high wooden poles with more closely spaced, less intense, decorative fixtures on lower, decorative poles.  On February 8, 2001, the city council held a public hearing about the project, and numerous residents voiced opposition to the project.  In addition, more than 100 residents submitted written objections to the project. 

At the public hearing, city transportation engineer John Hotvet stated that the project was the result of a neighborhood petition that circulated for three years.  Hotvet also stated that the petition met the city’s threshold requirement of approval by 65 percent of the affected property owners.

The city council adopted a resolution directing the installation of decorative street lighting and the use of special assessments to pay the cost of the project.  To determine the amount of individual assessments, the city used the “street influence” method of assessment, which entails an analysis of the square-foot area of the property to be assessed, the value of the property, and the location of the property in relationship to the new lighting fixtures.

Appellants joined in an appeal of the special assessments in district court.  Appellants moved to certify a class action, and their motion was denied.  The city moved for summary judgment, and the district court granted the city summary judgment based on its conclusions that: (1) it did not have jurisdiction to hear challenges to the special assessments on individual parcels of property in a joint appeal involving assessments on multiple parcels; (2) appellants did not provide evidence to rebut the presumption that the city’s assessment method is valid; and (3) the city council was not required to obtain the support of any particular number of residents before continuing with the project.


            On appeal from summary judgment, this court considers whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  We must view the evidence in the light most favorable to the nonmoving party and resolve any doubts as to the existence of an issue of material fact against the moving party.  Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981).

Appellants argue that the district court erred in concluding that their appeals could not be joined.  Minn. R. Civ. P. 20.01 provides:

All persons may join in one action as plaintiffs if they assert any right to relief, jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of fact or law common to all these persons will arise in the action.


            Citing this court’s decision in Bisbee v. City of Fairmont, 593 N.W.2d 714, 717-18 (Minn. App. 1999), which, in turn, relied on Lenz v. Coon Creek Watershed Dist., 278 Minn. 1, 153 N.W.2d 209 (1967), the district court concluded that because the appeal involved facts relevant to each individual landowner’s property, the appeal did not involve an issue common to all appellants, and the court did “not have subject matter jurisdiction to hear the collective appellants’ assessment challenges on that basis.”

            Bisbee involved a group of property owners who filed a joint appeal of special assessments imposed by the City of Fairmont.  The property owners claimed that the assessment method used by the city was prima facie invalid.   The city argued that because the individual landowners were improperly joined, the district court lacked subject matter jurisdiction over their assessment appeal.   This court explained:

The next question to be addressed is whether the Bisbee respondents were properly joined under Minn. R. Civ. P. 20.01.  The Lenz decision is also instructive on this point.  In determining how the rule applied, the court distinguished two types of appeals presented in the case,

those relating to the legality of the order issued by the Managers approving the project and determining the total amount of assessments and damages, and those relating to the propriety of the benefits assessed and the damages allowed as to the individual landowners.

Lenz, 278 Minn. at 18, 153 N.W.2d at 221.  The court concluded joinder was proper with respect to the former type of appeal because that “category involved identical alleged rights of the appellants, which arose out of the same proceeding and contained the same issues of fact and law.  Id. at 18, 153 N.W.2d at 222.  But the court determined joinder was inappropriate with respect to the latter type of issue because “each of the issues falling into the latter category would necessarily be resolved on the basis of the particular facts relevant to each individual landowner’s property.  Id. at 19, 153 N.W.2d at 222.  The court concluded the joined parties were properly dismissed as to the second issue after the first issue was resolved against them.  Id.  With no common question of law or fact remaining, the district court lacked jurisdiction to hear the joint appeal of the second issue.  Id.


Bisbee, 593 N.W.2d at 717-18.

In the memorandum accompanying its order granting summary judgment, the district court stated:

The City enjoys the presumption of the validity of the assessment.  Appellants have not supplied the court with any contrary evidence going to the validity of the method of allocating the costs among affected properties.  The court cannot find as a matter of law that the City’s assessment methodology is prima facie invalid or arbitrary.  There is no material issue of disputed fact regarding the City’s assessment method and therefore the City is entitled to summary judgment on this claim.


The district court’s analysis correctly concludes that under Bisbee, assessment appeals involving the allocation of costs among individual parcels of property do not involve identical alleged rights and therefore, cannot be joined.  But appellants argue that the district court’s analysis demonstrates that it completely ignored (1) the basis for their challenge to the special assessments; and (2) its constitutional obligation to review the assessment.  Appellants contend on appeal that they have never claimed that there is a better way to allocate the costs of the street-lighting project.  They contend that they

have claimed that decorative street lighting does not increase the market value of any property no matter what the specific circumstances are.  Therefore, any allocation of costs [of decorative street lighting] through a special assessment is unconstitutional.


The city responds that appellants did not articulate this claim in the district court.  See Duellman v. Erwin, 522 N.W.2d 377, 381 (Minn. App. 1994) (issues not raised by appellants in memorandum in opposition to summary judgment motion could not be considered for first time on appeal), review denied (Minn. Dec. 20, 1994).

The amended appeal document that appellants filed in the district court contains 13 grounds for their appeal.  None of these grounds expressly claims, as appellants claim on appeal, that the special assessment is unconstitutional because decorative lighting does not increase the market value of any property under any circumstances.  To the contrary, two of the grounds listed state:

The special assessment is invalid as a matter of law in that the special benefit conferred collectively on all property is outweighed by the cost.




The City has presented no evidence, and has no appraisal that the proposed improvements would result in an increase in the fair market value of all properties in an amount equal to or greater than the amount of the assessment.


Both of these grounds suggest that appellants’ claim is that market value increases are less than assessments, not that there is no increase at all.  And in the memorandum that appellants submitted to the district court in response to the city’s motion for summary judgment, appellants stated:

The specific legal challenge to this project is that it does not meet the necessary legal requirement that the project increases the market value of the property in at least the amount of the cost of the assessment.


            This statement does not suggest that the reason why the project does not meet the “legal requirement that the project increases the market value of the property in at least the amount of the cost of the assessment” is because decorative lighting does not increase the market value of any property under any circumstances.  It suggests that the challenge is based on a claim that increases in market value are less than assessments.  Appellants’ memorandum in response to the city’s motion for summary judgment also contains several other statements that refer to special assessments being greater than increases in market value without suggesting that the reason why the assessments are greater than the increases in market value is that decorative lighting does not cause any increase in market value.

            In light of appellants’ presentation of their appeal to the district court, it is easy to understand why the district court did not address the claim that the special assessments are invalid because decorative lighting does not increase market value under any circumstances, and therefore, any special assessment for decorative lighting is unconstitutional.  Even with the benefit of appellants’ articulation of this argument on appeal, it is difficult to discern this claim in the documents appellants submitted to the district court.

            Generally, a party may not “obtain review by raising the same general issue litigated below but under a different theory.”  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (citation omitted).  However, because it is at least arguable that appellants claimed in the district court that any special assessment for the decorative-lighting project is unconstitutional because decorative lighting does not increase market value under any circumstances, we will address this issue.

            Appellants argue that because they submitted evidence that replacing existing adequate lighting with decorative lighting does not increase the market value of any property, the district court had a constitutional responsibility to independently determine whether decorative lighting increases market value.  Appellants contend that the evidence they submitted rebutted the presumption recognized by this court in Bisbee, that an assessment allocation that is “based on the cost of the improvement is deemed reasonably related to the value of special benefits” because it is assumed that the cost of an improvement is related to the value of the benefits from an improvement.  Bisbee, 593 N.W.2d at 719 (citation omitted).  Appellants conclude that because they rebutted the presumption, there is a fact issue that must be decided at trial.

            The evidence that appellants contend creates a fact issue for trial consists of two affidavits of the same expert witness.  The first affidavit, dated May 1, 2001, states:

4.On Sunday, April 29, 2001 between approximately 11:00 pm until 1:30 am I went to the Field Regina neighborhood to look at the lighting in this neighborhood so I could give my expert opinion in the matter brought to this Court.

5.In my expert opinion I found that if [sic] there is no justification or necessity to remove the existing lighting in the Field Regina neighborhood.  The existing lighting only needs more voltage.

6.To conduct a Market Value Analysis there is and never has been, in my experience, a case where the lighting in a neighborhood or on a property has changed the market value of a property or properties as a whole.  The question of whether lighting raises or decreases the market value of a property is uniform through out the neighborhood and does not differ between individual properties.


            The second affidavit, dated May 29, 2002, states:

4.I have inspected the lights in the Field Regina neighborhood area prior to the decorative lights being installed and subsequent to the decorative lights being installed.  It is a long standing principle in property appraising that new lighting when there is adequate existing lighting does not increase the market value of any piece of property.

5.My observations of the lighting prior to the installation of the decorative lighting showed that it was adequate for the neighborhood.  Any deficiencies in the amount of light could have easily been remedied by increasing the wattage of the lights.

6.In my inspection of the new decorative lighting there is nothing that I have observed that would lead me to believe that the market values would increase as a result of this lighting project.  The long standing principle of appraisal that new lighting does not raise market values is based upon a long history that proves that an individual is not willing to pay more for a piece of property based upon the type of outdoor light as long as there is adequate light.


            These affidavits do not create a fact issue for trial because when viewed in the light most favorable to appellants, they do not establish appellants’ claim that the decorative lighting installed in the Field-Regina neighborhood did not increase the market value of any property in the neighborhood.  The second affidavit states that when there is adequate existing lighting, new lighting does not increase the market value of any piece of property, and the type of outdoor light does not increase what a buyer is willing to pay for property as long as there is adequate light.  But both affidavits state that there were deficiencies in the amount of light produced by the existing lighting system.  Therefore, the affidavits do not establish the premise upon which the expert’s opinion is based.  Neither affidavit states that new lighting fixtures do not increase the market value of property when the existing lighting is not adequate.  See DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (no genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986)).

Appellants next argue that the district court erred in determining that the city council was not required to obtain the approval of 65 percent of the affected property owners before continuing with the project.  The district court determined that although the city council attempts to determine support for improvement projects,

the Minneapolis Charter does not require any particular degree of support as a precondition to such a project and there does not appear to be any resolution indicating that such support was required for this project.


            Therefore, the court concluded, there was no issue for trial because as a matter of law the city council was not required to “obtain any particular quantum of support before continuing with the project.”

            Appellants appear to concede that the Minneapolis Charter does not require 65-percent approval, but they argue that if there is no charter provision that applies to special assessments for a particular project, the city’s resolution with regard to that project applies.  However, even if appellants are correct, their argument does not address the district court’s conclusion that there is no resolution that requires 65-percent approval for this project.  Appellants cite a policy regarding street lighting within the Street Renovation Program that was approved in a resolution passed by the city council in 1998 and permits decorative lighting to be petitioned in with approval of 65 percent of the affected property owners.  But appellants provide no argument or evidence that this project was part of the Street Renovation Program.  The only evidence that appellants cite to support their claim that 65-percent approval is required for this project is a statement by city engineer John Hotvet that the petition for the project meets the 65-percent threshold required by the city.  However, appellants do not explain how Hotvet’s statement can create an obligation to obtain 65-percent approval if there is no resolution that applies to this project.  Furthermore, appellants cite no evidence that the petition for this project was not signed by 65 percent of the affected property owners.  See Gutbrod v. County of Hennepin, 529 N.W.2d 720 (Minn. App. 1995) (stating “[t]o successfully oppose a summary judgment motion, the nonmoving party must present affirmative evidence sufficient to raise an issue of material fact; mere denials, general assertions, and speculation are not enough”) (citations omitted).

Finally, appellants argue that the district court erred when it denied their motion to certify this action as a class action and define the class as those property owners who filed written objections with the city prior to the final decision of the city council.  The district court concluded that under Village of Edina v. Joseph, 264 Minn. 84, 119 N.W.2d 809 (1962), property owners cannot appeal special assessments by class action because the statutes permitting assessment appeals provide an adequate remedy at law, and the statutory remedy is exclusive.

In Village of Edina, the supreme court explained:

The authorities generally indicate that relief against erroneous or illegal assessments will not be granted by a court of equity, if the property owner has an adequate remedy at law.  If the statute or charter provides a remedy by appeal or otherwise, such remedy is generally exclusive and will preclude any resort to equity.  The appeal provisions under [Minn. Stat. §§] 429.036 and 429.081 furnish adequate remedies at law.


Id., 264 Minn. at 100, 119 N.w.2d at 819 (citations omitted).

            The supreme court then concluded:

It seems clear that a class suit is no more available in a proceeding involving a special assessment levy under the provisions of [chapter] 429 than it is in a ditch proceeding under the drainage laws of this state.  The circumstance of ownership of abutting properties affected by the assessment does not give owners the right to institute a class action, nor does it permit any aggrieved party to intervene after he has let the time for appeal expire.


Id. 264 Minn. at 101, 119 N.W.2d at 820.  The district court acknowledged that appellants argued

that [Minn. Stat.] section 429.081 has been amended since the Village of Edina decision, and it has - the appeal period has been extended from 20 to 30 days, and only property owners who sent in a written objection before passage of the assessment may appeal.


But the court concluded that neither of these changes affects the holding of Village of Edina.  We agree.  Appellants have not explained why these changes mean that a statutory remedy that the supreme court found to be adequate to prohibit a class action in Village of Edina is no longer adequate to prohibit a class action.

            On appeal, appellants argue that the supreme court has abandoned the principle established in Village of Edina.  But because appellants did not make this argument in the district court, we will not consider it for the first time on appeal.  See Thiele, 425 N.W.2d at 582 (Minn. 1988) (party may not obtain review by raising same general issue litigated below but under a different theory).