This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1680

 

Jerry Klema, as attorney-in-fact for
Dale Verbout and Sherry Verbout, petitioner,
Respondent,

vs.

City of Roseau,
Appellant.

 

Filed June 22, 2004

Affirmed; motion to strike denied

Minge, Judge

 

Roseau County District Court

File No. CX-03-87

 

 

Alan B. Fish, Alan B. Fish, P.A., 109 Second Street Northeast, Roseau, MN 56751 (for respondent)

 

Roger N. Knutson, Soren M. Mattick, Campbell Knutson, P.A., 1380 Corporate Center Curve, Suite 317, Eagan, MN 55121 (for appellant)

 

            Considered and decided by Harten, Presiding Judge; Halbrooks, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant-city challenges the district court’s judgment that appellant-city’s denial of respondent’s request to reapportion a special assessment was arbitrary and capricious, arguing that the district court’s decision was improperly based on equitable concepts and that respondent lacks standing to seek reapportionment.  We affirm.

FACTS

 

            Between 1994 and 1997, the City of Roseau specially assessed Lot 1, Block 2 of Jerry Klema’s Second Subdivision in the City of Roseau for sanitary sewer extensions, curb, gutter, paving, storm sewer, and water mains.  Jerry Klema was the owner of this property in 1997, and he made payments towards the outstanding balance for special assessments on an annual basis without objection.  Over time, Lot 1 was divided into Parcels A, B, C, and D.

            Klema sold Parcel A to Ronald and Kathleen Schacher in September 1997.  At the time of the sale there was $66,885.96 remaining on the unpaid special assessments.  After Klema inquired, the city calculated the assessment for storm sewer based on the square footage of each individual lot and prorated the remaining assessments based on the lineal footage of the benefited parcel abutting the developed street.  The city advised Klema that the assessed amount that would attach to Parcel A would be $56,039.11 and reapportioned the assessments accordingly.  Klema paid the $56,039.11 and the city removed all assessments on Parcel A, leaving the balance of $10,846.85 levied against the remaining parcels. 

In December 2000 and January 2001, Parcels B and C were sold to Blake Stotts, subject to special assessments.  The two parcels were combined for tax purposes.  Klema did not request that the city reapportion the assessments among Parcels B, C, and the remainder of Lot 1 at the time of this division and sale.

            In February 2002, Klema sold the remainder, Parcel D, to Dale and Sherry Verbout, subject to no special assessments.  Klema agreed that he would pay off any assessments levied against Parcel D.  As the last piece of the property to be sold, Parcel D retained the original parcel tax number.  A city representative testified that because no request was made for reapportionment when Parcels B and C were sold, the balance of the special assessments simply followed the original parcel number without regard to square footage or benefits incurred on the different parcels.  The remaining balance for all special assessments of $6,621.28 was therefore assessed entirely to Parcel D.  Klema testified that after he sold Parcel A, he divided and sold other property within the city limits that was subject to special assessments, and that the special assessments were apportioned by the city pursuant to the original assessment formula without him having to request it.

            In April 2002, Klema asked the city to reapportion the remaining balance of the special assessments against Parcels B, C, and D.  At the time of Klema’s request, he no longer owned any of the affected property, nor was the city informed of any promises in the various purchase agreements about who would pay the special assessments.  The city denied his request without giving any reason.

            In December 2002, Dale and Sherry Verbout executed a power of attorney authorizing Klema to act on their behalf with respect to Parcel D.  Klema initiated this cause of action in district court approximately one month later.  The district court determined that Klema was entitled to judgment on the petition for reapportionment of the remaining special assessments among Parcels B, C, and D and ordered the City of Roseau to reapportion the special assessments according to the same formula used to reapportion the special assessments when Parcel A was sold.  This appeal followed. 

D E C I S I O N

 

I.

 

            The first issue is whether Klema has standing to request reapportionment of the assessment.  “[S]tanding is a legal question, which is reviewed de novo on appeal.”  Eagle Creek Townhomes, LLP v. City of Shakopee, 614 N.W.2d 246, 250 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000).  Statutory construction is also a question of law, which this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

            The reapportionment of special assessments is governed by Minn. Stat. § 429.071, subd. 3 (2002), which states:

When a tract of land against which a special assessment has been levied is thereafter divided or subdivided by plat or otherwise, the council may, on application of the owner of any part of the tract or on its own motion equitably apportion among the various lots or parcels in the tract all the installments of the assessment against the tract remaining unpaid and not then due if it determines that such apportionment will not materially impair collection of the unpaid balance of the original assessment against the tract.  The council may, and if the special assessment has been pledged to the payment of improvement warrants shall, require the owner or owners, as a condition of such apportionment, to furnish a satisfactory surety bond fully protecting the municipality against any loss resulting from failure to pay any part of the reapportionment assessment when due.

 

The City of Roseau argues that Klema did not have standing to apply for reapportionment because the plain language of the statute indicates that only the city or the owner can bring a motion for apportionment after a tract of land with special assessments has been divided.  At the time that Klema made his request, he had sold all portions of the subject property. 

It is undisputed that even after all sales, Klema had a contractual interest in Parcel D’s assessments.  He was liable for the assessments.  Furthermore, even if Klema lacked authority under the statute to apply for reapportionment, the Verbouts ratified his unauthorized action by granting Klema a power of attorney for the purposes of real property transactions as they related to Parcel D.  See Anderson v. First Nat’l Bank, 303 Minn. 408, 410, 228 N.W.2d 257, 259 (1975) (“Ratification occurs when one, having full knowledge of all the material facts, confirms, approves, or sanctions by affirmative act or acquiescence, the originally unauthorized act of another, thereby creating an agency relationship.”).  By ratifying the act, the principal agrees to be bound by it, even though the act was initially unauthorized.  Gran v. City of St. Paul, 274 Minn. 220, 223, 143 N.W.2d 246, 249 (1966).  The record reflects that the Verbouts executed the power of attorney before the city raised Klema’s standing.  For these reasons, we conclude that Klema has standing to request reapportionment of the assessment on Parcel D.

II.

            The second issue is whether the evidence supports the district court’s conclusion that the City of Roseau abused its discretion in denying respondent’s request for reapportionment of special assessments.  The standard by which this court reviews the trial court’s determination of a special assessment is stated in Carlson-Lang Realty Co. v. City of Windom, 307 Minn. 368, 240 N.W.2d 517 (1976).  “The scope of our review is a careful examination of the record to ascertain whether the evidence as a whole fairly supports the findings of the district court and whether these in turn support its conclusions of law and judgment.”  Id. at 373, 240 N.W.2d at 521.  As a result, the appropriate standard of review is “not to weigh the evidence as if trying the matter de novo, but rather to determine if the evidence as a whole sustains the trial court’s findings.”  Twin City Hide v. Transamerica Ins. Co., 358 N.W.2d 90, 92 (Minn. App. 1984).

            The assessment reapportionment statute gives the city discretion to reapportion upon request.  Minn. Stat. § 429.071, subd. 3.  Although rebuttable, there is a strong presumption favoring action taken by a city.  Arcadia Dev. Corp. v. City of Bloomington, 267 Minn. 221, 226, 125 N.W.2d 846, 850 (1964).  In fact, even if the reasonableness of the city’s actions is only “doubtful[] or fairly debatable, a court will not interject its own conclusions as to more preferable actions.”  Id.  When a city acts in a quasi-judicial capacity, applying the law to undisputed facts, its decision may only be set aside if the city acted unreasonably, arbitrarily, or capriciously.  Vill. of Edina v. Joseph, 264 Minn. 84, 93, 119 N.W.2d 809, 815 (1962).  Special assessments are presumed to be valid if (1) the land receives a special benefit from the construction of the improvement; (2) the assessment is uniform upon the same class of property; and (3) the assessment does not exceed the special benefit to the property.  Tri-State Land Co. v. City of Shoreview, 290 N.W.2d 775, 777 (Minn. 1980). 

The question of the existence and extent of special benefit resulting from a public improvement for which a special assessment is made is one of fact, legislative or administrative rather than judicial in character, and the determination of such question by the legislature or by the body authorized to act in the premises is conclusive on the property owners and on the courts, unless it is palpably arbitrary or grossly unequal and confiscatory, in which case judicial relief may be had against its enforcement. 

 

Joseph, 264 Minn. at 96, 119 N.W.2d at 817 (quotation omitted).

            While there is no caselaw stating that after division of property with special assessments the resulting assessments must not exceed the special benefit to the respective properties, this court has stated that “[i]f the assessment is set higher than the special benefit conferred, it is a taking without compensation to the extent of the excess.”  Dosedel v. City of Ham Lake, 414 N.W.2d 751, 756 (Minn. App. 1987).  In this case, the record reflects that Parcel D is subject to the entire balance of the special assessments without regard to square footage or benefits to the parcel, and Parcels B and C are left without any special assessments.  It is undisputed that Parcel D does not benefit from the curb and gutter assessments, but Parcels B and C are benefited by the curb, gutter, water main, sanitary sewer, and storm sewer assessments. Therefore, as matters now stand, the assessments on Parcel D bear no relationship to the benefits conferred.  In this case, Klema, as a prior owner and present-interest holder, has brought this disparity to the attention of the city, without objection from the current owners of Parcels B, C, or D.  In fact, the current owners of Parcels B and C purchased those parcels subject to special assessments and expected to pay their lots’ share of the assessments.  In these circumstances, denying Klema’s request to reapportion the assessments on Parcel D would be arbitrary and capricious and inconsistent with the policy allowing reassessment.  See In re Reassessment for Grading Prior Ave., 68 Minn. 242, 248, 71 N.W. 27, 29 (1897) (“The intention seems to be that nothing shall prevent or stand in the way of repeated reassessments until they shall result in the property paying its proper share of the cost of the improvement.”).  Furthermore, this case does not raise the issue of whether the assessments are appropriately allocated.  The owners of Parcels B, C, and D will still have the opportunity to challenge the assessments as reapportioned.  Therefore, we affirm the district court’s order directing the City of Roseau to reapportion the special assessments according to the same formula used to reapportion the special assessments when Parcel A was sold.[1] 

III.

            The last issue is whether the district court erred in finding that the city denied Klema’s request because he no longer owned any of the property.  Incident to his argument on this issue, Klema moves to strike all assertions in the city’s briefs regarding the city’s basis for denying reapportionment of assessments.  Given our determination that Klema had standing to challenge the refusal of the city to reapportion the assessments, the finding on this issue does not affect the outcome of this proceeding or any municipal assessment reapportionment proceeding on remand.  Therefore, we decline to further consider this issue.

Affirmed; motion to strike denied.

 



[1] The city has the right to demand assurance that it will ultimately be paid the assessment amounts as provided in Minn. Stat. § 429.071, subd. 3.  That issue was not raised with the district court or on appeal.