This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
City of Oak Grove, a
Daniel S. Orttel,
Gary C. Nelson, et al.
Filed May 31, 2005
Anoka County District Court
File No. C7-03-12581
James M. Susag, Larkin Hoffman Daly & Lindgren Ltd., 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Minneapolis, MN 55431 (for respondent City of Oak Grove)
Howard A. Roston, Malkerson Gilliland Martin, LLP,
Considered and decided by Stoneburner, Presiding Judge; Lansing, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Daniel Orttel appeals the district court’s order granting the City of Oak Grove’s petition to acquire by eminent domain four lots owned by Orttel that are located in a redevelopment area designated to remove substandard or blighted structures and provide housing and related facilities for low- and moderate-income senior citizens. Orttel contends that the condemnation of his property does not serve a public purpose, is not necessary, and constitutes an unlawful acquisition of private property. Because the record establishes that the condemnation will remove blighted or substandard structures and advance the public purpose of providing senior housing and related redevelopment, that the acquisition is neither excessive nor for a speculative purpose, and that it is consistent with both the city’s comprehensive plan and stated policies, we affirm.
F A C T S
Daniel Orttel owns four lots in the
Orttel challenged the condemnation petition, and the district court conducted a hearing on the challenge. Based on the evidence presented at the hearing, the district court concluded that the condemnation served a public purpose, that it was necessary, and that it was lawful. Orttel appeals each of these determinations.
D E C I S I O N
In exercising its statutory
authority to condemn, the City of Oak Grove must demonstrate that the
condemnation is necessary and authorized by law to achieve a public
It is well established that
a governmental body may exercise its power of condemnation only for a public
use or purpose. Schapiro, 297
The city’s stated purposes
for the entire area include redevelopment of the area according to its comprehensive
plan, removal of substandard structures, and the construction of housing for low-
and moderate-income senior citizens. The
acquisition of blighted areas or the removal of substandard structures serves a
public purpose, and the “subsequent transfer of such lands to private parties
is incidental to the main public purpose.”
We first evaluate the
evidence supporting the determination that the condemnation serves the public
purpose of removing substandard structures.
Although Orttel contends that the city made insufficient findings to
support condemnation for this purpose because the resolution referred to in the
petition does not specifically refer to substandard structures, the analysis
includes not only the recitations in the petition, but also the contents of the
underlying record. See Hous. &
Redevelopment Auth. v.
The record contains repeated references to the substandard structures on Orttel’s land and the problem of blight. The city initiated an assessment of the property and structures in the redevelopment area in 2001. This assessment, which the city incorporated into its resolutions, indicated that 100% of the structures were substandard, requiring repairs that cost more than 15% of the price of constructing a new structure of the same size. The report explicitly stated that Orttel’s two buildings were substandard because they required extensive repairs and did not comply with the city’s code. Even if Orttel’s structures had not been individually substandard or blighted, the city acts within its power by eliminating blight on an area basis rather than a structure-by-structure basis. See Schapiro, 210 N.W.2d at 213 (observing that elimination of blight on area basis serves public purpose). The undisputed evidence substantiates that the established public purpose of eliminating blighted or substandard buildings motivated the condemnation; this purpose alone is sufficient to justify the condemnation.
Orttel disputes that the
city has authority to condemn for redevelopment and the removal of substandard
structures because the city has no housing and redevelopment authority (HRA),
and only an HRA may condemn for these reasons.
This argument has no merit. The
city established the Economic Development Association (EDA) and, pursuant to
statutory authority, granted it the powers of an HRA. See Minn. Stat. § 469.091, subd.
1 (2004) (permitting city to establish EDA with authority of HRA). The city properly exercised its authority to
identify and condemn areas that are substandard and to initiate redevelopment
plans for the welfare of its citizens.
Minn. Stat. § 469.003, subd. 1 (2004). The city concluded that the “sound
development of the economic security of the people in the City depends upon
proper redevelopment of substandard, blighted, and/or marginal property.” This conclusion is not arbitrary,
unreasonable, or capricious in light of the record and is therefore entitled to
Orttel also disputes that the redevelopment of the property is for a public purpose because private developers will be responsible for the project. At the outset, we note that this argument has no implications for the condemnation of the southern portion of the property, which will be the site of a 52-unit senior housing facility. Under an executed contract with the Anoka County Housing and Redevelopment Authority (ACHRA), the county will own and operate this senior facility for the benefit of the city’s senior citizens. Therefore, Orttel’s argument that private interests override the public purpose cannot apply to the southern portion of the property because no private party will be involved in the ownership or operation of the development.
Turning to the northern parcel of land, the evidence demonstrates that the condemnation of this parcel serves a predominantly public purpose and that any benefit to private developers is incidental. A study of the needs of seniors in the community reported a need for housing, particularly housing for low- and moderate-income seniors and housing that permits greater interaction among people who have difficulty with mobility. The study concluded that the traditional 2.5-acre residential lots are less desirable for the elderly because of age-related health and mobility issues. Among its recommendations for addressing the seniors’ housing needs, the report suggested the city consider zoning ordinances and planned unit developments (PUDs) to permit a community with a greater density of housing units that would allow specialized care in senior housing facilities.
Furthermore, the northern
parcel of land is an integral part of the city’s overall redevelopment plan,
which envisions a community for senior citizens with the senior housing
facility at its core. Although the city
intends to transfer the area to private developers, any economic benefit to a
private party is incidental to the city’s public purposes of redeveloping the
area and providing a senior housing community.
The private developers are simply a means of achieving the goal of
redevelopment, blight removal, and the construction of housing for low- and
moderate-income senior citizens.
Although private parties will benefit, nothing in the record suggests
that the city’s decision was motivated by this potential profit. We therefore conclude that the district court
did not err in determining that the condemnation served the valid public
purposes of removing blight, redeveloping the
The condemning authority
need not prove absolute necessity, but must establish that the condemnation is
“reasonably necessary or convenient for the furtherance of a proper
purpose.” City of
It cannot reasonably be argued that the removal of substandard structures is a speculative purpose or that condemnation would not achieve that end. The executed contract for the southern part of the land also dispels any claim that the project is speculative. Orttel, however, asserts that the contract with ACHRA is not certain because an environmental assessment, a condition precedent to the contract, has yet to be completed. But the contract permits, as an alternative to the environmental assessment, an indemnity agreement, which is complete and attached to the final contract. Therefore, all conditions precedent to the contract with the ACHRA have been satisfied with the exception of the land’s acquisition, which awaits the conclusion of this case. Because the contract is in place to realize the project, the purpose is not speculative.
The record also provides adequate evidence that the redevelopment of the northern parcel is not speculative. The city has a master plan for the redevelopment area that provides a comprehensive blueprint that overcomes a claim of speculation. See Regents, 552 N.W.2d at 580 (basing its decision, in part, on absence of master plan for project). To support his argument, Orttel points to the absence of any contracts, definitive plans about the exact layout or configuration of the northern portion, and the mayor’s statement that the details for developing the northern portion were speculative. The mayor, however, did not say that the redevelopment plan, with its proposal to redevelop the entire area, was speculative, and the reference was not made in a context that suggested a legal use of the term.
Because redevelopment is a valid public purpose, the city need only demonstrate that a part of the redevelopment, particularly development in accord with its objective to provide housing for low- and moderate-income senior citizens, is definite. It has met this burden. The record shows that the city created a Tax Increment Financing district to facilitate its plan, the mayor testified that development of the area will proceed in the reasonably near future, and the plan provides that this development will address the senior citizens’ housing needs. The city is acting pursuant to a well-established community plan to fulfill the broad purpose of redeveloping the area. And it has determined, in its legislative capacity, that this property is necessary for the redevelopment area. The city’s actions were not arbitrary, unreasonable, or capricious.
Orttel’s final challenge to the public purpose is that
the condemnation of the northern portion should fail because it is
excessive. The authority that he
advances for this argument is not persuasive. The single
The record does not support a claim that the area designated for condemnation is excessive. The city has a redevelopment plan for the area with the substantiated purpose of building a senior citizen community and infrastructure for the senior-housing facility, including a septic system, holding ponds, and a road. Although the city might be able to find an alternative placement for this infrastructure, the city’s determination that improving the existing infrastructure on the northern parcel is more economical and beneficial to the senior facility than any alternative suffices to demonstrate the necessity of acquiring the entire area. Significantly, the condemnation of the northern portion of the property is a necessary step in realizing the larger purpose of redevelopment. Because the condemnation of the property does not exceed the scope of the redevelopment area, which the city found necessary, it is not excessive.
Orttel’s remaining arguments challenge the lawfulness of
the condemnation within the context of the comprehensive plan and the adequacy
of the condemnation petition. A city may
not “adopt any fiscal device or official control which is in conflict with its
comprehensive plan.” Minn. Stat.
§ 473.858, subd. 1 (2004). A
comprehensive plan contains objectives, policies, standards and programs to
guide public and private land use. PTL,
Orttel, however, has failed to establish that the condemnation or redevelopment plan conflicts with the comprehensive plan. He is correct that the minimum lot size for the area, as it is classified on the land use map, is 2.5 acres and that the PUD, the zoning ordinance, and the redevelopment plan call for a lot size of 10,000 square feet. This anticipated deviation, however, does not represent a conflict for three reasons.
First, the comprehensive plan contemplates a flexible land use approach and permits zoning ordinances that are “consistent with the spirit and philosophy of this comprehensive plan.” The redevelopment plan is consistent with the comprehensive plan’s policies of maintaining a rural setting while providing for its citizen’s residential needs. A PUD that is consistent with the comprehensive plan’s intent does not violate the comprehensive plan.
Second, the comprehensive plan anticipated that PUDs and zoning ordinances would alter lot sizes and provide for clustering. Several sections of the plan explicitly refer to the use of these official controls to carry out the purpose of the plan. As part of its discussion of density in residential districts, the plan notes that the blanket density of the “residential district would be established with the provision that a planned unit development could be proposed that would cluster units and/or reduce land area requirements.” And, in its implementation section, the comprehensive plan notes that PUDs would “permit relaxing of strict (and often cookie cutter) lot and building siting provisions. Specific lot sizes, lot widths or depths, frontages, and setbacks could be varied based on an overall site development plan.” Because the comprehensive plan explicitly provided for the modification of density requirements, the city’s redevelopment plan does not conflict with it.
Third, the redevelopment plan complies with the amended zoning ordinance and the overlay PUD. Because these official controls act to implement the comprehensive plan, consistency with these controls also indicates consistency with the comprehensive plan. Furthermore, in deciding to pass a zoning amendment rather than amend the comprehensive plan, the council specifically noted the zoning amendment’s conformity to the comprehensive plan as a cluster development, recognizing that “the general understanding of a cluster development is reduced lot size and a community collector system.” In light of the city council’s observations that the PUD and zoning ordinance were enacted in compliance with the plan, the condemnation does not conflict with the comprehensive plan and is therefore lawful.
Orttel’s final argument is that the
condemnation is unlawful because Oak Grove did not meet the statutory
requirements for filing a petition for condemnation. A condemning authority must file a petition
that identifies the subject property and states “for what purposes it is
proposed to be taken.”