This opinion will be unpublished and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
Lawrence Beach, et al.,
individually and on behalf of the State of Minnesota,
County of Koochiching, Minnesota,
Filed October 25, 2005
Koochiching County District Court
File No. C204349
Thaddeus R. Lightfoot, The Environmental Law Group, Ltd., East Bridge at Riverplace, Suite 114, 10 Second Street Northeast, Minneapolis, MN 55413 (for appellants)
Susan M. Tindal, Paul D. Reuvers, Iverson Reuvers LLC, 9321 Ensign Avenue South, Bloomington, MN 55438 (for respondent)
Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from the district court’s grant of summary judgment for respondent-county on the ground that the county’s approval of a planned sewer project was not arbitrary and capricious, appellants argue that the county (1) violated Minn. Stat. §§ 116A.08-.10 (2004) by prematurely approving a final design plan; (2) failed to receive a complete engineer’s report when the report it received lacked monetary estimates of the damage to property; (3) adopted a defective viewers’ report that was internally inconsistent; (4) violated the contracting provisions of chapter 116A by prematurely letting the contract; (5) failed to address appellants’ argument regarding the county’s alleged failure to let the contract as bid; and (6) violated Minn. Stat. § 116A.12 (2004) by not giving adequate notice of the second hearing on the sewer project. We affirm.
In October 1998,
a group of
On January 15,
2002, the board held a preliminary hearing to examine the feasibility of the
A February 2003
environmental assessment identified 246 properties that would be required to
hook into the
On approximately October 28, 2003, the county appointed three residents to serve as “viewers” under Minn. Stat. § 116A.11 (2004). On October 29, 2003, the viewers were sworn in and viewed 248 properties in the project area. The viewers prepared a report estimating the damages to properties affected by the project and filed the report with the county auditor on November 4, 2003. The report did not quantify the damages for each parcel of land but rather used the terms “nominal,” “marginal,” and “moderate” to describe damages for each parcel. The viewers found “that in all instances the value of providing a centralized sewer collection and treatment system to each property exceeds any damage to the property.”
On October 10, 2003, the county published a bid advertisement for the project with a November 19, 2003 deadline. On November 18, 2003, the county published an addendum to the bid advertisement extending the bid deadline to December 2, 2003, and increasing the bid security amount from five to ten percent of the maximum bid amount. The county received two bids and opened them on December 2, 2003. The county determined that Wagner Construction, Inc. was the low bidder with a base bid of $8,756,966. The bid was more than the county had anticipated the project would cost. Ayres reviewed the project to determine potential cost savings that would allow the project to proceed without affecting functionality.
On December 17, 2003, the board held the second public hearing on the project. Notice of the hearing had been published on November 20, 2003. The notice indicated that the detailed survey of the project engineer and the viewers’ report had been filed with the auditor. At the hearing, several property owners objected to the county’s proposal to offer one dollar to each property owner for any necessary project easements. The county continued the hearing for further public comment and to make efforts to reduce the project cost.
The county undertook “value engineering negotiations” with Wagner and Ayres, which resulted in design changes that reduced Wagner’s bid to $8,277,900. In an April 23, 2004 letter, the Minnesota Pollution Control Agency (MPCA) found that the design changes were not substantial and approved the changes.
On May 11, 2004, the board reconvened the second public hearing. Notice of the hearing had been published on April 27, 2004. After receiving public comment, the May 11 hearing was adjourned until May 18, 2004, so the board could review and consider all items submitted regarding the project’s feasibility. The board allowed additional public comment at the hearing.
The board adopted a resolution approving the project to extend sewer service to about 250 existing dwelling units and providing for the hook-up of vacant parcels within the proposed project area. The board found
that the estimated benefits of the project are greater than the total estimated cost, including damages, that the benefits and damages have been duly determined, that the proposed sewer system will be of public utility and benefit, and will promote the public health, and that the proposed system is practicable[.]
The resolution adopted Wagner’s low bid to construct the system.
filed cross-motions for summary judgment in the first action, and the county
moved for summary judgment in the second action. The district court considered the motions in
both actions at a single hearing and decided them in a single order filed November
29, 2004. The district court granted
summary judgment for the MPCA on the MEPA claim; denied the parties’ respective
motions for summary judgment on the MERA claim; and granted summary judgment
for the county in both actions on the claims under
On appeal from a summary judgment, this court
examines the record to determine whether any genuine issues of material fact
exist and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d
2, 4 (
When reviewing the decision of a local
governing body regarding a public improvement, a court must “pay great
deference to the initial legislative determination that the particular project
serves a public purpose, and . . . presume that public officials are properly
performing their duties when they make such decisions.” R.E.
Short Co. v. City of
“In the absence of evidence to the contrary, public officials, administrative officers, and public authorities, within the limits of the jurisdiction conferred upon them by law, will be presumed to have properly performed their duties in a regular and lawful manner and not to have acted illegally or unlawfully, and, it will be presumed that public authorities, in determining the advisability of constructing a public project, have considered the necessary facts and have sufficiently satisfied themselves as to the propriety and feasibility of the construction, as a predicate for the issuance of bonds or notes to pay the cost thereof.”
This general standard for reviewing a discretionary decision of a local governing body applies to the district court’s review of the county board’s order under Minn. Stat. § 116A.19, subd. 3 (2004), which states:
The court shall examine the whole matter and receive evidence to determine whether the findings made by the county board can be sustained. At the trial the findings made by the county board shall be prima facie evidence of the matters therein stated and the order of the county board shall be deemed prima facie reasonable. If the court shall find that the order appealed from is lawful and reasonable, it shall be affirmed. If the court finds that the order appealed from is arbitrary, unlawful, or not supported by the evidence, it shall make such order to take the place of the order appealed from as is justified by the record before it or remand such matter to the county board for further proceeding before the board.
Stat. §§ 116A.01-.26 (2004) govern the establishment of sewer systems in
counties outside the seven-county metropolitan area. If a system is entirely in one county, the
process begins with filing with the county auditor a petition that is signed by
the owners of at least 50 percent of the area.
Minn. Stat. § 116A.02, subd. 1.
Within 30 days after the petition and a bond are filed, the county board
shall appoint an engineer to make a preliminary survey to determine whether the
proposed system is necessary and feasible and to report accordingly. Minn. Stat. § 116A.06, subd. 1, .07. The engineer shall file the completed survey
and report with the county auditor.
Within 60 days after the preliminary report is filed, the board shall hold a hearing. Minn. Stat. § 116A.08, subd. 1.
If the board . . . is satisfied that the proposed improvement as outlined in the petition or as modified and recommended by the engineer is feasible, that there is necessity therefor, that it will be of public benefit and promote the public health, it shall so find and by order shall designate any changes to be made in the proposed improvement. Changes may be described in general terms and shall be sufficiently described by filing with the order a map outlining the proposed improvement. Thereafter the petition shall be treated as modified accordingly.
The findings shall be construed as conclusive only as to the sufficiency of the petition, the nature and extent of the proposed plan and the need of a permanent survey, and only as to the persons or parties shown by the engineer’s preliminary report as likely to be affected by the improvement. All questions relative to the practicability and necessity of the proposed improvement shall be subject to further investigation and consideration at the final hearing.
the filing of the order as specified in section 116A.08, the board . . . shall
order the engineer to proceed to make a detailed survey and furnish all
necessary plans and specifications for the proposed improvement, together with
an estimate of the total cost of construction of the system.”
Appellants argue that the county violated Minn. Stat. § 116A by authorizing and preparing a final design report for the project before conducting the preliminary hearing required under Minn. Stat. § 116A.08.
Appellants contend that chapter 116A “expressly requires a careful process designed to ensure that a proposed improvement initiated by the petition process in Chapter 116A is feasible and necessary before a county board irrevocably commits significant resources to the project,” and spending large sums for a near-final design months before the preliminary hearing undermines the statutory process. Citing the minutes of the February 27, 2001 board meeting, appellants contend that the board committed significant resources to the project before ensuring that the proposed improvement is feasible and necessary.
The minutes state that the motion was to “approve a service contract with Ayres Associates for preliminary and final design of the Jackfish Bay Wastewater Collection System for a total contract of $274,000 ($44,700 expended in 2000, $85,300 approved in January 2001 and the balance of $144,000 approved as of this motion), contingent on an addendum clearly stating . . . that the amount of $274,000 be repaid to the County with construction of the system.” The minutes also state, “[a]s discussed in committee, Ayres will have the final system design completed and submitted to the State by July 2001 and in the meantime, the Committee will continue to seek additional funding for the project.”
It is not
apparent how the board could meet the requirements of the statute without
committing some resources to the project before ensuring that the proposed
improvement is feasible and necessary.
The statute requires that when a petition and bond are filed, the board
“shall, within 30 days, by order appoint an engineer to make a preliminary
under the statute, it is not until after the board finds under Minn. Stat.
§ 116A.08, subd. 5, that the proposed improvement is necessary and
feasible that the board orders the engineer to “make a detailed survey and
furnish all necessary plans and specifications for the proposed
Appellants essentially argue that by approving a contract for a final design before it determined that the improvement is feasible and necessary and, therefore, that a final design would be needed, the board made the statutory process a sham. But appellants do not cite any authority that permits a court to conclude that the board’s determination that the improvement is necessary and feasible is invalid because the board began the statutory process with an expectation that the improvement would be approved. Nor do appellants cite any evidence that could demonstrate that the improvement is not necessary and feasible; they simply contend that the board violated the statute by beginning the process with a conclusion already in mind.
Appellants argue that because the engineer’s report filed in June 2001 contains precise design specifications that the county relied on in approving the project, it was a final design report, rather than a preliminary survey and design as contemplated by Minn. Stat. § 116A.07, which states:
The engineer shall promptly examine all matters set forth in the petition and order, make such preliminary survey of the territory likely to be affected by the proposed improvement as will enable the engineer to determine whether it is necessary and feasible, and report accordingly. If some plan other than that described in the petition is found practical, the engineer shall so report, giving such detail and information as is necessary to inform the . . . board on all matters pertaining to the feasibility of the proposed plan, either as outlined in the petition or according to a different plan recommended by the engineer.
The statutory requirement that the engineer “report accordingly” provides no standard for a court to apply to determine whether the level of detail in the engineer’s report is improper. But the record demonstrates that the board did not treat the June 2001 report as a final design report. Rather, the board conducted a preliminary hearing to examine the project’s feasibility on January 15, 2002. Following that hearing, the board issued a resolution finding the project feasible and in the public interest and requesting that Ayres prepare detailed engineering plans and specifications for the project. And appellants acknowledge that some changes were made in the design presented in the June 2001 report. Thus, the board followed the requirements of Minn. Stat. §§ 116A.08-.09.
argue that the engineer’s report does not meet the requirements of Minn. Stat.
§ 116A.09 because it does not include estimated damages payable as
reported by the viewers and inaccurately estimates the cost of acquiring easements. The county argues that this issue is not
properly before this court because appellants did not raise it before the
district court. Generally, this court
will only address issues that the record shows were presented to and considered
by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (
argue that the county did not comply with Minn. Stat. § 116A.11 because the
viewers failed to meet within 30 days after the engineer filed the final
detailed survey and report. Appellants
misread the statute.
Minn. Stat. § 116A.11, subd. 4, states:
The viewers, with or without the engineer, shall estimate damages to all lands and properties affected by the proposed system and shall report their findings. The report shall show in tabular form the description of each lot and tract, or fraction thereof, under separate ownership, damaged and the names of the owners as the same appear on the current tax duplicate of the county. Estimated damages shall be reported on all lands owned by the state the same as upon taxable lands. The viewers shall report all estimated damages that will result to all railways and other utilities, including lands and property used for railway or other utility purposes. In case the viewers are unable to agree, each viewer shall state separately that viewer’s findings on any matter disagreed upon.
Appellants argue that the viewers’ report does not comply with the statute because the report does not (1) include the names of owners; (2) address every parcel that will be served by the improvement (3) quantify damages for each parcel; (4) address the abandonment of functioning septic systems that will be replaced by the new sewer system; (5) include easements as damages; (6) assess affected utility rights-of-way; (7) consider damages to parcels of undeveloped land; (8) address state highway damages; and (9) consider the costs of utility upgrades necessary for the project.
doctrine of “substantial compliance” has been applied to cases involving public
improvements and special assessments in
the law does not mandate in all cases strict and literal compliance with all procedural requirements. Technical defects in compliance which do not reflect bad faith, undermine the purpose of the procedures, or prejudice the rights of those intended to be protected by the procedures will not suffice to overturn governmental action.
Appellants are correct that the viewers’ report does not contain the names of property owners as required under Minn. Stat. § 116A.11, subd. 4; the report identifies individual parcels with a number. But appellants do not explain how this failure is anything more than a technical defect in compliance. Appellants have not cited any evidence that any property owner was misled by the viewers’ report or unable to determine what the report said about the owner’s property. Absent some evidence that the failure to include owners’ names in the report reflects bad faith, undermines the purpose of the report, or prejudices the rights of property owners, the failure to include names will not suffice to overturn the board’s reliance on the report.
Items (2), (6),
(7), (8), and (9) raised by appellants with respect to the viewers’ report all
involve claims that the viewers failed to address certain issues on individual
parcels. But the only evidence that
appellants cite to support their claim that the viewers failed to address
issues on these parcels is one page from one appellant’s affidavit, and that
page of the affidavit does not identify a single parcel where any of the
alleged viewers’ errors occurred; it simply states that the errors
occurred. These conclusory statements
are not sufficient to establish a fact issue with respect to whether the viewers
failed to address issues on individual parcels.
See DLH, Inc. v. Russ, 566
N.W.2d 60, 69-71 (
Items (4) and
(5) raised by appellants with respect to the viewers’ report involve claims
that the viewers failed to include in their damages assessments the costs of
abandoning functioning septic systems that will be replaced by the new sewer
system and the cost of easements. But
appellants do not cite any authority or make any argument to support their
claim that the costs of abandoning a functioning septic system are compensable
damages. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn.
518, 519-20, 187 N.W.2d 133, 135 (1971) (“An assignment of error based on mere
assertion and not supported by any argument or authorities in appellant’s brief
is waived and will not be considered on appeal unless prejudicial error is
obvious on mere inspection.”). And
argue that the viewers’ report did not comply with Minn. Stat. § 116A.11
because it did not state a dollar amount for the damages on each parcel and
instead described the damages for each parcel as nominal, marginal, moderate,
substantial, or severe. But in addition
to describing the damages for each parcel the viewers stated in their report
that “in all instances the value of providing a centralized sewer collection
system to each property exceeds any damage to the property.” In State
v. Leslie, 30
The commissioners made an award, in which they specify the damages to each of several tracts described, giving the names of the owners, and then state, “and in all other cases the benefits are equal to the damages.” No express mention is made of the lands of defendant, nor of four others through whose land the road runs. It is not disputed that it was proper for the commissioners in their award to offset the benefits to each owner against the damages, and, in case they were equal, to allow him nothing. But it is claimed that the award should describe each tract, or name the owner, and that a general statement, “in all other cases the benefits are equal to the damages,” is not enough. Undoubtedly it should appear from the award that the commissioners considered and passed on the damages to each tract through which the road runs. But this does appear by the general clause above quoted from the award, where no damages are allowed for the reason that the benefits are equal to them. The statute does not require any greater particularity, and, in such cases, we do not see why it should. Of course it must name the owner, or describe the tract, where damages are allowed. We consider the award to have been sufficient.
We conclude that the reasoning that the supreme court applied in Leslie should be applied to the viewers’ report here. The purpose of the viewers’ report is to provide a basis for determining whether the estimated benefits of a proposed improvement are greater than the estimated costs of the improvement. It is not necessary that estimated benefits and costs be stated in precise numbers to make this determination. Estimates that indicate that, for each property, the value of providing the improvement exceeds the damages to the property are sufficient.
We recognize that damages estimates that are not stated in specific dollar amounts may raise suspicions that the viewers did not carefully estimate the damages. But the viewers’ report was available before the second hearing, and the accuracy of the viewers’ report was subject to challenge at the hearing. With or without specific numbers for each piece of property, determining whether the value of providing the improvement exceeds the damages to the property involves estimates. Specific numbers may make the determination appear more precise, but the ultimate determination is still an estimate.
Appellants also argue that the viewers’ report does not comply with the statute because it contains no analysis or support for the conclusion that “in all instances the value of providing a centralized sewer collection system to each property exceeds any damage to the property.” But as we have already stated, the viewers’ report was subject to challenge at the second hearing, and the lack of analysis or support for the conclusion, and explanations why the conclusion is incorrect could be brought to the board’s attention at the hearing. Appellants have not cited evidence that could demonstrate that, under all the facts and circumstances of the case, the board’s decision to adopt the viewers’ report was arbitrary, capricious, and unreasonable.
Letting the contract
Appellants argue that the county did not comply with Minn. Stat. § 116A.13 in letting the contract. Minn. Stat. § 116A.13 states:
Subdivision 1. After order is filed. After the filing of the order ordering the improvement, the auditor and the county board, in the instance of a county system, and the auditors of the respective counties, or a majority of them, in the instance of a judicial system, shall proceed to let the job of constructing the system. . . .
Subd. 2. Appeals. If it shall appear at the expiration of 30 days from the filing of the order ordering the improvement, that one or more appeals have been taken involving the question of damages, no contract shall be let until the appeals have been determined, unless ordered by the board or court. Application for such order may be made by the auditor or auditors or any interested person. . . .
Subd. 3. Notice. The auditor of the county in which the proceedings are pending shall give notice of the letting of the contract by publication in a newspaper in such county stating the time and place where the contract shall be let.
The county argues that Minn. Stat. § 116A.13 does not expressly prohibit letting the contract before the second hearing. But Minn. Stat. § 116A.12, subd. 6, states that at the second hearing the “board . . . shall by order containing such findings establish the water or sewer improvement,” and Minn. Stat. § 116A.13, subd. 1, expressly directs the county to let the contract after the order for the improvement. By giving notice of the contract and undertaking value negotiations with Wagner before ordering the improvement and by accepting Wagner’s bid in the same resolution ordering the improvement, the county violated Minn. Stat. § 116A.13.
Appellants, however, have not established any prejudice as a result of the violation. Error without prejudice is not a basis for reversal. See Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993) (stating to obtain reversal of a judgment, a party must show error and resulting prejudice), review denied (Minn. June 28, 1993).
argue that the county violated the Minnesota Uniform Municipal Contracting Law,
Minn. Stat. §§ 444.075, 471.345 (2004), by not awarding the contract as
bid. Appellants’ argument is based on the
negotiations for costs savings between Wagner and the county. Appellants fail to explain their argument on
this issue and fail to cite the specific subdivision(s) or other authority
supporting their position. Therefore,
because no prejudicial error is apparent, we decline to address this
issue. See Schoepke, 290
Notice of second hearing
Minn. Stat. § 116A.12 states:
Subdivision 1. Time. Promptly after the filing of the viewers’ report and the engineer’s survey the auditor, or the court administrator with the approval of the judge, shall fix a time and place for hearing on the petition and the engineer’s and viewers’ reports. The hearing shall not be less than 25 nor more than 50 days from the date of the notice thereof. The auditor shall notify the members of the county board of the time and place of the meeting as provided by law.
Subd. 2. Form of notice. The notice shall state the pendency of the petition, that the engineer’s and viewers’ reports have been filed, the time and place set for the hearing, and, if an assessment roll has been prepared in accordance with section 116A.09, that hearing will also be held on the special assessments proposed therein. The notice shall contain a brief description of the proposed system in general terms, the area proposed to be assessed, and the lands and properties damaged thereby as shown by the engineer’s and viewers’ reports. It shall be sufficient if the lands affected are listed in narrative form by governmental sections or otherwise.
Appellants argue that the notices for the December 17, 2003 hearing and the continued hearing on May 11, 2004, were deficient because they did not specifically describe the lands affected. The first notice described the properties as follows:
The specific area under consideration for addition to the East Koochiching Sewer District is: All that portion of Koochiching County lying North of State Highway 11 between Crystal Bay and Tilson Creek of Rainy Lake, and those parcels lying between State Highway 11 and Town Road 224, all other parcels adjacent to Town Road 224, and Lots 2 through 5, Auditor’s Plat No. 6.
The second notice did not describe the properties but did reference the December 17, 2003 hearing. No notice was provided of the May 18, 2004 meeting, but the May 11, 2004 meeting was adjourned until May 18, 2004. These notices were sufficient under Minn. Stat. § 116A.12.
We are mindful that, on appeal from a summary judgment, the evidence must be viewed in the light most favorable to the party against whom judgment was granted. But even applying that standard of review, appellants have failed to present sufficient evidence to overcome the presumption that the board’s order was reasonable. We, therefore, affirm the summary judgment for the county.
 The county had previously appointed three viewers in March 2002, but all three resigned after a challenge to the impartiality of one of them.
 Because the notice of appeal referred to only the November 29 order, which did not dispose of all the parties’ claims, this court questioned jurisdiction. Because the MERA claim had been adjudicated before this appeal was filed, this court accepted jurisdiction.