This opinion will
be unpublished and
may not be cited
except as provided by
Minn. Stat. §
480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF
Brandon Square III,
2405 East Old Shakopee Road, et al.,
Filed May 8, 2007
County District Court
File No. 27-CV-CD-000002777
Gregory M. Bistram, Lisa M. Agrimonti, Matthew Slaven, Briggs
and Morgan, P.A., 2200 IDS Center, 80 South Eighth Street, Minneapolis, MN
55402 (for respondent)
Bradley J. Gunn, Patrick B. Steinhoff, Malkerson Gilliland
Martin LLP, 220 South Sixth Street, Suite 1900, Minneapolis, MN 55402; and
James R. Dorsey, Leonard, Street and Deinard, 150 South Fifth Street, Suite 2300,
55402 (for appellant)
and decided by Halbrooks,
Presiding Judge; Toussaint,
Chief Judge; and Peterson,
U N P U B L I S H E D O P I N I O N
appeal from the district court’s condemnation order, appellant property owner
argues that respondent’s taking of a fee-simple interest in appellant’s land is
not “necessary” under Minn. Stat. § 117.075 (2006) because respondent’s
long-term use for the fee simple interest is speculative, and the taking, therefore,
is excessive. We affirm.
May 2001, respondent Metropolitan Airports Commission (MAC) approved the
acquisition of residential properties in Bloomington
to mitigate harm caused by increased noise from airplanes landing on a newly constructed
runway at Minneapolis–St.
Airport. An Environmental Impact Statement (EIS) conducted
by the MAC and the Federal Aviation Administration (FAA) recognized that 27
homes and 131 multi-family units would have to be acquired because of
safety-zone concerns and exposure to excessive noise levels. Among the affected properties was the 92-unit
Forest Meadows apartment complex at 2405, 2415, 2425 and 2435 East Old Shakopee Road in Bloomington, owned by
appellant Brandon Square III. The MAC
authorized condemnation proceedings against the residential properties,
including Brandon Square,
in 2005 and filed the condemnation in district court. The MAC did not seek acquisition of
properties adjacent to Brandon
Square that were vacant or commercial in nature.
MAC and the City of Bloomington
also enacted new zoning restrictions to prevent future residential development
that was nonconforming to the runway use.
Bloomington, Minn., Land Dev. & Zoning Regulations
§ 19.38.03(a) (2005) (stating that “[t]he Airport Runway Overlay Districts
are established to implement the 2004 Minneapolis-St. Paul International
Airport (Wold-Chamberlain Field) Zoning Ordinance”). These restrictions prohibit uses such as
churches, schools, theaters, amphitheaters, campgrounds, fuel-storage
facilities, medical facilities, and all residential uses. Id.,
§ 19.38.03(c)(1)(B) (2005). In
addition to the runway-overlay zone, Brandon
Square’s property is zoned Commercial Service
District 1, which limits land use to hotels, offices, theaters, and public
uses, as well as provisional and conditional uses of retail stores,
restaurants, commercial establishments, financial institutions, athletic and
recreational facilities, and automotive-service facilities. See id., § 19.40.07 (2005). Where both districts coincide, the stricter limitations
prevail. Id., § 19.38.03(a). The allowance of a prohibited use on
appellant’s land would require variances from the City of Bloomington and the MAC’s Board of
the district court, Brandon Square
argued that the MAC only needed to take the apartment buildings but that the
land, without residential use, complied with zoning, noise, and other safety
requirements. Furthermore, Brandon Square indicated
that it would comply with those land-use requirements to profitably redevelop
the land. But the district court held
that the MAC demonstrated that taking the land “is necessary to further its
legitimate public purposes of noise abatement and ensuring compliance with the
safety zone requirements of the airport’s new runway” and therefore granted the
condemnation. This appeal follows.
D E C I S I O N
may overturn the condemnor’s decision regarding necessity only if it is
“arbitrary, unreasonable, or capricious, or [if] the evidence against the
necessity or public use is overwhelming.” City of Duluth v. State, 390 N.W.2d
757, 764 (Minn.
1986) (alteration in original) (quotation omitted). The condemning authority bears the burden of
proving necessity. Regents of the Univ. of Minn.
v. Chicago & N. W. Transp. Co., 552 N.W.2d 578, 580 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996). “The mere suggestions of possible
alternatives to the condemning authority’s plan will not in itself support a
finding of arbitrariness.” City of Pipestone v. Halbersma, 294 N.W.2d 271, 274 (Minn. 1980); see also County
of Blue Earth v. Stauffenberg, 264
N.W.2d 647, 650 (Minn.
1978) (quotation omitted) (stating that for a taking “there need be no showing
of absolute or indispensable necessity”); Metro. Sewer Bd. v. Thiss, 294
Minn. 228, 230, 200 N.W.2d 396, 397 (1972)
(holding “[t]here need be no showing of absolute necessity, and the mere
suggestion of possible alternatives does not, in itself, support a finding of
arbitrariness”). Therefore, “the
district court gives deference to the legislative determination of public
purpose and necessity of the condemning authority and the appellate courts give
deference to the findings of the district court, using the clearly erroneous
standard.” Lundell v. Coop. Power
Ass’n, 707 N.W.2d 376, 381 (Minn.
the federal and state constitutions protect private-property owners from
government taking of private property for public use without just compensation. U.S. Const. amend. V; Minn. Const. art. I,
§ 13. But land taken for improvements
to airports is considered “acquired and used for public, governmental, and
municipal purposes and as a matter of public necessity.” Minn.
Stat. § 360.033 (2006). Minnesota law also requires
the condemning authority to prove that the taking is “necessary.” Minn. Stat.
§ 117.075 (2006); City of Duluth,
390 N.W.2d at 764. But “‘[n]ecessary’
need not be ‘absolute or indispensable necessity.’ The condemning authority need only show that
the proposed taking is reasonably necessary or convenient for furtherance of
the end in view.” City of New Ulm v. Schultz, 356 N.W.2d 846, 848 (Minn.
App. 1984) (quotations omitted); see also Stauffenberg, 264 N.W.2d at
650 (stating that a taking only needs to be “reasonably necessary or convenient
for the furtherance of the end in view”).
district court ordering condemnation “may, in the discretion of the [district] court,
limit the title or easement to be acquired by the [condemning authority] by
defining the rights and privileges which the owner of any of the lands may
exercise therein in subordination to the public uses to which it is
appropriated.” Minn. Stat. § 117.075, subd. 5. But “[a]s long as the record supports the
acquisition of the fee as ‘reasonably necessary or convenient’ for furtherance
of a public purpose, the [district] court’s decision not to exercise its power
to limit the [condemning authority’s] title is not an abuse of its discretion.” Schultz, 356 N.W.2d at 848.
MAC is a statutorily established public corporation, Minn. Stat. § 473.603
(2006), that owns and operates the Minneapolis–St.
Airport. The MAC is required, among other things, to
promote and regulate air travel in the state of Minnesota while reducing the environmental
impact of such travel by means of “noise abatement, control of airport area
land use, and other protective measures.”
Stat. § 473.602 (2006). The MAC has
the power of eminent domain to carry out its purposes. Minn. Stat. § 473.608, subd. 3 (2006). Eminent domain power is exercised through
condemnation. “Title to any such
property acquired by condemnation . . . shall be in fee simple,
absolute, unqualified in any way.” Id., subd. 2
Brandon Square does
not deny that the MAC may condemn its property for nonconforming residential
use. But after the apartment complex is
removed, Brandon Square
argues that its property will be no different from conforming parcels that the MAC
is not taking, such as adjacent undeveloped land. Therefore, Brandon Square contends the MAC has not
shown necessity to condemn a fee-simple interest in its land. Furthermore, Brandon Square argues that because the MAC
has no plans for the property, other than possible resale, the condemnation of
the fee interest is for merely speculative purposes.
relies, in part, on Schultz in
support of its argument. While Schultz
reinforces the stringent standard of review that we use in condemnation cases, Brandon Square’s
situation can be distinguished from that of the landowners in Schultz. In Schultz, the landowners challenged the
condemnation of their land for airport expansion for “clear zones” or
“transitional zones.” 356 N.W.2d at
847. In addition, the city was taking
the land because of anticipated future expansion. Id.
at 848. The condemning authority
received an easement from a nearby landowner, with an “underground installation,”
because of the prohibitive cost of taking a fee interest. Id.
at 847. Other landowners were also “willing
to accept a permanent use restriction rather than give up their full title.” Id. But the land would continue to be farmed
under city ownership through leases granted after competitive bids. Id. Nor would an entire farm be taken and put out
of business. Id.
In fact, the city’s goal was to prevent taking or destroying buildings
or homesteads and thus eliminating an individual’s livelihood. Id.
at 849, 850.
on the advice of governmental agencies including the FAA, the condemning
authority sought to acquire a fee interest in the land because obtaining easements
would cost nearly as much as obtaining fee ownership. Id.
at 848. Because both the
airport-expansion and the airport-protection privileges constitute public
necessities, this court held that “[t]he city need only show that acquiring the
fee rather than easements was a reasonable means of acquiring airport
protection privileges. The existence of
alternatives does not make the decision to take the fee arbitrary.” Id.
at 849. Therefore, this court concluded
that the district court “did not err in refusing to limit the [condemning
authority’s] interest in the property it acquired.” Id.
at 850. And we agreed that taking a
fee-simple interest was necessary for the public use. Id.
Brandon Square seeks
to surrender only an easement with the intent of complying with zoning
restrictions. Brandon Square faces condemnation of its
fee interest while neighboring properties remain in private possession and
controlled by zoning regulations. And
unlike the farmers in Schultz, Brandon
Square’s entire parcel is being taken, the
buildings destroyed, and future profitability removed with the fee-simple
taking. While the MAC has relied upon
government agencies, including the FAA, to justify condemning fee interests in
nonconforming property, Brandon
Square will be unable to continue operations
through leasing with the taking authority.
Therefore, Schultz does not fully support the MAC’s taking.
seeking condemnation, the MAC completed an extensive public process to
determine public necessity, beginning with a 1989 study of options to improve
air transportation. From that study, the
legislature accepted the MAC’s recommendation for a new runway. The MAC then worked with the FAA on an EIS that
established the means of mitigating the harm from increased noise over
residential areas. The MAC and the City
followed the EIS’s requirement by changing land-use plans so that the land beneath
the flight path associated with the new runway would be conforming to the
impact of increased noise. Furthermore, the
MAC discussed acquiring the property in public meetings, including open houses
for affected landowners in 2001 and 2005, when the MAC approved filing the
condemnation action. This was, therefore,
a public, deliberative process.
MAC chose condemnation as reasonably necessary and convenient to the public
purpose of a new runway. Acquisition of
properties ensured timely conformity to mitigate environmental harm. Through condemning a fee interest, the MAC
would not be faced with intractable negotiations or future nonconformity, even
if such uses could be constructed only after obtaining variances from two entities,
including the MAC’s Board of Adjustment.
Timeliness was an issue. The MAC
obtained the parcels through the quick-take process and thus obtained
possession through depositing with the district court the amount of the
approved appraisal value. See Minn. Stat.
§ 117.042 (2006).
affirming the condemnation, the district court found:
There has been no claim made, nor is
there any evidence in the record, that MAC officials have acted arbitrarily,
capriciously, or fraudulently in reaching their decision to condemn Brandon Square’s property. The proposed condemnation is the product of years
of careful research and planning by MAC officials—research and planning that
[the district court] has neither the time nor expertise to conduct. This activity culminated in a determination
that Brandon Square’s
property must be acquired through condemnation because the apartment complex is
in a noise abatement area and because it violates the use restrictions . . . . Condemnation of the property is certainly one
reasonable necessary or convenient manner in which MAC can achieve its
affirmance of the district court’s condemnation order is based on our narrow
standard of review in this matter and the supreme court’s Lundell
decision. In Lundell, the
condemning authority had a lease on the Lundells’ property for a
telecommunications tower. 707 N.W.2d at
379. As a result of soured negotiations,
the Lundells sent the condemning authority a notice of default and threat of
eviction. Id. at 380. The condemning authority responded by seeking
condemnation of the land to obtain it in fee.
Id. It claimed that the taking was necessary to
maintain occupancy without disruptions caused by disputes or uncertainty as to
rights and taxes. Id.
The Lundells contended that the condemning authority had no public
necessity in taking a fee interest because it had previously successfully operated
under a lease. Id. at 381. Thus, for the condemning authority to obtain
a fee interest, the Lundells argued, it had to make an additional showing of
necessity in order to justify condemnation of the fee interest. Id.
at 381-82. But the supreme court held
such an additional determination of
necessity is not required. Whether or
not a condemning authority has a present interest in the land less than fee
title, the determination of necessity to support the taking of fee title by
eminent domain is the same. The
authority need only determine the underlying necessity to use the property in
order to further its public purpose. In
other words, [the condemning authority’s] determination in support of
condemnation is the same whether it has a present lease interest or no interest
Id. at 382. Furthermore, “[a]lthough some public policy
arguments might be made to support a requirement that a condemning authority
take only the smallest interest in property that is necessary to serve the
public purpose, the legislature has not enacted that requirement.” Id.
at 382 n.3. Therefore, a condemning
authority may take fee title even though a leasehold interest would be
sufficient for its public purpose. Id.
the MAC has demonstrated a public necessity to obtain Brandon Square’s parcel in fee through
complying with the EIS for an airport improvement defined in the statute as a
public purpose. Brandon Square claims that the MAC needs
only an easement and covenants, not the parcel itself. But the condemning authority in Lundell
likewise had a choice between condemning a lease or a fee. Id.
at 380. Because the MAC’s condemnation
is necessary for airport improvement, the MAC is not required to present its
condemnation in a tiered fashion, justifying lesser interests and fee interest
separately. And because the MAC’s
necessity for condemnation need only be reasonable or convenient, condemnation
of Brandon Square’s
land is permissible.
we disagree with Brandon Square’s
argument that the taking is speculative.
Another measurement of necessity is whether the property will be used
“now or in the near future.” Regents,
552 N.W.2d at 580 (quotation omitted).
“Speculative purposes will not support the assertion of necessity.” Id. In Regents, the condemning authority
sought to obtain property for which it did not indicate a specified
purpose. 552 N.W.2d at 579-80. Although the authority considered several potential
uses for the land, it had “not yet approved a single project for the
property.” Id. at 580. The land was not even on the university’s
master plan. Id. Even if the Regents had approved a project,
site contamination prevented use of the land for as long as seven years. Id. This court noted that all proposed takings
are required to be necessary, and “‘necessity’ in this context ‘means now or in
the near future.’” Id.
Furthermore, the authority had the burden of proving necessity. Id. Because the condemning authority had not
demonstrated a specific need in the near future for the property, we affirmed
the district court’s denial of condemnation due to lack of necessity. Id.
claims that the MAC has no plans for the property because the MAC’s witnesses
testified that the land would likely be sold with restrictive covenants
preventing noncompatible use. The same
testimony also indicated that sale was not a certainty. Furthermore, the runway is now operating, and
the land is a part of the MAC’s development plans. The taking is required to conveniently ensure
land-use conformity with impacts of the existing new runway. Therefore, the MAC has a specific, immediate
need for the property. As the district
Brandon Square’s analogy overlooks the
fact that, in the present case, the condemning authority has identified and
implemented a project that directly affects the property sought to be
condemned. Rather than asserting a vague
desire to do something with the property at some point in the future, MAC
here has articulated a concrete need for some action to be taken.
we conclude that the MAC’s taking of Brandon
Square’s land is not speculative but a reasonably
necessary and convenient part of the completed runway project, the MAC has the
ability to take the land. The district
court noted the relatively novel concept advanced by Brandon Square that a condemning
authority should take only the smallest property interest necessary to achieve
the public purpose, but concluded that no basis can be found “in Minnesota law for
separating the buildings from the real property on which they sit. Although such a remedy would no doubt appeal
to landowners facing condemnation of their property, its availability will
likely need to be the product of legislative action rather than trial court
creativity.” Likewise, the 2006
amendments to the eminent-domain statutes do not require such a precise finding
of necessity. 2006 Minn. Laws ch. 214, at 195-206. We, too, agree that Brandon Square’s desired precision for
necessity is best found through legislative processes.