This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-789

State of Minnesota,

by Hubert H. Humphrey, III,

its Attorney General, petitioner,

Respondent,

vs.

Michael Holmquist, et al.,

Lower Court Respondents,

Harlan Anderson, et al.,

Appellants.

Filed December 17, 1996

Affirmed

Amundson, Judge

Wright County District Court

File No. C9952431

Hubert H. Humphrey III, Attorney General, Melissa L. Wright, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for Respondent )

Larry J. Peterson, 250 Wright Building, 2233 University Avenue West, St. Paul, MN 55114 (for Appellants)

Considered and decided by Amundson, Presiding Judge, Huspeni, Judge, and Randall, Judge.

U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge

Appellants are property owners whose properties include lands ordered for condemnation for the Trunk Highway 12 reconstruction project. At the condemnation hearing, they argued that the state had not shown the public need for the project and that the state had not met statutory requirements for notice of hearing, the public hearing itself, and the petition for condemnation. The district court granted the condemnation order. We affirm.

FACTS

Appellants Harlan and Mary Anderson and Roy and Hazel Hess are owners of properties in Wright County. The state, through the Department of Transportation, sought to acquire lands in the county to reconstruct a section of Trunk Highway 12 (T.H. 12). On September 12, 1989, a public hearing was held to allow the public to learn about and express views on the proposed reconstruction project. At the time of the hearing, there were no plans for an off-road bike path to be included in the project, although the Environmental Assessment, which was made available at the time, indicated that the city of Cokato was interested in an off-road bike path. After the hearing, cities, townships, and public school districts in the county expressed support for an off-road bike path along T.H. 12. The state met with local representatives and organizations, and based on the public support for the path, included plans for an off-road bike path in the reconstruction project of T.H. 12.

Appellants' lands were among the lands that the state petitioned for condemnation for the reconstruction project. Appellants objected to the condemnation of their properties at the condemnation hearing. The district court ordered condemnation. This appeal followed.

D E C I S I O N

I. Public Necessity

Appellants argue that the state has not shown the requisite public necessity of the taking. The right of eminent domain rests on the foundation of public necessity, i.e., the state must show that the taking is public and necessary. Northern States Power Co. v. Oslund, 236 Minn. 135, 137, 51 N.W.2d 808, 809 (1952).

Regarding the "public" element of the public necessity requirement, the disputed bike path is an element of the reconstruction of T.H. 12. Trunk highway use is a clear public use. Kelmar Corp. v. District Court, 269 Minn. 137, 142, 130 N.W.2d 228, 231-32 (1964). Independently, the legislature has vested the commissioner of transportation with the power to develop a statewide bikeway system, providing another means by which the bike path can be considered a public use. See Minn. Stat. § 160.265 (1994). Once the state legislature has declared a public use, this court will not overrule except where the determination is found manifestly arbitrary or unreasonable. See Housing & Redevelopment Authority of City of St. Paul v. Greenman, 255 Minn. 396, 403, 96 N.W.2d 673, 679 (1959). There is no showing that the legislature's determination was arbitrary or unreasonable.

Necessity must also be established before exercising condemnation power. Minn. Stat. § 161.20 subd. 2 (specifically referring to that requirement for the trunk highway system). The state is not required to prove absolute necessity, only that the proposed taking is "reasonably necessary or convenient for the furtherance of a proper purpose." Kelmar Corp., 269 Minn. at 142, 130 N.W.2d at 231-32. A finding of necessity will be overturned if it is clearly erroneous. See Blue Earth County v. Stauffenberg, 264 N.W.2d 647, 650-51 (Minn. 1978).

Appellants argue that because the off-road bike path was not included in the original T.H. 12 reconstruction plans, it is not necessary. We disagree. The off-road bike path was included in the plans in response to an unsolicited outpouring of public support for the bike path, which in itself supports a finding of public need.

Appellants also argue that the bike path was not planned according to Minn. R. 8810.9910, which outlines how the size and style of bike paths are to be determined according to the volume of bike traffic. Appellants contend that no bicycle counts were conducted to determine the appropriateness of the off-road bike path. However, Minn. R. 8810.9910 also provides guidelines based on automobile volume. T.H. 12 satisfies the automobile prescriptions of those guidelines.

Thus, we conclude that the district court's finding that the state showed the public necessity of the off-road bike path was not clearly erroneous.

II. Sufficiency of the Public Hearing and the Petition for Condemnation

Appellants argue that procedural errors make the taking illegal because the notice of public hearing, the public hearing itself, and the petition for condemnation did not specifically address the use of the lands for an off-road bike path.

These questions are questions of law, and therefore we do not need to give deference to the district court's decision. See Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). Appellants' argument is essentially that the bike path should have been specifically noted at these procedural steps. We disagree. Appellants' assertion that the bike path should have been specified in the notice of hearing, at the public hearing, and in the petition for condemnation relies on the proposition that the off-road bike path is separate from the highway reconstruction project. The off-road bike path is part of the T.H. 12 reconstruction project and it will run alongside the highway.

Regarding the notice of hearing and the hearing itself, appellants argue that the federal requirement of a public hearing (given with adequate notice) was not satisfied here because the hearing and the notice of the hearing did not specifically address the bike path. While appellants do not specifically argue for a new hearing for the bike path, the standard for a new hearing informs our decision. The determination for the necessity of a new hearing depends on whether the design and location changes in the plans produce substantially different economic, social, or environmental effects. Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79, 89 (5th Cir. 1976). There has been no showing that the bike path has substantially different economic, social, or environmental effects from the reconstruction involving the highway itself, other than, as the district court noted, the possible positive effects of a path that increases safe bicycle access for the community.

Appellants' claim that the state's petition for condemnation was not specific enough is also unconvincing. While Minn. Stat. § 117.055 requires the state to serve and file a petition for condemnation that includes the purpose for the taking, there is no indication that the purpose must be noted with specificity. See also Fletcher v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 67 Minn. 339, 345, 69 N.W. 1085, 1087 (1897). At any rate, appellants waived the right to challenge the petition for condemnation by voluntarily appearing at the hearing, represented by counsel, who argued the merits. Concerns regarding the insufficiency of the petition are quieted by appellants' legal action in this case. See Peterson v. Board of Supervisors, 199 Minn. 455, 457-61, 272 N.W. 391, 393-94 (1937).

Affirmed.