This opinion will be unpublished and

may not be cited except as provided by

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




Ronald D. Johnson, et al.,



City of Eagan,


Filed December 23, 1997


Schumacher, Judge

Dissenting, Willis, Judge

Dakota County District Court

File No. CX-96-10333

Charles E. Mertensotto, Jill Johnson Sholts, Rowland, Mertensotto & Sholts, P.A., 1100 West Seventh Street, St. Paul, MN 55102 (for appellants)

James F. Sheldon, Michael G. Dougherty, Sharon K. Hills, Severson, Sheldon, Dougherty & Molenda, P.A., 600 Midway National Bank Bldg., 7300 West 147th Street, Apple Valley, MN 55124 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.



In 1992, appellants Ronald D. Johnson and Patricia J. Johnson sued respondent City of Eagan to reduce an assessment for municipal services. It was reduced by nearly $1,000. In 1996, the Johnsons connected to city water and the city charged them standard water connection charges plus $1,605.10 for a lateral water benefit fee. The Johnsons again sued the city, claiming the $1,605.10 was an attempt to recoup the lost 1992 assessment money. After a court trial, judgment was entered for the city. We affirm.


This court will not set aside factual findings made by a trial court unless the findings are clearly erroneous. Minn. R. Civ. P. 52.01. We need not defer to a trial court's determination of a question of law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). The statutory language at issue in this case allows cities to: pay for city water services through just and equitable charges for use, availability and connections to the services; charge a minimum connection charge for the availability of water; and determine, at their discretion, connection charges "by reference to the portion of the cost of connection which has been paid by assessment of the premises to be connected, in comparison with other premises * * *." Minn. Stat. § 444.075, subd. 3 (1996).

In 1981, the supreme court held section 444.075, subdivision 3, gives local governments "maximum flexibility" in financing municipal sewer and water services, circumscribed only by the requirement that the charges be "just and equitable." Crown Cork & Seal Co. v. City of Lakeville, 313 N.W.2d 196, 201 (Minn. 1981). Likewise, Crown Cork held that under section 444.075, subdivision 3, cities were "quite clearly granted * * * discretionary authority to impose any combination of use, availability and connection charges to finance municipal sewer and water facilities." Id. at 199.

In 1982, the supreme court applied section 444.075, subdivision 3, to facts very similar to this case: a landowner reduced an initial $6,914 assessment to zero; subsequently, the city charged the landowner $4,202 in "`connection charges' for tapping into its water and sewer mains." Nordgren v. City of Maplewood, 326 N.W.2d 640, 641-42 (Minn. 1982). Like the present case, the Nordgren court faced the argument that the connection charge was the city's attempt to recoup money lost from the previously reduced assessment. Id. at 641. Nordgren reversed the trial court, holding: section 444.075, subdivision 3, authorized connection fees; connection fees are distinct from assessments; and, connection fees may be imposed on top of prior assessments, even if the assessments were reduced or completely voided. Id. at 642. Nordgren cautioned, however, that a connection charge would be impermissible "if it were imposed discriminatorily as a way of subverting the [previous assessment appeal] order, or if the charge were not just and equitable." Id. Nordgren determined that Maplewood's connection charge did not subvert the previous assessment and was imposed fairly because Nordgren was treated the same as similarly situated landowners. Id.

Nordgren and Crown Cork control this case. As in Nordgren, the record in this case contains no evidence that the city treated similarly situated landowners any differently from the Johnsons. Landowners either paid the lateral benefit water fee at the time of the assessments or at the time of connection. All paid the fee. Similarly, Nordgren and Crown Cork allow a city to charge any combination of fees for water services, even when a previous assessment was voided. We conclude that the trial court did not err. The Johnsons also request prejudgment interest and attorney fees. In light of our decision, we need not address the prejudgment interest issue. Lastly, the district court did not err in denying attorney fees.


WILLIS, Judge (dissenting)

I respectfully dissent. The majority opinion rests primarily on Nordgren v. City of Maplewood, 326 N.W.2d 640 (Minn. 1982). I rely on the same case in reaching a contrary conclusion.

First, the property owners in Nordgren originally were assessed $6,914 for water and sewer improvements on the lot in question. An appeal of that assessment resulted in it being voided in its entirety. Maplewood subsequently imposed $4,202 as "connection charges" against the lot in question. But those connection charges, which were upheld by the supreme court (although the court remanded for a determination of whether they were "just and equitable"), were less than the amount of the original assessment reduction and therefore did not totally deprive the property owners of the benefit of their successful assessment appeal. Second, there is nothing in Nordgren to suggest that comparable connection charges were not assessed against all properties in the city, rather than only against properties that were the subject of successful assessment appeals.

In upholding the Maplewood connection charges, the supreme court noted that "[i]mposition of a connection charge would be impermissible, however, if it were imposed discriminatorily as a way of subverting the [successful assessment appeal] order, or if the charge were not just and equitable." Id. at 642.

Here, the charge against the Johnsons' property appears to have been imposed precisely for the purpose of recouping for Eagan the amount by which the Johnsons succeeded in having their original assessment reduced. The lateral benefit water fee was calculated in the same manner as the original assessment, with a direct offset for the amount of the Johnsons' reduced original assessment. In fact, it appears from the record that the amount of the lateral benefit water fee charged against the Johnsons' property would have been exactly the amount by which their original assessment was reduced but for the fact that Eagan's per frontage foot fee increased from $12 in 1992, when the original assessment was imposed, to $20.30 in 1996, when the lateral benefit water fee was charged. The Johnsons, therefore, not only lost all benefit of their successful assessment appeal, but also paid a penalty for the success of that appeal.

Further, it appears from the record and from representations by Eagan's counsel at oral argument that the lateral benefit water fee was not assessed against all properties in Eagan, but rather against only those properties that were the subject of successful appeals from the 1992 assessment. In fact, Eagan's counsel described property owners "similarly situated" to the Johnsons to be those who successfully appealed from the 1992 assessment. I conclude that the fees were imposed discriminatorily by Eagan as a way of subverting successful assessment appeal orders and therefore are impermissible under Nordgren. I therefore believe that the district court's determination that the fees are not discriminatory and do not subvert the assessment court's order to be in error, and I would reverse the district court's judgment.



Judge Bruce D. Willis