may not be cited except as provided by
Minn. Stat. sec. 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Construction of a
Drainage System in Burnham Creek Watershed.
Filed August 12, 1997
Polk County District Court
File No. C3-90-991
Delray Sparby, 312 N. Main Ave., P.O. Box 574, Thief River Falls, MN 56701 (for respondent).
Laurence R. Waldoch, Lindquist & Vennum, P.L.L.P., 4200 IDS Center, 80 South Eighth St., Minneapolis, MN 55402 (for respondent).
Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.
Appellants challenge the district court's order dismissing their assessment appeal as untimely. Appellants argue their appeal was timely because they never received written notice of the assessment. We affirm.
On November 28, 1995, the district mailed a letter to the Polk County Auditor/Treasurer, along with a certified levy for the project in the amount of $602,376. On December 28, 1995, the District Board of Managers ratified and approved the levy. On March 7, 1996, the Polk County Attorney moved the Polk County District Court to review the costs relating to the Burnham Creek Project and the accompanying litigation to determine if any, or all, of the costs were to be allowed for assessment against the affected properties. On March 11, the landowners' attorney wrote the court, requesting the opportunity to review the Polk County motion and for permission to submit a response. The district court granted the request and on April 5, the landowners filed a memorandum of law regarding the assessment of litigation costs associated with the project. The district court denied the Polk County Attorney's motion.
The landowners appealed the levy to the district court on May 10, 1996. This was 134 days after the district's order approving the final levy for costs and expenses associated with the Burnham Creek Project. On September 16, 1996, the district filed a rule 12 motion seeking to dismiss the landowners' action, arguing the landowners' appeal was untimely because it was not filed within the 30-day appeal period provided by Minn. Stat. § 103E.091, subd. 3 (1996). On November 22, 1996, the district court issued an order dismissing the landowners' appeal as untimely under Minn. Stat. §103E.091, subd. 3 (1996).
The assessment appeal was taken pursuant to Minn. Stat. §§ 103D.535 and 103E.091 (1996). Pursuant to Minn. Stat. § 103D.535, a party may, alone or jointly, appeal to the district court or to the board of water and soil resources,
an order of the managers made in a proceeding relating to a project and entered in the watershed district's record that determines:
* * *
(3) the allowance of fees or expenses in any proceedings.
Minn. Stat. § 103D.535, subd. 1(3). Before the appeal may be heard by the district court or board, the appealing party must file a notice of appeal with the court administrator or board secretary. The notice of appeal must: "(1) be filed within 30 days of the date of the final order; (2) state the grounds upon which the appeal is taken; and (3) be accompanied by an appeal bond * * *." Minn. Stat. § 103D.535, subd. 5.
Similarly, Minn. Stat. § 103E.091, subd. 1, provides, in part, that:
A party may appeal to the district court from a recorded order of a drainage authority made in a drainage proceeding that determines:
* * *
(3) fees or expenses.
(Emphasis added.) The time period governing such appeals is set forth in Minn. Stat. § 103E.091, subd. 3. This section states:
An appeal related to the allowance of fees or expenses may be made to the district court of any county where the affected property is located. The appeal must be made within 30 days after the order allowing or disallowing the claim and is governed as applicable by the provisions of subdivision 4.
Minn. Stat. § 103E.091, subd. 3. The appeal procedure set forth in Minn. Stat. § 103E.091 is the exclusive avenue to challenge the validity of fees and expenses allowed in a drainage proceeding. Anderson v. County of Stearns, 519 N.W.2d 212, 213-214 (Minn. App. 1994) (accepting the argument that Minn. Stat. § 103E.091 is the exclusive avenue for appealing assessments allowed in a drainage proceeding), review denied (Minn. Sept. 28, 1994).
Appellants argue the district was required to provide written notice of the assessment to each affected landowner. Appellants claim the 30-day appeal period under Minn. Stat. § 103E.091, subd. 3, does not begin to run until each landowner is given written notice of the assessment. We disagree.
While other sections of the watershed and drainage statutes require written notice to affected landowners, there is no provision requiring that written notice be given to affected landowners of a drainage authority's order approving an assessment. See Minn. Stat. §§ 103D.901, subd. 1(b) (providing that for watershed districts within the metropolitan area, the county auditor must mail an assessment notice to all affected property owners); see, e.g., § 103E.325, subd. 3 (requiring that notice of final hearing to approve or disapprove a proposed drainage project be by publication, posting, and mail to, amother others, all affected landowners). Minn. Stat. § 103E.091 does not require the district to provide written notice of the assessment to each landowner to begin the appeal period. The statute is silent on the issue. The statute simply provides that an appeal may be taken from a recorded order of a drainage authority. The 30-day appeal period under Minn. Stat. § 103E.091 begins to run when the drainage authority's order allowing or disallowing fees or expenses is recorded. In this case, the order was recorded on December 28, 1995. Thus, appellant landowners had until January 27, 1996, to appeal the assessment.
If the legislature intended that individual written notice be given affected landowners to start the 30-day appeal process under Minn. Stat. § 103E.091, it could have so provided, but it did not. This court cannot provide that which the legislature has purposely or inadvertently omitted. See Northland Country Club v. Commissioner of Taxation, 308 Minn. 265, 271, 241 N.W.2d 806, 809 (1976) (when construing statutes, the court "cannot supply that which the legislature purposely omits or inadvertently overlooks"); see also Wessen v. Village of Deephaven, 284 Minn. 296, 298, 170 N.W.2d 126, 128 (1969) (holding that appeals by property owners from assessments are wholly statutory, there being no common-law right to such appeals, and that statutory conditions must be strictly complied with and cannot be extended by construction).
Relying on In re County Ditch No. 11, 511 N.W.2d 54, 57 (Minn. App. 1994), review denied (Minn. Mar. 31, 1994), appellants argue that for the 30-day appeal period to begin under Minn. Stat. § 103E.091, a separate written notice of the filing calling the recipient's attention to what was filed and when, that is captioned appropriately, and describes the decision filed, must be given to the taxpayer. However, appellants misstate the holding of Ditch No. 11. That case involved the interpretation of the rules of civil appellate procedure. Ditch No. 11 does not stand for the proposition that, under Minn. Stat. § 103E.091, written notice of an assessment must be given to each affected landowner. In addition, the cases cited by appellants for the proposition that written notice is required are distinguishable by the simple fact that they involve the construction of the rules of civil appellate procedure in appeals from the district court to either this court or the supreme court. See Probst v. Holland, 441 N.W.2d 836, 837 (Minn. App. 1989) (appeal from district court to court of appeals); Duluth Ready-Mix Concrete, Inc. v. City of Duluth, 520 N.W.2d 775, 776 (Minn. App. 1994) (same).
Next, appellants argue that the principles of due process require that written notice of the assessment must be provided to each landowner in order to start the 30-day appeal period. For due process to be satisfied, there must be "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950). Minnesota courts recognize that Mullane does not require actual notice of a proceeding or action, but rather notice "reasonably calculated" to inform parties of their opportunity to be heard.
In the present case, the notice contemplated by the legislature is the recording of the district's order approving the assessment. Minn. Stat. § 103E.091, subd. 1, provides that an appeal of costs and expenses associated with a drainage project is to be taken from a recorded order of the drainage authority. Here, it is undisputed that the district complied with the notice requirements as set forth in Minn. Stat. ch. 103D and 103E.
Appellants rely primarily on Meadowbrook Manor, Inc. v. City of St. Louis Park, 258 Minn. 266, 104 N.W.2d 540 (Minn. 1960), to argue that due process requires that landowners receive mailed written notice of the assessment hearing. In that case, the supreme court held that notice by publication under the pre-1960 special assessment statute failed to comport with due process. Id. at 273, 104 N.W.2d at 545. Contrary to appellants' assertion, the supreme court in Meadowbrook did not hold that landowners are entitled to mailed written notice of an assessment hearing. The court simply noted that mailed written notice would satisfy the requirements of due process. Id. (noting that mailed notice of special assessment hearings would satisfy due process).
As a practical matter, we note that the landowners in the present case received actual notice of the assessment. As noted by respondent, Minnesota Statutes chapter 103E requires that landowners be notified of the pendency of an action to establish a drainage project and that they be given the opportunity to be heard on the issue. See Minn. Stat. §§ 103E.261, subd. 1 (1996) (requiring notice by mail to all owners of property of the date and time of the preliminary hearing); §103E.325, subd. 1 (1996) (requiring notice by mail of the date and time of the final hearing). Appellants do not contend that the district failed to comply with the statutory notice requirements under chapter 103E to establish the Burnham Project. Here, before expenses and costs of the project were levied, every landowner had received notice of the pendency of the project, the benefits and damages assigned by the viewers, and notice of the hearing to establish or dismiss the project.
Further, the record indicates that the landowners, through their attorney, were served with the notice of motion and motion filed by the Polk County Attorney's office on March 7, 1996. In that motion, the Polk County Attorney sought to have the court review the assessment and the validity of the costs and expenses associated with the Burnham Creek Project. Per their request, the district court allowed the landowners to participate in the proceedings and to file a memorandum in support of their position challenging the inclusion of costs and expenses associated with the prior litigation.
We cannot say that on these facts, the district court erred as a matter of law when it found that the appeal was untimely.