This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1860

 

Ellen Feuling, et al.,
Appellants,

vs.

The City of Plymouth,
Respondent,

Bonestroo, Rosene, Anderlik & Associates, et al.,
Defendants.

 

Filed August 1, 2006

Affirmed

Minge, Judge

 

Hennepin County District Court

File No. PD 04-19103

 

 

Brian N. Steele, Steele & Associates, 8421 Wayzata Boulevard, Suite 320, Golden Valley, MN 55426 (for appellant)

 

Thomas M. Scott, Campbell Knutson, Professional Association, 1380 Corporate Center Curve, Suite 317, Eagan, MN 55121 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellants challenge the dismissal of their claims arguing that the doctrine of discretionary immunity and the statutes of limitations and repose in Minn. Stat. § 541.051 (2004) do not bar their claims.  We affirm.

FACTS

 

Appellant Ellen Feuling is the owner of her home located at 1506 Weston Lane in the City of Plymouth. Appellant Jacqueline Okoh owns her home at 1530 Weston Lane.  These properties, together with 1510 Weston Lane (the owner of which is not involved in the suit), constitute the subject property (Property).  The backyards of the Property are bordered by Vicksburg Lane on the east.  Until 1987, the area to the south was a low-lying natural wetland.  Prior to 1987, the Property occasionally flooded.

            In 1987, respondent City of Plymouth widened Vicksburg Lane and on the side next to the Property raised the berm and narrowed the ditch.  In 1988, appellant Feuling noticed a drainage problem on the Property and complained to the city.

            The city hired a private engineering firm to prepare plans to modify the drainage south of the Property.  In the fall of 1992, two new culverts were installed and the elevation of a dike was raised.  In 1995, appellant Feuling’s front yard and garage were flooded, and she again complained to the city.

            Appellant Feuling stated that her property continued to flood at least twice each year from 1995 through 2003.  The flooding substantially interfered with her enjoyment of the property, killed trees, destroyed her gardens, and created sink holes.  In 2002, the city “ear-marked” $200,000 to purchase appellant Feuling’s home.  Appellant Feuling stated in her affidavit that the city told her “[it] believed [it] could solve the flooding problems and would instead spend these funds to modify its drainage system and construct a permanent pumping station on [her] property . . . by the spring of 2003.”

            On June 24-25, 2003, over six inches of rain fell in less than 12 hours in the Plymouth area.  This amount of precipitation exceeded the 100-year design standard.  (A 100-year storm in this area is six inches in 24 hours or 5.3 inches in 12 hours.)  The storm caused a manhole cover in appellant Feuling’s backyard to blow off, water gushed out of the storm sewer and ultimately appellants’ basements were flooded.  The manhole was installed prior to 1992.  In response to the June 24-25 storm, the city modified the design of the storm sewer system by increasing the height of the manhole and installed a permanent pumping station adjacent to appellant Feuling’s home.

Appellants commenced this litigation on April 23, 2004, against both the city and the private engineering firm, alleging negligent employment, negligent maintenance, negligent development, nuisance, trespass, negligent design, negligent failure to assure compliance, and inverse condemnation.  The parties stipulated to consolidation of the cases[1] and dismissal of claims against the engineering firm.  The city moved for summary judgment on the basis of discretionary immunity and the statute of repose.  The district court granted respondent’s motion.  Feuling and Okoh appeal.

D E C I S I O N

 

“On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law.”  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  For purposes of a summary-judgment motion, a fact is “material” if its resolution will affect the outcome of the case.  Bebo v. Delander, 632 N.W.2d 732, 737 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001).  “[T]he reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

I.

The first issue is whether the district court correctly entered summary judgment against appellants’ claims because of discretionary government immunity.  The Minnesota legislature, by statute, waived sovereign immunity for tort liability.  See Minn. Stat. § 466.02 (2004).  But there are exceptions.  See Minn. Stat. § 466.03 (2004).  One such exception is for “[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.”  Minn. Stat. § 466.03, subd. 6.  “Whether governmental action is protected by statutory immunity is a question of law, which this court reviews de novo.”  Conlin v. City of St. Paul, 605 N.W.2d 396, 400 (Minn. 2000).  This court interprets the discretionary-function exception narrowly.  Id.

There are two types of discretionary functions:  planning level and operational level.  Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994).  Only planning-level functions are protected by statutory immunity.  Id.  Planning-level functions “require evaluating such factors as the financial, political, economic, and social effects of a given plan.”  Unzen v. City of Duluth, 683 N.W.2d 875, 882 (Minn. App. 2004), review denied (Minn. Oct. 27, 2004).  “Operational-level decisions, in contrast, are those actions involving the ordinary, day-to-day operations of the government . . . .”  Id. 

The governmental unit is only entitled to immunity when “it can produce evidence” that its actions were the result of planning and policy-making and it has the burden of proving that it engaged in protected planning-level activities and is entitled to immunity.  Conlin, 605 N.W.2d at 402 (quotation omitted).  The court must “identify the conduct at issue” before it can determine whether it is protected.  Id. at 400.  Next, the court must determine whether that conduct is operational or policy-making.  Angell v. Hennepin County Reg’l Rail Auth., 578 N.W.2d 343, 347 (Minn. 1998).

1.  Negligent Employment

This court has held that “[h]iring, supervising, training, and retaining municipal employees are policy-level activities that are protected by statutory immunity.”  Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 212 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).  We agree with the district court that the city’s decision to hire engineers required balancing financial and other considerations and that the city is entitled to discretionary immunity.

2.  Negligent Maintenance

Minnesota courts have repeatedly held cities are entitled to discretionary immunity with regard to policy decisions regarding maintenance of sewer systems.  See Chabot v. City of Sauk Rapids, 422 N.W.2d 708, 712 (Minn. 1988); Christopherson v. City of Albert Lea, 623 N.W.2d 272, 276 (Minn. App. 2001) (“[A] city’s decision not to remedy a defect in its sewer system was clearly of a policy-making nature.” (quotation omitted)). 

In Christopherson, a city’s sewer system was unable to keep up with flash flooding that “was so extensive that the lift stations could not accommodate the excess water draining into the sewers.  Although the sanitary-sewer-lift stations operated properly, some could not keep up with rainfall.”  Id. at 274.  Many years prior to the storm, the city had ordered an engineering study of the sewer system and decided to take what it considered “the most cost-effective approach.”  Id.  This court held that the city was entitled to discretionary immunity for that decision and hence, was not liable for the damage to houses caused by the sewer backup.  Id. at 276-77.

            Here, the city attempted to improve the system in 1992 after contracting for an analysis by an engineering firm.  In 1995, appellant Feuling experienced flooding and knew that the improvement had not resolved the flooding.  Thereafter, from 1995 until 2002, the city used temporary equipment to manually pump the excess water to avoid flooding.  The city then considered purchasing appellant Feuling’s property or constructing a permanent pumping station on her property.  In 2003, the city told appellant that it would construct a permanent pumping station that would improve the problem.  As a result, appellant Feuling did not attempt to sell her home. 

Like the city in Christopherson, Plymouth’s sewer system was inadequate to protect appellants’ properties from flooding.  The record here indicates that other contributing circumstances were non-compliance by developers and builders with building codes, excessive development in the vicinity of the Property, and at least in June 2003, an extraordinary rainfall.[2]  The city exercised discretion to remedy the problem after 1989 by making improvements, manually pumping the Property, and making plans to construct a permanent pumping station.  These city decisions are entitled to discretionary immunity with respect to alleged negligent maintenance.

3.  Negligent Failure to Control Development

            The district court determined that this was a claim that the city wrongfully issued building permits.  Appellants do not disagree with this characterization.  The Minnesota Supreme Court has held that “the issuance of a building permit is a discretionary act and  . . . municipalities are immune from tort liability for issuing permits.”  Vrieze v. New Century Homes, Inc., 542 N.W.2d 62, 66 (Minn. App. 1996) (citing Anderson v. City of Minneapolis, 287 Minn. 287, 289, 178 N.W.2d 215, 217 (1970)).  And building permits are “designed to protect the public and are not meant to be an insurance policy by which the municipality guarantees that each building is built in compliance with the building codes and zoning codes.”  Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 223, 199 N.W.2d 158, 160 (1972).  Because the issuance of building permits is discretionary, to the extent appellants’ claims are based on such municipal activity, the district court did not err by dismissing their claims on the basis of discretionary immunity.

4.  Nuisance, Trespass, and Negligent Design

            The city argues that appellants’ claims for nuisance, trespass, and negligent design all arise out of its decisions about the construction and design of the 1992 improvement.  Discretionary immunity protects the government when its conduct was of a policy-making nature involving social, political, or economic consideration.  Christensen v. Mower County, 587 N.W.2d 305, 307 (Minn. App. 1998).  Minnesota courts have consistently applied the doctrine of discretionary immunity to a city’s decision regarding implementation of improvement projects because the decision involved “policy-making that can be made only by the legislative or executive branch of the government.”  Chabot, 422 N.W.2d at 711.  We conclude that the decisions here regarding the 1992 improvement and decision not to immediately upgrade were of a policy-making nature that entitles respondent to discretionary immunity.

II.

            The second issue is whether the district court erred in granting summary judgment dismissing appellants’ claim for compensation for inverse eminent domain.  Minnesota recognizes property-owner claims against municipalities for inverse eminent domain.  See Nolan v. City of Eagan, 673 N.W.2d 487, 492 (Minn. App. 2003).  Minnesota law does not provide respondent immunity for appellants’ constitutional, inverse-condemnation claim.  See Wilson v. Ramacher, 352 N.W.2d 389, 395 (Minn. 1984).  Discretionary immunity only applies to provide immunity from suit for tort liability.  See Minn. Stat. § 466.02.  Summary judgment is not proper against a landowner with a viable claim for inverse condemnation where the landowner alleged that “the diversion of surface waters is substantial and permanent and has rendered his property unfit for use.”  Wilson, 352 N.W.2d at 394-95.  Although municipalities are liable for “taking” and “damages” that are reasonably identifiable or foreseeable, compensation should not be payable for extraordinary damages that are caused by natural forces and are not reasonably anticipated.

            Here, appellants’ claims based on the 2003 extraordinary rainfall were not reasonably anticipated.  That rainfall event exceeded the hundred-year design standard.  It is unreasonable to subject local government or anyone to liability for events that are not foreseeable.  Based on the facts in this case, we conclude appellants’ damage is not compensable through an inverse eminent domain claim.

            The city also raised a statute-of-limitations defense.  If not timely initiated, an inverse eminent domain claim is barred by statutory limitation periods.  See 11A Eugene McQuillin, Municipal Corporations § 32.133 (3rd ed. 2000).  The construction and applicability of a statute of limitations is a question of law subject to de novo review.  Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1998).  Minnesota law provides a ten-year statute of repose and a two-year statute of limitations for claims based on improvements to real property:

Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property . . . shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury . . . nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction. 

 

Minn. Stat. § 541.051, subd. 1(a) (2004) (emphasis added).  For purposes of the statute of limitations and statute of repose, “a cause of action accrues upon discovery of the injury.”  Id., subd. 1(b) (2004).

The district court barred appellant Feuling’s claim of inverse condemnation, among others, because it found that: (1) the improvements that allegedly resulted in the taking of her property were substantially completed in 1992; (2) appellant Feuling’s claim accrued in 1995 when she noticed a marked difference in the frequency and volume of flood events; (3) the two-year statute of limitations provided in section 541.051 began to run in 1995; (4) the city did not make assurances that appellant could rely on until 2002; and (5) appellant Feuling did not file her claims until 2004. 

            Appellants argue to this court that actions the city took to manually pump out water from 1995 until 2002 were assurances that equitably estop the city from raising a defense based on the statute of repose or limitations.  See, e.g., Rhee v. Golden Home Builders, Inc., 617 N.W.2d 618, 622 (Minn. App. 2000) (reversing summary judgment on the ground that there was a genuine issue of material fact as to whether the builder was estopped from asserting a statute-of-limitation defense because of his repeated, but failed, attempts to repair leaks in the home and his continued assurances to the homeowners); United States Leasing Corp. v. Biba Info. Processing Servs., Inc., 436 N.W.2d 823, 826 (Minn. App. 1989), review denied (Minn. May 24, 1989).

            This court summarized the rule regarding estoppel as follows:

1.  There must be conduct–acts, language or silence–amounting to a representation or a concealment of material facts.   2. These facts must be known to the party estopped . . . .  3. The truth concerning these facts must be unknown to the other party claiming the benefit of estoppel, at the time when such conduct was done, and at the time when it was acted upon by him.   4. The conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon . . . .  5. The conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it.   6. He must in fact act upon it in such a manner as to change his position for the worse . . . .

 

Rhee, 617 N.W.2d at 621-22 (quotation omitted).  

            Appellants represent that the city’s staff promised that the 1992 modifications would  reduce flooding and keep water from their homes, that they regularly plugged culverts to minimize backflow and manually pumped excess water, and that in 2001, 2002, and 2003, the city’s staff promised that the city would either purchase the Property or construct a permanent pumping station and that all these activities constituted ongoing acts that estopped the city from raising the limitations defense.  However, at the same time appellants represent that from 1995 to 2003, the backyards continued to flood a minimum of twice a year.  The frequency and severity of the flooding continued to grow each year.  

            Appellants never alleged or argued to the district court any specific assurances that the city made to them between 1995 and 2000 that it would repair the old system or construct a new one.  Rather, according to appellant Feuling, the city promised her that it was “always ready to manually pump” water and that water would never reach appellant’s backyard walk-out again.  Appellant Feuling states that during that period, the flooding “substantially interfered” with her use of her backyard, and that she “continued to demand that the city do something to remedy the problem throughout this period.”  Based on Feuling’s own statements, the problems were apparent and appellants knew the city’s efforts were inadequate.  The facts alleged by appellants undermine their estoppel argument.

            On this record, the district court did not err by granting summary judgment on claims allegedly arising from the 1992 and earlier improvements because at the latest, appellant Feuling discovered her injuries resulting from the claims in 1995, and respondent made no assurances nor performed any actions to entirely remedy the problem until at least 2001.  Although the city’s efforts to address the situation were laudable, they do not revive a claim that is already time-barred.  The two-year statute of limitations under section 541.051 applies and the claims were properly dismissed.

Appellant Okoh filed an identical complaint against respondent with regard to the 1992 improvement and 2003 flood event.  The district court noted that appellant Okoh brought her claims on December 27, 2004, but the 1992 improvement was substantially completed before December 1992.  Her claims for inverse condemnation were time-barred by the 10-year statute of repose and the 2-year statute of limitations.  There is no evidence that respondent had made assurances to appellant Okoh that might trigger equitable estoppel.  Accordingly, we conclude the district court did not err by dismissing appellant Okoh’s claims.

Although appellants present a sympathetic case for compensation, judicial relief is limited by the statutes providing for discretionary immunity and limiting time for bringing actions.  Such limits do not preclude voluntary municipal relief.

Affirmed.