This opinion will be unpublished and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

A05-2180

 

Jeffrey Coury,
Relator,

vs.

Dakota County Board of Commissioners,
Respondent.

 

Filed August 22, 2006

Reversed

Stoneburner, Judge

 

Dakota County Board of Commissioners

File No. 05-474

 

Charles E. Mertensotto, Rowland & Mertensotto, P.A., 1575 West Seventh Street, Suite 103, St. Paul, MN 55102 (for relator)

 

James C. Backstrom, Dakota County Attorney, Michael R. Ring, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033-2392 (for respondent)

 

            Considered and decided by Dietzen, Presiding Judge; Toussaint, Chief Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Relator challenges respondent’s denial of his application to repurchase tax-forfeited property.  Because respondent misapplied the repurchasing statute, we reverse.

 

FACTS

 

Relator Jeffrey Coury purchased three adjoining parcels of vacant land in the city of Inver Grove Heights (the property) in December 1999 and recorded the deeds in March 2000.  Because the address of the property was the address provided to the county for tax statements, Coury never received tax statements or tax notices regarding the property.  This error was compounded by Coury misunderstanding that property taxes were included in his mortgage payments on the property, and his failure to pay property taxes on the property for 2000, 2001, 2002, and 2003.[1]  In April 2005, Coury first learned from the bank that the property had been forfeited to the state in August 2004 and that the redemption period had expired.

            Within the statutory time limit to repurchase his tax-forfeited property, Coury filed an application to repurchase and paid all the required taxes, penalties, interest, and costs in the amount of $43,716.72, plus administrative and recording fees of $987.26.  Coury explained on the application that he was under the assumption that the taxes were part of his mortgage payments; that neither he nor the bank received notices of delinquent taxes from the county; and that he “is under personal obligation to the bank to reinstate his title to the property.”

            Respondent Dakota County Board of Commissioners heard Coury’s request in September 2005.[2]  The record shows that the transportation department has been working for several years with Inver Grove Heights on a highway project for which a right-of-way on the property will be needed.  The county plat commission denied approval of a proposal Coury submitted in 2002 for a mini-storage facility on the property because of the anticipated right-of-way need, and the board approved the denial.  Coury did not submit additional development plans.  At the time of his repurchase application, Coury did not have plans to develop the property, and the extent of the right-of-way need was still unknown.  Because of the extent of the right-of-way need, the county engineer asked the board not to process Coury’s repurchase application, or, in the alternative, to deny the application until the extent of the need for a right-of-way could be identified and an easement reserved over the property. 

            Coury’s attorney told the board that this was an unusual case, noting that tax-forfeited land is rarely worth more than the taxes due.  He argued that the forfeiture constituted an injustice to Coury and that the board had a conflict of interest because it wants to acquire all or part of the property.  Coury, who purchased the property for $175,000, told the board that the inability to repurchase the property would be a “$300,000 hit to me personally.”          

            The board issued Resolution No. 05-474, setting out its findings of fact and

resolutions.  The board found, in relevant part, that (1) Coury did not establish any incapacity that would have prevented timely payment; (2) Coury failed to demonstrate the he will suffer undue hardship or injustice by being denied the opportunity to repurchase; and (3) the public will be best served by having the property put to public use as a right-of-way for Concord Boulevard and Dickman Trail.  The board directed its staff to prepare the design for the referenced right-of-way and apply to the Department of Revenue for conveyance of an easement necessary for construction of the project.  The board further resolved to reconsider Coury’s repurchase application “after receipt of the conveyance of necessary right-of-way from the Minnesota Department of Revenue.”  Coury’s petition for a writ of certiorari challenging the board’s decision followed.

D E C I S I O N

 

            “On certiorari review of a board decision, the court’s inquiry is limited to questioning whether the board had jurisdiction, whether the proceedings were fair and regular, and whether the board’s decision was unreasonable, oppressive, arbitrary, fraudulent, without evidentiary support, or based on an incorrect theory of law.”  Radke v. St. Louis County Bd., 558 N.W.2d 282, 284 (Minn. App. 1997).  Coury concedes that the board had jurisdiction in this case, and he does not challenge procedural fairness.  Coury asserts that the board’s decision is oppressive, arbitrary, capricious, without evidentiary support, and is based on an incorrect theory of law that is contrary to case law and public policy.

            Minn. Stat. § 282.241, subd. 1 (2004), provides in relevant part:

The owner at the time of forfeiture . . . may repurchase any parcel of land claimed by the state to be forfeited to the state for taxes . . . for the sum of all delinquent taxes and assessments . . . together with penalties, interest, and costs, that accrued or would have accrued if the parcel of land had not forfeited to the state . . . . [R]epurchase is permitted . . . only after the adoption of a resolution by the board of county commissioners determining that by repurchase undue hardship or injustice resulting from the forfeiture will be corrected, or that permitting the repurchase will promote the use of the lands that will best serve the public interest.

 

Coury argues that case law has established a state policy that even if inability or negligence results in failure to pay timely taxes, a person is not required to forfeit his or her property.  Coury cites State ex rel. Equity Farms, Inc. v. Hubbard, 203 Minn. 111, 116, 280 N.W. 9, 13 (1938) for this proposition.  In Hubbard, the supreme court stated:

[I]t is not the policy of the state, nor should it be, to deprive owners of real estate of their interest therein on account of tax delinquency.  If any reasonable means can be devised whereby ownership may be protected against tax forfeitures, without injury to others, clearly it should be the purpose of the state to lend a helping hand.

 

. . . .

 

[I]t is for the welfare of every community that the law should favor the citizen in all reasonable measures for the preservation of his estate against losses which might result from his misfortunes or his faults, extending to him all the liberality that is consistent with justice to others and to a proper regard for the interest of the public.

 

Id.

            In Radke, this court stated that “[t]he court has the duty to give [the repurchase statute] full effect whenever reasonably possible because the statute is remedial in purpose.”  Radke, 558 N.W.2d at 284.  We determined that “the commissioners misconstrued the statutory language to allow the board to deny a property owner the opportunity to repurchase in order to prevent hardship to the county.”  Id.  Coury argues that the board in this case has similarly misconstrued the statute. 

            The property involved in Radke consisted of 80 acres of unimproved timber land that Radke and his mother purchased as joint tenants.  558 N.W.2dat 283.   Radke’s bipolar disorder worsened after his mother’s death, and he was unable to manage his finances.  Id.  When his condition stabilized, he learned that the property had been forfeited to the county due to delinquent taxes.  Id.  In his application to repurchase, Radke argued that the property was the only legacy he had from his mother, it was the only significant asset he possessed at the time, and he had sincerely believed the taxes had been paid.  Id.  Counsel for Radke told the county board that Radke planned to build his retirement residence on the property.  Id.at 284.

            In Radke, the county board’s discussion focused on the value of the land and the timber on it.  Id.at 283-84.  The commissioners suggested that Radke was trying to acquire a significant asset for much less than it was worth,[3] and that the county would basically be giving Radke a gift of $30,000 if it allowed him to repurchase.  Id. at 284.

            Reversing denial of Radke’s application to repurchase, this court concluded that the county had focused on the “prospective financial hardship or injustice that might befall the county if it no longer owned the property” rather than “focusing on correcting the hardship to [Radke] that had arisen from the forfeiture.”  Id. at 285.  This court agreed with Radke that “hardship” and “injustice” arose because he lost the property “through no willful act of his own” and that he acted responsibly once he regained mental stability and learned of the forfeiture.  Id. 

            In Coury’s case, the board argued in its brief that Radke supports its position that financial loss is insufficient to constitute injustice or undue hardship and that Radke stands for the proposition asserted by the board that “[t]he injustice must follow or flow from a legally recognizable hardship.”  At oral argument, the board backed away from insisting on a legally recognizable hardship, but continued to assert that there must be something more than financial loss, such as loss of a family legacy, before injustice or undue hardship can be deemed to have resulted from forfeiture.  Because Coury did not show any physical or mental incapacity, or hardship other than financial loss, the board argues that the record supports its finding that he failed to demonstrate any undue hardship or injustice resulting from the forfeiture. 

            We conclude that the board construes Radke too narrowly, and that despite some factual differences between Coury’s and Radke’s situations, Coury’s situation is very similar to Radke’s.  In both cases, forfeiture did not result from any willful act of the taxpayer.  Both Radke and Coury thought the taxes had been paid; both acted with diligence once the forfeiture was discovered, both faced a financial loss from denial of the application to repurchase, and in each case the county would reap a windfall from disallowing repurchase.[4]

            Nothing in the statute or the case law suggests that the phrase “undue hardship or injustice” precludes financial loss from constituting such a hardship or injustice.[5]  While the statute gives the board some discretion, case law mandates that the discretion be exercised in favor of the taxpayer regaining title to forfeited property “[i]f any reasonable means can be devised whereby ownership may be protected against tax forfeitures, without injury to others . . . .”  Hubbard, 203 Minn. at 116, 180 N.W. at 13.  We conclude that given all the circumstances of this case, the board erred by applying the statute to protect the county’s perceived interests[6] rather than to correct a hardship to Coury resulting from the forfeiture.  Additionally, the board erred by misconstruing the statute and case law to require that Coury demonstrate a physical or mental disability or “something else” in addition to a substantial financial loss before it could determine that an undue hardship or injustice resulted from the forfeiture.  We do not imply by this opinion that every financial loss caused by forfeiture automatically constitutes an undue hardship or injustice under the statute. 

            Reversed.