This opinion will be unpublished and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

A06-204

 

 

City of Olivia,

Relator,

 

vs.

 

Renville County Board of Commissioners,

Respondent.

 

 

Filed December 26, 2006

Affirmed

Lansing, Judge

 

Renville County Board of Commissioners

County Ditch No. 66 Improvement

 

Charles K. Frundt, Frundt & Johnson, Ltd., 117 West Fifth Street, P.O. Box 95, Blue Earth, MN 56013 (for relator)

 

Gerald W. Von Korff, Rinke-Noonan, 1015 West St. Germain Street, Suite 300, P.O. Box 1497, St. Cloud, MN 56302-1497 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The Renville County Board of Commissioners denied a petition to remove part of the City of Olivia from land determined to be benefited by the Renville County Ditch No. 66 Improvement.  On certiorari appeal, the city argues that the county board’s denial cannot be sustained because the city is no longer benefited by the drainage system and because removing the city from the system would not prejudice the property owners and property remaining within the system.  Because the county board acted within its administrative authority and did not err as a matter of law by determining that the diversion of flood waters away from the city constitutes a benefit to the city, we affirm.

F A C T S

            The City of Olivia is the county seat of Renville County, located in south central Minnesota.  Following severe flooding in 1993, the county, along with state and federal agencies, began studying options for rerouting Renville County Ditch No. 66 around the city.

            Based on those studies a group of landowners submitted a petition, in 1996, under the provisions of Minn. Stat. § 103E.215 (2004), to improve Ditch No. 66.  The proposed improvement increased the ditch’s drainage capacity and diverted flood water from the City of Olivia.  At about the same time, the city passed a resolution stating that the city “will pay for its proportionate share of the cost of the proposed improvement.”

            The Renville County Board of Commissioners acts as the drainage authority for ditches in the county.  In response to the petition for improvement, the county board appointed an engineer, who submitted a report in 1998.  After receiving the engineer’s report, the county board adopted a plan that would reroute County Ditch No. 66 to the south of the city.  This rerouted section was known as the Renville County Ditch No. 66 Improvement.  The county board appointed viewers who determined that the city would receive $1,352,800 in benefits from the Ditch No. 66 Improvement.  This amounted to 46.40% of the total benefits.

            After construction of the Ditch No. 66 Improvement, no water from the City of Olivia drained into Ditch No. 66 or the Ditch No. 66 Improvement.  As a result, the City of Olivia has been removed from the benefit assessments for Ditch No. 66.  The city, however, remains on the benefit assessments for the Ditch No. 66 Improvement.  The drainage situation is now slightly different.  Because of a 2002 improvement to State Highway 212, 17.8 acres within the city now drain into the Ditch No. 66 system.

            In 2005 the city submitted a petition under Minn. Stat. § 103E.805 (2004), claiming that it should be removed from the benefit assessments for Ditch No. 66 Improvement because, with the exception of the 17.8 acres along Highway 212, the city does not drain into Ditch No. 66 or the Ditch No. 66 Improvement.

            In response to the city’s petition, the Renville County Board held two public hearings and appointed viewers to determine whether the city continued to be benefited by the Ditch No. 66 Improvement.  The viewers concluded that the city “was originally, and still is, benefited by the diversion of water away from the city allowing the city an improved outlet into County Ditch No. 51.”  The county board found that the city continued to be benefited by the Ditch No. 66 Improvement and that other landowners would be prejudiced by removing the city from the benefit assessments.  The county board therefore denied the city’s petition.  The city then filed this certiorari appeal.

D E C I S I O N

            Review by certiorari is limited to an inspection of the record of the administrative tribunal.  Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992).  We review the record to determine whether the order was “arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.”  Hinneberg v. Big Stone County Hous. and Redevelopment Auth., 706 N.W.2d 220, 225 (Minn. 2005) (quotation omitted).  We independently review a tribunal’s interpretation of a statute.  In re Dougherty, 482 N.W.2d 485, 488 (Minn. App. 1992), review denied (Minn. June 10, 1992).

            Under Minnesota drainage law, a petitioner’s property must be removed from the drainage system if the board determines:

(1) that the waters from the petitioners’ property have been diverted from the drainage system, or that a dam has been lawfully constructed and the property cannot use the drainage system;

(2) that the property is not benefited by the drainage system and does not use or affect the drainage system; and

(3) that removing the property from the drainage system will not prejudice the property owners and property remaining in the system.

 

Minn. Stat. § 103E.805, subd. 3(b) (2004).

            The county board found that the City of Olivia is benefited by the reduction of flood waters and the diversion of flood waters away from the city.  The city does not dispute that the Ditch No. 66 Improvement diverts flood waters from the city.  Instead, the city’s appeal turns on whether diversion of flood waters constitutes a benefit.

            Property can be benefited even if it is not physically connected to a drainage system.  Seidlitz v. County of Faribault (In re Repair of County Ditch No. 1), 237 Minn. 358, 365, 55 N.W.2d 308, 313 (1952).  The drainage statute provides some guidance on the meaning of “benefit.”  It states:

The viewers shall determine the amount of benefits to all property within the watershed, whether the property is benefited immediately by the construction of the proposed drainage project or the proposed drainage project can become an outlet for drainage, makes an outlet more accessible, or otherwise directly benefits the property.  The benefits may be based on:

(1) an increase in the current market value of property as a result of constructing the project;

(2) an increase in the potential for agricultural production as a result of constructing the project; or

(3) an increased value of the property as a result of a potential different land use.

 

Minn. Stat. § 103E.315, subd. 5(a) (2004).  Our interpretation of “benefit” is also guided by section 103E.011, subd. 4 (2004), which gives drainage authorities the power to control flood waters.  Minn. Stat. § 103E.011, subd. 4 (2004).

            Relying on the authority of these two statutes we conclude, for three reasons, that the county board acted within its administrative power and did not err as a matter of law by determining that the diversion of flood waters is a “benefit” under chapter 103E.  First, the diversion prevents flooding and thus beneficially increases the value of property within the city.  Second, because the drainage authority has the power and the corresponding responsibility to control flood waters, the term “benefit” should be interpreted in a way that permits the drainage authority to exercise its power and fulfill its responsibility.  Third, the diversion of flood water is within the plain meaning of the term “benefit.”  Therefore, because the Ditch No. 66 Improvement prevents flooding, the drainage system provides a benefit to the city.

            The city does not directly dispute that the diversion of flood waters is a “benefit” under chapter 103E.  Instead, the city attempts to distinguish between benefits from the construction of the improvement and benefits from repairs and maintenance.  The city argues that, although the city benefited from the initial construction, it will not derive any benefits from ongoing maintenance to the Ditch No. 66 Improvement.  The city argues that the water will continue to be diverted even if the maintenance is not done.

            The Minnesota Supreme Court considered a similar argument in the case of Braun v. County of Renville (In re Repair of County Ditch No. 51), 244 Minn. 532, 70 N.W.2d 329 (1955).  In Braun, a landowner challenged his assessment for repairs to a drainage system.  Id. at 539, 70 N.W.2d at 334.  Although the landowner benefited from the drainage system itself, the landowner claimed the assessment was unlawful because he would not specifically benefit from the repairs being made.  Id. at 533, 70 N.W.2d at 330.  In rejecting this claim, the court distinguished between assessments for improvements or new drainage systems and assessments for repairs to existing drainage systems.  Id. at 541 & n.12, 70 N.W.2d at 335 & n.11.  Because the landowner was benefited by the drainage system itself, the court concluded that the county board could assess the landowner for the repairs.  Id. at 542, 70 N.W.2d at 335.

            The city acknowledges the Braun decision but attempts to distinguish it by arguing that it does not receive any benefit from the Ditch No. 66 Improvement.  Because flood-water diversion constitutes a benefit, the city’s argument fails.  For new drainage systems and improvements, landowners can only be assessed if they are benefited.  Seidlitz, 237 Minn. at 361, 55 N.W.2d at 311.  But, under Braun, repairs are different.  Landowners can be assessed for repairs to existing systems if the landowners are benefited by the system as a whole.  Braun, 244 Minn. at 542, 70 N.W.2d at 335.

            The Renville County Board acted within its administrative authority and did not err as a matter of law by finding that the city continues to be benefited by the Ditch No. 66 Improvement.  We therefore affirm its denial of the petition to remove the city from the drainage system. 

Because we sustain the county board’s decision on the basis of the provision of a benefit, we do not reach the final prong of whether removing the property from the drainage system would prejudice the property owners and property remaining in the system.  For the same reason we do not address the county’s argument that the city’s petition is an improper collateral attack on the 1998 determination of benefits.  Finally, we note that the City of Olivia is not a typical party for a petition under section 103E.805.  See Minn. Stat. § 103E.805, subd. 1 (2004) (permitting suits by property owners, not cities).  The Renville County Board, however, has not challenged the city’s ability to bring the petition.

            We recognize that the city may for the foreseeable future be required to pay for repairs which provide limited incremental benefit.  The county contends, however that a change in the relative hydrological benefits or relative land values can be asserted through a request for a redetermination of benefits.  Minn. Stat. § 103E.351 (2004); see In re Improvement of Murray County Ditch No.34, 615 N.W.2d 40, 43 (Minn. 2000) (commenting on redetermination when original assessment does not reflect reasonable present-day values).  Whether or not that procedure might afford a measure of relief, we conclude that section 103E.805 does not, because the city continues to be benefited by the ditch improvement itself.

            Affirmed.