A06-1429

In re: Application for Relocation

Benefits by Charles E. Mistelske.

Filed June 19, 2007

Affirmed in part, reversed in part, and remanded

Willis, Judge

Andover Economic Development Authority

Charles E. Mistelske, 11255 US Highway 169, Milaca, MN 56353 (pro se relator)

Scott C. Baumgartner, William G. Hawkins and Associates, 2140 Fourth Avenue North, Anoka, MN 55303 (for respondents Andover Economic Development Authority and City of Andover)

Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Willis, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Relator appeals from a hearing officer’s decision on review of the Andover Economic Development Authority’s denial of relator’s supplemental claim for relocation-assistance benefits. The hearing officer awarded relator a portion of his claimed storage costs but otherwise affirmed the authority. We affirm in part, reverse in part, and remand.

FACTS

This is the second appeal in this case. Relator Charles E. Mistelske operated an auto-salvage business on a ten-acre parcel that he owned in Andover (the acquired site). On February 28, 1998, the Andover Economic Development Authority (AEDA) acquired the property by eminent domain. In February 1999, Mistelske filed a claim for relocation-assistance benefits with the AEDA, requesting $559,700. In his claim, Mistelske noted that an additional claim would “be filed later”; the AEDA agreed to pay the February 1999 claim.

In January 2002, Mistelske filed a supplemental claim for relocation-assistance benefits. The AEDA denied Mistelske’s supplemental claim on the ground that it was untimely, and a hearing officer upheld that decision. Mistelske appealed to this court by writ of certiorari, and this court reversed the hearing officer. Mistelske v. Andover Econ. Dev. Auth., No. A03-1325, 2004 WL 1152788 (Minn. App. May 25, 2004), review granted (Minn. Aug. 17, 2004). This court concluded that because the time period for making a claim may be waived for “good cause” and because Mistelske had put the AEDA on notice that an additional claim would be filed, “the agency erred by failing to waive the deadline for relator to submit his final claim for good cause,” and we remanded “for appropriate consideration of relator’s claim for reestablishment costs.” Id. at *2.

Mistelske petitioned the supreme court for further review, and in an order opinion, the supreme court remanded the case to this court “to clarify whether the remand to Andover Economic Development Authority includes consideration of Charles Mistelske’s claim for relocation costs.” Mistelske v. Andover Econ. Dev. Auth., No. A03‑1325 (Minn. Aug. 17, 2004). On remand, this court determined that “(1) questions of timeliness shall not preclude relator from claiming any category of benefit allowed by [the Minnesota Uniform Relocation Assistance Act] including relocation costs; and (2) in all other respects, the Authority may apply [the Minnesota Uniform Relocation Assistance Act] in determining the appropriateness of relator’s claims.” Mistelske v. Andover Econ. Dev. Auth., No. A03-1325, 2004 WL 2793219, at *2 (Minn. App. Dec. 7, 2004).

On May 2, 2005, Mistelske filed a new supplemental relocation-assistance-benefits claim, seeking reimbursement for renting a storage site, for the expense of moving the business’s property from the storage site to the replacement site, and for the reestablishment of the business at the new site. A relocation counselor recommended that the AEDA approve $10,000 in reestablishment benefits, the maximum amount allowable under the regulation; approve $5,026 in printing costs for advertising the business’s change of location; and deny the remaining claims. The AEDA adopted the recommendation.

Mistelske sought review of the AEDA’s decision. A hearing officer was appointed and a hearing was held. The hearing officer found that the date of taking of the acquired site was February 28, 1998; that Mistelske was allowed to continue to occupy the acquired site until October 1998; that Mistelske acquired the replacement site on October 8, 1998; and that it took Mistelske four months to move his property from the acquired site. Thus, because Mistelske began moving his business’s property in June 1998, and the replacement site was not available until October 1998, the hearing officer determined that some storage costs were “reasonable and necessary.” The hearing officer awarded Mistelske storage costs equal to five months’ rent for the storage site and otherwise affirmed the AEDA. This certiorari appeal follows.

D E C I S I O N

A hearing officer’s decision is “quasi-judicial” and is reviewed by certiorari to this court. Naegele Outdoor Adver., Inc. v. Minneapolis Cmty. Dev. Agency, 551 N.W.2d 235, 236 (Minn. App. 1996). On an appeal from a relocation-assistance-benefits determination, this court’s review is limited to determining whether the hearing officer exceeded her jurisdiction and whether the decision was based on an erroneous theory of the law; was without evidentiary support; or was arbitrary, oppressive, or unreasonable. See In re Relocation Benefits of Wilkins Pontiac, Inc., 530 N.W.2d 571, 574 (Minn. App. 1995), review denied (Minn. June 23, 1995). But this court cannot retry the facts, and we will defer to the hearing officer’s factual and credibility determinations. See Reierson v. City of Hibbing, 628 N.W.2d 201, 204 (Minn. App. 2001) (reviewing city council’s termination of a firefighter’s employment). Thus, we will affirm the hearing officer’s decision if there is “any legal and substantial basis” to support it. Id. (quotation omitted).

Under Minn. Stat. § 117.52, subd. 1 (2006), an acquiring authority, as “a cost of acquisition,” shall offer the displaced landowner the compensation that the landowner would be entitled to under the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 if the federal government had participated in the acquisition. In that act, Congress sought to minimize “the adverse impact of displacement” and to maintain “the economic and social well-being of communities.” 42 U.S.C. § 4621(a)(4) (2000). A claimant may claim compensation for the “actual reasonable expenses” of moving the personal property of a business, searching for a replacement site for the business, and reestablishing the business at the new site. 42 U.S.C. § 4622(a) (2000).

A. Storage Costs

Mistelske argues first that he is entitled to storage costs of 25 months’ rent for the storage site that he rented, arguing that it took that long to refurbish, equip, and license the replacement site. Compensation for actual storage costs that are related to moving the business and that the agency determines are “reasonable and necessary” is authorized by 49 C.F.R § 24.301(a), (g)(4) (2006).[1] Although storage costs are generally limited to 12 months, the agency may extend that period if necessary. Id.

Here, the hearing officer found that Mistelske finished vacating the acquired site and acquired the replacement site in October 1998. Noting that all parties “acknowledge that finding a suitable replacement location for an auto salvage business is challenging” and that it took Mistelske four months to vacate the acquired site, the hearing officer determined that storage for June through October 1998 was “reasonable and necessary” and, consequently, awarded Mistelske five months’ rent as storage costs.

The hearing officer found that Mistelske acquired the replacement site on October 8, 1998. And she awarded storage costs for the five months ending October 31, 1998. Therefore, it appears that although she found that it took Mistelske four months to move his property from the acquired site to the storage site, the hearing officer determined that it was reasonable to allow Mistelske only 23 days to move his property from the storage site to the replacement site. The hearing officer’s decision does not explain the rationale for such a determination.

We therefore remand the issue of storage costs to the hearing officer for an explanation of the award that she made or for adjustment of that award. The hearing officer may, in her sole judgment, reopen the record to receive additional evidence. We express no opinion on the issue.

B. Move from Storage Site to Replacement Site

Mistelske argues next that the hearing officer erred by determining that he was not entitled to compensation for the move from the storage site to the replacement site. The hearing officer affirmed the AEDA’s denial of Mistelske’s claim, determining that because Mistelske had elected to perform a “self move,” he was not eligible for additional compensation and that, in any event, he had failed to submit sufficient documentation to support his claim.

Compensation for professional services to move the personal property of a displaced business is authorized by 49 C.F.R. § 24.301(g)(12) (2006). Under 49 C.F.R. § 24.303(c) (1997), a displaced business may elect “to take full responsibility for the move of the business or farm operation.” If the displaced business elects a self-move, it is entitled to compensation in the amount of the lower of two bids, obtained by the agency, to move the business. Id. And the regulation does not prohibit compensating a move from an interim storage facility to a final replacement site. See Pou Pacheco v. Soler Aquino, 833 F.2d 392, 397 (1st Cir. 1987). Indeed, it would make little sense to compensate a displaced business for short-term interim storage that is related to moving the property of the business, as the regulation does, and not compensate the business for the move from the interim storage site to the final replacement site. Cf. 49 C.F.R. § 24.301(g)(4) (discussing storage costs).

But Mistelske did not comply with the applicable regulations. Under 49 C.F.R. § 24.303(b)(2) (1997), the claimant must provide the agency with advance written notice of the move. Nothing in the record shows that Mistelske did so. Further, in the case of a self-move, the regulation provides that bids may be obtained only by the agency. 49 C.F.R. § 24.303(c). Here, Mistelske obtained the “bids” himself. And we note that the March 1999 “bid” from Shorty’s Towing is not a bid at all; it is an invoice for $12,000. Thus, because Mistelske did not comply with the regulations, the hearing officer appropriately denied his claim for additional moving expenses.

C. Claim for Lost or Stolen Property

Mistelske argues next that he is entitled to compensation for several items of property that he claims were lost or stolen from the acquired site. The regulations authorize compensation for the replacement value of property that is “lost, stolen, or damaged in the process of moving (not through the fault or negligence of the displaced person, his or her agent, or employee) where insurance covering such loss, theft, or damage is not reasonably available.” 49 C.F.R. § 24.301(g)(6) (2006) (emphasis added). Mistelske testified at the hearing that he did not purchase insurance, and the hearing officer found that there was no evidence that insurance was not reasonably available. Thus, we affirm the hearing officer’s denial of Mistelske’s claim for lost or stolen property.

D. Reestablishment Expenses

Mistelske argues finally that he is entitled to a $50,000 reestablishment benefit, claiming on appeal that he incurred more than $92,000 in reestablishment expenses. At the hearing, Mistelske claimed only an additional $3,190.48 in reestablishment expenses, and the hearing officer denied the claim because the AEDA had already approved the maximum reestablishment benefit available under the regulation, which was $10,000. See 49 C.F.R. § 24.304 (1997). Mistelske contends that a recent amendment to Minn. Stat. § 117.52 authorizes up to a $50,000 reestablishment benefit. But the amendment applies only “to actions commenced on or after” May 20, 2006. 2006 Minn. Laws. ch. 214, § 22(a), at 205. Because this action was commenced several years before that date, the amendment is inapplicable. Thus, the hearing officer correctly determined that because Mistelske has already been awarded the maximum reestablishment benefit, he is not entitled to additional compensation.

Affirmed in part, reversed in part, and remanded.

[1] We cite the most recent version of the Code of Federal Regulations unless the provision cited has changed substantively since the acquisition here, in which case, we cite the version that was in effect at that time.