This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-97-1518

Leon DeCook,

Appellant,

vs.

City of Rochester,

Respondent.

Filed February 24, 1998

Affirmed

Kalitowski, Judge

Olmsted County District Court

File No. C7942084

Steven Corson, Corson Law Offices, 206 Centertown Plaza, Stewartville, MN 55976 (for appellant)

James G. Golembeck, Sydnee N. Woods, Jardine, Logan & O'Brien, P.L.L.P., 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101-2160 (for respondent)

Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Short, Judge.

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

KALITOWSKI, Judge

Appellant Leon DeCook argues that the rezoning of his property from residential to industrial by respondent City of Rochester constituted a compensable taking under state and federal law. We affirm.

D E C I S I O N

"Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured." Minn. Const., art. I, § 13. The Fifth Amendment to the United States Constitution similarly provides that private property shall not "be taken for public use without just compensation."

In a claimed taking, the district court's findings of fact will be upheld unless clearly erroneous and unsupported by the record. See Czech v. City of Blaine, 312 Minn. 535, 539, 253 N.W.2d 272, 274-75 (1977). "Whether a taking has occurred is a question of law which this court may review de novo." Thompson v. City of Red Wing, 455 N.W.2d 512, 516 (Minn. App. 1990), review denied (Minn. June 26, 1990) (citing Alevizos v. Metropolitan Airports Comm'n, 298 Minn. 471, 484, 216 N.W.2d 651, 660-61 (1974)).

I.

Under state law, a landowner is entitled to compensation if a land use regulation solely benefits a governmental enterprise and results in a "substantial and measurable decline in market value" of the property. McShane v. City of Faribault, 292 N.W.2d 253, 258-59 (Minn. 1980). A landowner must be more than limited or inconvenienced by the regulation to receive compensation. Id. at 259. If a governmental enterprise is not involved, a land use regulation constitutes a compensable taking if it deprives the landowner of all reasonable use of the property. Thompson, 455 N.W.2d at 517. The burden is on the landowner to demonstrate deprivation of all reasonable use. Larson v. County of Washington, 387 N.W.2d 902, 907 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).

The parties dispute which taking standard applies. DeCook does not claim the rezoning did not advance a legitimate state interest, but asserts that the city rezoned the land for the sole benefit of the airport, and therefore, McShane applies. We disagree. The Minnesota Supreme Court has stated: "The McShane enterprise function analysis applies only when a `specific governmental enterprise takes an effective easement.'" Arcadia Dev. Corp. v. City of Bloomington, 552 N.W.2d 281, 288 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996) (quoting Thompson, 455 N.W.2d at 517). Here, the city did not take an effective easement on DeCook's property, but rezoned DeCook's land from residential to industrial in conformance with a city-county comprehensive plan that had existed since at least the late 1970s. Further, because DeCook knew at the time of purchase that 23 acres of land had previously been classified Zone A by the airport authority, he cannot claim a taking as to these 23 acres.

Because we have determined the rezoning was not solely for the benefit of a governmental enterprise, there is a taking only if DeCook suffered a deprivation of all reasonable use of his land. Thompson, 455 N.W.2d at 517. Although DeCook may have realized more financial gain from developing a residential area, he still can develop the land consistent with the industrial zoning. DeCook's own appraiser testified that the property had significant value after it was rezoned as industrial. We therefore conclude there is no taking under state law because DeCook is not deprived of all reasonable use of his land. Parranto Bros. v. City of New Brighton, 425 N.W.2d 585, 591-92 (Minn. App. 1988) (no taking where appellant's expert testified that appellant's property had considerable worth), review denied (Minn. July 28, 1988).

II.

Under federal law, a general zoning law does not constitute a taking if it "`substantially advance[s] legitimate state interests' and does not `den[y] an owner economically viable use of his land.'" Dolan v. City of Tigard, 114 S. Ct. 2309, 2316 (1994) (quoting Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S. Ct. 2138, 2141 (1980)). The city argues that zoning serves a legitimate public purpose by promoting the orderly development of land. We agree. Zoning laws have "been viewed as permissible governmental action even when prohibiting the most beneficial use of the property." Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 125, 98 S. Ct. 2646, 2659-60 (1978). Other than alleging that the city rezoned the land for the sole benefit of the airport, DeCook has presented neither evidence nor argument that the city's rezoning had no valid public purpose. Further, as noted above, DeCook cannot establish that he is deprived of all economically viable use of his land because he can develop his land consistent with the industrial zoning designation. Accordingly, because the city's rezoning was in pursuit of a legitimate public purpose, and DeCook was not deprived of economically viable use of the property, we conclude there was not a compensable taking under federal law.

Affirmed.