HomeMy WebLinkAbout2011 09-22 CHCA MEETING OF THE BROOKLYN CENTER CHARTER COMMISSION
SEPTEMBER 22, 2011
Brooklyn Center City Hall
Council /Commission Conference Room
AGENDA
1. Call to Order: 7:00 p.m.
2. Roll Call
3. Consideration of the Minutes of April 28, 2011, Meeting
a. Commissioners not at that Meeting will be shown as abstaining
4. Old Business
a. Consideration of Proposed Changes to the By -laws
b. Any Consent Agenda?
5. New Business
a. Update on eminent domain in Minnesota
b. Any other new business?
6. Future Meeting dates
a. Appointment of Nominating Committee
7. Adjournment
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(Draft) MINUTES OF April 28, 2011
BROOKLYN CENTER
CHARTER COMMISSION MEETING
Called to order by Chair Stan Leino at 7:00 PM.
Roll Call: Secretary Gary Brown called roll: Gary Brown, Jill Dalton, Stan Leino, Ed Nelson, Harold
Middleton, Eileen Oslund, Gail Ebert, Nathan Lackner, Robert Marvin, Mary O'Connor, and Mark Yelich
were present.
Absent: Bee Yang
Consideration of Minutes: Motion by Brown, seconded by Marvin to approve minutes of January 28,
2011, Charter Commission meeting. Approved 5 -0, by members who had attended the meeting of January
18, 2011.
New Commissioners and Introductions: Jill Dalton, Nathan Lackner, and Robert Marvin introduced
themselves to the commission.
Old Business:
Consideration of proposed changes to the Bylaws. Secretary Brown handed out copies of the
proposed changes to the by -laws with new verbiage underlined and removals crossed through.
Discussion centered around the minimum number of members. Commissioner Middleton read from
State Statutes and commissioners agreed that by -laws should comply with State Statute (minimum
of 7 members). Motion by Nelson, seconded by Marvin to approve the proposed changes with
minor changes to Charter Commission By -laws. Unanimously approved 11 -0.
Retirement of Charter Commissioner Richard Phillips Chairman Leino explained past practice of
showing appreciation for years of service to new members. Motion by Marvin, seconded by Ebert,
to purchase an appreciation gift for the retiring Charter Commissioner Richard Phillips.
Unanimously approved 11 -0.
New Business:
Report of Audit Chair Eileen Oslund was that $293.00 was spent by the Charter Commission in
2010 for printed materials, postage, and an appreciation award for Mary Nierengarten. Motion by
Nelson, seconded by Marvin, to accept the audit as presented. Unanimously approved 11 -0.
Commissioner Marvin brought up issue of correspondence between commissioners and the concern
about open meeting law violations. It will be discussed at the meeting in August.
Commissioner O'Connor asked to discuss Chapter 9 Eminent Domain at the next meeting as well.
Future Meeting Dates: August 18 and October 20, 2011, to be held at 6:30 PM.
Adjournment: Motion by Yelich, seconded by Marvin, to adjourn at 8:42. Unanimously approved 11 -0.
Submitted for consideration,
Gary E. Brown, Secretary
BROOKLYN CENTER HOME RULE CHARTER COMMISSION
RULES OF PROCEDURE
Revised April 28, 2011
L PURPOSE
The continuing purpose of the Home Rule Charter Commission as provided for
under M.S.A. 410:
A. Periodically review the existing Charter.
B. Consider proposed changes to the City Charter and make recommendations
to the City Council or the electorate.
C. Safeguard the concept of Home -Rule under the existing Charter and Home
Rule provisions in the state statutes.
II. MEMBERSHIP
A. The Charter Commission shall not exceed fifteen (15) members - duly
appointed and certified by the district court, but shall not have less than
seven (7) members.
B. The qualifications for membership require that the individual be a qualified
voter in Brooklyn Center,
C. The term of a commissioner shall be four years excluding filling an unexpired
term. A commissioner may apply for additional terms.
D. The duties and responsibilities of a commissioner shall continue, beyond the
normal term if necessary, until a replacement is duly appointed and certified
by the court.
III. APPOINTMENTS
A. Appointments to the Brooklyn Center Charter Commission are made in the
following ways:
1. The chief judge shall appoint new commissioners. (M.S.A. 410.05
Subd. 2)
2. If the chief judge fails to appoint new commission members within 30
days, then thereafter the governing body of the city shall, appoint new
commission members, unless within the 30 day period the chief judge
indicates in writing to the governing body his /her intention to appoint
new members, in which case he /she shall have an additional 60 days
within which to make the appointment. (M.S.A. 410.05 Subd. 2)
B. Application to the Brooklyn Center Charter Commission may be made
directly to the Chief Judge of Hennepin County District Court or to the
Chairperson of the Brooklyn Center Charter Commission.
C. Notification of an existing or pending vacancy shall be made by the Public
Relations Chairperson in (or through) the official city newspaper. Publication
shall be made within a period of two weeks prior to or two weeks after the
effective date of resignation or expiration of a term(s).
D. The Chairperson shall, within two weeks after receiving a resignation, notify
the Chief Judge of Hennepin County District Court in writing that a vacancy
exists.
E. The Chairperson shall, 30 days before the expiration date of a term(s), notify
the Chief Judge of Hennepin County District Court in writing, of the affected
commissioner(s) intentions. If the commissioner(s) chooses not to continue,
the Chairperson shall direct the Public Relations Chairperson to effect public
notice within the conditions established in Sec. III, C.
F. Vacancies may occur by:
1. Resignation
a. Resignations shall be delivered to the Chairperson in writing.
In the absence of a written resignation, the Chairperson/Vice
Chairperson shall present to the Brooklyn Center Charter
Commission at it's next meeting, notification of an oral
resignation. The Chairperson or Vice Chairperson shall, upon
receipt of a resignation, submit written notification to the Chief
Judge of Hennepin County District Court (with copies to the
resignee and the City Council) within two weeks and to notify
the commission members.
b. An appointee who neglects to file with the clerk within 30 days
a written acceptance and oath of office shall be deemed to
have declined the appointment and his /her place shall be filled
as though he /she had resigned. (M.S.A. 410.05 Subd. 2)
2. Expiration of term
3. Removal
Any member may be removed at any time from office, by written order
of the district court, the reason for such removal being stated in the
order. When any member has failed to perform the duties of his
office and has failed to attend four consecutive meetings without
being excused by the commission, the secretary of the Charter
Commission shall file a certificate with the court setting forth those
facts and the district court shall thereupon make its order of removal
and the chief judge shall fill the vacancy created thereby. (M.S.A.
410.05 Subd. 2)
Brooklyn Center Home Rule Charter Commission
Rules of Procedure Page 2
IV. MEETINGS
A. The annual meeting of the Brooklyn Center Charter Commission shall be
held in January.
1. The annual report, audit report, election of officers, and appointment
of Audit and Public Relations Chairperson are agenda items for this
meeting.
B. Additional meetings may be called by the Chairperson; or any four
commissioners may petition the Chairperson to call a special meeting; or as
required in Minnesota Statutes 410.105, Subd. 2.
C. A majority of the actual membership of the commission shall constitute a
quorum to do business.
D. A majority simple question shall rule. When final votes
p Y of those voting on the q
on the Charter are considered, a two - thirds affirmative vote of the actual
membership with never less than eight (8) voting members present.
E. Parliamentary authority shall be these rules of procedure or Roberts Rules of
Order most recently revised.
1. These rules and procedures can be changed at any time by a majority
vote of the commission, after a 20 day prior written notice to all
commission members outlining the proposed changes.
2. These rules or any portion may be waived only by a 2/3 affirmative
vote of the actual membership with never less than 8 affirmative
votes.
3. Waiving or setting aside these rules of procedure may be done only
with a proper motion and second.
4. The motion to waive or set aside these rules of procedure or any
portion shall be specifically recorded in the minutes.
F. Notice of all meetings shall be in writing to the members 7 days prior to the
meeting and shall contain a written agenda. All meetings shall be held in
compliance with the Open Meeting Statute set forth in M.S. 471.705.
G. Commission members are expected to attend all meetings. Members shall
give notice to the Chairperson or another member in the event of an
absence. Failure to notify the commission of an absence results in an
unexcused absence.
H. Non - commission members wishing to address the commission will have an
opportunity by registering with the Chairperson at the beginning of the
meeting. No public testimony will be received by the commission after a
formal motion has been made and is being discussed by the commission.
Brooklyn Center Home Rule Charter Commission
Rules of Procedure Page 3
V. OFFICERS
At the annual meeting, the commission shall elect a Chairperson, Vice Chairperson,
and Secretary. These officers shall serve for a term of one year. A majority vote by
those commissioners present at the annual meeting is necessary to elect an officer.
Vacancies occurring in elective offices shall be filled by an election at the next j
regular meeting or at a special meeting, called by the ranking elected officer with 7
days prior written notice to the membership.
A. Chairperson shall
1. Be the acting official and representative of the commission
2. Be the presiding officer at meetings
3. Appoint committees
4. Call all regular and special meetings
5. Direct correspondence with Chief Judge of Hennepin County District
Court
6. Prepare annual report to district court, Chief Judge, and City Clerk
7. Appoint Audit Chairperson, Public Relations Chairperson, and
Rules /Parliamentarian
8. Ascertain yearly through the City Manager (after the legislative
session) as to any statute changes affecting the Charter Commission
9. Be a member of the Executive Committee
[Note: in other places in these Rules of Procedure, it is said that the
Chairperson may receive applications (or they may be sent to the Chief
Judge), notify Chief Judge of vacancy, receive written resignation,
receive notification of members impending absence from meeting,
(notification can be given to any member).]
B. Vice Chairperson shall
1. Preside over commission meetings and acts on behalf of the
Chairperson in the Chairperson's absence
2. Be a member of Executive Committee
[Note: in other places in these Rules of Procedure, it is said that the
Chairperson or Vice Chairperson shall submit written notification to the
Chief Judge of vacancy.]
C. Secretary shall
1. Be responsible for commission records, minutes, and correspondence
2. Be a member of Executive Committee
Brooklyn Center Home Rule Charter Commission
Rules of Procedure Page 4
l
VI. EXECUTIVE COMMITTEE
The Executive Committee shall consist of the Chairperson, Vice Chairperson,
Secretary, Audit Chairperson, and Public Relations Chairperson. The Executive
Committee shall approve the Annual Report and have the powers and functions as
are authorized by the commission.
A. Audit Chairperson
1. Reviews and approves all expenditures chargeable to the commission
2. Makes periodic reports on status of budget and calls for annual audit
report from Finance Director for presentation at annual meeting
3. Member of Executive Committee
B. Public Relations Chairperson
1. Has responsibility for all official public notices
2. Shall report all matters of public interest to the local press and shall
handle all public relations matters including items of recognition as
directed by the Chairperson
3. Has responsibility for publishing notice of pending commission
vacancies in official city newspaper
4. Member of Executive Committee
VII. OTHER COMMITTEES
A. Rules /Parliamentarian
1. Has responsibility to inform Chairperson and other commissioners of
the rules guiding Charter Commission actions.
2. Serves as Chairperson to any subcommittee named to review and /or
revise rules.
B. Nominating Committee
A three member nominating committee shall be appointed by the
Chairperson for the purpose of recommending candidates for election to
office at the annual meeting.
C. Study Committee
The Chairperson shall appoint study committees as necessary. Specific
goals and objectives shall be defined.
[Note: Re: CITY STAFF: In a memorandum from the City Clerk, March 17, 1997, it
said, to paraphrase, that the City Staff: Maintains permanent record of
agenda /minutes; Maintains and updates City Charter; Maintains and updates
member roster; Posts notice of vacancy on City bulletin board and Cable TV;
Answers questions about Charter and Charter Commission.]
Brooklyn Center Home Rule Charter Commission
Rules of Procedure Page 5
VIII. ANNUAL REPORTS
A. Amendments to the Charter may originate in any of the following sources:
1. The Charter Commission:
a. M.S. 410.12, Subd. 1 - Amendment by Commission Resolution
b. M.S. 410.12, Subd. 7 - Amendment by Commission
Recommendation
2. The City Council:
a. M.S. 410.12, Subd. 5 - Amendment by Council Ordinance to
Commission
b. M.S. 410.12, Subd. 6 - Amendment by Council Hearing to
Voters (4th Class Cities only)
3. The People:
a. M.S. 410.12, Subds. 1, 2, and 3 - Amendment by Petition of
Voters to Commission
B. Amendments originating with the Charter Commission:
1. Shall be accepted by the Charter Commission by a 2/3 affirmative
vote of the actual membership with never less than eight affirmative
votes.
2. May be forwarded to legal counsel for opinion within 10 days after
passage. Legal counsel shall be requested to return a written opinion
in time for presentation at a meeting of the Charter Commission within
60 days of passage. A 30 day extension may be requested by legal
counsel through the Chairperson. The Chairperson shall notify each
member in writing, within a reasonable period of time, of a granted
extension.
a. The Charter Commission shall meet within 60 days
subsequent to initial passage of an amendment.
b. If an extension is granted, the Chairperson shall reschedule
the meeting to be held within 90 days of initial passage.
3. Shall be forwarded to the City Council with a letter of transmittal
stating specifically whether it is a Recommended Amendment or an
Amendment Adopted by Commission Resolution.
a. Recommended Amendment - Upon recommendation of the
Charter Commission, the City Council may enact a Charter
amendment by ordinance. Such an ordinance, if enacted shall
be adopted by the Council by an affirmative vote of all its
members after a public hearing with two weeks published
notice. Such ordinance shall not become effective until 90
days after passage and publication. Within 60 days after
passage and publication, a petition requesting a referendum
on the ordinance may be filed by the voters with the City Clerk.
Such petition requires the signatures of two percent of the
total number of votes cast in the City at the last state general
election or 2,000, whichever is less. Only registered voters are
eligible to sign. (M.S. 410.12, Subd. 7)
Brooklyn Center Home Rule Charter Commission
Rules of Procedure Page 6
b. Amendment Adopted by Commission Resolution - When a
proposed amendment originating with the Charter Commission
and adopted by resolution is transmitted to the City Clerk, it
shall be presented by the City Clerk to the Council. The
amendment shall be submitted to the voters at the next
general election if within 6 months of the date of delivery and if
no general election is to occur within 6 months, at a special
election within 90 days. (M.S. 410.10, Subd. 1) the Council
must cause the amendment to be published once per week for
two successive weeks as a part of the notice of election. The
Council determines the wording of the ballot. (M.S. 410.112,
Subds. 1 and 4)
C. Amendments originating with the City Council: (M.S. 410.12, Subd. 5)
1. The City Council may propose a Charter Amendment to the voters by
ordinance. Any ordinance proposing such amendment shall be
submitted to the Charter Commission.
2. Within 60 days, the Charter Commission shall review the proposed
amendment but before the expiration of such period, the commission
may extend the time for review for an additional 90 days by filing with
the City Clerk its resolution determining that an additional time for
review is needed.
3. After reviewing the proposed amendment, the Charter Commission
shall approve or reject the proposed amendment or suggest a
substitute amendment. The Commission shall promptly notify the
Council of action taken. Note: The Council may submit its proposed
amendment to the people or the substitute amendment proposed by
the Charter Commission.
4. The amendment shall become effective only when approved by the
voters as provided in M.S. 410.12, Subd. 4.
D. Amendments proposed by the People (via petition): (M.S. 410.12, Subds. 1,
2, and 3)
1. The proposers of an amendment shall file all petition papers with the
Charter Commission for its approval as to form and substance. The
commission shall, within 10 days, return the same to the proposers
the amendment with such modifications as it may deem necessary in
order to comply with statutory requirements.
2. The petition must have a number of signatures equal to at least 5% of
the total votes cast as of the last previous state general election in the
City. Only registered voters are eligible to sign the petition.
Brooklyn Center Home Rule Charter Commission
Rules of Procedure Page 7
3. The Charter Commission may not alter the petitioned amendment but
shall forward the petition to the City Clerk, with a letter of transmittal,
recommending either:
a. A recommendation for amendment by ordinance under M.S.
410.12, Subd. 7
b. An amendment adopted by commission resolution (requires
submission to the voters)
C. No recommendation
Rules set forth in the State Statutes and used in these Rules of Procedure cannot be
changed by the commission.
Brooklyn Center Home Rule Charter Commission
Rules of Procedure Page 8
City of Brooklyn Center
CHARTER COMMISSION
Court Appointed
The Charter Commission reviews the existing charter, considers proposed changes and makes recommendations
to the City Council, and safeguards the concept of Home -Rule under the existing charter and Home Rule
provisions in the state statutes. Commissioners serve a four -year term. Chairperson and fourteen members.
[Minn. Stat. 13.601, Subd. 3(b) states that once an individual is appointed to a public body the following data are public: (1) the
residential address; (2) and either a telephone number or electronic mail address where the appointee can be reached, or both at the
request of the appointee.]
Stanley Leino Robert Marvin Eileen Oslund
Chair 2011 4711 Twin Lake Ave (29) Audit Chair 2011
7118 France Ave N (29) 763 -535 -5498 6000 Ewing Ave N (29)
763 - 234 -6137 marvin.r@comcast.net 763 -537 -2858
flyfinn7 cr msn.com 1/19/11- 1/18/15 10/30/01 - 1/25/14
3/13/97- 7/20/11
Harold Middleton Bee Yang
Gary Brown 5418 Oliver Ave N (30) 7224 Major Ave N (29)
Secretary 2011 763 -549 -5594 phone:
7012 Willow Lane N (30) hjannifer@comcast.net 1/19/11 - 1/18/15
763 -560 -6338 11/30/98 - 8/13/11
gary-julie-brown@comcast.net Mark Yelich
6/25/04- 6/28/12 Edward Nelson 6018 Beard Ave N (29)
Vice Chair 2011 763 - 486 -6001
Jill Dalton 5236 Great View Ave N (29) 1/19/11- 1/18/15
6417 Colfax Ave N (30) 763 -536 -8963
763 -566 -5410 1/6/05- 6/26/12
2/22/11 - 2/22/15 3 vacancies
Mary O'Connor
Gail Ebert 5429 Lyndale Ave N (30) Updated 4 112111
1613 Irving Lane N (30) 763 -561 -8038
763 -566 -6803 8/2/10 - 8/1/14
10/30/07- 10/9/11
Nathan Lackner
5300 Girard Ave N (30)
763 - 438 -0702
nathanlackner@gmail.com
1/19/11 - 1/18/15
STATE OF MINNESOTA
IN SUPREME COURT
A09-1894
Court of Appeals Meyer, J.
State of Minnesota, by its Commissioner of
Transportation,
Respondent,
vs. Filed: August 10, 2011
Office of Appellate Courts
Gary William Kettleson, et al.,
Respondents Below,
Richard Lepak,
Appellant.
________________________
Lori Swanson, Attorney General, Steven P. LaPierre, Assistant Attorney General,
St. Paul, Minnesota, for respondent.
Charles N. Nauen, David J. Zoll, Lockridge Grindal Nauen P.L.L.P., Minneapolis,
Minnesota, for appellant.
________________________
S Y L L A B U S
1. Nothing in the 2006 amendments to Minn. Stat. § 117.025, subd. 11
(2010), disturbs the long-standing principle of deference by the courts to the
Commissioner of Tr-making in condemning
private property to build highways.
2. The Commissioner of Transportation established a proper public purpose
that was landlocked as a consequence of reconstructing Highway 61.
Affirmed.
O P I N I O N
MEYER, Justice.
The issue in this case is whether a taking by the Minnesota Department of
highway access to a neighboring parcel constitutes a public use or purpose. The
court of appeals affirmed a condemnation order requested by the Commissioner of
Transportation for the improvement and widening of Highway 61 in Cook County.
Lepak contends that the State does not have a valid public purpose for the taking
because part of his land will be used to build a private road to mitigate damages to
a neighboring parcel. Because the purpose of the taking in this case meets the
117.025, subd. 11 (2010), we affirm.
The Commissioner of MnDOT proposed a $13.1 million transportation project to
improve and widen a 3.5-mile portion of Highway 61 in Cook County, Minnesota.
The project extends from approximately one mile south of the Onion River to
approximately one-half mile north of County Road 34. The project includes
through widening the shoulders and the addition of turn and bypass lanes,
improvements to a wayside rest, and the addition of a bike trail on the Lake
Superior side of Highway 61. Three parcels are involved in this disputeParcel
14, Parcel 15, and Parcel 16.
Parcel 15, an unimproved parcel of land adjacent to Highway 61 in Cook
County, is owned by Lepak. The portion of Parcel 15 involved in the proposed
taking consists of a 110-foot deep swath of land north of and immediately adjacent
to Highway 61 and totals 9,027 square feet. The total size
before any taking, is 104,544 square feet. The 75 feet of land closest to the
highway would be used as part of the reconstruction of the highway; the remaining
35 feet of land would be used to construct a new access road. Lepak is challenging
the taking of the 35 feet of land.
to Highway 61 and cause Parcel 14 to become landlocked. As a result, the
Commissioner dedicated a 35-foot wide portion of the fee taking from Parcel 15 to
build a new access road to the highway. According to the district court, the access
1
road needs to be built across all th
cannot be built on any other parcel.
Lepak, appearing through counsel at the condemnation hearing, objected to the
portion of the proposed taking from Parcel 15 that would be used to build the
access road, on the grounds that there was no public use or public purpose for the
taking. Lepak asserted that the taking from Parcel 15 was improper because it
14. Lepak argued that despite the
counsel claimed that Lepak
and his neighbors would bear responsibility for maintaining the access road. Lepak
introduced no evidence to support any of these claims.
Roberta Dwyer, a MnDOT engineer with 26 years of experience, testified on
behalf of the Commissioner that the taking from Parcel 15 was necessary to
provide an access road to Highway 61 for Parcels 14, 15, and 16. Dwyer testified
that the owners of Parcel 16 had already applied for a permit to connect to the
proposed access road. Dwyer also tes
steep grade, a curve in the road, and an obstructing turn lane into a wayside rest.
Dwyer testified that the taking was not for a private purpose. Rather, the taking
was reasonably necessary and convenient to serve the public purpose of widening
Highway 61. Dwyer was never asked whether Lepak and his neighbors would be
required to maintain the access road at their personal expense, whether the access
The district court concluded that improving and widening Highway 61 is
established that the access road is reasonably necessary to fulfill the public
purpose of improving Highway 61.
access road, in and of itself, has a public purpose. Instead, MnDOT need only
establish that the proposed access road is reasonably necessary to fulfill the public
established reasonable necessity, the district court rejected the challenge to the
proposed taking.
2
A divided court of appeals affirmed in an unpublished opinion. State ex rel.
, No. A09-1894, 2010 WL 2813456, at *1 (Minn.
public purpose for the highway project and showed that the taking was reasonably
Id. at *3. The dissent concluded that the
Id. at *4 (Ross, J.,
dissenting). Lepak filed a petition for further review on the issues of whether the
taking served a valid public use or public purpose in light of the statutory
definitions of those terms, and whether the taking was necessary to accomplish
that public use or public purpose. We granted review.
Eminent Domain Standards
Un
damaged for public use
Minn. Const. art. I, § 13. MnDOT is authorized by the Legislature to condemn
property to carry out constitutionally mandated goals. See Minn. Stat. § 161.20,
subd. 1 (2010). Article 14, section 2
trunk highway system which shall be constructed, improved and maintained as
hall carry out the
purchase, gift, or by eminent domain proceedings as provided by law, in fee or
such lesser estate as the [C]ommissioner deems necessary, all lands and properties
necessary . . . in laying out, constructing, maintaining, and improving the trunk
he
MnDOT acts on behalf of the Legislature, in which the sovereign power to
condemn private property is vested, to conduct the essential legislative function at
issue in this case. See State v. Voll, 155 Minn. 72, 76, 192 N.W. 188, 190 (1923).
and properties necessary . . . in laying out, constructing, maintaining, and
. Stat. § 161.20, subd. 2(a)(1) (2010).
In addition, when the reconstruction of a trunk highway closes off any other
highway or street, including a private road or entrance to the trunk highway,
fety and convenient
public travel, construct a road either within or outside the limits of the trunk
highway, connecting the closed-off highway, street, private road, or entrance with
o may
acquire land by eminent domain for this purpose. Id.
3
road constitutes a public use or purpose. See City of Duluth v. State, 390 N.W.2d
on definitions
argue that the taking of his land is not for a public use or purpose. See Act of May
19, 2006, ch. 214, § 2, 2006 Minn. Laws 195, 195-97 (codified at Minn. Stat. §
117.025 (2010)). In eminent domain cases arising before the 2006 amendments
Constitution. City of Duluth, 390 N.W.2d at 763. The 2006 amendments provide a
1.the possession, occupation, ownership, and enjoyment of the land by
the general public, or by public agencies;
(2) the creation or functioning of a public service corporation; or
(3) mitigation of a blighted area, remediation of an environmentally
contaminated area, reduction of abandoned property, or removal of a
public nuisance.
Minn. Stat. § 117.025, subd. 11(a). With limited exceptions not relevant here, all
inent domain in
accordance with the provisions of [chapter 117], including all procedures,
law, including other statutes. Minn. Stat. § 117.012, subd. 1 (2010).
The first step in condemnation cases is to determine whether a project has a
valid public purpose or public use. See, e.g., Itasca Cnty. v. Carpenter, 602
N.W.2d 887, 889 (Minn. App. 1999). The next step in the analysis is whether the
taking is reasonably necessary to further that public purpose. Lundell v. Coop.
, 707 N.W.2d 376, 380-81 (Minn. 2006). The details involved in road
construction are details relating to necessity that are subject to limited judicial
review. See Hous. & Redevelopment Auth. v. Minneapolis Metro. Co., 259 Minn.
1, 15-16, 104 N.W.2d 864, 874 (1960). This traditional two-step public purpose
and necessity analysis was left undisturbed by the 2006 statutory amendments.
Importantly, the Legislature did not create a new definition for necessity under the
definitional provisions of section 117.025. Therefore, we conclude that the 2006
amendments left intact the public purpose and necessity analysis and the definition
of necessity.
land to build the access road was authorized by the new, exclusive definitions of
public purpose under Minn. Stat. § 117.025, subd. 11, and whether the taking is
necessary to support the public purpose of improving and widening Highway 61.
4
Lepak asserts that (1) the 2006 amendments have reduced the amount of deference
this court gives to a condemning authority, (2) the access road in this case does not
district court erred in concluding that the taking was necessary to support a public
purpose.
I.
urt gives deference to the
legislative determination of public purpose and necessity of the condemning
Lundell, 707 N.W.2d at 381. The scope of judicial review of a
determination of public purpose by a condemning authority is very narrow. Id. at
380-
Id. at 381 (quoting Hous. & Redevelopment Auth., 259
Minn. at 15, 104 N.W.2d at 874). Decisions are manifestly arbitrary or
in law or under conditions which do not authorize or permit the exercise of the
City of Pipestone v. Halbersma, 294 N.W.2d 271, 273-74
(Minn. 1980) (quoting Hous. & Redevelopment Auth., 259 Minn. at 15, 104
N.W.2d at 874).
In this appeal, Lepak argued that case law relating to eminent domain, such as
Lundell and City of Duluth, no longer applies because those cases were decided
under the prior, broader definitions of public use and public purpose. The court of
Kettleson, 2010 WL
required to apply the statutory definition of public use and public purpose in the
s not
shown that these earlier cases are not good law that instruct our analysis and
Id. at *2.
We agree with the court of appeals that the 2006 changes have not affected
the broad deference we give to the condemning authority. Id. at *1. MnDOT has
been specifically authorized by the Legislature to condemn property directly on its
behalf under Minn. Stat. § 161.20, subd. 1. The amendments do not change the
nature of the governmental action, which remains legislative. When we read
section 161.20, subdivision 1, and section 117.025, subdivision 11, together, we
conclude that MnDOT has authority to condemn property directly, and that
authority must be exercised for the public use or public purpose set out in section
117.025. Nothing in Minn. Stat. § 117.025, subd. 11, disturbs the long-standing
-
making in condemning private property to build highways. The judiciary
maintains its traditional role to ens
discretionary power rather than an arbitrary or discriminatory exercise of the
legislative prerogatives, particularly where such enactments destroy valuable
property rights of citizens guaranteed protection under the due process and equal
Pearce v. Village of
Edina, 263 Minn. 553, 571, 118 N.W.2d 659, 671 (1962).
II.
condemning the land fits within any of the statutory definitions of public use or
purpose. Lepak claims that the purpose of the taking of the specific property at
eparated from the public purpose of the highway
that MnDOT must establish a public purpose for each individual aspect of the
missioner asserts, this court
asks whether a project taken as a whole has a valid public purpose or public use.
5.16 (2010). A statute
Am. Family Ins. Grp. v. Schroedl,
this court may consider, among other things, the object to be obtained by the law,
Minn. Stat. § 645.16; In re 2010 Gubernatorial Election, 793 N.W.2d 256, 261
(Minn. 2010).
Under the new statutory definition for taking, public use and public purpose means
that the access road at issue in this case falls squarely within the meaning of
subdivision 11(a)(1), and thus we need not decide whether the project must be
viewed as a whole or whether each individual aspect of the project must be
examined for a public purpose.
First, MnDOT is a public agency charged with the development,
implementation, administration, consolidation, and coordination of state
transportation policies, plans, and programs. Minn. Stat. § 174.01 (2010). The
improvement of Highway 61 is without question a transportation plan with the
over-arching purpose of providing a public benefit.
Second, the petition seeks an order from the district court transferring title
occupation, ownership, and enjoyment of the land by the general public, or by
Third, the evidence at the hearing demonstrates that the enjoyment of the access
road is established to be for the general public. The access road unquestionably
lies within the limits of the public right-of-way. The road provides abutting
owners of three separate parcels with a means of access to Highway 61. The
record contains no evidence to suggest that members of the public are not free to
drive upon the access road. No evidence establishes that the owners of the three
separate parcels have any obligation to maintain the access road. While no single
fact is controlling, we conclude, on the record before us, that MnDOT has
demonstrated a proper public purpose for the taking.
Our decision is limited to the facts of this case. We do not decide whether the new
definition of public purpose has invalidated the statutory provisions that allow the
closed off by the highway project. See Minn. Stat. § 160.18, subd. 2 (2010)
(requiring road authorities reconstructing
approaches thereto within the limits of the right-of-way where the approaches are
reasonably necessary and practicable, so as to provide abutting owners a
161.24, subd. 4
(providing that when the reconstruction of a highway closes off a private road,
-off private
road to the highway). Additionally, we do not decide whether land may be taken to
build a pri
III.
Having determined that MnDOT has demonstrated a proper public purpose for the
taking under Minn. Stat. § 117.025, subd. 11, we next consider whether MnDOT
has satisfied its burden of demonstrating that the proposed taking is necessary to
accomplish that public use or purpose. More narrowly, we consider whether the
taking was reasonably necessary or convenient for the furtherance of its purpose.
Lundell, 707 N.W.2d at 381. In cases arising before the 2006 amendments, we
posed taking is reasonably necessary or convenient for the furtherance of a
City of Duluth, 390 N.W.2d at 764-65 (quoting Halbersma, 294
N.W.2d at 274); accord Lundell, 707 N.W.2d at 381. The court of appeals
correctly applied this standard. Kettleson, 2010 WL 2813456, at *3. On appeal,
court of appeals concluded that there was no evidentiary support for the alternative
routes. Id. at *4. Further, the court concluded that Lepak had not shown that
and capricious. Id. at *3. We agree with the court of appeals. On the record before
us, we cannot conclude that the district court erred in concluding that the taking
was reasonably necessary to further a valid public purpose.
Affirmed.
1The State also initiated a taking of a temporary easement north of and
immediately adjacent to the permanent fee taking. The taking of this temporary
easement, as well as the portion of the permanent fee taking not designated for the
access road, are not challenged here.
2
objection to the taking. The court of appeals remanded the case with instructions
to The district
we discourage. See C.O. v. Doe, 757 N.W.2d 343, 347 n.4 (Minn. 2008).
3
connect the closed-off private road with the remaining portion of the private road
or with anoth
necessary for connecting a highway, street, private road, or entrance to another
public highway or for connecting a closed-off private road to the remaining
portion of a private road or to anot
4
definition of
Minnesota Constitution and whether that would make a difference.
14