Court of Appeals 07.13.10

with assistance from Caitlin Cragg

The Court released an opinion in Hebert v. City of Fifty Lakes on Tuesday, marking the second time the case has come up for appellate review.  It also for now marks the second round of the City winning the case on motions in District Court and then losing in appellate court.  The key facts: the properties at issue here were registered as Torrens properties in 1953; the City platted a 66-foot roadway abutting the properties in 1954; the road was rebuilt in 1971, but the rebuilders went about 30 to 50 feet outside of the platted right-of-way onto these Torrens properties.  The current owners of the properties sued in 2005 for a declaration that the road encroached on their properties and seeking money damages for the trespass.

Last round, the Supreme Court ultimately held that the public use and maintenance of a road was not a “de facto” taking that limiting affected landowners to a 15-year statute of limitations (which would have run in 1969 or 1986, depending on the stretch of road complained about).  This week, the Court of Appeals pushes further, holding that the “user statute” – which allows cities and towns to own roadways after 6 years of continuous use and maintenance as a public highway – is a form of adverse possession, and therefore is not effective against registered (Torrens) property.  For all of my complaints about judicial opinion-writing lately, the analysis in this one is superb.  It would have been easy enough, and maybe sufficient, to parse some language and conclude, “that looks like adverse possession.”  Instead, Judge Worke reaches back over 100 years to tie together the major decisions interpreting the user statute, demonstrating that the Court’s conclusion is in line with the consistent interpretation of this statute over many years.  The immediate result of this holding is that Fifty Lakes has no title to the “off-course” portion of this road; the City must start eminent-domain proceedings to acquire the right-of-way.  The case is remanded back to District Court, but given the stakes, it seems a given that this will go to the Supreme Court before the City backs down on its claim to title.

Also released this week is the opinion in Zweber v. Scott County, in which the Court sends a subdivision plat back to Scott County with an order to approve the plat.  The County denied the subdivision for perceived failure to meet “interconnectivity” standards for the proposed street network.  On first read, this had potential to be a very disturbing case – requiring streets that connect and doing away with cul-de-sacs is a major part of current land-use planning.  While I think this opinion is a little ridiculous in phrasing its objection (“the ordinance doesn’t specify how many connections are needed to be “interconnected”), the basic problem is that the ordinance fails to define what “interconnected” means in this context.  If a halfway-reasonable definition had been provided, the outcome may have been different.    While ordinance definitions occasionally seem like overkill (and sometimes are), there are still many places where the local ordinance definition completely determines the outcome of a case – accessory uses are a good example.  End result: this subdivision gets approved, and Scott County gets to work on an amendment to fix this hole in its ordinance.

Advertisements

Variance Law Clarified By Supreme Court

The Court released its opinion in Krummenacher v. Minnetonka, which now turns out to be a landmark opinion on land-use variances, rather than a case about nonconforming uses.  Chief Justice Gildea wrote the unanimous opinion. 

The fireworks start on page 11, when J. Gildea picks up the meaning of the phrase, “the property in question cannot be put to reasonable use if used under conditions allowed by official controls.”  Background: for at least the past 20 years, cities (and for that matter, courts) have taken that phrase to mean that the proposed use is reasonable but blocked by the zoning code.  Short of something truly nutty, this is always the case, and the analysis moves on to whether the problem is or is not the landowner’s fault, or whether the proposal will “alter the character” of the area.  The City of Minnetonka analyzed the request along these lines, and the Court of Appeals approved.

The Supreme Court, on the other hand, decides that “put to reasonable use” is a very tough standard, one that should only be met when absolutely necessary to avoid a regulatory taking.  Justice Gildea eventually gets around to a fairly compelling justification for this holding: comparing “undue hardship” as it’s been understood to operate with our precedent on “practical difficulties,” which is supposed to be a more lenient standard.  Using the prevailing interpretation of “reasonable use,” she demonstrates that “undue hardship” has somehow become the easier standard to meet, and concludes that this cannot stand with the prior Supreme Court decisions on “practical difficulties” (the “undue hardship” cases have to this point been Court of Appeals decisions). 

I say, “eventually,” because for some reason the opinion tries to insist that the “plain language of the statute” requires a different finding.  Justice Gildea accuses the Court of Appeals of “rewriting the statute” (something that must be set as an AutoComplete phrase for her at this point) for following conventional wisdom and past precedent in the matter.  The “plain language” argument is horribly misplaced here.  The near quarter-century of contrary interpretation (without much controversy, either) is one fact that, at the very least, should destroy any notion that the language is “unambiguous.”  More troublesome, though, is that in decreeing a “plain meaning” for the statute, Justice Gildea herself rewrites the statute.  The statute reads: “put to reasonable use.”  The City, following conventional wisdom and precedent, applies the phrase as “put to a reasonable use.”  The challenger here insists that it should be “put to any reasonable use.”  That’s the whole debate – which modifier should be plugged in between “to” and “reasonable” to apply the statute to some facts?  You can, and Justice Gildea does, make a compelling contextual argument that “put to any reasonable use” is the right answer, but to insist that your conclusion is the “plain meaning of the statute” in this situation is just wrong.  If this is “strict constructionism,” then strict constructionism has no meaning.  We have settled methods for interpreting statutes, and they should be used when there is ambiguity, instead of doing partial analysis and then propping that up by declaring “plain meaning.”

So this case now goes back to Minnetonka for review under the variance standards as declared by the Court.  My question at the outset, and especially now, is: why did this get here?  Why is this application (to expand a non-conforming garage) going through variance?  As the Court made clear in the first half of its opinion, cities have the power to allow the expansion of nonconforming uses.  Moreover, cities can use any critieria they like in deciding whether to approve such an expansion – the sole requirement is to pass an ordinance allowing expansion, and describing how such permission can be obtained.  Minnetonka chose to use its variance procedure to consider these requests.  However, there is absolutely no reason that this must be tied to a variance procedure; to me, using variance considerations here make no sense.    The property is already nonconforming, thus is already at variance with the terms of the zoning code.  So from what, exactly, is the expansion request varying?  Under this Krummenacher decision, variance is now just an escape hatch used to avoid regulatory taking – which is exactly what nonconforming use doctrine is in the first place. 

My thought is that Minnetonka can moot this case, or at least make its life much easier at the re-consideration, by amending its ordinance to provide for a separate procedure to consider expansion of a nonconforming use or building.

Another Appellate Loss for DNR

By Daniel J. Cragg

The Court of Appeals held on Tuesday in Swenson v. Holstein that Minnesota’s game and fish laws do not preclude the carcasses of wild animals that die naturally from becoming private property, delivering yet another appellate court loss to the DNR.

In his complaint, the plaintiff alleged that he found a dead bear on his property, which he then took to a taxidermist.  The plaintiff gave notice to the DNR of the find, and the DNR then seized the carcass without any judicial process.  The plaintiff made claims against DNR officials in their individual and official capacities, sought a declaratory judgment that he owns the carcass, and for conversion (damages for the value of the carcass), replevin (an order directing the return of the carcass to the plaintiff), due process violations under 42 U.S. C. § 1983, and a Fifth Amendment Takings claim.

The Court of Appeals reached its conclusion on statutory construction grounds, reasoning that the game and fish laws only apply to “wild animals,” and the term “wild animals” is defined as “all living creatures…”.  Since a bear carcass is not a living creature, it was not covered by the game and fish statute, and under common law principles, a private person could perfect ownership by taking possession of such a carcass.

The Court of Appeals reversed and remanded the case back to the District Court.  The plaintiff must still prove that the bear died of natural causes in order to win his case.

Victory for Property Rights at U.S. Supreme Court?

By Daniel J. Cragg

Last week, the U.S. Supreme Court handed a loss to beach front property owners in Florida, but the Court’s conservative wing’s plurality opinion from Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection may portend increased involvement of the Federal courts in the protection of state law created property rights.  Although the case was a loss for the property owners involved, it represents a victory for property owners in general.

At issue in the case was whether a judicial decision could ever amount to a taking of private property without just compensation, within the meaning of the Fifth Amendment to the U.S. Constitution, which is incorporated against the States by the Fourteenth Amendment.  Justices Scalia, Alito, Thomas and the Chief Justice all answered this question in the affirmative, and, in an opinion written by Justice Scalia, held “the Takings Clause bars the State from taking private property without paying for it, no matter which branch is the instrument of the taking.”

Justice Kennedy, joined by Justice Sotomayor, did not believe that Fifth Amendment Takings analysis should apply to judicial decisions, but instead would resolve such issues under due process principles.  Justice Breyer, joined by Justice Ginsberg, demurred entirely from the question of judicial takings under both takings and due process analyses, yet he still held that the Florida Supreme Court did not take the petitioner’s property.  How he arrived at that conclusion without knowing how to analyze the issue is a bit of a mystery.  Justice Stevens took no part in the decision.

In the majority portions of the Court’s opinion written by Justice Scalia, all eight Justices held that there was no taking in the case because the Florida Supreme Court’s decision did not eliminate an established property right, meaning the Florida Supreme Court’s decision was consistent with its prior cases defining the nature and scope of the property rights at issue.  This “established rights” test was explicated by Justice Scalia’s plurality opinion, which four Justices supposedly rejected.  Like most fractured Supreme Court opinions, Stop the Beach Renourishment, Inc., is a grab bag of analytical tests and principles that litigants from every side of the argument will cite to until further clarification is received from the courts.

To those familiar with so-called “inverse condemnation” claims, where a property owner claims government action has worked an indirect taking of his property and seeks a court order requiring the government to purchase the property, the Scalia plurality opinion’s dicta on procedural issues may seem puzzling, as he indicated that the inverse condemnation remedy would not apply to so-called judicial takings of property.  Rather, the remedy would be reversal of the judgment that worked the taking, and all non-parties affected by the ruling would be able to pursue claims in federal court, “to the same extent that [they] would be able to challenge…a legislative or executive taking previously approved by a state supreme-court opinion.”

It is not clear that there is any “extent” to which an aggrieved property owner could pursue a Takings claim in Federal court, because the lower Federal courts have uniformly held that no Federal right is violated by the mere taking of private property, but rather only by the failure to pay compensation for the taking.  Furthermore, the Federal courts generally require an aggrieved property owner to pursue a claim for inverse condemnation in State court to determine whether just compensation should be paid and in what amount, before the State has been deemed to have failed to pay just compensation in violation of the Fifth Amendment.

Inverse condemnation suits result in a final State court judgment, and, under the Rooker-Feldman doctrine, which Justice Scalia acknowledged, the lower Federal courts are prohibited from reviewing – essentially acting as an appellate court – the final judgments of State courts.  In States that recognize inverse condemnation or a similar remedy, this prevents Fifth Amendment Takings cases from ever being heard in a Federal court other than the Supreme Court.

Even assuming a majority of the Supreme Court recognizes (or recognized) the concept of a judicial taking, it remains an open question as to what the remedy will be for all affected property owners.

Court of Appeals Clarifies Forfeiture Procedure

By Daniel J. Cragg

The Court of Appeals today in Mycka v. 2003 GMC Envoy, held that a seizure of a vehicle that occurred after a DWI suspect was released from jail and had rightfully reestablished possession of the vehicle was not “incident to a lawful arrest,” and therefore, the seizure was unlawful under Minn. Stat. § 169A.63, subd. 2.  The Court of Appeals reversed the District Court’s order of forfeiture outright without any remand.  Since the language of the DWI forfeiture statute regarding seizure is identical to the controlled substances forfeiture statute, see Minn. Stat. § 609.531, subd. 4, this holding will likely affect those proceedings as well.

The result was reached largely on statutory construction grounds and would seem relatively unremarkable, however, it has become fairly commonplace in some cities and counties for law enforcement to not seize a vehicle subject to forfeiture under Minn. Stat. § 169A.63 until after the criminal proceedings have concluded.  In such a case, it is now clear that the prosecuting authority must commence a judicial action for forfeiture and obtain either a writ of attachment or arrest warrant for the property subject to forfeiture.

The most remarkable part of the Court of Appeals analysis is a footnote that noted that the language of the statute is similar to phrases used in Fourth Amendment jurisprudence, including the phrase “incident to a lawful arrest,” but the Court found Fourth Amendment case law had “limited value” because it dealt with unlawful searches.  The Court did note that the Fourth Amendment prohibits “unreasonable searches and seizures,” before finding the related case law inapplicable.  (Emphasis added).

Practitioner’s pointer: Minn. Stat. § 570, et seq., on the subject of attachment, is only applicable to actions for the recovery of money, both in personam and quasi-in-rem, and certain actions brought by the Attorney-General.  A writ of attachment or arrest warrant for a true in rem action, such as a forfeiture proceeding, flows from the District Court’s authority under Minn. Stat. § 484.03 to issue, “all other writs, processes, and orders necessary to the complete exercise of the jurisdiction vested in [the District Court] by law…”

Selected Legislative Updates

by Andrew Haugen

103F.351: St. Croix Wild and Scenic River Act

 Minn. Stat. 103F.351 is also referred to as the Lower St. Croix and Scenic River Act. This Act protects the Lower St. Croix River Area by establishing certain planning criteria and processes that must be followed within the designated area. The act allows for a Commissioner of Natural Resources to aid in developing a comprehensive master plan for the area, as well as adopt rules that establish certain guidelines for zoning activities within the region.

 The amendment to the Act in the 2010 regular session did not delete or change any current language in the Act. The changes served to add a section “d” in subdivision 4, the Rules portion of the Act. The newly added section “d” allows for commercial, nature-oriented and educational uses that occur in rural districts to be classified as conditional uses on property that meets certain criteria. The language is permissive in that the uses “may be allowed,” and makes no requirement that such lands shall be conditional uses.

 Eligibility requirements include that the use must be located in a rural district as defined by the rest of the Act, that the property was in similar use on May 1, 1974 and on January 1, 2010, and if the use “complies with all dimensional standards in the rules, including variance requirements for any changes to the properties” made after January 1, 2010 and also if the use is “similar in scope” to the use that existed on the property on May 1, 1974.

 118A.05: Deposit and Investment of Local Public Funds: Contracts and Agreements

The amendment to subdivision three of this section allows for securities lending agreements to be entered into with qualifying institutions as long as said institution has a bank office locate in Minnesota. This bank office language replaces the requirement that a qualifying institution have “its principal executive office” in Minnesota.

118A.06: Deposit and Investment of Local Public Funds: Safekeeping; Acknowledgements

The substantive changes in this section act to spell out the various requirements that must be met in order to qualify as a security broker-dealer that may hold investments, contracts or agreements for safekeeping.

The three requirements, which are inclusive, state that the broker-dealer must be registered under Chapter 80A or exempt from registration requirements, that it must be regulated by the SEC, and (in what is the most substantial addition) it “maintain insurance through the Securities Investor Protection Corporation or excess insurance coverage in an amount equal to or greater than the value of the securities held.”

471.59: Joint Exercise of Powers

Amendments to this statute acted to add federally recognized Indian tribe and the Minnesota Historical Society to the list of government units that may, by agreement entered into through action of their governing bodies, participate in joint powers agreements.

The other governmental units already authorized to enter into such agreements include every city, county, town, school district, independent nonprofit firefighting corporation, other political subdivision of Minnesota or another state, another state as a whole, the University of Minnesota and a few other hospital and employment related sectors.

44.01: Municipal Civil Service: Peace Officer

A definition of a “peace officer” was added to section 1 of chapter 44 as subdivision 8(a).

44.10: Municipal Civil Service: Probationary Period

Section 10 amended the probationary period for a peace officer from a length of six months out to twelve months. The amendments were made effective to any peace officer hired under chapter 44 on or after the effective date of the amendments.

412.02: City Elections, Officers, Terms, Vacancies

Amendments added subdivision 1a to this section. The new subdivision states that neither the mayor nor any city council member may be employed by the city. Employed, as defined, means full-time permanent employment under the given city’s employment policy, and the amendment is to take effect August 1, 2010.

326B.121: State Building Code; Application and Enforcement: Municipal Enforcement

Amendments made during the 2010 regular session specifically apply to municipal enforcement of the state building code. The changes allow for a municipality to enact or enforce ordinances that require existing components or systems of any structure to be maintained in a safe and sanitary condition or in good repair. The municipality is limited, however, as it cannot demand standards exceeding those under which the structure was built, reconstructed or altered unless retroactive provisions have been adopted in the State Building Code. 

Amendments to MGDPA

On May 18, Governor Pawlenty signed into law a bill relating to data practices and data classifications. Although not imposing sweeping reforms, the law does contain some noteworthy changes. For example, the bill expanded what types of personnel data are classified as public, including classifying the “terms and conditions of employment relationship” as public data under § 13.43, subd. 2(a)(1); and also classifying “work-related continuing education” as public data in 13.43, subd. 2(a)(7).

More significantly, however, the Legislature reworked a subdivision that will undoubtedly impact public sector labor law. Minn. Stat. § 13.43, subd. 2(b) was amended so that disciplinary action will be not public data if an arbitrator sustains a grievance and reverses all aspects of the disciplinary action. Prior to the amendment, if a disciplinary grievance proceeded to arbitration under a collective bargaining agreement, the final disposition of the grievance, the specific reasons for the disciplinary action, and the data documenting the basis of the discipline were classified as “public data”—even if the grievance was ultimately sustained and the discipline reversed by the arbitrator. With the new amendment, however, if a grievance is sustained and all aspects of the discipline are reversed, then the disposition, the documentation, and the reasons for the disciplinary action are classified as “not public data.” This seems to bring the practical effect of the statute more in tune with its intent. A successful grievant need no longer be concerned that the “facts” giving rise to the disciplinary action will be disseminated to the public. It should be interesting, however, to see how parties interpret the phrase “all aspects of any disciplinary action.” For instance, if an arbitrator reverses a discharge but imposes a suspension, is that a reversal of “all aspects” of the disciplinary action? Perhaps more interesting (read, nuanced), if an arbitrator reverses a discharge and reinstates the employee but does not award backpay, is that a reversal of “all aspects” of discipline?

There were two other interesting amendments tucked into the bill. First, an amendment which classifies the “security features of building plans, building specifications, and building drawings of state-owned facilities and nonstate-owned facilities leased by the state” as “nonpublic data.” Second, parole and county probation authorities have been given access to firearms data (i.e. purchase/transfer documentation and applications for permits to purchase or carry) on individuals subject to their supervision.

Last, the procedure for a responsible government authority to seek permission to temporarily classify data as private or confidential (with respect to data on individuals), or nonpublic or protected nonpublic (with respect to data not on individuals) was amended. Most notably, an application may be withdrawn prior to the commissioner’s decision unless it affects similar government entities. The amended law also permits the responsible authority to request approval for a new or different use or dissemination of the data during the period of temporary classification.