Minnesota Cities Magazine

From the Bench: Different Rules for Different Pools—Can the City Do That?

Equal protection claim
The city adopted an ordinance in 1989 that requires all swimming pools to be enclosed by a safety fence. Three property owners sued the city, claiming that the ordinance violates their poolequal protection rights by treating them differently from homeowners with swimming pools constructed before the 1989 ordinance, and that the ordinance was arbitrary and capricious. The district court and the Minnesota Court of Appeals ruled in the city’s favor and upheld the ordinance.

The Court of Appeals reasoned that the three property owners were not similarly situated with property owners that had built swimming pools before the 1989 ordinance because the three property owners had all been issued construction permits that expressly required their swimming pools to comply with all city ordinances, including the fencing requirements. The Court of Appeals noted that the practice of grandfathering non-conforming properties has been upheld in the face of equal protection challenges since at least 1914. The Court of Appeals also concluded that the city’s ordinance was not arbitrary and capricious because it was directly related to promoting the city’s legitimate purpose of preventing trespassing children from gaining access to swimming pools. Frandsen v. City of North Oaks, No. A12-1468 (Minn. Ct. App. Feb. 19, 2013) (unpublished decision).

Funeral picketing
The Phelps-Ropers picket at funerals to express their religious beliefs that God punishes the United States for tolerating homosexuality by the deaths of its citizens. The city adopted an ordinance that sets certain time and place restrictions in connection with funerals and burials, including the requirement that picketing and other protest activities are barred within 300 feet of any funeral or burial site during or within one hour before or one hour after the conducting of a funeral or burial service. The ordinance defines “other protest activities” as “any action that is disruptive or undertaken to disrupt or disturb a funeral or burial service.” The Phelps-Ropers sued, claiming that the ordinance was unconstitutional. The 8th U.S. Circuit Court of Appeals upheld the ordinance, concluding that it is a content-neutral regulation of the time, place, and manner of speech, which is consistent with the First Amendment. Phelps-Roper v. City of Manchester, MO, 697 F.3d 678 (8th Cir. 2012).

Takings claim
The Arkansas Game and Fish Commission owns 23,000 acres of land designated for a wildlife and hunting preserve. Upstream 115 miles, the U.S. Army Corps of Engineers operates the Clearwater Dam. Each year between 1993 and 2000, the Corps deviated from its standard release of water from the dam. These deviations caused significantly more flooding in the commission’s preserve during the tree-growing seasons.

The commission sued, claiming that the flooding caused by the deviations resulted in a taking under the Fifth Amendment to the U.S. Constitution. The U.S. Court of Federal Claims agreed, finding that six consecutive years of abnormal flooding resulted in “catastrophic mortality” of timber, and awarded the commission $5.7 million in compensation. The U.S. Court of Appeals for the Federal Circuit reversed. While recognizing that temporary government action may sometimes be a taking under the Fifth Amendment, it concluded that government-induced flooding is different under Supreme Court precedent, and can only be a taking in cases of permanent or inevitably recurring flooding.

The U.S. Supreme Court reversed and declined to adopt a blanket exception to the takings clause for temporary flooding. Instead, the Supreme Court recognized that government- induced flooding and temporary government action could give rise to a taking under certain circumstances, and remanded the case to the Federal Circuit to determine whether a taking had occurred. Arkansas Game and Fish Comm’n v. United States, 133 S. Ct. 511 (2012).

Minimum Compensation Statute
The city used its eminent domain power to take commercial property that the Crandalls were purchasing under a contract for deed. The Minimum Compensation Statute provides that when an “owner” of property must relocate because of a governmental exercise of eminent domain power, the governmental entity must pay damages that, at a minimum, are “sufficient for an owner to purchase a comparable property in the community.” The district court awarded the Crandalls damages of $198,000, reasoning that a contract-for-deed purchaser is an “owner” under the Minimum Compensation Statute. The Minnesota Court of Appeals reversed and ruled in the city’s favor, holding that a contract-for-deed purchaser is not a “fee title holder” and, therefore, is not an “owner” entitled to compensation under the Minimum Compensation Statute. City of Cloquet v. Crandall, 824 N.W.2d 648 (Minn. Ct. App. 2012).

Attorney fees
Hellervik, LLC, agreed to pay its attorney on a contingent-fee basis in an eminent domain proceeding initiated by the Minnesota Department of Transportation (MnDOT). Specifically, Hellervik agreed to pay its attorney 40 percent of any award it received that was greater than the last offer made by MnDOT. State law requires condemning authorities to pay a Gavellandowner “reasonable attorney fees” in an eminent domain action if the final judgment or award for damages is more than 40 percent greater than the last written offer of compensation made by the condemning authority before it filed a condemnation petition. Hellervik received an award of $3,475,000, which was $1,290,000 greater than MnDOT’s last offer. According to the contingent- fee agreement, Hellervik owed its attorney $516,000. The district court ordered MnDOT to pay Hellervik $430,000 in attorney fees. The district court considered a variety of factors, including Hellervik’s contingent-fee agreement, in determining what amount of attorney fees was reasonable.

MnDOT appealed, arguing that the district court abused its discretion by failing to calculate attorney fees using the lodestar method, in which the hours reasonably expended by an attorney in an action are multiplied by a reasonable hourly rate. The Minnesota Court of Appeals affirmed the district court’s award of attorney fees, reasoning that courts are not required to use the lodestar method of calculating attorney fees in a condemnation case, and that the district court did not abuse its discretion when it considered the pre-existing contingent-fee arrangement as one factor in its determination of reasonable attorney fees. State v. Hellervik, LLC, No. A12-0961 (Minn. Ct. App. Jan. 14, 2013) (unpublished decision).

Statutory immunity
Besser sued the city in conciliation court, arguing that the city’s negligence caused a water main break that damaged her driveway, and that it failed to respond to the break in a reasonable period of time. After the conciliation court awarded Besser $7,500 in damages, the city removed the case to district court and moved for summary judgment, arguing that it was entitled to statutory discretionary immunity regarding its decision not to replace the water main near Besser’s home. The district court held that the city was entitled to statutory discretionary immunity on Besser’s claim that the city’s negligent maintenance of its water main system caused the water main break, but denied the city’s motion for summary judgment on the claim that the city was negligent in responding to the break. The Minnesota Court of Appeals affirmed the district court’s rulings on these issues, reasoning that the city made a discretionary, planning- level decision when it determined whether and when to replace its water mains, and that the city had a policy for water main replacement and repair in which it rebuilt the oldest water mains first. Besser v. City of Chanhassen, No. A12-0687 (Minn. Ct. App. Feb. 11, 2013) (unpublished decision).

Official immunity
A county sheriff deputy heard a dispatch for assistance in response to a home security system alarm, indicating a possible home invasion. The deputy activated his emergency lights and siren and headed toward the address of the alarm. A subsequent dispatch reported the location of the home invasion suspects. As the deputy approached an intersection, he observed that six cars had pulled over, and he believed the intersection was clear of all other traffic. The deputy left his emergency lights on, but turned off his siren because he was nearing the suspects’ reported location and did not want to alert them. On entering the intersection, the deputy observed Vassallo’s white vehicle traveling on the intersecting street for the first time. The deputy immediately applied his brakes and veered left, but could not avoid colliding with Vassallo’s vehicle. Vassallo sued, claiming in part that the deputy was not entitled to official immunity because his driving violated provisions in statute and department policy. The district court granted summary judgment in the deputy’s and the county’s favor based on official immunity and vicarious official immunity. The Minnesota Court of Appeals reversed the district court’s decision to grant the deputy and the county immunity, concluding that there was a fact question regarding whether the deputy proceeded cautiously and with due regard for the safety of others when he entered the intersection, as required by statute and department policy. As a result, the Court of Appeals remanded the case to the district court for trial on this fact issue. Vassallo v. Majeski, No. A12-0859 (Minn. Ct. App. Feb. 4, 2013) (unpublished decision).

Written by Susan Naughton, research attorney with the League of Minnesota Cities.
Contact: snaughto@lmc.org or (651) 281-1232.

Read the May-June 2013 issue of Minnesota Cities magazine

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