Minnesota Cities Magazine
More from Jul-Aug 2016 issue

From the Bench: Property Condemnation—Is That Really Necessary?

sketch of a highway roundaboutLAND USE
Eminent domain
The Minnesota Department of Transportation (MnDOT) in 2014 filed a quick-take condemnation petition to take property owned by the Magellen Pipeline Company for a safety-improvement project to construct a roundabout at the intersection of state Highways 14 and 42. MnDOT sought to obtain title to the property in fee simple absolute (the highest form of ownership interest in property) even though it already had an existing highway easement over much of the property. (Highway easement is the right to use the property for highway purposes without possessing an ownership interest in it.) The district court granted the condemnation petition. Magellan appealed, claiming that MnDOT failed to meet its burden to show that the proposed taking was necessary because it already possessed easements over most of the property it sought to condemn.

At the condemnation hearing, MnDOT’s engineer testified that MnDOT wanted title in Magellen’s property in fee simple absolute in order to “clean … up” the project area and because it is MnDOT’s current standard to seek title in fee simple absolute in cases such as this. The Minnesota Court of Appeals reversed and remanded the case to district court, holding that MnDOT had not presented sufficient evidence regarding the extent of highway access control necessary for the proposed roundabout, or regarding what portion of Magellan’s land adjacent to the proposed roundabout is sufficient to satisfy that objective. The Court of Appeals also noted that the condemnation order lacked necessary findings and evidence of independent decision- making. State v. Reiland, No. A15-0893 (Minn. Ct. App. Feb. 1, 2016) (unpublished opinion).

Public union fees
Nine California public school teachers, including Rebecca Friedrichs, sued several local unions, the National Education Association, and the California Teachers Association. The teachers claimed the requirement that they, as non-union workers, must pay an “agency fee” or “fair share fee” to public unions for expenses related to collective bargaining violates their First Amendment rights. The U.S. District Court entered judgment in favor of the unions. The 9th U.S. Circuit Court of Appeals ruled in favor of the unions and held that, under existing Supreme Court precedent, the First Amendment allows states to require public employees to contribute money to public unions for collective bargaining expenses. The 9th Circuit also held that the First Amendment does not permit states to require contributions to other union expenses, but that states may arrange for such contribution to occur automatically unless an objecting employee affirmatively opts out. The U.S. Supreme Court, in a 4-4 decision, issued a non-precedential, one-sentence decision affirming the 9th Circuit’s decision. Friedrichs v. California Teachers Ass’n, 136 S.Ct. 1083 (2016).

Personnel data
Kristina Powers has a history of suing the Wabasha-Kellogg Independent School District and its officials. Powers sent a letter to the school superintendent’s attorney requesting all government data relating to an investigation into the superintendent’s alleged wrongdoing from 2008 to 2009 and to any complaints or charges made in her name against the school district or its employees. Powers claimed that an unknown person had impersonated her and had sent emails to school district officials and employees making complaints of wrongdoing. The school district responded that the data related to the investigation are “private personnel data” that are protected under the Minnesota Government Data Practices Act (MGDPA) and that the allegations had been “fully investigated” by the school district and that “no disciplinary action was taken.” Powers sued the superintendent and the school district, claiming that they had violated the MGDPA by refusing to turn over the emails authored in her name. The district court granted the superintendent and school district’s motion to dismiss, ruling that Powers was not entitled to access the data. Powers appealed, claiming that she should have been granted access to the emails in her name because she is the complainant and is authorized to access her own complaint under the MGDPA. The Minnesota Court of Appeals affirmed and held that Powers failed to state a valid claim. The Court of Appeals reasoned that it must presume that the facts alleged in a complaint are true in a motion to dismiss, and that because Powers claimed that she did not author the emails, she is not the complainant and, therefore, is not entitled to access the data. Powers v. Superintendent James Freihammer, No. A15-0911 (Minn. Ct. App. Feb. 1, 2016) (unpublished opinion).

Free speech rights
Jason Powell went to the Iowa State Fairgrounds, stood near the main entrance but outside the gated area, and expressed his religious beliefs—through oral statements, a sign, and an expressive T-shirt—to people entering and leaving the fair. State patrol officers told Powell he would be arrested for trespass if he didn’t leave, but that he could move across the street onto non-fairground property. The next day, Powell returned and repeated his religious expression outside a different entrance to the fair. Officers eventually issued Powell an ejection notice, banning him from the fair, and told him that if he returned, he would be criminally charged.

Powell brought a civil rights action against state fair officials and a law enforcement officer, alleging violation of his constitutional rights of free speech and due process based on the enforcement of the fairgrounds’ unwritten rules against: (1) speech impeding the flow of people, and (2) speech on signs attached to a pole or stick that could be used as a weapon. The U.S. District Court granted, in part, Powell’s request for a preliminary injunction. The 8th U.S. Circuit Court of Appeals affirmed the denial of Powell’s motion based on his free speech claim, but reversed and remanded for reconsideration of Powell’s request for a preliminary injunction on his due process claim that the rules were unconstitutionally vague. The 8th Circuit noted that a law’s failure to provide fair notice of what it prohibits is a special concern under the due process clause in the sensitive area of basic First Amendment freedoms. Powell v. Noble, 798 F.3d 690 (8th Cir. 2015).

Conspiracy doctrine
Arlena Kelly, a rental property owner in the City of Omaha, Nebraska, was cited by a code inspector for a variety of violations over the course of years, and city employees ultimately denied her occupancy permits. Kelly sued, alleging that the initial citations resulted from her refusal to accept the code inspector’s sexual advances and that city employees issued the later violations and permit denials in conspiracy with the code inspector. She sued under 42 U.S.C. sections 1983 and 1985, claiming that there was a conspiracy to deter her from seeking judicial relief and to deprive her of equal protection of the law and equal privileges and immunities under the law. The U.S District Court dismissed the lawsuit for failure to state a claim. The 8th U.S. Circuit Court of Appeals affirmed, holding that even if Kelly had pleaded sufficient facts to support her claims, the “intra-corporate conspiracy doctrine” precluded her Section 1985 claim because it requires conspiracy between multiple parties, and a local government unit cannot conspire with itself. Kelly v. City of Omaha, 813 F.3d 1070 (8th Cir. 2016).

photo of a toy shed with a judge's gavel in front of itLAND USE
John and Sheila Aydt sued Steven and Lois Hensel and the City of St. Michael, claiming that the Hensels had committed a trespass and a nuisance by building a shed too close to their shared property line. The Aydts also claimed that the city had violated their procedural and substantive due process rights and their equal protection rights by granting the Hensels a setback variance that allowed them to build the shed .8 feet from their property line.

After the Aydts filed their complaint, they recorded a notice of lis pendens on the Hensels’ property. A lis pendens gives notice that a lawsuit is pending regarding a particular property. The Hensels moved the district court to remove the notice of lis pendens. The district court granted the motion. On appeal, the Aydts conceded that their claims of trespass and nuisance have not been recognized as supporting the recording of a notice of lis pendens. The Aydts claimed, however, that they have a sufficient property interest based on their allegation that the shed violates the side yard setback ordinance because the city’s approval of the variance was unlawful. The Minnesota Court of Appeals affirmed and held that a zoning ordinance does not create a property right in adjacent landowners, and, therefore, the alleged violation of the setback ordinance and the action against the city does not support the recording of a notice of lis pendens. Aydt v. Hensel, No. A15-1406 (Minn. Ct. App. Mar. 21, 2016) (unpublished opinion).

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

Read the July-August 2016 issue of Minnesota Cities magazine

* By posting you are agreeing to the LMC Comment Policy.