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C and R Stacy, LLC, et al. vs. County of Chisago: ROADS - authorization to regulate access to public roads; takings

STATE OF MINNESOTA
IN COURT OF APPEALS
A06-2302
C and R Stacy, LLC, et al.,
Respondents,
vs.
County of Chisago,
Appellant.
Filed December 11, 2007
Reversed and remanded
Halbrooks, Judge
Chisago County District Court
File No. 13-C7-04-000417
Barry L. Blomquist, Barry L. Blomquist Law Office, P.O. Box 578, 6356 Elm Street,
North Branch, MN 55056 (for respondents)
Paul D. Reuvers, Jason J. Kuboushek, Amber S. Lee, Iverson Reuvers, LLC, 9321 Ensign
Avenue South, Bloomington, MN 55438 (for appellant)
Daniel J. Greensweig, 805 Central Avenue, P.O. Box 267, St. Michael, MN 55376 (for
amicus curiae Minnesota Association of Townships)
Thomas L. Grundhoefer, 145 University Avenue West, St. Paul, MN 55103 (for amicus
curiae League of Minnesota Cities)
Scott Simmons, 125 Charles Avenue, St. Paul, MN 55103 (for amicus curiae Association
of Minnesota Counties)
Considered and decided by Dietzen, Presiding Judge; Halbrooks, Judge; and
Harten, Judge.*
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, 10.
2
S Y L L A B U S
1. Road authorities may regulate access to public roads through the exercise
of their police power and the codification of that power in Minn. Stat. 160.18 (2006).
2. Public-road-access regulations under Minn. Stat. 160.18 do not require
adoption of an enabling ordinance and are not official controls as defined by Minn.
Stat. 394.22-.26 (2006).
3. Regulation of an abutting landowners right of access to a public road by a
road authority is a taking if the landowners remaining access is unreasonable.
O P I N I O N
HALBROOKS, Judge
This case involves an access to County State Aid Highway 19 (CSAH 19) from
respondents land, Outlot A. Respondents sought to construct a gas station with
commercial access to CSAH 19. Prior to construction, appellant County of Chisago (the
county) barricaded respondents commercial access. Respondents filed a claim in district
court, alleging that the county had no authority to regulate access to CSAH 19 without a
duly enacted enabling ordinance. Respondents further argued that the countys failure to
enact an ordinance resulted in a taking of respondents property and sought inversecondemnation
proceedings.
The county challenges the district courts determinations that (1) the county lacks
the ability to regulate CSAH 19 outside of the statutory authority provided in Minn. Stat.
160.18 (2006); (2) Minn. Stat. 160.18 is not self-executing and requires adoption of
an ordinance to regulate public roads; (3) a regulation of road access pursuant to Minn.
3
Stat. 160.18 is an official control as defined by Minn. Stat. 394.22 (2006); and (4)
as an official control, appellants failure to follow public-notice hearing procedures and
failure to adopt an ordinance resulted in a taking of respondents property rights without
compensation.
Because the countys police power and the self-executing grant of power from
Minn. Stat. 160.18 give the county the ability to regulate public-road access and
because regulation of road access under Minn. Stat. 160.18 is not an official control,
we conclude that the county has properly regulated access to CSAH 19 and reverse the
district court on these issues. But we conclude that whether such regulation is a taking
that in this instance requires compensation is a fact question that must be determined by
the district court. We therefore remand on that issue only.
FACTS
A. The Property
Outlot A is part of the larger Sherman Oaks Plat 3, located in the City of Stacy
(the city). Outlot A is bordered by Chisago County State Aid Highway 19/Stacey Trail
(CSAH 19), which runs east and west along Outlot As southern edge. Interstate 35
(I-35) runs north and south along the western edge of Outlot A. Sherman Oaks Road
runs east and west, parallel to and north of CSAH 19. Sherman Oaks Road ends at the
eastern edge of Outlot A. Both CSAH 19 and Sherman Oaks Road provide access to
Outlot A.
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B. History of Outlot As Driveway Accessing CSAH 19
Outlot A was originally part of a larger farm parcel that was severed when its
owners conveyed a portion of the land to the State of Minnesota for construction of I-35.
The deed that conveyed the land to the state also took all right of access to most of the
property but stated that the landowner retained a right of access east of I-35. After
construction of I-35 began, the driveway onto CSAH 19 provided the only access to the
Outlot A portion of the original parcel.
In 1986, respondent AMW, Inc. acquired Outlot A. At the time that AMW
purchased Outlot A, the driveway to CSAH 19 provided the only access to Outlot A.
AMW agreed with the city in the developers agreement that Sherman Oaks Road would
be constructed as a commercial street and serve as access to Outlot A. The county
required that a portion of CSAH 19 be dedicated to the public and otherwise approved the
developers agreement without comment. AMW and the city agreed orally to have the
city place barricades on the west end of Sherman Oaks Road during construction, which
eliminated the access to Outlot A from Sherman Oaks Road. The remaining point of
access from Outlot A to CSAH 19 was the driveway.
In 1991, Bauerly Brothers, Inc., a construction company, leased use of Outlot A
from AMW to fulfill a contract with the Minnesota Department of Transportation
(MnDOT) for resurfacing I-35. During this lease, Bauerly Brothers used the driveway
access to CSAH 19 to remove fill from Outlot A and for asphalt production on the
property. MnDOT also used Outlot A during this resurfacing project as a temporary
office and inspection station. In addition, AMW leased space along the west edge of
5
Outlot A to Lamar Companies for two billboard signs visible on I-35. Lamar Companies
has since used the driveway onto CSAH 19 to gain access to those signs on Outlot A.
In 1998, AMW sold a portion of the southwest corner of Outlot A to respondent
C & R Properties, Ent., Inc. (C & R). This portion of Outlot A was landlocked without
access to CSAH 19 via the driveway used by Bauerly Brothers and Lamar Companies.
The sale of this portion of Outlot A was conditioned on AMW applying for and receiving
a conditional use permit (CUP). The proposed CUP illustrated the driveway access to
CSAH 19. The city approved the proposed CUP and issued the CUP on March 18, 1999.
C. The County Restricts Access to CSAH 19
The county first contacted respondents concerning the driveway access to CSAH
19 in writing in early 1999. Although AMW stated that it had a right of access to CSAH
19, the county advised AMW that it had never approved any driveway access. On
February 19, 1999, the county told C & R,
[D]irect access to [CSAH 19] will not be allowed. The
North 91.93 feet (as shown on the plat) is in the State of
Minnesota Limited Access Right of Way. The remaining
25.84 feet is not adequate road frontage for a commercial
access. Minnesota Department of Transportation Access
Dimensions must be followed on any State Aid Highway.
The Department of Public Works also notified respondent Mel Aslakson, as part owner of
AMW,
Outlot A has no direct authorized access to [CSAH 19].
The County asks that this unauthorized driveway be removed.
Remove culvert (if one exists) and restore ditch to original
cross section. Build a berm or provide alternative to prevent
future use of this area. We ask that this work be completed
with-in 60 days from date of this letter. Failure to comply
6
with-in 60 days will result in the County completing the
required work and billing the accrued expense to you.
C & R subsequently submitted a building permit to the city that included language
stating that it was on proposed street off Co. Rd. 19. The city issued a building permit
on October 25, 1999. In early November 1999, C & R commenced construction on the
project that included a street connecting Outlot A to CSAH 19, as shown in the plans
submitted to the city. On November 8, 1999, the county informed respondents that it
would commence legal action to prohibit use of the driveway to CSAH 19. When
respondents did not stop construction, the county erected barricades on the driveway,
prohibiting access to CSAH 19, but removed the barricades that blocked access via
Sherman Oaks Road. Respondents C & R Stacy, LLC; AMW, Inc.; Karl W Gotfredson
and Kelly J Gotfredson, dba T & C Oil, Inc.; Shari L. Douglas; and C & R Properties
Ent., Inc., brought suit in district court in 2004, seeking injunctive relief and damages for
unlawful taking without compensation. After a bench trial, the district court concluded
that the county unlawfully took respondents right of access without compensation and
awarded damages to respondents. This appeal followed.
ISSUES
1. Does the county have the authority to regulate access to CSAH 19 absent a
statutory grant of power?
2. Does the grant of authority to regulate public-road access in Minn. Stat. 160.18
(2006) require an ordinance to be adopted?
3. Is regulation of public-road access under Minn. Stat. 160.18 an official control
as defined by Minn. Stat. 394.22-.26 (2006)?
7
4. Did the county unlawfully take respondents right of access to CSAH 19 without
compensation?
ANALYSIS
I.
The county challenges the district courts determination that it lacks the ability to
regulate access to public roads absent the statutory authority contained in Minn. Stat.
160.18 (2006). The county contends that it has authority to regulate public-road access
pursuant to its police power and that Minn. Stat. 160.18 is a codification of that police
power. This court is not bound by and need not give deference to a district courts
decision on a purely legal issue. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393
(Minn. 2003). We therefore review the district courts conclusions on police power and
statutory construction de novo. Id.
At the most basic level, the Minnesota Constitution establishes that localgovernment
units possess no inherent powers and are purely creations of the legislature.
Minn. Const. art. XII, 3; Breza v. City of Minnetrista, 725 N.W.2d 106, 110 (Minn.
2006). Counties, like municipalities, are subject to these same limitations and have only
the powers conferred upon them by the legislature. Altenburg v. Bd. of Supervisors of
Pleasant Mound Twp., 615 N.W.2d 874, 880 (Minn. App. 2000), review denied (Minn.
Nov. 21, 2000).
The state public-highway system is addressed expressly within the Minnesota
Constitution. Minn. Const. art. XIV. The constitution mandates construction and
maintenance of a public-highway system:
8
A county state-aid highway system shall be constructed,
improved and maintained by the counties as public highways
in the manner provided by law. The system shall include
streets in municipalities of less than 5,000 population where
necessary to provide an integrated and coordinated highway
system and may include similar streets in larger
municipalities.
Minn. Const. art. XIV, 3. In examining how appellant may satisfy this
constitutional mandate,
it should not be overlooked that it is generally accepted that
municipalities [and counties] possess extensive and drastic
police powers with respect to the care, supervision, and
control of streets. The exercise of such powers by
municipalities has been upheld and sustained by the courts in
a great variety of situations.
The Alexander Co. v. City of Owatonna, 222 Minn. 312, 324, 24 N.W.2d 244, 251-52
(1946), overruled in part on other grounds by Johnson v. City of Plymouth, 263 N.W.2d
603 (Minn. 1978).
This police power is the ability of the state and its political subdivisions to impose
restraints on private rights that are necessary for the general welfare. In re 1994 & 1995
Shoreline Improvement Contractor Licenses of Landview Landscaping, Inc., 546 N.W.2d
747, 750 (Minn. App. 1996) (citing The Alexander Co., 222 Minn. at 322, 24 N.W.2d at
250), review denied (Minn. June 11, 1996). Use of police power must be within the
legitimate concern of the state and not otherwise reserved to the individual. State v.
Edwards, 177 N.W.2d 40, 42 (Minn. 1970). Furthermore, the method of controlling the
private right must be reasonably related to a legitimate government end. Id. Both the
state and its municipalities have a wide discretion in resorting to that [police] power for
9
the purpose of preserving public health, safety, and morals, or abating public nuisances.
State v. The Crabtree Co., 218 Minn. 36, 40, 15 N.W.2d 98, 100 (1944).
Here, the county is attempting to regulate access to CSAH 19 for public-safety
purposes. The county denied respondents access to CSAH 19 because the driveway
access lacks adequate road frontage for commercial access as required by MnDOT
Access Dimensions that are found in the MnDOT State Aid Manual.1 One of MnDOTs
program goals is to provide users of secondary highways and streets with safe highways
and streets. Minnesota Dept of Transp. State Aid Manual 2007, ch. 1, III. MnDOT
has established uniform state standards for access to public roads, and the countys
exercise of its police power conforms to the standards.
The county was exercising its legitimate police power for the purpose of public
safety when it required that respondents driveway access conform to the MnDOT
requirements. Public safety is a legitimate concern of state government and its
subdivisions, and road-access regulation that prevents overcrowding or traffic congestion
is reasonably related to that concern. We therefore conclude that the countys exercise of
its police power was valid. Accordingly, because we hold that the countys police power
provides it with the authority to regulate CSAH 19, we reverse the district court on this
issue.
1 Although the city approved the proposed building permit on proposed street off Co.
Rd. 19, the city on its own lacks the authority to regulate access to a county state-aid
highway. See Minn. Stat. 162.02, subd. 1 (2006) (granting counties substantial control
over the county state-aid highway system).
10
II.
The county challenges the district courts determination that because Minn. Stat.
160.18 is not a self-executing statute, the county must adopt an ordinance in order to
regulate access to CSAH 19. The county contends that Minn. Stat. 160.18 is merely a
codification of its police power.
Statutory construction is a question of law, which this court reviews de novo.
Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393. (Minn. 1998).
When interpreting a statute, [this court must] first look to see whether the statutes
language, on its face, is clear or ambiguous. A statute is only ambiguous when the
language therein is subject to more than one reasonable interpretation. Am. Family Ins.
Group v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000) (citation omitted). Plain meaning
is the governing principle in applying all statutory language and draws from the full text
of the act or statutory provision. Advantage Capital Mgmt. v. City of Northfield, 664
N.W.2d 421, 425 (Minn. App. 2003), review denied (Minn. Sept. 24, 2003).
Minn. Stat. 160.18, subd. 3, states:
Access for particular uses. The owner or occupant of
property abutting upon a public highway, having a right of
direct private access thereto, may provide such other or
additional means of ingress from and egress to the highway as
will facilitate the efficient use of the property for a particular
lawful purpose, subject to reasonable regulation by and
permit from the road authority as is necessary to prevent
interference with the construction, maintenance and safe use
of the highway and its appurtenances and the public use
thereof.
11
Section 160.18 provides the county with a statutory basis to regulate access to public
roads. It also codifies a right of access for abutting land owners and requires reasonable
regulations and permits if a road authority seeks to limit that right in order to prevent
interference with construction, maintenance and the safe use of those public roads. Minn.
Stat. 160.18.
On its face, section 160.18 does not specify procedural requirements other than
reasonable regulations and permits for protection of construction, safety and
maintenance. Id. The plain language of Minn. Stat. 160.18 does not include the term
ordinance, nor does it require, on its face, an ordinance to be adopted for road-access
regulation to be effective.2 In contrast, in other statutes, the Minnesota Legislature has
explicitly required local governments to adopt ordinances to effectively exercise statutory
grants of power. See, e.g., Minn. Stat. 28A.075(b) (2006) (A local board of health
must adopt an ordinance.). If the legislature wanted to require the county to adopt an
ordinance prior to regulating access onto public roads, it could have done so explicitly, as
it did in other statutes. Based on the plain language of the statute, we conclude that the
county is not required to adopt an enabling ordinance to regulate public-road access
under section 160.18.
Respondents assert that the MnDOT Road Design Manual expressly suggests that
the county adopt ordinances to regulate driveways. The district court made a conclusion
of law agreeing with respondents asssertion. But the road design manual only suggests
2 As the county notes, Minn. Stat. 162.01-.181 and 163.01-.17 (2006) provide the
authority for the creation of county state-aid highways and county highways. Neither
chapters require or mention adoption of an ordinance to regulate these highways.
12
that local governments adopt ordinances. The ordinance introduced by respondents is
merely a model ordinance. This model can be used by local governments to create and
adopt their own ordinance, should they choose to. As the district court noted, the
MnDOT Road Design Manual does not contain any legal standards regulating driveways.
See Fisher v. County of Rock, 596 N.W.2d 646, 654 (Minn. 1999) (stating a county was
not required to comply with guidelines in a manual for selecting traffic barriers).
While the plain language is clear that an ordinance is not necessary for publicroad-
access regulations here, it does not determine whether section 160.18 is selfexecuting.
We recently examined the issue of whether a statute was self-executing in the
context of a citys attempt to enforce a dangerous-dog statute. In re Molly, 712 N.W.2d
567 (Minn. App. 2006). In Molly, this court concluded that Minn. Stat. 347.50 (2006),
which defines the term dangerous dog, does not establish a procedure by which a dog
may be declared dangerous and is, therefore, not self-executing as to such a declaration.
Id. at 569-70. In reaching that conclusion, we quoted a U.S. Supreme Court case stating
that a self-executing statute has a sufficient rule by means of which the right given may
be enjoyed and protected, or the duty imposed may be enforced. Id. at 570 (quoting
Davis v. Burke, 179 U.S. 399, 403, 21 S. Ct. 210, 212 (1900)). Provisions which merely
indicate[] principles, without laying down rules by means of which those principles may
be given the force of law, are not deemed to be self-executing and require other
legislative acts to exercise their authority. Id. (quotation omitted).
Although respondents argue that Minn. Stat. 160.18 is not self-executing, the
present case is clearly distinguishable from Molly. The statute discussed in Molly is a
13
definitional statute that contains no procedure to determine whether a dog fits within its
definition of dangerous dog. Minn. Stat. 347.50. Here, as the county correctly
argues, section 160.18 on its face describes the procedural requirements for a proper
exercise of a road authoritys authority to regulate road access. Minn. Stat 160.18.
Accordingly, we conclude that the district court erred in its conclusion that section
160.18 is not self-executing and reverse on this issue.
III.
The county argues that the district court erred in concluding that regulation of
access to CSAH 19 is an official control that requires public-hearing procedures before
an ordinance can be adopted. Minn. Stat. 394.22, subd. 6, .26 (2006). Because we
have already concluded that the countys regulation of access to CSAH 19 does not
require adoption of an enabling ordinance, we examine only the district courts
conclusion that regulation under Minn. Stat. 160.18 is an official control.
Minn. Stat. 394.22, subd. 6, provides:
Official control means legislatively defined and enacted
policies, standards, precise detailed maps, and other criteria,
all of which control the physical development of a
municipality or a county or any part thereof or any detail
thereof, and are the means of translating into ordinances all
or any part of the general objectives of the comprehensive
plan. Such official controls may include but are not limited
to ordinances establishing zoning, subdivision controls, site
plan rules, sanitary codes, building codes, housing codes and
official maps.
(Emphasis added.) According to Minn. Stat. 394.22, subd. 6, an official control is
any policy, standard, map or other criteria which is translated into an ordinance for the
14
purpose of fulfilling the general objectives of a comprehensive plan. It follows that if a
regulation is not for the purpose of fulfilling the general objectives of the comprehensive
plan, then it cannot be an official control as defined in Minn. Stat. 394.22. We must
examine then, whether the countys regulation of access to a public road implicates the
general objectives of a comprehensive plan.
The term comprehensive plan is not used in section 160.18, nor does it appear in
chapter 160 or chapter 163, which deal with county roads. Minn. Stat. 160.001-.93,
163.01-.17 (2006). By not including the term comprehensive plan, we can assume that
the legislature intended to omit its application from chapter 160. However, even if the
omission creates ambiguity, other statutory language makes it clear that the legislature
did not intend for public-road access to be part of a comprehensive plan.
As a matter of statutory construction, we presume that the legislature uses the
same words the same way, even in different statutes. Stansell v. City of Northfield, 618
N.W.2d 814, 819 (Minn. App. 2000), review denied (Minn. Jan. 26, 2001).
Comprehensive plan is referred to numerous times in other Minnesota statutes. See
Minn. Stat. 462.3535 (discussing implementation of community-based comprehensive
plans); 138.761 (discussing a need to create a comprehensive plan to protect St. Anthony
Falls historical and architectural resources); 462.111-.398 (discussing housing,
redevelopment, planning, and zoning); 394.21-.372 (2006) (discussing county planning,
development, and zoning). Instead, chapters 160 and 163, use the term plan rather than
the term comprehensive plan. See generally Minn. Stat. 160.001-93, 163.01-.17.
These chapters do not define the difference between these terms, if any. Accordingly, we
15
must look to the guidance provided by the legislature to interpret any difference in these
two terms.
Where the Minnesota Legislature has included general words, preceded by
particular words, they are to be construed as restricted in their meaning by the preceding
particular word. Minn. Stat. 645.08(3) (2006). Therefore, we conclude that the
particular term comprehensive must modify the more general term plan and restrict
its meaning. As a result, an official control as defined in Minn. Stat. 394.22 must
involve only those actions where specifically comprehensive plans are involved.
Because none of the statutes that authorize appellant to regulate road access reference a
comprehensive plan, but instead reference only the more general term plan, we
conclude that the public-hearing requirements of an official control from section
394.22 and section 394.26 do not apply.
IV.
Finally, the county challenges the district courts conclusion that by restricting
respondents access to CSAH 19, the county unlawfully took respondents property right
of access without compensation. Whether a taking has occurred is a question of law,
which we review de novo. Thompson v. City of Red Wing, 455 N.W.2d 512, 516 (Minn.
App. 1990), review denied (Minn. June 26, 1990).
The Minnesota Constitution states that [p]rivate property shall not be taken,
destroyed or damaged for public use without just compensation therefor, first paid and
secured. Minn. Const. art. I, 13. In Minnesota, landowners seeking to compel inverse
condemnation have the burden to prove that a taking has occurred. Vern Reynolds
16
Constr., Inc. v. City of Champlin, 539 N.W.2d 614, 617 (Minn. App. 1995), review
denied (Minn. Dec. 20, 1995).
A land owner has a compensable property right of access to an abutting public
road. Cf. Finke v. State, 521 N.W.2d 371, 375 (Minn. App. 1994) (citing Hendrickson v.
State, 267 Minn. 436, 442, 127 N.W.2d 165, 170-71 (1964) (noting to the contrary that
land owners with property that does not abut a street to which they seek access have no
compensable right to access)), review denied (Minn. Oct. 27, 1994). In Minnesota,
compensation is limited to the loss of convenient access. Id. at 376. Government
regulation of the roadway system that deprives a land owner of reasonable or
reasonably convenient and suitable access constitutes a taking that requires
compensation to the land owner. Johnson v. City of Plymouth, 263 N.W.2d 603, 605
(Minn. 1978). Because respondents own property that abuts a public road, they are
entitled to compensation if they have been deprived of reasonable access.
The Minnesota Supreme Court has addressed the confusion that reasonable-access
cases have created. Johnson, 263 N.W.2d at 606.
[I]f a governmental action has been found not to infringe the
right of access, such action has been deemed a reasonable
assertion of the police power and therefore noncompensable.
On the other hand, where courts have determined that official
action has eliminated a right of access, the action has been
characterized as a constitutional taking. The result has
been the creation of an unfortunate rhetorical device:
Reasonable assertions of the police power are not
compensable but the taking of a reasonable right of access
is compensable. There is an obvious difficulty, however,
with any attempted application of this statement as a rule of
law. The statement itself provides no principled means for
17
distinguishing a due process taking from a noncompensable
exercise of police powers.
Id. (footnotes omitted). The supreme court has stated that
when the legislative power attempts to forbid the owner
from making a use of his property which is not harmful to the
public and does not interfere with the rightful use and
enjoyment of their own property by others, it invades
property rights secured to the owner by both the state and
Federal Constitutions. Only such use of property as may
produce injurious consequences, or infringe the lawful rights
of others, can be prohibited without violating the
constitutional provisions that the owner shall not be deprived
of his property without due process of law nor without
compensation therefor first paid or secured.
Id. at 607 (quoting State ex rel. Lachtman v. Houghton, 134 Minn. 226, 230, 158 N.W.
1017, 1019 (1918).
When there is a legitimate exercise of police power that restricts access to a public
road and thereby deprives a land owner of reasonable access, the supreme court has
stated that the dissenting opinion in The Alexander Co., 222 Minn. 312, 24 N.W.2d 244,
is the correct rule of law.
While it is said that the right of access may be regulated by
public authority, that does not mean . . . that under the guise
of regulation the right may be taken away from the owner.
The power to regulate the right of access does not include that
of taking it. . . . If there is to be a denial of plaintiffs right of
access, it should be the result of a compensated taking under
condemnation and not an uncompensated one under the guise
of a police regulation.
Johnson, 263 N.W.2d at 608 (quotation omitted).
The Minnesota Supreme Court has determined that when police power is
exercised in a way that affects the public road itself (as opposed to access), no
18
compensable loss of a property right occurs. Hendrickson, 267 Minn. at 441, 127
N.W.2d at 170.
Included in this category [of police power] are the
establishment of one-way streets and lanes of traffic; median
strips prohibiting or limiting crossovers from one lane of
traffic to another; restrictions on U-turns, left and right turns,
and parking; and regulations governing the weight, size, and
speed of vehicles. No compensable damages are sustained by
such restrictions and regulations which govern all motorists,
including abutting property owners, once they are on the
traveled portion of the thoroughfare.
Id. These exercises of the police power relate solely to the streets, roads, and highways
rather than access to them. Id.
Here, respondents land abuts CSAH 19, providing a right of access to the
highway, and the county seeks to regulate how respondents can access that public road,
rather than regulate the road itself. Because the countys actions affect access and not
regulation of the roadway, we conclude that Hendrickson and Johnson establish that the
county has taken respondents right of access in a manner that requires compensation
unless the respondents have other reasonable access onto CSAH 19.
Evaluation of the existence of reasonable access is a question of fact and depends
on the unique circumstances of each case, including the characteristics of the property
itself. Johnson, 263 N.W.2d. at 607. If the [fact-finder] decides that the [regulation]
substantially impairs [respondents] right to reasonably convenient and suitable access,
then respondents are entitled to damages. Hendrickson, 267 Minn. at 445-46, 127
N.W.2d at 172-73. But the imposition of even substantial inconvenience has been held to
not be a denial of the right of reasonable access. Johnson, 263 N.W.2d at 607.
19
The record reflects that Sherman Oaks Road connects respondents property to
CSAH 19. The district court found that the Sherman Oaks Road access to CSAH 19
creates a four-block detour as opposed to direct access via the driveway that the county
barricaded. But the district court made no finding regarding the reasonableness of that
alternate route. Because this is a factual determination, this court is not the appropriate
place for its resolution. Scroggins v. Solchaga, 552 N.W.2d 248, 253 (Minn. App. 1996)
(citing Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966)).
Accordingly, we remand to the district court, as the factfinder in this bench trial,
for the sole purpose of making findings of fact regarding reasonable access to CSAH 19
from Outlot A. If the Sherman Oaks Road access to CSAH 19 is not reasonable, a taking
has occurred, and respondents are entitled to compensation. Hendrickson, 267 Minn. at
446, 127 N.W.2d at 172-73. But if the district court finds that the Sherman Oaks route
(or any other route) is reasonable access to CSAH 19, no compensation is due to
respondents. Id.
If the district court determines that the remaining access is unreasonable, it may
consider four factors when evaluating damages: (1) the difference between the market
value of the property before and after suitable access has been denied; (2) evidence of
lost patronage specifically related to the land itself, but with caution that no damages
should be assessed for diversion of traffic, loss of customers, business, goodwill, or
profits that are related to intangible variables; (3) the distance to an alternate access point;
and (4) the extent to which the alternate route mitigates the damages. Id. at 446-47, 127
20
N.W.2d at 173. The district court has discretion to reopen the record to receive evidence
necessary to accommodate the remand.
V.
Respondents argue that the district court erred in failing to amend its findings of
fact to state that appellant has selectively enforced its road-access standards. A district
courts denial of a posttrial motion for amended findings will not be disturbed by this
court absent an abuse of discretion. Fort Snelling State Park Assn v. Minneapolis Park
& Recreation Bd., 673 N.W.2d 169, 177-78 (Minn. App. 2003), review denied (Minn.
Mar. 16, 2004).
The district court did not explicitly deny respondents motion, and we cannot
assume that the district court erred in not addressing a specific portion of a motion for
amended findings. Luthen v. Luthen, 596 N.W.2d 278, 283 (Minn. App. 1999) (citing
Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949)). To successfully appeal a
denial of a motion for amended findings, a party must show that the district court was
compelled to make the requested findings and failed to do so. Fort Snelling, 673 N.W.2d
at 178. There is not a sufficient basis in this record to conclude that the district court
failed to make compelled findings.
Respondents are really challenging the credibility of witnesses, which is properly
left to the discretion of the district court. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.
1988). We will not disturb what is the proper exercise of discretion by the district court.
21
D E C I S I O N
Because the county regulated road access from Outlot A to CSAH 19 in a proper
exercise of its police power and because Minn. Stat. 160.18 (2006) is a self-executing
statute and does not require adoption of an ordinance to be effective, nor is regulation
under section 160.18 an official control as defined by Minn. Stat. 394.22 (2006), the
district court erred in concluding that the county lacked the authority to do so outside of
Minn. Stat. 160.18, and we reverse on those issues. But because the matter of
compensation to respondents under a takings theory is dependent on a determination of
whether the Sherman Oaks Road or any other access is reasonable, we remand that issue
to the district court for factual findings consistent with this opinion.
Reversed and remanded.
 

 
 
 

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