Johnson v. City of Shorewood, No. A06-2353 (Minn. App. 2/19/2008)
| Decision Date | 19 February 2008 |
| Docket Number | No. A06-2353.,A06-2353. |
| Parties | Ronald Richard Johnson, Appellant, Dee Johnson, Plaintiff, v. City of Shorewood, Respondent, City of Minnetonka, Respondent, Riley-Purgatory-Bluff Creek Watershed District, Respondent, Trivesco, et. al., Respondents, Highland Villa Builders, Inc., Respondent. |
| Court | Minnesota Court of Appeals |
Appeal from the Hennepin County District Court, File No. 27-CV-04-016195.
Erick G. Kaardal, Mohrman & Kaardal, P.A., (for appellant)
George C. Hoff, Kimberly B. Kozar, Daphne A. Lundstrom, Hoff, Barry & Kozar, P.A., (for respondent City of Shorewood)
James G. Golembeck, Elisa M. Hatlevig, Jardine, Logan & O'Brien, P.L.L.P., (for respondent City of Minnetonka)
Louis A. Haik, Krebsbach & Haik, Ltd., (for respondent Riley-Purgatory-Bluff Creek Watershed District)
Jeremy S. Steiner, Steiner & Curtiss P.A., (for respondents Trivesco, et al.); and
Christopher S. Hayhoe, Felhaber, Larson, Fenlon & Vogt, P.A., (for respondent Highland Properties, Inc.); and
Lisa M. Lamm, Foley & Mansfield, PLLP, (for respondent Steiner & Koppelman, Inc.)
Christopher S. Hayhoe, Felhaber, Larson, Fenlon & Vogt, P.A., (for respondent Highland Villa Builders, Inc.)
Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Huspeni, Judge.
Appellant Ronald Johnson1 challenges the district court's grant of summary judgment in favor of all named respondents. Appellant argues that the district court erred by (1) denying his request for a declaratory judgment and an additional takings proceeding under Minn. Stat. § 117.045 (2006), based on "[r]espondents' future, continued and increased flooding and other takings of [appellant's] property"; (2) dismissing appellant's 42 U.S.C. § 1983 claims and not granting his motion for partial summary judgment; (3) dismissing appellant's inverse-condemnation claim and refusing to enter a declaratory judgment related to alleged 2000 "Vine Hill Road" takings; (4) dismissing appellant's state-law claims against respondent Trivesco; and (5) denying appellant's postjudgment motion. Because the district court did not err in any of its determinations, we affirm.
Appellant and his wife purchased an undeveloped 20-acre parcel of land located in Hennepin County, City of Shorewood, in 1981. The property is bordered to the east by Vine Hill Road which abuts respondent City of Minnetonka. In 1973, by city ordinance, respondent City of Shorewood designated approximately 60% of the subject property as wetlands. And a portion of the subject property was designated wetlands on the 1980 National Wetlands Inventory map prepared by the United States Fish and Wildlife Service. Beginning in early 1993, appellant contacted the United States Army Corps of Engineers (Corps), disputing the existence of these wetlands.
At the time of purchase, a drainage ditch crossed the subject property and emptied into a creek to its south. Shorewood's Waterford subdivision was constructed to the south and west of the subject property beginning in 1984. Waterford was developed by respondent Trivesco, a Minnesota general partnership. Trivesco is in partnership with respondents Robert H. Mason, Inc., Highland Properties, Inc., and Steiner & Koppelman, Inc. In 1984, in connection with the planned Waterford subdivision, Shorewood constructed a road berm, culvert, and a pond-control structure to the south of the subject property. Respondent Riley-Purgatory-Bluff Creek Watershed District was involved in designing the pond-control structure and designated a 100-year storm-event flood plain at an elevation of 917.1 feet above sea level and prohibited construction at elevations lower than 919.1 feet. The pond-control structure raised the bottom of the drainage ditch above its original elevation and created a pond near the southern boundary of the subject property. Because the drainage ditch was raised, subsequent rains began flooding the subject property.
"Outlot C" is "a narrow, irregularly shaped outlot" between the southern boundary of the subject property and a public street called Waterford Circle. Trivesco purchased Outlot C on a contract for deed recorded on October 2, 1984. On June 3, 1985, Trivesco and appellant signed an "acknowledgment letter," which granted appellant the right to purchase Outlot C "for $60,000 representing the utility and street assessments." This June 3, 1985 agreement is referred to by appellant as a "contract for deed." On August 12, 1985, as part of the governmental approval process for the Waterford subdivision, Shorewood approved Trivesco's amended development agreement. As part of the amended development agreement with Shorewood, Trivesco agreed to sell Outlot C to appellant. On September 19, 1985, Trivesco recorded a "Declaration of Covenants Conditions, Restrictions and Reservations for Waterford" with the Hennepin County Registrar which specifically encumbered Outlot C. The Waterford declaration established that an "architectural control committee" must approve plans for all construction within the Waterford subdivision. Twenty-two years after the alleged "contract for deed," Trivesco remains the owner of Outlot C. And the Waterford declaration expired by its terms on September 19, 2005.
Beginning in 1992, the Ashcroft subdivision was constructed by Chimo Development Corp. to the east of Vine Hill Road. Highland Properties, Inc. served as a sales agent for Chimo. Respondent Highland Villa Builders, Inc. managed the construction of Ashcroft.
In April 2000, the Shorewood City Council approved construction of a bike path/walking trail along the west side of Vine Hill Road. In early June 2000, Shorewood moved construction equipment onto the subject property for the purpose of constructing the trail and placed a silt fence on the subject property. The equipment remained on appellant's property for less than one day. The silt fence was removed one week later, on June 13, 2000. Shorewood has not authorized public use of the trail. A private company, not joined in this action, applied for a permit from Shorewood to install fiber optic cable along the west side of Vine Hill Road. Although Shorewood denied the company's permit application, the company did install cable to the west of the roadway.
By way of background, this case involves the fifth lawsuit filed by appellant regarding alleged takings of his property. Appellant's first lawsuit, "the takings case," was filed in Hennepin County District Court in 1991. Appellant successfully alleged that Shorewood had taken his property without compensation and obtained a writ of mandamus compelling Shorewood to commence inverse-condemnation proceedings. Appellant's second action, filed in Hennepin County District Court in 1996 against the City of Minnetonka, alleged that the Ashcroft subdivision had been diverting storm water run-off onto his property as early as 1992. The action was dismissed without prejudice for failure to join necessary parties, and appellant did not appeal the dismissal. Appellant filed a 24-count complaint in United States District Court in 2000 as his third lawsuit, alleging numerous constitutional and state-law violations. This suit was eventually dismissed by the Eighth Circuit. Appellant's fourth lawsuit was filed in the Court of Federal Claims in 2001, alleging (1) both physical and regulatory takings arising out of the 1984 flooding, (2) tort claims against the government, and (3) that the United States Fish and Wildlife Service, by designating part of the subject property a wetland on its 1980 inventory map, had breached implied and/or express contracts with appellant. All claims were dismissed — unchallenged by appellant — based on the statute of limitations, lack of jurisdiction, and Fed. R. Civ. P. 12(b)(6), respectively. In 2004, for his fifth lawsuit, appellant refiled his 24-count 2000 federal complaint in Hennepin County District Court. In this current appeal, appellant challenges the district court's determination that all named respondents are entitled to summary judgment.
In his 1991 suit against Shorewood, appellant claimed that his land had been taken without just compensation, and alleged specifically that, despite the pond-control structure, the pond frequently flooded his property with overflowing storm-sewer water. Appellant also claimed that actions taken by Shorewood related to a plat-approval application, which prevented his development of the subject property, amounted to a taking.
The district court determined that the flood-plain restrictions were not a regulatory taking but that in creating the pond and control structure Shorewood had physically taken appellant's property up to 914 feet since December 31, 1984, because the water would rise to that elevation during "major storm events." The district court agreed with appellant and issued a writ of mandamus compelling Shorewood to commence condemnation proceedings for the purpose of acquiring a drainage easement on appellant's property up to 914 feet above sea level. The district court also ordered Shorewood to pay appellant's attorney fees and costs related to the action. The district court concluded that the flooding constituted a taking because appellant's property "is expected to flood to this level with sufficient frequency to constitute a permanent physical invasion." Although appellant argued that the taking occurred to 919.1 feet, the level below which development is restricted based on the 100-year flood event, the district court rejected that argument because "it is difficult to conceive of any case in which short-term flooding once every 100 years or so would be considered a permanent physical invasion."
Shorewood challenged the district court's award of attorney fees and its determination that there...
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