Maroney v. State, No. A07-2336 (Minn. App. 11/25/2008), A07-2336.

Decision Date25 November 2008
Docket NumberNo. A07-2336.,A07-2336.
PartiesDavid Maroney, et al., petitioners, Appellants, v. State of Minnesota by its Commissioner of Transportation, Carol Molnau, Respondent.
CourtCourt of Appeals of Minnesota

Appeal from the District Court, Goodhue County, File No. 25-CV-06-1943.

Steven J. Quam, Fredrikson & Byron, P.A., Minneapolis, MN (for appellants)

Lori Swanson, Attorney General, Erik M. Johnson, Assistant Attorney General, St. Paul, MN (for respondent)

Considered and decided by Schellhas, Presiding Judge; Halbrooks, Judge; and Collins, Judge.*



In this inverse-condemnation action, appellants challenge the district court's grant of summary judgment to respondent, arguing that the action should proceed because (1) respondent has gone beyond mere planning of the closure of the subject property's access point to Highway 52, and (2) whether the replacement highway access will be reasonably suitable and convenient is a fact question not properly decided on summary judgment. We agree with the district court that respondent has not gone beyond mere planning of the closure of the existing highway access, and for that reason, we conclude that appellant's action is premature; therefore, the district court erred in adjudicating the action on the merits by granting summary judgment. Because we also conclude that whether the replacement highway access will be reasonably suitable and convenient is a fact question and not appropriately decided on summary judgment, we reverse and remand for dismissal without prejudice.


Appellants David Maroney and Bruce Bullert own approximately 34.4 acres of undeveloped real property (the property) that abuts Trunk Highway 52 in Pine Island, Minnesota, and allege that respondent State of Minnesota, through its Commissioner of Transportation (Mn/DOT), has adopted a plan to close the property's current access point to Highway 52. In a 1999 letter, Nelrae Succio, Transportation District Engineer for Mn/DOT, informed appellants that the "existing [Highway 52] access will be acquired and closed in conjunction with the creation of a new access from County Road 11 to the [subject property]." (Emphasis added.) In a 2004 letter, however, Commissioner Carol Molnau stated that the claim to direct highway access has been investigated and the property "currently has access to the frontage road to [Highway] 52 but not to the highway itself." Commissioner Molnau informed appellants that: (1) "[b]ased on cost estimates for the project, review of our right of way maps and proximity of other Class I rest areas, Mn/DOT will not consider the realignment of [Highway] 52 and rest area proposal any further"; (2) appellants would have continued access to the frontage road when improvements were made as part of the Highway 52 upgrade; (3) the "preferred alternative has gone before the public, been endorsed by the partners in this study, and has been officially mapped"; (4) "Mn/DOT will proceed with the plans for this corridor as have been discussed previously in many public forums and as adopted through local resolutions by the partners along [Highway] 52"; and (5) "it is in the best interests of Mn/DOT and the taxpayers of Minnesota to move forward as indicated in the [Highway] 52 Subarea Study and official maps."

Appellants allege that because the preferred alternative, if implemented, will change their property's Highway 52 access from direct access to a circuitous and inconvenient route approximately 1.6 miles from the property via a frontage road, they have been unable to market their property as commercial property and the closure of the highway access amounts to a taking without just compensation under the Minnesota Constitution and United States Constitution.1 Mn/DOT argued to the district court that the closure of access Highway 52 is still in the planning stages, notwithstanding Commissioner Molnau's statement in 2004 that appellants' alternative plan would be given no further consideration and that Mn/DOT would proceed with its plans for the preferred alternative. In support of its motion for summary judgment, Mn/DOT submitted an affidavit of Craig Hansen, a Mn/DOT right-of-way project manager. Hansen stated that "MnDOT has not allocated, encumbered, designated, or otherwise set aside any money for funding a project that would close the access opening" onto Highway 52. He further stated that "[a]lthough the preferred alternative for [Highway] 52, referenced by petitioners in their petition, illustrates a preferred development for [Highway] 52, MnDOT is not bound or required to implement it at any future date."

In July 2006, appellants commenced this inverse condemnation action asking the district court to compel Mn/DOT to commence a condemnation proceeding for the right of access between appellants' real property and Highway 52. The district court issued an alternative writ of mandamus that commanded Mn/DOT to commence a condemnation proceeding or answer appellants' petition. Mn/DOT filed an answer and moved for summary judgment on the bases that (1) mere planning without actual taking does not create an entitlement to compensation, (2) a change in the frontage road's access to Highway 52 would merely result in a more circuitous route which does not amount to a compensable loss of reasonably suitable and convenient access, and (3) Mn/DOT has already acquired all right to control direct access across the frontage road located between the property and Highway 52. The district court granted summary judgment to Mn/DOT and dismissed appellants' petition with prejudice, ruling that (1) mere planning to perform a project does not involve a taking for which a landowner is entitled to compensation and (2) the change in access to a more circuitous route does not amount to a taking. This appeal follows.


On appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

The district court's ruling that Mn/DOT's actions amount to "mere planning" appears to be based on dicta found in Spaeth v. City of Plymouth, 344 N.W.2d 815, 820 (Minn. 1984). In Spaeth, the supreme court stated that "[g]enerally, a landowner has no action against a government body for mere plotting or planning, without more, in anticipation of taking land." Id. (emphasis added); see also Fitger Brewing Co. v. State, 416 N.W.2d 200, 206 (Minn. App. 1987) (characterizing the "mere plotting or planning" rule from Spaeth as dicta), review denied (Minn. Feb. 23, 1988). In Spaeth, the supreme court stated that it would not address whether adoption of a plan amounted to a taking because the governmental entity "clearly went beyond the mere planning stage by implementing its storm drainage plan with respect to Spaeth's property." Id.

Appellants argue that cases in which the appellate courts have addressed whether the power of eminent domain has been abused by the planning of projects that never came to pass support a conclusion in this case that more than "mere plotting or planning" has occurred. See Johnson v. City of Minneapolis, 667 N.W.2d 109, 116 (Minn. 2003) (concluding that a taking had occurred where a governmental entity abused the power of eminent domain by misleading property owners while planning for and then cancelling a project); see also Fitger Brewing Co., 416 N.W.2d at 208 (concluding that no taking had occurred because no abuse of the power of eminent domain had occurred where the governmental entity warned that a planned project could be changed or abandoned). But Johnson and Fitger dealt with abuse of the power of eminent domain by planning and then cancelling projects. In this case, the district court's ruling addresses a different question—whether, under Spaeth, Mn/DOT has gone beyond the "mere plotting or planning" stage.

In Spaeth, the supreme court embraced a general rule adhered to by jurisdictions outside Minnesota that "[g]enerally, a landowner has no action against a government body for mere plotting or planning, without more, in anticipation of taking land." 344 N.W.2d at 820. This rule is consistent with the standard adhered to in Minnesota and elsewhere, that a taking certainly occurs "[w]here government action results in a permanent physical appropriation or occupation of property." Id. at 821. Similarly, the rule embraced in Spaeth is consistent with that in many other jurisdictions, that a taking or inverse condemnation claim cannot be brought until there is physical interference with the use of property or until a valuable property right is appropriated, extinguished, or affected.2

Appellants allege a taking of the right of access but their access point remains open and Mn/DOT has given no indication when it will actually implement this plan to close the access point. While we agree with appellants that Mn/DOT's communications strongly suggest that Mn/DOT intends to proceed with its plans to close the highway access and has no intention of changing its plans, the record reveals no indication of when the plans will be implemented. Because nothing in the record demonstrates that the changes are being implemented or are scheduled for implementation, Mn/DOT remains in the "mere plotting or planning" stage. The district court therefore correctly concluded that the "designation of future changes to the [Highway] 52 corridor between Pine Island and Oronoco as a `preferred alternative'" does not entitle appellants to compensation for a taking of any right of access connected to their property. The district court therefore did not err in its determination that "[m]ere planning by a governmental entity to perform a public project does not...

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