STATE BY SPANNAUS v. Hopf

• Decision Date: 27 August 1982
• Docket Number: No. 81-456,81-498,81-519 and 81-544.,81-456
• Citation: 323 NW 2d 746
• Parties: STATE of Minnesota, By Warren SPANNAUS, its Attorney General, Respondent, v. Dexter R. HOPF, et al., Respondents Below, Naegele, Inc., Appellant, Park Properties, Respondent. STATE of Minnesota, by Warren SPANNAUS, its Attorney General, Respondent, v. Grant A. WARD, et al., Respondents Below, Naegele, Inc., Appellant, Joseph L. Winkler, et al., Respondents Below.
• Court: Minnesota Supreme Court

323 N.W.2d 746 (1982)

STATE of Minnesota, By Warren SPANNAUS, its Attorney General, Respondent, v. Dexter R. HOPF, et al., Respondents Below, Naegele, Inc., Appellant, Park Properties, Respondent.

STATE of Minnesota, by Warren SPANNAUS, its Attorney General, Respondent, v. Grant A. WARD, et al., Respondents Below, Naegele, Inc., Appellant, Joseph L. Winkler, et al., Respondents Below.

Nos. 81-456, 81-498, 81-519 and 81-544.

Supreme Court of Minnesota.

August 27, 1982.

Faegre & Benson and Gordon Conn, Jr., Minneapolis, for Naegele, Inc.

Ince Tischleder & Associates and Marvin Liszt, Bloomington, Peterson, Engberg & Peterson and Richard Pepin, Jr., and Bradley Gillan, Minneapolis, for Naegele, Inc. and Naegele Outdoor Advertising Co. of the Twin Cities, Inc.

Warren Spannaus, Atty. Gen., James C. Donnelly and John C. Jeppesen, Sp. Asst. Attys. Gen., St. Paul, for State By Spannaus.

Donald L. Bush, Minneapolis, for Park Properties.

Heard, considered and decided by the court en banc.

WAHL, Justice.

The state seeks condemnation under the Minnesota Outdoor Advertising Control Act, Minn.Stat. §§ 173.01-173.27 (1980) (the Act), of certain advertising devices (signs) owned by Naegele, Inc.¹ The district courts of Hennepin and Ramsey Counties, where the actions were brought, granted the state's petitions as to all signs in question. We have consolidated the appeals from these decisions which we now affirm in part and reverse in part.

The state filed two petitions in Hennepin County on May 30, 1979: State v. Hopf and State v. Duggan. These were consolidated by the court on August 28, 1979, and are referred to herein as the Hopf-Duggan proceeding. The state initially sought in Hopf-Duggan to condemn 20 signs, many of which were subsequently removed from the proceeding. The action now involves only two signs, which are described in the parties' stipulated facts as follows:

5AD1312 which is along State Highway No. 7 on the same side of the highway as Lake Minnetonka Alliance Church in Shorewood. It is 18 feet in a direct line from the sign to the church property and 108 feet in a direct line from the sign to the church building.

5AD0853 which is along State Highway No. 7 across the road from Lake Minnetonka Alliance Church. It is in the village of Greenwood, 175 feet from the church property line and 275 feet from the church building.

Hennepin County District Court granted the state's petition to condemn these signs under the Act on the ground that they are located within 100 feet of a church, in violation of Minn.Stat. § 173.08, subd. 2(2) (1980).

The state also filed two petitions in Ramsey County: State v. Ward and State v. Winkler. These were consolidated by order of the court on April 25, 1979, and are referred to herein as the Ward-Winkler proceedings.² In Ward-Winkler, the state initially sought to condemn 65 signs, 21 of which are the subject of this appeal. The parties have stipulated to the following descriptions of seven signs that the state claims are within 100 feet of a church or school:

9AD2216 which is on the opposite side of Interstate 94 and directly across from First Baptist Church in St. Paul. It is 430 feet in a direct line from the sign to the church property.

9AD2218 which is on the same side of Interstate 94 and 65.5 feet from St. Mary\'s Catholic Church and School Building.

9AD2217 which is on the same side of Interstate 94 and 73 feet from the property line of First Baptist Church. The device is 223 feet from the church building.

9AD2239 which is on the opposite side of Highway 51 and directly across from Macalaster College. It is 100 feet in a direct line from the college property line to the highway right of way and less than 2 feet further along that same line to the sign. 9AD2241 which is on the opposite side of Highway 51 and directly across from the Jehovah Evangelical Lutheran Church. It is 100 feet in a direct line from the church property to the highway right of way line at the point nearest the sign, and less than 2 feet further along that same line to the sign.

9AD2242 which is on the same side of Highway 51 and 82 feet from the property line of the John Hancock School building.

9AD2078 which is on the opposite side of Highway 280 and directly across from Murray High School. It is 540 feet in a direct line from the sign to the property line of the school.

The remaining 14 signs are located in areas which have been rezoned from commercial to residential.

Naegele raises five issues on appeal: (1) whether Chapter 1, Section 3 of the laws of 1979, Ex.Sess., precludes the granting of the state's petition; (2) whether Minn.Stat. § 173.08, subd. 2(2) (1980) prohibits the location of advertising devices in adjacent and business areas as well as in scenic areas; (3) whether 14 M.C.A.R. § 1.5037(F)(4) (1980) provides a reasonable method for measuring the distance from the school or church to an advertising device; (4) whether the exemption of on-premises devices from the prohibition of Minn.Stat. § 173.08, subd. 2 (1980) violates the equal-protection clause of the Fourteenth Amendment; and (5) whether the state may condemn advertising devices in areas that have been rezoned from industrial or commercial to residential.

1. Section 3 of the 1979 Transportation Appropriations Act (T.A.A.) provides that:

Upon enactment of this act the commissioner shall spend no money to acquire highway advertising devices pursuant to Minnesota Statutes, Chapter 173, * * * except those for which acquisition proceedings were begun before enactment of this act, and for which federal money has been appropriated by Congress and the federal share has been made available to the commissioner.

Act of June 7, 1979, ch. 1, § 3, 1979 Minn. Laws, Ex.Sess., 1203, 1204. Naegele argues that this section precludes the granting of the Hopf-Duggan petitions because (a) the acquisition proceedings were not begun before enactment of the T.A.A., (b) federal money had not been appropriated for the purchase, and (c) the federal share had not been made available to the commissioner.³

The T.A.A. was enacted on June 7, 1979, and took effect on July 1, 1979. Minn.Stat. § 645.02 (1980). The Hopf-Duggan petitions were filed in Hennepin County on May 30, 1979, served on Naegele on June 8, 1979, and heard by the court on August 28, 1979. It is Naegele's position that the acquisition proceedings began with the presentation⁴ of the petitions on August 28, 1979, and that they are barred because they were not initiated before the enactment of the T.A.A. The trial court allowed the cases to proceed, however, because it found that the actions had commenced on the date of filing, not on the date of presentation.

We agree with the court below and hold that a proceeding in eminent domain begins with the filing of the petition. This conclusion is mandated by the language of the lis pendens statute which provides that "at the time of filing the petition the petitioner may file for record with the county recorder a notice of the pendency of the proceeding * * *." Minn.Stat. § 117.065 (1980). Reference to "the pendency of the proceeding" after the petition is filed indicates legislative intent that the eminent-domain proceeding begin with the act of filing.

We noted in State v. Appleton, 208 Minn. 436, 440, 294 N.W. 418, 420 (1940) that "it is the filing of the petition in condemnation * * * that authorizes the state at its option to enter upon and take possession of the land sought to be condemned." Since the act of filing authorizes the state to enter upon and take possession of the land, the act of filing begins the eminent domain proceeding.

We find no merit in Naegele's suggestion that the appropriation and availability of federal money for acquisition are requirements which must be met before the court may hear a condemnation petition. In its memorandum accompanying the Hopf-Duggan petitions, the district court pointed out the absurdity of regarding these requirements as jurisdictional:

If Negele\'s contention that this is a jurisdictional issue were accepted, the State would be placed in the preposterous position of being unable to appoint commissioners to determine damages to be awarded until after the commissioners had determined the amount of the damages, thereby showing that the federal monies were adequate.

Even though it was not a jurisdictional requirement, the court did receive evidence of the appropriation and availability of federal money in the form of an affidavit in which the Right of Way Operations Coordinator for the Department of Transportation stated that "there is presently available approximately $1,000,000.00 in Federal funds obligated to this purpose."

2. The Minnesota Outdoor Advertising Control Act (the Act) provides that "no advertising device shall be erected or maintained * * * within 100 feet of a church or school." Minn.Stat. § 173.08, subd. 2(2). Naegele has argued that this statute applies only to devices in scenic areas⁵ and that, therefore, the Act does not give the state authority to condemn the nine devices in adjacent or business areas which it claims are within 100 feet of a church or school. The trial courts concluded that Minn.Stat. § 173.08, subd. 2, regulates devices in adjacent and business areas⁶ as well as those in scenic areas. We agree.

The legislature had previously restricted the application of the church or school prohibition but chose not to do so in the present Act. In its original version, passed in 1965, the Act addressed the prohibition in two sections, Minn.Stat. § 173.16(4) (1965), regulating signs along interstate highways, and Minn.Stat. § 173.46(4) (1965), regulating signs along trunk highways. Neither section referred to any specific area of prohibition, but each was limited by another statute which stated that the church or school prohibition did not apply within areas zoned for business and commercial development. Minn.Stat. §§ 173.12 and 173.42 (1965). In spite of...