Spaeth v. City of PlymouthSpaeth v. City of Plymouth
Plaintiff John M. Spaeth brought this action against the City of Plymouth (“City”) alleging that it has taken without compensation a portion of his property for use as a storm water holding pond in violation of
Since the mid-1960’s, the City of Plymouth has been developing rapidly. In 1973 the City adopted a Storm Drainage Plan “to provide an adequate and economical means of conveying storm water runoff through the [City].” In creating such a plan, a municipality has several design options ranging from the more expensive underground storm sewer system to a less expensive system of holding ponds and drainage easements. In furtherance of its storm water management goals, the City planned to utilize a combination of underground and surface systems to provide the most efficient and economical system. Ponds, swamps and lowlands throughout the City were thus designated as “ponding areas.”
In November of 1974, plaintiff John Spaeth purchased approximately 41 acres of undeveloped land in the City of Plymouth, intending to develop it in the future. A portion of that property is lowland area. According to the 1973 plan, the low areas of Spaeth’s land and other adjoining lands were designated as ponding area “GL-P2”. Spaeth, who was a member of the Plymouth City Council when the 1973 plan was adopted, knew that a portion of his property had been designated as a ponding area, but he expected to be compensated in light
When Spaeth purchased the property, surface water drained through the low area in the southeast corner of his property, then through a ditch (“old ditch”) located on a marsh area of property to the south and eventually to Gleason Lake. The old ditch essentially followed a natural watercourse, but it was deeper than the natural depression. Timothy Skoglund, a registered engineer, opined that, when Spaeth purchased the property in 1974, the drainage of Spaeth’s low land was controlled by the outlet elevation of the old ditch which was at 989 feet. In contrast, the lowest point on Spaeth’s land is at elevation 990.4 feet.
The instant controversy was sparked in 1978 when the developer of land to the south of Spaeth’s eliminated the old ditch and created a new ditch with different drainage characteristics. Witnesses familiar with Spaeth’s property testified about water conditions existing there before the elimination of the old ditch. According to them, surface water accumulated on the low area in the spring due to melting snow and rain, but that ditch drained the water by June and the lowland area existed as a dry meadow thereafter. One witness did testify that water would also accumulate whenever there was a heavy rain of 6 to 8 inches and that it would take approximately one week to “dry out pretty good.”
Sometime prior to 1978, Northland Mortgage Company (“Northland”) acquired the land south of Spaeth’s on which the old ditch was located. Northland subsequently platted that property for residential development as the Maple Creek addition (“Maple Creek”). With respect to the grading of that site, Peter Molinaro, a project engineer, testified that “the City’s Storm Sewer Plan [required Northland] to provide a pond [GL-P2] to the north.” To design the grading plan, project engineers for North-land met with the City and its consultant to get “the elevations and the flows from that pond.” Northland eventually submitted a grading plan to the City which it referred to its consulting engineers “to review the plan for conformance with the storm drainage plan.” The 1973 Storm Drainage Plan required the control elevations of GL-P2 to be at elevation 995 feet and a 100-year flood elevation at 998. 1
Northland began developing the site in 1978. In the latter part of 1978, it filled in the old ditch and built a new ditch according to the grading plan. Northland installed an earth berm in the new ditch. The top of the berm was at an elevation of approximately 998 feet. It then intended to install an overflow structure north of that berm to control the water elevation of the ponding area at 995 feet. According to the plan, water overflowing that control structure would drain through a pipe at the bottom of the berm at a controlled rate. That control structure was never installed.
Before Northland could install the control structure, Spaeth complained to the City that his property was being flooded. On April 11, 1979, the City investigated the matter and found the water level to be at elevation 994.45 feet. Fred Moore, Director of Public Works, decided to lower the berm to the contour of the ditch immediately downstream of the berm. In April
Since that time, the outlet elevation of the new ditch has been controlled at approximately 993 feet. Skoglund gave his opinion that the new ditch thus raised normal water levels “from the essentially water-free condition somewhere below elevation 991 to a normal water level now of elevation 993.” The evidence at trial tended to show that standing water has occupied the center and southeast area of Spaeth’s lowland since that time as a result. Kent Lokkesmoe, a regional hydrologist employed by the Department of Natural Resources, testified that he estimated the ordinary high water level of GL-P2 to be at elevation 993.7 feet as of April 7, 1982. 2 Spaeth’s lowland area has also undergone physical changes, marked by the dying off of trees and the increasing presence of aquatic vegetation such as cattails. The land also presently provides a habitat for species of animals associated with’ freshwater marshes, including ducks, geese and muskrat. According to Spaeth, those species were not present before 1978.
After leaving his position as a city council member in 1979, Spaeth began to work on plans to develop his property. The development was to be known as Lillie Pond. When Spaeth submitted a development proposal to the City in early 1980, it discovered that the contour maps upon which it relied to design GL-P2 were erroneous. Those-maps showed the elevations on Spaeth’s property to be approximately two to four feet higher than the actual elevations of that property. For example, the erroneous maps showed the lowest point on Spaeth’s land to be at elevation 994 feet, while it was actually 990.4 feet. Prior to adopting any changes, the City was advised by its consulting engineer in a letter dated September 24,1980, that the outlet elevation of the marsh was “somewhat below elevation 991” before the creation of the' Maple Creek Development. In that same letter, the City was further advised of the following alternatives with respect to revising the specifications for GL-P2:
A normal water level (for storage purposes) of 991 would require some downstream revisions in the outlet channel through the Maple Creek plat to the south. This channel was changed as a part of that Development in accordance with the then existing ponding criteria for GL-P2. A normal water level of 992.5 would not require any downstream revision and would represent the now existing water level in the marsh * * *. The 9925 [sic] elevation also results in up to IV2 feet of water in the marsh which would be more beneficial for wildlife habitat.
In November of 1980, the City adopted its second Storm Drainage Plan. The low area on Spaeth’s property was again designated as part of GL-P2. This time the City adopted a control elevation of 992.5 and a 100-year flood level of 995.5 for GL-P2. The City also increased the storage area of GL-P2 from 55 acre feet to 69 acre feet and reduced the pond outflow from 10 cubic feet per second (CFS) to 5 CFS.
3
Those latter changes were intended to increase the storage to compensate for increased discharge by Maple Creek. Unlike the 1973 plan, the 1980 plan did not provide cost estimates for certain ponding areas such as GL-P2 because the City assumed that those ponding areas “would be set aside for public use at no expense to the [City],” “[b]ased on DNR regulations which
During 1980,' Spaeth submitted several development plans which were rejected by the City. He presently has no plans before the City. According to Spaeth, he filed this action because the City would not give him either density credit or monetary compensation in exchange for the holding pond it allegedly created on his property.
The following issues are presented to this court:
(1) Under these facts, has the City taken the plaintiff’s real property in violation of
(2) If so, is the plaintiff property holder entitled to an award of attorneys’ and experts’ fees pursuant to
(3) In such a case, are pre-litigation expenses incurred by plaintiff recoverable?
(4) Did the trial court have continuing jurisdiction to issue an order awarding such fees after an appeal was perfected by the City?
1. Finding that the City has permanently flooded a large portion of Spaeth’s property, the trial court ruled that it had taken private property for public use without just compensation in violation of
The trial court was not clearly erroneous in finding that (1) even though surface waters generally accumulated on Spaeth’s lowland in the spring due to melting snow and rain before the old ditch was eliminated in the fall of 1978, that ditch drained the water by early June and left the lowland as a dry meadow thereafter, and (2) standing water has continually occupied a large portion of Spaeth’s property since Northland eliminated the old ditch and created the new ditch which raised the outlet elevation of the area in question. The City, however, adamantly disavows responsibility for the standing water on Spaeth’s property. The City contends that the increased accumulation of water has been caused either by increased development in the area or by heavy rain, rather
Nevertheless, the City contended at oral argument that there has been no taking under the enterprise/arbitration test recently adopted by this court in
McShane v. City of Faribault,
[Wjhere there is a physical appropriation of property there is unquestionably a “taking” even where it is sought to avoid payment upon the ground that the appropriation was made in the exercise of the sovereign’s police power. It is universally conceded that when land or other property is actually taken from the owner and put to use by the public authorities, the constitutional obligation to make just compensation arises, however much the use to which the property is put may enhance the public health, morals or safety.
2 J. Sackman, Nichols’ Law of Eminent Domain § 6.05 (rev. 3d ed. 1983).
The City alternatively argues that there has been no taking under the “physical government activity” standard set forth in
McShane.
There, we stated that “a compensable taking has occurred,” when physical government activity “causes a definite and measurable decrease in the value of plaintiffs’ property and interferes with the current practical enjoyment of the property.”
2. Defendant challenges the trial court’s holding that Spaeth is entitled to attorneys’ and experts’ fees pursuant to
If a person successfully brings an action compelling an acquiring authority to initiate eminent domain proceedings relating to his real property which was omitted from any current or completed eminent domain proceeding, such person shall be entitled to petition the court for reimbursement for his reasonable costs and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred in bringing such action. Such costs and expenses shall be allowed only in accordance with the applicable provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 [hereafter “Relocation Act”] [42 U.S.C. § 4601 et seq. ] * * *.
(Emphasis added.) Defendant argues on appeal, as it did below, that there was no evidence that Spaeth’s property was omitted from any current or completed eminent domain proceeding and, therefore, Spaeth is not entitled to those fees pursuant to that statute. The trial court rejected that argument, ruling that Spaeth was entitled to attorneys’ and experts’ fees pursuant to
A literal reading of the statute tends to support defendant’s position. However, we must construe the statutory language to avoid reaching an absurd or unreasonable result.
Milbank Mutual Insurance Co. v. Kluver,
3. Defendant next challenges the amount of the attorneys’ and experts’ fees awarded to Spaeth. The trial court found that Spaeth incurred attorneys’, surveyors’ and appraisers’ fees totaling $82,697.64. Although some of those fees were also incurred with respect to the proposed Lillie Pond Development, it concluded that such work was also necessary for prosecution of this action. To account for the dual purpose underlying some of the fees, the court arbitrarily reduced the total by 20%, awarding Spaeth $66,158.12 for attorneys’ and experts’ fees pursuant to
On appeal defendant does not challenge the attorneys’ and appraisers’ fees, totaling $50,751.50. However, it does challenge the following fees on the ground that they were incurred prior to litigation:
DeMars Gabriel Land Surveyors, Inc. $14,885.40
Westwood Planning & Engineering Co. 9,198.63
James P. DeBenedet, Engineering Consultant 1,726.86
It argues that pre-litigation expenses cannot be recovered pursuant to
This court has not previously addressed the issue of whether
Defendant urges us to follow that case. We decline to do so. Although such a bright line test is appealing, we do not agree that the terms of the statute necessarily preclude recovery of pre-litigation expenses such as those related to ascertaining the extent of one’s property right or those related to attempts at amicably set
In the instant case, we conclude that the trial court did not err in including the disputed fees in its computation of the fee award. Generally speaking, we agree with plaintiff that the fees incurred with respect to the proposed Lillie Pond Development were also necessary to prosecute this action because (1) Spaeth determined that he would have to take the matter to court to gain appropriate relief; (2) many exhibits at trial arose from that work; and (3) much of the information developed was relied on heavily by his key expert witness in preparation for and at the trial. Significantly, the trial court did not award the disputed fees to Spaeth in full. Rather, it reduced the total fees by 20% to account for the dual nature of some of the fees. 7 Having conducted the trial and the hearing on the fees issue, the trial court is in the best position to determine the extent to which those fees were necessary to the prosecution of the action. We therefore hold that the trial court did not abuse its discretion on this record in calculating the fee award in the manner that it did.
4. Finally, defendant challenges the trial court’s continuing jurisdiction to issue the order setting the amount of Spaeth’s fees in the circumstances of this case. Pursuant to a judgment entered on September 1,1982, the trial court granted Spaeth’s petition for a writ of mandamus to compel defendant to initiate eminent domain proceedings and ordered the city to do so within 30 days. Having also concluded that Spaeth was entitled to costs and expenses, including reasonable attorneys’ and experts’ fees pursuant to
On appeal, defendant claims that the district court had no jurisdiction to enter that order and, therefore, it is void. It contends that we must vacate that order and remand for the district court to redetermine the amount of Spaeth’s fees. Minn.R.Civ.App.P. 108.03 provides that the perfection of an appeal “shall stay all further proceedings in the trial court upon the judgment or order appealed from or the matter embraced therein;
but the trial court may proceed upon any other matter included in the action, and not affected by the judgment or order appealed from."
In the past, this court has stated: “Pending a duly executed appeal, the jurisdiction of a trial court is
suspended
only to those matters necessarily involved in the appeal, not as to those matters which are independent of, or which are supplemental to, the appeal or collateral to the proceeding in which the appealed order or judgment was rendered.” (Emphasis in original.)
State v. Barnes,
The parties thus take issue as to whether the order setting the amount of Spaeth’s
Terket
addressed the question of whether a trial court retains jurisdiction to award attorneys’ fees pursuant to
We think that the reasoning of
Terket
is sound, especially as applied in the instant case. Here, all parts of the case are now before the court. If the trial court had not entered the order setting the amount of fees, this court would be required to remand for further proceedings since we have upheld the trial court on the merits and on its ruling that Spaeth was entitled to fees and expenses pursuant to
The City, however, contends that the instant case comes squarely within the language of Rule 108.03 and, therefore, the cases cited by Spaeth do not apply. It first points out that the initial judgment from which it appealed determined that Spaeth was entitled to fees and expenses. Thus, once it perfected its appeal from that judgment, it contends that the district court had no jurisdiction to determine the amount of Spaeth’s fees because that matter was related to the judgment appealed from and not a collateral matter.
There is no merit to the City’s contention. The order concerning the claim for attorneys’ and experts’ fees was not final and appealable until the trial court set the amount of Spaeth’s award. Thus, even though the trial court had also ruled that Spaeth was entitled to costs and expenses pursuant to
Having decided the case in this manner, we need not discuss the possible application of
Affirmed.
Notes
. The term "control elevation,” also known as the "normal water level,” does not mean that the water would always be at that level in the low area. Rather, it means that the water would flow out of the low area once it went over that level. The "hundred year water level” means "the water level that is expected to be reached on the average of once every one hundred years."
.
. Spaeth’s lowland would be required to provide 50% of the storage for GL-P2 (34 acre feet).
. Courts have not been reluctant to find a taking where zoning ordinances provided only for public use of the property.
See Bartlett v. Zoning Commission of the Town of Old Lyme,
. Because we hold that there has been a taking, we need not address the City's argument that its actions should be judged by the “reasonable use" doctrine and that it reasonably diverted surface water onto Spaeth’s property.
See Ste-yens v. State,
.
. Although the trial court reduced the total fees by 20%, that in effect reduced the disputed fees by a much higher percentage because the city did not contest the amount of the attorneys’ and appraisers’ fees, totaling approximately $50,000.
. The writ of mandamus ordered the City to initiate eminent domain proceedings by October 1, 1982.