Newsmakers in 2019: Eminent domain cases popping up in Southeast Minnesota

December 30, 2018
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Say a city wants to build a road, a bridge, an airport or some other piece of infrastructure that it believes to be in the public good. What happens if a county wants to realign or widen a road?

Most times, the governmental entity needs to acquire land from private citizens.

But if the landowner won’t sell, not at any price, the government has a choice to make. It can give up on the project or, more likely, try to acquire the land through eminent domain.

“What would our highway system look like without it?” asked Stewartville City Administrator Bill Schimmel.

The answer, he said, is “a mess.” Instead of straight highways where we can all drive quickly from city to city and state to state, roads would take odd turns or stop for seemingly no reason.

That’s the battle the city of Stewartville will take up Jan. 22 when it goes to district court for an eminent domain hearing over a 66-by-66-foot plot of land it wants to acquire to complete the 500 block of Fourth Avenue Southeast.

The city asked, begged and pleaded with landowner Daniel Ware for the small square from the middle of his long, thin acre of land in the middle of town. Ware, however, has said he’s not interested in selling at any price, and he plans to fight.

Stewartville’s and Ware’s fight is just the first of what will be at least two eminent domain cases in Southeast Minnesota making headlines over the next year. In Wabasha County, at least two landowners said they have zero intention of selling land for a proposed and approved realignment project near Weaver.

Jim Johnson and Paul Wotzka, a pair of landowners who have said the proposed road project isn’t worth any price, said that if the county pushes the issue, it will have eminent domain fights on its hands from each of them.

“Absolutely,” they said.

In both cases, the landowners said they simply believe the proposed project is a bad project, and no amount of money will change their minds.

That rarely matters these days, said Minneapolis-based attorney Gary Van Cleve, of Larkin Hoffman Attorneys. Van Cleve, who represents another landowner concerning a second road realignment project in Wabasha County, said that nowadays, public purpose is not challenged. The issue then is whether the condemning authority is paying just compensation.

“The eminent domain cases that go to court become valuation disputes,” he said.

Often, landowners make the claim that the project should not go through their land but take a different route or be placed in another spot. “In law school, they’ll say it’s a matter of whose ox gets gored,” he said.

In other words, if the project is worthy, someone’s land needs to be taken. And if the condemning authority — the city, county, township or even federal government — has made that decision, a judge is reluctant to say a governing body has no authority to make those kinds of decisions.

“Most of those decisions come down on the side of the government,” he said. “A judge will say that’s a policy decision they have the authority to make and I don’t have the authority to second-guess them.”

Van Cleve, an attorney with the Minnesota Eminent Domain Institute, said in the early 2000s, eminent domain was starting to make a shift from infrastructure projects to cases where property was taken from one private entity and given to another for the purpose of economic development.

“That was a very hot issue in the earlier 2000s,” he said referring to the case of Kelo v. the City of New London, Conn.

“While the (U.S.) Supreme Court said it was a legitimate exercise of power, state legislatures decided they didn’t like government taking private property from one party and giving it to another private party,” Van Cleve said.

Minnesota quickly became one of those states, writing laws that helped landowners against economic development takings and also provided a mechanism for reclaiming attorneys fees.

While Johnson, Wotzka and other landowners near Weaver are waiting to see — and turn down — offers from Wabasha County over the realignment of County Road 26 and Minnesota Highway 74, Ware has a court date for his fight against the city of Stewartville.

Schimmel said that while it’s easy to blame big government picking on a private citizen, that government is made up of citizens – the mayor and city council – simply trying to weigh the needs of the city against the private property rights of one of the town’s citizens.

In this case, he said, its Ware’s desire to keep his land in one piece vs. the city’s need to complete a road for a multitude of reasons.

“This was a last tool that was available for us to use,” Schimmel said, referring to eminent domain. “We’d tried to work something out.”

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