Water Laws

Is a sanitary sewer ordinance “just and equitable” where it charges commercial properties a fee for metered use but charges dwellings a flat fee, and where it charges part-year dwellings on an assumption of year-round use?

Golden Rule Estates Owners Ass’n v. City of Crosslake, A04-1752 (Minn. Ct. App. 2005) (unpublished)

Part-year residents challenged a municipal sanitary sewer ordinance charging dwellings on the basis of full-year flow and basing commercial charges on metered usage but applying a flat residential charge. The Court of Appeals upheld the District Court’s award of summary judgment to the City of Crosslake. It found that rate-setting is a legislative activity to which the court must defer. It further found that the residents failed to carry their burden to show that the charges were not “just and equitable” under Minnesota Statutes §444.075. An assumption of full-year flow was justified to ensure sufficient capacity in the event of full-year habitation and the fee approach was justified by the infeasibility of monitoring actual use on a dwelling basis.

Does Minneapolis’ sewer charges ordinance comply with state law?

JAS Apartments, Inc., et al., v. City of Minneapolis, C5-02-2058 (Minn. Ct. App. 2003)

Minneapolis system of sewer charges whereby both sanitary sewer and stormwater sewer system are paid for exclusively by assessment of property owner based on water consumption upheld. Apartment owner challenge that such system is not “just and equitable” as required by Section 444.075, subd. 3, rejected, given section’s specific authorization of charges based on water consumed.

May a county order property owner to remove dock on shoreline parcel reserved to public for open road and common?

Jennen v. County of Aitkin, C7-02-1994 (Minn. Ct. App. 2003) (unpublished)

Dismissal of property owner’s challenge to county order to remove dock affirmed. Dock was placed on shoreline property within an open road and common dedicated to public use in 1917 plat. Notwithstanding lack of county plans to develop road, and the fact that dock does not block public right of way, property owner failed to state a claim for relief. Property owner’s claim for adverse possession was also properly dismissed, as one cannot obtain title to public land by adverse possession unless the municipality has abandoned use or private improvements in good faith give rise to estoppel.

May county deny conditional use permit for RV park based on more restrictive local lake classification?

In re Conditional Use Permit Application of Richard Gurtek, et al., C9-02-278 (Minn. Ct. App. 2003) (unpublished)

Chisago County Board of Commissioners’ denial of conditional use permit for 99-site RV park upheld, based on finding that proposed land use would be harmful to Runrise Lake, a natural environment lake under the County’s shoreland management ordinance. Although Sunrise Lake is larger than DNR’s criteria provide for the natural environment lake classification, local governments are free to adopt more restrictive controls.

Does an ordinance prohibiting storage boats on Lake Minnetonka promote the public welfare? May it abridge preexisting nonconforming uses?

Hawks v. Lake Minnetonka Conservation District, 1999 WL 138731 (Minn. Ct. App. 1999) (unpublished)

Hawks, a property owner on Lake Minnetonka, built a storage boat to house a 1929 wooden speedboat. Thereafter, the Lake Minnetonka Conservation District adopted an ordinance prohibiting storage boats on the lake. Hawks was charged with a misdemeanor violation and brought an action challenging the validity of the ordinance.

The court rejected Hawk's argument that the ordinance has no substantial relationship to the public welfare, finding that it allows for more open waters and maintains the natural beauty of the lake.

Hawks asserted that the storage boat was a preexisting nonconforming use that could be abridged only through the exercise of eminent domain. The Court, noting that riparian ownership extends only to the low-water mark, ruled that the exercise of public rights beyond this boundary did not constitute a taking. Further, it found, Hawks could remove the boat from the lake and use it elsewhere, or convert it to a houseboat, so that he had not been deprived of all reasonable use.

Finally, Hawks claimed that the ordinance was invalid as an ex post facto law. The court disagreed, stating that the appellant was being prosecuted not for his past conduct, but instead for continuing to maintain the boat on the lake after the ordinance was adopted.

May a city regulate docks under Minn. Stat. 412.221, subd. 12?

City of Minnetonka v. Wartman, 1998 WL 62002 (Minn. Ct. App. 1998)(unpublished)

Appellant, an owner of unimproved property on Lake Minnetonka, tore down and rebuilt a dock on the property. The City of Minnetonka ordered the appellant to remove the dock under an ordinance prohibiting an accessory use unconnected to a permitted use. The Court denied Wartman's request for declaratory relief, noting the express authority of cities to regulate docks found at Minn. Stat. § 412.221, subd. 12 (1996).

Wartman argued that the Lake Minnetonka Conservation District should be found to have exclusive authority to regulate docks on the lake, invoking Welsh v. City of Orono, which found exclusive DNR jurisdiction to regulate dredging of the lakebed. That holding, the Court reasoned, rested on the fact that dredging affects the entire lake. Conversely, a dock abuts land within a given city and is appropriately controlled by the City.

Finally, the Court denied Wartman's request to amend his petition to assert a takings claim. The Court advised that this would serve no purpose; the zoning ordinance was enacted fur years before Wartman bought the property, and hence any hardship was self-imposed.

May "anecdotal" testimony alone justify county denial of a docking facility when the record contains expert testimony supporting the application?

BECA of Alexandria v. County of Douglas, 607 N.W.2d 459 (Minn. Ct. App. 2000)

BECA sought conditional use permits for two residential planned unit developments (PUD's) on Lake Darling in Alexandria. The County ordinance requires PUD's on shorelands to centralize dock facilities in order to minimize shoreland impacts. At the planning commission hearing, neighboring residents expressed "anecdotal" concerns, but offered no expert testimony. On the basis of those concerns, the planning commission recommended permit denial on the basis of (1) common sense; (2) an expected 20% increase in boat traffic; (3) concern for degradation of water quality; and (4) water levels deemed inadequate for the expected boat traffic. The County Board thereafter held two hearings on the proposal, at which residents reiterated their opposition but, again, offered no expert testimony. The Board approved the preliminary plats and issued CUP's, but prohibited docks, rafts, buoys and watercraft mooring areas due to "concerns for the aquatic ecosystem (i.e. fishing and wildlife) and the shallow depth of the water."

The Court of Appeals observed that denial of all docking facilities constituted a "severe limitation" of the riparian right. The Court further noted that in support of its application, BECA produced a DNR permit, documentation of Township approval and an environmental assessment prepared by its consultant. Noting the established principle of state law that expert testimony may not be rejected without adequate supporting reasons, the Court found the Board's decision to be arbitrary. The Court remanded to the Board solely to determine the number of slips to which BECA was entitled.