Judge hears city’s case for land access: West Central Tribune, Willmar MN, 7/7/07

By David Little

Attorneys argued Friday about such topics as eminent domain, legislative intent and the order in which certain procedures must be done during a hearing about the city of Willmar’s access to private land.

The city is requesting court approval for access to private land to establish the route for the new wastewater treatment plant’s interceptor sewer line and for Jennie-O Turkey Store force mains.

A portion of the proposed route crosses private land between County Road 5 and County Road 116 where landowners have denied access to perform preliminary soil studies.

The landowners prefer a route that avoids their property. They want the route to follow County Road 5 north to Highway 40, then west to County Road 116, and then south to the site of the new treatment plant.

Treatment plant consultants Donohue and Associates estimate the route preferred by the landowners would add about $7.75 million to the plant’s $70 million estimated cost.

The city of Willmar is seeking court approval for access to the private land for preliminary sewer work. The landowners are asking the court to deny the city access.

Attorneys for both presented their arguments during a 45-minute hearing Friday afternoon before Judge Michael J. Thompson in Kandiyohi County District Court. Thompson said he’ll take the case under advisement and rule as quickly as possible.

Representing Willmar were Robert Lindall and John LeFevre of Minneapolis. Lindall said the city wishes to have its appraisers inspect the properties for appraisal purposes, to survey the properties, to begin activities to delineate wetlands, and to conduct soil boring activities.

The city said it needs the court order to allow appraisal of the property interests. Although the city could first begin eminent domain proceedings before seeking the court order to enter the properties, state law requires a condemning authority to obtain an appraisal and make offers of compensation to landowners before eminent domain proceedings are filed, according to Lindall.

The city has been unable to finally determine the property interests to be acquired and complete the appraisal because access to the properties has been denied, said Lindall.

Further delays in gaining access may cause project costs to increase and may cause the city to breach its obligations to provide adequate wastewater treatment and disposal, he said.

The landowners, represented by William Smoley and Igor Lenzner of St. Cloud, asked the court to deny the city the right to enter their properties. The landowners said state law does not apply because the city has not yet filed eminent domain proceedings.

Smoley said a subdivision of state law does allow certain environmental testing before eminent domain proceeds. If the Legislature intended that subdivision to allow for surveys and examination before eminent proceedings, the city would have used that language but did not, said Smoley.

He said his clients have legitimate reasons to keep the city off their property, such as concerns about the spread of crop diseases and “inevitable’’ intermingling of sterile soil with top soil.

Smoley said farm fields are crisscrossed with drainage tile, some of which are uncharted. Damage to any line, but especially uncharted lines, will cause devastating harm, he said.

Lindall cited state law that would allow the city to enter private land to make surveys while doing no unnecessary damage. The city said if the Legislature wanted to restrict such entries, it would have stated that entries would be allowed after eminent domain proceedings are filed, he said.

In response to a question from the judge, Smoley said the city could enter the properties to perform surveys and exams if the city first files a petition for eminent domain.

Smoley said if the city files a petition for eminent domain, the landowners will have the right to challenge the sewer line route on the basis of purpose and necessity.

“Then we will have a venue to argue the damage and harm they have caused,’’ Smoley said.

Lindall asked the judge to quickly deny the city’s motion, if the judge was so inclined, so that the city could file a petition to begin eminent domain proceedings.

West Central Tribune, Willmar MN: http://www.wctrib.com