Eminent domain will be used for trail property: Preston MN Republican-Leader, 10/10/07

By Lisa Brainard

The last two properties on the proposed Preston-to-Forestville recreational trail will be acquired through the process of eminent domain or, in other words, taken against the wishes of landowners Vernon and Kay Ristau and John and Bernadette Snyder.

Members of the Preston City Council — serving as the agent for a Joint Powers Board which governs the bike trail — made the decision unanimously after nearly two hours of discussion during the Oct. 2 city council meeting.

The Ristaus and Snyders repeatedly asked how the private landowners present at the meeting would like to have strangers on their land or to have their land taken away.

Preston Council members cited reasons why they felt the land should be acquired and purchased for the trail.

Contacted one week after the meeting, Preston attorney David Joerg said the city was still open to negotiations with the landowners.

"We would like to see this dispute settled without any legal proceedings. That would save us all money, including the landowners," he stated.

Before proceeding with eminent domain, Joerg said some survey work needs to be completed offsite on the Ristau property to get the final legal description. That work has already been completed on the Snyder property.

If eminent domain proceedings go forward, Joerg said the two properties would likely be combined. The Ristaus and Snyders will be served with a petition for acquiring the property.

There would be a hearing before a judge, which would determine if taking land for a public bike and recreational trail is a "public purpose." This must be the case for eminent domain to occur.

Joerg said during his interview — and it also was noted at the Preston City Council meeting — that a recent decision in Mower County gives high hopes to the classification of recreational trails for a public purpose. Joerg called it a "landmark case" in the state of Minnesota.

City council member Bob Sauer noted at the meeting his involvement in the process had started in earnest here six to eight months ago. He noted the Mower County case was decided in a short time. There were 14 landowners and eminent domain was used on seven of them. The decision was upheld in an appeals court.

Vernon Ristau, at the meeting, stated this process had been pushed at them for around 10 years.

"When other people say 'no,' can't you let it go?” he asked.

Once it has been determined to be in the interest of public purpose, the judge would appoint three persons to form a commission. Joerg stressed they are from the property appraisal and real estate fields and not county commissioners. They would look at the properties and come to a decision on what should be paid, then filing that information with the court.

The Ristaus and Snyders would then accept or reject the compensation offer. If rejecting, the district court would then set up a trial. Joerg said juries have always heard such trials.

The jury would listen to the information used to figure the valuation and also look at a replacement value for the properties. Then the jury would render a decision.

If all moved smoothly ahead, either by negotiations or by not appealing the value offered for the land in eminent domain proceedings, the whole process could take as little as 60 days to complete.

While hopeful that might happen, Joerg noted the attempt to acquire the land has gone on for several years at this point.

As the council meeting opened, council member Bob Sauer gave a summary of his work with Ristau and Snyder. He had been appointed to try to work out a solution, which might involve an alternate trail location.

Sauer noted that it was not until near the end of his time spent with the landowners that he learned the Department of Natural Resources (DNR) had a set point where they wanted the trail to enter Forestville/Mystery Cave State Park due to the park's geology and topography. He came to understand there would be no exception to that entry point.

Before that time, Sauer said Snyder had come up with several plans to have the trail come across his property in a different manner.

Other trail placements would have required land from different landowners who either had already sold land for the project, or also did not want to have their properties purchased. Going south of the Root River was eliminated as an option.

Sauer stated, "It appears to be the end of the trail and trail proponents have no options. We need to go after it in that fashion."

Dale Wille — a surveyor, bike trail proponent and Joint Powers Board member — then spoke. He noted other trail alignments would require switchbacks and grades of well over the 3 to 4 percent favored for recreational trails. He said that one proposal running from Snyders to the Darrell Ray property would involve a 17 percent slope.

He also said the south side was considered for years and "just wouldn't work."

Then Joerg spoke at the meeting. He also is a Joint Powers Board member. He told how a farmer had mentioned to him that Preston is dying.

"It sunk my heart to hear that. I love this city. We need this trail. We need to get on it soon," he stated.

Landowners speak
Vernon Ristau asked how the council could go with the Joint Powers Board in using eminent domain, when only two of them had ever visited his property. He thanked Sauer for his efforts. He also noted that mayor Kurt Reicks used to hunt on the land.

"It's been in our family for 64 years," said Ristau.

"How would you feel? In your family for 64 years and you're forced to give it up. You'd fight... or have no backbone. I worked hard. Why give it up? How many in Preston will this benefit?" he asked.

His daughter, Tracy Raaen said the trail would not make a difference. She said the city should get something for kids.

John Snyder asked what had happened to the Dollar Store that was supposed to be coming to Preston, to which council members said they took action to help it come, but something else could not be worked out on the developer's end.

Snyder continued, "This is a want. It's not a need."

He said his family and neighbors had supported the Preston community for many years and didn't feel they were being treated well in return.

Kay Ristau said that some of those whose properties had already been acquired were told what they needed to hear to make it happen. She gave an example, saying Neil Haugerud was told it would be a horse trail and would not again give the land up.

Scott Winslow of Fountain spoke as a Farm Bureau member, also emphasizing it was a "want and not a need."

"If we walk in and take half your salary away, you'd put up a stink," he stated. He estimated the landowners could lose from $7,000 to $8,000 a year, both from crops and from other uses of the land by the families.

He also pointed out that the people using the trails leave town; they don't bring kids into the schools. "They won't generate near the income these people will lose."

Ruth Meirick, with the Minnesota Farm Bureau, also spoke against taking land for the trail and cited many potential problems.

Kay Ristau said her insurance agent told her they would be liable for trail users who would wander onto their property and might get hurt. Joerg disagreed, saying there is "recreational immunity." Then Raaen said they had told the attorney during other meetings that his information was wrong.

Arlynn Hovey of Carimona Township asked about gates being left open. He said whether or not there's immunity, repeated problems and insurance claims could get a property owner placed on high rates or kicked off the insurance.

Ristau asked, "If we spray corn and someone has a reaction, who gets sued?"

Kay Ristau added that the income lost on the property would affect the future generations of their family.

Marc Sather of the Jailhouse Inn in Preston talked about the benefits of the trails to the area in the form of lodging tax.

Inez Strahl pointed out the southeastern part of the state is now one of the larger tourist destinations. On the other hand, the landowners asked if some council members didn't have an interest in local hotels.

The topic then turned to having to pay a fee to use the trail, an issue on which everyone appeared to agree; it has been pushed aside by politicians and the DNR.

More discussion
The council members then discussed the issue further, suspending their parliamentary rules for a discussion without a motion on the table.

Questions on "replacement property value" pointed to the use of "fair market value," according to Joerg.

As discussion proceeded, Kay Ristau asked what would happen if the property owners sued the city. "It will cost the city," she said. Family members stated that Joerg would be faced with a conflict of interest. He had said he would do the bike trail work pro bono for the city. The Ristaus said if they sued, the city would need to hire outside counsel.

As the same issues continued to come up from the audience, the council discussion wound down. Sauer made the motion to start eminent domain proceedings to acquire the properties. Heath Mensink seconded the motion. Also voting favorably were Dave Harrison and Jon Haugan. Mayor Reicks does not vote in the procedures used by the Preston Council.

Preston MN Republican-Leader: http://www.stpns.net