2018-04-20 Notice of Filing of Findings of Fact, Conclusions of Law, and...10-CV-18-73Electronically Served
4/20/2018 10:03 AM
Carver County, MN
10-CV-18-73
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STATE OF MINNESOTA
COUNTY OF CARVER
DISTRICT COURT
FIRST JUDICIAL DISTRICT
Northern States Power Company (d/b/a Xcel
Energy), a Minnesota corporation, by its Board of
Directors,
Petitioner,
vs.
Chaska Hazeltine Investors, LLC, a Delaware
limited liability company; City of Chaska;
Beckman Coulter, Inc., a Delaware corporation;
RBS Financial Products, Inc., a Delaware
corporation, f/k/a Greenwich Capital Financial
Products, Inc.; Midcountry Bank, a Federal
Savings Bank; State of Minnesota; RAS Properties
Chaska, LLC, a Minnesota limited liability
company; Magellan Pipeline Company, L.P., a
Delaware limited partnership, f/k/a Williams
Brothers Pipe Line Company; OSM-LOR, LLC, a
Minnesota limited liability company; Cheryl
Stinski as Personal Representative of the Estate of
Roland Audley Stinski a/k/a Roland A. Stinski;
Cheryl L. Stinski a/k/a Cheryl Stinski; First
Farmers & Merchants National Bank, a national
bank; RAS Properties McKinley, LLC, a
Minnesota limited liability company; Lois R.
Degler, as Trustee of the Lois R. Degler Trust;
Gayle O. Degler and Lois J. Degler, as Trustees of
the Gayle O. Degler Revocable Trust, u/a/d
April 11, 1997, as amended; City of Chanhassen;
and Carver County,
Respondents.
Case Type: Condemnation
Court File No. 10-CV-18-73
FINDINGS OF FACT,
CONCLUSIONS OF LAW,
AND ORDER GRANTING
PETITION, QUICK-TAKE
MOTION, AND REGARDING
COMMISSIONERS
IN THE MATTER OF THE CONDEMNATION OF CERTAIN REAL PROPERTY
INTERESTS IN CARVER COUNTY, STATE OF MINNESOTA,
FOR ELECTRIC TRANSMISSION LINE PURPOSES
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INTRODUCTION
The above-captioned action came on for hearing before the Honorable Michael
D. Wentzell, on April 17, 2018, on Petitioner s Petition, its Motion for an Order Granting
Petition, and its Motion for an Order Transferring Title and Possession pursuant to Minn.
Stat. § 117.042.
Petitioner appeared by its attorney, Patrick D.J. Mahlberg, Fredrikson & Byron,
P.A., 200 South Sixth Street, Suite 4000, Minneapolis, Minnesota 55402-1425.
Respondent Chaska Hazeltine Investors, LLC appeared by its attorney,
Christopher S. Hayhoe, Felhaber Larson, 220 South Sixth Street, Suite 2200, Minneapolis,
Minnesota 55402. Respondent CHI is the fee owner of the land designated as Parcel 3 in
this action.
No objections were received prior to the hearing and no other appearances were
made at the hearing.
Certain stipulations and/or agreements were reached prior to the hearing with
non-fee interest holders in each of the parcels at issue, which stipulations and/or
agreements are reflected herein. Consequently, no objection or appearance was made on
behalf of the fee owners or any other party owning an interest in the lands designated as
Parcel 6 or Parcel 10 in this action.
Prior to the hearing, Petitioner submitted a proposed Findings of Fact, Conclusions
of Law, and Order Granting Petition, Quick-Take Motion, and Regarding Commissioners,
an amended proposed Findings of Fact, Conclusions of Law, and Order Granting Petition,
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Quick-
Supporting Authority for the Exercise of Eminent Domain.
Petitioner, through its counsel, appeared at the hearing prepared to offer testimony
through company witnesses Benjamin Gallay and Brian Sullivan, as well as through
Andrew Romine from the City of Chaska. In lieu of offering that testimony, the parties,
of its Petition and Quick-Take Motion, referencing facts as alleged in the Petition or that
would be elicited through testimony. Respondent would offer argument as
agreed that, if there were any dispute about the facts
offered by Petitioner, that counsel would raise them and then testimony could then be
obtained. With this stipulation made, the parties also stipulated to the admission of four
exhibits offered by Petitioner, as follows:
Exhibit 1 Aerial Map Depicting the Project and certain other
information;
Exhibit 2 Survey Sketch Depicting and Describing the Easement Area
across Parcel 3;
Exhibit 3 Survey Sketch Depicting and Describing the Easement Area
across Parcel 6; and
Exhibit 4 Survey Sketch Depicting and Describing the Easement Area
across Parcel 10.
Petitioner and Respondent CHI then proceeded to make their arguments
-Take Motion. No request for additional
testimony was made by Respondent CHI.
material dispute as to the facts as recited in the hearing or set forth in the Petition. At the
conclusion of the hearing, the Court directed Petitioner and Respondent CHI to submit
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proposed findings, conclusions of law, and order(s) on April 18, 2018. On April 18,
2018, the Court received those proposed findings, conclusions of law, and order(s) from
Petitioner and Respondent CHI, respectively.
Having heard the evidence adduced at the hearing and the arguments of counsel,
and based on all the files and records herein, the Court makes the following Findings of
Fact, Conclusions of Law, and Order Granting Petition, Quick-Take Motion, and
Regarding Commissioners:
FINDINGS OF FACT
1. Petitioner Northern States Power Company (d/b/a Xcel Energy) is a
corporation duly organized and existing under the laws of the state of Minnesota. This
its governing
body.
2. Petitioner is a public utility and public service corporation duly organized,
created, and existing under and by virtue of the laws of the state of Minnesota, having
its principal place of business at Minneapolis, Hennepin County, Minnesota, for the
purposes, among others, of generating, transmitting, and supplying electric power and
energy for public use.
3. In the conduct of its business, Petitioner maintains and operates numerous
generating plants, electric substation facilities, and an extensive transmission and
distribution system for the generation, transmission, and supply of electric power and
energy for public use.
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4. In furtherance of its business of generating, transmitting, and supplying
electric power and energy to the public, Petitioner seeks to acquire certain real property
rights for use in connection with the construction of approximately 1.5 miles of new 115
(Line #5570) and associated facilities (collectively, the
in Carver Coun The Project is generally depicted on
Exhibit 1 and the particular Easement Areas are set forth in Exhibits 2, 3, and 4,
respectively.
5. The Project is required in order to serve a new substation, which is needed
to provide increased reliability of electric service in the City of Chaska and will reduce
overloads on neighboring lines and transformers. The City of Chaska provides electric
distribution service, but does not have its own transmission facilities. As a result, the
City of Chaska needs an electric transmission provider to deliver adequate power to its
115 kV substation. As shown on Exhibit 1, the City of Chaska selected a location for its
d west of an existing railroad
corridor.
6. The City of Chaska and Petitioner engaged in discussions and reached an
agreement whereby Petitioner would provide adequate electricity to the City of
7. In order to provide that electricity, Petitioner examined ways to connect
new substation and an interconnection point near the intersection of Lyman Boulevard
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and County Road 15 was reasonably necessary and convenient to accomplish its goals
and obligations. The location of that interconnection point is shown on Exhibit 1.
8. Petitioner then considered options for routing the new transmission line
considered multiple factors in determining its route, ultimately settling on the route that is
generally depicted on Exhibit 1. In somewhat general terms, this route travels west from
follows that corridor in a northeasterly direction to the southerly border of Lyman
Boulevard, than travels along the south side of Lyman Boulevard to the designated
interconnection point.
9. Respondent CHI owns property that is east of the railroad corridor at the
point where the Project crosses over that corridor. Respondent CHI did not file written
objections prior to or at the hearing. At the hearing, Respondent CHI did not object to the
domain to acquire easements necessary for construction of the Project, but rather asserted
that the transmission line should be routed along the west side of the railroad corridor or
Respondent CHI did not present any
additional evidence.
10. The Project and the Facilities are necessary and serve a public purpose,
including the transmission of electric power and energy to the public.
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11. Minn. Stat. §§ 216E.12, 222.36, and 301B.02 grant Petitioner the right to
acquire real property for the purposes stated herein by exercise of the power of eminent
domain, in the manner prescribed by Minn. Stat. Ch. 117.
12. On January 22, 2018, Petitioner initiated the above-captioned action by filing
its Petition with the Carver County Court Administrator.
13. To accomplish the foregoing public use and purpose of constructing the
Project and the Facilities, it is reasonably necessary and convenient for Petitioner to
acquire by exercise of the power of eminent domain perpetual easements and rights-of-
way to survey, construct, operate, maintain, use, upgrade, rebuild, relocate and/or
remove a transmission line facility with one or more circuits, with all towers, structures,
poles, foundations, crossarms, cables, wires, guys, supports, counterpoises, fixtures, and
equipment related to said transmission line facility, together with communication
equipment relating to the operation of such transmission line facility through, over, under,
and across the real property described in Exhibit A to the Petition. The easement rights to
be acquired by Petitioner are specifically described in Exhibit B to the Petition.
14. The owners and occupants of the property described in Exhibit A to the
Petition shall have the full use and enjoyment of the easement areas and rights-of-way, so
long as said use and enjoyment is consistent with Petitioner s rights as set forth in
Exhibit B to the Petition, which, in addition to describing the easement rights to be
areas and rights-of-way.
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15. Petitioner has complied with all applicable requirements of Minn. Stat.
Ch.117.
16. The legal description of the property affected by the taking and
the names of those appearing of record or known to Petitioner to be the owners of said
Property or interested therein, including all whom Petitioner has, by investigation and
inquiry, been able to discover, together with the nature of the ownership of each, as
ascertained by Petitioner, are set forth in Exhibit A to the Petition.
17. Petitioner, by resolution of its governing body, has authorized the
acquisition of the Property described in said Exhibit A to the Petition by the exercise of its
rights of -
§ 117.042.
18. Notice of the objects of the Petition and the Quick -Take Motion, as well as of
the time and place of presenting the same, was duly and timely served on Respondents, as
indicated in the proof of service that has been filed in the office of the Carver County
Court Administrator.
19. Notice of Petitioner s intent to take title to and possession of the Property
described in Exhibit A to the Petition pursuant to Minn. Stat. § 117.042, was duly and
timely served on Respondents, as indicated in the proof of service that has been filed in
the office of the Carver County Court Administrator.
20. Pursuant to Minn. Stat. § 117.042, Petitioner needs to acquire title to and
possession of the Property prior to the time the Court-appointed condemnation
commissioners can reasonably be expected to have filed their award.
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21. The Property to be acquired through this proceeding is located in Carver
County, Minnesota.
22. As to Parcel 3, prior to the hearing on Petition, the State of Minnesota,
Department of Natural Resources, confirmed its rights in all that portion of the land lying
below the natural ordinary high watermark of Hazeltine Lake as the same affects
Parcel 3. Petitioner will acquire its easement interest through, over, and across Parcel 3,
subject to the proprietary and sovereign rights of the State of Minnesota in all that
portion of the easement area lying below the natural ordinary high watermark of
Hazeltine Lake; not intending, however, to deprive the fee owners of the usual riparian
rights that attach to the land riparian to a navigable public body of water incident to the
ownership thereof.
23. As to Parcel 6, Petitioner and Magellan Pipeline Company, L.P.
their respective easement rights and obligations and the terms and conditions under
-of-way of
Magellan, including determination of appropriate mitigative measures.
24. To provide Petitioner and Magellan with additional time to negotiate an
pipeline, the hearing on the Petition and quick-
interests, including interest in Parcel 6 (PID No. 30.5190030), is continued until a date to
be determined by the Court if the parties are unable to reach an agreement.
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25. The Court excludes from this Order any finding or ruling as to the public
interest and necessity of Petitioner taking with respect to the property rights of
Magellan. In the event that Petitioner and Magellan are unable to reach agreement and
notify the Court accordingly, the Court will schedule a date for a continued hearing,
during which Petitioner and Magellan shall be permitted to present evidence regarding
described in the Petition, and Magellan shall be allowed to make any objection to the
Petition and quick-take motion that could have been made at the hearing originally
scheduled for April 17, 2018.
26. Counsel for Petitioner and Magellan shall notify the Court promptly if an
agreement is reached.
27. As to Parcel 10, Petitioner and the City of Chanhassen have agreed that
t to the road right-of-way interests held by the
City of Chanhassen. In other words, this Order does not subordinate the City of
CONCLUSIONS OF LAW
1. The Court has jurisdiction and authority to hear the matters Petitioner has
brought herein pursuant to Minn. Stat. Ch. 117.
2. Petitioner is a public service corporation, Minn. Stat. § 117.025, subd. 10, and
possesses the right of eminent domain and has properly exercised the same herein.
Among other enabling statutes, the Minnesota legislature has provided that,
public service corporation shall have the right to obtain by condemnation, under the
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power of eminent domain, any land, or any right over, through, or across the same, or
any easement therein, necessary for the convenient prosecution of its enterprise.
§222.36 (emphasis added).1
3. While a
condemning authority must show
necessity. It is enough to find that the proposed taking is reasonably necessary or
City of Duluth v. State, 390 N.W.2d
757, 764 65 (Minn. 1986).
Id. at 764.
review s decision to be
overturned if it were arbitrary, unreasonable, or capricious, or [if] the evidence against
the necessity or public use is overwhelming Id. at 764 (quotation omitted) (emphasis in
original). In reviewing a condemnation petition, great weight is given to the
Great weight must be given to the determination of the condemning
authority, and the scope of review is narrowly limited. If it appears that the
record contains some evidence, however informal, that the taking serves a
public purpose, there is nothing left for the courts to pass upon. Courts may
arbitrary or unreasonable.
1 As set forth above, Respondent CHI concedes that Petitioner has the power of eminent domain and that
the Project is for a public purpose and necessity.
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Hous. & Redevelopment Auth. in & for City of Minneapolis v. Minneapolis Metro. Co., 104
N.W.2d 864, 874 (Minn. 1960)
Itasca Cnty. v. Carpenter, 602 N.W.2d 887,
889 (Minn. Ct. App. 1999) (quotation omitted).
4. T the determination
of the particular property or property rights to be acquired. See Metropolitan Sewer Board
v.Thiss, 200 N.W.2d 396, 397 (Minn. 1972). As the Thiss Court stated:
Th[e Minnesota Supreme C]ourt has always held that the propriety of the
exercise of eminent domain is a legislative question. The judicial issue is
whether the condemning authority acted arbitrarily and in disregard of
the best interests of the public, or upon an erroneous theory of the law, or
whether the evidence is practically conclusive against the authority.
There need be no showing of absolute necessity, and the mere suggestion
of possible alternatives does not, in itself, support a finding of
arbitrariness.
Id.; see also, e.g., Kettleson, 801 N.W.2d 160, 164 (Minn.
2011)
see also Housing & Redev. Auth., 104 N.W.2d at
[condemning authority] as to what may be necessary and proper to carry out the
purpose of the plan. We do not understand that it is the function of the court to decide
between conflicting opinions of the parties as to the advisability of a discretionary
n, 707 N.W.2d 376, 382 (Minn. 2006) (noting the
particular rights necessary to facilitate its electric transmission system).
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5. The takings described in the Petition are for a public use and purpose, are
necessary, and are authorized by law. See Minn. Stat. §§ 117.025, subds. 10 and 11, 222.36,
301B.01, and 301B.02.
6. Petitioner has demonstrated that it is reasonably necessary and convenient
for it to take the rights sought in the Petition and build the Project along the route
generally depicted on Exhibit 1. As set fort
the Project, as proposed by Petitioner, is a well-
of eminent domain. Considering the great deference the Court must pay to the
in seeking to condemn the rights described in the
Petition for the Project, Petitioner has met its burdens.
7. It is reasonably necessary and convenient for Petitioner to acquire, for the
purpose of constructing the Project and the Facilities, perpetual easements and rights-of-
way to survey, construct, operate, maintain, use, upgrade, rebuild, relocate and/or
remove a transmission line facility with one or more circuits, with all towers, structures,
poles, foundations, crossarms, cables, wires, guys, supports, counterpoises, fixtures, and
equipment related to said transmission line facility, together with communication
equipment relating to the operation of such transmission line facility through, over, under,
and across the property described in Exhibit A to the Petition. The easement rights to be
acquired by Petitioner are specifically described in Exhibit B to the Petition.
8. The owners and occupants of the property described in Exhibit A to the
Petition shall have the full use and enjoyment of the easement areas and rights-of-way, so
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Exhibit B to the Petition.
9. respectfully denied.
is not to the public purpose or necessity of the Project in
general, but to the necessity of routing the Project as
opposed to the west side of the existing railroad corridor. Under Minnesota law, the mere
suggestion by a landowner that a different route would be preferable for that landowner is
not enough to defeat a condemnation Petition. Thiss, 200 N.W.2d at 397; see also Kettleson,
801 N.W.2d at 164; Housing & Redev. Auth., 104 N.W.2d at 874; Lundell, 707 N.W.2d at
382. Moreover, as set out at the hearing, the Petitioner considered different routes and
factors, and exercised its discretion to select a route that crosses Parcel 3. Among other
things, Petitioner considered that routing the Project to the west of the railroad corridor, as
Respondent CHI would prefer, would require removal of a tree that contains a bald
The deferential standard of review this Court must apply does not support
this Court substituting its judgment for the reasoned consideration of Petitioner in
selecting its preferred route.
10. The facts, particularly in light of the narrow standard of review, do not
allow a conclusion that the Project, as described in the Petition including across Parcel 3,
is a .
11.
proprietary and sovereign rights of the State of Minnesota in all that portion of the
easement area lying below the natural ordinary high watermark of Hazeltine Lake; not
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intending, however, to deprive the fee owners of the usual riparian rights that attach to
the land riparian to a navigable public body of water incident to the ownership thereof.
The foregoing shall be reflected in any Final Certificate filed in this action.
12. As to Parcel 6, as set forth in the foregoing Findings of Fact, the Court
excludes from this Order any finding or ruling as to the public interest and necessity of
13. the City of
-of-way interests therein. The foregoing shall be reflected in any
Final Certificate filed in this action.
14. Petitioner possesses -
Stat. § 117.042, and has properly exercised the same herein.
15. Petitioner has demonstrated a need to acquire title to and possession of the
property necessary to construct the Project and the Facilities prior to the time the Court-
appointed condemnation commissioners can reasonably be expected to have filed their
award. Specifically, the Project is scheduled to be in-service before commissioners are
-take motion is
granted.
16. As set out above, the actions of the Petitioner herein are not arbitrary,
capricious or an abuse of discretion.
ORDER GRANTING PETITION
IT IS ORDERED THAT the Petition in the above-captioned action is
GRANTED.
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ORDER GRANTING QUICK-TAKE MOTION
IT IS FURTHER ORDERED THAT Petitioner s Quick-Take Motion is
GRANTED. Therefore, pursuant to Minn. Stat. § 117.042, title to and possession of the
easements described in the Petition shall vest in Petitioner on April 23, 2018, or the date
on which Petitioner deposits with the Carver County Court Administrator, or pays to
the owners, an amount equal to Petitioner s approved appraisal of value for the
Property, whichever date is later.
IT IS FURTHER ORDERED THAT Petitioner may pay directly to the
Respondents or deposit with the Carver County Court Administrator, and the Carver
County Court Administrator shall accept the deposit of, an amount equal to Petitioner s
approved appraisal of value for the Property. The Carver County Court Administrator
shall place the deposit in an interest-bearing account, in accordance with Minn. Stat.
§ 117.042.
ORDER REGARDING COMMISSIONERS
IT IS FURTHER ORDERED that commissioners shall be appointed by separate
order. The parties shall promptly confer regarding the appointment of Commissioners
and provide the Court with a Stipulation regarding the same. If the parties are unable to
reach an agreement regarding Commissioners, then by May 8, 2018, each party may
BY THE COURT:
Dated: _______________, 2018
Judge of District Court