In Re the Petition to Vacate Portions of Streets in the Plat of Pottstown, Jeffrey Eye, Petitioner, Appellant, vs. The City of Wahkon, Respondent.

In Re the Petition to Vacate Portions of Streets in the Plat of Pottstown, Jeffrey Eye, Petitioner, Appellant, vs. The City of Wahkon, Respondent. A04-1233, Court of Appeals Unpublished, March 29, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1233

 

In Re the Petition to Vacate Portions of Streets in the Plat of Pottstown,
Jeffrey Eye, Petitioner,
Appellant,
 
vs.
 
The City of Wahkon,
Respondent.

 

Filed March 29, 2005 Affirmed in part, reversed in part, and remanded Randall, Judge

 

Mille Lacs County District Court

File No. CX-04-0052

 

 

Lawrence P. Marofsky, Amy Coniaris, Law Office of Lawrence P. Marofsky, 7022 Brooklyn Boulevard, Brooklyn Center, MN  55429 (for appellant)

 

William P. Lines, 220 South Central, Milaca, MN  56353 (for respondent)

 

 

            Considered and decided by Randall, Presiding Judge; Minge, Judge; and Wright, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

RANDALL, Judge

 

Appellant-petitioner challenges the district court's order dismissing his motion to vacate part of a road, arguing that (1) Minn. Stat. § 505.14 (2004), the vacation statute, should not be read to require that notice of the petition to vacate be given to all property owners within the plat, only those impacted by the vacation; and (2) the record does not support the district court's conclusion that the road is useful for the purpose for which it was laid out.  Because the district court correctly concluded that notice of the petition be given to all property owners within the plat, we affirm that portion of the district court's ruling.  But because the district court conducted a hearing on the merits without proper service to all property owners and without adequate preparation by both parties, we reverse and remand for a new trial. 

FACTS

 

On January 9, 2004, appellant-petitioner Jeffrey Eye commenced this vacation action under Minn. Stat § 505.14 (2004), by filing a petition to vacate "Beulah Avenue, North of the Northerly line of Broadway and the platted roads named Beulah Avenue and Hill Street lying West of the West line of Block 2 of Pottstown as extended North, all in the Plan of Pottstown, City of Wahkon" (hereinafter "the property").  

Eye presently owns lots on two city blocks in Wahkon, Minnesota, namely, platted city lots 1-8 and 17-24 of block 3, lots 7-14 of block 2, and portions of vacated Lake Street north of block 3.  The property Eye petitioned to vacate is an undeveloped road lying between blocks 2 and 3 and curving up to the west where Hill Street intersects with Beulah Avenue and the two roads merge to become Lake Street.  The property is essentially a comma-shaped piece of land lying partially between Eye's lots, intersecting Hill Street, and abutting property along Lake Street owned by other landowners.  Respondent City of Wahkon (the City) has never actually constructed the subject property into a road since it was platted in 1901.  The property neither appears to be a road nor has been used as a road.[1]  

On February 2, 2004, Eye moved to be heard on his petition to vacate the property and grant him title to the land, arguing that the property was useless for the purpose for which it was dedicated and that the city abandoned its interest in the property.  Eye submitted a memorandum of law, a sworn affidavit, and several exhibits supporting his petition.  The City moved to dismiss the petition under Minn. R. Civ. P. 12.02, arguing that Eye (1) neglected to serve all owners within the plat in violation of section 505.14 and (2) ambiguously described the subject property. 

In response, Eye filed an amended petition, revising the description of the property and clarifying his uselessness allegations.  Eye personally served the mayor of Wahkon and mailed all documents filed in the proceeding to 11 of the 31 landowners within the plat.  Eye also published notice of the pending hearing on the petition in the local newspaper for a two-week period and had the sheriff post notice.

The hearing took place on April 16, 2004.  The parties disagreed as to the purpose of the hearing.  The City, citing the Minnesota Rules of Civil Procedure, believed the hearing was solely on its motion to dismiss and requested that the district court dismiss the petition for (1) improper notice and (2) an ambiguous description of the property.  The City was not prepared to present evidence on the merits of the petition and clearly objected whenever Eye began to argue the merits of his case.  Eye requested, however, that the district court rule on the merits of the petition, arguing that the vacation action was a special proceeding not governed by the Minnesota Rules of Civil Procedure.

Five interested landowners also appeared at the hearing in opposition to the petition.  The district court noted their objections, but did not allow the landowners to articulate complaints, remarking, "[W]e are pressed for time here." 

Despite the City's objections and its lack of preparation, the district court held a hearing on the merits and dismissed Eye's petition for failure to establish uselessness of the property.  The district court also ruled on the City's pretrial motion, concluding that Eye's petition should be dismissed for failure to serve all landowners within the plat.  Eye filed a motion for reconsideration, which was denied.  This appeal followed. 

D E C I S I O N

 

I.

 

Eye first challenges the district court's order dismissing his petition for improper service of process, arguing that serving 11 of the 31 landowners within the plat constituted proper service under Minn. Stat. § 505.14 (2004).  Eye contends that section 505.14 should not be interpreted to require that notice of the petition to vacate be served on all property owners within the plat, but only those actually affected by the vacation.  The City maintains that section 505.14 requires that all landowners within the plat be personally notified of the petition to vacate.  We agree.

Construction of a statute is a question of law, which we review de novo.  Leek v. Am. Exp. Property Cas., 591 N.W.2d 507, 508 (Minn. App. 1999), review denied (Minn. July 7, 1999).  Determination of whether service of process was proper is also a question of law reviewed de novo.  Turek v. A.S.P. of Moorhead, Inc., 618 N.W.2d 609, 611 (Minn. App. 2000), review denied (Minn. Jan. 26, 2001). 

Section 505.14 contains specific service-of-process and notice provisions that differ from the Minnesota Rules of Civil Procedure.  In determining whether process was properly served in a vacation action, the Minnesota Supreme Court has looked to section 505.14's statutory language and additional due process requirements of the United States Constitution.  See Etzler v. Mondale, 266 Minn. 353, 364, 123 N.W.2d 603, 611 (1963).

Section 505.14 requires "two weeks published and posted notice of [the vacation] application to be given, the last publication to be at least ten days before the term at which it shall be heard; and the petitioner shall also serve personally . . . the mayor."  The purpose of the published notice is so "the court [can] hear [from] all persons owning or occupying land that would be affected by the proposed vacation."  Minn. Stat. § 505.14.  It is not disputed that Eye complied with this statutory requirement.

The Minnesota Supreme Court has determined, however, that the notice provisions set out in section 505.14 are inadequate to comply with due process.  Etzler, 266 Minn. at 364, 123 N.W.2d at 611.  The Etzler court ruled:

In future proceedings under § 505.14, it should be kept in mind that adequate service must be made upon owners or occupants of land within the platted area, and that service by the publication and posting of notice of the procedure, as provided in § 505.14, will be deemed inadequate. 

 

Id. at 365, 123 N.W.2d at 611; accord Kelley v. Moe, 387 N.W.2d 664, 667 (Minn. App. 1986) (holding that mailing notice to owners or occupants of land within the platted area is sufficient to comply with due process).  The Etzler court plainly stated that, "adequate service must be made upon owners or occupants of land within the platted area." 266 Minn. at 365, 123 N.W.2d at 611 (emphasis added). 

The Eztler holding is premised on the observation that one who purchases a platted lot is deemed to have purchased all the advantages, privileges, rights, and easements that the plat represents as belonging to the landowner as a resident of the platted area.  Id. (citing Bryant v. Gustafson, 230 Minn. 1, 8, 40 N.W.2d 427, 432 (1950)).  "[T]his principle is applicable not merely to the roads and streets upon which the purchased lot abuts, but to all roads and streets of advantage or utility to the platted area as a whole." Bryant, 230 Minn. at 8, 40 N.W.2d at 432.   In other words, all landowners within a plat have a right to rely on and use all platted roads represented in the plat.

            Yet, as Eye notes, the supreme court has also employed the term "affected parties" in discussing to whom notice is due.  In Batinich v. Harvey, the supreme court explained, "due process requires notice to all affected parties" and "[a]ll affected parties should be served . . . in one trial."  277 N.W.2d 355, 358 (Minn. 1979).  The Batinich court ultimately concluded that all owners within the plat must be served with notice, noting that in an action to remove restrictions in a plat, all owners within the plat are affected.  Id. at 359.  That reasoning is persuasive here.

            As explained in Etzler,one purchasing a lot within a plat has the right to rely on the dedication of streets and alleys shown therein because the landowner possesses the right to use those streets or alleys.  See Bryant, 230 Minn. at 8, 40 N.W.2d at 432. Accordingly, every landowner in the plat is potentially affected by a decision to vacate a portion of a street within a plat.  Because every landowner within a plat is a potentially affected party, we conclude that every landowner within a plat should be served with notice of an action to vacate a public street. 

We acknowledge Eye's argument that a plat "could" consist of 1,000 lots owned by 1,000 different landowners.  In that case, it may stretch the bounds of reason to conclude that each and every landowner within the plat is affected by a proposal to vacate a small part of one street.  But that is a case for another day.  On the particular facts here, with 31 landowners owning lots close together in a small town, we are bound to apply the reasoning in Etzler and Batinich.  The law requires Eye to mail notice to all landowners within the plat and because he only mailed notice to 11 of the 31 landowners, we agree with the district court that Eye failed to give proper notice as required by section 505.14. 

We next ascertain the appropriate remedy for a petitioner's failure to properly notify all affected parties.  In Batinich, landowners brought an action to remove restrictions in a plat without serving the other landowners within the plat.  277 N.W.2d at 357.  The district court found in favor of the petitioning landowners and removed the plat restrictions.  Because the petitioning landowners failed to properly serve the other landowners, the supreme court reversed the district court's decision on the merits and remanded for a new trial with instructions to serve all owners of the land within the plat with notice of the action.  Id. at 359.  The Batinich court reasoned that an appellate court should not be faced with the probability of future lawsuits brought by landowners who were not served with notice.  Id. at 358.  The Batinich court therefore concluded that "[a]ll affected parties should be served and all issues litigated in one trial."  Id. 

            This case differs from Batinich in that, here, the district court found in favor of the landowners who appeared in opposition to the vacation petition (and potentially all of the unserved plat owners), rather than the petitioning landowner.  The Batinich scenario, in which a court finds in favor of petitioner and adversely affects the rights of unnotified parties, plainly raises serious due process concerns not now before this court.  Nonetheless, the proceedings herein were sufficiently lacking in due process as to preclude meaningful appellate review on the merits. 

First, although Eye served approximately one-third of the landowners within the plat, we cannot surmise what the other landowners might have said at the hearing had they been notified of the pending vacation petition.  It is not for this court to conclude that simply because five landowners appeared at the vacation hearing that "all persons owning or occupying land that would be affected by the proposed vacation" were properly heard.  See Minn. Stat. § 505.14.  Secondly, the district court refused to actually hear from the five landowners who appeared at the vacation hearing.  The district court gave a limited role to the five landowners who did appear.  It only allowed them to vote as to whether they supported or opposed the petition.  The district court did not allow the landowners to testify about their concerns, remarking, "[W]e are pressed for time here." 

Accordingly, because all landowners within the plat were not served with notice, the case is remanded for a new trial following proper notice to all landowners within the plat. 

II.

Eye next challenges the district court's determination on the merits of the vacation petition.  Because the district court erroneously conducted a hearing on the merits in the first instance, we reverse the district court's decision on the merits.  In addition to the due process concerns discussed above regarding service on interested landowners, the district court failed to provide both parties a full and fair opportunity to present evidence.  The parties plainly disagreed as to the purpose of the August 16 hearing.  The City's attorney believed the hearing was solely on its motion to dismiss and was not prepared to present evidence on the merits of the petition.  The City's counsel clearly objected whenever Eye began to argue the merits of his case, stating at one point, "I object to continuation of this line.  It is not relevant to the pending motion before the Court.  These issues would go to the merits before the Court at some future date.  It is not before the Court this morning."  The City's attorney later explained, "[C]ounsel this morning suggested this hearing is not simply on my motion to dismiss but it goes to the merits of the case.  I respectfully suggest . . . that is not correct.  We conclude that due process requires that evidence be received by the Court to establish the two bases for the proposed vacation." 

In addition to these objections, The City asked the district court to defer the trial on the merits to allow introduction of expert engineering and land-surveying evidence on the question of uselessness.  The City's counsel specifically stated, "The city at a later time when appropriate will introduce evidence that the city proposes to construct and improve Hill Street . . . and that the city sewer system runs east and west at the sound end of Beulah Avenue." 

Eye, on the contrary, understood that the August 16 hearing was a hearing on the merits and expressly requested that the district court rule on the merits of the petition.  The district court proceeded to decide the merits of Eye's claim and ultimately dismissed Eye's petition on both procedural and substantive grounds.  The City, although the prevailing party, reasserted at oral argument that it never believed the August 16 hearing was an actual trial on the merits. 

Based on this sparse record, without knowing what interested landowners may have said if each landowner in the plat had been properly served, and without having any evidence from the City regarding the question of uselessness, we conclude that the record is not ripe for meaningful appellate review.

The August 16 hearing was conducted over only a 45-minute period, ending abruptly because the district court had a severe time problem.  The transcript reveals that in addition to the lack of evidence and lack of preparation, the parties were not given adequate time to present their arguments. 

We reverse the district court's determination that the subject property was not useless for the purpose for which it was laid out and remand for a new trial on the merits.  Our remand does not constitute a reflection on the merits of either party's case.  It is merely a statement that both parties are entitled to a full hearing on the merits with adequate preparation time, and that all landowners within the plat have to be properly served.

Affirmed in part, reversed in part, and remanded.

[1] A street appearing on the recorded plat, but which has never been opened, prepared for use, or used as a street, is known as a "paper street."  Raiolo v. N. Pac. Ry. Co., 108 Minn. 431, 432, 122 N.W. 489, 489 (1909).