In Re: the Establishment of a Cartway in Sandville Township.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-99-1988

In Re:
the Establishment of a
Cartway in Sandville Township.

Filed June 13, 2000

Affirmed
Foley, Judge*

Polk County District Court

File No. C6-98-257

Kevin T. Duffy, 1008 West Second Street, P.O. Box 715, Thief River Falls, MN 56701 (for appellant Thomas Ritoch)

John D. Jeffrey Jr., 610 Second Avenue N.E., P.O. Box 329, East Grand Forks, MN 56721 (for respondents David & Joan Lind)

Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant seeks review of the district court's decision on review of a township board decision establishing a cartway and awarding damages.  We affirm.

            Respondents David and Joan Lind petitioned the Sandville Township Board (board) to establish a cartway across appellant Thomas Ritoch's property.  Ritoch opposed the creation of a cartway.  At a township meeting, both parties were permitted to present photographs, maps, drawings, and arguments.  Board members agreed to go to the site, make a visual inspection of both properties, and analyze the merits of each proposal. 

            The board granted respondents' proposed cartway and awarded appellant damages in the amount of $750.  Appellant sought review in the district court.  The district court granted partial summary judgment for respondents, rejecting appellant's unsupported claim that the board's decision was arbitrary and capricious, but it denied summary judgment on damages and ordered a trial de novo.  The district court later awarded damages in the amount of $437.50, but denied appellant's claim for severance damages.

I.

            In reviewing summary judgment, this court must determine whether there are genuine issues of material fact and whether the district court erred in its application of the law.  Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997). "A reviewing court must view the evidence in the light most favorable to the party against whom summary judgment was granted."  Vetter v. Security Continental Ins. Co., 567 N.W.2d 516, 520 (Minn. 1997).  To defeat a motion for summary judgment the "nonmoving party must offer significant probative evidence tending to support its complaint."  Carlisle v. City of Minneapolis,437 N.W.2d 712, 715 (Minn. App. 1989).

            The district court concluded that the board's decision to grant the cartway petition was not arbitrary and capricious.  A board that grants a cartway petition acts in a legislative capacity and will be reversed on appeal only when (1) the evidence is clearly against the decision, (2) an erroneous theory of the law was applied, or (3) the board acted arbitrarily and capriciously, contrary to the public's best interest.  Lieser v. Town of St. Martin, 225 Minn. 153, 159, 96 N.W.2d 1, 5-6 (1959). 

            Appellant argues that the district court did not review the evidence in the light most favorable to him, as the party against whom summary judgment was sought.  While the board may have found the site survey conducted by the watershed district engineer, a hydrologist, rather than appellant's engineer more persuasive, that does not render its decision arbitrary and capricious or against the weight of the evidence.  Considering the various opinions before the board, the credence obviously given to the recommendation of the watershed district engineer, and the personal observations of the board members at the site, the board's decision was not arbitrary and capricious and the district court did not err in granting summary judgment. 

Next, appellant argues that respondents were required to provide the district court with all exhibits and evidence before the board.  Because the district court did not have original transcripts of the board meeting or the site photographs presented by appellant, he argues that the district court erred in granting summary judgment.

            Appellant had the burden of production of evidence in the district court.  An appeal of a township board decision on a cartway application is to "be tried in the same manner as an appeal in eminent domain proceedings under Chapter 117."  Minn. Stat. § 164.07, subd. 8 (1998).  Under Chapter 117, the burden of production is placed on the owner/appellant. "The owners shall go forward with the evidence and have the burden of proof as in any other civil action."  Minn. Stat. § 117.175, subd. 1 (1998).  Appellant's assertion that respondents cannot prevail because they did not provide a complete record of the proceedings before the township board is not consistent with the law.  In addition, the record indicates that the district court did have a transcript and was able to review the entire proceeding before the board. 

Third, appellant assails the district court's alleged failure to address possible conflicts of interest of certain board members.  To avoid the appearance of impropriety, it is important to ensure that board members do not have private interests that may conflict with making a decision that is in the best interest of the public.  In re 1989 Street Improvement Program v. Denmark Township, 483 N.W.2d 508, 511 (Minn. App. 1992). There is no hard-and-fast rule on whether to disqualify a public official who has a direct interest in the outcome of proceedings.  Township Bd. v. Lewis, 305 Minn. 488, 493, 234 N.W.2d 815, 818-819 (1975).

Each case must be decided on the basis of the particular facts present.  Among the relevant factors that should be considered in making this determination are:

            (1)       the nature of the decision being made;

            (2)       the nature of the pecuniary interest;

            (3)       the number of officials making the decision who are interested;

            (4)       the need, if any, to have interested persons make the decision; and

            (5)       the other means available, if any, such as the opportunity for review, that serve to insure that the officials will not act arbitrarily to further their selfish interests.

Id. (citation omitted).

            Two of the board members own property in the same neighborhood.  Their properties border on respondents' property and a river flows through all three.  Appellant argues that these board members would have been adversely affected if his proposed route had been implemented.  However, three significant facts weigh against appellant's argument.  First, the cartway was not located on property owned by any board member. None of the board members were threatened with loss of their own property and any alleged self-interest was indirect, at most.  Second, the third board member--who had no conflict of interest--ruled in respondents' favor on the cartway petition.  Third, appellant made no objection at the time of the board hearing to the participation of any board members.  For these reasons, we reject appellant's argument that the district court erred in failing to address his allegations that two board members had a conflict of interest.

II.

            Appellant argues that the district court abused its discretion in reducing damages for the taking of his land to $437.50, and in dismissing his claim for severance damages.  A reviewing court will not disturb a damage award "unless its failure to do so would be shocking or would result in plain injustice."  Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 199 (Minn. 1986).  When reviewing a damage award, this court must consider the evidence in the light most favorable to the judgment.  Rayford v. Metropolitan Transit Comm'n, 379 N.W.2d 161, 165 (Minn. App. 1985), review denied (Minn. Feb. 14, 1986).  It is well settled that judging the credibility of witnesses and the weight given to their testimony rests within the province of the fact-finder.  General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987).

            During the trial on damages, appellant presented appraiser testimony that the value of the acre of land needed for the cartway was $437.50.  This was calculated by subtracting the value of the half-acre currently being used by respondents as an easement from the price of an acre of land ($850).  The district court found the estimated value of the cartway credible.  Also, the district court found the survey submitted by the watershed district engineer to be more credible and persuasive than that of appellant's engineer.  We will not substitute our judgment for that of the district court.  The district court's ruling on damages is affirmed.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.