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Northern States Power Co. v. Minnesota Metropolitan Council

August 05, 2004


Christopherson, Bruce W., J., Acting J.*fn1


The district court erred when it considered matters outside the pleadings and then failed to treat defendants' Minn. R. Civ. P. 12.02 motion to dismiss for failure to state a claim upon which relief can be granted as a motion for summary judgment under Minn. R. Civ. P. 56.

Utility company's inverse condemnation action based on claimed denial of access to city street for purposes of repairing electrical transformers located in an underground vault next to street is both premature and speculative, requiring dismissal of company's petition for alternative writ of mandamus.


Heard, considered, and decided by the court en banc.

The opinion of the court was delivered by: Page, Justice.

Took no part: Blatz, C.J., Gilbert, J., and Hanson, J.


This case arises out of the construction of the Hiawatha Light Rail Transit line (LRT), which will eventually connect downtown Minneapolis with the Minneapolis-St. Paul International Airport and the Mall of America.*fn2 The Minnesota Department of Transportation (MnDOT) is responsible for the line's construction. Upon completion, the line will be owned and operated by the Minnesota Metropolitan Council (Met Council).

On April 2, 2002, respondent Xcel Energy filed a verified petition for an alternative writ of mandamus in Hennepin County District Court seeking to compel MnDot and the Met Council to initiate inverse condemnation proceedings.*fn3 The petition alleges that the "LRT route * * * will block access necessary to maintain, repair, and service Xcel Energy's downtown electrical substation." Xcel claims that it has a property interest in reasonable access to the substation, which MnDOT and the Met Council unconstitutionally took by blocking access to the substation and "refus[ing] to enter into an enforceable access agreement resolving Xcel Energy's right of access."*fn4 The petition further alleges that the failure of MnDOT and the Met Council to provide an affirmative guarantee of access caused Xcel to suffer a "substantial and measurable decline" in the value of its downtown substation. Xcel seeks compensation both for the claimed loss of access to the substation and for the claimed diminution in the substation's market value.

In lieu of filing an answer, MnDOT and the Met Council each moved to dismiss the petition pursuant to Minn. R. Civ. P. 12.02. Accompanying the motions was an affidavit from Edward Hunter, the project director for the Hiawatha Corridor Light Rail Transit Project. The affidavit is dated April 19, 2002. According to the affidavit, Xcel provided MnDOT "specific vehicle weights, crane lifting clearances, substation weights, and point-load requirements for future removal of transformers from the substation." In the affidavit, Hunter asserts that the LRT was designed to "allow the overhead structures of the light rail system to be taken down * * * to allow cranes to access the substation," and "so that the weights and loading requirements provided by Xcel could be accommodated without damage to the [LRT] system."

Xcel urged the district court not to consider Hunter's affidavit or, alternatively, to allow it additional opportunity to conduct discovery to respond to the affidavit. The district court did not grant Xcel additional time to conduct discovery.*fn5 Subsequent to the Hunter affidavit, Xcel did, however, submit an affidavit dated May 15, 2002, from James Kucera, its project director for LRT. In his affidavit, Kucera stated, among other things, that the LRT would "prevent access from Fifth Street necessary in order to remove, repair, and replace" Xcel's transformers. Aside from stating that the overhead wires are too low to allow the cranes to access the substation, the Kucera affidavit did not otherwise describe how the LRT would block Xcel's access. Taking the Hunter and Kucera affidavits into consideration, the district court issued an order dated October 28, 2002, dismissing Xcel's petition. The district court found that MnDOT and the Met Council's actions did not amount to a taking of reasonable access to Xcel's substation and that, in any case, such a claim was premature and speculative. In dismissing the petition, the district court applied Minn. R. Civ. P. 12.02.

On appeal, the court of appeals concluded that the district court erred by considering the Hunter affidavit on a Rule 12 motion and therefore addressed the motions applying the Rule 56 standard for summary judgment. N.S.P. Co. v. Minnesota Metro. Council, 667 N.W.2d 501, 506 (Minn. App. 2003). Applying the summary judgment standard, the court of appeals held that fact issues existed as to whether the LRT obstructed Xcel's access to its downtown substation and whether that obstruction rose to the level of a taking. Id. at 510. The court stated that, because the poles and tracks for LRT were in place, Xcel "suffered a real, substantial loss of access to its property" and therefore lacked an adequate legal remedy. Id. at 511. We granted MnDOT and the Met Council's petition for review and now reverse.

The LRT line runs east and west through downtown Minneapolis along Fifth Street. At the intersection of Fifth Street and the Nicollet Mall, the tracks for the LRT trains and the overhead catenary (power) lines that power the trains run in close proximity to Xcel's underground electrical substation. The substation consists of four four-story-tall electrical transformers, each weighing over 120 tons. The transformers lie in a vault underneath a plaza adjacent to Xcel's downtown ...

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