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County of Anoka v. First Berkshire Properties, LLC

Court of Appeals of Minnesota

September 23, 2013

County of Anoka, State of Minnesota, petitioner, Respondent,
First Berkshire Properties, LLC, et al., Appellants, Kmart Corporation, Respondent, Wells Fargo Bank, N. A., et al., Respondents Below


Anoka County District Court File No. 02-CV-08-2116

Anthony C. Palumbo, Anoka County Attorney, Dan Klint, Chris Carney, Assistant County Attorneys, Anoka, Minnesota (for respondent county)

James R. Dorsey, Marc D. Simpson, Calvin P. Hoffman, Leonard, Street and Deinard Professional Association, Minneapolis, Minnesota (for appellants)

Timothy J. Nolan, St. Louis Park, Minnesota (for respondent corporation)

Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and Ross, Judge.


In this eminent-domain proceeding, appellant landowners challenge the district court's summary judgment in favor of respondent county, arguing that the district court erred by concluding as a matter of law that appellants' property does not abut Highway 10, so that appellant is not entitled to compensation based on alleged impairment of reasonably convenient and suitable access from its property to that highway. Because the record on summary judgment is undeveloped on the issue of whether appellants' property abuts Highway 10 so as to entitle appellants to reasonable compensation for impairment of access, we remand for additional proceedings.


In 2008, respondent Anoka County petitioned the district court to take certain property by eminent domain for a road construction project involving a .5-mile stretch of University Avenue in Blaine. Appellants First Berkshire Properties, LLC, and First Berkshire Business Trust (Berkshire) own commercial property located at the northeast intersection of University Avenue and 89th Avenue. A Kmart retail store is located on the property. The controlled intersection of CSAH 10 (Highway 10) and University Avenue is located a short distance to the southwest of the Kmart property.

The construction project included improvements to grading, roadway surface, drainage, curbs, gutters, sidewalks, signals, and trails. To improve safety and traffic flow, it also included closing an aperture in the median on University Avenue directly across from the Kmart parking lot, which would for the first time prevent southbound traffic on University Avenue from turning into that lot and traffic exiting the lot from turning south onto University Avenue. The Kmart property would retain right-in, right-out access to the northbound lane of University Avenue, and the other entrance to the lot from 89th Avenue would remain unaffected. As part of the project, Anoka County sought to acquire fee title to a portion of Berkshire's property, "subject to existing highways, easements and right-of-way record." The district court ordered the transfer of title to Anoka County under the "quick-take" condemnation procedure, see Minn. Stat. § 117.042 (2012), and appointed commissioners to determine damages for the taking.

Berkshire moved for a temporary injunction to halt the project, arguing that eliminating the ability to make left turns between University Avenue and the Kmart property would cause irreparable harm by inconveniencing customers and forcing semitrailer delivery trucks to travel a circuitous route through the parking lot that was unsafe for store customers. After a hearing, the district court denied the motion, concluding that Berkshire failed to show that its legal remedies were inadequate and holding that an injunction was not necessary to prevent irreparable harm because Berkshire could pursue a claim for damages through the condemnation process.

The commissioners awarded damages of $26, 100 for taking a small portion of Berkshire's property but did not award damages for the loss of left-turn access to University Avenue. Berkshire challenged the award in district court, arguing that it was insufficient because the Kmart property abuts the right-of-way to Highway 10, which is the main thoroughfare, and the median closure deprives Berkshire's remaining property of reasonably convenient and suitable access to and from that thoroughfare in at least one direction.

The parties filed cross-motions for partial summary judgment. Berkshire argued that the Kmart property abuts the highway right-of-way, which includes land acquired by the state for both University Avenue and Highway 10, so that it is entitled to have a jury determine damages resulting from impairment of its access to Highway 10. The county argued that University Avenue predates the current configuration of Highway 10, and that Berkshire's claim is flawed because it is premised only on the fact that "at some time, more than 20 years ago, the Kmart Property may have abutted [a] right of way acquired by the State of Minnesota, part of which was used to construct a relocated ...

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