Application of Avant-Garde, Inc.

481 N.W.2d 379, 1992 Minn. App. LEXIS 155, 1992 WL 31382
CourtCourt of Appeals of Minnesota
DecidedFebruary 25, 1992
DocketNo. C6-91-1276
StatusPublished
Cited by1 cases

This text of 481 N.W.2d 379 (Application of Avant-Garde, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Application of Avant-Garde, Inc., 481 N.W.2d 379, 1992 Minn. App. LEXIS 155, 1992 WL 31382 (Mich. Ct. App. 1992).

Opinion

OPINION

FORSBERG, Judge.

Certain property owners and the City of Duluth (City) appeal from a judgment of the district court vacating dedication of a portion of a platting as a public park in the City. The area was originally dedicated as a public park by respondent Avant-Garde, Inc., allegedly in exchange for changes in zoning and land use restrictions on other portions of the original plat. When the other portions of the platting proved unmarketable, Avant-Garde moved to vacate the platting pursuant to Minn.Stat. § 505.14 (1990). The district court ordered vacation, and judgment was entered. We reverse.

FACTS

For approximately 30 years, Avant-Garde, whose principal shareholder is George Hovland, has owned about 33 acres of land in the City. Avant-Garde has been attempting to develop portions of this land since approximately 1970, when Hovland requested a rezoning of property from single-family residential to a higher density category. Avant-Garde proposed construction of 685 housing units on a portion of the land and conveyance of 17.3 acres to the City as public or open space park. After granting the rezoning request, citizens’ objections led to a planned referendum on [381]*381the rezoning. Avant-Garde then withdrew its proposal and no referendum was held.

Avant-Garde again sought approval for a special use permit for multiple family housing on a portion of the land. On November 1, 1976, the City Council granted the special use permit subject to conditions, including height limitations. These limitations were more restrictive than those requested by Avant-Garde. As a part of this plan, the 17.3 acres would be dedicated to the City as a public space.

In keeping with this plan, and prior to obtaining the City’s approval for construction of multiple family housing, the City required a plat to be filed. This plat, filed December 27, 1979, included a portion dedicated as public park space. Title to this portion of the platting was never separately conveyed to the City. Hovland indicated in his testimony at trial that such conveyance would only be forwarded when a building permit was issued for the construction of multiple family housing on the plat, and the construction was completed.

The City made some improvements on the area dedicated as a park, including a termination point of a ski lift tow rope. The land also contained hiking and cross-country skiing paths, which were maintained throughout the year.

Throughout this time, and continuing up to the present, certain parties purchased portions of the land for single family homes. A number of these sites adjoined or abutted the area of the plat dedicated as a park. These landowners and others regularly used the park for recreation activities.

Avant-Garde was unable to develop the land for multiple family housing, allegedly due to the height restrictions. Avant-Garde filed an application with the district court requesting a vacation of a portion of the plat, including the dedicated park, on August 23, 1990. Avant-Garde contended the dedication was conditional upon the building permits, and such development was no longer economically feasible through no fault of its own. The motion for vacation was opposed by a number of the adjoining landowners, who had purchased the property from Hovland, and by the City.

After trial, the district court found the intent of the parties was to make a conditional dedication of park land. The court held it was not economically feasible to develop the multiple family units with height restrictions, and public policy was served by developing single family housing and thus increasing the tax base on the property. It granted the motion to vacate and entered judgment pursuant to Minn. Stat. § 505.14. Appeal was taken from entry of that judgment.

ISSUE

Did the trial court abuse its discretion by ordering vacation of the dedication of the platted park space?

ANALYSIS

This matter comes before us subject to the abuse of discretion standard of review. “[T]he authority vested in the district court to vacate portions of platted property is one which rests within its sound discretion, and * * * its conclusions with respect thereto are not subject to reversal here except for clear abuse of such discretion.” Etzler v. Mondale, 266 Minn. 353, 365, 123 N.W.2d 603, 611 (1963). The appropriate standard of review thus requires reversal when a district court’s findings of fact have no basis in the record.

The question of whether a property dedicated to public use is to be vacated turns on whether the public interest will best be served by the vacation. In re Schaller, 193 Minn. 604, 614, 259 N.W. 529, 534-35 (1935).

The contest here is not a mere bout between private individuals with members of the public acting merely in the role of spectators. The public has a real and substantial interest in the outcome.

In re Baldwin, 218 Minn. 11, 15, 15 N.W.2d 184, 186 (1944). The vacation statute specifically provides a street or alley should not be vacated unless it or any part thereof “is useless for the purpose for which it was laid out.” Minn.Stat. § 505.14 (1990). This [382]*382same standard has been applied to public parks. See Etzler, 266 Minn. at 365, 123 N.W.2d at 611-12 (park dedicated along highway found to be no longer convenient or reasonable for park purposes).

Another preliminary matter is the nature of the public park dedication transaction.

It has been the uniform holding of this court that the dedication of land, pursuant to this statute, to the public for streets, alleys, and public grounds, does not pass the fee-simple title thereto, but only such an estate as the purpose of the trust requires, and that the fee, subject to the public easement, remains in the dedicator and his grantees.

Betcher v. Chicago, Milwaukee & St. Paul Ry. Co., 110 Minn. 228, 234, 124 N.W. 1096, 1099 (1910). Thus, “the legal effect of a plat dedication is a conveyance in trust to the municipality of a terminable easement only, in any area designated in the plat for public use, and the fee title thereto remains in the dedicator, subject to the easement.” Etzler, 266 Minn. at 363-64, 123 N.W.2d at 610. Thus, title never passed to the City on the disputed portion of the plat, ostensibly because the building permit was never issued.

There are basically two points of contention surrounding the vacation order in this case. First, the City and the landowners claim the district court never adequately considered how the public interest would best be served, nor was there a basis in the record allowing a conclusion that the public interest could be served by vacating the plat.

The district court found, as a matter of law, the public interest is best served by permitting economically feasible development of housing in the park land. The court also noted certain portions of the park upon which the City has made permanent improvements, and some portions upon which the City may in the future make further permanent improvements, would be deeded outright to the City under the terms of vacation.

In Etzler,

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Bluebook (online)
481 N.W.2d 379, 1992 Minn. App. LEXIS 155, 1992 WL 31382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/application-of-avant-garde-inc-minnctapp-1992.