This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A23-1255
Shane Feldhaus, et al., Appellants,
vs.
City of Minnetonka, Respondent.
Filed May 6, 2024 Affirmed in part, reversed in part, and remanded Bratvold, Judge
Hennepin County District Court File No. 27-CV-22-2807
Jeffrey W. Coleman, Lars C. Erickson, Coleman & Erickson, LLC, Eden Prairie, Minnesota; and
Benjamin J. Kirk, Rossman Attorney Group, PLLC, Edina, Minnesota (for appellants)
Elisa M. Hatlevig, Trevor S. Johnson, Jardine, Logan & O’Brien, PLLP, Lake Elmo, Minnesota (for respondent)
Considered and decided by Smith, Tracy M., Presiding Judge; Bratvold, Judge; and
Jesson, Judge. *
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this appeal from summary judgment, appellants challenge the dismissal of their
claims stemming from the intermittent flooding of their residential property by a nearby
pond. The City of Minnetonka (city) owns and maintains the pond as a part of its
stormwater-management system. Appellants assert that the flooding amounts to a physical
taking that requires just compensation. Alternatively, appellants contend that the city is
liable in nuisance or trespass for damage caused by its failure to manage pond water levels
by routine maintenance and its approval of development within the watershed that
increased impervious areas.
Appellants argue that the district court erred by (1) determining that no taking
occurred, entering judgment for the city as a matter of law on their eminent-domain and
inverse-condemnation claims, and dismissing their statutory claim for attorney fees and
costs, and (2) determining that the city is not liable, in the alternative, for appellants’ tort
claims because the challenged government conduct is shielded by discretionary--function
immunity under Minn. Stat. § 466.03, subd. 6 (2022).
Based on our review of the summary-judgment record, we conclude that the district
court erred in granting summary judgment on the eminent-domain and
inverse-condemnation claims. As a result, it is also not proper to dismiss appellants’
statutory claim for attorney fees and costs. As for appellants’ alternative tort claims, we
conclude that the city has satisfied its burden to show that its decisions to forgo routine
maintenance of the pond and not to install an outlet in the pond are protected by
2 discretionary-function immunity because this challenged conduct involves economic,
political, and planning decisions. On the other hand, appellants also challenge the city’s
development decisions that, they claim, increased impervious surfaces around the pond and
increased flooding. Based on the record before us, we conclude that the city has failed to
offer evidence showing that the city’s development decisions are protected discretionary
functions. Thus, we affirm in part, reverse in part, and remand.
FACTS
The following summarizes the evidence received on summary judgment and stated
favorably to the nonmoving parties. Appellants Shane and Sara Feldhaus own a
single-family home on a lot in the city (the property). Huntingdon Pond (the pond) lies
adjacent to the property and is surrounded by single-family homes. It is undisputed that the
city owns the landlocked pond, which has no outlet or overflow mechanism. The city
included the pond in its stormwater-management plan, and the public-works department
acknowledges that it is responsible for pond maintenance. The city’s director of public
works testified that the department does not “have a routine maintenance schedule” for the
pond but does “perform reactionary maintenance.”
Water Resource-Management Plans
The city’s stormwater-management plan includes many ponds and wetlands in the
city. Under Minn. Stat. § 103B.235 (2022) and Minn. R. 8410.0010-.0180 (2023), cities
must implement local water-management plans. The city adopted four Water Resource
Management Plans (WRMPs) in 1982, 1999, 2010, and 2019, respectively.
3 The city’s 1982 WRMP stated that the city has over 900 ponds and identified
Huntingdon Pond as “pond 501.” The 1982 WRMP recognized that 86 ponds posed a risk
of flooding to nearby homes and that 35 had a “high” flood-damage potential, one of which
was pond 501. It stated that pond 501 “does not have an outlet” and that “[i]t appears that
flood damage could occur to homes located around this pond for events more frequent than
the 100-year events.” The 1982 WRMP also acknowledged that new development impacts
stormwater runoff, pointing out that the “increase in the stormwater runoff caused by the
construction of a house, garage, and driveway, on a typical urban lot, is normally rather
small. When this increase is repeated by the construction of numerous homes, driveways,
and garages, however, the effects become significant.” 1
The 1982 WRMP included information about installing an outlet for the watershed
along with some design details, as did the 1999, 2010, and 2019 WRMPs. Three of the
WRMPs stated that the “city will consider the installation of outlets in all of [the
landlocked] wetlands to reduce the existing storm bounce and inundation periods.”
The 2010 WRMP stated that the city “will require development to apply best
management practices to reduce the volume of stormwater runoff, to the maximum
practical extent. Examples of stormwater runoff volume reduct[ion] methods
include . . . reducing the amount of planned impervious surface as areas develop.” The
2010 and 2019 WRMPs stated that the city “will correct existing flooding problems,” for
1 No similar comment about increased development is found in the 1999, 2010, or 2019 WRMPs. We observe that the 1999 WRMP notes that the city is “nearly fully developed” with only 4% of land still developable.
4 example, “by upgrading the storm drainage system, flood protection, or acquisition of the
property. The city will develop and follow operation and maintenance plans to minimize
flooding potential around landlocked areas.” 2
The 2019 WRMP adopted goals, as did the predecessor WRMPs. Some of these
goals are relevant to this litigation, including “decreas[ing] stormwater runoff,”
“manag[ing] the rate and volume of runoff,” “protect[ing] the public,” “protect[ing],
preserv[ing], and us[ing] that natural surface and groundwater storage and retention
systems,” and “minimiz[ing] public capital expenditures needed to correct flooding and
water quality problems.”
Flooding of the Property
The pond has flooded the property three times since appellants moved there in 2007.
In 2014, the flood submerged the appellants’ patio. Appellants do not recall how long the
patio remained flooded. City employees used temporary pumps and placed sandbags to
protect the property. The pond flooded again in 2017, submerging the appellant’s patio and
damaging the lawn-irrigation system. Appellants contacted the city about the 2017
flooding, but the city did not pump the pond or place sandbags. Appellants did not offer
evidence showing how long the patio was flooded but acknowledged that the water levels
later receded to normal levels.
2 While the 2010 WRMP stated that “flooding problems” would be corrected “within available funding constraints,” the 2019 WRMP removed the “funding constraints” language.
5 After the 2017 flood, two city employees from the public-works department visited
the property, met with appellants, and placed a marker at the edge of pond to help measure
changes in water level.
On December 7, 2017, the city’s water-resources engineering coordinator (city
water engineer) emailed appellants, stating that the city was providing “background on
Huntingdon Pond.” The email stated that “no significant land-use change[s]” in “this
drainage area” had occurred over “the last 40 years,” recent flooding resulted from
“increased frequency and severity of precipitation events,” and the city would pump the
pond only when there was a “threat of structural damage.” The email stated that
“installation of an outlet” to regulate the pond “is currently unscheduled and unfunded.”
While appellants could “submit a petition for installation of an outlet,” the email advised
that if a petition “were to be submitted, following my review and information above, I
would not recommend the council move forward with the project.” The email explained
that “[t]his is due to the limited public benefit (only benefits one home) and the extremely
high cost of an outlet in this area” because “complete reconstruction” of nearby streets is
required “to place the infrastructure and move stormwater downstream.” The email
concluded by suggesting that appellants construct “a small berm” to “provide additional
flood resiliency to [their] home.”
The pond flooded for a third time in 2019. This time, appellants’ backyard and deck
posts were completely submerged. The city pumped the pond and placed sandbags.
Consistent with the city water engineer’s 2017 email to appellants, deposition testimony
from the director of public works explained that the city does not have a “standard policy”
6 for how and when a pond is pumped. Instead, the public-works department uses its
“engineering judgment and discretion” based on many factors, such as “how much the
[water] levels had changed,” precipitation, downstream conditions, and public input. The
city water engineer offered similar testimony about pumping during pond flooding.
The City’s Decision Not to Install an Outlet and Ongoing Flood Risk
In 2020, the city held a “neighborhood meeting” to discuss installing “a potential
outlet” to reduce flooding of the pond. The city’s presentation suggested that, since the
1990s, the city’s goals have included installing an outlet in the pond to control water levels.
The city estimated the cost of an outlet was $1 million to $1.2 million and noted that
installation requires a permit from the Minnesota Department of Natural Resources.
Residents at the meeting were divided; some supported and some opposed installing an
outlet in the pond.
About one month later, the city decided that it would not install an outlet in the pond
based on several factors, including “cost, property structure[,] flooding potential including
number of properties impacted, history of high water in areas, stormwater projects that
could be combined with reconstruction projects, water quality improvement, and the
ongoing maintenance of the city’s existing aging infrastructure.”
In 2021, the city commissioned a “Landlocked Basin Sensitivity Analysis” on the
pond as well as many others. The analysis showed that almost 50 structures around the
7 city’s landlocked ponds were at risk of flooding during a 1% critical storm event. 3 The
study determined that in two out of three scenarios, the pond elevation would exceed the
elevation of the lower level of appellants’ property. As summarized in the city’s brief filed
with this court, the 2021 analysis “confirmed that at least 47 structures, including
appellants’ home, would be at risk of flooding under certain precipitation conditions.”
This Litigation
Appellants sued the city in April 2021 and alleged five claims: (1) inverse
condemnation, (2) eminent domain, (3) attorney fees under Minn. Stat. § 117.045 (2022),
(4) nuisance, and (5) trespass. The city answered and denied liability.
After discovery closed, the city moved for summary judgment. In opposition to
summary judgment, appellants filed a memorandum and evidence, including a report by
their expert discussing how increased development in the pond watershed reduced
stormwater-storage capacity and increased pond flooding. 4
Appellants’ expert report first examined the city’s WRMPs and concluded that the
city “was aware” that the pond “had a potential flooding problem, and that flood damage
could occur” at appellants’ property. Next, the report reviewed the city’s
landlocked-basin-sensitivity analysis and determined that, “in all three scenarios,”
3 A 1% critical storm event is peak flooding about every 100 years, meaning it has a 1% chance of occurring each year. 4 Appellants also offered evidence that their property value had decreased. They filed a letter from a real-estate agent stating that appellants’ property had “diminished value in a sale based on flooding history and risk.” In the agent’s opinion, the home’s sale value had lowered by at least $300,000. Although an appraisal of the property was discussed at the summary-judgment hearing, no appraisal was filed.
8 appellants’ property “floods or nearly floods using reasonable starting water elevations
before a critical 1% storm event.” Third, the report identified the city’s approval of many
developments and improvements within the pond watershed, such as houses, decks,
garages, and other structures, that increased impervious areas within the watershed. The
report also discussed the city’s approval of the “construction of a new home” in 1993,
which included filling in a “natural depression” near the pond and “resulted in a decrease”
in the pond’s stormwater-storage capacity. Finally, the report concluded that the city had
not “controlled/managed all storm sewer inlets” at the pond and that, together with
increases in impervious areas, this “contributed to an increased probability” of appellants’
property flooding, which the report described as “a permanent risk . . . that has increased
over time.”
Among other submissions the city filed in support of its motion was a deposition of
the director of public works explaining that the city reviews proposed new structures for
compliance with rules, regulations, and ordinances, while the city’s planning department
handles permitting for new structures and generally makes recommendations about
ordinances. The city stated in response to appellants’ interrogatory that “there is a city
ordinance relative to the amount of hardscape or impermeable surfaces allowed but this
has changed over time”; other evidence suggested that the city had not adopted a limit on
impervious surfaces or “hardcover.” When asked about this, the director of public works
testified, “I can’t speak to that on behalf of planning.” He added that any hardcover limit
was a decision for the city council and that the planning department would make
recommendations and consult the public-works and natural-resources departments.
9 As for the review of specific new construction, the director of public works
explained: “[I]f a home were being built, we would look at the current regulations as a city
and see what those are, how the water would need to be controlled, part of our stormwater
management plan, which is rate and volume. So we would look at each individual
situation.” In doing this review, public works considers “a number of different factors” and
uses its “background and training and education.” As for permit approval, the director of
public works “can’t speak to all those” because the “planning department generally covers
that.”
Following a hearing, the district court issued an order granting the city’s
summary-judgment motion. The district court first determined that no constitutional taking
occurred reasoning that flooding of appellants’ property was “infrequent and insubstantial”
and did not “substantial[ly] interfere with the use and enjoyment of the property.” On the
related inverse-condemnation claim, the district court determined that there was no
evidence that the city failed to exercise a duty imposed by law or that appellants
experienced a public wrong particularly injurious to them. The district court reasoned that
the city had “no legal duty to maintain the water levels of the pond.” The district court also
rejected appellants’ claim for attorney fees under Minn. Stat. § 117.045, the
inverse-condemnation statute.
The district court separately concluded that the city was immune from liability for
appellants’ tort claims based on its statutory immunity for discretionary functions under
Minn. Stat. § 466.03, subd. 6. The district court determined that the conduct at issue was
“the city’s decision not to install” a permanent outlet to regulate the pond’s water level.
10 The district court also determined that the city’s decision “is discretionary[,] and that a
policy as to how and when to install an outlet absolutely exists.” Thus, the district court
granted summary judgment for the city on all claims.
This appeal follows.
DECISION
Appellate courts “review the grant of summary judgment de novo.” Montemayor v.
Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017). District courts must grant
summary judgment “if the movant shows that there is no genuine issue as to any material
fact and the movant is entitled to judgement as a matter of law.” Minn. R. Civ. P. 56.01.
“We view the evidence in the light most favorable to the party against whom summary
judgment was granted . . . .” Com. Bank v. W. Bend Mut. Ins. Co., 870 N.W.2d 770, 773
(Minn. 2015). “Similarly, all factual inferences must be drawn against the movant for
summary judgment.” Senogles ex rel. Kihega v. Carlson, 902 N.W.2d 38, 42 (Minn. 2017)
(quotation omitted). “In an appeal from summary judgment, we must determine whether
there are genuine issues of material fact and whether the district court erred in applying the
law.” Vassallo by Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014).
Appellants contend that the district court erred by granting summary judgment.
First, appellants argue that whether a constitutional taking occurred is the central issue for
both inverse-condemnation (count I) and eminent-domain (count II) claims. Appellants
argue that these claims survive summary judgment because the city “de facto appropriated”
appellants’ property “to fulfill the pond’s stormwater holding function,” which “the city
11 has no right to do” without “legal compensation.” Relatedly, appellants ask this court to
restore their request for statutory attorney fees for their inverse-condemnation claim (count
III). Alternatively, appellants argue that, if a constitutional taking did not occur,the city is
liable for damage to their property under the common law for nuisance (count IV) and
trespass (count V) because the city’s conduct is not immune as a discretionary function
under Minn. Stat. § 466.03, subd. 6. We consider these arguments in turn.
I. The city is not entitled to summary judgment on the eminent-domain and inverse-condemnation claims or on appellants’ related claim for attorney fees.
Appellants’ brief to this court identifies three issues, one for each of the first three
counts in its complaint: inverse condemnation, taking or eminent domain, and statutory
attorney fees under Minn. Stat. § 117.045. 5 These three issues are related, first, by whether
a constitutional taking has occurred. “A district court reviewing a petition for a writ of
mandamus must decide whether a taking of property has occurred in the constitutional
sense.” Nolan & Nolan v. City of Eagan, 673 N.W.2d 487, 492 (Minn. App. 2004), rev.
denied (Minn. Mar. 16, 2004). Similarly, a complaint alleging that the government has
exercised its eminent-domain powers requires a district court to determine whether
property has been taken in violation of the constitution. See, e.g., Spaeth v. City of
Plymouth, 344 N.W.2d 815, 820, 822 (Minn. 1984) (determining that a constitutional
taking had occurred and therefore that the district court properly issued “a writ of
mandamus compelling the City to commence eminent domain proceedings”). And a
5 We note that we have somewhat revised appellants’ organization of the issues for this opinion.
12 request for attorney fees under Minn. Stat. § 117.045 is based on a successful “action
compelling an acquiring authority to initiate eminent domain proceedings.” Accordingly,
we discuss appellants’ first three issues together and begin with the taking issue.
A. The district court erred in granting summary judgment on the taking issue on this record.
Under the Fifth Amendment of the United States Constitution and article I,
section 13, of the Minnesota Constitution, the government may not take private property
for public use without just compensation. The Fifth Amendment “applies to state and local
governments through the due process clause of the [F]ourteenth [A]mendment.” Caponi v.
Carlson, 392 N.W.2d 591, 594 (Minn. App. 1986), rev. denied (Minn. Oct. 29, 1986).
“Whether a government entity’s action constitutes a taking is a question of law that we
review de novo.” Wensmann Realty, Inc. v. City of Eagan, 734 N.W.2d 623, 631 (Minn.
2007).
Appellants argue that the “flooding of [their] property constitutes a physical taking
by the city.” In their brief to this court, appellants assert that “[a]ny physical intrusion that
places a property under indefinite servitude constitutes a taking, even if flooding is not
constant.” The city responds that the district court properly determined that no taking
occurred because the flooding was only a “temporary limitation[]” on appellants’ property.
Minnesota law defines a “taking” as “every interference, under the power of eminent
domain, with the possession, enjoyment, or value of private property.” Minn. Stat.
§ 117.025 (2022); see also Hebert v. City of Fifty Lakes, 744 N.W.2d 226, 229 (Minn.
2008) (“A de facto taking is defined as a taking in which an entity clothed with
13 eminent-domain power substantially interferes with an owner’s use, possession, or
enjoyment of property.” (quotation omitted)). Any “permanent physical occupation”
authorized by the government is a taking. Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419, 426 (1982); Spaeth, 344 N.W.2d at 821. Accordingly, this court has held
that when a city uses private property as a holding pond for its stormwater system, resulting
in permanent flooding, the city has taken property and just compensation is required.
Caponi, 392 N.W.2d at 595-96 (holding that a city took an appellant’s private land when
it installed culverts and caused permanent flooding, thus using a portion of private property
as a stormwater-retention pond). Here, appellants offer no evidence that the city has
permanently flooded their property.
If flooding is intermittent, a somewhat different analysis is required. The Minnesota
Supreme Court defines a taking in this context as “any substantial interference with private
property that destroys or lessens its value, or by which the owner’s right to its use or
enjoyment is in any substantial degree abridged or destroyed.” Nelson v. Wilson,
58 N.W.2d 330, 335 (Minn. 1953) (emphasis added) (quotation omitted). When the
government’s action causes flooding that is less than a substantial interference, the
government action does not amount to a taking. Id. The proper remedy for occasional
flooding is damages based on tort law. Id. “Whether occasional flooding is of such
frequency, regularity, and permanency as to constitute a [t]aking and not merely a
14 temporary invasion . . . is a question of degree, and each case must stand on its own
peculiar facts.” Id. 6
For example, in Nelson, the government built a dam; some of the affected property
was not permanently flooded but “remained flooded and wet for several years.” 58 N.W.2d
at 332, 335. The supreme court affirmed the district court’s decision after a trial that the
flooding was frequent, regular, permanent, and constituted a taking. Id. Similarly, in
Spaeth, the supreme court affirmed a district court’s determination after a trial that the City
of Plymouth took Spaeth’s property when it used it as a stormwater holding pond because,
although the flooding was intermittent, “the evidence show[ed] more than occasional water
accumulation” and “Spaeth’s property [had] generally remained flooded for approximately
three years.” 344 N.W.2d at 821-22.
On the other hand, in Blaine v. City of Sartell, this court affirmed the district court’s
grant of summary judgment for the City of Sartell on a taking claim based on overflow
from Sartell’s drainage ditch. 865 N.W.2d 723, 724, 729 (Minn. App. 2015). This court
cited evidence that flooding occurred twice on Blaine’s property and receded within a few
days. Id. at 725, 729. We concluded that the flooding was not “of such frequency,
regularity, and permanency as to constitute a taking.” Id. at 729.
Here, appellants’ theory is that the city included the pond as part of a
stormwater-management system and caused a permanent “flooding condition” on their
6 We note that this test is distinct from the substantial-invasion test used to determine whether there is a taking by nonphysical appropriation, such as airport noise. See Alevizos v. Metro. Airports Comm’n, 216 N.W.2d 651, 662 (Minn. 1974).
15 property. They argue that the city’s use of the pond for stormwater drainage has created a
servitude that, although intermittent, is of an indefinite duration because the pond has no
outlet, natural or mechanical.
Appellants cite Spaeth, arguing that “[p]ermanent in this context refers to a servitude
of indefinite duration, even if intermittent,” and contend that the permanent risk of flooding
created an indefinite servitude on the property such that it amounts to a taking. 344 N.W.2d
at 822 (quotation omitted). Appellants emphasize that, when viewed favorably to them, the
evidence shows that the risk of flooding is permanent and that flooding is likely to recur.
The city argues that “appellants’ taking analysis is novel and unsupported in law.” 7
Indeed, no Minnesota caselaw recognizes that a permanent risk of flooding amounts
to a constitutional taking or that “risk of flooding” is a substantial interference with use and
enjoyment of property. As noted above, existing caselaw has recognized that intermittent
flooding may amount to a constitutional taking where it is a substantial interference with
the owner’s use and enjoyment of property. Nelson, 58 N.W.2d at 335. We also note that
the term indefinite servitude, as discussed in Spaeth, relates to intermittent flooding, not a
7 The city also argues that we should not consider appellants’ argument that the risk of flooding is a constitutional taking because appellants did not raise the theory in district court. The city is correct that a party cannot present a new theory for the first time on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). But appellants made this argument in their memorandum in opposition to the city’s motion for summary judgment, saying that the city had “taken their property rights by . . . subjecting [the property] to a permanent risk of flooding.”
16 permanent risk of flooding. 8 With no direction from our supreme court, we refuse
appellants’ invitation to extend the law to hold that the permanent risk of flooding, without
more, amounts to a constitutional taking. See Tereault v. Palmer, 413 N.W.2d 283, 286
(Minn. App. 1987) (stating that “the task of extending existing law falls to the supreme
court or the legislature, but it does not fall to this court”), rev. denied (Minn. Dec. 18,
1987). We conclude, however, that intermittent flooding when combined with evidence of
a permanent risk of flooding may amount to a taking, depending on the frequency,
regularity, and permanency of the flooding. See Nelson, 58 N.W.2d at 335. In short,
evidence of the permanent risk of flooding is relevant to a district court’s legal
determination of whether intermittent flooding constitutes a taking of appellants’ property.
With this caselaw in mind, we consider the district court’s conclusion that there was
“no substantial interference with the [appellants’] use and enjoyment of the property
because any high-water levels have been infrequent and insubstantial,” making the
flooding “more akin to temporary, irregular invasion.”
The district court’s determination that the pond’s flooding of appellants’ property
was not a “substantial interference with the use or enjoyment” of their property rested on
the following evidence: “water from the pond has never entered the home” and “high water
levels effectively inundated the property on three occasions”—most recently in 2019. The
district court also cited evidence that appellants’ patio and lawn were “submerged” in 2017
8 The term “indefinite servitude” is also used in regulatory-takings claims, such as the airport-noise cases filed by landowners. See United States v. Causby, 328 U.S. 256, 266-67 (1946) (determining that “frequent, low-level flights” over a property constituted an indefinite servitude). But this is not a regulatory-taking case.
17 and that their backyard and deck posts were submerged in 2019. Again, because “there has
been no interference with the home itself,” the district court found “no facts in the record
giving rise to a genuine issue as to the elements of taking.”
We cannot affirm this determination on summary judgment. First, while relevant,
the lack of damage to appellants’ home is not dispositive. As seen in Nelson, 58 N.W.2d at
335, and Spaeth, 344 N.W.2d at 822, government conduct that leads to intermittent
flooding of land may be sufficient to establish a constitutional taking. Second, whether the
pond’s flooding of appellants’ property three times in ten years amounts to a taking is a
“question of degree” that depends “on its own peculiar facts.” Nelson, 58 N.W.2d at 335.
Although the district court mentioned the “frequency” of the flooding as three times in ten
years, it did not discuss the regularity or the permanency of the flooding. The district court
also did not address the evidence that the pond created a permanent risk of flooding on
appellants’ property and that the pond is likely to flood again, as stated in appellants’ expert
report. The city’s four WRMPs over nearly 40 years and the city’s
landlocked-basin-sensitivity analysis provide similar evidence. Indeed, based on this
evidence, the city has recommended but cannot yet fund the installation of an outlet to
manage water levels and avoid flooding of adjacent properties, one of which is appellants’
property.
Based on our review of the evidence submitted on summary judgment and viewed
in the light most favorable to appellants, the city’s use of the pond to manage stormwater
has resulted in intermittent flooding of appellants’ property and has created a permanent
risk of flooding. The flooding here is not as frequent as the flooding that lasted several
18 years in Nelson, 58 N.W.2d at 335, or Spaeth, 344 N.W.2d at 822. But it is more frequent
than the flooding in Blaine, which occurred twice and receded within a few days.
865 N.W.2d at 725.
Appellants argue that the evidence of intermittent flooding and risk of flooding
creates a question of fact for trial. We agree that these facts give rise to conflicting
inferences about the permanency of intermittent flooding and that, on summary judgment,
a district court must draw inferences in appellants’ favor and must not weigh the evidence.
Senogles, 902 N.W.2d at 42; DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997) (“[T]he
function of the district court on a motion for summary judgment is to not weigh the
evidence.”). Because appellants presented evidence from which the district court could
determine that the intermittent flooding of their property by the pond was of a sufficient
degree of frequency, regularity, and permanency and that the pond created a permanent
risk of flooding, the district court must determine whether these “particular facts” constitute
a taking. Because the district court overlooked the “question of degree” raised by the
evidence submitted, failed to draw inferences in appellants’ favor, and improperly weighed
the evidence, it inappropriately granted summary judgment.
Thus, we reverse summary judgment on the taking issue for both the
eminent-domain and inverse-condemnation claims. In doing so, we offer no opinion about
the district court’s ultimate determination of the taking issue. We also note that whether a
taking has occurred is a question for the district court, not a jury. City of Mankato v.
Hilgers, 313 N.W.2d 610, 612 (Minn. 1981). Accordingly, we remand this issue for further
proceedings not inconsistent with this court’s decision.
19 Because we remand the taking issue for a decision on the merits, we address a
related issue. Appellants ask us to reject the district court’s decision that no taking occurred
based on the district court’s comment that appellants “have not appraised the home since
its purchase in 2007, so [appellants] have not given rise to a fact-question as to whether
there has been a diminution in value.” Appellants first point out that they submitted
evidence of a decrease in property value because of the flooding history and ongoing flood
risk. Second, appellants correctly point out that, while caselaw requires a decrease in value
when there is a taking involving the government regulation of property, that requirement
does not apply when “government action results in a permanent physical appropriation or
occupation of property” as appellants allege here. Spaeth, 344 N.W.2d at 821. The supreme
court in Spaeth held that the decrease-in-value requirement “need not be applied to
determine whether a compensable taking has occurred where . . . [the] government
physically appropriates property as planned or when government activity results in a
permanent physical occupation” because, when there is permanent physical appropriation
based on government action, “there certainly has been a taking.” Id. Because appellants
exclusively argue that the taking occurred by physical appropriation, the district court erred
in relying on the absence of an appraisal to determine whether a taking occurred.
B. Appellants’ request for a writ of mandamus relates to their eminent-domain and inverse-condemnation claims.
Under Minn. Stat. § 586.01 (2022), a “writ of mandamus may be issued to any
inferior tribunal, corporation, board, or person to compel the performance of an act which
the law specially enjoins as a duty resulting from an office, trust, or station.” The district
20 court granted summary judgment to the city on appellants’ mandamus claims for eminent
domain and inverse condemnation, explaining that appellants did “not show[] that the city
failed to exercise a duty clearly imposed by law by failing to maintain the pond.” The
district court also determined that “[e]ven if the city did have a duty imposed by law
[appellants] have not demonstrated they have suffered a public wrong specifically injurious
to them” because the flooding also impacts their neighbors.
To receive a writ of mandamus, appellants must show (1) the city “failed to exercise
a duty imposed by law; (2) due to this failure, [appellants were] specifically injured by a
public wrong; and (3) there is no adequate alternative legal remedy.” Chanhassen
Chiropractic Ctr., P.A. v. City of Chanhassen, 663 N.W.2d 559, 562 (Minn. App. 2003),
rev. denied (Minn. Aug. 5, 2003).
Appellants argue that the district court misanalysed the first element because their
mandamus claims stem from the city’s “failure to commence condemnation” and they do
not seek to compel the city “to regulate the pond.” The city does not defend the district
court’s analysis of the first mandamus element. Rather, the city asks us to affirm the district
court’s grant of summary judgment on appellants’ mandamus claims because, “without a
taking,” the mandamus claims fail. The city also argues that the district court correctly
rejected mandamus on the second element.
We consider each of the mandamus elements in turn. On the first element, failure to
perform an official duty clearly imposed by law, we agree with appellants that the
mandamus claims concern the city’s duty to initiate condemnation proceedings, which,
when triggered, is a duty clearly imposed by law. A writ of mandamus may be used to
21 compel the government to exercise eminent domain through condemnation of private
property, known in this context as “inverse condemnation.” Nolan, 673 N.W.2d at 492.
While appellants contend that the city also failed to maintain the pond, this maintenance
duty is not subject to mandamus because it is not clearly imposed by law.
On the second element, specific injury to appellants, the district court is correct that
it is undisputed that the pond’s flooding harmed many neighboring properties around the
pond, not only appellants’ property. But appellants nonetheless offered evidence of specific
injury to their own property—physical appropriation by intermittent flooding of the pond
used in the city’s stormwater-management system. Neither the city nor the district court
cites any caselaw establishing that the second element requires the plaintiff in a mandamus
action to be the only party injured.
The district court did not discuss the third element requiring no adequate alternative
legal remedy. Appellants’ brief to this court states that they are pursuing “claims for
damages based on nuisance and trespass in the alternative to their taking and inverse
condemnation claims.” We conclude that, if appellants’ tort claims are barred by
discretionary immunity, appellants satisfy the third element. And if appellants prevail on
their constitutional-taking claim, then only inverse condemnation through a writ of
mandamus can provide an adequate remedy. Nelson, 58 N.W.2d at 335 (tort claims provide
a remedy for temporary and occasional flooding that is not permanent). Thus, it was
premature to grant summary judgment on the merits of appellants’ mandamus claim.
22 C. Appellants’ attorney-fees claim is tied to their eminent-domain and inverse-condemnation claims.
Count III of appellants’ complaint seeks an award of attorney fees under Minn. Stat.
§ 117.045, which allows a district court to award attorney fees to the prevailing party in
eminent-domain proceedings. Because the district court dismissed appellants’
eminent-domain and inverse-condemnation claims, it also denied appellants’ claim for
attorney fees. As the district court stated, the attorney-fees claim depends on whether the
claims for eminent domain and inverse condemnation survive summary judgement. For the
reasons already discussed, we reverse the district court’s decision on counts I, II, and III.
II. The district court erred by determining that the city was immune from liability for appellants’ tort claims.
Appellants contend that they have a right to pursue their tort claims for nuisance and
trespass (counts IV and V) in the alternative to their claims for a constitutional taking. The
district court granted summary judgment for the city on the tort claims. The district court
first determined that “the [city’s] conduct at issue is discretionary” and then concluded that
appellants’ “nuisance and trespass claims are barred by statutory immunity.” 9
Municipal liability for torts claims is governed by Minn. Stat. § 466.02 (2022),
which provides that “every municipality is subject to liability for its torts and those of its
9 “Minnesota law recognizes two forms of governmental immunity: statutory immunity and common law official immunity.” Kariniemi v. City of Rockford, 882 N.W.2d 593, 599 (Minn. 2016). Although the exercise of discretion is relevant to both official and statutory immunity, different types of discretion are at issue, and “discretion has a broader meaning in the context of official immunity.” Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991). The district court determined that “[c]ommon law official immunity does not apply in this case.” The city did not appeal this determination. As a result, we do not consider the district court’s analysis of official immunity.
23 officers, employees and agents acting within the scope of their employment or duties.” But
section 466.03 provides many exceptions, one of which is for discretionary functions, and
states that municipalities are immune from liability for “[a]ny claim based upon the
performance or the failure to exercise or perform a discretionary function or duty, whether
or not the discretion is abused.” Minn. Stat. § 466.03, subd. 6. “Determining whether
statutory immunity applies requires a careful examination of the challenged governmental
activity.” Angell v. Hennepin Cnty. Reg’l Rail Auth., 578 N.W.2d 343, 346 (Minn. 1998).
The city has the burden of proving “that it is immune under the discretionary function
exception.” Nusbaum v. Blue Earth County, 422 N.W.2d 713, 722 n.6 (Minn. 1988).
There are two steps to determine whether government conduct is immune under
subdivision 6. The first step is to “identify the conduct at issue,” and the second step is to
decide whether the “conduct was the result of a discretionary function and thus is immune,
or an operational function not entitled to immunity.” Id. “[A] defendant relying upon an
immunity bears the burden of proving [they fit] within the scope of the immunity.” Rehn
v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997). We consider each step of the immunity
analysis in turn.
A. The Challenged Conduct
The conduct at issue for the nuisance and trespass claims, as raised by appellants, is
the city’s maintenance of the pond as well as the city’s approval of additional development
around the pond, which, appellants argue, increased the impervious surfaces in the pond
watershed and increased flooding. The district court identified the challenged conduct as
the city’s decision not to install an outlet to regulate the water level of the pond.
24 In their brief to this court, appellants contend that the conduct at issue is the city’s
overall regulation and management of the pond, not just the city’s decision not to install an
outlet. In fact, appellants concede in their brief to this court that the city’s decision not to
install an outlet to regulate the pond’s water level is a planning decision based on economic
and political factors and that the city is therefore immune from tort liability for that
decision. Appellants’ focus on pond maintenance and city-planning decisions adheres to
appellants’ position throughout this case. In the complaint, appellants asserted that the city
allowed “development that contributes to increased runoff” and damaged their property. In
their response to the city’s motion for summary judgment, appellants argued that the city
is liable in tort because of its “complete neglect of any operational decisions to regulate,
manage, and maintain [the pond] to prevent increasing its flood risk and causing flooding.”
Accordingly, we conclude the challenged conduct is the city’s maintenance of the
pond as well as the city’s planning decisions approving development that increased
impervious surfaces around the pond.
B. Whether the Challenged Conduct Is a Discretionary Function
The discretionary-function exception to municipal tort liability immunizes
government conduct or decisions that are based on “a balancing of political, social, and
economic factors.” Angell, 578 N.W.2d at 346. These are known as “planning-level
decisions.” Conlin v. City of St. Paul, 605 N.W.2d 396, 400 (Minn. 2000). On the other
hand, “operational or day-to-day decisions involving the application of scientific or
technical skills are not protected by statutory immunity.” Angell, 578 N.W.2d at 346.
Operational functions are “those involving day-to-day operations of government, the
25 application of scientific and technical skills, or the exercise of professional judgment.”
Schroeder v. St. Louis County, 708 N.W.2d 497, 504 (Minn. 2006).
The district court determined that the city’s decision not to install an outlet was
discretionary because “the evidence and testimony reveal a broad and discretionary
decision making process regarding maintaining water levels” and “[m]any political,
ecological, and economic factors are considered, and many moving parts must come
together to prioritize and implement WRMP goals.” As discussed above, appellants argue
that the district court did not correctly identify the government conduct at issue. We agree.
Turning to appellants’ claims challenging pond maintenance and city-planning
decisions related to impervious surfaces around the pond, appellants contend that, “[a]t a
minimum, there is a fact question precluding summary judgment.” The city argues that
summary judgment is appropriate because its “conduct—whether allowing development in
the area, or its decision not to install a drainage outlet—involves the long-term planning
and management of its water resources, including environmental, political, and practical
engineering considerations.” Specifically, the city argues that the “record demonstrates that
the city is faced with the task of prioritizing many competing demands on . . . its limited
resources” when it comes to pond maintenance and has to “take into account downstream
impacts, limited resources, and citizen concerns.” The city also argues that the record
shows that the city’s decisions to approve development “involve[] policy making,” given
that city staff “evaluate proposed developments, utilizing their various professional
experience, specialized education, and discretion, and then make recommendations to the
City Council for approval.”
26 First, we consider whether the city’s maintenance of the pond is a discretionary
function involving planning-level decisions. The city’s policies about maintaining its
stormwater-management system are in the WRMPs, and, under the 2019 WRMP, one
relevant goal was to “[m]inimize flooding potential while [also] minimizing, to the greatest
extent practical, the public capital expenditures necessary to control excessive volumes and
rates of runoff.” The city’s director of public works testified that the city “perform[s]
reactionary maintenance” and does not have “a routine maintenance schedule” but will
check on a pond if it “get[s] a call” and would “stop out and look at anything that would
need to be addressed on the inlets.” He also explained that the city’s decision to increase a
pond’s capacity or install an outlet would require looking at “a number of different factors,”
including “downstream impacts, public input,” as well as “political, social, economic, [and]
financing” factors.
Accordingly, the city met its burden to show that its maintenance of the pond,
specifically, its decisions about ongoing pond maintenance, including installation of an
outlet, are planning-level decisions that involve balancing many factors and the use of
professional judgment—the hallmarks of discretionary functions. See, e.g., Chabot v. City
of Sauk Rapids, 422 N.W.2d 708, 709, 711 (Minn. 1988) (holding city’s decision not to
remedy stormwater-holding pond by making costly repairs was “clearly of a policy-making
nature” and immune from tort liability as a discretionary function); Christopherson v. City
of Albert Lea, 623 N.W.2d 272, 276-77 (Minn. App. 2001) (affirming summary judgment
for city and holding city’s decision not to make capital improvements to sewer system was
a policy-making decision protected by discretionary immunity). Thus, the city’s
27 maintenance of or improvements to the pond is a discretionary function and is therefore
protected by statutory immunity.
Second, we address whether the city met its burden to show that its development
and planning decisions that increased impervious surfaces around the pond are
discretionary functions. The city submitted evidence by the director of public works who
discussed the city’s decision-making process on new development. He testified that the
city reviews and approves new development, such as “adding a structure” and that the city
“would require the current rules and ordinances to be followed.” The director of public
works added that the city council has authority to “set” or act on ordinances, such as “hard
surface coverage limit[s],” with recommendations from, generally, the planning
department. The director of public works added that he “can’t speak to that on behalf of
planning.”
The director of public works explained that any permits allowing property owners
to build new structures would be reviewed by the “community development” or the
“planning” departments. But the director added that he “can’t speak to all of those.” He
added that “if a home were being built,” in addition to current regulations, public works
would look at “how the [pond’s] water would need to be controlled [as] part of [the]
stormwater management plan[; the pond’s] rate and volume” and the decision would
depend on “each individual situation.”
When asked about specific improvements identified in appellants’ expert report, the
director denied having any personal knowledge. The city also offered testimony from a city
engineer, who testified that he was familiar with one recent construction project in the area
28 around the pond and that a staff member in his department had reviewed the project “to
ensure that the property met stormwater regulations [in] the city” by “review[ing] the
grading plans.”
After careful review of the record submitted on summary judgment, we conclude
that the city submitted evidence on which departments made development decisions but
did not “provide[] any evidence as to how [the city or its departments] made the decision
for which it claims immunity.” Conlin, 605 N.W.2d at 402. The city therefore did not meet
its burden to show it is entitled to discretionary immunity. Id. at 400.
To the extent that appellants are challenging the issuance of permits that affected
stormwater runoff or capacity, the city is correct that permitting decisions have, in some
cases, been treated as immune discretionary functions. See Anderson v. City of
Minneapolis, 178 N.W.2d 215, 217 (Minn. 1970) (granting judgment for city on appeal,
reasoning that a Minneapolis city employee’s act in “issuing the building permit in a
doubtful case involved an exercise of discretion” because the employee “had to make a
judgment as to whether plans submitted in support of the application for the permit
constituted a permissible use of the property in the area involved”); see also Wilson v.
Ramacher, 352 N.W.2d 389, 392-93 (Minn. 1984) (affirming that, “as a matter of
law[,] . . . the city was not liable” under the discretionary-function exception for the
“issuance of any permits to the downstream owners to put fill on their land” though doing
so diverted surface waters onto appellant’s land).
But permitting is only part of the challenged conduct. Appellants’ tort claims focus
on damage to their property caused by the city’s planning and development decisions that
29 increased impervious surfaces around the pond. At best, the city offered evidence
suggesting that the city has a review process for new construction and how that process
worked for one construction project. But the city did not provide evidence about how it
balanced political, social, or economic factors to make planning and development
decisions, much less how those decisions related to impervious surfaces and stormwater
management. Indeed, the one witness on whom the city relied stated that he could not speak
to a hardcover-surface limit or how the planning department evaluated hardcover during
the permitting process. Thus, while it may seem highly likely to this court that the city
balanced political, economic, and other considerations when it approved development
around the pond and increased impervious surfaces, the absence of any evidence in support
of this position leads us to reverse.
In sum, the city is immune from tort liability for its decision to not install an outlet
and for its regular reactive maintenance conduct involving the pond. But, on this record,
the city failed to show that the conduct challenged by these appellants involving the
approval of development that increased impervious surfaces around the pond resulted from
a discretionary function.
Affirmed in part, reversed in part, and remanded.