The City of Minneapolis, petitioner, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0988

The City of Minneapolis, petitioner,
Respondent,

vs.

Christopher Doi, et al.,
Respondents Below,

Sitescape, Inc., a North Dakota corporation,
Appellant.

Filed March 26, 2018
Affirmed
Cleary, Chief Judge
Dissenting, Reyes, Judge

Hennepin County District Court
File No. 27-CV-17-2707

Peter G. Mikhail, Elizabeth C. Brodeen-Kuo, Kennedy & Graven, Chartered, Minneapolis,
Minnesota (for respondent The City of Minneapolis)

James P. Peters, Law Offices of James P. Peters PLLC, Glen wood, Minnesota (for
appellant)

Considered and decided by Cleary, Chief Judge; Reyes, Judge; and Jesson, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
On appeal from the district court’s conde mnation order, appellant Sitescape, Inc.
(Sitescape) challenges the district court’s gr ant of the taking of Sitescape’s property by
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respondent The City of Minneapolis (the c ity). Because the taking was not manifestly
arbitrary or unreasonable and Sitescape was not denied due process, we affirm.
FACTS
In 2006, Hanza Farah, the owner and pr esident of Sitescap e, entered into a
redevelopment contract with th e city for property (the prope rty) located on University
Avenue in Minneapolis. On November 4, 2 016, the city authoriz ed acquisition of the
property as part of a proj ect for the installation of a new public works campus. After
voluntary negotiations to acquire the property failed, the city directed its legal counsel to
undertake eminent domain proceedings. On February 28, 2017, the city filed a quick-take
petition in district court.
The district court held a hearing on the petition on April 26, 2017. An employee of
the city testified about the public purpose and necessity of the taking. The employee
testified that the taking was necessary as part of the city’s project to redesign a new public
works campus. Farah attended the hearing, but could not appear on behalf of Sitescape as
she was not licensed to practice law. Sitescape was not otherwise represented at that time.
The district court allowed Sitescape until May 10, 2017 to retain counsel and file a
written objection to the petition. On May 9, 2017, counsel for Sitescape filed a written
objection to the petition. On May 16, 2017, the district court issued an order for
submissions concluding, based on the existing record, that an additional hearing was not
necessary. The district court allowed the city to file a wr itten response to Sitescape’s
written objection by May 19, 2017, and permitted Sitescape to file a letter brief, within the
same time period, arguing why an additional hearing was necessary. Both parties timely
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filed their respective documents. On May 26, 2017, the district court denied Sitescape’s
request for an additional hearing and granted the city’s condemnation petition. This appeal
follows.
D E C I S I O N
“The scope of judicial review of a determination of public purpose by a condemning
authority is very narrow.” State ex rel. Comm’r of Transp. v. Kettleson, 801 N.W.2d 160,
165 (Minn. 2011). “This is because the dete rminations of the condemning authority are
regarded as legislative decisions which will be overturned only when they are ‘manifestly
arbitrary or unreasonable.’” Lundell v. Coop. Power Ass’n, 707 N.W.2d 376, 381 (Minn.
2006) (quoting Hous. & Redev. Auth. v. Minneapolis Metro. Co. , 259 Minn. 1, 15, 104
N.W.2d 864, 874 (1960)). “Thus, there are two levels of deference paid to condemnation
decisions: the district court gives deference to the legislative determination of public
purpose and necessity of the condemning authority and the appellate courts give deference
to the findings of the district court, using the clearly erroneous standard.” Id.
I. The district court did not err in find ing the city’s taking of the Sitescape
property necessary for a public purpose.

Sitescape argues that the city’s taking was not necessary because the city could
complete the project without the property. We conclude that the district court did not err
in finding the taking necessary for a public purpose.
A condemning authority must “determine that there is a public use for the land and
that the taking is reasonably necessary or convenient for the furtherance of that public use.”
Lundell, 707 N.W.2d at 380. “Public pur pose is construed broadly.” Id. at 381.
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“‘Necessary’ need not be ‘absolute or indispensable necessity.’ The condemning authority
need only show that the proposed taking is ‘reasonabl y necessary or convenient’ for
furtherance of the end in view.” City of New Ulm v. Schultz, 356 N.W.2d 846, 848 (Minn.
App. 1984) (quoting N. States Power Co. v. Oslund, 236 Minn. 135, 137, 51 N.W.2d 808,
809 (1952)). “To overcome a c ondemning authority’s finding of necessity there must be
overwhelming evidence that the taking is not necessary.” Lundell, 707 N.W.2d at 381. “A
party challenging the necessity of the condemnation of a parcel will not succeed by merely
suggesting alternatives to the government’s plan.” Minneapolis Cmty. Dev. Agency v.
Opus Nw., LLC (In re MCDA), 582 N.W.2d 596, 600 (Minn. App. 1998).
The city employee testified at the hearin g that the city pla nned to include the
property in its new public work s campus to co-locate two di visions of public works and
that such renovations could not occur on the current sites because it would require shutting
down operations during construc tion. Because the city’s project reasonably requires co-
location, we hold that the city ’s public purpose and necessi ty determinations were not
manifestly arbitrary or unreasonable and the district court did not err in granting the city’s
petition.
Sitescape also argues that th e property is merely extra green space for the project
and that a condemning authority may not “sto ckpile” property. A condemning authority
“cannot acquire [property] for speculative future use (stoc kpiling) by condemnation.”
Regents of the Univ. of Minn. v. Chicago & N. W. Transp. Co., 552 N.W.2d 578, 580 (Minn.
App. 1996), review denied (Minn. Nov. 20, 1996). In Regents, the University of Minnesota
had three potential but mutually exclusive uses for the land but did not have a specific plan
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for it. Id. Here, in contrast, the city has a specific plan for the property to be included in
its new public works campus. The city is not attempting to stockpile the Sitescape property.
II. Zoning restrictions do not render the city’s taking manife stly arbitrary or
unreasonable.

Sitescape contends that the project is illegal because subsequent approvals and
permits have not yet been obtained. We conc lude that such regular contingencies do not
render the taking manifestly arbitrary or unreasonable.
This court has previously declined to hold that a taking is unreasonably speculative
where outstanding permits and approvals remained. Hous. & Redev. Auth. in Richfield v.
Walser Auto Sales, Inc., 630 N.W.2d 662, 670 (Minn. App. 2001), aff’d, 641 N.W.2d 885
(Minn. 2002). This court concluded: “Conti ngencies, such as the permits and approvals
remaining for this project, are normal continge ncies for a major redevelopment project.”
Id. (citing Opus, 582 N.W.2d at 597 (“Public purpose and necessity cannot be thwarted by
alleging that condemnation is illegal . . . if in fact the project is officially supported by the
governmental entity and ordinary agreements are in place to realize the project.”)).
The city will need to apply for additiona l approvals and permits to complete the
project. But such processes do not render the project illegal, because the city must have
title to the property before th e processes can begin. We conclude that the additional
contingencies do not render the taking manifestly arbitrary or unreasonable.
III. Sitescape’s prior contract with the ci ty does not render th e taking manifestly
arbitrary or unreasonable.

Sitescape contends that the taking breaches its contract with the city to build a
permanent house on the property. We conclude that the prior contract did not diminish the
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city’s eminent domain power.
In Lundell, the supreme court affirmed the city ’s taking despite a preexisting lease
for the property. 707 N.W.2d at 383. Th e court held: “a cond emning authority cannot
bargain away its power of eminent domain.” Id. at 381; see also Village of St. Louis Park
v. Minneapolis, Northfield & S. Ry. Co. , 156 Minn. 164, 169, 1 94 N.W. 327, 329 (1923)
(“[A] contract of the kind now in question, though valid, . . . cannot prevent the subsequent
acquisition by condemnation, for public purposes and adequate compensation, or property
and rights inconsistent with or expressly denied by such contract.”). Notwithstanding the
contract’s absence from the record, such a contract would not diminish the city’s eminent
domain power or render its taking manifestly arbitrary or unreasonable.
IV. The district court did not deny Sitescape due process.
Sitescape contends that the district court failed to provide it with an opportunity to
present evidence at a court hearing and to cross-examine the city’s employee witness. We
conclude that Sitescape was not denied due process.
No person shall be deprived of property without due process of law. Minn. Const.
art. I, § 7. The basic requirements of due process are notice and an opportunity for a
hearing. Omdahl v. Hadler, 459 N.W.2d 355, 360 (M inn. App. 1990) (citing Mullane v.
Cent. Hanover Bank & Trust Co. , 339 U.S. 306, 313, 70 S. Ct. 652, 656 (1950)). The
procedures in a condemnation proceeding are described in Minn. Stat. §§ 117.055, .075
(2016). The law provides that a district cour t “shall hear all compet ent evidence offered
for or against the granting of the petition, regulating the orde r of proof as it may deem
best.” Minn. Stat. § 117.075, subd. 1(a).
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An objecting landowner in a condemnation proceeding is entitled to an evidentiary
hearing. In re Minneapolis Cmty. Dev. Agency (MCDA), 439 N.W.2d 708, 710 (Minn.
1989). Objecting “landowners should be able to litigate the limited issue of whether the
specific interest in a particular piece of pr operty is necessary to accomplish the general
project.” Coop. Power Ass’n v. Eaton, 284 N.W.2d 395, 397 (Minn. 1979).
In Eaton, the district court held a hearing on the eminent domain petition wherein
the condemning authority presented testimony on the necessity of the taking. Id. However,
the landowners neither offered any evidence of their own nor cross-examined any
witnesses, because they considered the proceeding preliminary in nature. Id. The district
court granted the petition based solely on the condemning authority’s evidence and
arguments. Id. The supreme court agreed that while the condemning authority’s decision
was conclusive as to the public necessity for the project in general, the landowners should
have had the opportunity to refute the necessity of taking their particular interest in the
property. Id. at 397-98.
In MCDA, no record was made of the heari ng that occurred on the condemnation
petition, but because “[c]onsider able documentary evidence was produced” and the facts
the landowner claimed it would produce at a further evidentiary hearing were already
before the district court “in sufficient detail” when it made its decision, the supreme court
held that the original hearing was adequate. 439 N.W.2d at 710-11.
Here, while Sitescape was not heard at the original hearing, it had the opportunity
to present evidence when the district court allowed it to submit written objections, followed
by the opportunity to submit a letter brief fu rther arguing why an a dditional hearing was
8
necessary. As in MCDA, the district court had sufficient documentary evidence before it
when it made its decision, and Sitescape di d not identify what additional information it
would glean from cross-examining the city’s witness that was not already before the district
court. Unlike in Eaton where the district court did not have before it any evidence produced
by the landowners, here Sitescape submitted evidence in the form of written objections and
a letter brief. The varying opportunities to be heard provided Sitescape with sufficient due
process.
V. The district court did not err in ad opting the city’s proposed findings.
Sitescape contends that the “verbatim adoption of the city’s proposed findings was
too mechanical to withstand review.” We conclude that the district court did not err.
A district court must “find the facts specially and state separately its conclusions of
law thereon and direct the entry of the appropr iate judgment.” Minn. R. Civ. P. 52.01.
“The purpose of rule 52 is to aid the appella te court by affording it a clear understanding
of the ground or basis of the trial court’s decision.” Transit Team, Inc. v. Metro. Council,
679 N.W.2d 390, 398 (Minn. Ap p. 2004). District courts are discouraged from adopting
proposed findings and conclusions verbatim when it would prevent the parties or a
reviewing court from determining whether the decision was independently made. Lundell,
707 N.W.2d at 380 n.1.
While it appears the district court adopted th e city’s proposed findings of fact and
conclusions of law, it also incorporated into its order an attached five-page memorandum
further explaining its findings and conclusions . Given the district court’s independent
analysis in its memorandum which provides a clear understanding of the basis of its
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decision, we hold that it did not err in adopti ng the city’s proposed findings of fact and
conclusions of law.
Affirmed.

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REYES, Judge (dissenting)
I respectfully dissent. I would reverse and remand to provide Sitescape, Inc.
(Sitescape) its right under the United States and Minnesota constitu tions and Minn. Stat.
§ 117.075, subd. 1(a) (2016), to notice and an opportunity for a hearing to present evidence
and cross-examine any witness of respondent City of Minneapolis (the City) about its
attempted taking of Sitescape’s property.
Sitescape owns a home and real propert y located on Univer sity Avenue in
Minneapolis (the property). Hanza Farah, the owner and president of Sitescape and a
registered architect, designed and constructed a new custom home on the property in 2006
through a redevelopment program and contract entered into w ith the City. The City now
seeks to condemn that same property.
In 2016, the City sought to acquire the property through voluntary negotiations for
a project to install a new municipal operations campus, which the City admitted will move
forward whether it acquires the property or not.
1 After negotiations failed, the City
petitioned to condemn the property through the use of its eminent-domain power.
The district court held a hearing on Apr il 26, 2017, on the City’s petition. Farah
attended on behalf of Sitescape as its presid ent and owner. The dist rict court informed
Farah that she could not argue on behalf of Sitescape or cross-examine the City’s witness
without counsel. Despite this, the district court allowed the City to offer both evidence in

1 On October 13, 2016, the City published an information sh eet publicly stating that its
project could proceed without taking Sitescape’s property.
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favor of the petition without any rebuttal by Sitescape and witness testimony without any
cross-examination by Sitescape.
At the hearing, the district court also informed Farah that she had until May 10,
2017, to retain counsel to re present Sitescape and file writte n objections to the petition.
Sitescape retained counsel and timely filed its written objections on May 9, 2017, and
requested a hearing to present evidence adverse to the City’s petition and to cross-examine
the City’s witness. On May 16, 2017, the district court de nied Sitescape’s request for a
hearing, but permitted the City to respond to Sitescape’s written objections and submit
additional evidence. Sitescape was allowed to respond to the district court’s hearing denial
by letter brief without an opportunity to re but the additional evidence submitted. No
hearing was held on the City’s additional evidence. On May 26, 2017, the district court
again denied Sitescape’s hearing request and granted the City’s petition. Sitescape appeals.
Sitescape argues, in part, that the distri ct court violated its due-process rights by
denying its request for a hearing to presen t evidence adverse to the City’s petition and
cross-examine the City’s witness.2 Sitescape’s due-process argument has merit.
The Minnesota Constitution pr otects a person from the government’s taking of
property without due process of law. Minn. Const. art. I, § 7. The government’s
commencement of eminent-domain proceedings results in a formal adjudication of rights

2 Sitescape also argues that the district cour t clearly erred by: (1) finding that the taking
served a public purpose; (2) failing to consider zoning restrictions; (3) determining that the
taking was reasonable given th e parties’ prior contract; and (4) adopting the City’s
proposed findings verbatim. Because I would reverse and remand on the due-process issue
to allow a full evidentiary hearing, I do not reach the merits of these arguments.
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to the land, and thus all interested parties must receive notice and opportunity to be heard
in accordance with due process of law. Hebert v. City of Fifty Lakes, 744 N.W.2d 226, 231
(Minn. 2008) (citations omitted). In a condemnation proceeding, the landowner is entitled
to an opportunity to be heard during an evidentiary hearing. In re Minneapolis Cmty. Dev.
Agency (MCDA), 439 N.W.2d 708, 710 (Minn. 1989). During the hearing, the district court
“shall hear all competent evid ence offered for or against the granting of the petition ,
regulating the order of proof as it may deem best.” Minn. Stat. § 117.075, subd. 1(a)
(emphasis added). In addition, Minnesota courts have long held that a due-process hearing
includes the right to cross-examine opposing witnesses. See Coop. Power Ass’n v. Eaton,
284 N.W.2d 395, 398 n.7 (Minn. 1979); Minneapolis–St. Paul Sanitary Dist. v. Fitzpatrick, 201 Minn. 442, 450, 277 N. W. 394, 399 (1937) (discu ssing cross-examination in
condemnation proceeding).
Here, the record is clear th at Sitescape did not have an opportunity to present
evidence against the petition or to cross-examine the City’s witness at the April 26, 2017
hearing. The district court did not permit Farah to present any evidence, testimony, or
arguments on behalf of Sitescap e even though it allowed the C ity to present evidence in
support of its petition. It also did not pe rmit Sitescape to rebut the City’s additional
evidence submitted after the hearing.
Under a plain reading of the statute, the district court “shall hear” not only evidence
for the petition, but also evidence against the petition. See Bicking v. City of Minneapolis,
891 N.W.2d 304, 315 (Minn. 2017) (quoting Minn. Stat. § 645.44, subd. 16 (2016))
(“‘Shall is mandatory.’”). Furthermore, “sta tutes conferring compulso ry powers to take
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private property are to be strictly construed.” Hebert, 744 N.W.2d at 231 (quoting
Fairchild v. City of St. Paul , 46 Minn. 540, 544, 49 N.W. 325, 326 (1891)). A strict
construction of the eminent-do main-hearing procedures in section 117.075 leads to the
conclusion that the district court must hear evidence both for and against the petition.
This error was com pounded when the City insisted on pres enting its case to the
district court completely unrebutted by Sitescape and allowing its witness to testify absent
cross-examination. Rather than grant both parties the opportunity to be heard in court after
Sitescape retained counsel, the district court allowed the City to proceed. Such conduct is
not viewed favorably. State by Lord v. Rust , 256 Minn. 246, 253, 98 N.W.2d 271, 276
(1959) (“Attempts on the part of a condemnor by technical means to defeat the landowner’s
right to his day in court have never been viewed with favor.”).
The City argues that “The district court did not abuse its discretion when it denied
Sitescape a second evidentiary hearing.” The City’s argum ents are misguided because
Sitescape was not provided with any evidentiary hearing.
The City first argues that Port Auth. of City of St. Paul v. Baillon Co. , No. C6-01-
387, 2001 WL 881481, at *2 (Minn. App., A ug. 7, 2001), supports its contention that
Sitescape is not entitled to a second hearing. But an unpublished decision by this court is
not binding precedent. Minn. Stat. § 480A.08, subd. 3 (2016); see also Freeman v. State,
804 N.W.2d 144, 147 (Minn. App. 2011) (unpublished decisions are not binding authority),
review denied (Minn. Dec. 13, 2011). Nevertheless, Baillon is distinguishable on its facts.
There, the district court denied the landowner’s request for a second hearing after he had
made arguments on the issues and presented ex hibits during an initial hearing. 2001 WL
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881481, at *2. Sitescape ha d no such opportunity becaus e it was not permitted to speak
during the hearing.
The City also relies on MCDA to support its argument and concedes that the
landowner in MCDA appeared at the condemnation hear ing, where it “thoroughly argued
and briefed” the issues. 439 N.W.2d at 709 -10. The supreme court concluded that the
landowner was not entitled to a second evid entiary hearing after its initial hearing. Id. at
710-11. Thus, the landowner’s constitutional rights were not violated because it had had
its day in court. Sitescape has not.
Nor does Eaton support the City’s position. Ther e, both parties appeared at an
evidentiary hearing, but the landowners did not present any evidence or cross-examine
witnesses because they believed the issues would be further litigated at trial. 284 N.W.2d
at 397. The supreme court held that the landowners’ argument that they “were denied their
right to a hearing on the condemnation petition because they were not given the opportunity
to present evidence” had merit. Id. The supreme court remand ed because, among other
reasons, “landowners should be able to litigate the limited i ssue of whether the specific
interest in a particular piece of property is necessary to accomplish the general project.”
Id.; see supra, note 1. Given that Eaton held that the landowner’s due-process rights were
violated because the landowner voluntarily chose not to speak du ring the hearing,
Sitescape’s due-process rights certainly were violated as well when the district court forbid
Farah from speaking.
“The rights related to property, i.e., to acquire, use, enj oy, and dispose of
property . . . are among the most revered in our law and traditions. Indeed, property rights
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are integral aspects of our th eory of democracy and notions of liberty.” D. Zachary
Hudson, Eminent Domain Due Process , 119 Y ALE L.J. 1280, 1307 (2010) (quotation
omitted). Accordingly, I would reverse and remand to provide Sitescape its right under the
United States and Minnesota C onstitutions, and Minn. Stat. § 117.075, subd. 1(a), to a
hearing to present evidence and cross-examine the City’s witness about the project and its
attempted condemnation of Sitescape’s property.