In re the Matter of the Annexation of Real Property to City of Bemidji from Bemidji Township (MBAU Docket A-8144).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1740

In re the Matter of the Annexation of Real Property to City of Bemidji from Bemidji
Township (MBAU Docket A-8144).

Filed May 4, 2020
Affirmed
Connolly, Judge

Beltrami County District Court
File No. 04-CV-18-2915

John J. Steffenhagen, Ryan M. Theis, Hellmuth & Johnson, Edina, Minnesota (for
appellant Bemidji Township)

Keith Ellison, Attorney General, Nathan J. Hartshorn, Assistant Attorney General, St. Paul,
Minnesota (for respondent Office of Administrative Hearings)

James J. Thomson, Joshua P. Devaney, Kennedy & Graven, Chartered, Minneapolis,
Minnesota (for respondent City of Bemidji)

Considered and decided by Smith, Tracy M., Presiding Judge; Connolly, Judge; and
Jesson, Judge.

S Y L L A B U S
Review by the Minnesota Office of Administrati ve Hearings (OAH) of a city’s
annexation by ordinance, under Minn. S tat. § 414.033, subd. 2 (2018), is limited to
satisfaction of the conditions and procedural requirements in Minn. Stat. § 414.033, subds.
2, 2b.

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O P I N I O N
CONNOLLY, Judge
Appellant township challenges the district court’s judgment affirming respondent
OAH’s approval of respondent city’s annexation by ordinance under Minn. Stat. § 414.033,
subd. 2(3) . Because the OAH correctly concluded that the township had no statutory
authority to object to the annexation by ordinance or to request an evidentiary hearing, that
noncompliance with either the annexation criteria in Minn. S tat. § 414.031 (2018) or the
policy considerations in Minn. Stat. § 414.01 (2018) does not constitute a sufficient legal
ground to deny a proposed a nnexation that complies with Minn. Stat. § 414.033, sub ds. 2
and 2b, and that the OAH lacked jurisdiction to consider ot her legal issues raised in the
township’s objection to annexation, we affirm.
FACTS
In M ay 2018, respondent City of Bemidji (the city ) accepted a petition for
annexation by ordinance of a 14 -acre parcel of property in appellant Bemidji T ownship
(the township) from the property’s owner. The public h earing mandated by Minn. Stat.
§ 414.033, subd. 2b, was held, and the township’s objection to annexation was noted. In
June 2018, the city adopted an ordinance annexing the property under Minn. Stat.
§ 414.033, subd. 2(3).
The township filed an objection and requested an evidentiary hearing with
respondent OAH. The OAH approved the annexation, having concluded that
(1) noncompliance with either the annexation criteria in Minn. Stat. § 414.031 or the policy
considerations in Minn. Stat. § 414.01 was not a sufficient legal ground to deny the

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proposed annexation, (2) the township had no statutory authority to object to the annexation
or to request an evidentiary hearing, and (3) the OAH lacked jurisdiction to consider other
legal issues raised in the township’s objection to annexation.
The township appealed the OAH’s decision to the district court under Minn. Stat.
§ 414.07 (2018), asking that the order be vacated and that the district court rule on the legal
issues raised in its objection to the annexation. The district court directed the township and
the city to file memoranda, which they did. The district court then affirmed the OAH’s
order and dismissed the appeal with prejudice. The township now challenges the district
court’s decision.
ISSUE
Did the OAH err in concluding that noncompliance with either the statutory criteria
in Minn. Stat. § 414.031 or the policy c onsiderations in Minn. Stat. § 414.01 is not a
sufficient legal ground to deny a proposed annexation by o rdinance that complies with
Minn. Stat. § 414.033, subds. 2, 2b?
ANALYSIS
An appellate court reviews an agency’s decision independently without according
any special deference to a review by the district court. See In re Rev. of 2005 Annual
Automatic Adjustment of Charges for all Elec. & Gas Utils., 768 N.W.2d 112, 118 (Minn.
2009). Whether an agency has jurisdiction over a matter is a legal question and thus a
reviewing court need not defer to the district court’s decision on the issue. In re N. States
Power Co., 775 N.W.2d 652, 656 (Minn. App. 2009). “Whether an administrative agency

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has acted within its statutory authority is a question of law that we review de novo.” In re
Hubbard, 778 N.W.2d 313, 318 (Minn. 2010).
The city annexed the property under Minn. Stat § 414.033, subd. 2 (3), providing
that:
A municipal council may by ordinance declare land
annexed to the municipality and any such land is deemed to be
urban or suburban in character or about to become so if:
. . . .
(3) the land abuts the municipalit y and the area to be
annexed is 120 acres or less, and the area to be annexed is not
presently served by public wastewater facilities or public
wastewater facilities are not otherwise available, and the
municipality received a petition for annexation from all the
property owners of the land.

The OAH found that the property met the criteria of Minn. Stat. § 414.033, subd. 2(3), and
this finding is not disputed. Nor does the township dispute the OAH’s conclusion that the
city “has fully complied with the procedural requirements of Minn. Stat. § 414.033, subd.
2b [(requiring a municipality to hold a public hearing and to provide appropriate notice to
the town or towns affected and to the landowners within or contigu ous to the area to be
annexed)].”
The OAH also concluded : “7. Noncompliance with the statutory criteria for
annexations found in Minn. Stat. § 414.031[, subd. 4(a) (presenting 17 factors for the OAH
to consider in deciding on an annexation by agency order )] (2016) or the policy
considerations in Minn. Stat. § 414.01 [, subd. 1b (presenting three goals that the OAH
‘may’ pursue in annexation proceedings)] (2016) does not constitute a sufficient legal

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ground to deny a proposed annexation by ordinance t hat complies with Minn. Stat.
§ 414.033, subds. 2 and 2b.”
The OAH found instructive an unpublished decision of this court that deals with
exactly the same situation at issue here —an annexation by ordinance of property under
Minn. Stat. § 414.033, subd. 2, Gilbert v. Minn. State Office of Strategic & Long-Range
Planning, No. CX-01-1221, 2002 WL 109313 (Minn. App. Jan. 29, 2002), quoted in In re
Annexation of Certain Real Prop. t o City of Proctor , 925 N.W.2d 216, 221 n.3 (Minn.
2019). “No statutory provision gives [the OAH] authority to consider the criteria set forth
in sections 414.01, subd. 1, and 414.031, subd. 4, in annexations by ordinance under Minn.
Stat. § 414.033, subd. 2.” Gilbert, 2002 WL 109313, at *2. We agree. Thus, we reject the
township’s argument that the OAH had a statutory duty to consider appellant’s arguments
on sections 414.01 and 414.031, subd. 4, in an annexation by ordinance under Minn. Stat.
§ 414.033, subd. 2.
The township also argues that the district court erred in not considering whether the
annexation was “in the best interests of the territory affected,” relying on Minn. Stat.
§ 414.07, subd. 2(a): “Any person aggrieved by any order issued under this chapter may
appeal to the district court upon the following grounds . . . (3) that the order is . . . in
unreasonable disregard of the best interests of the territory affected .” This argument
ignores the fact that the annexation was made under Minn. Stat. § 414.033, subd. 2(3) ,
which permits annexation by ordinance of property meeting its criteria regardless of the
best interests of the territory affected . Thus, neither the OAH nor th e district court

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reviewing the OAH’s decision would have had reason to consider the best interests of the
territory affected.
D E C I S I O N
Because the legislature in Mi nn. Stat. § 414.033, subd. 2, has provided a way of
annexing by ordinance property that meets certain criteria and it i s undisputed that the
property here does meet those criteria, we affirm.1
Affirmed.

1 The township’s view that Minn. Stat. § 414.033, subd. 2, is defective in not providing for
adequate review of annexation by ordinance is a matter for the legislature, not for this court.
See Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (“[T]he task of extending
existing law falls to the supreme court or the legislature, but it does not fall to this court.”),
review denied (Minn. Dec. 18, 1987).