Steven Bystedt, et al., Appellants,

This opinion is nonprecedential except as provided by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
A20-1170

Steven Bystedt, et al.,
Appellants,

vs.

City of Duluth,
Respondent.

Filed May 24, 2021
Affirmed
Slieter, Judge

St. Louis County District Court
File No. 69DU-CV-18-2343

Shawn B. Reed, Bray & Reed, Ltd., Duluth, Minnesota (for appellants)

Rebecca St. George, Duluth City Attorney, Elizabeth A. Sellers, Assistant City Attorney,
Duluth, Minnesota (for respondent)

Considered and decided by Hooten, Pres iding Judge; Johnson, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this inverse-condemnation action rela ting to the construction of a multi-level
office building and parking ramp between appellants’ condominium property and the
Duluth Harbor, appellants challenge the distri ct court’s summary-judgment dismissal of
their claim. Appellants argue that the district court erred by determining that appellants’

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loss of quiet enjoyment and peaceful possessi on and implied easement of light, air, and
view did not amount to unc onstitutional takings. Howe ver, the changes affecting
appellants’ property caused by the newly constructed building in volve inconveniences
every landowner in downtown Duluth should reasonably anticipate. Additionally, a
property owner does not have a compensable loss of an implied easement of light, air, and
view caused by a new building across an alleyway. Therefore, no unconstitutional taking
has occurred and we affirm.1
FACTS
The material facts of this case, which are not in dispute, are as follows. In 2006,
appellants Steven Bystedt and Carrie Heikkila purchased a condominium (the unit) in
downtown Duluth located in a district zoned for mixe d commercial and residential use. 2
Buildings of up to 15 stories with alley-faci ng parking on any story are permitted within
the zoning district. The unit’ s building complex is the only residential property on the
block. The district court described the lot adjacent to the unit, across the alleyway, as
“underdeveloped” and occupied by “a two- story [commercial] building and a surface
parking lot.” Appellants learned of Maurices Incorporated’s intention to construct an office

1 Because we affirm on the basis that no un constitutional taking occurred, we need not
address appellants’ argument that the district court improperly distinguished the portion of
the building owned privately by Maurices Incorporated from the city-owned parking ramp.
2 Although appellants assert in the fact section of their brief that “[r]espondent changed the
zoning” after they purchased the unit, appellants acknowledge that the district was always
zoned for mixed commercial and residential use.

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building on this adjacent lot. Appellants subsequently moved out of the unit and now use
it as rental property.
Construction on the adjacent lot began in 2014 and was completed in 2016. Upon
completion, the Maurices Inco rporated office building a nd parking garage (the new
building) spanned 11 stories. Respondent City of Duluth (the city) owns and operates the
parking garage comprising the alley-facing po rtion of the lower five floors of the new
building. Also newly constructed is a public elevated driveway located two floors below
appellants’ unit, crossing perpendicular over the alley, connecting the unit’s complex and
the parking garage of the new building.
In 2018, appellants filed a petition fo r a writ of mandamus seeking inverse
condemnation. The city moved for summary ju dgment. The district court, by agreement
of the parties, considered only the first pr ong of an inverse-condemnation claim: whether
an unconstitutional taking has occurred. The district court determined no unconstitutional
taking occurred because the “inconveniences” described by appellants and attributed to the
new building were “no more intrusive than those an average member of the community in
downtown Duluth would reasonably anticipate. ” The district court granted the city’s
motion for summary judgment and dismissed appellants’ claim with prejudice. This appeal
follows.
DECISION
Summary judgment is appropriate if “there is no genuine issue as to any material
fact and the movant is entitled to judgment as a matter of law.” Minn. R. Civ. P. 56.01.
Appellate courts review de novo whether a genuine issue of material fact exists or whether

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the district court erred in its application of the law. State by Comm’r of Transp. v. Elbert,
942 N.W.2d 182, 187-88 (Minn. 2020). “[Appellate courts] view the evidence in the record
in the light most favorable to the party against whom summa ry judgment was granted.”
See id. at 187 (quotation omitted).
The Minnesota Constitution requires that the government compensate landowners
for actions that take, destroy, or damage private property. Minn. Const. art. I, § 13. A
landowner may seek inverse condemnation when the government has appropriated land
without formally exercising the “power of eminent domain.” Alevizos v. Metro. Airports
Comm’n, 216 N.W.2d 651, 657 (Minn. 1974) (quotation omitted). The landowner seeking
a writ of mandamus to compel inverse condemnation has the burden to prove that an
unconstitutional taking has occurred. Stenger v. State, 449 N.W.2d 483, 485 (Minn. App.
1989), review denied (Minn. Feb. 28, 1990). Whether an unconstitutional taking occurred
is a question of law. Alevizos, 216 N.W.2d at 660-61.
I. Appellants did not suffer an unconstitutional taking by loss of quiet enjoyment
and peaceful possession.

Pursuant to Alevizos, relief is appropriate for prop erty owners “who can show a
direct and substantial invasion of [their] property rights of such a magnitude [they] [are]
deprived of the practical enjo yment of the property and that such invasion results in a
definite and measurable diminution of the market value of th e property.” 216 N.W.2d at
662. As to the first element, which is the sole relevant element for our consideration,
appellants must demonstrate harm that is “direct, substantial, and peculiar to them in that
it differs markedly from the damage suffered by the public at large.” Id. at 661 (emphasis

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added). This harm must also be “repeated and aggravated,” and there must be “a reasonable
probability” it will continue in the future. Id. at 662. The Alevizos court clarified, however,
that a claim for relief caused by the purported government action must be balanced by the
premise that property owners “must . . . endu re that level of inc onvenience, discomfort,
and loss of peace and quiet which ca n be reasonably anticipated by any average member
of a vibrant and progressive society.” Id. at 662 (emphasis added).
Appellants contend that the new building represents a “repeated [and] aggravated”
invasion of their property rights. The city counters that appellants are unable to distinguish
their unit from any similarly situated unit, and that their experience of general
inconveniences related to living in downto wn Duluth does not support an inverse-
condemnation claim. The law compels our agreement with the city.
The parties do not dispute that, after cons truction of the new building, appellants
have experienced:
 increased traffic in the a lleyway including that from
commercial vehicles to the new building;

 increased noise and fumes from traffic in the alleyway and
parking ramp;

 increased odors from the diesel generators;

 fumes from the air venting syst ems from the office building
and Maurices Incorporated employees smoking in the alley;

 increased artificial lights from headlights in the parking ramp;

 increased overhead lighting from the new building; and

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 decreased privacy resulting from th e public’s presence in the
parking garage.

These adverse changes attributed to th e new building are not distinguished from
those one might normally expect in a downtown improvement. In his deposition, appellant
Bystedt acknowledged that th ere are other alley-facing el evated parking ramps in
downtown Duluth, but noted th at this was “the only one 25-feet away” from appellants’
unit. This fact does not change our conclusion that no unconstitutional taking has occurred.
Appellants have not demonstrated that the allegations of incr eased artificial light, lack of
natural light, increased fumes, vibrations, and loss of privacy due to an increased public
presence are more intrusive than those an average community member living in downtown
Duluth would reasonably anticipate. Additi onally, these changes are not distinguishable
from those a member of the public might ex pect from a downtown improvement. Where
there is no evidence of unique circumstances, summary judgment is appropriate and we,
therefore, affirm dismissal of this claim. See Stenger, 449 N.W.2d at 485.
II. Appellants did not suffer an unconstituti onal taking by loss of an implied
easement of light, air, and view.

A property owner enjoys the benefit of “implied easements for light, air and view”
over the public street abutting their property. Haeussler v. Braun, 314 N.W.2d 4, 7 (Minn.
1981). A property owner’s implied easements similarly extend over a public alleyway.
McCarthy v. City of Minneapolis, 281 N.W. 759, 761 (Minn. 1938). However, a property
owner “cannot object that [their] building is deprived of light by an erection on adjacent
land, [or] that a view from [their ] premises is cut off thereby.” Id. “The cases allowing
lateral operation to the easement of view go no further than to restrain adjoining owners

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from putting some obstruction on or over the stre et or sidewalk in front of the property
. . . thus cutting off their neighbor’s lateral view of the street.” Id.
Appellants argue that, before construction of the facility, they had light, air, and a
view to the Duluth Harbor, all of which they no longer possess, thus constituting an
unconstitutional taking.3 Though the undisputed facts demonstrate such a loss, the law
directs our conclusion that such loss is not an unconstitutional taking.
Because the new building is located across the alley from the unit, and appellants
have not claimed any impairment of their rights in the alley itself, appellants’ claim fails.
Relatedly, the McCarthy court determined that a property owner’s implied easements for
light, air, and view “has no operation laterally,” noting that a “lofty building” may “cut off
much more than light and air,” but such a building between a plaintiff’s residence and the
adjacent street “would be no in vasion of plain tiffs’ right.” McCarthy, 281 N.W. at 761.
The new building is on adjacent land, separate d by the public alleyw ay and, therefore,
appellants have not suffered an unconstitutional taking. As the supreme court in Haeussler
stated, “This is so because the implied easeme nts do not entitle the landowner to every

3 Appellants do note the existence of the public elevated driveway which connects the unit’s
building complex and the building by crossing the alley. However, appellants concede that
the elevated driveway does not “obliterate [t heir] access to light, air, and view.” This
elevated driveway is indeed distinct from an elevated public skyw ay which the supreme
court previously found to constitute a taking. See Castor v. City of Minneapolis , 429
N.W.2d 244, 246 (Minn. 1988) (finding the “unusu al structure” of the public skyway,
running the length of petitioner’s building “rather than simply across the alley,” four-to-
five feet away from petitioner’s building and adjacent to petitioner’s second-story
windows, constituted an improper street use entitling petitioners to compel condemnation
proceedings).

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particle of sunlight or air th at passes over the street. Rathe r, he is only entitled to the air,
light and view that are not obstructed by a proper street use.” 314 N.W.2d at 8.
We conclude that appellants did not suffe r an unconstitutional taking as a matter of
law.
Affirmed.