College Drive lawsuit dismissed
A judge has ruled in the city of Brainerd’s favor in a lawsuit filed by the owners of the Colonywood Apartments over the College Drive reconstruction project.
At issue was a petition received by the city from Central Lakes College for the $8.4 million College Drive reconstruction project. Because the college owns more than 35 percent of the property along the improvement project, the council only needed a simple four-vote majority to order the project instead of a supermajority of five votes.
In an appeal filed Dec. 15, apartment owners Roger and Betty Anda and Kathleen and James Martin claimed the petition was invalid because, as a state entity not subject to special assessments, the college is not an actual landowner.
Gerald Von Korff, attorney for the Andas and Martins, in an April court hearing said their argument backed up by two Minnesota attorney general opinions from 1954 that stated non assessable property couldn’t be counted in the 35 percent rule and that property owned by the state could not be subject to special assessments.
In his order issued Tuesday, Crow Wing County Judge Erik Askegaard disagreed, stating state statute doesn’t provide a definition for the term “owner” and in this case it was undisputed that CLC is the record owner of about 40 acres of property frontage abutting College Drive in the project area. Askegaard said there is no dispute that CLC is an owner of that property as meant by the common and approved definition of the term.
As to the opinions of the Minnesota attorney general, Askegaard wrote that he did not find them to be a persuasive authority to reverse the city’s decision that CLC’s petition was legal. He wrote there was no information that the opinions had been consistently relied upon by public officials and that the Legislature’s lack of action to undo the opinions meant it was confirming them.
The city’s determination that the petition was sufficient, and its vote that to proceed with the project as requested by the petition, were proper and not “unfair and unjust,” Askegaard wrote. He also wrote that safeguards are in place to ensure affected property owners aren’t assessed unfairly.
Askegaard dismissed the Andas’ and the Martins’ claims and denied their motion for summary judgment. The city’s motion for summary judgment was granted.
George Hoff, the attorney representing the city in the lawsuit, said Askegaard’s order was straight forward and easy to understand.
“I thought the judge wrote a good opinion,” Hoff said in a telephone interview on Wednesday. “It means the city can proceed with the project to improve College Drive, and improve safety for both the traveling public as well as pedestrians in the area.”
Messages left Wednesday for Von Korff at his St. Cloud office weren’t returned.
Per plans and specifications approved by the city council in March, the College Drive project will include four lanes from Crow Wing County Road 48 to South Fourth Street; reconstruction of College Drive and Crow Wing County Road 48 intersection; roundabouts at Mississippi River Parkway, Southwest Fourth Street and South Fourth Street; a stop light at Quince and South Fifth streets; repaving Quince Street to South Sixth Street; trails; sidewalks; bridge improvements; and pedestrian crosswalks, flashers.
Assistant City Engineer Jesse Freihammer said the city is advertising the project with bids to be returned by Aug. 5. The majority of the work on the project, he said, will start in the spring of 2012.