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Apartment owners likely to appeal dismissal of College Drive lawsuit

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Brainerd Dispatch
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Brainerd MN 506 James St. / PO Box 974 56401

It is likely the owners of the Colonywood Apartment complex will appeal a district court judge’s order that dismissed their lawsuit against the city of Brainerd regarding the College Drive reconstruction project, the attorney representing the owners said Thursday. 

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Gerald Von Korff, attorney for apartment owners Roger and Betty Anda and Kathleen and James Martin, said he needed to discuss the issue with his clients before filing with the Minnesota Court of Appeals. An appeal must be filed within 60 days of the district court’s order, but Von Korff said he would expect one to be filed within a week. 

“We disagree with the (judge’s) decision, of course,” Von Korff said Thursday in a telephone interview. “We’re looking at likely appealing and if so we’ll do that promptly. I’m waiting for an answer from my clients, but the expectation is we’ll appeal.”

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, the Andas and Martins claimed the petition was invalid because, as a state entity not subject to special assessments, the college is not an actual landowner. 

At a court hearing in April, Von Korff argued the Andas’ and Martins’ case was backed by 1954 opinions from the Minnesota Attorney General’s office. 

In his order issued Tuesday dismissing the Andas and Martins lawsuit, Crow Wing County Judge Erik Askegaard wrote state statute doesn’t provide a definition for the term “owner” and that there was no dispute that CLC is an owner of that property as meant by the common and approved definition of the term. 

Askegaard also wrote that he did not find the opinions from the attorney general to be a persuasive authority to reverse the city’s decision that CLC’s petition for the College Drive project was legal.

On Thursday, Von Korff said his reason for an appeal is that the Legislature, after acting on the attorney general’s opinion, has never changed wording in the state statute as to who needs to sign a petition for special assessments. He said a city cannot levy a special assessment against the state. 

“We’ve said if the Legislature disagreed with the attorney general’s opinion it would have changed the language in the statute,” Von Korff said. “The attorney general said an owner is someone who is subject to special assessments and, on the face of that, the Legislature actually strengthened that language, keeping the meaning the same. ... It’s counter intuitive that the state could offer service of the signature requirements for a special assessment.”

MATT ERICKSON may be reached at matt.erickson@brainerddispatch.com or 855-5857. 

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