{"id":4098,"date":"2012-05-21T14:50:33","date_gmt":"2012-05-21T21:50:33","guid":{"rendered":"http:\/\/nocapx2020.info\/?p=4098"},"modified":"2012-05-24T09:20:00","modified_gmt":"2012-05-24T16:20:00","slug":"buy-the-farm-at-mn-appellate-court","status":"publish","type":"post","link":"https:\/\/nocapx2020.info\/?p=4098","title":{"rendered":"Buy the Farm at MN Appellate Court"},"content":{"rendered":"

\"manurespreader\"<\/a><\/p>\n

Last week, Thursday to be precise, the “Buy the Farm”<\/strong><\/a> provision under the Power Plant Siting Act and Northern States Power’s challenge to compensation avenues available to landowners electing the “Buy the Farm<\/strong>“<\/a> option under Minn. Stat. 216E.12, Subd. 4<\/a><\/strong> was at the Minnesota Court of Appeals.<\/p>\n

This case stems from the St. Cloud to Monticello part of the Fargo to Monticello transmission line, the first to be permitted.\u00c2\u00a0 Now they’re trying to take the land.\u00c2\u00a0 The focus of the case is the landowners’ right to relocation compensation and other compensation, available both under Minn. Stat. ch. 117 (Minn. Stat.117.187 and 117.152), the Minnesota Uniform Relocation Act and federal law.\u00c2\u00a0 I don’t have a copy of the Stearns County District Court Order being appealed, but I do have a similar order that was issued in Wright County, reference in this brief:<\/p>\n

Wright County Order – July 13, 2011 <\/a><\/strong><\/p><\/blockquote>\n

Here’s the court’s page for this case.<\/strong><\/a><\/p>\n

\"littlebirdie-cardinal\"<\/a><\/p>\n

And here are the briefs, special thanks to a little birdie (and no thanks to our friends at NSP!):<\/p>\n

Appellants NSP, et al., Initial Brief<\/a><\/strong><\/p>\n

Appellants NSP, et al., Initial Brief – Appendix<\/a><\/strong><\/p><\/blockquote>\n

Respondents Enos Pudas – Brief<\/a><\/strong><\/p><\/blockquote>\n

Respondents Hanson Stich – Brief<\/a><\/strong><\/p><\/blockquote>\n

Appellants NSP, et al., Reply Brief and Supplemental Appendix<\/a><\/strong><\/p><\/blockquote>\n

This case is in the news, as well it should be, it is THE appellate case of the year:<\/p>\n

Landowners seek fair compensation for impact of CapX power line<\/strong><\/a><\/em><\/p>\n

May. 19, 2012<\/a><\/em><\/p>\n

ROCKVILLE \u00e2\u20ac\u201d Ken and Tess Koltes know the power line is coming, and they can\u00e2\u20ac\u2122t stop it.<\/a><\/em><\/p>\n

They know it\u00e2\u20ac\u2122s not going to matter much whether they agree to the amount of money offered by the utility companies for the right to run the CapX 2020 line across their century dairy farm in St. Joseph Township, or whether they fight until the bitter end for every last dime.<\/a><\/em><\/p>\n

Still, the Kolteses aren\u00e2\u20ac\u2122t ready to go away quietly.<\/a><\/em><\/p>\n

They have to live with the high-voltage transmission line scarring their rolling farm for the rest of their lives and the lives of their two sons, who started milking cows with them just two years ago. So they\u00e2\u20ac\u2122re choosing to make it as difficult for the power companies as they can.<\/a><\/em><\/p>\n

\u00e2\u20ac\u0153We\u00e2\u20ac\u2122ve got to do what we can,\u00e2\u20ac\u009d Ken Koltes said. \u00e2\u20ac\u0153We\u00e2\u20ac\u2122re a small cog in the wheel, but we\u00e2\u20ac\u2122ve got to try.\u00e2\u20ac\u009d<\/a><\/em><\/p>\n

The couple is among scores of Stearns and Wright county landowners caught up in a complicated legal process the CapX utilities are using to secure the land they need to build the 238-mile power line from Monticello to Fargo, N.D.<\/a><\/em><\/p>\n

The condemnation process can be lengthy, expensive and sometimes daunting for landowners. It\u00e2\u20ac\u2122s been used countless times to secure land for highways, buildings and pipelines, but rarely for high-voltage transmission lines.<\/a><\/em><\/p>\n

In fact, this is the first time in four decades Stearns County has seen land condemned for a power line. And it\u00e2\u20ac\u2122s the first test of a law passed in 1973 that allows landowners to force utility companies to buy their entire property rather than live beneath a high-voltage transmission line \u00e2\u20ac\u201d an option known as \u00e2\u20ac\u0153Buy the Farm.\u00e2\u20ac\u009d That option has sparked legal debate and a case heard last week by the Minnesota Court of Appeals.<\/a><\/em><\/p>\n

\u00e2\u20ac\u0153This is new to almost everybody involved,\u00e2\u20ac\u009d said Igor Lenzner, an attorney with Rinke Noonan, a St. Cloud law firm representing dozens of landowners in CapX condemnation cases.<\/a><\/em><\/p>\n

What makes this time different, observers say, is the sheer number of landowners and properties involved and the complexity of the cases, as well as the emotional nature of the cases.<\/a><\/em><\/p>\n

\u00e2\u20ac\u0153Nobody wants somebody to come and say, \u00e2\u20ac\u02dcGuess what? We\u00e2\u20ac\u2122re buying and you\u00e2\u20ac\u2122re selling. You don\u00e2\u20ac\u2122t have a choice,\u00e2\u20ac\u2122 \u00e2\u20ac\u009d Lenzner said.<\/p>\n

Once a route was approved for the power line, the CapX utility companies, which include Xcel Energy and Great River Energy, began seeking the necessary land. In most cases, a 150-foot-wide easement is needed.<\/p>\n

Because the transmission line is considered a public good similar to a highway or pipeline, the utilities have the right of eminent domain to seize the land they need. However, condemning property can be a lengthy and expensive process, so the utilities first offer landowners a fixed price for an easement to run the line across their property. Sometimes they include a bonus if the landowners agree to sign immediately.<\/p>\n

If the landowner doesn\u00e2\u20ac\u2122t agree to the price and negotiations aren\u00e2\u20ac\u2122t successful, the utilities file condemnation proceedings. That can be a frightening prospect for a landowner, but Lenzner counsels his clients that it can work to their benefit.<\/p>\n

\u00e2\u20ac\u0153If they say, \u00e2\u20ac\u02dcYou don\u00e2\u20ac\u2122t sign, we\u00e2\u20ac\u2122re going to condemnation,\u00e2\u20ac\u2122 it\u00e2\u20ac\u2122s not a big scary thing,\u00e2\u20ac\u009d Lenzner said. \u00e2\u20ac\u0153That\u00e2\u20ac\u2122s a good thing for you, because somebody\u00e2\u20ac\u2122s going to make sure you\u00e2\u20ac\u2122re getting paid the right amount.\u00e2\u20ac\u009d
\nDifficult calculation<\/p>\n

The enormous task of trying to determine how much money the landowners are entitled to falls to three court-appointed commissioners with extensive real estate experience.<\/p>\n

One of those is Don Landwehr, a St. Cloud real estate agent who has served on condemnation panels for 40 years. He called the CapX cases the most interesting he\u00e2\u20ac\u2122s heard \u00e2\u20ac\u201d and the most complex.<\/p>\n

Mike Schmitt, a longtime commercial real estate broker who also is on the panel, said there are many more cases and they\u00e2\u20ac\u2122re much more involved than he anticipated.<\/p>\n

\u00e2\u20ac\u0153Every situation is different. Every property owner has different concerns,\u00e2\u20ac\u009d Schmitt said.<\/p>\n

Condemnation cases are assigned a hearing in front of the panel, which hears testimony from both sides. The hearings can stretch for hours or even days, as appraisers offer detailed reports on the estimated value of the property and how much the owners should be entitled to receive for damages. Those values can vary widely \u00e2\u20ac\u201d by as much as tens of thousands of dollars.<\/p>\n

\u00e2\u20ac\u0153It\u00e2\u20ac\u2122s very much an art rather than a science,\u00e2\u20ac\u009d said Steve Quam, lead attorney for CapX. \u00e2\u20ac\u0153There\u00e2\u20ac\u2122s room for very big spreads.\u00e2\u20ac\u009d<\/p>\n

All appraisers try to do their job in a professional way, said Ed Laubach, an attorney with the St. Cloud office of Gray Plant Mooty, who represents about a dozen landowners in CapX cases. But they all look at properties in a different fashion, he said.<\/p>\n

\u00e2\u20ac\u0153They\u00e2\u20ac\u2122re all human, and they take into account their life experience and their professional experience in coming to an opinion,\u00e2\u20ac\u009d Laubach said. \u00e2\u20ac\u0153It gets into many different factors, not just the value.\u00e2\u20ac\u009d<\/p>\n

While attorneys would like to find \u00e2\u20ac\u0153matched pairs\u00e2\u20ac\u009d \u00e2\u20ac\u201d two properties exactly the same, one with a power line and one without \u00e2\u20ac\u201d to calculate the difference in property values, those don\u00e2\u20ac\u2122t typically exist.<\/p>\n

Instead, the appraisers use \u00e2\u20ac\u0153comparables\u00e2\u20ac\u009d or similar properties, but attorneys quarrel over whether the two properties are really comparable.<\/p>\n

\u00e2\u20ac\u0153So the commissioners are left with these diametrically opposed views,\u00e2\u20ac\u009d Lenzner said.<\/p>\n

What\u00e2\u20ac\u2122s unusual about CapX is the project involves all types of land \u00e2\u20ac\u201d commercial, industrial, residential and agricultural. It ranges from a business along a busy interstate highway to a quiet farm on a country road.<\/p>\n

The chaotic real estate market isn\u00e2\u20ac\u2122t helping, either. While residential and commercial properties have been dropping in value, agricultural land prices have been on the rise. That makes determining a final value even more difficult.<\/p>\n

\u00e2\u20ac\u0153I think both the utilities and the property owners are still figuring out what \u00e2\u20ac\u02dcjust compensation\u00e2\u20ac\u2122 is,\u00e2\u20ac\u009d Laubach said. \u00e2\u20ac\u0153That\u00e2\u20ac\u2122s why cases aren\u00e2\u20ac\u2122t settling yet, because there is such a disparity between what the utilities think is just compensation versus what the property owners do.\u00e2\u20ac\u009d
\nWhat’s the impact?<\/p>\n

There\u00e2\u20ac\u2122s also disagreement over how the power line will affect the value of the homes, businesses and farms it passes.<\/p>\n

While CapX attorneys agree that landowners should be compensated for the strip of land used for the power line, they have argued there\u00e2\u20ac\u2122s no evidence of high-voltage transmission lines reducing the value of the rest of the property. Attorneys for the landowners disagree.<\/p>\n

\u00e2\u20ac\u0153I think it\u00e2\u20ac\u2122s just common sense that if you have a 170-foot power line transmission structure constructed on your property and you have a view of that structure from your home or from your business, that it\u00e2\u20ac\u2122s going to have an impact on all of your property,\u00e2\u20ac\u009d Laubach said.<\/p>\n

Lenzner points to the opposition the power line has generated as proof of its impact on land values.<\/p>\n

\u00e2\u20ac\u0153What that doesn\u00e2\u20ac\u2122t fit with for me (is) how vehemently people fight these lines coming on their property,\u00e2\u20ac\u009d he said. \u00e2\u20ac\u0153People don\u00e2\u20ac\u2122t have that visceral reaction … if these lines have zero impact.\u00e2\u20ac\u009d<\/p>\n

Although many homeowners who live along the power line\u00e2\u20ac\u2122s route worry about any potential health risks, that issue isn\u00e2\u20ac\u2122t debated much at hearings. Whether the health impacts are real or perceived doesn\u00e2\u20ac\u2122t really matter, Lenzner said.<\/p>\n

\u00e2\u20ac\u0153When we\u00e2\u20ac\u2122re talking about value, perception is reality,\u00e2\u20ac\u009d he said. \u00e2\u20ac\u0153It can be absolutely 100 percent safe, but if 90 percent of the public believes it\u00e2\u20ac\u2122s not, you\u00e2\u20ac\u2122re going to get hit in the market for it.\u00e2\u20ac\u009d<\/p>\n

As the condemnations move westward, determining land values is expected to get even more difficult. So far, all of the cases the commissioners\u00e2\u20ac\u2122 panel has heard have been along I-94, where CapX attorneys could argue that the properties already were affected by a major highway. But as the project moves toward Fargo, it cuts through rural farms and forests.<\/p>\n

\u00e2\u20ac\u0153That\u00e2\u20ac\u2122s really some of the nicest property in Stearns County, as far as rural, wooded hills,\u00e2\u20ac\u009d Lenzner said.<\/p>\n

Once the commissioners\u00e2\u20ac\u2122 panel recommends an amount, both sides have up to 40 days to appeal to district court. Some appeals have been filed already. But for many landowners, the legal and appraisal fees can make an appeal too expensive.
\nBuy the Farm<\/p>\n

Adding to the complication is Minnesota\u00e2\u20ac\u2122s Buy the Farm law, passed after a controversial power line built across western Minnesota in the 1970s spurred mass protests and civil disobedience. Because no high-voltage transmission lines have been built in the state since then, the law has remained virtually untested.<\/p>\n

Now that it\u00e2\u20ac\u2122s being put to use, there\u00e2\u20ac\u2122s much debate over how it should work and how much compensation landowners were entitled to. Moving expenses? Closing costs on a new house?<\/p>\n

Attorneys for the landowners asked CapX for compensation for those relocation expenses. But CapX argued landowners aren\u00e2\u20ac\u2122t being forced to move; they were choosing to.<\/p>\n

\u00e2\u20ac\u0153The view of the property owners is, \u00e2\u20ac\u02dcNo, we\u00e2\u20ac\u2122re moving under duress. We don\u00e2\u20ac\u2122t want to stay next to the power line. We have little kids. We just don\u00e2\u20ac\u2122t want to take that risk. You\u00e2\u20ac\u2122ve destroyed the aesthetics of our home,\u00e2\u20ac\u2122 \u00e2\u20ac\u009d Lenzner said.<\/p>\n

That issue was appealed, and the state appellate court heard oral arguments in the case last week. Both sides will be watching the decision closely, because it will determine how much landowners in other cases receive.<\/p>\n

Lenzner said power companies were concerned that Buy the Farm would lead to hundreds of property owners forcing them to purchase their land, but that hasn\u00e2\u20ac\u2122t happened. He said about 10 percent of his clients chose that option.
\nEmotional ordeal<\/p>\n

Because it involves their land, their home, their farm or their livelihood, condemnation hearings can be a bitter experience for many landowners.<\/p>\n

\u00e2\u20ac\u0153People who have invested their time, effort, energy, raised their families, invested their money and resources into those kinds of properties \u00e2\u20ac\u201d it becomes very emotional,\u00e2\u20ac\u009d Laubach said.<\/p>\n

The commissioners\u00e2\u20ac\u2122 hearings can be tense as landowners try to explain the impact they feel the power line will have on their lives.<\/p>\n

\u00e2\u20ac\u0153It\u00e2\u20ac\u2122s their life right there, and all of the sudden, it\u00e2\u20ac\u2122s turned upside down,\u00e2\u20ac\u009d said Galen Kabe, one of the condemnation commissioners in Stearns County.<\/p>\n

CapX officials say landowners are often anxious at the beginning. But as the condemnation process is explained to them, \u00e2\u20ac\u0153the anxiety level goes down considerably because they see it\u00e2\u20ac\u2122s not stacked against them,\u00e2\u20ac\u009d said Tim Carlsgaard, CapX spokesman.<\/p>\n

Many landowners don\u00e2\u20ac\u2122t understand why CapX is expending so much time and energy over paying a few thousand dollars for their property when the total cost for the St. Cloud-to-Fargo line is estimated at $255 million.<\/p>\n

\u00e2\u20ac\u0153It feels, when you\u00e2\u20ac\u2122re on this end, like the big power company is being very, very tough,\u00e2\u20ac\u009d Lenzner said. \u00e2\u20ac\u0153I guess you can say, \u00e2\u20ac\u02dcWell, they\u00e2\u20ac\u2122re protecting their rate payers.\u00e2\u20ac\u2122 But at the same time, when it\u00e2\u20ac\u2122s your house, it\u00e2\u20ac\u2122s not very fun.\u00e2\u20ac\u009d<\/p>\n

CapX officials say they have an obligation to their customers to make sure they are keeping the cost of the project under control.<\/p>\n

\u00e2\u20ac\u0153At the end of the day, it\u00e2\u20ac\u2122s you and me and the other rate payers who are paying for this project,\u00e2\u20ac\u009d Carlsgaard said.<\/p>\n

Carlsgaard said the companies want to make sure everyone is treated fairly.<\/p>\n

\u00e2\u20ac\u0153If we don\u00e2\u20ac\u2122t do this right, if we don\u00e2\u20ac\u2122t treat people fairly and with respect and pay them, I think, generously, then as we move forward, we\u00e2\u20ac\u2122re going to have a lot of trouble,\u00e2\u20ac\u009d he said. \u00e2\u20ac\u0153It\u00e2\u20ac\u2122s not a perfect process, but we certainly know that if we want to build not only these projects and be successful, but we\u00e2\u20ac\u2122re looking at additional projects in the future \u00e2\u20ac\u201d we have to do things right the first time.\u00e2\u20ac\u009d<\/p>\n

For the Koltes family, it\u00e2\u20ac\u2122s been a disheartening experience. The couple says whatever money they receive from the power companies won\u00e2\u20ac\u2122t make up for the disruption to their lives and land.<\/p>\n

\u00e2\u20ac\u0153It\u00e2\u20ac\u2122s frustrating because it\u00e2\u20ac\u2122s going to affect our two sons that are farming with us. They just started farming two years ago,\u00e2\u20ac\u009d Tess Koltes said. \u00e2\u20ac\u0153It\u00e2\u20ac\u2122s just really hard to watch that happen.\u00e2\u20ac\u009d<\/p>\n

Lenzner said that\u00e2\u20ac\u2122s a typical sentiment among his clients.<\/p>\n

<\/a><\/em><\/a><\/em><\/a><\/em><\/a><\/em><\/a><\/em><\/a><\/em><\/a><\/em><\/a><\/em><\/a><\/em><\/a><\/em><\/a><\/em><\/a><\/em>\u00e2\u20ac\u0153Most people would say, \u00e2\u20ac\u02dcI would give the money back any day of the week,\u00e2\u20ac\u2122 \u00e2\u20ac\u009d he said. \u00e2\u20ac\u0153They say, \u00e2\u20ac\u02dcYou know what? If they took the power line down, I\u00e2\u20ac\u2122ll give them all the money back today.\u00e2\u20ac\u2122 \u00e2\u20ac\u009d<\/a><\/em><\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Last week, Thursday to be precise, the “Buy the Farm” provision under the Power Plant Siting Act and Northern States Power’s challenge to compensation avenues available to landowners electing the “Buy the Farm“ option under Minn. Stat. 216E.12, Subd. 4 …<\/span> Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[223,212,385,370,405,9,7],"tags":[946,14,38,716,715,714,718,69,653,719,713,720],"class_list":["post-4098","post","type-post","status-publish","format-standard","hentry","category-appeal","category-brookings-routing-docket","category-cost-recovery","category-fargo-st-cloud","category-ferc","category-nuts-bolts","category-upcoming-events","tag-buy-the-farm","tag-capx-2020","tag-eminent-domain","tag-igor-lenzner","tag-jerry-von-korff","tag-john-drawz","tag-michael-rajkowski","tag-nocapx","tag-northern-states-power","tag-sarah-jewell","tag-steve-quam","tag-transmission-easement"],"_links":{"self":[{"href":"https:\/\/nocapx2020.info\/index.php?rest_route=\/wp\/v2\/posts\/4098","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nocapx2020.info\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nocapx2020.info\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nocapx2020.info\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nocapx2020.info\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4098"}],"version-history":[{"count":15,"href":"https:\/\/nocapx2020.info\/index.php?rest_route=\/wp\/v2\/posts\/4098\/revisions"}],"predecessor-version":[{"id":4101,"href":"https:\/\/nocapx2020.info\/index.php?rest_route=\/wp\/v2\/posts\/4098\/revisions\/4101"}],"wp:attachment":[{"href":"https:\/\/nocapx2020.info\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4098"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nocapx2020.info\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4098"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nocapx2020.info\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4098"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}