Jim Yarosh Co-Authors AMICUS Brief to Minnesota Supreme Court

Jim Yarosh is a member of the Minnesota Eminent Doman Institute (MEDI), a non-profit organization that advocates for the interests of property owners affected by governmental takings. Jim and several of his MEDI colleagues recently submitted an amicus brief to the Minnesota Supreme Court in support of landowners whose significant compensation award for the temporary loss of access to their property was overturned by the courts. The district court’s decision had prohibited the landowner from introducing evidence regarding loss of access as a result of a temporary easement. The Minnesota Court of Appeals affirmed the lower court’s decision, and, in so doing, created a rule that prevents a landowner from claiming any loss of access damages resulting from a taking unless the government specifically asserts a taking of access rights in its condemnation petition.  

The facts of the case were straight forward. The Elberts family own property along the North Shore abutting Highway 61. MnDOT took temporary and permanent easements on the Elberts parcel for a four-year highway-improvement project. The temporary easement ran the whole length of the property and permitted MnDOT to operate equipment and reconstruct driveway aprons within the easement area. The landowners successfully argued before the condemnation commission that a potential buyer would not know whether it could access the property during the term of the temporary easement given its breadth and the permitted activities on the easement. If MnDOT fully-used its easement rights, it could completely block access to the property. The condemnation commission awarded the Elberts more than $300,000 because of the potential loss of access.

On appeal, MnDOT argued that because it did not state that it was taking access in the Petition, the landowner could not claim damages based on a taking of access. The Court of Appeals sided with MnDOT and the Minnesota Supreme Court granted the Elberts’ petition for review. The MEDI amicus brief, written in part by Jim Yarosh, argued that the Court of Appeals had changed the way damages have historically been determined in eminent domain cases. A landowner has the right to submit any relevant evidence that bears upon market value, including damage inflicted upon the remaining part of the property after the taking. A rule requiring MnDOT to first state an intent to take access in its petition prevents a landowner from proving its damages and, therefore, infringes upon its constitutional right to just compensation. “The rule created by the Court of Appeals allows a condemnor, the entity taking the property, to determine whether the landowner will suffer damages to their access as a result of a taking by how it drafts its petition” says Jim. “This, I believe, is a change in the law and unjust for landowners,” he said. Oral argument in the Elberts’ case is expected this fall or winter with an opinion likely to be delivered by the Supreme Court in the early part of 2020.