In April of 2024, FCR filed a request for leave to file an amicus brief with the Minnesota Supreme Court to review the unpublished decision of the Minnesota Court of Appeals in an eminent domain case: CBS Properties v. Hennepin County.
In CBS, the district court found two separate takings: one stemming from a temporary construction easement due to Hennepin County’s occupation of a portion of CBS’s property, and another stemming from interference with access to that same property. Although a jury awarded damages for both takings, the Minnesota Court of Appeals reversed the judgment related to interference with access and reduced the compensation award to “zero” dollars for the second taking: “The cost to cure is therefore not compensable.” CBS MN Props., LLC v. Cty. of Hennepin, No. A23-0859, at 17 (Minn. Ct. App. Mar. 25, 2024). FCR maintained that it was not possible for the government to affect a taking and yet pay nothing to a property owner. Rather, “when the government physically takes an interest in property, it must pay for the right to do so” (as recognized by the U.S. Supreme Court).
As FCR noted in its request: “A governmental “taking” must result in payment of “just compensation” in order to meet constitutional muster under both the Minnesota and federal constitutions. FCR supports Petitioner’s position that a taking cannot result in zero compensation to an aggrieved property owner. Accordingly, the decision by the Court of Appeals should be reversed.”
FCR argued that although the Court of Appeals opinion was unpublished (and thus not precedential), the government would not be deterred from relying on the case as persuasive authority going forward (as has been seen before in other matters). Therefore, reversing the “zero dollars” award endorsed by the Court of Appeals would be in the interest of future eminent domain litigants.
The Minnesota Supreme Court ultimately did not take up the CBS case for review.
