Kennedy v. Pepin Township of Wabasha County

ANDERSON, G. BARRY, Justice

(concurring in part, dissenting in part).

I agree with the majority that we should reverse the court of appeals and remand this matter to the Town Board for further proceedings. I disagree, however, that a town board must establish the cartway using the petitioner’s preferred route, and I think it is premature to decide whether Kennedy is entitled to a cartway that provides, as the majority describes the rule, “meaningful access to [a] petitioner’s land.”

Minnesota Statutes § 164.08, subd. 2(a) (2008), states that a landowner “of a tract of land containing at least five acres, who has no access thereto except ... over the lands of others” may petition a town board to establish a cartway, and “the town board by resolution shall establish a cart-way at least two rods wide connecting the petitioner’s land with a public road.” Kennedy petitioned the Town Board to establish a cartway. He asked for a cartway that would be an extension of a private road that runs from County Road 10 through Pepin Heights apple orchard and that would connect with his 5 acres of land on top of the bluff.

It is undisputed that Kennedy is entitled to a cartway. But Minn.Stat. § 164.08, subd. 2(a), gives a town board some discretion in establishing the location of a cart-way on two conditions: “[t]he town board may select an alternative route other than that petitioned for if the alternative is deemed by the town board to be [ (1) ] less disruptive and damaging to the affected landowners and [ (2) ] in the public’s best interest.” Given the discretion afforded the town board, and given our historic deference to legislative decisions, see, e.g., Lieser v. Town of St. Martin, 255 Minn. 153, 158-59, 96 N.W.2d 1, 5-6 (1959), I agree with the majority that the court of appeals overstepped by selecting and ordering the particular route for the cart-way. Nevertheless, the majority holds that “the Township acted upon an erroneous theory of law when it selected a cart-way route ... that did not provide meaningful access to [Kennedy’s] land.” Here, I would not reach the issue of what type of access to the land the cartway must provide.

*386The Town Board considered Kennedy’s proposed route for the cartway, along with others, and an alternative route — one that would give Kennedy access from Highway 61 to the lower portion of his property via an extension off of an existing private road. After a public hearing, the Town Board concluded that there was cause for concern “about the damages and disruption that establishing a cartway through the [orchard] would cause” and the route it selected “will require the most minimal construction ... and the least disruption to innocent adjoining property owners.” The Town Board, however, provided no reasons and did not discuss why the alternative route it selected was in the public’s best interest. Put another way, prior to its selection of the location for the cartway, the Town Board did not meet the second requirement in Minn.Stat. § 164.08, subd. 2(a), regarding the selection of an alternative route. Thus a remand is essential.

As noted earlier, we grant substantial deference to the legislative decisions of elected representatives, in this case, a town board. That discretion is, of course, not unfettered, and here Kennedy challenges the decision of the Town Board because, in his view, the approved cartway is useless to him. In arriving at the holding, the majority essentially adds another, unexpressed, requirement to the statute: that the petitioner is entitled to “meaningful” access to his land.1

But the Legislature empowered the Town Board to choose a route that is in the best interests of the public. Certainly, access to land-locked property is both in the public interest as well as the private interests of petitioner. And it is troubling, to say the least, that the Town Board *387approved a cartway that is of no apparent utility. Nevertheless, the statute speaks of disruption and damages to neighbors as well as the public interest, and this statutory language requires the Town Board to weigh competing interests and to make a legislative decision. Here, I conclude that the better course is to give the Town Board an opportunity to thoroughly explore and document not only the disruption and damages to the neighbors, but also the public interest, including as part of the public interest analysis what weight, if any, the challenges associated with access from Highway 61 and County Road 10 pose for the landowners should be given.

It may well prove to be the case that we will conclude that we should extend our holding in State ex rel. Rose v. Town of Greenwood, 220 Minn. 508, 20 N.W.2d 345 (1945),2 to apply here, or that for other reasons we should reverse the Town Board’s decision to essentially deny petitioner “meaningful” access to his property. But we have said that “we will not read into a statute a provision that the legislature has omitted, either purposely or inadvertently.” Reiter v. Kiffmeyer, 721 N.W.2d 908, 911 (Minn.2006), and I hesitate to do so here, particularly prior to the Town Board making a public interest determination. Because of the apparent lack of consideration and discussion of the public interest in the alternative route selected, I conclude that it is premature to decide the issue of what access means and would remand to the Town Board to make the required public interest determination.

. The majority rejects the Township's argument that Minn.Stat. § 164.08, subd. 2, merely requires a township to provide access to the ''bulk,” or majority, of a petitioner's property, because, according to the majority, ”[t]o read the statute in such a way would require this court to read language into the statute that is not there.” At the same time, however, the majority reads a "meaningful” access requirement into the statute.

Essentially, the majority holds that because Kennedy owns a tract of land, part of which is located at the base of a bluff and part of which is located at the top of a bluff, and Kennedy requested that the Town Board establish a cartway to the portion of the land at the top of the bluff, the Town Board must establish a cartway to the portion at the top of the bluff, though the Board may determine which route to select to the land at the top of the bluff. It is unclear to me what precisely "meaningful” access means, or who, according to the statute, would make a determination about what would constitute "meaningful” access to land.

In my view, the majority opinion elevates the undeniable interests of a landlocked property owner over the equally undeniable interests of property owners who must give up rights, rights that enjoy constitutional protection in order to provide access to the petitioner's land.

I conclude that it is premature to state that Kennedy must have "meaningful” access to his land when the Town Board has not yet made a determination of what is in the public's best interest and has yet not provided a sufficient explanation of why the Board chose the route it did. See Minn.Stat. § 164.08, subd. 2(a) ("The town board may select an alternative route other than that petitioned for if the alternative is deemed by the town board to be less disruptive and damaging to the affected landowners and in the public's best interest.”). My reading of the statute is that the Town Board is permitted to consider and select an alternative route if the Board examines the potential disruptiveness and damage to the affected landowners and determines that the alternative route is in the public’s best interest. The route that the Town Board selected here may or may not be in the public's best interest, but the Board should be given the opportunity to explain why the alternative route is in the public's best interest, and why Kennedy’s route is not. On this record and given the facts and findings before us, we are not in a position to dictate what is in the public's best interest.

. It is worth noting that in Rose, the former cartway statute did not have a provision that permitted a town board to select an alternative route. See Minn.Stat. § 163.15, subd. 2 (1945). Nevertheless, we said in Rose that "the town board may exercise a reasonable discretion in varying the route proposed as the public interest may require, provided it adheres to the termini and general course stated in the petition.” 220 Minn. at 514, 20 N.W.2d at 348 (emphasis added). In 1993 the Legislature added the following words to Minn.Stat. § 164.08, subd. 2: "The town board may select an alternative route other than that petitioned for if the alternative is deemed by the town board to be less disruptive and damaging to the affected landowners and in the public’s best interest.” Act of May 19, 1993, ch. 275, § 1, 1993 Minn. Laws 1559, 1560. The Legislature’s modification of the statute in 1993 to allow a town board to select an alternative route, however, does not have the wording from Rose that an alternative route must adhere to the termini and general course stated in a petition. This may or may not affect the applicability of our analysis from Rose, but the wording does reinforce that this matter should be remanded to the Town Board for a finding about what route is in the public’s best interest before we overturn the Board’s decision, and the wording also suggests that we would give deference to a town board’s determination of what constitutes the public’s best interest or what should be considered "meaningful” access to land.