Smith v. City of Owatonna

SCHUMACHER, Judge,

dissenting.

I respectfully dissent. I believe the city had no rational basis for requiring some, but not all, property owners to install their own gas service lines; therefore, the city’s actions denied respondents equal protection.

The sole evidence presented by the city to justify its actions was the testimony of the OPUC general manager, Dave Martin. As a city employee, and a person intimately involved in all the projects in question in this case, Martin was certainly an interested party and his testimony was suspect. See Rohling v. American Family Mutual Insurance Co., 309 Minn. 258, 260, 243 N.W.2d 742, 743 (1976). The trial court was not required to believe his purportedly expert testimony, see Rud v. Flood, 385 N.W.2d 357, 360 (Minn.Ct.App.1986), and it is obvious that it did not. This court should thus defer to the trial court’s assessment of Martin’s credibility.

Furthermore, after a thorough review of the record, I am also convinced, as was the trial court, that Martin’s attempts to explain the city’s disparate treatment of property owners amount to no more than after-the-fact rationalizations for a haphazardly run construction project. First of all, when asked by respondents in 1984 why they had *44to install their own service lines, the city could give no explanation. Despite discovery requests, the city was still unable to provide any explanation until less than a week before trial when it served respondents with late supplemental answers to interrogatories.

Secondly, this was truly one long-term project to improve gas service, not a series of individual street improvements. There is no justification for the city’s changing its treatment of property owners from month to month as each new segment of pipe main was laid. Although I cannot with full conviction say the city was required to provide each objecting property owner a public hearing, had the city in fact held any hearings at all, the equal protection violations would have been revealed and most likely prevented. As it turned out, it took years of individual complaints, including respondents’, before the city finally took action to halt this disparate treatment of property owners by resolving to pay for all, not just selected, gas service line installations.

As a final matter, I would acknowledge there is no authority expressly holding that a property owner in Minnesota has a vested property interest in continuation of gas service. Such a right must either be created by the legislature or recognized by our supreme court. Nonetheless, gas service is an essential need for Minnesota citizens, and both the Minnesota Legislature and Public Utilities Commission have acknowledged that any interruption of service is always a matter of utmost seriousness. See, e.g., Minn.Stat. § 504.26 (1988) (assesses treble damages against landlord who causes interruption of tenant’s utility service); Minn. R. 7820.1600, subpt. 2, 7820.-1800 (1987) (prohibits utility from shutting off service during cold weather months, October 15 through April 15). As such, I believe the time is ripe to recognize that a property owner has a vested property interest in continuing gas service and that any interruption of service may constitute a compensable taking.