May a landowner challenge the benefit and damages assessment with respect to other properties when he is not challenging the assessment with respect to his own?

In the Matter of the Petition for Improvement of County Ditch No. 86, Branch 1, County of Blue Earth v. Phillips, 614 N.W.2d 756 (Minn. App. 2000).

Under Minnesota Statutes § 103E.091, several landowners challenged benefit and damage determinations by the Blue Earth County Board of Commissioners ("Board") in its order for improvement of two portions of Branch 1, Ditch No. 86. Following a jury trial, but before entry of judgment, the parties executed a settlement in which the jury's findings of benefits and damages were accepted by each landowner. The stipulation explicitly reserved the landowners' right to seek dismissal of the improvement petition in accordance with § 103E.341 if the final project cost, including damages, were to exceed the final benefits determination. The lowest construction bid still resulted in the cost of the improvement exceeding its benefits. On a request from the petitioners for the improvement, the Board directed that errors in the Viewers' Report be corrected. On correction, the benefits were found to exceed costs.

The landowners filed a second appeal under § 103E.091, challenging the increase in benefits assigned to a number of properties under the Board's amended order. They owned none of these parcels. The trial court dismissed the appeal, ruling that it was precluded by the earlier settlement. The Court of Appeals found that the settlement explicitly reserved the right to bring the appeal, but affirmed the district court dismissal on the basis of the landowners' lack of standing.

Minnesota Statutes § 103E.091, subdivision 2(a), states that a "person who appeals the amount of benefits or damages may include benefits and damages affecting properties not owned by the appellant." From use of the term "may include," rather than "may appeal," the Court concluded that a landowner could appeal benefit and damage determinations for property he did not own only in conjunction with an appeal as to his own property. The Court found, accordingly, that the statute provided no basis for appellants' standing. Standing, then, was to be determined by the traditional requirement of "injury in fact." The Court found that the Board's order would have no impact on appellants' benefit assessment, and therefore that there was no injury in fact.

Writing in dissent, Judge Davies would have found injury in fact on the basis that: (a) an underassessment of others would lead to appellants' bearing a greater proportion of project costs; and (b) if the improvement were constructed, appellants would be assessed despite their opposition to the project.

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