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however. the statute specifies that the construction of a median does not constitute loss of <br />driveway access for this purpose. <br />Finally. a fourth category of compensation is included that could come up where eminent <br />domain is not even being thought of. This section of the legislation requires <br />compensation Lo an owner of a non - conforming use if the local government requires its <br />removal as a condition of a separate peuuit or other approval. So. zoning administrators. <br />beware! The legislature continues to expand the rights of non- conformances (see action <br />of the 2005 legislature), even when you least expect it! <br />There were a number of potential provisions to this legislation that were debated, but did <br />not get into the final Act. These included compensation due to designation for historic <br />preservation, limitations on certain extraterritorial condemnations, prevention of <br />provision of road access to smaller privately owned parcels, and a prohibition on the local <br />government's requirement that commonly owned, contiguous non - conforming lots be <br />combined for development and /or separate sale. These elements were included in the <br />House bill, and as such, it would not be surprising to see these types of issues come up in <br />future sessions. <br />Summary <br />So, where did we end up? The inclusion of the blight provision makes it clear that <br />eminent domain will be a predominantly (exclusively ?) redevelopment tool, or one that is <br />used for clear public activity such as a park or a fire station. However, one of the <br />positions that the attorneys for Suzette Kelo argued for — that only blighted properties <br />may be taken, sort of a hop- scotch approach — was moderated in Minnesota to require <br />adherence to a 50% rule. While the standards for blight are fairly stiff, they appear to be <br />reasonably objective. In this way the 2006 legislature, at least with regard to eminent <br />domain, managed to craft something that many local governments should be able to work <br />with. Perhaps the most difficult part of the legislation relates to the award of costs. As <br />anyone who has worked in this area knows, final awards can vary widely from appraisal <br />values. It will be interesting to see how local governments, appraisers, and the legal <br />practitioners respond to this aspect of the new law. <br />Information Sources <br />Information for this article was gathered from several sources, including various <br />newspapers (New York Times, Minneapolis -St. Paul StarTribune, Wall Street Journal, <br />and others), continuing legal education materials on eminent domain since the Kelo <br />decision, and conversations or correspondence with several Minnesota City Attorneys. I <br />commend to you two publications in particular: The Four Supreme Court Land Use <br />Decisions of 2005: Separating Fact from Fiction, Lora Anne Lucero, AICP, APA <br />Planning Advisory Service Report No. 535, August 2005; and "Summary of the House - <br />Senate Conference Committee Report on Eminent Domain ", Laura Harris (League of <br />Minnesota Cities) and Sarah Erickson (Assn. of Metropolitan Municipalities), May 11, <br />2005, www.lmnc.org. The PAS Report has an excellent collection of the various <br />9 <br />