Judge lifts temporary restraining order against Proctor annexation plan

• The site

Seth Oliver, who owns the former Sunset Hotel, says he has signed an agreement with a big-box retailer to build at the site. He and Proctor want Proctor to annex the land from Midway Township, which isn’t pleased. (File / News Tribune)
• Map of area

Map of area

Talk about it

A judge has lifted a temporary restraining order that prevented Proctor from annexing 68 acres of Midway Township.

In an order filed Thursday in State District Court in Duluth, Judge Shaun R. Floerke also rejected a request from the city of Duluth and Midway Township for an injunction.

A review of state laws indicates that Duluth and Midway “are not likely to prevail on the merits of their application for review,” Floerke wrote in the memorandum accompanying his order.

“That made my day,” Proctor Mayor David Brenna said when told of Floerke’s decision.

“I just wish it wouldn’t have come to that,” he said. “I think if Duluth wouldn’t have gotten involved, I think Proctor and Midway could have sat down and worked out an amicable takeover.”

Proctor wants to annex property in Midway Township that fronts Interstate 35 — land that Seth Oliver, owner of the property, has said is being eyed by a big-box retailer.

“We are disappointed in the court’s decision,” Duluth Assistant Attorney Robert E. Asleson said, “but we’ll be proceeding with the matter in due course and hope to be more successful with a permanent injunction.”

Midway Township Supervisor James Aird also was disappointed by Floerke’s decision.

“There is something wrong with the law,” he said. “To have a neighboring city take this action against a township, and the only person we can appeal to is the city that is taking the action makes no sense. In an appeal process you should have an impartial panel or judge.”

Aird said he didn’t know what the township would do next.

“We haven’t had a chance to talk to our attorney yet,” he said Thursday. “I believe we are going to court anyway.”

An April 24 court hearing is scheduled on Proctor’s motion for a summary judgment in the case. A summary judgment is a court order that decides a case in favor of one side on the basis of affidavits or other evidence before a trial begins.

The annexation issue began when Oliver asked Proctor to annex his property so he could use the city’s water and sewer services. The property, once home to the Sundowner motel, just touches the Proctor city limits. The annexation petition and notice of public hearing were filed with Midway Township and Duluth late last year. A public hearing was held Jan. 30, and the Proctor City Council approved annexation Feb. 13.

Midway Township officers have said they want to protect neighbors of the property and the environment. A large portion of the property has wetlands, and it’s the origin of Stewart Creek, a designated trout stream. Duluth joined Midway’s efforts to have the courts decide the merits of annexation. Duluth Mayor Don Ness has maintained that I-35 is a gateway to the city and should be treated with careful consideration of the impression it makes on visitors.

District Judge Eric Hylden issued a temporary restraining order on March 2. On March 19, Floerke heard Midway and Duluth’s request for an injunction.

In the memorandum filed Thursday, Floerke spelled out his reasons for rejecting the request. He found that Proctor and the Minnesota Office of Administrative Hearings followed the proper procedures during the annexation process. He also rejected Midway and Duluth’s argument that the legal description for the land in question is incorrect.

“Petitioners provide no legal support for this argument,” Floerke wrote. “It is clear from the City of Proctor’s submissions that the same legal description has been used for the same 67.4 acres through numerous transfers of ownership since at least 1979.”

Public policy strongly weighed against granting the injunction, Floerke said.

“The legislature clearly wants to allow a relatively quick procedure for annexation when all property owners of a relatively small land area abutting a municipality can agree that annexation would be to their benefit,” he wrote. “Delaying that process by court action directly violates that public policy consideration.”

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