Cup Foods v. City of Minneapolis - Property Taking Claim

This opinion is n onprecedential exc ept as provided by Minn. R. Civ. App. P. 1 36.01, subd. 1(c). STATE OF MINNES OTA IN COURT OF APP EALS A25 -1219 Cup Foods, Inc., e t al., Appellants, vs. City of Minneapol is, et al., Respondents. Filed February 23, 20 26 Affirmed Connolly, Judge Hennepin County Distr ict Court File No. 27 - CV - 24 -16716 Michael B. Healey, J ordan C ardenas, Wag ner, Falconer & Judd, Ltd., Minneapolis, Minnesota (for appe llants) Kristyn Anderson, Minneapolis City Attorne y, Gregory P. Sautter, Adam E. Szymanski, Assistant City Attorneys, Minneap olis, Minnesota (for resp ondents) Considered and decided by Cochran, Presiding Judge; Connolly, Judge; and Bratvold, Judge. NONPRECEDENTI AL OPINION CONNOLLY, Judge On appeal from the dismissal of t heir petition for a writ of m andamus related t o respondents’ actions, appellant -business owners argue that the district court erred in concluding that respondents’ actions did not constitute an unconstitutional (A) per se

2 physical taking, (B) regulatory taking, or (C) right-of- acces s taking. Because respondents’ actions did not constitute an unconstitutio nal taking, we affirm. FACTS The facts of this case are not disput ed. On M ay 25, 2020, George Fl oyd was killed by Minneapolis Police Officer Derek Chau vin outside of the property where appellant CUP Foods, Inc. operat es. Cup Foods is owned by four brothers, who also own appellants Southside Electronics, Inc.; NMA Investme nts, LLC; 3759 Chicago Ave., LLC; and Menthol Tobacco, LLC, which are located in or near the same pro perty. Floyd’s death sparked riots and prote sts in respondent City of Minneapolis (the city) and, in response to Floyd’s death, a memorial was created for Flo yd outside of CUP Foo ds at the intersection of East 38th Street and Chicago Avenue in the city. The civil unrest also prompted the cit y to place concret e barricade s at the north, south, east, and west entry points of East 38th Street and Chicago Avenue on June 2, 2020. The barri ers were accompanied by signs stating, “Ro ad Closed,” an d “Residents Onl y,” and the signs redirected traffic around the area. Within the barricaded area, “civilian occupiers” “guard [ed] ” the area and “create [d] an autonomous zone that became known to local residents as the ‘No Go Zone.’” The city also limited, but did n ot co mpletely eliminate, police resp onse to this area. Consequently, this area experienced a “drastic increase in violent cr ime.” The concrete barriers blocking t he entr y points to the intersection of Ea st 38th Street and Chica go Avenue remained in place until June 3, 2 021, despite repeated requests by appellants to remove the barriers. In fact, the city acknowledged the d etrimental economic

3 impacts of the barriers on local bu sinesses, including appellants’ bus inesses. In an effor t to counter the adverse economic effects of t he barriers, the city approved a one-time $50,000 forgivable loa n program for business es and property owners in the affected area. The city also created the THRIVE Strategic Developme nt Plan to address the social and economic problems created by the c oncrete barriers. Despite the existence o f the concrete bar riers, appellants’ busine sses remained open. But in 2021, CUP Foods reported gross sales of $598,181, a 1 1.49% decrease from 20 19; Menthol Tobacco reported gross sales of $237,316, a 49.9 6% decre ase from 201 9; and Southside Electronics reported gross sales of $899,642, a 50.56% decline from 2019. And by 2023, Southside Ele ctronics closed. In November 202 4, ap pellants filed a petitio n for a writ of mandamus, seeking a writ compelli ng the cit y and respondent May or Jacob Frey (collecti vely, responde nts) to (1) begin condemnatio n proceedings for unlawfully taking their properties through inverse condemnation; and (2) provide police protect ion to their properties and the surrounding area. Respondents the n moved to dismiss or, in the alternative, for summary judgm ent. The district court grant ed respond ents’ motio n to dism iss under Min nesota Rule of Ci vil Procedure 12.02(e). In a deta iled and well-wr itten opinion, the district court deter mined that res pondents’ act ions did not cons titute a per se physical taking, regulatory takin g, or right -of- access taking. The district court also determined that appella nts’ claim for a writ

4 of mandam us compelling respondents to provide police pr otection to their properties failed for several reasons not relevant here. 1 This appeal follows. DECISION Appellants challenge t he district court’s order granting respon dents’ motion to dismiss their petitio n for writ of mandamus to compel condemnatio n proceedings. When we review a dismissal under rule 12.02(e), and “matters outside the pleading are presented to and not excluded by t he court, the moti on shall be treated as one for summary judgment.” Minn. R. Civ. P. 12.02; N. States Power Co. v. Minn. M etro. C ouncil, 684 N.W.2d 485, 491 (Minn. 2004). The parties agreed at oral argument that the dist rict court referre d to, and relied upon, inf ormation o utside of the pleadings in granting respondents ’ motion to dismiss. As such, the parties agree, as do we, that we should treat the district court’s or der as one granting summary judgmen t. This court reviews a grant of summary judgment de novo and affirm s “if no genuine issues of material fac t exist and if the court a ccurately app lied the l aw.” Hanson v. Dep’t of Nat. Res., 972 N.W.2d 362, 371 -72 (Minn. 2022). In doing so, we “ view the evid ence in the light most favorable to the nonmovin g party.” Id. at 372 (quotation omi tted). “Whether a governmen tal entity’s action c onstitutes a taking is a q uestion of law that we review de novo.” Wensmann Realty, Inc. v. City of Eagan, 734 N.W. 2d 623, 631 (Minn. 2007). 1 Appellants do not chal lenge the dismissal of this claim i n this appeal.

5 Turning now to the takings issue, the state and federal constitutions do not allow the state to take, dest roy, or damage private p roperty for pub lic use without just compensation. 2 U.S. Const. amend. V; Minn. Cons t. art. I, § 13; Minn. Sands, LLC v. County of Winona, 940 N.W.2d 183, 20 0 (Minn. 2020). “The purpose of the Ta kings Clause is to ensure tha t the government does n ot require some people alone to bear public burdens which, in all fairness and justice, sh ould be borne by the p ublic as a whole.” We nsmann Realty, 734 N.W.2d at 632 (quota tions omitted). Three recognized for ms of takings are (1) a per se physical taking; (2) a r egulatory taki ng; and (3) a right -of-access taking. See Cedar Point Nu rsery v. Hassid, 59 4 U.S. 139, 147-48 (2021) (describing per se physical taki ngs); Wensmann Realty, 734 N.W.2d at 632 (describing reg ulatory takin gs); Grossman Invs. v. State by Humphrey, 57 1 N.W.2d 47, 50 (Min n. App. 1997) (recognizing right-of-access taking s), rev. denied (Minn. Jan. 28, 19 98). If a property owne r shows “th at the state inte rfered with ownershi p, possession, o r enjoyment of a propert y right,” the property owner may obtain a w rit of mandamus fo r “inverse c ondemnation” requiring the state to initiate condemnation proceedings to determine just compensation. Oliver v. State ex rel. Comm’r of Transp., 760 N.W.2d 912, 915 (Minn. Ap p. 2009), rev. granted (Minn. Apr. 29, 2009), and appeal dismissed (Minn. Nov. 16, 2009); Gross man, 571 N.W.2d at 50. “Mandamus is an extraordinary re medy that is available only to compel a duty clearl y required by law.” Ly v. Harpstead, 16 2 Because the Taking s Clause of t he Unite d S tates Const itution is si milar to the Takings Clause of the Minnesot a Constitution, we may look to caselaw analyzing a ta kings claim under the United States Constitution in evaluating a takings claim arising under the Minnesota Constitution. Wensmann Realty, 734 N.W.2d at 632-33.

6 N.W.3d 788, 800 (Minn. App. 2025) (quotation omitt ed), rev. denied (Minn. Apr. 15, 2025). In order to prevail on a mandamu s action, the petitioner must establish tha t the government failed to pe rform an official duty imposed by law. Min n. Stat. § 586.03 (2024). For manda mus seekin g inverse c ondemnation, a distric t court “must decide whether a taking of property has occurred in the cons titutional sense.” Id. Appellants argue that the district court erred in determining that respondents’ actions di d not constitute an unl awful (A) per se physical taking, (B) regulatory taking, and (C) right -of- access taki ng. We address these arguments in turn. A. Per se physical taking A per se taking, also known as a physical taking, occurs when priv ate property is “physically acquire[d]” or “ invade[d]” b y the government. Cedar Point, 594 U.S. a t 147, 149. “The cleare st so rt of [a physical] taking occurs when the gov ernment en croaches upon or occupie s priva te land for its own pro posed use.” Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001). The Supreme Cou rt h as also held that “[w]h enever a regulation results in a physical appropriation of property, a per se taking has occurred.” Cedar Point, 594 U.S. at 149. Courts use a “simple, per se rule” to assess these physical-taking claims: “[t]he government must pay for w hat it takes.” Id. at 148. Appellants argue that the district court erred in determining that respondents’ “actions did not constitute a per s e taking” because respondents’ “policy or practi ce of placing and maintaining concrete barricades at the intersection for over one year, act i vely withdrawing police pr otection from the intersection, and the [c]ity murdering... Floyd, constituted” such a taking. To support their position, appellants rely on Ced ar Poi nt, in

7 which a California regulation required agricultural employers to allow union organizers to physically enter t he employers’ land for up to three hours per day, 120 days per year to solicit support for u nionization. 594 U.S. at 1 43. The Supreme Court determi ned that the California regulation was a per se physical taking because it appropria ted the owners’ right to exclude third parties. Id. at 152. Appellants’ reliance on Cedar Point is misplac ed. Unlike in Cedar Point, in which the regulation allowed a third party to physi cally enter the empl oyers’ land, the re is no evidence show ing that respondents allowed a third party to physically enter appellants’ property. Nor is the re any ev idence showing that respondents physically enter ed appellants’ properties or authori zed th ird pa rties to do s o. I n other words, the record reflects that appellants retained full physical possession and use of their prop erties throughout the relevant time period. Moreover, the re is nothing in the record demonstrating that respondents’ actions appr opriated ap pellants’ rights to exclude third parties from their prop erties. As such, Ce dar Point does not support appellants’ position. Appellants also rely heavily on Hunter s Capital LLC v. City of Seattle, 499 F. Supp. 3d 888 (W.D. Wash. 2020) (Hunters I). In that case, the court considered a motion to dismiss a serie s of claims filed by a class of i ndividuals, including an unlawful -taking c laim under the Fifth Amendment. Hunters I, 499 F. Supp. 3d at 899, 903 -04. Underlyin g the claim were facts demonstrating that, in the s ummer of 2020, during civil-rights protests following the death of Floyd, a 16 -block secti on of Seatt le became kn own as the Capit ol Hill Occupying Protest (“CHOP”), an area with no official law -enfor cement presence and barriers separati ng it fr om the rest of the city. Id. at 893. In denying the City of Seattle’s

8 motion to dismiss the plaintiffs’ taking s claims, the court determined that the plaintiffs “plausibly a ssert that the [City of Seattle’s] endorsement of, and t he provision of materia l support to, CHOP set in motion a series of acts by certain CHOP part icip ants, who the City [of Seattle] knew or reasonably should have known would depriv e [the p]la intiffs of protected property inte rests.” I d. at 904. Th e court concluded that “[t]hese allegatio ns support th e claim that the [City of Seattle’s] conduct wa s ca usally related to the private misconduct and it was sufficiently direc t and substantial to require compensation under the Fifth Amendment.” Id. (quotations omitted). However, in Hunters Capital LLC v. City of Seattle, 650 F. Supp. 3d 1187, 1203-04 (W.D. W ash. 2023) (H unters I I), which was d ecided aft er Cedar Poi nt, the plaintiffs’ per se taking s clai m did not survive the City of Seattle’s motion for summary judgment. I n that case, the court rec ognized that the plai ntiffs did “not allege that the City [of Seattle] itself physically i nvaded their properties. Rather, [the p] laintiffs con tend[ed] that the City [of Seattle] authorized third- party physical invasions.” Hun ters II, 650 F. Supp. 3d at 1203. But the court determine d that the plaintiffs “presented no evide nce that the City [of Seattle] expressly authorized any of the third - party physical invasions at issue,” and the City of Seattle “did not adopt a regulation or ordinan ce granting protesters a ‘formal entitlement’ to enter [t he p]laintiffs’ properties. ” Id. at 1203-04. Therefore, the c ourt grante d the City of Seattle’s motion for summary judgment as it related to the plaintiffs’ per se theory of liability. Id. at 1204. As the district court here acknowledged, the rulings in Hunters I and Hunters II “underscore the critical doctrinal point in this cas e: a per se physical taking requires actual

9 physical appropriation or compelled third -party occupation of property by the government —not merely toleration, negligence, or indirect support.” (Emphasis omitted.) Even viewing the evidence in the light most f avorable to appella nts, there is no evidence support ing appellants’ theory that respondents physically appropriated or compelle d third - party occupation of their property by placin g the concrete barrier s and reducing police presence in the area. More specifically, there is no evidence show ing that resp ondents physically occupied appellants’ properties, that appellants lost the right to possess their properties, or that they lost the right to exclude others from t heir properties. Moreover, the re is no evide nce i ndicating that responden ts instituted policies or regulations allo wing third pa rties to occupy appellants’ properties, such as affirmativel y planning, creatin g, or executing the protest -related encampment near East 38th Street and Chicago Avenue. Rather, t he rec ord can only support that resp ondents’ involvement consisted of ongoin g public-safety decisio ns and strategic res traint amid evolvi ng community tension s. As the district court determined, appellants’ “theory rests on inaction and passive acquiescence — precisely the kind of allegations the court found legally insuffici ent in Hunte rs II.” See Hunters II, 650 F. Supp. 3d at 1203- 04 (reje cting the plaintiffs’ per se theory of liability where no evidence was presented tha t the City of Seattle “expressly a uthorized any of the third -party ph ysical i nvasions at issue,” and “did not adopt a re gulation or ordinance granting protestors a ‘formal entitlement’ to enter [the p]laintiffs’ properties”). Theref ore, the district court did n ot err i n determining that appellants f ailed to demons trate a per se physical taking.

10 B. Regulatory taking Appellants also conten d that the district cour t erred when it held th at responde nts’ actions did not constitute a regulatory taking. “A regulatory taking occurs when the government goes to o far in its regul ation, so as to unfairly dimin ish the value of the individual’s property, thus causing the indi vidual to bear the burden rightly borne by the public.” Fletcher Props., Inc. v. City of M inneapolis, 24 N.W.3d 287, 300 (Minn. 2025) (quotation omitted). B ut as the Supreme Court has acknowledged, “[t]he ru b of course, has been — a nd remai ns —how to discern how far is ‘too far.’” Lingl e v. Chevron U.S.A., Inc., 544 U.S. 528, 538 (2005). And our supre me court has stated that “[t]he d etermination of whether a regulator y taking has occurred is highly fact -specifi c, depending on the particular circumstances underlying each case.” Fletcher Props., 24 N.W.3d at 303 (quotation omitted). Nonetheles s, when, as here, the facts are not disputed, the takings issue is a question of law. See Wen smann Realty, 734 N. W.2d at 631. Minnesota co urts have used two tests to determin e whether a regu latory taking has occurred: t he Penn Central balancing te st set forth in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), and the Alevizos test set forth i n Alev izos v. Metropolitan Airports Commission of Minneapolis an d St. Paul, 216 N.W.2d 651 (Minn. 1974) (Alevizos I). See Fletcher, 24 N.W.3d a t 304 (applyin g Penn C entral test); see also Haeussler v. Braun, 31 4 N.W.2d 4, 9-10 (Minn. 1981) (applying Alevizos test to ta kings claim). Appellants challenge the district cou rt’s decisio n that they failed to satisfy either one of these two tests.

11 1. Alevizos test In Alevizos I, the supreme court recognized that, “[t]raditi onally,” property righ ts include “the rights to p ossess, use, and dispos e of property.” 216 N.W.2d at 661. But the supreme court also recognized that “[t]his do es not mean that every noise or interference wi th a property owner’s use and enjoyment thereof constitutes a taking” because ever y landowner must endure a “leve l of incon venience, discomfort, and lo ss of peace a nd quiet which can be re asonably anticipated by any average mem ber of a vib ran t and progressive society.” Id. at 662. Nonetheless, whe n interference wit h property causes “a measurab le decrease in property market value, it is re asonable to assume t hat, considering the permanency of the [act ions at issue], a property right has been, if not ‘taken or destroyed,’ at the very least ‘da maged,’ for which our constitution requir es that co mpensation be paid.” Id. The supreme court then establis hed a test to de termine if there was a c ompensable regulatory taking. Id. at 662. Under the Al ev izos test, “[o] nly when these two factors are proved: (1) substantial invasion of a property right; (2) resulting in def inite and meas urable diminution in market value, can it be said that a taking has occurred.” Haeussler, 314 N.W.2d at 9 (acknowle dging the test established in Alevizos). Appellants argu ed that the “ district cour t erred when it held [that they] failed to satisfy the Alevizos market value test.” 3 We d isagree. Importantly, after prescri bing the Alevizos test, the su preme court in Alevizos I stated that “[t]o justify a n award of damages it must be proved that [the alleged] invasions of propert y right s are not of an occasional 3 The district court ne ver considered, nor do the parties argue, that the Alevizos test is inapplicable to this case.

12 nature, but are repeated and aggravated, and that there is a reasonable probability that they will be continued in the future.” 216 N.W.2d a t 662. Here, appel lants ackno wledge in their complaint that the co ncrete barriers we re removed after approximately one year. Although th e presence of t he barriers m ay have constituted a “repeated and aggravated” interference for about a year, there is no probability that any interference “will be continued in the future” because the barriers have been removed. See id. As such, the reco rd l acks evidence supporti ng appellants’ theory of a regulatory taking u nder the Alevizos te st. Not to be deterred, appellants argue that the removal of t he barrica des “after one year does not make the barricades an ‘occasional’ interference” because the barricades “stood [for ] 2 4 hours a day for 366 da ys,” and “blocked 911 traffic access to [a]ppe llants’ properties and severely limited pe destrian traffic.” And appella nts contend that the existence of the barric ades in this time peri od caused the intersec tion to become “so violent” that i t “prevented [a]ppellants and the pu blic from accessing [a]ppe llants’ properties.” Appellants’ argument is unavailing. The Alevizos test requires a “direct and substantial invasio n” o f a property right in order to be gran ted relief. Id. But vie wing the evidence in the light most favorable to appellants, there is no evidence in the record consistent with their th eory of the case that w ould satisfy this requirement. Rather, as th e district court recognized, appellants’ “theory r ests on i ndirect harm —i.e, that the [c]ity’s withdrawal of police presence, tolerance of barricades, and inaction i n the face of protests led to a loss in value.” The alleged indirect harm is insufficient to satisfy the firs t part of

13 the Alevizos test. And because appellants fai l to satisfy the first part of the Aleviz os test, appellants’ takings claim under tha t test fails. 2. Penn Central test Appellants also challenge the district court’ s d etermination that they failed to satisfy the Penn Central test. The Minne sota Supreme Court has “use d the Penn Ce ntral framework in... cases to analyze takings cl aims arising under the [United States] and Minnesota Constitutions.” Wensmann Realty, 734 N.W.2d at 633; see Fletcher Props., 24 N.W.3d at 303 (statin g that, “[w]hen consi dering regulatory takings clai ms under the Minnesota Constitution, we have generally a dopted the flexible test developed in Penn Central ”). Under this test, courts mu st consider (i) the economic impact of the government regulation on the claimant; (ii) the extent to wh ich the regulation has in terfered with distinct investment -backed exp ectations; a nd (iii) the character of t he gover nment action. Penn Central, 438 U.S. at 1 24. “The Penn Centra l approach is fl exible, with the factor s often being balanced.” Wensmann Realty, 734 N.W.2d at 6 33. B ut the primary focus of the injury is on “the sever ity of the burden that government imposes u pon private property rights.” Lingle, 544 U. S. at 539. i. Economic impact The inquiry under the first Penn Central factor “turns in large part, albeit not exclusively, upon the magnitude of a regulation’s economic impac t and the degree to which it interferes with legitimate property interests.” Fletcher Props., 24 N.W.3d at 304 (quotation omitted). Courts generally d eterm ine this by “compar [ing] the value t hat h as

14 been taken from the p roperty with the value that remains in the property.” Ke ystone Bituminous Coal Ass’n v. DeBenedictis, 48 0 U.S. 470, 497 (19 87). 4 Appellants argue that the first Penn Cent ral factor weighs in the ir favor because respondents “instituted a policy or p ractice of placing and mainta ining the concrete barricades surrounding [a]ppellants’ properties for over one year and actively withdrawing police protection, which caused [them] to suffer economic harm.” And appellant s contend that this eco nomic har m included a drastic decline in sales revenue as well a $660,00 0 decline in the value of t heir properties. We are not persuaded. Appellants d o not allege that respondents entered their land, con demned it, or imposed any legal restr iction on its use or development. Instead, appellants acknowledge in their complaint that t hey retained possession of their properties and continued to op erate their bu sinesses while the barricades were in p lace. Although the cit y ackno wledged in a letter that the existence of the barriers was “harming local businesses, ” the existence of the barriers was j ust one factor that caused the decline in appellan ts’ property values and the sales related to t heir bu sinesses. In lig ht of the fact that appella nts’ retained possession of their properties and operated their business es while the barricades were in place, as well as other factors that caused the harm to appellants’ business es, the eco nomic impact related to respondents’ actions and the degree to which it interfered with their property interests 4 The supreme court in Fletcher Pr operties, no ted that “we have not articulated a st andard that applie s in a ll case s” related to the first Penn Central factor, but “assume[d] without deciding” the Keystone standard applied in that case because neith er party disputed the application of the Keystone standard. 24 N.W.3d at 304 n.10. For the same reas ons, we assume that the Keysto ne standard applies her e.

15 falls short of a taking. See Fletcher Props., 2 4 N.W.3d at 304 (stating that the first Penn Central factor “tu rns in large part, albeit n ot exclusively, u pon the magnitude of a regulation’s economic impact and the degree to which it interferes with legitimate propert y interests” (quotatio n omitted)). As such, this factor does not weigh in appellan ts’ f avor. ii. Interference with distinct investme nt -backed e xpectations The second Penn Central factor requires us to examine “the extent to which the regulation has interfered with distinct investment - backed expectations. ” Penn Central, 438 U.S. at 124. “In examining a pro perty owner’s investment -back ed expectations, the existing and permitted uses of the property when the land wa s acquired generally cons titute the ‘primary expe ctation’ of the landowner regarding the property.” Wensmann Realty, 734 N.W.2d at 63 7. These expectatio ns rema in legally intact so lon g as the pro perty can continue to be used in concert with go verning regulations. Minn. Sa nds, 917 N.W. 2d at 784. Appellants argue that this factor weighs in th eir favor because they “invested their own m oney... into their businesses with the reasonable expect ation of continuing to use their properties and receive a business profit” only to have respondents’ “actions destroy[]” their bu sinesses. But a ppellants’ b usinesses were not restrain ed by changes to the property’s zoning or otherwise altered by any legal framework governing its use. Although the barriers an d lack of police presence may have resulted in less business, ap pellants acknowledge that the public still had access to their businesses. And appellants acknowledge that they remained open while the barriers were in place. In fact, the barriers

16 were removed after ap proximately one year. Consequen tly, this factor does not weigh in appellants’ favor. iii. Character of the gover nment action The third Pe nn Centra l factor focus es on th e character of the gover nment action. Penn Ce ntral, 438 U.S. at 124. Our supreme court has recognized t hat the “appropriate focus” of this factor “is on the nature rather than the merit of t he governmental action, with an important consideration being whether the regulation is gener al in application or whether the b urden o f the regulation falls disproportionately on relatively few property owners.” Fletcher Pro ps., 24 N.W. 3d at 306- 07 (quotatio ns and em phasis omitted). “ A ‘taking’ may m ore readily be found when the interference with property can be characterized as a p hysical in vasion by government than when interference arises from some public program a djusting the benefits and burdens of econom ic life to promote the common good.” Penn Central, 438 U.S. at 12 4 (quotation omitted). Appellants argue that this factor weig hs in their favor because “th e ‘nature’ of [r]espondents’ acti ons — murderin g... Floyd, surroun ding [a] ppellants’ busi nesses with concrete barri cades fo r over one year, and withdrawing police protection —caused” appellants sever e econ omic damage. We disagree. The concrete barriers and diminished police pr esence did not single out appellants’ properties fo r adverse treatment. And the diversion of traf fic res ulting from the barriers applied to the public intersection in general and affected a broad area of adjace nt street s. Further, appellants off ered no evidence indicating that respondents’ actions impose d a unique or disproportionate burden on appellants’ businesses as compared to simil arly situated businesses in the area. As such,

17 respondents’ actions ar e characterized as a ge neral application rather than a burden that fell disproportionately on a ppellants. See Fletc her Props., 2 4 N.W.3d at 306-07. Moreover, t he suprem e court has recognized that the government may, under its broad police p owers, “impose any reasonable restrictions and ma y make any reasonable regulations, in respect to the use which the owner may make o f his property, which tend to promote the general well-being or to s ecure t o others that use and enjoyment of their own property to which they are lawfully entit led.” Johnson v. City of Pl ymouth, 263 N.W.2d 603, 606-07 (M inn. 1978) (quotation omitted). It is only when the government atte mpts to forbid property owners from making use of their property — which use is not harmful to the public and does not interfere with the rightful use and enjoyment of their own proper ty by others — that the gover nment action inva des property rights sec ured to the owner by both the state and f ederal c onstitutions. Id. at 607. Here, the record reflects that respo ndents placed the concrete barriers in response to widespread civil unrest after Floyd’s d eath, which occurred at the intersection where appellants’ businesses are located. In doing so, respondents acted to preserve pu blic safety, facilitate emergency ac cess, and manage c ommunity tensions. These actions fall within respondents’ general p olice powers and const itute a reasonable response to promote the general well-being of the public. See id. at 606-07. And respondent s’ actions did not constitute a ta king bec ause respond ents’ exer cised their poli ce pow ers in a reasonab le fashion so as to not un duly restrict appe llants’ ability to use their pr operties. As such, th e third Penn Central factor weighs heavi ly against appellants. And be cause all three Penn

18 Central factors weigh against appella nts, the district court did not er r in determining t hat respondents’ actions did not const itute a regulatory taking. C. Right -of-access taking Lastly, appellants challenge the district cour t’s decision that they failed to establish a right-of-a ccess takin g. Such a taki ng is recognized in Minnesot a because state law establishes that property owners have the right of “reasonably co nvenient and sui table access to a public street or highway that abuts their property.” Gross man, 571 N.W.2d a t 50 (quotation omitted). This access right is “a property right in the nature of an easement.” State by Mon dale v. Gannons, Inc., 145 N.W.2d 321, 329 (Minn. 1 966). Thus, when an abutting property own er ’ s access to a roadway is altere d, a taking may occur even if no property is physically a ppropriated. Gros sman, 571 N. W.2d at 50. Our supreme co urt has recognized that a city government is permitted to exercise its police power s to improve public s treets in the interest of publi c safety and welfare. Johnson, 263 N.W.2d a t 606. But such an exercise becomes a tak ing if it has the effect of denying abutting prope rty owners the rig ht of reasonable access to their property. See id.; see also State ex rel. La chtman v. Houghton, 158 N.W. 1017, 1021 (Minn. 1916) (“[W]hen the legislative power attempts to forbid the owner from making a use of his property which is not harmful to the p ublic and does not interfere with the r i ghtful use and enjoyment of their own proper ty by others, it invade s prop erty rights secure d to the owner by both the state and federal Constitutions.”). “What constitutes reasona ble access... depend[s] to some extent on the nature of the property und er consideration.” Johnson, 263 N.W.2d at

19 607. Not e very chang e in access s upports a claim for damages, a nd even a “su bstantial inconvenience” may not support a reasonab le - access claim. Id. Appellants rely extensively on the Kick’ s Liquor Store, Inc. line of cases to support their posit ion that respondents eff ected a compensable taking of their right of access by erecting concrete barriers and converting pu blic streets into pedest rian -only zones near their businesses. The Kick’s cas es stemmed from the City of Minn eapolis’s creation of a permanent cul-de- s ac that effective ly eliminated a business’s only di rect vehicular acces s to a main thoroughfare — Broadwa y Avenue — by closing off a side street, McNair Avenue, which se rved as a liquor store’s exclusive dri veway acc ess. Kick ’s Liquor Store, Inc. v. City of Minneapolis, 58 7 N.W.2d 57, 58 (Minn. App. 1998) (Kick’s I). Although vehicles could still technically enter McNair from Broadway, the crea tion of t he cul -de-sac meant that traffic could no longer traverse Mc Nair through Farrant Place and Queen Avenue North, which were the only routes allowing free movemen t from t he south. Id. Based on the city’s actions, the liquor stor e sued the city, seeking a writ of mandamus to compel i nverse condemnation. Id. The liquor store argued that the cit y’s closing of McNair Avenue, which was the only street through which their parking lot w as accessible, deprived the store of its prope rty. Id. On appeal fr om summary judgme nt in favor of the city, this court reversed and remanded for a trial on whether a compensable taking had o ccurred. Id. at 60. In so ruli ng, this court stated that, to prove that a compensable taking has occurred by the closing of a p ublic street, t he abutting property owner has the b urden of proving that it (1) suffered sp ecial injury; (2) suffe red actual damage; and (3) is left without reasona bly convenient and suitable access to the main

20 thoroughfare in at least one direction. Id. Following a trial on re mand, the district court determined that the City of Mi nneapolis’s actions constituted a taking or damaging of the liquor store’s pr operty for which just compens ation must be paid, and this court affirmed. Kick’s Liquor Store, Inc. v. City of Minneapolis, No. C4-00-2063, 2001 WL 506937, at *1 (Minn. App. May 15, 2001) (Kick’s II). 5 Appellants argue that, like the decisio ns in th e Kick’s line of case s, they satisfied the criteria establishi ng a right -of-ac cess taking. This arg ument is unavailing. 1. Special injury To establi sh a taking, the property owner must first s how s pecial inj ury due to the government ’ s actio n. Kick’s I, 587 N.W.2d a t 60. Speci al injury is “one different in kind from that suffered by t he general public as the result of th e city ’s action.” Id.; see also Hendrickson v. State, 1 27 N.W.2d 165, 170 (Minn. 1964). Appellants ar gue that, like Kick’s II, they suffered “a special injury different than any injury suffered by the general public” b ecause respondents “placed four concrete barriers” at an intersection that “blocked all vehicle tr affic from a ccessing [a]ppella nts’ properties from all four directions”; “authorize d third -party occup iers to install additional 5 The supreme court gra nted review of Kick’s II, but stayed proceeding s pending its review of this court’s decision in Dale Properties., LLC v. S tate, 619 N. W.2d 567 (Minn. App. 2000), and after issuin g its decision in Dale Properties, LLC v. State, 638 N.W.2d 763 (Minn. 2002), vacated this court’s opinion in Kick’s II, and remanded for proce edings consistent with its decision in Dale Properties. On remand, this court affirmed its decision in Kick’s II, concluding that Dale Properties did not affect the decision. Kick’s Liquor Store, Inc. v. City of Minneapolis, No. C4- 00-2063R, 2002 WL 1364 018, at *4-5 (Min n. App. June 25, 2002) (K ick’s III), rev. denied (Minn. Sept. 17, 2 003).

21 barriers in the intersection with si gns stating, ‘ROAD CLOSE D’ and ‘RESIDENTS ONLY’”; and “actively withdr[ew] police from the intersection” resulting in unprecedented levels of violen t crime in the area. But Kick’s II is dist inguishable. In that case, the liquor store suffered a very specific and individual injury in that the traff ic change c reated a de facto cul -de-sac that forced uninvited traffic to enter and turn around in the liquor store’s parki ng lot. Kick’s I I, 2002 WL 1364018, at *2. Here, as resp ondents point out, appellants ’ “alleged injuries as pled were suffered by the [community] as a whole in response t o the uprising, a nd more locally, by all the businesses in and around 38th [Street] and Chicago [Avenue] and in other protest zones in the [area].” In other words, unlike in Kick’s II, appellants suffered the same inconveniences and challenges as the g eneral public and other businesses. Moreover, the record reflects that sidewalk acce ss, al ley access, and alternat ive routes remai ned available to reach their business es. As the district cour t determined, unlike in Kick’s II, ap pellants “did not lose their sole ingress or egress. An impenetrable cul -de- sac did not encircle them.” Finally, the barriers were in stalled during a public e mergency and were temporary, lasting only about a year. In cont rast, the configuration i n Kick’s II was indefinite and implemented outside the c ontext of civil unrest or emergency response. Thus, un like in Kick’s II, the record here does not de monstra te a special inj ury. 2. Diminution in market value The second criter ion in Kick’s I requires that the property o wner sho w that actual damage has occurred i n the form of a measurable diminution of t he market value of the property. Kick’s I, 58 7 N.W.2d at 60. Appellants argue that they satisfy this criteri on

22 because the record sho ws that, due to the implementation of the ba rriers and the lack of police presence i n the area, their business and property values declined substantially. We agree that the record shows a measurable diminution in the market value of appellants’ propert ies, as well as l oss in business re venue. As such, viewing the evidence in the light most favorable to appellants, we conclude that appellants have satisfied the second criteri on in Kick’s I. 3. Reasonably convenie nt and suitable access The third criterion set f orth in Kick’s I re quires that the property owner show that, as a result of the government action, it is left without reason ably convenient and suitable access to the main thoroughfare in at least on e direction. Kick’s I, 5 87 N.W.2d at 60. In other word s, a right-of- access takin g is compensable only when this criterion is satisfied. See Hendrickson, 127 N.W.2d at 172-73. Appellants argue that the “barricades left [them] without reaso nably convenient and suitable acce ss to t he main thoroughfare in at least one direction.” But as thi s court has recognized, even “[i] f a ccess to property in an urban area r equires ‘ goi ng around the block, ’ a substantial inc onvenience might still be reasonable access. ” County of Anoka v. Esmailzadeh, 498 N.W.2d 58, 61 (Minn. App. 1993), rev. denied (M inn. May 28, 1993). It is only when “ acces s has been made so inconvenient as to be nea rly imp ossibl e, [that] there would not be reas onable access. ” Id. at 61-62. Here, viewing the evid ence in the light most f avorable to appellant s, access to thei r properties was not so inconvenient as to be nearly impossible. See id. Appellants acknowledge that their businesses were acces sible by foot. In fact, they acknowledge that

23 the alley adjacent to their building was u nblocked. Although individuals wanting to access appellants’ businesses may have had to park a block away and walk t o the business, or be dropped off in the alley near the business, such an inconvenien ce is not impossible or ne arly impossible access. Indeed, our supr eme court has recognized that not every chan ge in access supp orts a clai m for damages, and e ven a “substantial inconvenience” may no t support a reasonable -access claim. Jo hnson, 263 N.W.2d a t 607; s ee also Esmailzadeh, 498 N.W.2d at 61 (“I f access to property in an urban area require s ‘ goi ng around the block, ’ a substantial inconveni ence might still be rea sonable access. ”). Such is the case here. Appellants had access to their properties, albeit perhaps somewhat in convenient access at times. As such, appellants have not demonstrated that access to the ir propertie s was so unreasonably inconven ient that i t rose to t he level of an un constitutional taking. Because the record fails to show that appella nts suffered a special injury, or that respondents’ actions resulted in a loss of reasonable and co nvenient access to their properties, appellants failed to establish a right-of-way taking. Although the record shows a measurable diminution in market value of ap pellants’ properties since Floyd’s death, the analysis set forth in Kic k’s I requires that a ll criteria be sati sfied. See Kick’s I, 587 N.W.2d at 60 (stating that, to prove that a com pensable taking has occurre d by the closing of a public street, the abutti ng property owner has the burden of proving (1) it suff ered special injury; (2) it suffered a ctual damage; and (3) it is left without reasonably convenie nt and suitable access to t he m ain thoroughfare in at l east one direction); see also Nash v. Co mm’r of Pub. Safety, 4 N.W.3d 812, 818 n.7 (Minn. 2024) (sta ting that co urts “generally treat

24... ‘and’ as conjunctive”). Therefore, the d istrict court did not err in determinin g that appellants failed to demonstrate a right-of-ac cess taking. In sum, the distr ict court determ ined that appe llants have fa iled to demonstrate that respondents’ actions constituted an unconstitutional per se physical, regulator y, or right- of- access taking. The district court’s deci sion is well reasoned an d supported by the record. Accordingly, viewing t he evidence in the light most fav orable to appellants, we conclude that the district court did not err in determi ning that appellants fa iled to establish an unconstitutional taking. Affirmed.