Alexander v. City of Minneapolis

• Citation: 125 N.W.2d 583,267 Minn. 155
• Decision Date: 27 December 1963
• Docket Number: No. 39116,39116
• Parties: George D. ALEXANDER, Respondent, v. CITY OF MINNEAPOLIS, and Donald Erickson, Inspector of Buildings, Appellants, Ralph L. Norgaard et al., Intervenors.
• Court: Supreme Court of Minnesota (US)

Page 583

125 N.W.2d 583

267 Minn. 155

George D. ALEXANDER, Respondent, v. CITY OF MINNEAPOLIS, and Donald Erickson, Inspector of Buildings, Appellants Ralph L. Norgaard et al., Intervenors.

No. 39116.

Supreme Court of Minnesota.

Dec. 27, 1963.

Syllabus by the Court

1. Power of municipality to amend zoning ordinances must arise out of legislative delegation of authority to such effect. Where there is no legislative authority empowering municipality to adopt 'hold order,' not having effect of ordinance and which suspends indefinitely application of its zoning ordinances as to certain property, such 'hold order' cannot be made basis for denial of property owner's application for building permit for structure authorized under zoning ordinances otherwise applicable thereto.

2. Enactment of 'spot' zoning ordinances or amendments to comprehensive zoning ordinances under police power which results in total destruction or substantial diminution of value of property affected thereby constitutes taking of such property without due process. Where property has been purchased for use in conformance with existing zoning ordinances, purchaser ordinarily has right to so use it.

Keith M. Stidd, City Atty., D. J. Shama, Asst. City Atty., Minneapolis, for appellants.

Brill & Brill, J. E. Brill, Henry Haverstock, Jr., Minneapolis, for respondent.

THOMAS GALLAGHER, Justice.

Appeal from an order denying defendants' motion for amended findings or for a new trial, and from a declaratory judgment that plaintiff is entitled to a building permit from defendants for the erection of a 6-story, 38-apartment building on premises owned by plaintiff as hereafter described. Therein the court determined that an amendment to its zoning ordinance adopted by the defendant city on December 14, 1962, wherein such property was rezoned for more restrictive uses, was void insofar as it related to such property; and that a 'hold order' issued by the city on July 10, 1953, with respect to any applications for building permits thereon was likewise void.

The findings of the trial court, based upon a stipulation of the parties and evidence adduced at the trial, established the following:

That for at least 10 years prior to the commencement of the action plaintiff has owned certain property in Minneapolis ¹ located at the southeast corner of East Calhoun Boulevard and West 31st Street.

That on November 2, 1962, at the time of plaintiff's application for the building permit described, and for many years before, the property had been zoned for multiple dwellings up to 6 stories in height, but that on July 10, 1953, subsequent to plaintiff's purchase of the property the city through its council had adopted a 'hold order' which directed its building inspector not to issue any building permit for the property, pending adoption of a proposed comprehensive rezoning ordinance.

That at the time of plaintiff's application for a building permit to construct a 6-story multiple dwelling on the property the application called for the erection of a structure which would be in strict compliance with the provisions of the zoning ordinance and building code of the city then in effect, with the exception of the 'hold order' described.

That notwithstanding this the building inspector had refused to issue such building permit to plaintiff because of such 'hold order' and that subsequently on December 14, 1962, the city had adopted a new zoning ordinance which placed plaintiff's property in a residence 'C' density classification and which limited multiple dwellings thereon to not more than 2 1/2 stories in height.

That the reasonable market value of plaintiff's property for the purposes authorized at the time of his purchase thereof and on the date of his application for the permit described was the sum of $57,000, while its reasonable market value for a multiple dwelling limited to not more than 2 1/2 stories in height as authorized by the new zoning ordinance was $22,000.

It is conceded by defendants that, on November 2, 1962, but for the existence of the 'hold order' described, it was the duty of the building inspector to issue a building permit to plaintiff in accordance with his application and plans therefor submitted by him on that date; and that at the time of the commencement of the present action plaintiff's property was zoned for use in accordance with the application for the building permit described.

The trial court's determination included the following:

'That the plaintiff's property had been zoned for the purpose for which he desired to use the same for many years prior to the time he purchased said property approximately ten years ago. That plaintiff purchased said property in reliance upon said zoning desiring to use the same for the erection of apartment buildings of the kind permitted by the ordinance as it then existed.'

'That the 'Hold Order' referred to in said stipulation and adopted by the City of Minneapolis was void and without effect and insofar as it purported to be an amendment of the zoning ordinance of the City of Minneapolis it was in violation of the statutes of the State of Minnesota.'

'That the defendants are hereby directed to issue to the plaintiff the building permit pursuant to proper plans heretofore and hereafter to be submitted to the Building Inspector of the City of Minneapolis.'

On appeal defendants contend that the trial court erred in its determination that defendant city's 'hold order' of July 10, 1953, was void; and in its determination that defendant city's ordinance rezoning plaintiff's property to a more restricted classification or use was invalid.

1. We are of the opinion that the trial court was correct in determining that plaintiff is entitled to a building permit for his property in accordance with his application filed with the city building inspector on November 2, 1962, and his plans and specifications therefor. It is not disputed that at the time such application was filed the zoning ordinances then applicable to his property required issuance of the permit and that the only basis for its denial was the 'hold order' of July 10, 1953, which the trial court determined to be invalid.

The power of a municipality to amend zoning ordinances must arise out of some legislative enactment delegating such authority to it, either directly or by implication. Here the only statute under which defendant city is authorized to amend its zoning ordinances is Minn.St. 462.18, and we find nothing therein which would empower it to indefinitely suspend application of its zoning ordinances as to certain property, or to nullify them through the adoption of 'hold orders' not having the effect of ordinances, ² In fact, even if such 'hold order' had been adopted as an Ordinance, its validity would be questionable. As stated in State ex rel. Fairmount Center Co. v. Arnold, 138 Ohio St. 259, 34 N.E.2d 777, 136 A.L.R. 840:

'A municipal council may not, by the enactment of an emergency ordinance, give retroactive effect to a pending zoning ordinance thus depriving a property owner of his right to a building permit in accordance with a zoning ordinance in effect at the time of the application for such permit.'

See, Downey v. City of Sioux City, 208 Iowa 1273, 227 N.W. 125; State ex rel. Romero v. Viator, 217 La. 239, 46 So.2d 256; Krajenke Buick Sales v. Hamtramck City Engineer, 322 Mich. 250, 33 N.W.2d 781; State ex rel. Kramer v. Schwartz, 336 Mo. 932, 82 S.W.2d 63; Deerfield Realty Co. v. Hague, 8 N.J.Misc. 637, 151 A. 373; Matter of Reade v. Moss, 186 Misc. 156, 58 N.Y.S.2d 390; Kline v. City of Harrisburg, 362 Pa. 438, 68...