202 N.W.2d 892 (Minn. 1972), 43541, Denney v. City of Duluth

Docket Nº:43541.
Citation:202 N.W.2d 892, 295 Minn. 22
Opinion Judge:The opinion of the court was delivered by: Rogosheske
Party Name:James A. DENNEY, et al., Respondents, v. CITY OF DULUTH, Appellant.
Attorney:William P. Dinan, for appellant.
Case Date:November 24, 1972
Court:Supreme Court of Minnesota

Page 892

202 N.W.2d 892 (Minn. 1972)

295 Minn. 22

James A. DENNEY, et al., Respondents,


CITY OF DULUTH, Appellant.

No. 43541.

Supreme Court of Minnesota.

November 24, 1972

       Rehearing Denied Jan. 9, 1973.

       Syllabus by the Court

       A governing body of a municipality acts in a legislative and not an administrative capacity when by ordinance, as required by its zoning code, it amends the boundaries or land-use classification of its comprehensive zoning plan.

       William P. Dinan, City Atty., Duluth, for appellant.

       Fryberger, Buchanan, Smith, Sanford & Frederick, Duluth, for respondents.

       Heard and considered en banc.

       ROGOSHESKE, Justice.

       Defendant, city of Duluth, appeals from a judgment of the district court enjoining its building inspector from issuing a [295 Minn. 23] permit authorizing the construction of multiple dwellings upon the property which is the subject of Ordinance No. 7787, a recently passed amendment to Duluth's comprehensive zoning ordinance, 1 until such amending

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ordinance is approved by the voters of the city of Duluth pursuant to § 52 of its Home Rule Charter. 2 The dispositive issue presented is whether the city council of Duluth acted in its legislative or its administrative capacity when it adopted Ordinance No. 7787. We hold that amending the boundaries of a particular zone of a comprehensive zoning ordinance is a legislative action, and accordingly we affirm the judgment of the district court.

       The facts, submitted by stipulation, may be summarized. Capitol City Holding Company, Inc. (hereinafter Capitol City) is a [295 Minn. 24] corporation engaged in the business of building and operating apartment houses. Desiring to construct an apartment-house complex consisting of 685 units, Capitol City acquired a 40- acre tract of land located within the city of Duluth in early 1970. The land at that time was zoned for single-family residential dwellings pursuant to the 1958 comprehensive zoning ordinance, now codified as Duluth Legislative Code, c. 50. Section 50--37 of that zoning code permits any owner seeking to redevelop 20 or more acres of land as a 'community unit' to deviate from zoning restrictions otherwise applicable, provided the city council approves and certain procedures are followed and specified conditions are satisfied. 3 Among other limitations, § 50--37(c) provides that apartment units must be not less in area than the lot area required for single-family residential purposes. Since Capitol City's 40 acres were within the single-family classification, which required at least 5,000 square feet per family, it was limited in construction by § 50--37(c) to approximately 240 apartment units. Not satisfied with the density permitted, Capitol City petitioned the city council to rezone the middle 21.7 acres of the 40-acre tract to an apartment house zone which would require only 1,500 square feet for each family. If the council granted this rezoning request, which was accompanied by Capitol City's application for approval of a 'community unit' development plan, the average density requirement of the entire 40 acres would be reduced to allow a maximum construction of [295 Minn. 25] 697 apartment units. Also, both Minn.St. 462.357, subd. 5, 4 and Duluth Legislative

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Code, § 50--117, 5 requiring the written consent of two-thirds of the owners of the separate parcels of real estate lying within 100 feet of the 21.7 acres, were satisfied because Capitol City was itself the consenting owner of the 100-foot 'buffer' strip around the 21.7 acres, which was all of the property within the 100-foot consent area. 6

       In response to Capitol City's petition, the city council of Duluth adopted Ordinance No. 7787, by virtue of which the 21.7 acres of Capitol City's 40-acre tract was rezoned to an apartment house zone. Simultaneously, the city council, by resolution, approved Capitol City's proposed development plan.

       [295 Minn. 26] Within the 30-day period before Ordinance No. 7787 could become effective under the city's charter, a petition was filed with the city clerk protesting the passage of the ordinance and demanding that it be submitted to a referendum of the voters of Duluth. The city clerk, after examining the petition, found it proper in all respects, but the city council, acting upon the advice of the city attorney, determined not to call for a referendum vote. This action was then brought to enjoin defendant's building inspector from issuing a permit authorizing the construction of multiple-family dwellings within the rezoned 21.7 acres. The trial court concluded that the process of amending Duluth's comprehensive zoning ordinance was subject to the same procedures as amending other ordinances of the city and granted the relief sought.

       It is fundamental that a municipality's power to regulate land use by zoning exists by virtue of authority delegated to it by the state. 8 McQuillin, Municipal Corporations (3 ed.) § 25.35. In Alexander v. City of Minneapolis, 267 Minn. 155, 125 N.W.2d 583 (1963), this court held that the power to amend a comprehensive zoning ordinance must also arise from legislative delegation. As to the defendant city, such delegation is provided by Minn.St. 462,357, 7 which empowers all municipalities to adopt by ordinance comprehensive zoning regulations and thereafter to amend such ordinances. Since § 462.357, subd. 4, does not require that amendment be by ordinance, we are confronted with the narrow question decided by the trial court of whether the amending ordinance is merely an administrative act not subject to the referendum provisions of the city charter. 8

       [295 Minn. 27]

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It is the city's contention that use of a referendum is limited to acts of legislation; that amending a comprehensive zoning ordinance is an administrative act; and that, therefore, enactment of Ordinance No. 7787 does not invoke utilization of § 52 of the Duluth Home Rule Charter. To support this assertion, the city relies heavily upon Kelley v. John, 162 Neb. 319, 75 N.W.2d 713 (1956). In that case, the Supreme Court of Nebraska held (162 Neb. 324, 75 N.W.2d 716):

'For the reasons herein stated, the ordinance changing the classification of the property here involved from a residence classification to a business classification is administrative in character * * *.'

       Defendant city further suggests that Minneapolis-Honeywell Regulator Co. v. Nadasdy, 247 Minn. 159, 76 N.W.2d 670 (1956), is of value to show this court's previous adherence to the rule expressed in the Kelley decision.

       The authoritative value of Kelley, however, is highly questionable in view of the later decision in In re Application of Frank, 183 Neb. 722, 164 N.W.2d 215 (1969). Although the Supreme Court of Nebraska was able to dispose of the issue raised in that case on jurisdictional grounds, it did state...

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