Minneapolis-Honeywell Regulator Co. v. Nadasdy

• Decision Date: 20 April 1956
• Docket Number: No. 36937,MINNEAPOLIS-HONEYWELL,36937
• Citation: 76 N.W.2d 670,247 Minn. 159
• Parties: REGULATOR COMPANY, Plaintiff-Relator, Respondent, v. Carl NADASDY, individually and as Mayor of the Village of Golden Valley, et al., Defendants-Respondents, Appellants, and Golden Valley Area Development Association et al., Intervenors, Respondents.
• Court: Minnesota Supreme Court

Page 670

76 N.W.2d 670

247 Minn. 159

MINNEAPOLIS-HONEYWELL REGULATOR COMPANY, Plaintiff-Relator, Respondent, v. Carl NADASDY, individually and as Mayor of the Village of

Golden Valley, et al., Defendants-Respondents, Appellants,

and

Golden Valley Area Development Association et al.,

Intervenors, Respondents.

No. 36937.

Supreme Court of Minnesota.

April 20, 1956.

Syllabus by the Court.

1. Where the refusal of a village council to grant a building permit is predicated solely on a ground not warranted by law, mandamus is a proper remedy to compel the issuance of such a permit.

2. The referendum provision in M.S.A. § 462.01 held to apply only to a comprehensive type of zoning ordinance and not to an alteration or amendment to such an ordinance.

Stanley D. Kane, Minneapolis, for appellants.

Dorsey, Owen, Barker, Scott & Barber, Minneapolis, for plaintiff-respondent.

Diessner, Wurst & Bundlie, Minneapolis, for intervenors-respondents.

DELL, Chief Justice.

This is an appeal from an order and also the judgment of the District Court of Hennepin County granting a peremptory writ of mandamus.

The facts are not in dispute. On September 20, 1955, the village council of Golden Valley adopted a comprehensive zoning code in which the tract of land involved in the instant case, consisting of approximately 105 acres, was included within a district classified as 'open development.' An ordinance altering and amending the zoning code was adopted by the village council on February 7, 1956. Under the amendment the tract here involved was rezoned and established as an 'industrial zoning district.'

Prior to February 7, 1956, plaintiff acquired and paid for certain options giving it the right, until April 30, 1956, to purchase this tract of land. If not exercised by that date, the plaintiff was to forfeit the price paid for said options.

On February 17, 1956, a petition, which it is claimed was authorized under M.S.A. § 462.01 and signed by the number of freeholders required by that statute, was filed with the village clerk. The petition sought to have the February 7 amendment to the zoning code submitted to the voters of the municipality for their approval, which right it was claimed was provided for under the provisions of § 462.01. On February 23, 1956, the plaintiff applied for a building permit authorizing the construction of an industrial building on the tract in question and submitted along with its application appropriate plans of the project as well as a certified check in the sum of $4,601.15 in payment of the permit fee. On that same day, at a meeting of the village council, a resolution was passed setting forth that, even though the application was in proper form and complied with the building and zoning codes of the village, the application had to be and was denied because the council was in doubt as to its right to grant the building permit in view of the referendum petition filed with the village clerk on February 17.

Thereafter, on petition of the plaintiff, an alternative writ of mandamus was issued by the District Court of Hennepin County directed to the village of Golden Valley, its mayor, trustees, village clerk and chief building inspector, and commercial building inspector, as defendants, ordering them to issue a building permit to the plaintiff or to show cause why that should not be done. Defendants answered and requested that the alternative writ of mandamus be dismissed. The Golden Valley Area Development Association and Emery C. Swanson, John H. Sullivan, and Joe D. Perkins, Jr., individually and as officers of said association, thereupon moved for leave to intervene as defendants, which motion was granted. The intervenors answered demanding that the writ be quashed and the petition denied. The district court, after a hearing, ordered that a peremptory writ of mandamus be issued directed to the defendants commanding them to issue a building permit to the plaintiff in accordance with its application for such permit as filed with the village council. Judgment having been so entered, this appeal by defendants followed.

1. The intervenors contend that under the circumstances of this case mandamus was not the proper remedy with which to compel the municipality to issue the building permit. We do not agree with this contention. Here the sole ground upon which the village council based its refusal to grant the permit was its doubt as to its right to grant such a permit due to the fact that a referendum petition, purportedly authorized under § 462.01, had been filed within the period specified by that statute. It is well established that mandamus will not lie to control the exercise of discretion of municipalities and other governmental bodies or boards having the duty of making decisions involving judgment and discretion. ¹ However, in the instant case, if the referendum petition authorized under § 462.01 does not apply to amendments or alterations to a zoning ordinance, then the refusal of the village council was not based on a sound discretionary reason but, rather, was predicated on an invalid ground and one not warranted by law. In other cases similar to the instant case, we have held that mandamus was the proper remedy to compel the issuance of a building permit or license. ²

The intervenors contend that mandamus will not lie in this case because there was another proper, speedy, and adequate remedy at law available, ³ namely, certiorari. In support of their position they cite Zion Evangelical Lutheran Church of Detroit Lakes v. City of Detroit Lakes, 221 Minn. 55, 21 N.W.2d 203, in which this court affirmed an order sustaining a demurrer to an alternative writ of mandamus. There we held that, on its face, the reason given by the city council for the denial of the building permit, namely that if it were granted it would increase the automobile traffic hazard, was substantial. The decision in that case, however, turned solely on the narrow question of the sufficiency of the petition for, and the alternative writ of, mandamus and is by no means controlling of the instant case. ⁴

The intervenors further contend that the plans submitted by the plaintiff along with their application were not Final plans and specifications as required by the ordinances of the village of Golden Valley. It is true that the writ of mandamus will not be granted where it is shown that the petitioner has not complied with the provisions of the statute or ordinance which are conditions precedent to the assertion of the right demanded. ⁵ Here, however, there was no showing that the plans submitted by the plaintiff did not comply with the village ordinances. To the contrary, Royce W. Owens, village clerk of Golden Valley and chief building inspector of the village, specifically testified that the plans submitted by the plaintiff were sufficient to meet the requirements imposed by the village for the issuance of a building permit. Moreover, in its resolution denying plaintiff's application for a building permit, the village council stated that the application and plans were in proper form and conformed in all respects with the building codes of the village. Its sole and only ground for denying the application was the doubt raised by the filing of the referendum petition. We conclude, therefore, that, if the amending zoning ordinance passed by the council on February 7, 1956, was not suspended by the referendum petition filed under § 462.01, then the council's refusal to grant the permit was not warranted by law and mandamus was the proper remedy to compel the issuance of a building permit to the plaintiff.

2. The basic issue presented by this appeal is whether the referendum-election provision of § 462.01 applies solely to a comprehensive type of zoning ordinance or, as the intervenors contend, applies also to an altering or amending ordinance such as the one involved in the instant case. The statute reads as follows:

'For the purpose of promoting health, safety, order, convenience, prosperity, and general welfare, any city of the third or fourth class or any village in this state, acting by or through its governing body, may by ordinance regulate the location, size, use, and height of buildings, the arrangement of buildings on lots, and the density of population within such city or village; may make different regulations for different districts thereof; and may acquire or prepare and adopt a comprehensive plan for the future physical development and improvement of such city or village, in accordance with the regulations made as aforesaid, and may thereafter alter the regulations or plan, such alterations to be made only by a two-thirds vote of all the members of the governing body of such city or village. After the adoption of an ordinance hereunder and within ten days after its publication such ordinance may be suspended in effect upon the filing of a petition signed by resident freeholders of the municipality in a number equal to not less than ten per cent of the legal voters of the municipality requesting That the question of permitting the council to zone the city be submitted to the electors at a general or special election, and the ordinances shall not again become effective until a majority of the electors voting on the question approve the proposition permitting the governing body To zone the municipality.' (Italics supplied.)

This statute has remained substantially the same since its enactment in 1929 ⁶ except for the last sentence which prior to 1935 provided that the provisions of the section were not to be made effective 'until the proposition of the enactment of such regulations' was First submitted to a vote of the legal voters of the municipality and approved by a majority of the electors so voting. ⁷

While the referendum provision of the statute has not heretofore been construed by this court, ⁸ we believe that the reasonable and proper construction of the statute supports the position of the...