Almquist v. Town of Marshan

• Citation: 245 N.W.2d 819,308 Minn. 52
• Decision Date: 02 April 1976
• Docket Number: No. 44599,44599
• Parties: Earle ALMQUIST, Respondent, v. TOWN OF MARSHAN, Appellant.
• Court: Supreme Court of Minnesota (US)

Page 819

245 N.W.2d 819

308 Minn. 52

Earle ALMQUIST, Respondent, v. TOWN OF MARSHAN, Appellant.

No. 44599.

Supreme Court of Minnesota.

April 2, 1976.

[308 MINN 52] Syllabus by the Court

1. A property owner does not have an absolute right to obtain from a town board a permit to use his land in the manner contemplated by an existing zoning ordinance. A moratorium on the issuance of such permits is valid if (a) it is adopted by the town board in good faith; (b) it is not discriminatory; (c) it is of limited duration; (d) it has for its purpose the development of a comprehensive zoning plan; and (e) the town board acts promptly to adopt such plan.

2. Where a property owner has taken steps to develop his land in reliance on, and consistent with, a town zoning ordinance, but is denied a building permit as a result of a subsequent ordinance declaring a moratorium on development pending adoption of a comprehensive zoning plan under which the owner's proposed development becomes a nonconforming use, the owner must show that he has suffered undue, unnecessary, and substantial hardship as a result of the delay before he is entitled to devote his property to such nonconforming use.

Dorsey, Marquart, Windhorst, West & Halladay and Edward J. Schwartzbauer and Robert L. Hobbins, Minneapolis, Harry P. Schoen, Hastings, for appellant.

Crawford, Anderson & O'Connor, W. St. Paul, Broeker, Bachman & Zerby and Steven R. Hedges, Minneapolis, Arata, Misuraca & Clement, Malcom A. Misuraca, Santa Rosa, Cal., Prof. Robert H. Freilich, Kansas City Law School, Kansas City, Mo., for respondent.

Stanley G. Peskar, St. Paul, for League of Minn. Municipalities, amicus curiae, seeking reversal.

Considered and decided by the court en banc.

OTIS, Justice.

This is an action brought by respondent, Earle Almquist, for a declaratory judgment requiring appellant, Town of Marshan, to issue plaintiff a special-use permit authorizing him to develop 26 2 1/2 acre lots for the construction of dwellings on 82 1/2 acres of land owned by him in Marshan Township, Dakota County. The trial court granted plaintiff the relief he sought. We reverse and remand for a new trial on the limited issue of whether the town's moratorium on development was unconstitutionally applied with respect to respondent.

At the outset, we feel compelled to observe that neither the authority which Almquist sought to obtain from Marshan nor the issues litigated in the trial court are clearly defined. We are accordingly handicapped at the appellate level in determining precisely what issues are before us. However, in the course of the extensive oral argument which we granted, two issues appeared to emerge. First, where a landowner has sought for 6 months to obtain approval by a municipality of a proposed plan or plat for development, does the municipality have the power thereafter to impose a 6-month moratorium on development pending the adoption of a comprehensive zoning plan? The trial court held that under these circumstances the owner had an 'absolute' right to rely on the zoning in effect at the time he made application for approval of his plan or plat. We reverse as to this issue and hold that, subject to the restrictions hereinafter discussed, a municipality does have the power to impose a moratorium of limited duration.

The second issue, which was not reached by the trial court, is whether, as applied to this landowner, the moratorium was valid or whether its effect on him had such harsh and unjust consequences as to constitute 'substantial prejudice' within the meaning Earle Almquist has since 1964 owned 750 acres of farmland in Marshan Township, south of the city of Hastings in Dakota County. In March 1972, he instituted proceedings to obtain permission from the Marshan Town Board to develop 82.5 acres by subdividing them into lots of 2 1/2 acres each. The property was at that time zoned 'P--O--C. Public, Open Development and Conservation and Reclamation Districts.' The ordinance further provided, in § IVb (Town of Marshan Zoning Ordinance, Ordinance No. 2, 1967):

of Hawkinson v. County of Itasca, Minn., 231 N.W.2d 279 (1975), which would require either that the moratorium not be applied to this landowner or, if applied, that he be compensated for any damages which result to him. We hold that the record before us does not support a finding of substantial prejudice; but, because the trial court limited the issue to 'whether or not the denial in the form of a moratorium is a reasonable police power measure necessary to the public safety, health or welfare of the community,' respondent may not have felt it necessary to present available evidence concerning the impact of the moratorium with respect to his particular situation. Accordingly, the new trial will be directed to that issue.

'Any of the following additional uses are permitted only if a special use permit therefor is secured as provided in Section 29 hereof.

'1. Non-farm one-family dwellings.'

Section XXIIa provided:

'1. P--O--C Districts. Twenty (20) acres for general farm dwellings and accessory buildings and two and one half (2 1/2) acres for dwellings on small berry and fruit farms and truck gardens, and for non-farm dwellings.'

Section XXIXd provided:

'A special use permit shall be applied for and shall be issued for such buildings and uses as are permitted in various districts only after securing such a special use permit, as provided herein. The zoning administrator shall receive such applications, shall refer them to the board of appeals for approval or disapproval, and if approved, shall refer them to the Town Board. The Town Board upon approval shall order the zoning administrator or the building inspector to issue such special use permits after securing written agreements, or other required assurance of faithful observance of such conditions as may have been established in the Town Board action.'

It is of some significance that throughout much of the process which followed, Almquist was without legal counsel. He did not actually apply for a special-use permit until October 17, 1972, when the town adopted its moratorium. What he sought was in effect a preliminary approval of a plan or plat on which ultimately a special-use permit might be predicated. The remarks of counsel for the town in his presentation to the trial court at the conclusion of the evidence disclose the confusion and uncertainty of the posture of Almquist's application. Counsel pointed out to the trial court that Almquist was not asking approval of a plat but only approval of a plan. There was no request by him for a special-use permit to construct a nonfarm one-family dwelling. He was free to sell 2 1/2-acre lots, leaving to purchasers the responsibility for obtaining permits. It was counsel's position that the real purpose of the procedure was to induce the town to accept and maintain roads which he planned to open in the proposed development.

In his presentation to the trial court, counsel for Almquist stated that he was asking for permission to go ahead with the development plan without platting since the ordinance did not require it. He reiterated the relief sought in the complaint--to proceed with the proposed development with or without a plat and without being restricted by the October 17 moratorium. No mention of a special-use permit was made either in the plaintiff's prayer for relief or in his counsel's closing argument other than his statement to the court that he was asking 'for that approval necessary to go ahead with this project,' because if nothing were done except to construct roads, 'there is no It appears without dispute that between March 7 and October 17, 1972, Almquist met with the town planning commission on three occasions and with the town board on three other occasions. During that time he retained a land surveyor who assisted him in drafting the plan for the proposed development. However, apart from the time and effort which he himself expended, he testified that his actual costs amounted to only $3,000.

indication that he will ever get a building permit to build a home.'

After considerable correspondence and discussion with the planning commission and town board, and after a number of revisions of the proposed plan, the board had no further objection to the plan and Almquist was permitted to present his application to the town board meeting on October 17, 1972. It was at that meeting when, for the first time, he sought a special-use permit. ¹ The town board at that meeting neither granted nor denied the application but instead adopted a moratorium on further development for a 6-month period, ending April 17, 1973. The moratorium was subsequently extended for 1 month, and the new zoning ordinance adopted on June 19, 1973.

On June 19, 1973, the township of Marshan adopted a new zoning ordinance and a 'Community Development Plan.' ² Under the new ordinance, Almquist's property is zoned 'A--II Agricultural Preservation.' The purposes, permitted uses, and performance standards under A--II are as follows:

'PURPOSE

'Agricultural Preservation areas are established in rural areas for the purpose of: protecting viable agricultural lands from non-farm influence; retaining valuable areas for conservational purposes; preventing scattered non-farm growth; preserving a secure economy in governmental expenditures for public services, utilities and schools and deterring abuse of water and other natural resources of the community.

'PERMITTED USES

'Agricultural Land Uses.

Farmstead Residences.

Forestry and Nurseries.

Seasonal Produce Stands.

Telephone, Telegraph, and Power Transmission Lines and Necessary Appurtenant Structures.

Public Recreation.

'A--II PERFORMANCE STANDARDS

'5. Lot Area Regulations:

'a. Every lot or plot of land on which a one family dwelling is erected shall contain an area of not less than ten (10) acres on farmable land.

'b. Every lot or plot of land on non-farmable land on which a...