Anderson v. City of Minneapolis

• Decision Date: 05 June 1970
• Docket Number: No. 42140,42140
• Citation: 178 N.W.2d 215,287 Minn. 287
• Parties: Jack E. ANDERSON, et al., Respondents, v. CITY OF MINNEAPOLIS, Appellant.
• Court: Minnesota Supreme Court

Page 215

178 N.W.2d 215

287 Minn. 287

Jack E. ANDERSON, et al., Respondents, v. CITY OF MINNEAPOLIS, Appellant.

No. 42140.

Supreme Court of Minnesota.

June 5, 1970.

Syllabus by the Court

On September, 6, 1967, plaintiff property owners received a building permit from the city of Minneapolis, issued by one of its employees. On September 21, 1967, the permit was canceled upon the ground that the structure involved was a kind not permitted under the zoning ordinances. In the interval, plaintiffs incurred approximately $900 in nonrecoverable construction expense. No notice of the claim was given, as required by Minn.St. 466.05, until January 25, 1968. An application for a variance was submitted to the appropriate agency of the municipal corporation and denied on January 3, 1968. Held:

(1--2) Plaintiffs have no cause of action for the damages sustained as against the city of Minneapolis because if the issuance of the permit was not clearly illegal, the act of its employee in issuing it involved elements of discretion and judgment precluding recovery by reason of § 466.03, subd. 6. If the issuance of the permit was clearly illegal, so that no discretion or judgment should have been exercised by the city's employee, plaintiffs cannot recover because in such event they would be charged with notice of this illegality.

(3) Minn.st. 466.05 precludes recovery as against a municipal corporation on account of a claim, notice of which was not presented within 30 days after the alleged loss or injury.

Keith M. Stidd, City Atty., Robert J. Alfton, Asst. City Atty., Minneapolis, for appellant.

Cochrane & Bresnahan, St. Paul, for respondents.

Heard before NELSON, MURPHY, SHERAN, PETERSON and JAMES F. MURPHY, JJ.

OPINION

SHERAN, Justice.

Appeal from an order of the municipal court denying defendant's motion for judgment notwithstanding the verdict or a new trial.

Plaintiffs, owners of real estate, sued the city of Minneapolis for damages which resulted when a building permit issued for the construction of a garage on September 6, 1967, was canceled as of September 21, 1967, upon the ground that the structure involved was of a kind not permitted under the applicable provisions of the Minneapolis zoning ordinance. A jury returned a verdict for plaintiffs in the amount of $910. This appeal followed the denial of the posttrial motion.

We are compelled to reverse for these reasons:

DB [094][1,2 (1) The act of an employee of the city in issuing the building permit in a doubtful case involved an exercise of discretion in the sense that the city's employee had to make a judgment as to whether plans submitted in support of the application for the permit constituted a permissible use of the property in the area involved. State ex rel. Howard v. Village of Roseville, 244 Minn. 343, 70 N.W.2d 404; Kiges v. City of St. Paul, 240 Minn. 522, 62 N.W.2d 363; Lowry v. City of Mankato, 231 Minn. 108, 42 N.W.2d 553; Roerig v. Houghton, 144 Minn. 231, 175 N.W. 542; Lerch v. City of Duluth, 88 Minn. 295, 92 N.W. 1116. A claim based upon performance of, or failure...