O'Brien v. City of Saint Paul

• Court: Minnesota Supreme Court
• Writing for the Court: Heard before KNUTSON; OTIS
• Citation: O'Brien v. City of Saint Paul, 173 N.W.2d 462, 285 Minn. 378 (Minn. 1969)
• Decision Date: 26 December 1969
• Docket Number: No. 41458,41458
• Parties: Michael O'BRIEN et al., Respondents, v. CITY OF SAINT PAUL, Respondent, Service to Builders, Inc., et al., Appellants.

Page 462

173 N.W.2d 462

285 Minn. 378

Michael O'BRIEN et al., Respondents, v. CITY OF SAINT PAUL, Respondent Service to Builders, Inc., et al., Appellants.

No. 41458.

Supreme Court of Minnesota.

Dec. 26, 1969.

Syllabus by the Court

The provisions of Minn.St. 462.357, subd. 5, and St. Paul Legislative Code, § 64.06, requiring the consent of adjacent owners as a condition to the rezoning of property which has not been the subject of a 40-acre survey, do not unlawfully delegate legislative authority to such property owners and are, therefore, constitutional.

Hyam Segell, for appellants.

Lewis L. Anderson and R. E. Low, St. Paul, amici curiae.

Firestone, Fink, Krawetz, Miley, Maas & Noonan, St. Paul, for O'Brien.

Joseph P. Summers, City Atty., St. Paul, for City of St. Paul.

Heard before KNUTSON, C.J., and NELSON, MURPHY, OTIS, and FRANK T. GALLAGHER, JJ.

OPINION

OTIS, Justice.

These proceedings seek to enjoin a rezoning of residential property which would permit the construction of apartment buildings without the consent of adjoining owners required by Minn.St. 462.357, subd. 5, and St. Paul Legislative Code, § 64.06.

The only issue is whether the statute and ordinance are constitutional. Defendants Service to Builders, Inc., and Marvin Perlman appeal from a judgment holding these provisions valid and prohibiting the proposed rezoning.

On April 17, 1967, appellant Perlman filed a petition with the city clerk of St. Paul pursuant to St. Paul Legislative Code, § 64.06, requesting that Lots 3 through 14, Block, 1, and Lots 1 through 11, Block 2, Granport Addition to the city of St. Paul, be rezoned from 'A' Residence District to 'C' Residence District. The effect of such rezoning would be to permit construction of apartment buildings on property previously restricted to single- or two-family dwellings.

The petition was regular in all respects except that the petitioners did not obtain written consent of the owners of two-thirds of the several descriptions of real estate situated within 100 feet of the property sought to be rezoned. Both St. Paul Legislative Code, § 64.06, and the enabling act, Minn.St. 462.357, subd. 5, require the filing of such consent. Notwithstanding, the St. Paul City Council adopted an ordinance which rezoned the property as requested. The ordinance contained a waiver of the consent requirement and provided the ordinance would take effect without such consent.

Plaintiffs in this action are owners of single-family residences located in proximity to the property affected by the ordinance. They seek a declaratory judgment and injunction, asserting that the rezoning is arbitrary, capricious, unreasonable, and discriminatory, without any substantial relation to the public health, safety, morals, and general welfare, and contrary to § 462.357, subd. 5, and St. Paul Legislative Code, § 64.06. The trial court found that because of failure to file the required consents, the council was without jurisdiction and its action in adopting the ordinance was void.

Minn.St. 462.357, subd. 5, ¹ prescribes the procedure for amending the zoning ordinances of cities of the first class. Where the council does not conduct a tract study of at least 40 acres, such amendments can be made only after the written consent of the owners of two-thirds of the several descriptions of real estate situate within 100 feet of the real estate affected is filed with the city clerk. It is the claim of appellants that this constitutes an unlawful delegation of legislative authority to private persons and is therefore unconstitutional.

Appellants and A.C.E. Equipment Company, in its brief amicus curiae, rely on State ex rel. Foster v. City of Minneapolis, 255 Minn. 249, 97 N.W.2d 273. That was an action for a writ of mandamus to compel the city to issue a permit for the construction of an office building. The land was zoned commercial at the time relators purchased it. Subsequently, two-thirds of the adjoining property owners within 100 feet of the tract filed written 'consents,' prompting the city to rezone the land residential. The court held the consent clause ² invalid as applied to those facts. While the language of the opinion is broad, its effect was strictly limited on reargument. It has no application to the case now before us. There, the adjoining owners attempted to impose a more restrictive use on adjoining property, a function not contemplated by the statute and one which the owners were clearly without power to perform.

Plaintiffs' real estate has been zoned residential since 1922 and has been improved by the construction of substantial homes. The zoning which has thus applied for 47 years restricts property use to single-and two-family dwellings and to purposes which do not include erection of apartment buildings. Minn.St. 462.357, subd. 5, and St. Paul Legislative Code, § 64.06, do not vest in adjoining property owners the power to legislate or Impose restrictions but confer the right to Waive restrictions which have already been established by the city.

Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472, holds that where an ordinance prohibits specified uses but permits restrictions to be modified with the consent of the persons most affected, it is valid. The United States Supreme Court there said that owners may not impose restrictions but may remove them without violating constitutional principles against the delegation of legislative power. This is precisely the situation in the case at hand.

In Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 122, 49 S.Ct. 50, 52, 73 L.Ed. 210, 214, the Supreme Court held unconstitutional an ordinance which prevented construction of an old people's home without the consent of the owners of two-thirds of the adjacent property, saying:

'* * * We find nothing in the record reasonably tending to show that its construction or maintenance is liable to work any injury, inconvenience or annoyance to the community, the district or any person.'

There, the court pointed out that the home would be 280 feet from the street, hidden by trees and shrubs, and would cover only 4 percent of the tract involved. In contrast to the type of building considered in the Roberge case, the court in Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 394, 47 S.Ct. 114, 120, 71 L.Ed. 303, 313, has characterized apartment buildings as coming 'very near to being nuisances':

'* * * With particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in such sections very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities,--until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed. Under these circumstances, apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances.'

The rules enunciated by the authorities and by a number of courts with respect to consent provisions approve their application in cases such as that under consideration. 1 Rathkopf, The Law of Zoning and Planning, c. 29, states that such a consent provision does not involve a delegation of legislative power but may be construed as a waiver by adjoining owners of a provision of the prohibition enacted for their benefit.

1 Yokley, Zoning Law and Practice (3 ed.) § 7--13, p. 358, describes the rule as follows:

'* * * (I)f the action of property owners has, of itself, the effect of legislation, such action constitutes an unlawful delegation of legislative power. If, on the other hand, the consents are used for no purpose other than to Waive a restriction that has already been created by legislative authority and which creation made provision for such a waiver, such consents are generally held to be constitutional.'

The same principle is expressed in 2 Metzenbaum, Law of Zoning (2 ed.) c. X-b-1, p. 1067, thus:

'If the action of the property owners has the effect of Legislation--if it Creates the restriction or prohibition, then it is deemed to fall within the forbidden 'delegation of legislative power.'

'On the other hand, if the consents are used for no greater purpose than to Waive or Modify a restriction which the Legislative authority itself Has lawfully Created and in which creation it has made provision for waiver or modification, then such consents are generally regarded as being within constitutional limitations.'

The validity of similar ordinances has been upheld in Cady v. City of Detroit, 289 Minn. 499, 286 N.W. 805, and in Huff v. City of Des Moines, 244 Iowa 89, 56 N.W.2d 54. Although dealing with property rezoned for trailer camps, these cases held that consent provisions were not a delegation of legislative power if their only purpose was to waive a restriction which the city itself had created.

Three other jurisdictions have...