Carter v. City of Salina

Decision Date03 September 1985
Docket NumberNo. 84-1546,84-1546
Citation773 F.2d 251
PartiesThomas W. CARTER and Mary M. Carter, Plaintiffs-Appellants, v. CITY OF SALINA and the Salina City Council, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Peter Grundfossen of Kapaloski, Kinghorn & Peters, Salt Lake City, Utah, for plaintiffs-appellants.

D. Michael Jorgensen, Salina, Utah, for defendants-appellees.

Before BARRETT and SEYMOUR, Circuit Judges, and BALDOCK, * District Judge.

BARRETT, Circuit Judge.

Plaintiffs-Appellants Thomas W. Carter and Mary M. Carter, husband and wife (Carters or Appellants), appeal from the district court's order, following trial to the court on stipulated facts, denying them injunctive relief which, if granted, would have permitted Carters to sell certain property they own in the City of Salina, Utah, for restaurant-commercial purposes in contravention of the terms of a void zoning ordinance. Jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. Sec. 1332. A review of the agreed-to facts should aid in focusing on the issue on appeal.

FACTS

Carters, then and now residents of Pasadena, California, in 1963 purchased real property in City of Salina, Utah (Appellee or City), upon which was situated an old building, previously used as a church and a school. At that time, City was unzoned. In 1973, City purported to adopt a zoning ordinance which zoned the entire City. Under this ordinance, Carters' property was classified as residential. Carters were living in California at that time and did not receive any notice of the zoning. City failed to comply with mandatory notice requirements set forth in Utah Code Ann. Sec. 10-9-5 (1973), thus rendering the 1973 ordinance void for failure to comply with procedural due process.

In 1981, Carters, without knowledge of the enactment of the void 1973 zoning ordinance, sought to sell their property in City through a real estate agent who recommended that they list same as commercial in order to attract a higher sales price. It was then that Carters learned that the zoning ordinance had been enacted. Carters then applied to the City for a rezoning in order that their property be classified as commercial. In early 1982, a potential purchaser offered Carters $90,000 for their property in City on the condition that it be rezoned from residential to commercial in order that it be used for a restaurant. City denied Carters' application. The offer to purchase Carters' property for $90,000 was withdrawn. This lawsuit followed. Carters sought monetary relief from City and the Salina City Council in amount of $90,000 with interest at 12% from date of April 5, 1982 (later withdrawn), and an order setting aside the City ordinance adopted in 1973 as void, or, in the alternative, an order requiring City to change the zoning classification of Carters' property from residential to commercial appropriate for a restaurant or similar use.

District Court's Decision

The court observed that Carters' prayer of relief was opposed by City which argued that the proper remedy would be to provide City with time to re-enact a zoning ordinance, and that the remedy sought by Carters was barred by the doctrines of estoppel and waiver. The Court did not render any findings/conclusions on the issues of estoppel and waiver. This defense is not seriously advanced by City on this appeal and thus shall not be addressed by this court.

The district court, in holding against the Carters, in pertinent part stated:

The Court has carefully considered the arguments and authorities cited by counsel and is convinced that plaintiffs are not entitled to the relief they seek. The record is devoid of any evidence which would justify this court in determining that the proposed use would be in the public interest and enjoining Salina City from interfering with that proposed use. To the contrary, the record indicates that the proposed use was presented to the City Council of Salina City and the use was denied due at least in part to the opposition of city residents and property owners. See Plaintiffs' Complaint, Exhibit 2.

The case relied on by plaintiffs does not stand for a different proposition. In Sinclair [Sinclair Pipe Line Company v. Richton Park, 167 N.E.2d 406 (Ill.1960) ], the court held that a zoning regulation was void as it applied to plaintiff's property and ordered that plaintiff be granted a variance ... Sinclair is clearly limited by the decision's recitation of the detailed evidence ... and the court's statement that "it is appropriate for the court to avoid [the difficulties of further litigation] by framing its decree to the record before it, and particularly with reference to the evidence offered at the trial." Id. In the present case, detailed evidence was not presented from which this court could determine that the proposed use should be granted. Moreover, the court has serious reservations about the propriety of ordering such a use when the legislative body charged with the determination of such matters has reached an opposite result in an apparent response to public outcry.

... the zoning ordinances of Salina City adopted pursuant to the 1973 published notice are void ... and ... the plaintiffs' request for an injunction permitting the proposed use is denied.

R., Vol. I, pp. 63, 64.

Appellants' Contentions

On appeal, Carters contend that on this record the district court erred in (1) failing to find that Carters are entitled to sell their property for restaurant purpose as a matter of right, (2) failing to find that City illegally interfered with their right, as landowners, to sell their property when City required a favorable zoning ordinance amendment for landowners, and (3) attempting to determine from the record whether it would be in the public interest for Carters' property in City to be used for restaurant purposes.

Discussion and Decision

Carters contend that the issue presented relative to the City zoning ordinance is purely procedural in nature and that, accordingly, the district court erred in analyzing the case in a substantive sense, i.e., whether it would be in the public interest to permit the Carter property to be sold for commercial purposes (a restaurant). In reaching the substantive issue, the district court found that it would not be in the public interest to grant the relief requested by Carters because there was no evidence in support of such use, whereas there was evidence that there existed "public outcry" in opposition thereto. The trial court's findings of fact are not at issue. The challenges posed on appeal relate to the district court's interpretation and/or application of controlling state law. We have held that Fed.R.Civ.P. 52(a) applies under these circumstances. Loveridge v. Dreagoux, 678 F.2d 870 (10th Cir.1982); United States v. Hunt, 513 F.2d 129 (10th Cir.1975); Manufacturer's Nat. Bank of Detroit v. Hartmeister, 411 F.2d 173 (10th Cir.1969). This case, the parties agree, is unique. No Utah law was cited or relied upon by the district court.

It is the general rule that zoning ordinances are in derogation of common-law property rights and find their authority through the state police power; accordingly, municipalities and other political subdivisions must scrupulously comply with statutory requirements, including notice and hearing, in order to provide due process of law. Melville v. Salt Lake County, 536 P.2d 133 (Utah, 1975); Tolman v. Salt Lake County, 20 Utah 2d 310, 437 P.2d 442 (1968); 101A, C.J.S., Zoning and Land Planning, Secs. 12, 13; 56 Am.Jur.2d, Municipal Corporations, Sec. 346; 82 Am.Jur.2d, Zoning and Planning, Secs. 49, 50, 51; R. Anderson, 1 American Law of Zoning, Sec. 4.11 (2d Ed.1976); 7 Rohan, Zoning and Land Use Controls, Sec. 50.01(1)(a); Rathkopf, The Law of Zoning and Planning, Vol. I, Sec. 2.02(2); Powell on Real Property, Vol. 6, Sec. 871.6(3) (due process requirements to non-residents relative to zoning notices and procedures); Annot., 96 A.L.R.2d 449, 455. Ordinances which fail to comply with the state enabling statutes requiring notice and hearing are void. Melville v. Salt Lake County, supra; Tolman v. Salt Lake County, supra; Theobald v. Board of County Com'rs, Summit County, 644 P.2d 942 (Colo.1982); Hallmark Builders and Realty v. City of Gunnison, 650 P.2d 556 (Colo.1982); McIntyre v. Mohave County, 127 Ariz. 317, 620 P.2d 696 (1980); Morland Development Co., Inc. v. City of Tulsa, 596 P.2d 1255 (Okl.1979); Schoeller v. Board of County Com'rs of Park County, 568 P.2d 869 (Wyo.1977); State ex rel. Christian, Spring, Sielbach and Associates v. Miller, 169 Mont. 242, 545 P.2d 660 (1976). Non-compliance with statutory requirements relating to notices and hearings are procedural defects jurisdictional in nature. Such procedural infirmities cannot be overlooked and the fact that such an ordinance has been "on the books" and in effect for a long period of time does not instill life into an ordinance which was void at its inception. Such an ordinance is of no effect. In Nesbit v. City of Albuquerque, 91 N.M. 455, 575 P.2d 1340 (1977) the court held that by failing to follow statutory procedures in the promulgation of zoning ordinances, due process was violated and no subsequent act could correct the defect. See also Miller v. City of Albuquerque, 89 N.M. 503, 554 P.2d 665 (1976); Glaspey & Sons, Inc. v. Conrad, 83 Wash.2d 707, 521 P.2d 1173 (1974); Pyramid Corp. v. DeSoto County Board of Supervisors, 366 F.Supp. 1299 (N.D.Miss.1973); Bowling Green-Warren County Airport Bd. v. Long, 364 S.W.2d 167 (Ky.1963) (A void ordinance for want of compliance with requisite statutory requirements as to notice and public hearing entitles the property owners within the alleged zone to use their property as they see fit); Hart v. Bayless Investment & Trading Company, 86 Ariz. 379, 346 P.2d 1101 (1960) (the failure to comply with jurisdictional notice and hearing conditions of the Zoning Act rendered the subject...

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