City of Fargo, Cass County v. Harwood Tp.

• Citation: 256 N.W.2d 694
• Decision Date: 27 July 1977
• Docket Number: No. 9312,9312
• Parties: CITY OF FARGO, CASS COUNTY, North Dakota, a Municipal Corporation, Plaintiff and Appellant, v. HARWOOD TOWNSHIP, Harwood Township Board of Supervisors, and Harwood Township Zoning Commission, Defendant and Appellee. Civ.
• Court: United States State Supreme Court of North Dakota

Page 694

256 N.W.2d 694

CITY OF FARGO, CASS COUNTY, North Dakota, a Municipal Corporation, Plaintiff and Appellant, v. HARWOOD TOWNSHIP, Harwood Township Board of Supervisors, and Harwood Township Zoning Commission, Defendant and Appellee.

Civ. No. 9312.

Supreme Court of North Dakota.

July 27, 1977.

Rehearing Denied Aug. 19, 1977.

Solberg, Stewart & Boulger, Fargo, for plaintiff and appellant; argued by Wayne O. Solberg, Fargo.

Dosland, Dosland, Nordhougen & Mickelberg, American Bank and Trust Company Building, Moorhead, Minn., Attys. for defendant and appellee; argued by J. P. Dosland, Moorhead, Minn.

SAND, Justice.

We are called upon in this case to determine whether a municipality proposing to locate a sanitary landfill on land outside its city limits is exempt from the zoning regulations of the township in which the property is located. We have concluded that it is not.

This question comes to us on appeal from the Cass County district court, first judicial district, where a declaratory judgment action resulted in judgment for Harwood Township.

In 1973 the City of Fargo purchased approximately 1360 acres of land in Harwood Township outside its city limits. The tract had been owned previously by the Holly Sugar Company, purportedly as the contemplated site for a future sugar beet processing plant. Fargo acquired the land for use as a sanitary landfill. Its existing landfill had only about two years of use remaining.

At the time the land was purchased, Harwood had a zoning ordinance in which all publicly owned property was classified as a public district and which authorized all uses permitted by law except sewage lagoons and public nuisances. During and shortly after Fargo's negotiation and purchase of the property, the Harwood Township board of supervisors re-examined its zoning regulation and ultimately adopted a new ordinance providing for agricultural, residential, commercial, and industrial uses. Landfills were prohibited in all but the industrial zone and then only with a conditional use permit. The land acquired by Fargo was zoned as residential and agricultural under the new ordinance.

The Fargo city commissioners petitioned Harwood Township to reclassify the area in question as industrial and to grant Fargo a conditional use permit. After a hearing, Fargo's petition was denied. Fargo did not appeal from that decision but commenced a declaratory judgment action to determine whether the Harwood Township zoning regulations were applicable to the property in question.

The district court determined that the City of Fargo was not exempt from the township zoning regulations and the City appealed from that judgment.

The City of Fargo argued on appeal that Harwood's zoning regulations ought not prevent it from locating a landfill in an agricultural or residential district because the power of eminent domain gave it a superior right in choice of a site. The property was acquired by purchase rather than condemnation, but Fargo contends that the authority to condemn, even though not exercised, invokes inherent superiority.

The general powers of municipalities are set out in Chapter 40-05, North Dakota Century Code, and in Section 40-05-01(55), it is provided that municipalities have the power to acquire property by purchase, condemnation, and other means within or without the corporate limits for all purposes authorized by law or necessary to the exercise of any power granted. Similarly, home rule cities, like Fargo, have the power under § 40-05.1-06(1) to acquire property within or without the corporate limits by eminent domain if so provided in their charter and implemented through ordinances.

More specific authority relating to waste disposal is found in § 40-34-01, NDCC, which reads:

"Any municipality in this state, either individually or jointly by agreement, may own, acquire, construct, equip, extend, and improve, operate, and maintain, either within or without the corporate limits of the municipality, intercepting sewers, including pumping stations, a plant or plants for the treatment, purification, and disposal in a sanitary manner of the liquid and solid wastes, sewage, and night soil of the municipality, or a plant or system for the disposal of the garbage thereof, and may issue bonds therefor as herein prescribed. Any municipality may acquire by gift, grant, purchase, or condemnation necessary lands therefor, either within or without the corporate limits of the municipality and within or without the state of North Dakota. . . ."

Although these statutes clearly provide for exercise of the power of eminent domain, they do not explicitly authorize immunity from zoning regulations when the power is exercised. Nor do the statutes granting zoning power to townships require that it be superseded by the power of eminent domain exercised by a municipality. Harwood Township derives its zoning power from § 58-03-01, NDCC, which allows it to establish one or more zoning districts "for the purpose of promoting the health, safety, morals, or the general welfare." Such zoning must be accomplished in accordance with a comprehensive plan. We do not find in Chapter 58-03 an exception or exemption of the type that would be applicable to Fargo's action. The relevant statutes do not indicate, therefore, which interest should prevail.

A considerable number of courts have resolved similar conflicts of local governmental authority through use of the "governmental-proprietary function" test, which entitles a governmental entity to immunity from zoning regulations if the property is to be used in furtherance of a governmental, rather than a proprietary function. When the use is merely proprietary, the local entity is subject to the same restrictions as a private corporation. See, e. g., City of Scottsdale v. Municipal Court of Tempe, 90 Ariz. 393, 368 P.2d 637 (1962); Nehrbas v. Incorporated Village of Lloyd Harbor, 2 N.Y.2d 190, 159 N.Y.S.2d 145, 140 N.E.2d 241 (1957); Hewlett v. Hempstead, Sup., 133 N.Y.S.2d 690 (1954).

For several reasons, this test has been increasingly criticized. It is said to be irrelevant because the immunity concept was developed to limit the effect of governmental immunity in tort cases and is inappropriate for resolution of zoning conflict. See, O'Connor v. City of Rockford, 3 Ill.App.3d 548, 279 N.E.2d 356 (1972); Seward County Board of Commissioners v. City of Seward, 242 N.W.2d 849 (Neb.1976); and State ex rel. Askew v. Kopp, 330 S.W.2d 882 (Mo.1960).

The test has also come under attack for vagueness and difficulty of application, as there are no clear rules to determine when a function is a governmental one. Even some courts using the test concede that the distinction is not an easy one to make. See Nehrbas, supra. The existence of a division of authority as to whether waste disposal facilities are governmental or proprietary illustrates this difficulty.

The City of Fargo acknowledges that the governmental-proprietary-function test is inflexible and outdated and appears to concede that it was properly rejected by the trial court. Moreover, this test is generally not relied upon when a governmental unit seeks exemption from zoning regulations outside its territorial limits rather than from its own zoning ordinances. Fargo argues, however, that it is nevertheless exempt from Harwood's zoning regulations based upon the inherent superiority of the power of eminent domain. Both State ex rel. Askew v. Kopp, supra, and Seward, supra, characterize eminent domain as the superior power and hold this superiority to be independently sufficient to override zoning regulations. In Askew, as in the instant case, the land was not actually acquired through exercise of eminent domain but existence of the right to condemn was considered determinative, not whether it was exercised. The rationale used by most jurisdictions adopting this rule is that a municipality is acting as agent of the State and that zoning powers cannot be allowed to frustrate the absolute power of eminent domain possessed by the State. In City of Des Plaines v. Metropolitan Sanitary District, 48 Ill.2d 11, 268 N.E.2d 428 (1971), the court said that to hold the power of condemnation subject to city zoning ordinances would reduce the entity exercising the power to the status of a private landowner, thus frustrating the purpose of the statute authorizing condemnation. Although protection would be provided against abuse of the eminent domain power, the court stated, it was held to be not subject to zoning restrictions.

We recognize that there is ample authority for such a view but we decline to accept it. Although the power of eminent domain is inherent in the State, a municipal corporation has no such inherent power and can exercise it only when expressly authorized by the Legislature. The power must be conferred upon a municipality expressly or by necessary implication and without such authorization it has no more right than any other corporation to condemn property. Although nearly all jurisdictions have conferred such power on cities, towns, and villages to some extent, the legislative declaration is nevertheless required unless the power of a municipality has an express constitutional basis. 11 McQuillan, Municipal Corporations (3d ed. rev.) § 32.12. See also, 26 Am.Jur.2d Eminent Domain § 2 and § 19.

The zoning power is likewise dependent upon authority delegated from the State, and a municipality has no power to zone in the absence of express or implied statutory or constitutional authority. 82 Am.Jur.2d Zoning and Planning § 7. A forceful dissent in City of Scottsdale, supra, pointed out that both eminent domain and the police power (from which authority to zone is derived) are inherent attributes of sovereign states and may be delegated to political subdivisions. Without a specific grant of authority a city has no implied power to exercise its governmental functions outside the city limits.

It is difficult...