City of Minot v. Fisher
| Decision Date | 04 December 1973 |
| Docket Number | No. 8890,8890 |
| Parties | The CITY OF MINOT, a municipal corporation, Plaintiff and Appellant, v. H. H. FISHER et al., Defendants and Appellees. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. Where a two-year time limitation on the right to resume a nonconforming use is imposed by a city zoning ordinance, the intention to surrender the right is presumed from the expiration of the designated period. Although because of this presumption it becomes unnecessary to prove the intent to abandon after cessation of two years, it is still necessary to show the concurrent overt acts or failure to act which indicate abandonment. Where the time limitation is not unreasonably short, there is no injustice in giving rise to this presumption as long as the time limitation is not applied in situations where the cessation of use was beyond the control of the property owner.
2. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Rule 52(a), N.D.R.Civ.P.
3. Error is never presumed upon appeal. The burden resting upon appellant is not sustained by showing mere error; he must show the error was prejudicial.
4. For the reasons stated in the opinion, the judgment of the trial court is affirmed.
Bosard, McCutcheon, Kerian, Schmidt & Holum, Minot, for plaintiff and appellant.
McGee, Hankla, Backes & Wheeler, Minot, for defendants and appellees.
This is an appeal from a judgment of the district court, which judgment dismissed an action by the City of Minot to enjoin the defendants from using a structure in a nonconforming manner.
The evidence discloses that on November 3, 1958, the City of Minot passed Zoning Ordinance No. 1149. This zoning ordinance affected an area of Minot in which was located a mortuary owned by Robert A. Russell, now deceased. The affected area became a single-family residential district and the mortuary thus became nonconforming because it was allowable only in commercial areas, under the zoning ordinance.
The evidence further discloses that the building in question was operated as a mortuary from before the date of passage of Zoning Ordinance No. 1149 until the spring of 1969. From some time in 1967 until some time prior to March 4, 1969, the mortuary was known as the Daniels-Russell Mortuary and was operated by Jerome Daniels. On March 4, 1969, the City of Minot shut off the supply of water to the mortuary building and from that date until January 27, 1972, when the defendant North Central Mental Health and Retardation Center moved in, the building was vacant and was unused for any purpose. During the period of vacancy the building was twice flooded and repairs were made by the defendant Norma A. Russell. Mrs. Russell, during this period, was also attempting to sell the building; and prospective purchasers included a church group. On July 15, 1971, the defendant, H. H. Fisher, secured an option to purchase the building and immediately tried to sell or rent it. He testified that he tried to sell the mortuary equipment to other morticians, since other prospective purchasers or tenants interested in the building evidenced no interest in purchasing such equipment.
Section 23--0317(1)(c) of the Minot Zoning Ordinance provides:
'Whenever a nonconforming use of a building or portion thereof is discontinued for a continuous period of two years, any future use of such building or portion thereof shall be in conformity with the regulations of the district in which such building is located.'
Intent to abandon, and overt acts of abandonment, are the elements of abandonment, and the City of Minot (hereinafter City) asserts that the element of intent to abandon should not be necessary to prove, due to the presence in the ordinance of a definite period of time of discontinuance of a nonconforming use that prohibits the resumption of such nonconforming use.
The appellees, on the other hand, assert that despite the presence in the ordinance of a definite period of discontinuance of a nonconforming use, both elements of abandonment must be proved before a party can be denied a nonconforming use of property because of discontinuance of such nonconforming use for two years. The district court agreed with the appellees and dismissed the City's action. The City appeals from that judgment of dismissal and presents the following issues for review:
There appear to be three judicial views relevant to the first issue. One view has been that there must be shown an intent to abandon a nonconforming use before its resumption can be prohibited; this despite the presence of an ordinance containing a specified period of discontinuance designed to prevent resumption of a nonconforming use. Representative of this holding is the case of Dubitzky v. Liquor Control Commission, 160 Conn. 120, 273 A.2d 876 (1970), wherein Dubitzky lost a permit to sell liquor in a drugstore because of the actions of his lessee. The ordinance involved in the Dubitzky case provided that in any building where liquor was sold, where such use 'has been voluntarily discontinued or has been voluntarily inoperative for a period of thirty (30) days, such use shall not be resumed except in conformity with the provisions of paragraph 281.3'. Paragraph 281.3 (East Hartford Zoning Ordinance) prohibited the sale of liquor within 1500 feet of another liquor outlet. Dubitzky's lessee ceased to sell liquor more than thirty days before the termination of his lease, which cessation resulted in the Liquor Control Commission denying Dubitzky's application for a liquor license. Dubitzky was diligent in attempting to show that he had no intention of abandoning his nonconforming use of the building for the sale of liquor and that he intended to resume the sale of liquor on such premises at his first opportunity. Dubitzky's request for a liquor permit was denied by municipal authorities; however, after several appeals, the Supreme Court of Connecticut decided that his liquor permit should have been granted. The Connecticut court stated, in Dubitzky, supra, 273 A.2d at 879:
'We have held that the word 'discontinued' in ordinances prohibiting the resumption of a nonconforming use which has been discontinued for a specified period is equivalent in meaning to 'abandoned', and evidence of an intent by the owner permanently to cease the use is required, and we have held that the mere fact of nonuser for a period is insufficient to constitute an abandonment.'
A second judicial view on this issue is that the inclusion of a discontinuance period in a zoning ordinance on nonconforming uses removes the necessity of proving intent to abandon such a use, and, therefore, passage of the required discontinuance period of time alone prevents the resumption of the nonconforming use. This rule was applied in the case of Canada's Tavern, Inc. v. Town of Glen Echo, 260 Md. 206, 271 A.2d 664 (1970), where the ordinance in question read, in pertinent part:
In Canada's Tavern the plaintiff owned a building in which a restaurant was operated, which constituted a nonconforming use in its area. The plaintiff in Canada's Tavern rented the building, but it became vacant and was unused as a restaurant for a period in excess of six months. The County Board of Appeals found that the plaintiff in Canada's Tavern had been diligent in her efforts to lease the building and decided that the certificate of occupancy was properly issued to the new lessee. A trial court reversed the board's decision and the Maryland Court of Appeals affirmed and denied the certificate of occupancy. The decision to deny the certificate of occupancy was made despite the fact that the plaintiff had been diligent in attempting to find a tenant for the building.
With respect to the ordinance in question in Canada's Tavern, supra, 271 A.2d at 666, the Maryland Court of Appeals said:
'We think the Council, having in mind a larger purpose, intended to align itself with those local governments which have found it desirable to delete the factor of intent in respect of the abandonment, discontinuance or cessation of nonconforming uses rather than continuing to run the gamut of its judicial determination in a succession of infinitely variable factual situations.'
For a similar holding, see State ex rel. Peterson v. Burt, 42 Wis.2d 284, 166 N.W.2d 207 (1969).
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