Dennis v. Village of Tonka Bay

• Decision Date: 21 January 1946
• Docket Number: Civ. No. 1391.
• Parties: DENNIS et ux. v. VILLAGE OF TONKA BAY et al.
• Court: U.S. District Court — District of Minnesota

64 F. Supp. 214

DENNIS et ux. v. VILLAGE OF TONKA BAY et al.

Civ. No. 1391.

District Court, D. Minnesota, Fourth Division.

January 21, 1946.

F. A. Whiteley, of Minneapolis, Minn., for plaintiffs.

Ernest Malmberg, of Minneapolis, Minn. (Malmberg & Nelson, of Minneapolis, Minn., of counsel), for defendants.

NORDBYE, District Judge.

This proceeding was before the Circuit Court of Appeals in Dennis v. Village of Tonka Bay, 8 Cir., 151 F.2d 411, 412, wherein it was held that error was committed by the trial court in dismissing the complaint. The court held that "there is no justification for dismissing a complaint for insufficiency of statement unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the claim." And that, "The plaintiffs stated a claim upon which relief could be granted * * *." It directed this Court to reinstate the complaint and try the cause on the merits. This has now been done.

Some time in the fall of the year 1943, the Village Council of Tonka Bay began to consider the necessity of a zoning ordinance. This Village consists largely of residential property with a few scattered uses which may be termed commercial. It is situated on a relatively narrow and irregularly shaped peninsula extending into Lake Minnetonka. It is about a mile and three-quarters in length and varies from one-half mile to a mile and one-quarter in width. There is no concentrated business area and the few business enterprises which are located in the Village are scattered. At the time of the passage of the ordinance, the following uses in the Village reflect the approximate number of business places there. There were five boat liveries, all located on the lake shore, one beer tavern, one soft drink parlor, one express office and garage, one bakery, a garage, a filling station, two stores, and an ice house. Apparently the location of this Village on the lake made it attractive to summer residents and, in later years, many of the homes have been occupied during the entire year. The lake shore is heavily populated with summer homes, particularly north of the area where plaintiffs' property is located. Although there was discussion about a zoning ordinance in the year 1943, no action was taken until August 15, 1944, when the ordinance now being attacked, in so far as it affects plaintiffs' property, was adopted. The ordinance divided the Village into "use districts" to be known as "residence" and "commercial" districts. It describes certain property as being in the commercial district and the remainder of the Village was placed in the residential zone. In zoning the Village, the ordinance limits the commercial districts to the particular areas where businesses were being conducted at the time the ordinance was passed. Section 5 of the ordinance reads as follows:

"Non-Conforming Uses

"Section 5. The lawful use of land existing at the time of the adoption of this ordinance, although such does not conform to the provisions hereof, may continue, but if such non-conforming use is discontinued, any future use of said land shall be in conformity with the provisions of this ordinance.

"The Village Council may, by a special permit after public hearing, authorize the location of any commercial building or uses in the Residence District, * * *."

At the time the ordinance was passed, plaintiffs were operating, and had been operating for many years, a boat-renting establishment in the Village at a place on the lake called "The Narrows". Presumably, under the ordinance, they could have continued operations at that particular place under Section 5 thereof, and moreover, the particular area where their business was established was zoned under the ordinance as commercial. However, at or about the time the ordinance was passed, plaintiffs had made plans to remove their business to the particular area which, under the ordinance, had been zoned as residential. The zoning as residential of this area to which plaintiffs intended to move their boat-renting business is herein attacked as depriving plaintiffs of their property without due process and equal protection of the law. It is contended that the ordinance is arbitrary and unreasonable, and the jurisdiction of this Court is therefore invoked under the Fourteenth Amendment to the Federal Constitution. The only question, therefore, before this Court is the constitutionality of the ordinance. Concededly, the burden of proof rests upon the plaintiffs to establish its unconstitutionality. That the Village had authority under its police power to pass a zoning ordinance is conceded, and no extended discussion is necessary regarding the now well-recognized authority of a municipality to enact zoning legislation in the pursuance of its right to legislate for the safety, health, peace, good order, and morale of the community. Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13, 34 L.Ed. 620. As noted, the ordinance as a law is not attacked. It is only challenged in so far as it affects the particular area which plaintiffs have selected as a site for their boat-renting business. A brief consideration of some of the facts and circumstances which pertain to the particular property in question and the village area as a whole may be noted.

It appears that one Grace Eliza West was the owner, and occupied with her husband, George M. West, as her homestead, Lot 655, Minnetonka Lake Park, with the vacated portion of Lake View Avenue adjacent to said lot, and a certain so-called lens-shaped tract fronting on Lake Minnetonka. The so-called lens-shaped tract became attached to the homestead when Lake View Avenue along the shore of Lake Minnetonka was vacated in the year 1904. The West family occupied a house on these premises for over forty years, and the entire tract during that period was used exclusively for residential purposes. The exact dimensions of the entire homestead property do not appear in the record, but scaling the map would indicate that it is about the size of two fair-sized city lots. West operated an ice business across the road from the homestead, and there is evidence that at times his customers would go to the West home to obtain ice from a large icebox therein when there was no attendant at the ice house, but, aside from such incidental and infrequent use, the entire West property was used solely for residential purposes. Mrs. West died in March, 1926. Her estate was probated, and in Probate Court the entire tract was, by the decree of distribution, decreed to her husband, George M. West, for life with the fee to the six surviving children. In the decree of distribution, the entire tract was referred to as the homestead of the deceased. West died before 1944, and apparently for some time prior to that year the house was vacant and remained vacant up to the time that the ordinance was passed on August 15, 1944. Consequently, it should be noted that, when the ordinance was passed, the title to the entire West tract was vested in the six children, an undivided one-sixth thereof in each. The plaintiff Grace E. Dennis is one of the daughters of the Wests, and the plaintiff Leonard H. Dennis is the husband of Grace E. Dennis. Prior to the passage of the ordinance, the plaintiffs were constructing a foundation, partly on the West property and partly on certain land on which the Village had an easement for street purposes. It is to be gathered from the evidence that they planned to move a smaller house, which they had occupied some distance from the West homestead, onto this foundation, and to utilize the narrow strip of land fronting on the lake shore and a part of the West homestead for the location of their boat-renting business. This narrow strip has been referred to as the lens-shaped tract. It is about 190 feet long and 25 feet wide at the northerly end and tapers to a point at its southerly end. The Dennises, however, did not obtain the sole title to this narrow strip until in January, 1945. The fact that the foundation of their new home encroached on street property is of no particular significance as to the issues herein, except that the evidence indicates that the Village Council called that fact to the attention of the Dennises and demanded its removal. It also is fair to find that the Village Council was probably aware that the Dennises were contemplating the use of all or a portion of the West property for boat-renting purposes and intended to live in the house which was to be moved onto the foundation, so that they might be near their contemplated business, and that such plan had come to the attention of the Council prior to the passage of the ordinance. Some 32 fairly substantial residences, having a value ranging from eight to twenty thousand dollars, are located immediately north of the West tract. Marsh land is located to the west of the property in question. Lake Minnetonka is on the east, and on the south is a main-traveled tarvia road.

Plaintiffs intimate that the evidence manifests certain hostility to them in the enactment of the ordinance, and that this factor bears on the alleged unreasonableness and arbitrariness of the ordinance. But it seems clear that the evidence does not sustain the charge of personal animosity on the part of the Village Council; in fact, the evidence indicates quite the contrary. The ordinance permitted the ice business of the Wests to continue, although the location was zoned as residential. The boat-renting business of the plaintiffs at the Narrows,...