Eck v. City of Bismarck

• Decision Date: 22 August 1979
• Docket Number: No. 9607,9607
• Citation: 283 N.W.2d 193
• Parties: Enola ECK, Plaintiff and Appellant, v. CITY OF BISMARCK, a Municipal Corporation, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 193

283 N.W.2d 193

Enola ECK, Plaintiff and Appellant, v. CITY OF BISMARCK, a Municipal Corporation, Defendant and Appellee.

Civ. No. 9607.

Supreme Court of North Dakota.

Aug. 22, 1979.

Alan C. Erickson, of Sperry & Erickson, and William S. Murray, Bismarck, for plaintiff and appellant.

John A. Zuger, City Atty., Bismarck, for defendant and appellee.

VANDE WALLE, Justice.

Mrs. Enola Eck brought an action for inverse condemnation against the City of Bismarck in the district court. She contended that because the City enacted, and subsequently refused to amend, a zoning ordinance limiting her use of her property to agricultural purposes, the City must pay her the reasonable value of her land. ¹

For many years, Mrs. Eck has owned land approximately one mile from Bismarck in Apple Creek Township, Burleigh County, North Dakota. Apple Creek Township zoned the land for agricultural use. In April 1978, exercising extraterritorial zoning powers pursuant to Section 40-47-01.1, N.D.C.C., the City of Bismarck enacted Ordinance No. 3554. ² Through this ordinance, the City continued the agricultural-use limitation on Mrs. Eck's property originally created by Apple Creek Township. Mrs. Eck attended the meeting of the Bismarck Board of City Commissioners at which the ordinance was enacted.

In June 1978, Mrs. Eck filed with the Bismarck Planning and Zoning Commission an application requesting a change of zoning for her property from agricultural use to single-family residential use and approval of a subdivision of 126 acres of her property into 45 residential lots. The Planning and Zoning Commission denied her application in August 1978. In late August 1978, Mrs. Eck "appealed" the denial of her application to the Bismarck Board of City Commissioners. The Board conducted a public meeting at which Mrs. Eck, through her attorneys, appeared and presented witnesses. In October 1978, the Board of City Commissioners denied Mrs. Eck's application for rezoning and subdivision and refused to amend Ordinance No. 3554 because, in its words:

"1) Zoning request did not appear to be compatible with the present and future land uses in the area.

"2) Requested zoning did not comply with the recommendations of the off-airport land use study.

"3) Soil Conservation Service had categorized this property as good productive agricultural land.

"4) To promote the health, safety, and general welfare of the public."

Mrs. Eck then commenced this action for inverse condemnation against the city. ³ The City moved to dismiss on the ground that Mrs. Eck's complaint failed to state a claim upon which relief can be granted. See Rule 12(b), N.D.R.Civ.P. The district court granted the City's motion.

Mrs. Eck appeals the district court's decision to this court, raising the following issues:

1. Did the district court, after considering affidavits and exhibits offered by the parties, err in treating the City's motion as a motion to dismiss rather than a motion for summary judgment?

2. Is inverse condemnation the appropriate action through which to challenge the validity of a zoning ordinance?

3. Apart from an action for inverse condemnation, are other legal remedies available to challenge the validity of a zoning ordinance?

I

We have already stated that, even though the parties presented affidavits and exhibits outside the pleadings to the court and these materials were not excluded, the district court granted the City's motion to dismiss for failure to state a claim upon which relief can be granted. Rule 12(b), N.D.R.Civ.P., requires, in part:

"If, on a motion asserting the defense numbered (5) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."

Mrs. Eck argues that since both parties presented matters outside the pleadings to the court and agreed that the motion to dismiss became one for summary judgment, the motion is still pending before the district court. In any event, she argues, if the district court in fact treated the motion as one for summary judgment, it improperly granted that motion because the matters outside the pleadings presented to the court establish the existence of genuine issues as to material facts.

We agree that, as Rule 12(b), N.D.R.Civ.P., required, the district court should have treated the City's motion as one for summary judgment. But to review the district court's disposition of the motion, we disregard the label it used to announce its decision and, instead, look to the substance of that decision. See, e. g., Slope County v. Consolidation Coal Co., 277 N.W.2d 124 (N.D.1979); Rummel v. Rummel, 265 N.W.2d 230 (N.D.1978); see also Allstate We need not address Mrs. Eck's contention that, here, summary judgment was improper because genuine issues of material fact remained unresolved. In Sande v. City of Grand Forks, 269 N.W.2d 93, 98 (N.D.1978), we said:

Ins. Co. v. Knutson, 278 N.W.2d 383 (N.D.1979). The record indicates that the district court allowed each party a reasonable opportunity to present material pertinent to the motion, and that the requirements of Rule 56, N.D.R.Civ.P., were satisfied. Hence, we conclude that irrespective of the terms used by the district court, it in fact treated and disposed of the motion as one for summary judgment.

"(E)ven where there are factual disputes between the parties, we have affirmed a summary judgment if the law is such that the resolution of the factual dispute will not change the result, which is foreordained by applicable statute or precedent. Schoonover v. Morton County, 267 N.W.2d 819 (N.D.1978)."

As discussed in part II of this opinion, our resolution of the second issue whether inverse condemnation is an appropriate action to challenge the validity of a zoning ordinance has foreclosed Mrs. Eck's attempt to bring this action, apart from any remaining factual issues.

II

The State, acting through its police power, has broad authority to enact land-use regulations without compensating a property owner for the restrictions placed on the use of his property. E. g., Euclid v. Ambler Co.,272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); City of Bismarck v. Hughes,53 N.D. 838, 208 N.W. 711 (1926). A zoning ordinance, one type of land-use regulation, will withstand constitutional scrutiny even though it diminishes the value of the regulated property (Nichols on Eminent Domain, § 1.42(10) (rev. 3d ed. 1976 & Supp. 1979); Yokley, Zoning Law and Practice, § 2-21 (3d ed. 1965 & Cum.Supp.1976)), or disallows a use that the property owner considers to be the most valuable use of his property (see, e. g., Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741 (N.D.1978), Appeal dismissed 440 U.S. 901, 99 S.Ct. 1205, 59 L.Ed.2d 449 (1979)). Nevertheless, the State's power to zone is not boundless. A zoning ordinance must be reasonable: Courts will invalidate a zoning ordinance that bears no reasonable relationship to a legitimate governmental purpose, that is arbitrary, or that deprives a property owner of all or substantially all reasonable uses of his land. See Newman Signs, Inc. v. Hjelle, supra ; Fred F. French Inv. Co., Inc. v. City of New York, 39 N.Y.2d 587, 385 N.Y.S.2d 5, 350 N.E.2d 381 (1976).

Through its power of eminent domain, the State has the authority to "take" or "damage" private property for public use so long as it compensates the private property owner for the taking or damaging. Sec. 14, N.D.Const. ⁴ For the most part, the State effectuates the taking or damaging by acquiring the property owner's property through eminent-domain proceedings. See, e. g., United Power Assn. v. Heley, 277 N.W.2d 262 (N.D.1979). When the State takes or damages private property without first commencing eminent-domain proceedings, in order to obtain "just compensation" the property owner must take the initiative by commencing an action for inverse condemnation. See, e. g., Filler v. City of Minot, 281 N.W.2d 237 (N.D.1979); Gram Const. Co. v. Minneapolis, St. P. & S. S. M. Ry. Co., 36 N.D. 164, 161 N.W. 732 (1917). An allegation of mere reduction in the market value of property, however, cannot Clear in theory but often cloudy in application, the distinction between the State's police power and its power of eminent domain has troubled this court in the past. As we said in Newman Signs, Inc. v. Hjelle, supra :

serve as the basis for an action for inverse condemnation. HFH, Ltd. v. Superior Court of Los Angeles County, 15 Cal.3d 508, 125 Cal.Rptr. 365, 542 P.2d 237 (1975); cf., United Power Assn. v. Heley, supra, 277 N.W.2d at 266-267.

"The characterization of the State's action as a noncompensable regulation under the police power as opposed to a compensable taking under the power of eminent domain is not susceptible to any easy formulation, but, rather, often turns on difference of degree. Goldblatt v. Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). Both involve some curtailment of private property rights." 268 N.W.2d at 755.

Mrs. Eck has assaulted the City's zoning ordinance contending that it is based in part on an unconstitutional exercise of the police power and in part on a taking or damaging without just compensation. First, she argues that the City's enactment of Ordinance No. 3554, limiting the use of her property to agricultural purposes, and the City's subsequent failure to amend the ordinance so as to allow single-family residential use of the property, deprived her of all reasonable uses of her property. Had this been the sole theory upon which she based her action, this case might be viewed in a different light. To remedy what she feels is unconstitutional action, however, Mrs. Eck has chosen to bring an action for inverse...