Eck v. City of Bismarck

• Decision Date: 24 February 1981
• Docket Number: No. 9607-A,9607-A
• Parties: Enola ECK, Plaintiff and Appellant, v. CITY OF BISMARCK, a Municipal Corporation, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 739

302 N.W.2d 739

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

Civ. No. 9607-A.

Supreme Court of North Dakota.

Feb. 24, 1981.

Sperry & Erickson and William S. Murray, Bismarck, for plaintiff and appellant; argued by Floyd B. Sperry and Alan C. Erickson, Bismarck.

Zuger & Bucklin, Bismarck, for defendant and appellee; argued by John A. Zuger, Sr., Bismarck.

ERICKSTAD, Chief Justice.

Prior to commencing the action in the instant case, the plaintiff, Enola Eck, brought an action for inverse condemnation against the City of Bismarck in the District Court of Burleigh County. Upon motion by the city, the district court dismissed Mrs. Eck's action for failure to state a claim upon which relief could be granted. Mrs. Eck appealed from the judgment of dismissal, and in Eck v. City of Bismarck, 283 N.W.2d 193 (N.D.1979), we affirmed the judgment of dismissal but remanded with instructions that Mrs. Eck be allowed to amend her complaint to pursue legal remedies consistent with the Court's opinion. As a result of the Eck, supra, decision Mrs. Eck filed an amended complaint for a declaratory judgment declaring Zoning Ordinance No. 3554 unconstitutional and invalid and for an injunction against interference by the city with the construction of residential structures on Mrs. Eck's property. On September 3, 1980, the district court entered a judgment declaring the city zoning ordinance valid and dismissing Mrs. Eck's action against the city. Mrs. Eck has filed an appeal from that judgment with this Court. We affirm.

Many of the pertinent facts surrounding the present controversy have been succinctly set forth by Justice Vande Walle in Eck v. City of Bismarck, 283 N.W.2d 193 (N.D.1979). Rather than reiterate those facts we refer the reader to the Eck decision.

Mrs. Eck has raised the following issues for this Court's determination on appeal:

(1) Whether or not the district court erred in refusing to grant Mrs. Eck a jury trial in this action;

(2) Whether or not the district court erred in its determination that the city zoning ordinance is a valid ordinance which is neither arbitrary nor unreasonable and which does not deprive Mrs. Eck of all or substantially all reasonable uses of her land;

(3) Whether or not the district court erred in refusing to admit certain evidence relating to the income and expenses of Mrs. Eck's farming operation; and

(4) Whether or not the district court erred in refusing to allow Mrs. Eck to testify as to the value of her property for residential purposes.

Jury Trial

Mrs. Eck asserts that it was error for the trial court to deny her a jury trial. We disagree. In her complaint, Mrs. Eck sought a declaratory judgment with regard to the validity of the zoning ordinance and also sought injunctive relief. Consequently, Mrs. Eck's action is equitable in nature, and she was not entitled to a jury trial as a matter of right. See, Ask, Inc. v. Wegerle, 286 N.W.2d 290 (N.D.1979), Landers v. Goetz, 264 N.W.2d 459 (N.D.1978), C.I.T. Corporation v. Hetland, 143 N.W.2d 94 (N.D.1966). In denying Mrs. Eck's request for a jury trial, the district court determined that "all relief requested and allowable is equitable, and determinations by a jury in an advisory capacity would be of no use to the Court." We conclude that the district court did not commit error in this regard.

Zoning Ordinance Validity

In Eck v. City of Bismarck, 283 N.W.2d 193 (N.D.1979), this Court discussed the standard upon which the validity of a zoning ordinance is determined:

"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)." 283 N.W.2d at 197.

Thus, to withstand an attack on its validity, the zoning ordinance must bear a reasonable relationship to a legitimate governmental purpose and must not be arbitrary or capricious nor deprive a property owner of all or substantially all reasonable uses of the zoned land.

The zoning ordinance assailed by Mrs. Eck continues the agricultural use limitation on her property. The Board of City Commissioners refused to amend the ordinance, upon application by Mrs. Eck, to allow single family residential use of her property. Mrs. Eck asserts that the zoning ordinance is invalid because it is arbitrary and capricious and because it exceeds legitimate police power regulation.

During 1974, a Master Plan of the Bismarck Municipal Airport was adopted by the Board of City Commissioners which included plans for a new runway at the airport to be located in a northeast-southwest direction. William C. Wocken, director of the City of Bismarck-Burleigh County Planning Department, testified that the distance between the northeast end of the proposed runway and the southwest corner of Mrs. Eck's property (the part which is nearest the proposed runway) would be 7,100 feet. According to an Off-Airport Land Study completed during May, 1976, and an Aircraft Noise Impact Analysis completed during December, 1979, Mrs. Eck's property, upon commencement of operations on the new runway, will lie within a 100 to 115 CNR noise zone within which, the studies report, residential development is undesirable. ¹ It is undisputed that since completion of these studies the City Commission has not allowed any new residential zoning within the noise zones which encompass Mrs. Eck's property.

In denying Mrs. Eck's request for residential zoning, the Board of City Commissioners cited the following reasons:

"(1) Zoning request did no 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."

The essential purpose of zoning is to "rationally coordinate land-use planning to promote orderly development and preservation of property values." City of Fargo, Cass County v. Harwood Township, 256 N.W.2d 694 (N.D.1977). Through the enactment of Section 40-47-01.1, N.D.C.C., the legislature provided enabling legislation for extraterritorial zoning by cities, to "enable cities to plan for the orderly development of their adjacent fringe areas." Apple Creek Township v. City of Bismarck, 271 N.W.2d 583 (N.D.1978). The zoning ordinance in the instant case appears to be a reasonable attempt by the city to provide an orderly development of areas within the city's zoning jurisdiction and to prohibit residential development in areas considered least suitable for such purpose.

Mrs. Eck relies substantially upon the recent Minnesota Supreme Court decision of McShane v. City of Faribault, 292 N.W.2d 253 (Minn.1980), to support her position that the city zoning ordinance in this case is invalid because it exceeds the City's legitimate police power zoning authority. In McShane, supra, the plaintiffs' owned land which was adjacent to the Faribault Municipal Airport and which was trisected by two highways. The city of Faribault, by ordinance, established two "safety zones" near the airport runway which encompassed the plaintiff's land. Zone A consisted of an area just beyond the airport runway which was equal in length to two-thirds the length of the runway. In this zone permitted uses included agriculture, horticulture, cemeteries, and the like, but commercial development was prohibited as well as above ground structural uses. Zone B was located just beyond Zone A and extended for a distance equal to the length of one-third the runway length. In this zone, height of structures was limited, population density was limited so as not to exceed 15 persons per acre, and lots were required to be at least three acres in size.

The Minnesota Supreme Court first set forth the standard it generally uses to determine the validity of a zoning ordinance:

"... the decision of the United States Supreme Court in Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), established that the right to use property as one wishes is subject to and limited by the proper exercise of the police power in the regulation of land use, and such regulation does not constitute a compensable taking unless it deprives the property of all reasonable use. Accordingly, we have repeatedly upheld zoning ordinances and other land use restrictions against allegations of unconstitutional taking, even where the value of the property declined significantly as a result of the restrictions." 292 N.W.2d at 257. (Footnotes omitted.)

The court then set forth a different standard for zoning ordinances designed to benefit a particular governmental enterprise (i. e. "enterpr...