Filister v. City of Minneapolis

• Decision Date: 31 December 1964
• Docket Number: No. 39530,39530
• Citation: 270 Minn. 53,17 A.L.R.3d 733,133 N.W.2d 500
• Court: Minnesota Supreme Court
• Parties: , 17 A.L.R.3d 733 Maurice M. FILISTER, plaintiff, and J. J. Bliss, intervenor, Appeallants, v. CITY OF MINNEAPOLIS, defendant, and William H. Borgert, et al., intervenors, Respondents.

Page 500

133 N.W.2d 500

270 Minn. 53, 17 A.L.R.3d 733

Maurice M. FILISTER, plaintiff, and J. J. Bliss, intervenor Appeallants, v. CITY OF MINNEAPOLIS, defendant, and William H. Borgert, et al., intervenors, Respondents.

No. 39530.

Supreme Court of Minnesota.

Dec. 31, 1964.

Rehearing Denied March 9, 1965.

Syllabus by the Court

1. In a declaratory judgment action to set aside zoning restrictions claimed to be confiscatory, the court has no jurisdiction to enforce a proposal contained in plaintiffs' prayer for relief which would limit use of their property to a specific type of apartments if the ordinance is found to be invalid.

2. A finding that lowland zoned for single-family residential purposes has, or can economically be made to have, some substantial value, held to be sustained by the evidence.

3. An owner whose land is not suitable for the type of construction permitted by a zoning ordinance has a duty to challenge the propriety of its restrictions before neighboring property has been developed in reliance on their validity.

Brill & Brill, Minneapolis, for appellants.

Keith M. Stidd, City Atty., D. J. Shama, Asst. City Atty., Minneapolis, for respondent City of Minneapolis.

John R. Goetz, Fred W. Thomas and Kenneth W. Green, Minneapolis, for respondents Borgert et al.

OTIS, Justice.

Appellants seek a declaratory judgment which will free their real estate from the restrictions of a Minneapolis zoning ordinance limiting construction to single-family dwellings. The appeal is from a judgment denying them relief.

The property consists of 8 2/3 acres of unimproved land located west of Ewing Avenue and lying between the Great Northern railroad tracks on the north and West 22nd Street on the south, in the city of Minneapolis. On April 3, 1924, this and the surrounding area were zoned for one-and two-family residences. The neighborhood has been developed in compliance with these restrictions. Plaintiff J. J. Bliss purchased the property at a tax sale on June 22, 1952, for a consideration of $3,800. A new comprehensive zoning ordinance was adopted July 19, 1963, permitting only single-family detached dwellings and buildings designed for educational, religious, and similar purposes. Very shortly thereafter, on August 20, 1963, Bliss granted plaintiff Maurice M. Filister an option to purchase the property for $56,000, the consideration being $1,000.

The only issue presented by the complaint is whether, because of the topography of plaintiffs' property, the zoning restrictions render it valueless and therefore constitute a confiscatory and unconstitutional taking. All but 15 or 25 percent of plaintiffs' tract is lowland. There was extensive testimony concerning the cost of preparing it for construction. It is undisputed that most of the land would require grading, filling, and piling in order to make it suitable for building. Plaintiffs vigorously contend that the evidence requires a finding that the cost of preparing the soil for construction would equal or exceed the value of the land after it was thus improved. Hence, plaintiffs assert that the ordinance is invalid. However, they accompany their prayer for relief with an offer to confine their use to the erection of 10 apartment buildings, 2 1/2 stories in height, containing 23 units each. Plaintiffs allege they can thereby salvage sufficient value to make the project economically feasible. They agree to submit to the jurisdiction of the district court to permit the enforcement of any decree which limits development to the purposes suggested.

A number of adjacent property owners have intervened to contest the plaintiffs' claims. It is undisputed that they have bought and built homes in reliance on the existing ordinance.

The parties have stipulated that it would be futile for plaintiffs to pursue their administrative remedies by seeking a rezoning in the manner provided by law. More than one-third of the property owners located within 100 feet of plaintiffs' tract would object to this procedure. ¹

The trial court found among other things:

'That approximately the northerly one quarter of said described property can be developed for single family usage without the necessity of piling; that approximately the southerly three quarters of said described property can be developed for single family usage with the aid of piling; that the entire property, in addition to said piling, will require some fill to bring it up to proper grade; that the total cost to the plaintiffs of lots so piled and filled would be somewhat less than the value of building lots of comparable size in the area; that the development of the plaintiffs' property into lots reasonably comparable to other lots in this area by such piling and fill is reasonably economically feasible.'

As a conclusion of law the court held that the ordinance was not unreasonable, confiscatory, arbitrary, and void, and dismissed the complaint. In an accompanying memorandum the court laid stress on the fact that plaintiffs had knowledge of the zoning when they acquired their interests; that the consideration they paid reflected the economic problems created by the ordinance and the topography; that the surrounding area had undergone no change in character since the adoption of the ordinance; that no new restrictions were imposed after plaintiffs acquired their interest; and that the mere fact the property would have greater value if used for multiple-family buildings had no bearing on the validity of the ordinance.

1. In our opinion the ordinance must stand or fall on considerations other than plaintiffs' offer to confine their construction to the erection of the apartment units which Filister proposes to build. This is not an equitable proceeding but a statutory action for a declaratory judgment. We find no precedent for conditioning plaintiffs' rights on an agreement to carry out Filister's plans under the jurisdiction of the court. Obviously, Filister cannot be compelled to exercise his option, and neither the district court nor this court has jurisdiction to require Bliss to confine his use to that which is proposed by Filister. Plaintiffs' proposal therefore has no force or effect, and if the ordinance is found to be invalid the property may be devoted without restriction to either residential, commercial, or industrial purposes, until and unless it is validly rezoned.

2. Most of the voluminous record bears on the cost of preparing the property for construction. The testimony with respect to the value of the property in its unimproved condition is sketchy and inconclusive. Although we have some hesitation in relying on evidence of this kind, we believe the court's finding that the property has, or can economically be made to have, some substantial value is not wholly without support in the record. Mr. Bliss himself testified that before he completely understood the soil problems he thought $8,000 an acre was a reasonable value for purposes of sale. One of plaintiffs' own experts stated that in his opinion the land had a value of $2,500 an acre, although he later indicated his estimate related only to school and church uses. There was hearsay testimony, admitted without objection, that plaintiffs' real estate agent had declined an offer of $40,000 for the property. This evidence, together with the price of $56,000 contained in Bliss' option to Filister, lends support to the court's conclusion that the real estate did have substantial value and the ordinance as applied to plaintiffs was not therefore unreasonable, confiscatory, arbitrary, or void.

3. None of the cases cited by any of the parties deals squarely with a situation where real estate has been deprived of all practical use by restrictive zoning under circumstances where surrounding property owners would be adversely affected by holding the ordinance unconstitutional. The problems of confiscation have not been considered vis-a-vis the problems of estoppel and laches. Cases cited by plaintiffs as controlling involve rezoning more restrictively after acquisition in reliance on existing ordinances; ² zoning for residential purposes in areas unsuited for such use where no dwellings had yet been constructed on neighboring property; ³ ordinances excluding business activities in areas surrounded by commercial property; ⁴ rezoning of lowlands to preserve them in their natural state as a catch basin and wildlife refuge; ⁵ and ordinances which would make the property unusable for any purpose without the sale to, or purchase from, contiguous owners to create an adequate area on which improvements might lawfully be built. ⁶

There is a division of authority on what weight is to be given to the fact a buyer has notice of a restrictive ordinance at the time of purchase, as well as on the question of what effect is to be given protracted acquiescence by an owner after adoption of such an ordinance. In the process of dealing with the...