Kiges v. City of St. Paul

• Citation: 62 N.W.2d 363,240 Minn. 522,138 A.L.R. 506
• Decision Date: 31 December 1953
• Docket Number: No. 35765,35765
• Parties: KIGES v. CITY OF SAINT PAUL et al.
• Court: Supreme Court of Minnesota (US)

Page 363

62 N.W.2d 363

240 Minn. 522

KIGES v. CITY OF SAINT PAUL et al.

No. 35765.

Supreme Court of Minnesota.

Dec. 31, 1953.

Syllabus by the Court

1. Zoning regulations are to be sustained as a legitimate exercise of the police power in the absence of a showing of arbitrary, discriminatory, or unreasonable application of their restrictive provisions. Held, the rezoning procedure adopted by the St. Paul city council in the instant case was neither arbitrary, discriminatory, or unreasonable in its application to the property of the plaintiff.

2. Failure to act on a rezoning petition merely causes such petition to expire with no adverse effects, and does not bring into operation the provision of St. Paul Building Zone Ordinance No. 5840, § 23, as amended, which forbids further petitions to rezone property within six months after rejection of a like petition concerning the same property.

3. St. Paul Building Zone Ordinance No. 5840, § 23, as amended, which requires the acquiescence of two-thirds of the property owners within 100 feet of the area to be rezoned, refers to those owners within 100 feet of the Outer perimeter of the entire area to be rezoned rather than individual areas of more restricted size within the total area.

4. A building permit expires by limitation after three months from the date of issuance under St. Paul Building Code Ordinance No. 7210, § 2--3(c), and the limitations and restrictions implicit in the permit itself, if no work is done above the foundation of the proposed building during such three months period irrespective of the fact that the failure of required construction progress was due to repeated suspension orders issued in connection with petitions for rezoning the area within which the proposed building site is located.

5. The obtaining of a building permit, the incurring of obligations and expenses preliminary to actual construction, and surface preparation and excavation do not create a vested right in a permittee which would preclude the application of the classification of a new zoning regulation prohibiting the erection of the building unless the work done prior to the enactment of the amendment was sufficient to constitute an actual existing structure above the ground.

6. The acts of a municipality relative to the issuance of building permits under a zoning ordinance fall within the governmental rather than proprietary functions of such municipality, and in consequence estoppel will not lie against it for its acts performed in connection therewith.

7. On appeal this court must consider the testimony and evidence in the light most favorable to the prevailing party. Where an action is tried by a court without a jury, its findings of fact are entitled to the same weight as the verdict of a jury and will not be reversed on appeal unless they are manifestly contrary to the evidence.

Murnane & Murnane, St. Paul, for appellant.

Timothy P. Quinn, City Atty., Louis P. Sheahan, Asst. City Atty., St. Paul, for respondents.

NELSON, Justice.

Plaintiff instituted suit against the city of St. Paul and others to have a building permit declared valid, to enjoin the defendants from interfering with the work of construction pursuant to a building permit issued to him on June 15, 1950, and to enjoin enforcement of a zoning ordinance adopted by the city council of St. Paul on February 6, 1951. The plaintiff obtained a temporary writ of injunction from the district court. After trial without a jury, the court handed down findings of fact, conclusions of law, and order for judgment in defendants' favor and dissolved the temporary writ of injunction. Following the dissolution order the plaintiff made alternative motions for amended findings of fact, conclusions of law, and order for judgment or for a new trial and also made a motion to vacate the order dissolving the temporary injunction. The court denied all motions of plaintiff and he filed his appeal therefrom.

The city of St. Paul, through its city council, enacted a comprehensive zoning ordinance which became effective August 22, 1922, known as St. Paul Building Zone Ordinance No. 5840. This was enacted under the authority of L.1921, c. 217, which was later amended by L.1923, c. 364. Building Zone Ordinance No. 5840 regulates the location of trades and industries and the location of buildings for specified uses for the general promotion of public health, safety, order, convenience, prosperity, and general welfare. It divided the city of St. Paul into six classes of use districts; namely, 'A' residence district, 'B' residence district, 'C' residence district, commercial district, light industry district, and heavy industry district, and provided that no building or premises shall be erected or used for any purpose other than a purpose permitted in the use district in which the building or premises shall be located as provided in applicable regulations prescribed for such use districts.

Building Zone Ordinance No. 5840, § 23, as amended, contains the following provisions for the reclassification of real estate by amendments:

'Whenever the owners of 50% Or more of the frontage on any street in any district or part thereof shall present a petition, duly signed and acknowledged, to the City Council requesting an amendment, supplement, change or repeal of the regulations prescribed for such districts or part thereof, * * * it shall be the duty of the Council to vote upon said petition within 90 days after the filing of the same by the petitioners with the City Clerk; * * *.

'Such amendment shall not be passed where it will alter the regulations or plans herein contained, unless the owners of two-thirds of the several descriptions of real estate situated within one hundred feet of the real estate affected shall have acquiesced therein, and unless two-thirds of the full membership of the Council vote in favor thereof; * * *.

'* * * the proper filing of a sufficient petition for the amendment of this ordinance so that any district or portion thereof shall be thereby re-classified and placed in a more restricted district or a district of higher classification, with the requisite written acquiescence of the owners of adjacent property, pending the determination of the Council thereon, shall be deemed effectual to suspend the right to initiate any use in or upon the premises sought to be reclassified or any portion thereof which would not conform to the regulations hereby prescribed for the proposed reclassification.'

Plaintiff had purchased lot 8, block 3, Midway Highland Park Addition, in the year 1949 for the sum of $3,500 for the purpose of erecting and operating a retail drycleaning establishment thereon. From August 22, 1922, until the year 1925, lots 1 to 15 inclusive in block 3, Midway Highland Park Addition, had been classified as 'A' residence district, subject to all restrictions imposed by Building Zone Ordinance No. 5840 on premises so classified. In 1925 the governing authorities of the city of St. Paul, in mistaken expectation of commercial developments in that area, amended Building Zone Ordinance No. 5840 so that lots 1 to 15 inclusive in block 3 of the said addition were reclassified from 'A' residence district to commercial district in respect to lots 1 to 8 inclusive thereof and from 'A' residence district to 'C) residence district in respect to lots 9 to 15 inclusive. This was the situation existing up to and including June 15, 1950, when the plaintiff applied for and obtained from the city of St. Paul a building permit for the construction of a proposed commercial building for use as a retail cleaning establishment on his lot under and subject to the provisions and limitations of St. Paul Building Code Ordinance No. 7210 as then amended.

On June 27, 1950, pursuant to Building Zone Ordinance No. 5840, § 23, a petition for rezoning of land including the plaintiff's lot, accompanied by the requisite acquiescence of property owners within 100 feet, was presented to the city council and filed with the city clerk. The first petition was duly referred to the board of zoning for investigation and a report back to the city council within 30 days. The area covered included lots 1 through 8, block 3, Midway Highland Park. The staff members of the city planning board conducted an investigation and reported to the board of zoning on July 10, 1950, that the singling out of a single block for rezoning might be construed as arbitrary, that the zoning in a large area was out of adjustment, and that a comprehensive plan would be more appropriate. On the basis of this report the board of zoning recommended that the first petition be denied but indicated that they would entertain a petition to rezone lots involved in the petition with the exception of lot 8 belonging to the plaintiff. A report of the recommendation of the board of zoning was never transmitted to the city council as provided for by Building Zone Ordinance No. 5840, § 23. The city council did not act because the recommendations of the board of zoning were never submitted to it. Plaintiff was not informed of the board's action.

The plaintiff had engaged a St. Paul contractor, Isador Goldetsky, who as his agent in compliance with Building Code Ordinance No. 7210 had applied and paid for the building permit from the department of public buildings June 15, 1950. After obtaining the permit, the contractor immediately ordered steel beams to the value of $230; a survey was made June 23, 1950, costing $15; and on July 8, or just prior thereto, aproximately 23 trees were cleared from the premises. On July 6, the premises had been staked out and trenches for footing angles dug. The plaintiff intended to begin excavation July 8, 1950; but such work ceased when the contractor, Goldetsky, received a letter from the city architect, dated July 6, stating that the permit was suspended until the city council could pass on the rezoning petition.

A second petition for...