Lowry v. City of Mankato
| Decision Date | 05 May 1950 |
| Docket Number | No. 35057,35057 |
| Citation | 231 Minn. 108,42 N.W.2d 553 |
| Parties | LOWRY v. CITY OF MANKATO et al. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. A provision in a zoning ordinance authorizing the erection in a residence district of accessory buildings, including one private garage, should be construed as authorizing the construction of a private garage in such a district only when it also is an accessory building, where the ordinance divides the city into a business district and a residence district, permits in the latter only specified uses deemed suitable for a residential district, excludes therefrom business enterprises, and defines separately accessory buildings and private garages, and where the use of a private garage other than one which also is an accessory building would emasculate and defeat the purpose of the ordinance in dividing the city into the two districts mentioned.
2. A building permit issued in violation of a zoning ordinance by an official lacking power to alter or vary the ordinance is void, and the zoning regulation may be enforced notwithstanding the fact that the permittee may have commenced building operations.
Reversed with directions to issue an injunction in accordance with the opinion.
Norman H. Nitzkowski, Mankato, William Stradtmann, Mankato, for appellant.
Wilson, Blethen & Ogle, Mankato, for respondents Model Dairy, Inc., and C. E. Brazier.
Action for an injunction to compel defendant city to revoke a building permit issued for the construction of a private garage and to enjoin the other defendants from constructing it, as being in violation of the city's zoning ordinance. Decision having been for defendants, plaintiff appeals from the order denying his motion for a new trial.
The questions presented for decision are:
(1) Whether a provision in a zoning ordinance authorizing the erection in a residence district of accessory buildings, including one private garage, should be construed as authorizing the construction of a private garage in such a district only when it also is an accessory building, where the ordinance divides the city into a business district and a residential district, permits in the latter only specified uses deemed suitable for a residential district, excludes therefrom business enterprises, and defines separately accessory buildings and private garages, and where the use of a private garage other than one which also is an accessory building would emasculate and defeat the purpose of the ordinance in dividing the city into the two districts mentioned; and
(2) Whether a building permit issued in violation of a zoning ordinance by an official lacking power to alter or vary the ordinance is void and the zoning regulation may be enforced notwithstanding the fact that the permittee has commenced building operations.
In 1932, the city of Mankato adopted a zoning ordinance which has been in force ever since. It contains numerous provisions usually contained in such ordinances. So far as here material, the ordinance, 'In order to regulate the use of land and the location and use of buildings erected or structurally altered for specified purposes' (§ 2), divides the city into two zones, viz., the 'Business District' and the 'Residence District.' The zoning restrictions apply to the latter, but not to the former. By its terms, no structures may be erected in the residence district except such as the ordinance authorizes, and a violation thereof is declared to be a misdemeanor. Section 3 of the ordinance authorizes to be erected, and property therein to be used for, dwellings of two and one-half stories or less, parks or playgrounds, plant nurseries or greenhouses, churches, libraries, public and private schools, museums, recreational buildings, 'Highways or Public Utilities lines or mains,' and certain other uses. Farming and truck gardening therein are permitted.
Among the authorized or conforming uses so enumerated are 'Accessory Buildings, including one private garage or private stable' when located upon a lot in a certain manner. An accessory building, a private garage, and a private stable are defined in § 1, subds. 1, 6, and 14, of the ordinance as follows:
'1. An Accessory Building is a subordinate building, separated from or attached to the main building, the use of which is incidental to that of the main building or the use of the premises.
'6. A Private Garage is a garage which has a capacity of not more than four (4) motor vehicles and when in use is used for private storage only. A Private Garage may exceed said four (4) motor vehicles capacity providing the area of the lot whereon such Private Garage is to be located shall contain not less than twelve hundred (1200) square feet for each motor vehicle stored.
The definitions of public garage and public stable appear in the footnote. 1
Under certain circumstances, when authorized by an affirmative vote of four-fifths of all the members of the city council, certain other structures, designated as being for 'Non-Conforming Uses,' may be erected in the residence district, viz.: Public or private institutions of an educational, philanthropic, or eleemosynary nature, hospitals or sanitariums, aviation fields, penal or correctional institutions, public utility plants, and gasoline filling stations.
On June 25, 1948, the city engineer of the city of Mankato issued a building permit to defendant Model Dairy, Inc., which has its plant and office in the business district, to erect in the residence district a one-story concrete-block garage upon land there owned by it. The size of the garage to be constructed, the number of motor vehicles to be stored therein, and the area of the lot on which it was to be constructed were such as to constitute it a 'private garage' within the definition of § 1, subd. 6, of the ordinance. The contemplated use thereof involved the storing of five or six trucks, used by the dairy company in conducting its business, during the late afternoon and night each day after they had been first loaded with ice cream at the company's plant in the business district and then driven to the garage, where they were to be stored, with the electrical refrigeration units in the trucks operating, until early the next morning and then started on their routes to make deliveries.
The dairy company's land is located in a block in the residence district, which is built up with houses and a church (St. John's Episcopal Church) on the lots facing the streets bounding it. The land in question is in the east half of the block facing an alley running north and south through the block and is about midway between the side streets. It is much lower than the lots behind it facing east toward the street. A retaining wall had been constructed between the land and such lots. Apparently, from the houses on such lots there was a view over and across the land in question.
After the permit had been issued, the dairy company entered into a contract with defendant C. E. Brazier to construct the garage. When this action was commenced, construction had proceeded to a point where the retaining wall had been removed, the ground prepared for the erection of the building, and structural steel costing $1,120 had been purchased. If work was stopped, it would be necessary to construct a new retaining wall to replace the one removed. It was estimated that all this involved an expenditure of about $2,800. It appeared, however, that the structural steel could be used for other construction and thus be entirely salvaged. It did not appear what proportion the expense incurred bore to the entire cost of the garage.
It is conceded that the garage in question is a private garage as defined in § 1, subd. 6. The principal dispute here is as to whether § 3, by authorizing the construction of accessory buildings, including one private garage, evinces an intention to limit the authorization to only such private garages as are included in the definition of an accessory building, and whether, if that question be answered in the affirmative, the garage in question is an accessory building because of the fact that it is used in connection with the dairy company's building located in the business district in the operation of its business.
Plaintiff contends: (1) That, while the ordinance contains separate definitions of an accessory building and of a private garage (§ 1, subds. 1 and 6), a private garage may be an accessory building, and that, because private garages are not mentioned separately in the enumeration of the authorized structures, but only in the phrase 'Accessory Buildings, including one private garage,' an intention was manifested to authorize private garages only insofar as they are included in the definition of accessory buildings; and (2) that the permit for the construction of the garage in question, being one for the construction of a building prohibited by the ordinance, is absolutely void and should be revoked.
Defendants contend: (1) That, since a 'private garage' is specifially defined in § 1, subd. 6, of the ordinance, the authorization in § 3 to erect 'one private garage' is one to erect a private garage as thus defined, regardless of whether it also is an accessory building; but that, if the ordinance should be construed as authorizing the construction of a private garage in such district only when it is also an accessory building, the garage in question comes within the...
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