McCavic v. De Luca

Citation46 N.W.2d 873,233 Minn. 372
Decision Date16 March 1951
Docket NumberNos. 35374,35373,s. 35374
CourtMinnesota Supreme Court
PartiesMcCAVIC et al. v. DE LUCA.

Syllabus by the Court.

1. Reasonable setback lines may be adopted as a part of zoning ordinances, or separately in the absence of a general zoning ordinance, in the exercise of the police powers of a city.

2. A city ordinance is not repealed, nor does it become unenforceable, by failure to enforce it, by its wrongful enforcement or by the fact that it is repeatedly violated.

3. Violation of an ordinance by others than defendant does not preclude its enforcement against defendant.

4. Where defendant has knowingly and wilfully violated a city ordinance, plaintiffs will not be denied a mandatory injunction to compel the undoing of defendant's wrong merely because it will cause defendant hardship or expense.

Stone, Manthey & Carey, Virginia, for appellant.

S. L. Cohen and Jerome Kaner, Virginia, for respondents.

KNUTSON, Justice.

Appeals from orders denying new trials. Two cases, identical in all respects except as to the property owned by the respective plaintiffs, have been consolidated for hearing and have been considered here together.

The city of Virginia, Minnesota, has adopted no general zoning ordinance. It has, by ordinance, established building lines for certain designated streets providing for a building or setback line 15 feet from a street or avenue.

Defendant owns lot 30 of block 12, Rooney's Addition to Virginia. Plaintiffs McCavic own lot 31, which adjoins defendant's lot on the west, and plaintiff Long owns lot 29, which adjoins defendant's lot on the east. Each plaintiff has on his lot a two-story dwelling house in which he lives. Lots 17 to 32, inclusive, of the block of which plaintiffs' and defendant's property is a part, front on the north side of Thirteenth street north. Fronting on the south side of the street are lots 1 to 16, inclusive, of block 1, Northside Addition to Virginia. All lots on both sides of the street are 25 feet in width.

On August 7, 1946, defendant applied to the city for and obtained a building permit authorizing him to erect a one-story cement-block building on his lot 30, which application and permit is in these words:

'Application and Building Permit

'Date: August 7, 1946.

'To Building Inspector

'City of Virginia, Minn.

'Dear Sir:

'I respectfully apply for a Permit to build kind of building--

'Store

'on Lot No. 30, Block No. 12, Rooney's Addition, size of building 24 50, No. of stories 1, sewer connection 6 Y 94 6 East of center manhole on 9th Ave. W., material cement block. Basement walls, cement block. Front wall of building to be set back 15 ft. from property line. No drain tile around foundation or under basement floor shall be connected to the sanitary sewer. I will need the use of--feet of public property during construction.

'If allowed to build, under this permit, I will assume the responsibility of any and all accidents that may occur in connection with construction of building, or other things permitted under this permit, and will observe all city ordinances, rules and regulations governing same.

'Antonio DeLucca

'Signature of Owner

'John?

'Name of Builder

'No. 34

809 13th St. N.

724 11th St. N.

Address of builder

J. W. Hejda

'Approved

'By: R. A. Henle

'Building Inspector'

Defendant thereafter proceeded to build. It soon became apparent to plaintiffs that he was extending his building inside the setback line. They both protested to him and also complained to the city authorities. Plaintiff Long made several such complaints. Defendant was advised by the city engineer that he could not build inside the 15-foot setback line. He proceeded nevertheless and completed the building about the latter part of November 1948. When completed, the building was eight feet from the street line, which meant that it extended seven feet into the space prohibited by the setback line.

The buildings in the block in which the property of plaintiffs and defendant is located are part residential and part commercial. Some have complied with the setback lines and some have not. A brief description of the buildings in the block will show that no determined effort has been made by the city to enforce the setback lines provided by the ordinance. As has been said, the McCavics occupy the lot west of defendant's lot. Their house conforms to the setback line. A residence occupies lot 32 to the west of the McCavic property and that conforms to the setback line. Plaintiff Long occupies lots 29 and 28 to the east of defendant, and his house conforms to the line. The porch on the house on lot 27 extends a few feet beyond the line, and the buildings on lots 26 and 25 extend about ten feet into the forbidden zone. Two grocery stores on the corner lots 18 and 17 extend about ten feet over the line. Other houses on this side of the street all conform. On the opposite side of the street, a tavern on lot 6, which is six lots from the west corner, extends approximately seven feet into the forbidden zone. The residences on lots 5, 7, 9, and 15 have porches which extend three or four feet beyond the line. The residence on lot 12 extend approximately ten feet beyond the line. Houses on lots 2, 4, 10, and 14 conform.

The McCavics acquired their property in 1941. They thereafter converted it into a two-family dwelling at a cost of about $8,000. At the time of trial, they estimated that their property was worth about $12,000. Plaintiff Long acquired his residence in 1936 for $1,000 and thereafter spent about $9,000 remodeling it. He estimated that his property also was worth about $12,000.

Aside from remodeling on the locations where they had existed formerly, no building in the block has been erected so as to encroach upon the setback line since either of the plaintiffs has become the owner of his property.

The trial court found that defendant had knowingly and wilfully violated the ordinance, and it granted a mandatory injunction requiring him to remove that part of his building which protruded beyond the 15-foot setback line. From orders denying new trials, these appeals were taken.

Defendant contends, first, that there is no authority for the establishment of the setback lines for commercial buildings, and therefore that the ordinance, insofar as it applies to his building, is void.

The city of Virginia is governed by a home rule charter adopted June 8, 1909. The city had operated under L. 1895, c. 8, prior to the adoption of its home rule charter. L. 1895, c. 8, § 129, which deals generally with the improvement and vacation of streets and the establishment of building lines as a part thereof, reads as follows: 'It shall have power to extend, widen, straighten, grade, drain, pave, repave, macadamize or otherwise improve any street, alley or public ground, and to lay or order laid sidewalks, curb and gutter thereon, also to establish a building line for any residence, avenue or street, and prevent the erection of buildings in front of such line, but no such line shall be established on any such street or avenue until a majority of the owners of the property affected thereby fronting on such street or avenue shall have petitioned the city council therefor.'

The language of this section was substantially copied into the home rule charter and is now § 93 under c. 5, which relates generally to the powers and duties of the city council. Section 93 relates specifically to the powers and duties of the council with respect to the improvement of streets and reads as follows: 'It * * * shall have power to extend, widen, straighten, grade, drain, pave, repave, macadamize or otherwise improve any street, alley or public ground, and to lay or order laid sidewalks, curb and gutter thereon, also to establish a building line for any residence, avenue or street, and to prevent the erection of buildings in front of such line.'

On May 23, 1904, the city council adopted an ordinance establishing building lines for the street here involved and other streets and avenues. The lines so established prohibited the erection of any building nearer than 15 feet from the outer lines of the respective streets and avenues covered thereby. The ordinance contains penal provisions for violation. The ordinance was amended on November 8, 1910, after the adoption of the home rule charter, so that the 15-foot setback lines applied to all streets and avenues then laid out and platted or which might thereafter be laid out and platted, except certain designated streets and avenues expressly excluded from the operation thereof. So far as the street here involved is concerned, the ordinance remained applicable.

Defendant contends that L. 1895, c. 8, § 129, and § 93 of the home rule charter limit the authority of the city council to the establishment of setback lines for residences and that there is no authority to establish such lines for commercial buildings; hence, that the ordinance is void as applied to defendant's bakery building.

It is clear to us that the statutory provision, as well as the comparable provision in the home rule charter, granting authority to establish setback lines, deals with and is related to the improvement of streets. The word 'residence' is separated from the word 'avenue' by a comma, which is here used to set off words that are independent and which are used in a series. (See, Webster's New International Dictionary (2 Ed.) 1947.) The authority granted is not limited by the word 'residence.' The comma may be used to show an omission, and the sentence should be read the same as if the words were 'establish a building line for any residence, or avenue, or street.' The meaning is obvious when we continue with the section, which grants authority to 'prevent the erection of buildings in front of such line.' The word 'buildings' here used clearly is not limited to residential buildings. In a mixed residential and business section such as we are dealing with...

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