Midgarden v. City of Grand Forks

• Decision Date: 14 August 1952
• Docket Number: No. 7264,7264
• Citation: 79 N.D. 18,54 N.W.2d 659
• Parties: MIDGARDEN v. CITY OF GRAND FORKS et al.
• Court: North Dakota Supreme Court

Page 659

54 N.W.2d 659

79 N.D. 18

MIDGARDEN v. CITY OF GRAND FORKS et al.

No. 7264.

Supreme Court of North Dakota.

Aug. 14, 1952.

Syllabus by the Court.

1. In enacting a zoning ordinance the governing body of the city is exercising a legislative function, and where the question whether the determination of the City Council that a certain district shall be included in a classification of a comprehensive zoning plan is an unreasonable, arbitrary or unequal exercise of power is fairly debatable, courts will not substitute their judgment for that of the legislative body, and the conclusion of the latter will not be disturbed.

2. In the instant case the complaint alleges in general terms that the defendant city acted in an arbitrary and unreasonable manner in including plaintiff's property in a residential zone, thereby materially reducing its value because of its unfitness for residential purposes. Defendant demurred to the complaint on the ground that it did not state a cause of action. The trial court sustained the demurrer. For reasons stated in the opinion the order sustaining the demurrer is affirmed.

Harold D. Shaft, Grand Forks, for defendants and respondents.

Day, Lundberg, Stokes, Vaaler & Gillig, Grand Forks, for plaintiff and appellant.

SATHRE, Judge.

This is an action brought by the plaintiff to restrain and enjoin the defendants, the City of Grand Forks, and N. B. Knapp, building inspector of the City of Grand Forks from enforcing City Zoning Ordinance No. 457 as against the use as a trailer park of plaintiff's real property described in the Complaint.

The allegations of the Complaint so far as material to a determination of the issues presented are as follows:

That the Defendant, City of Grand Forks, is a municipal corporation organized and existing under and by virtue of the laws of the State of North Dakota.

That N. B. Knapp is the building inspector of the City of Grand Forks;

That the Plaintiff is the owner of Lots Thirteen (13) Fourteen (14) Fifteen (15) Sixteen (16) Seventeen (17) Eighteen (18) and Nineteen (19) Block Fourteen (14) Riverside Park Addition. That said property is located on the northerly outskirts of the City of Grand Forks and is situate along the Red River at a point below the bank of the Red River and is property which is flooded at all times in the spring when the Red River increases to the extent of overflowing its narrower channel; that said premises have at all times been occupied by the Plaintiff and Plaintiff's predecessors in interest as a tourist park, with the exception of one building which has been used for living quarters; that said premises are unfit for residence purposes.

That in the year 1928, the City of Grand Forks enacted a zoning ordinance No. 457, designating the above described premises as a residential area.

That the above described property owned by the Plaintiff is licensed by the State of North Dakota, as a tourist camp and is ideally situated for the operation of a tourist camp and trailer park in the City of Grand Forks, in view of its location on the outer edge of the City of Grand Forks, not in near proximity to any residences or business district, away from the hazard of traffic, in a shady location and near a city park. Further that the location and elevation is such that the only use that the property can be made of is for the parking of vehicles which can be moved in time of flood as it is impossible to build permanent buildings because of depreciation and deterioration by flood conditions and the expense in connection therewith.

That in 1949 the City of Grand Forks enacted Ordinance No. 728 providing for the establishment and creation of trailer parks, and pursuant thereto, the plaintiff made application to the City of Grand Forks building inspector and the city council for a trailer park permit on or about the 1st day of November, 1950. That the application of the plaintiff was denied on the grounds that said property was located in a residential zone, and its location objected to by residents of the vicinity.

That pursuant to the aforementioned ordinances and other ordinances of the City of Grand Forks, the City has interfered with the operation of the place of business by the plaintiff; has caused notice to be served on people camping on the plaintiff's premises that unless they remove they will be arrested; has caused the plaintiff to be arrested for violation of the aforementioned Trailer Park Ordinance and has sent agents, officers and employees of the City on the plaintiff's premises harassing plaintiff's guests, the plaintiff and her employees.

The complaint further alleges that said Ordinance No. 457 establishing plaintiff's premises as part of a residential zone of the city is void and invalid in so far as it affects plaintiff's property, that it is not a reasonable exercise of the powers of the city, that it is an attempt by the city to deprive the plaintiff of her property without due process of law in refusing to permit plaintiff to use the said premises for purposes for which they are suited, and that plaintiff is without an adequate remedy at law.

Plaintiff then demands judgment that said Ordinance No. 457 be declared void insofar as it affects plaintiff's premises and that the defendant City of Grand Forks, its officers and agents, be restrained from interfering with the plaintiff's use and possession of said premises, and that they be restrained from commencing any lawsuit against the plaintiff for the purpose of enforcing said ordinance.

The defendants demurred to the complaint upon the grounds that it did not state a cause of action against the defendants or either of them. The trial court sustained the demurrer, and the case is here on appeal from the order sustaining the demurrer.

The specification of error assigned is that the trial court erred in sustaining defendant's demurrer to the complaint. No question has been raised as to the propriety or the form of the action and the remedy of injunction.

The question for determination is therefore whether the complaint liberally construed, states a cause of action.

A demurrer admits all facts that are well pleaded in the complaint and all intendments and inferences that may fairly and reasonably be drawn therefrom. Ginakes v. Johnson, 75 N.D. 164, 25 N.W.2d 368; Gilbertson v. Volden, 71 N.D. 192, 299 N.W. 250; Mutual Life Ins. Co. v. State, 71 N.D. 78, 298 N.W. 773, 138 A.L.R. 1115.

'Legal conclusions or inferences of fact which are not presumed or which may not be reasonably or necessarily inferred from the facts alleged are not admitted by the demurrer.' Torgerson v. Minneapolis St. Paul & S. S. M. Ry. Co., 49 N.D. 1096, 194 N.W. 741, 743; 41 Am.Jur. 461 Sec. 243.

The statutes of this State, Chapter 40-47 NDRC 1943, permit the zoning of property in the cities of the State. Section 40-4701 provides:

40-4701. 'For the purpose of promoting health, safety, morals, or the general welfare of the community, the governing body of any city may regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes. Such regulations may provide that a board of adjustment may determine and vary the application of the regulations in harmony with their general purpose and intent and in accordance with general or specific rules therein contained.'

Section 40-4702 provides:

'The governing body may divide the city into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this chapter, and may regulate and restrict the erection, construction, reconstruction, alteration, repair, or use of buildings, structures, or land within such districts. All regulations shall be uniform for each class or kind of buildings throughout each district, but the regulations in one district may differ from those in other districts.'

Section 40-4703 provides:

'The regulations provided for in this chapter shall be made in accordance with a comprehensive plan and shall be designated to:

'1. Lessen congestion in the streets;

'2. Secure safety from fire, panic, and other dangers;

'3. Promote health and the general welfare;

'4. Provide adequate light and air;

'5. Prevent the over-crowding of land;

'6. Avoid undue concentration of population; and

'7. Facilitate adequate provisions for transportation, water, sewage, schools, parks and other public requirements.

'The regulations shall be made with reasonable consideration as to the character of each district and its peculiar suitability for particular uses with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the city.'

Plaintiff does not challenge the method of procedure of the City Commission in enacting Ordinance No. 457, but contends that it exceeded its powers under said ordinance in including her property within a residential area, thereby prohibiting the use thereof for purposes for which it is suited and rendering it worthless.

The allegations in the complaint upon which plaintiff relies as stating a cause of action are that her property is situated along the Red River at a point below its bank and that in the spring when the river overflows its bank her property is flooded and made unfit...