Munch v. City of Mott

• Decision Date: 07 October 1981
• Docket Number: No. 9929,9929
• Parties: Marie MUNCH and Anita Roster, Plaintiffs and Appellees, v. The CITY OF MOTT, North Dakota, acting through its City Council, Defendant, Milton Hertz and Hertz Farms, Inc., a North Dakota corporation, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 17

311 N.W.2d 17

Marie MUNCH and Anita Roster, Plaintiffs and Appellees, v. The CITY OF MOTT, North Dakota, acting through its City Council, Defendant Milton Hertz and Hertz Farms, Inc., a North Dakota corporation, Defendants and Appellants.

Civ. No. 9929.

Supreme Court of North Dakota.

Oct. 7, 1981.

Vogel Law Firm, Mandan, for plaintiffs and appellees; argued by Rauleigh D. Robinson, Wahpeton.

Charles E. Crane, City Atty., Mott, for defendant, City of Mott.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for defendants and appellants; argued by Ward M. Kirby, Dickinson.

PEDERSON, Justice.

Two basic questions presented in this case are:

(1) Is a city ordinance which confers enforcement standing upon any "affected citizen or property owner" valid?

(2) What is the role of the judiciary in reviewing legislative, executive or administrative decisions of the governing body of a municipal corporation?

In addition, we are asked to decide (a) whether or not evidence was improperly admitted, (b) whether or not the district court abused its discretion in allowing expert witness fees under the circumstances of this case, and (c) whether or not the issue of damages was improperly overlooked.

We conclude, first, that a municipal government may properly confer standing upon "any affected citizen or property owner" to aid in the enforcement of its zoning ordinances and, second, that the principle of separation of powers limits the scope of judicial review of legislative, executive, or administrative decisions by a city council. A limited review of an administrative determination does not, however, prevent a court from hearing evidence "anew" where there are inadequate records otherwise upon which to base a judicial review. This principle applies to actions to enjoin, as well as "appeals" authorized by the statute.

We further conclude that evidence was not improperly admitted and that the trial court did not abuse its discretion in awarding expert witness fees, but that the allegation of damages raised in the answer has not been disposed of by the trial court. The judgment is affirmed in part and remanded for further proceedings on the question of damages.

A comprehensive zoning ordinance was enacted by the City of Mott on July 19, 1978 (City of Mott Zoning Ordinance # 1). It provided, in part: (1) a zoning commission shall "establish the zoning affairs of the city" (§ 1.7.2(70)); (2) "the proper City authority or any affected citizen or property owner, in addition to other remedies, may institute any appropriate action or proceedings" to enforce compliance (§ 5.2.2) ¹; (3) in industrial districts "permitted uses" and "conditional uses" are itemized and chemical fertilizer plants are "conditional uses" (§ 3.4) ²; (4) "each new use" requires a certificate of zoning compliance by the city auditor (§ 2.2.2); (5) conditional uses shall not be detrimental to or endanger "the public health, safety, comfort and general welfare" (§ 2.6.2) ³; (6) hearings must be held before action is taken on applications for conditional use (§ 2.6.1). ⁴

An "anhydrous ammonia storage facility" is not, by name, included as either a "permitted use" or "conditional use." Anhydrous ammonia is a gaseous substance which is liquified by compression and is used extensively as fertilizer in modern agricultural practices.

On August 16, 1978, less than one month after the adoption of the zoning ordinance, the Mott City Council met in special session to consider Hertz's proposed plans for an anhydrous ammonia facility in Mott. The facility was to consist of a 30,000-gallon storage tank and a pump. Although several citizens of Mott were notified of this special session by telephone, no notice of a public hearing was published. Some residents of Mott, including Munch, did appear at the meeting.

The city council met again in special session on August 21, 1978 and approved the Hertz anhydrous ammonia facility. No notice of this special session was published. The Hertz facility was constructed shortly thereafter and has been in use since.

Approximately a year later, on August 31, 1979, Hertz applied for a building permit for an additional 30,000-gallon anhydrous ammonia tank. This second tank was to be placed alongside the first.

On the afternoon of September 6, 1979 a hose ruptured during the unloading of a tanker at the Hertz facility, causing some anhydrous ammonia to escape into the air. Several residents of Mott, including Munch, were forced to evacuate their homes.

On September 19, 1979, without having published a notice thereof, the city council met in special session and Hertz's application for a building permit for the second anhydrous ammonia tank was approved.

This lawsuit seeking injunctive relief was commenced by Munch and Roster (hereinafter called Munch) on October 4, 1979 against Hertz and the City of Mott. Relying on Section 5.2.2 of the Mott Zoning Ordinance which allows "any affected citizen" to seek the enforcement of Mott's zoning laws, Munch charged that the two Hertz building permits were granted in violation of the Mott Zoning Ordinance. Munch claimed that the anhydrous ammonia facility was a "chemical fertilizer plant," therefore falling within the "conditional use" requirements of the ordinance, and the lack of published notice for public hearings, as required by the ordinance, invalidates the building permits.

Hertz denied the allegations, claiming that Section 5.2.2 of the Mott Zoning Ordinance authorizing enforcement action by citizens was invalid as an improper extension of statutory authorization. Hertz claimed that Section 5.2.2 granted standing to persons not contemplated by the State enabling legislation, § 40-47-12, NDCC. ⁵ Hertz also argued that the city council had determined the facility to be a "permitted use" and that, therefore, the building permits were properly granted.

The trial court, in a trial anew without a jury, heard evidence on the question of classification of the Hertz facility, and concluded therefrom that the anhydrous ammonia facility constituted a "conditional use" as that term is used in the Mott zoning ordinance. It further concluded that the lack of published notice, as required by the ordinance, served to invalidate the Hertz building permits. This appeal by Hertz followed. The City of Mott did not appeal nor participate as an appellee in this court.

I.

Cities are creatures of statute and their powers or authorities must be derived from legislative authorization. Roeders v. City of Washburn, 298 N.W.2d 779, 782 (N.D.1980). Section 40-47-01, NDCC, authorizes cities to adopt zoning regulations for the purpose of promoting health, safety, morals, or the general welfare of the community. Pursuant to this authorization, the City of Mott adopted a comprehensive zoning ordinance to fit its particular needs. Section 5.2.2 of this ordinance confers standing upon "any affected citizen or property owner" to secure enforcement of the Mott zoning ordinances. The authority to institute action to restrain, correct, or abate zoning violations is governed by § 40-47-12, NDCC, which provides in part that "proper local authorities of the city, in addition to other remedies, may institute any appropriate action or proceeding." Hertz contends that conferring standing upon "any affected citizen or property owner" exceeds the City's statutory authorization. This argument is without merit. Section 40-47-12 must be read in conjunction with § 40-47-04, NDCC, which specifically allows cities to provide for the manner in which zoning regulations shall be enforced. ⁶ A city's zoning power is dependent on authority delegated from the State, but these powers need not always be explicitly listed in the statute. A city is given its powers by specific grant and by implication therefrom. City of Fargo, Cass Cty. v. Harwood Tp., 256 N.W.2d 694, 697 (N.D.1977).

It is clearly within the prerogative of the local authorities to determine the means and methods for enforcing a city's zoning ordinances as long as the city's actions remain compatible with the spirit of the State legislation. See, Ujka v. Sturdevant, 65 N.W.2d 292 (N.D.1954). The mere fact that § 40-47-12, NDCC, confers standing only upon "proper local authorities" does not preclude the City of Mott from allowing "affected and interested citizens" the right to secure the enforcement of its zoning ordinances. Mott's extension of the standing requirements is compatible with the stated purpose of promoting the health, safety, morals, or the general welfare of the community. The fact that Munch was forced to evacuate her home during the accident at the Hertz facility made her "an affected citizen" within the purview of the Mott Zoning Ordinance. This is not unlike the authority or standing to sue granted to any person aggrieved by violations of environmental regulations by § 32-40-06, NDCC. ⁷ We are not convinced that, in authorizing this suit, § 5.2.2 is invalid.

II.

The City of Mott, in exercising its legislative function pursuant to statutory authorization, adopted a comprehensive zoning ordinance. This ordinance is presumed valid unless clearly shown to be arbitrary or unreasonable. Midgarden v. City of Grand Forks, 79 N.D. 18, 54 N.W.2d 659 (1952). Although the enactment of a zoning ordinance is a legislative function, interpretations thereof are quasi-judicial acts by the city council. The courts shall not substitute their judgment for that of the council, but may review for arbitrariness. Cowan v. Stroup, 284 N.W.2d 447 (N.D.1979). In the determination of this case, the district court heard live testimony, considered evidence not heard by the city council, and necessarily made its decision upon that evidence. Hertz claims that this does not comport with the proper role of the judiciary when reviewing actions of a co-equal branch of government.

Even though there be no record available of the proceedings before the city council, the decisions...