Rippley v. City of Lincoln, 10181

• Decision Date: 16 February 1983
• Docket Number: No. 10181,10181
• Parties: Martsey RIPPLEY, Douglas Rippley, Billy Rippley and Debra Rippley Kuntz, Plaintiffs, Appellants and Cross Appellees, v. The CITY OF LINCOLN, Don Carley, Westley Woehl, Peter Hoerner, Don Lervik and Bob Brockman, Defendants, Appellees and Cross Appellants. Civ.
• Court: North Dakota Supreme Court

Page 505

330 N.W.2d 505

Martsey RIPPLEY, Douglas Rippley, Billy Rippley and Debra

Rippley Kuntz, Plaintiffs, Appellants and Cross Appellees, v. The CITY OF LINCOLN, Don Carley, Westley Woehl, Peter

Hoerner, Don Lervik and Bob Brockman, Defendants,

Appellees and Cross Appellants.

Civ. No. 10181.

Supreme Court of North Dakota.

Feb. 16, 1983.

Zuger & Bucklin, Bismarck, for plaintiffs, appellants and cross appellees; argued by John A. Zuger and Robert V. Bolinske, Bismarck.

Fintan L. Dooley, Bismarck, for defendants, appellees and cross appellants; argued by Fintan L. Dooley, Bismarck.

ERICKSTAD, Chief Justice.

This is an appeal by the plaintiffs (the Rippleys) from a judgment of the District Court of Burleigh County, dated January 12, 1982, dismissing on its merits the Rippleys' inverse condemnation action against the defendants (Lincoln). Lincoln has filed a cross-appeal from the district court's denial of its request for attorney's fees. We reverse and remand for further proceedings consistent with this opinion.

The Rippleys currently own approximately 20 acres of land within the City of Lincoln. Prior to the establishment of the City of Lincoln, the Rippleys' land was zoned residential by the City of Bismarck under its extraterritorial zoning authority. On March 20, 1979, subsequent to the establishment of the City of Lincoln, the city council passed a comprehensive zoning ordinance which, relevant to this case, zoned the Rippleys' 20 acres of land for "public use." Lincoln did not commence eminent domain proceedings to acquire the Rippleys' property nor did it otherwise offer to compensate the Rippleys for their land. It is undisputed, however, that the city intended to use the land in the future for construction of a school and other governmental operations such as a fire station and a city hall. The Rippleys requested Lincoln to rezone the land from "public use" to "commercial" zoning, but the request was denied. Thereafter, the Rippleys brought an inverse condemnation action in district court asserting that the City of Lincoln, through its zoning ordinance, has deprived them of all reasonable use of their property in violation of their state and federal constitutional rights to just compensation for property taken for public use. The district court, concluding that Lincoln's actions did not constitute a taking for which the Rippleys were entitled to compensation, entered a judgment dismissing the action from which the Rippleys have now appealed to this Court.

On appeal, the Rippleys assert that Lincoln's zoning ordinance has deprived them of all reasonable use of their property resulting in a "taking" of their land for which they are entitled to just compensation under Article I, Section 16 of the North Dakota Constitution, which provides that "private property shall not be taken or damaged for public use without just compensation ..." and also under the Fifth Amendment of the United States Constitution which guarantees that private property shall not "be taken for public use without just compensation." ¹

The question of whether or not there has been a taking of private property for public use is a question of law which is fully reviewable by this Court on appeal. Kraft v. Malone, 313 N.W.2d 758, 761 (N.D.1981).

The state, acting through its police power, has broad authority to enact land use regulations without compensating landowners for restrictions placed upon their property, and a zoning ordinance, one type of land use regulation, does not constitute a taking for which compensation must be paid merely because it diminishes the value of the regulated property or disallows the best and highest use of the property. Eck v. City of Bismarck, 283 N.W.2d 193 (N.D.1979); Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741 (N.D.1978). However, governmental regulation which prohibits all or substantially all reasonable use of the regulated property constitutes a taking of the property for public use which entitles the landowner to just compensation through an inverse condemnation action. See, Kraft v. Malone, 313 N.W.2d 758 (N.D.1981).

Lincoln's zoning ordinance places the Rippleys' property in a "P Public Use" zone ² under which the property is dedicated solely to governmental uses. The ordinance specifically prohibits any "residential, commercial and industrial uses of the land." The "P Public Use" zoning of the Rippleys' property is a classic example of the type of land use regulation which other jurisdictions have found to constitute a taking of private property for public use without just compensation. See, Bartlett v. Zoning Commission, 161 Conn. 24, 282 A.2d 907 (1971); Dooley v. Town Plan and Zoning Commission, 151 Conn. 304, 197 A.2d 770 (1964); Morris County Land Improvement Company v. Township of Parsippany-Troy Hills, 40 N.J. 539, 193 A.2d 232 (1963); City of Plainfield v. Borough of Middlesex, 69 N.J.Super. 136, 173 A.2d 785 (1961).

In Borough of Middlesex, supra, the defendant municipality adopted a zoning ordinance, similar to the one in the instant case, which limited the use of the plaintiffs' property to the following:

" '... The construction or extension of school buildings; the utilization of lands within said zone for all public parks, playgrounds, athletic fields and similar public recreational purposes; the construction of buildings and structures which may be necessary or incidental to such uses of said lands.' " 173 A.2d at 787.

In concluding that the ordinance constituted an unconstitutional taking of the plaintiffs' property, the court stated "Plaintiffs, under the ordinance, in order to realize the economic value of the property, must therefore find some purchaser who will either build a school or use the property for public parks or playgrounds. While it is conceivable that they could find a private school willing to build on the property, as a practical matter the effect of the zoning ordinance is to limit the purchaser to defendant borough or to the Board of Education of the Borough of Middlesex.... The net result of the ordinance is to destroy for all practical purposes the full value of plaintiffs' property and to leave plaintiffs at the mercy of defendant as to the price that the latter may be willing to pay.

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"... in the case at bar we have no evidence that the use of the lands for schools, parks or playgrounds is unreasonable insofar as the quality and nature of the property are concerned. What we do have, however, is a use limitation so restrictive that plaintiffs themselves cannot use the property and can sell it only to the very party imposing the restrictions. In effect, plaintiffs are deprived of their full property rights without full compensation." 173 A.2d at 787-788.

Lincoln's zoning ordinance, like the ordinance in Borough of Middlesex, supra, destroys all reasonable use ³ of the Rippleys' property leaving the Rippleys at the mercy of Lincoln as to a future date, if ever, that the latter may be willing to purchase the property for construction of public facilities.

Parsippany-Troy Hills, supra, involved a township zoning ordinance which permitted the following uses of a 1500 acre swamp area:

"... agricultural uses; raising of woody or herbaceous plants; commercial green houses; raising of aquatic plants, fish and fish food (with a one-family dwelling as an adjunct to any of these uses, provided its lowest floor was a specified distance above flood level); out-door recreational uses operated by a governmental division or agency; conservation uses 'including drainage control, forestry, wildlife sanctuaries and facilities for making same available and useful to the public'; hunting and fishing preserves; public utility transmission lines and substations; radio or television transmitting stations and antenna towers; and township sewage treatment plants and water supply facilities." 193 A.2d at 236.

The New Jersey Supreme Court determined that the prime objective of the ordinance was to retain the land substantially in its natural state for the public benefit and that the practical effect of the ordinance was to preclude any reasonable private use of the property which would allow the landowners a reasonable means of obtaining a return from the property. In holding that the ordinance constituted an unconstitutional taking of property without just compensation, the court stated:

"The measures here adopted to accomplish public benefits do not amount to a direct or outright taking, ....

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"But a taking may as well occur indirectly through excessive regulation under the police power.

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"While the issue of regulation as against taking is always a matter of degree, there can be no question but that the line has been crossed where the purpose and practical effect of the regulation is to appropriate private property for a flood water detention basin or open space. These are laudable public purposes and we do not doubt the high-mindedness of their motivation. But such factors cannot cure basic unconstitutionality." 193 A.2d at 241.

In this case, as in Parsippany-Troy Hills, supra, the zoning ordinance has the purpose and practical effect of appropriating private property for public uses without giving the landowners the constitutionally required compensation.

The zoning ordinance in Bartlett, supra, restricted the use of the plaintiff's property, which was considered a title marshland, to construction of wooden walkways, wharves, duck blinds, a public boat landing, public ditches, a channel, a boathouse sufficient to accommodate only the landowner's boat, piers, docks, piles for life lines, rafts, or jetties. The court concluded that under the ordinance the plaintiff's use of his property was practically nonexistent, and that the ordinance thereby constituted a taking of the plaintiff's property without just compensation.

The municipal zoning ordinance in Dooley v. Town Plan & Zoning Commission, 151 Conn. 304, 197 A.2d...