Snyder v. City of Minneapolis

• Decision Date: 19 April 1988
• Docket Number: No. C7-87-1394,C7-87-1394
• Citation: Snyder v. City of Minneapolis, 422 N.W.2d 747 (Minn. App. 1988)
• Parties: James L. SNYDER, Respondent, v. CITY OF MINNEAPOLIS, Appellant.
• Court: Minnesota Court of Appeals

Page 747

422 N.W.2d 747

James L. SNYDER, Respondent, v. CITY OF MINNEAPOLIS, Appellant.

No. C7-87-1394.

Court of Appeals of Minnesota.

April 19, 1988.

Review Granted June 29, 1988.

Syllabus by the Court

1. A city zoning clerk's issuance of a building permit was not a discretionary act where he had no authority to make planning or policy decisions, to change the requirements of the zoning code or to grant variances.

2. The $200,000 statutory limit on municipal tort liability mandated by Minn.Stat. Sec. 466.04 (1986) is not an affirmative defense and is not waived if not pleaded.

3. The evidence supports the award of damages at least up to the $200,000 statutory cap.

4. Respondent has not shown the trial court erred by denying his 42 U.S.C. Sec. 1983 claim.

Timothy D. Kelly, Cindy J. Larson, Minneapolis, for respondent.

Robert J. Alfton, City Atty., Jerome F. Fitzgerald, Asst. City Atty., Minneapolis, for appellant.

Thomas L. Grundhoefer, St. Paul, amicus curiae for League of Minnesota Cities.

Margaret J. Flicker, St. Paul, for Association of Minnesota Counties.

Heard, considered and decided by NORTON, P.J., and KALITOWSKI and SCHULTZ, ^* JJ.

OPINION

NORTON, Judge.

Respondent James L. Snyder claims damages for the City of Minneapolis' revocation of a building permit after he had demolished his fire-damaged building. He argues the City was negligent and violated his civil rights under 42 U.S.C. Sec. 1983. After a bench trial, the court found the City negligent and determined that the City is estopped from denying damages. The court awarded damages against the City in the amount of $795,389.67, to be reduced by $402,466.80 on the condition that the City issue Snyder a restaurant license. Judgment was entered May 19, 1987. In its amended findings, conclusions and order for judgment, which was entered July 1, 1987, the court denied Snyder's section 1983 claims. The City appeals, arguing that it has discretionary immunity from tort liability, that the damages are not supported by the evidence and that in any event, its liability is limited by Minn.Stat. Sec. 466.04 to $200,000. Snyder has also appealed, alleging the court erred by denying his section 1983 claims. The League of Minnesota Cities and Association of Minnesota Counties were granted leave to file a joint amicus brief, by order of the court of appeals dated September 14, 1987.

FACTS

In 1977 James Snyder purchased a building located at 1409 West Lake Street near the Hennepin and Lake intersection in Minneapolis. The structure was a 30 by 46 foot, two-story commercial brick building with a basement. It covered the entire lot. The first floor and basement were devoted to restaurant uses and the second floor to residential uses. The building had no off-street parking.

The original building permit was issued in 1905, before the City's zoning code was adopted. The area in which the building is located is now a B3S-3 zoning district. The City's zoning code, Mpls. Code of Ordinances Sec. 540.1460 requires one off-street parking space for each 300 square feet of area in excess of 4,000 square feet, or a minimum of four off-street parking spaces for that district. The original structure was "grandfathered" as a conforming building even though it lacked the requisite parking spaces.

An adjacent alley was vacated in 1983, enlarging the lot from 30 feet to 36 feet wide.

In 1985 a fire caused minor damage to the building. Snyder decided it would make economic sense to raze the building if he could increase rent revenues by building a slightly larger, 36 by 46 foot structure. His plan was to repair and renovate the building if he could not get a building permit.

Willard Weikle, a contractor hired by Snyder, sought to obtain a building permit for the proposed new structure by taking a site plan to the City's zoning office, part of the Department of Inspections. Edward Virnig, a zoning office employee, told Weikle that the plan was lacking the required four off-street parking spaces. Virnig told him the Calhoun Square parking ramp might satisfy the ordinance and that he should contact the City coordinator's office. Weikle did so and forwarded to Virnig a copy of section 4.3 of the federal Urban Development Action Grant (UDAG) agreement by which the ramp was financed. It read in part:

[D]eveloper shall maintain equal access to at least 140 parking spaces of the 450 total spaces in the ramp for the general public use by the merchants and customers of the immediate and existing Hennepin-Lake (nonshopping mall center clientele) retail area.

On June 13, 1985, Virnig stamped zoning approval on the site plan Weikle provided. His approval was based on using the parking spaces devoted to the public in the Calhoun Square ramp and Mpls. Code of Ordinances Sec. 528.50 which permits off-site parking if the site is within 300 feet of the property, and if the parking is owned or under long term lease to the property owner, and if approved by the Board of Adjustment. Snyder's lot was located within 300 feet of the Calhoun Square ramp; however, he did not own or lease any parking in the ramp.

Snyder obtained a wrecking permit for the old building from the City on July 31, 1985. On August 8, 1985, Snyder was issued a building permit for the proposed 36 foot by 46 foot building. Weikle paid a fee and picked up the permit that day. Also on August 8, 1985 Snyder began demolition of the building. Demolition was not completed until August 14.

Sometime between August 8 and August 20, 1985, the City decided to revoke the permit after Ray Harris, the developer of Calhoun Square, called on City officials on August 8 to complain that Snyder could not use the ramp to satisfy parking requirements. The City determined that the building permit issued to Snyder for a 36 foot by 46 foot building without off-street parking was in violation of Mpls. Code of Ordinances Sec. 540.1460, which required a minimum of four off-street parking spaces. The Department of Inspections notified Weikle by telephone that the building permit was invalid and followed that notice by a letter. Respondent was advised by the City that if he wished to build the 36 foot by 46 foot building he could apply for a variance from the off-street parking requirement.

Respondent claims the City prepared the letter notifying Weikle of the revocation on August 8, 1985, but that the City purposely waited twelve days, until after he had demolished his building, to send the revocation letter. The City never explained to Weikle the 12-day delay. In the interim, the old structure was demolished and Weikle had begun to work on the new building. Respondent claims the old building could have been saved if he was notified of the revocation on August 8, 1985.

Respondent contacted Joan Niemiec, the Minneapolis City Council member whose district includes Lake and Hennepin. Snyder had noticed that a newspaper article indicated that a meeting of City officials was to be held the following week about his building permit. He testified that he asked Niemiec if he could attend, but was told by her that he could not attend, and that the City was going to revoke the permit.

Snyder made several attempts to obtain a variance from the Board of Adjustment and the City Council for some kind of building on the property. He could not legally construct a building without a new permit or variance. Initially he applied for a variance for a 36 by 46 building, like the one for which the permit was revoked. A business associate of Ray Harris, Robert Fine, attended the Board's October 23, 1985 hearing on the variance as a "volunteer" sixth member of the five member Board solely for the purpose of voting on Snyder's application. At the hearing, Fine stated that Snyder had supplied erroneous information to the zoning office, and the Board of Adjustment denied the application.

Snyder also filed a variance request to vary off-street parking from four spaces to zero spaces for a 30 foot by 46 foot two-story building, the same as his original building, which was denied. Several other requested variances were denied on the grounds that the parking requirements were not met, and each denial was affirmed by the City Council. His final request for a 30 by 42 foot, two-story commercial building was heard and granted on December 23, 1986.

In January, 1987, Snyder commenced construction of the new building. A restaurant tenant was willing to accept the somewhat smaller building if Snyder constructed it immediately. At the time of trial, however, the lease of the building to the new restaurant tenant was in jeopardy because the City tabled the restaurant license application until the trial was over.

In its amended findings, conclusions and order for judgment, the trial court ruled in favor of respondent for the most part, rejecting the City's defense of tort immunity for discretionary acts. The court concluded that (1) the City negligently issued the building permit, that (2) the issuance or revocation of the permit was a ministerial act, that (3) the City is estopped from denying it damaged Snyder, and that (4) Snyder was damaged in the amount of $795,389.67. The court also provided a reduction of damages by $407,466.80, should the City grant the requested restaurant license. ¹ However, in its amended findings, conclusions and order, the court rejected respondent's 42 U.S.C. Sec. 1983 due process claims.

The trial court made several findings relevant to this appeal. Regarding the City's claim of discretionary immunity, the court found:

Virnig's approval of Snyder's site plan was not a discretionary act but was a ministerial/operational act as that term is defined by Minnesota law. The City Board of Adjustment, the City Planning Commission, and the City Council are the planning and policy making bodies of the City with respect to zoning matters. The zoning office and its personnel merely implement those planning and policy decisions. Virnig testified in...