State v. Miller

• Decision Date: 24 November 1939
• Docket Number: 32198.
• Citation: 288 N.W. 713,206 Minn. 345
• Parties: STATE v. MILLER.
• Court: Minnesota Supreme Court

288 N.W. 713

206 Minn. 345

STATE v. MILLER.

No. 32198.

Supreme Court of Minnesota.

November 24, 1939

Reargument Denied Dec. 14, 1939.

Appeal from Municipal Court of Minneapolis; Fred B. Wright, Judge.

Sam Miller was convicted of having violated a zoning ordinance of the city of Minneapolis, and he appeals.

Judgment affirmed.

Where premises in question were used for years as a macaroni factory, and thereafter an ordinance was passed forbidding various industries, such as the bag-cleaning industry at that location, and defendant thereafter bought the premises and installed machinery for the bag-cleaning industry, he was not entitled to a nonconforming use under the section of the ordinance, providing that the lawful use of land existing at the time of adoption of ordinance, though it did not conform to the ordinance, might continue, but that if such a nonconforming use was discontinued, any future use must be in conformity to the provisions of the ordinance.

Syllabus by the Court .

1. The complaint, charging defendant with conducting a bag cleaning industry in the light industrial zone of the city where such industry is prohibited by a duly enacted zoning ordinance states a public offense.

2. Upon this record the exclusion of the bag cleaning industry from the light industrial zone cannot be held unreasonable arbitrary or discriminatory as to defendant's premises or violative of either the 14th amendment of the federal constitution, U.S.C.A., or of § 7, Art. I of the state constitution.

3. While the ordinance was in effect the premises in question were for years used as a macaroni factory or industry permissible under the ordinance; when such use ceased defendant bought same, removed the macaroni equipment, and installed machinery for a bag cleaning industry and started operation in this industry, prohibited in such zone. He is held not entitled to a non-conforming use under § 8 of ordinance.

Brill & Maslon, of Minneapolis, for appellant.

R. S. Wiggin, City Attorney, and Leo P. McHale, Asst. City Atty., both of Minneapolis, for respondent.

HOLT Justice.

Defendant was accused of having violated the zoning ordinance of the city of Minneapolis, in that on December 13, 1938, he did wilfully, wrongfully and unlawfully use and occupy a building known as 102 South Cedar Lake Road for the handling and machine cleaning of sacks and bags, said building being then and there within the light industrial zone, wherein such use is prohibited by said ordinance. Defendant was convicted and sentenced. He appeals from the judgment.

There are three assignments of error which defendant reduces to two, viz.: (a) the court erred in holding that the facts stated in the warrant and complaint constitute a public offense; and (b) the court erred in holding that the ordinance, under which the complaint was drawn and defendant convicted, was not unreasonable, arbitrary or discriminatory, and not in violation of the 14th amendment of the constitution of the United States, U.S.C.A., and not in violation of Art. I, § 7 of the constitution of this state.

We deem the first assignment not well taken. The complaint alleges that on a specified day defendant wilfully, wrongfully and unlawfully used a building known as 102 South Cedar Lake Road in the city of Minneapolis ‘ for the handling and machine-cleaning of sacks and bags' in said building, then being situate in the part of the city zoned by the city council of the city as a light industrial zone wherein such use is prohibited, contrary to the provisions of the zoning ordinance and against the peace and dignity of the state. There is no controversy as to the existence of the ordinance, and that the building mentioned is located in that part of the city zoned as light industrial. The ordinance in terms excludes certain enumerated industries from this zone. The provision reads: ‘ In the light industrial district all buildings and premises except as otherwise provided in this ordinance may be used for any use permitted in the commercial district, or for any other use except the following:’ Then follows a list of 61 industries that are excluded, the 10th being ‘ Bag Cleaning’ and the 61st being ‘ And in general those uses which are nuisances.’ Section 8 of the ordinance contains this provision: ‘ The lawful use of land existing at the time of the adoption of this ordinance, although such use does not conform to the provisions hereof, may continue, but if such non-conforming use is discontinued any future use said land shall be in conformity with the provisions of this ordinance.’ There can be no doubt that the complaint stated a violation of the ordinance by defendant. But defendant argues that ‘ bag cleaning’ cannot be work that comes within the purview of a zoning ordinance; for then a lady, undertaking to clean her handbag or shake out a flour sack in a light industrial zone, would be guilty of an offense under the ordinance. We are not impressed with the argument. It is clear that the city council referred to industries and not to an owner's cleaning of his own bags or personal property. We think it is common knowledge that extensive plants equipped with various machinery to remove dust from used bags are in existence. It is bag cleaning industry that is excluded from a light industrial zone, and not that of one cleaning bags for his personal use.

Defendant's main effort is to show that the ordinance if applied to the use he makes of the building mentioned is violative of the 14th amendment of the federal constitution, U.S.C.A., as well as of § 7 of Art. I of the constitution of this state. This requires some statement in respect to the facts. When the property in question was by the zoning ordinance placed in the light industrial zone, the owner constructed thereon a macaroni factory which was in operation for many years. That industry was permissible in that zone. The building was 45 feet wide by about 80 feet long, two stories frame on stone foundation. The macaroni industry failed and ceased to operate in 1937. In the fall of 1938 defendant bought the premises on contract. The macaroni equipment was removed, and a bag cleaning machine operated by a five horse power electric motor was installed. Defendant buys second hand jute bags which after cleaning and mending are sold. The cleaning machine is run at short intervals. Only two men are employed, whereas over 30 worked when the macaroni industry was at its peak. When the macaroni business was conducted, the building was heated with coal. Now defendant has installed an oil burner from which the smoke and dust are muct less. The operation of the cleaner makes some noise. The testimony is conflicting as to the disturbance made, some witnesses stating that it could be heard a block away from the factory and others that you could scarcely hear anything when standing outside in front of the factory. The evidence as to the dust coming from the plant and settling in the neighborhood is also conflicting. The first few weeks of defendant's operation...