Wermager v. Cormorant Tp. Bd.

Decision Date23 September 1983
Docket NumberNo. 82-1732,82-1732
Citation716 F.2d 1211
PartiesRoger WERMAGER and Lola Wermager, Appellants, v. CORMORANT TOWNSHIP BOARD, Respondents.
CourtU.S. Court of Appeals — Eighth Circuit

Carlson Law Office, Jay D. Carlson, Fargo, N.D., for appellants.

Benshoof, Hummel, Sinclair, Schurman, Pearson, & Evans, P.A., John E. Pearson, Detroit Lakes, Minn., for respondents.

Before LAY, Chief Judge, JOHN R. GIBSON, Circuit Judge, and ROBERTS, District Judge. *

ROSS T. ROBERTS, District Judge.

This is an action brought under the aegis of 42 U.S.C. Sec. 1983, in which Roger and Lola Wermager seek declaratory and injunctive relief in respect of a zoning ordinance adopted by defendant Cormorant Township Board ("the Township"). Their claim is based upon assertions that the ordinance in question is arbitrary and capricious and hence invalid; that it cannot lawfully be applied to their property in any event, since they have a "vested" right to the land use which the ordinance would prohibit; and that if the ordinance were to be applied to their property it would represent a "taking" thereof without compensation. Ruling upon the parties' cross motions for judgment, the District Court rejected those claims and entered judgment in favor of the Township. We affirm.

A relatively brief factual resume will suffice. In 1968 the Wermagers (husband and wife), together with Mr. Wermager's brother, purchased a tract of land, approximately 106 acres in size, located on Big Cormorant Lake in Cormorant Township, Becker County, Minnesota. 1 The land was at that time in use for agricultural purposes, and was unburdened by any zoning ordinance or other land use restriction.

In 1970 and 1971 the Wermagers platted a total of 23 lots along the shore of the lake, each such lot being less than one acre in size. A number of those lots have been sold, and 17 private homes have been constructed thereon. At the present time approximately 90 acres of the original tract remain in use for agricultural purposes and are unplatted. The instant controversy involves the use of a portion of those 90 acres.

In 1971, the Cormorant Lakes Watershed District (apparently an entity not directly associated with the Township) inquired of the Wermagers concerning the possibility of their cooperation in a proposed model sewage disposal facility to be located on their land. The Wermagers agreed to construction of the system, which was to be financed in part by federal and state grants and in part by special assessments against the land. As ultimately effected, following construction of the sewer, those special assessments have been computed on the basis of the frontage feet of sewer along both the already platted lakefront lots and the unplatted land which adjoins, and have led to a total expenditure of $11,561 by the Wermagers. In addition, the Wermagers have donated three acres of their land for placement of the sewage lagoon and drainage field. As constructed, the sewer system has the capacity to service approximately 50 one acre lots.

Several years later, on April 28, 1977, the Township enacted the general zoning ordinance in question. The primary thrust of the ordinance, as pertinent here, is to require that any lot more than 300 feet from the high water mark of a lake be no less than five acres in size. This has not only had the practical effect of limiting the number of lots the Wermagers might otherwise be able to plat and sell within their remaining 90 acres, but has also reduced that number to well below the number of lots which could be served by the aforementioned sewer system on the property. According to the Wermagers, all of this has had the effect of reducing the value of their unplatted land from approximately $450,000 to $300,000. Their various requests for a variance have been uniformly denied by the Township.

The Wermagers raise three points on appeal: (a) that the District Court erred in basing its ruling, in part, upon certain adverse inferences or conclusions which it drew in connection with the Wermagers' intentions for the use of their land; (b) that the District Court erred in upholding the validity of the ordinance when the record before it contained no affirmative proof upon which to base a finding as to the reasonableness of the ordinance; and (c), that the District Court erred in holding that the Wermagers did not have a "vested" right in the land use which the ordinance prohibits. The Wermagers' originally pleaded assertion that an application of the ordinance would represent a "taking" of their property without compensation, in violation of the Fifth and Fourteenth Amendments, has not been raised or argued in this Court.

The Wermagers' first point concerns the fact that the District Court based its decision in part upon a finding that they had never had any clearly developed intention to develop and plat the 90 acres in question. It is asserted, in that connection, that the court improperly utilized certain less-than-clear passages from Mr. Wermager's deposition for the purpose of drawing unfavorable inferences or conclusions on that subject, contrary to established summary judgment procedure. The Township suggests, on the other hand, that although the matter came before the court on cross motions for summary judgment, the court was entitled, under the circumstances, to deal with the issues on the merits, as if the case had been submitted on a stipulated record.

The Wermagers are of course correct that, as parties opposing the Township's motion for summary judgment, they were entitled to the benefit of all inferences favorable to them which might reasonably be drawn from the record. St. Louis County Bank v. U.S., 674 F.2d 1207, 1209 (8th Cir.1982); Sommers v. Budget Marketing, Inc., 667 F.2d 748, 749-50 (8th Cir.1982); Roberts v. Browning, 610 F.2d 528, 531 (8th Cir.1979). They are likewise correct in suggesting that where conflicting inferences as to a material fact may reasonably be drawn from the materials before the court, the case is not appropriate for summary judgment. Peterson v. Lehigh Valley Dist. Council, Etc., 676 F.2d 81, 84 (3d Cir.1982); Londrigan v. Federal Bureau of Investigation, 670 F.2d 1164, 1171 n. 37 (D.C.Cir.1981); Schwabenbauer v. Board of Ed., Etc., 667 F.2d 305, 313 (2d Cir.1981). And they are clearly correct in their position that the filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits. U.S. v. Porter, 581 F.2d 698, 703 (8th Cir.1978); Allied Mutual Co. v. Lysne, 324 F.2d 290, 292 (8th Cir.1963); and see 10 Wright, Miller and Kane, Federal Practice and Procedure Sec. 2720 (2d ed. 1983). We need not pause long over the matter, however, even if the District Court may be thought to have transgressed these principles, since we believe, for reasons developed in more detail below, that the factual inferences the court drew were unnecessary to a proper resolution of this matter and that a summary judgment in favor of the Township...

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