Westling v. City of St. Louis Park

• Decision Date: 15 August 1969
• Docket Number: No. 40973,40973
• Citation: 170 N.W.2d 218,284 Minn. 351
• Parties: Richard J. WESTLING, et al., Appellants, v. CITY OF ST. LOUIS PARK, et al., Respondents, Morris M. Sherman, et al., Intervenors, Respondents.
• Court: Minnesota Supreme Court

Page 218

170 N.W.2d 218

284 Minn. 351

Richard J. WESTLING, et al., Appellants, v. CITY OF ST. LOUIS PARK, et al., Respondents Morris M. Sherman, et al., Intervenors, Respondents.

No. 40973.

Supreme Court of Minnesota.

Aug. 15, 1969.

Syllabus by the Court

A special-use permit has the legal effect of a variance where it allows a use of land not permitted by existing zoning restrictions. Under such circumstances the petitioner has the burden of proving by clear and convincing evidence that the relief he seeks will not result in substantial detriment to neighoring property improved in reliance on such restrictions.

Where there is no settled case and the court has found that the values of surrounding single-family residences would be depreciated by granting a permit for construction of an apartment building, it was proper for the court to conclude that the city council was justified in denying the permit.

Dworsky, Rosen & Ravich, St. Paul, for appellants.

O'Connor, Green, Thomas, Walters & Kelly, Minneapolis, for City of St. Louis Park.

Mullin, Galinson & Swirnoff, Minneapolis, for respondent, Sherman.

OPINION

OTIS, Justice.

Plaintiffs are real estate developers who appeal from a judgment denying them a special permit to construct an apartment building in the city of St. Louis Park. Upon plaintiffs' petition for a writ of mandamus involving the same litigation, we held that they were not entitled to a settled case. ¹ Consequently the only issue for review is whether or not the findings of fact support the conclusions of law. We hold that they do.

The court's findings may be summarized as follows: In 1944, plaintiffs acquired 40 acres of farmland which from 1947 to 1962 they developed into 64 single-family residences, and apartments containing 38 units, which were isolated from the remaining property by railroad tracks. Two parcels, containing a little more than 5 acres, remain undeveloped. It is in this area that plaintiffs wish to construct an apartment building. As zoned by ordinances adopted in 1932 and in 1949, the property in question could not be used for multiple dwellings and apartment houses. The significant ordinance was adopted in 1959. It provided that within the one-family use district, apartments could not be built except by special permit. The stated purpose of the exception was to provide a method by which land having unusual building characteristics, due to subsoil conditions or the elevation of the water table, might be more efficiently utilized.

That section of the ordinance was invoked by plaintiffs in November 1962 by an application which alleged that the 5 acres in question were low, swampy, peat-filled, and had a high water table. The proposal was to construct an apartment building consisting of no more that 24 units on a parcel containing 1.3 acres, devoting the other parcel, containing 3.8 acres, to open space. The planning commission of the city of St. Louis Park recommended that the application be denied by the city council and on December 17, 1962, it was denied.

The findings of the trial court which are deemed decisive are set forth in an appendix.

In its conclusions of law, the court held that the order of the city council denying the special-permit request of the plaintiffs was not unreasonable, arbitrary, or void, but was in accordance with law, and that plaintiffs were estopped from complaining of the ordinances or the action of the council.

On this appeal, plaintiffs assert that the only issues for decision are the propriety and legality of the council's denial of plaintiffs' application for a special permit. They allege that the council's action was invalid because the denial was unrelated to public health, safety, and welfare. The thrust of appellants' argument is that the number of persons who would occupy the 5 acres in an apartment building would not increase the density resulting if single-family dwellings were constructed in the same area. They point out that the height of the buildings and the actual area occupied would not be enlarged by an apartment building. Nor would any increase in noise or traffic result or any greater demand for fire and police protection, public health services, sewer and water.

In support of their position, plaintiffs rely principally on three cases. Ostrand v. Village of North St. Paul, 275 Minn. 440, 147 N.W.2d 571; Olsen v. City of Minneapolis, 263 Minn. 1, 115 N.W.2d 734; Golden v. City of St. Louis Park, 266 Minn. 46, 122 N.W.2d 570. The fallacy of plaintiffs' contention, as we view it, is the fact that the special-permit provisions of St. Louis Park Ordinance § 6:177.1 have the legal effect of a variance. ² The distinction between the instant case and those which plaintiffs cite is the fact that the area here in question has always been zoned for one-family detached dwellings and not for apartment houses. Hence, the provisions for a special permit are actually variance provisions. Therefore, Olsen v. City of Minneapolis, Supra, does not control since there the property for which a permit to erect a gasoline filling station was sought was already zoned for commercial purposes, subject only to securing a permit. We held that the city council could not deny a permit except upon evidence that the proposed use would constitute a nuisance. In the Olsen case, the trial court found no sound basis for denying the owner the use for which his property was already zoned.

A similar result was reached in Golden v. City of St. Louis Park, Supra. There, too, the property was zoned for the very purpose contemplated by the special permit. The court found that there was no valid basis for denying a permit for an automobile junkyard in an area surrounded by similar industrial establishments. The case which troubled the trial court, Ostrand v Village of North St. Paul, Supra, falls into the same category. Plaintiff there sought and was denied a permit to construct a multiple-family dwelling in an area zoned for that purpose. The trial court held that the action of the village council was arbitrary and capricious since the proposed use conformed in every respect with the provisions of the zoning ordinance. There was evidence that no potential traffic, fire, or health hazards would result.

Plaintiffs seize on the following language in the Ostrand case (275 Minn. 446, 147 N.W.2d 575):

'* * * The only other evidence received at the hearing were statements of property owners whose properties were adjacent to plaintiff's property to the effect that in their opinions their properties might be devalued if the permit were granted. Such argument has no legality.'

Lest there be any misunderstanding by the bench and bar, we wish to make it clear that the quoted language applies only to situations where owners seek a permit to use their property for a purpose expressly permitted by the zoning ordinance, or not forbidden by the ordinance, and they have fully complied with conditions imposed for obtaining a permit. This is not such a case. The issue here presented is governed by our decision in Filister v. City of Minneapolis, 270 Minn. 53, 133 N.W.2d 500, 17 A.L.R.3d 733, certiorari denied, 382 U.S. 14, 86 S.Ct. 47, 15 L.Ed.2d 10. That case dealt with an attempt to construct an apartment on property which was restricted to single-family dwellings. There, our decision turned on the adverse effect which the proposed use would have on adjacent property. Among other things, we said (270 Minn. 59, 133 N.W.2d 504):

'* * * Courts have been solicitous of the rights of surrounding property owners in passing on the propriety of zoning restrictions. * * *

'* * * (Plaintiffs) had the burden of proving by clear and convincing evidence that the relief they sought would not result in any substantial detriment to neighboring property improved in reliance on the validity of the ordinance.'

The distinction between a variance and a special-use permit has recently been defined in Zylka v. City of Crystal, 283 Minn. ---, ---, 167 N.W.2d 45,...