# Soderfelt v. City of Drayton > North Dakota Supreme Court · June 20, 1953 · 79 N.D. 742 URL: https://www.frixlaw.com/law-library/cases/9655792 ## Case - **Full name:** KENNETH SODERFELT, Appellant, v. THE CITY OF DRAYTON, a Municipal Corporation, Arthur N. Fleckten, as Mayor of Said City, and Donald T. Dryden, Edwin Raney, Donald Halcrow and Dean Brousseau, as Members With Said Mayor of the City Council of Said City of Drayton, Respondents - **Court:** North Dakota Supreme Court - **Decided:** June 20, 1953 - **Citations:** 79 N.D. 742; 59 N.W.2d 502; 1953 N.D. LEXIS 74 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Morris, Christianson, Burke, Grimson, Sathre, Gtiimson - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9655792 ## Opinion text Per Curiam. (On petition for rehearing.) The'appellant has petitioned. for rehearing -upon several grounds. All of them have been fully discussed and disposed of in the original, opinion, with one possible exception to which we will devote some consideration. The appellant points out that the building involved in this action was legally constructed prior to the enactment of the statute, Section 40-0502 NDRC 1949 Supp. (Chapter 252 SLND 1945), and prior to the enactment of the ordinance under which-the city acted. It is then argued that the appellant has at all times been willing to repair the building and follow the requests of the city with respect thereto and that the action *762 of the city in ordering the building destroyed is • a violation of the appellant’s constitutional and vested property rights. In the case of Russell v. City of Fargo, 28 ND 300 , 148 NW 610 , in considering an analogous statute providing for the enactment of ordinances.designating.fire limits of cities, this court said: “When the law gives city officials the power to remove a building erected within the fire limits in violation of the statute or ordinance, the power to compel the removal of the building grows solely from the fact that its erection' was in violation of the ordinance, and not .because it is a nuisance; and the power to abate nuisances does not warrant destruction of valuable property, which was lawfully erected,-or anything which was erected by lawful authority; and the power to do so, when given by the legislature, is held to be inoperative and void, unless the thing is in fact a miisance, or was created or erected after the passage of the ordinance, and in defiance of it. This is the distinction between the rights of the city regarding buildings erected before the fire limits were established and those subsequently built.” (Italics supplied.) The statute, Section 40-0502 NDRC 1949 Supp., authorizes the governing body of a city, among other things, to provide by ordinance for the demolition of any building “which creates a fire hazard, is dangerous to the safety of the occupants or persons frequenting such premises, or is permitted by' the owner to .remain in a dilapidated condition.” This statute we have held in the main opinion to be constitutional and Ordinance No. 114 of the City of Drayton to have been enacted in accordance therewith. Section 3 (c) of this ordinance, in part, provides: “In any case where a 'sub-standard building or structure’ is 50 percent damaged or decayed, or deteriorated from its original value or structure, it shall be demolished, and in all cases where a building cannot be repaired so that it will no longer exist in violation of the terms of this ,ordinance it shall be demolished.” A similar fifty per cent provision was held to be constitutional in Russell v. City of Fargo, supra. In Behrend v. Town of Pe Ell, 136 Wash 364, 240 Pac 12 , it is said: *763 “In the ordinance under consideration, the standard' is set at fifty per cent of the value of the building. It seems to be argued that this leaves the discretionary power with the council, but we think.no discretion is granted by the ordinance. All persons are treated alike under its provisions. The standard having-been fixed at fifty per cent of the value of the building, all persons applying for permits are entitled to them as a matter of right if the repairs do not exceed fifty per cent of the value of the building. The council has no discretion but must grant the permit if the value of the repairs is less than fifty per cent; and 'if more than fifty per cent, must refuse. This ordinance sets a standard, operates upon all alike, and we think the failure to provide a detailed method of procedure cannot render it unconstitutional.” In that case a permit to repair was refused and the refusal upheld by the court. In this case, the building in question, although built before the enactment of state or city legislation authorizing its destruction, nevertheless-has been permitted by its owner to reach such a state of dilapidation that the city was well within its authority in determining that it should be demolished because it had deteriorated to a degree that placed it in the category termed “nuisances” by Section 2 of the ordinance, which provides : “All ‘sub-standard buildings or structures’ within the terms of Section 1 of this ordinance are hereby declared to be public nuisances and shall be repaired, removed or demolished as herein-before and hereinafter provided.” We reach the conclusion that the record shows that appellant’s building was, under the ordinance and in fact,- a nuisance which the city might properly abate by ordering its demolition. The fact that the building, .when- built, was not a nuisance and was not unlawful does not prevent its destruction as a building that has become a nuisance under the ordinance and its maintenance unlawful. The city council having, after a full and fair hearing, determined that the building- in question was substandard under the fifty per cent rule provided by the ordinance, the council of the City of Drayton, like that of the Town of Pe Ell, had no discretion but to order the removal or demolition. This order *764 being lawful, the district court properly declined to interfere. Rehearing denied. Morris, C. J., and Sathre, Christianson, Burke and Gtiimson, JJ., concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9655792. Public record. Not legal advice.