Petition for Writ of Certiorari — Chicago, St. Paul, Minneapolis & Omaha Railway Co. v. City of St. Paul

Supreme Court brief1969

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Text

41 i*REME COURT. U. & -

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Je i US. HE

See a

INTHE =< . AUG 1

1969

Sop Court of the " ‘ paisa CLERK. |

OCTOBER TERM, 1969

oe CHR) |

_ CHICAGO, ST. PAUL, MINNEAPOLIS AND

‘OMAHA RAILWAY COMPANY AND CHICAGO

AND NORTH WESTERN. RAILWAY COMPANY,

Petitioners,

vs.

CITY OF SAINT PAUL, A MUNICIPAL

CORPORATION, ne:

Ns Cee Respondent.

: PETITION FOR WRIT OF CERTIORARI TO

___.__‘THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT |

ARTHUR J. DONNELLY

’ PHILIP STRINGER

R. PAUL SHARO

E-903 First National Bank

Z Building

Saint Paul, Minnesota 55101

_ RICHARD M. FREEMAN

‘ _ EDWARD WARDEN

an JAMES P. DALEY

400. West Madison Street

Ghicago, Illinois 60606

\ 224-7631

+ Attorneys for Petitioners /

— Review Publishing Co., 287 E. 6th St, St), Paul, Minn. 55101 — 224-7631

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References to Opinions Below .

SUP. . « whe ee vce sy

Questions Presented .........

ee a ok ee Ge ee ee ee ee ee

+ *% © | Ss eS tS D © ets © eS SRD

Constitutional and Statutory References Sans ae oe

Statement of the Case.......

Reasons for Granting the Writ

COIS ce cc ee %

_ Appendix A:

_ United States ‘Constitution, At. ¥°....-. er Ree

United States Constitution, Art. XIV, Sec.1........

Minnesota Constitution, Art.

,5 SS ry ares

t-Sec. 18... eat

Minnesota Statutes, Sec. 360.012, subd. 2...........

St. Paul City Ordinance eC

Appendix B:

Findings of Fact, ‘Conclusions of Law and

‘Order for Judgment, Distr

' Opinion of Court of Appeals:

Majority Opinion .......

Dissenting Opinion .....

Opinion Denying Reheariig

Dissenting Opinion .....

Oe Oe rs

— SS eS

JYIwwwn ww Ww

> PAGE ,

“AUTHORITIES CITED: 7

Bo ee, et err eee et PAGE

\ US:Supreme-Court Deeisions:., a

= \° Erie®R. v. Tompkins, 304 U.S. 64,

4 7 We ee eas ee Ne 26

Ae Griggs v. County of Allegheny, 369 U.S. 84, : |

= GO 8 Ob. WR (1908) 2. cl array O49

ovich v. Indiana Toll Road Commission,

379 U.S. 487, 85 S. Ct. 493 (1965) ...... See 7,8,14

Nectow v. City of Cambridge, 277 U.S. 183,

3 48 S. Ct. 447.(1928). 4.1... ieee. 7, 10, 15

United States v. Causby, 328 U.S. 256,

gg ee ES er ene eer 7,8,9

Village of Euclid v. Ambler, 272 U. S. 365, 5

47'S. Ct. 114 RRND Wiener etn Pat See aN es & 10, 15

Federal Decisions: 5 3

Hazen v. Hawley, 86 F. 2d 217 (D.C. Cir., 1936),

cert. denied, 299 U.S. 613 (1936) ............... 15, 16

Leventhal v. District of Columbia, 100 F. 24 94

ie Oi ee ee. win 8

McMahon v. ‘City of Dubuque, 255 F. 2d 154 (sth

Cir, 1958), cert. denied 358 U.S. 833 (1958) ..... 16

Wolpe v. Poretsky, 154 F. 2d 330 (D.C. Cir., —

cert. ‘denied 329 U. S. 724 (1946) ern aaeer Wa ei gts 16

State Decisions:

| - Minnesota Decisions a —

j ihisieasites v. City of Minneapolis, 267 Minn. 155,

+ | / 9a NW. 28 688 (1988) 11, 12, 13 n.

‘ - Burger v. City of St. Paul, 241 Minn. 285,

\ 64 N.W. 2d 73 (1954) - ONG Be tae crt Ay 12

-\ ° Golden v. City of St. Louis Park; 266 Minn. 46, }

122 NW. 2d 570 (1963) ......>............. i a

Ne ee a ea

eee

~.~PAGE

_ Minneapolis-St. Paul Metropolitan Airports SS 7

. Commission V. Me :Cabe, 271 Minn, 21, :

135 N.W. 2d 48.(1965) ......... NE ee oa 8 a se

Naegele Outdoor . Advertising Co. v. \ Minnetonka, i

Minn. _—, 162 N.W. 2d 206 (1968)-220o2-418n. |

Olsen v. City of Minneapolis 263 Minn. 1, —— __ ;

115 N.W. 2d 734 (1962) .\......... Phere eee oe

Ostrand v. Village of North St. Paul, ~-\° , |

275 Minn. 440, 147 N.W. 2d 571 (1966) ....... ci

Pearce v. Village of Edina, 2 = Minn. 553,

118 N.W: 2d 659 (1962). )..-............... ie =

Sanderson v. City of Willmar, (Nov. 1, 1968) .:

‘-—_— Minn. —,, 162 oy 2d494....... cee 1m |

‘State Decisions Other Than Minnesota :

Ackerman v. Port of Sea le, 55 Wash. 2d 500, i

\ 348 P. 2d 664, 77 ALR. 2d 1344 (1960) .....--. *. 9,11

Commissioner of N jataral Resturees y .S. Volpe &-Co., - °

4 349 Mass. 104, 206 N.E..2d 666 (2088). >... ee: t

Indiana Toll Road Commission v. J ankovich,

244 Ind. 574, 193 N.E. 2d 237 (1963) ............ 11 :

- Jackson Municipal Airport Authority v. Evans, oe

191 So. 24.126 (Miss. 1966) ...... ret oe

LaSalle National Bank of Chicago v. City of Chicago, |

5 Ill. 2d 844, 125 N.E. 2d 609 (1955)... i ee

Piper v. Ekern, 180 Wis. 586, 194 N.W. 159;

84 A.L.R.:32 (19238) ........ AUN AT ey rea g

- State ex rel. Royal v. City of Columbus, |

3 Ohio St. 2d 154, 209 N.E. 2d 405 (1965) ..... aN

Yara Engineering Corp. v. City of Newark,

_—— 370, 40 A. 2d 559 (1945) << eee |

‘ =

tian

ov ington tania see Bias

‘

2 s OEP nw Seer hee ee

Court Rules: . .]

Constitutional Provisions: /

- Federal Rules of Civil Procedure 52 (a).

Title 42 U.S.C. G14$4 eB ned: ....-./. acanen

United States Constitution, Fifth Ampndiment aoe

United States Constitution, Fourteenth Amendment ..

Minnesota Constitution, Article I, Section 13... . :

Minnesota Constitution, Article I, Section 7 ee

—

28 U.S.C. Section 1254 (1) —

UG, Pe IO eh Ae

Minnesota Statutes Sec. 360.012, subd. 2

Ordinances:

Ordinance No. 13346 of‘the City of S St. Paul .

IN THE:

Supreme Court of the Bd States

a ° > “

rd OCTOBER TERM, 1969 _ : > -

Naty oe” eee

" CHICAGO,'ST. PAUL, MINNEAPOLIS AND, f

OMAHA RAILWAY COMPANY AND arr | AN

AND NORTH WESTERN RAILWAY GOMPANY,| \\4

‘Bae poe Redjeonery

vs. oes

2 a ——

- ’

. —, .

“9 . Sw ¢

CITY OF SAINT PAUL, A MUNICIPAL

CORPORATION, apis se oakesra es See

S tae / y? Reapondjut.

e my

PETITION FOR WRIT OF CERTIORARI P

THE UNITED STATES COURT

FOR THE EIGHTH CIRCUIT |

Petitioners pray ‘that a Writ of Certiorari -issue to review

the judgment of the United States Court of Appeals for the

Eighth a dated May 6, a. _ respectfully show to

the Court: ee ° - “

- 2

& ", .

CITATIONS TO OPINIONS BELOW

The decision of the District Court in the form of Findings -

of Fact, Conclusions of Law and Order for Judgment is unre-

ported; a copy is printed in Appendix B, infra, pages 30-37.

The opinion of the Court of Appeals is printed in Appendix B,

infra, pages 38-77 ; it has not yet appeared in the Federal

Reporter. A supplemental opinion, denying rehearing, is :

printed in Appendix B, infra, page 78-82. ~ aie em

JURISDICTION

The judgment ‘of the Court of Appeals was entered May 6,

1969. R/Vol. I, page 39, infra. Rehearing was denied on June

16, 1969. (R. Vol. II, p. 48) ; a supplemental opinion and order

denying rehearing were entered July 2, 1969 (R. Vol. II, pp.

50-55, infra, pp. 78-82). Jurisdiction of this Court is invoked

under 28 U.S.C. Section 1254 (1). The jurisdiction of the

District Court was invoked both because of diversity of citi-

zenship (plaintiffs being Wisconsin cefporations headquar-

/tered in Illinois, and defendant a citizen of Minnesota) and

because of the federal constitutional questions involved under

the 5th and 14th Amendments (R. 2, 376):

QUESTIONS PRESENTED

1. (a) Whether a municipal ofdinance which limits the

height of construction on petitioners property to no higher

than the ground level of adjacent property for the purpose

_ of providing a scenic easement for the benefit and use of an

* adjoining city park creates such a deprivation of the practical

use of ,petitioners’ property as to constitute a taking, which,

without adeqiiate compensation, violates the 5th and 14th

’ Amendments to the United States Constitution ;

(b) Whether a decision upholding such an ordinance on

the basis of reasonableness violatts the 5th and 14th Amend-

ments to the United States Constitution ; :

—

rectly conflicts with the constitution of the state of Minnesota

~ and decisions of the Minnesota Supreme Court.

2. Whether a finding of fact made by the District Court,

that a municipal zoning ordinance bore no relationship to

health, safety, morals or the general welfare, when made pur-

suant to Federal Rules of Civil Procedure 52(a) and the re-

— quirements set by decisions of this court can be disregarded

on review by-the Court of Appeals. .

THE CONSTITUTIONAL PROVISIONS,

STATUTES AND ORDINANCES INVOLVED

(Text Printed in Appendix A)

United Stgtes Constitution, Fifth Amendment (infra, p. 17)

United States Constitution, Fourteenth Amendment (infra,

p. 17)

- Minnesota Constitution, Article” I, Section 13 (infra, p. 18)’ @

Minnesota Constitution; Article I, Section 7 (infra, p. 18)

Minnesota Statutes, Sec. 360.012, Subdivision 2 (infra, p. 18)

Ordinance No. 13346 of the City of St. Paul (infra, pp. 18-29)

STATEMENT OF THE CASE

Petitioners are the owners of a valuable tract of land, con-

sisting of two city blocks in downtown St. Paul, lying between

the Mississippi River and a public park, commonly called Kel-

|. logg Boulevard Park. With the exception of petitioner’s river

front property, the park is essentially surrounded by property

on which high-rise construction is permitted (R. 365).

Petitioner was embarked on a program to sell non-essential

and characteristically blighted railroad property. Since the,

St. Paul property is located riear the.center of the city and no

city zoning plan existed which restricted its- use, it was con-

sidered an excellent site for commercial urban development.

Its highest and best use would be for high grade residential

—— lol

a .

development. (R. 171, 181) and the trial court so found (R.

378). As such, the property was valued at $320,000 (R. 380).

When the St. Paul City Council learned that the contemplated

sale would probably result in high-rise construction, it reacted.

On September 3, 1964, the Council adopted, in principle. (R.

124), a prohibition of any structure whatever on petitioners’

land above the level of the Park (R. 122-124; 363), interroga-

tory No. 8 (R. 42) and. answer thereto (R. 43). Two years

later, on September 20, 1966, the City Council enacted a formal

ordinance to this effect (R. 28-39) singling out petitioners’

property alone (R. 365). Subject to this restriction, the prop-.

erty is worth only $150,000 (R. 380); so that the direct ioss

from this enactment is $170,000. No provision for compensa-

tion, in any form or in any amount, has been made or is in-

tended by the City (R. 380). a

e City claims the right, under its police power, to. con-

Fis ofa air space over the property in this manner without

compensation. Two District Court judges held that the enact-

ment constituted’ a taking for which compensation must be

provided under both the United States and Minnesota Con-

stitutions (R. 20-21, 375, 381). The Court of Appeals, by its

_ majority opinion and the judgment for which a review is

sought, reversed. It held that the owner, because the ordinance

was “reasonable,” was not entitled to any compensation

(R. Vol. II, pp. 8, 13; infra pp. 45, 50). The ducviting opinion

by Judge Mehaffy found that the petitioners are entitled

to constitutional protection. ‘Petitioners: applied for a re-

hearing (R. Vol. II, p. 41) and also filed a Suggestion, under

Rule 35 of the Federal rules of Appellate Procedure, for a

rehearing in banc (R. Vol. II, p. 45). Three judgés dissenting,

Chief Judge Van Oosterhout, Judges Blackmun and Mehaffy, —

the Suggestion for a rehearing in banc was denied on J une 123.

1969 (R. Vol. II, p. 47), followed by a denial of the petition

for rehearing on June 16, 1969 (R.’Vol, II, p. 48). This was

followed, on July 2, 1969, with a supplemental opinion denying

a rehearing (R. Vol. II, pp. 50-54; infra, pp. 78-81). Judge

Mehaffy again dissented (R. Vol. Il, p. 53; infra p. 81).

Although the ordinance, in its preamble, recites that it is

for the purpose of promoting “public health, safety, order, |

convenience, prosperity and general welfare,” no substantive

evidence.was presented to support any such recital and the

District Court found that the ordinance dig ‘not, in fact, pro-

' mote any of these factors to any appreciable’ extent (R. 380- .

381). The District Court also found that the ordinance was

an instance of spot zoning (R. 379, 381), and constituted a con-

fiscation of property without compensation (R. 381; infra p.

86).. The Court of Appeals does not claim, in- its majority

opinion, be-ags this finding in any way lacks evidentiary sup-

port; r does it deny-that the passage of this ordinance,

- if enforced, constitutgs a taking of property without compen- _

' gation. The court simply ignores the subject in its entirety. .

The Court of Appeals, in.its majority opinion, rests its view,

in sustaining the ordinance, upon the proposition ‘that it is a

“reasonable” enactment. and is in furtherance ofthe public

welfare. Although noting’ that the owners had from the be-

ginning urged the constitutional issues, both state and fed-

_ -eral (R. 7), the court, in effect, subordinates the constitutional

issue to the determination of reasonableness. The court then -

defers this determination to the City Council. The result is

that the City Council, having decided that its own ordinance i g

is reasonable, acts as sole arbiter of a question of constitutional’ F

law. The incantations of the magical words of police power and

reasonable zoning, by the Council thus lock the door of the ;

United States District Court to the petitioner and anyone simi- -

, larly situated.

The question here is one of national importance. There are,

throughout the United States, hundreds of ‘old citiés built on

the banks of rivers. Property along those rivers, in many in-

_ stances, is. depreciated by age, deterioration and changing

économie conditions. Restricting the use. of this property-“by—

— height: restrictions on new construction precludes re-

/habilitation of these waterfront properties. Unless the cities

purchase this. property, or private parties are permitted to

convert it to modern urban use, it will remain a blight. ‘Un-

reasonable restrictions on, property inhibit alienabilgty | and.

place the. dead hand of the past on cities striving to be reborn.

Unused and blighted railroad property can provide a new

; source of deperately needed urban property. If it is perma-

nently subjected to arbitrary zoning restrictions, it will re-

main unused and unsightly. ; |

Title 42 U.S.C. § 1441 et seq., * provides a ‘nailed pro-

gram of loans and grants to clear slums and rehabilitate urban

blight. It includes provisions for funds to build parks and buy

f ‘air-rights. There is implicit in this, law the congressional intent

- that the cities may act. to rehabilitate old urban areas and pro-

vide the opportunity for new construction: The act, in fact, .

seeks to encourage the type of development that the City of

St. Paul has sought to thwart. Paramount in this legislation

_ is the desire to provide urban housing and at the same. time

to inhibit urban sprawl. Discriminatory height restrictions

effectively bar the application of this federal policy. |

—:

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5 * teal

a ne

Pas

: 1 fre manlodtty opinion is in diel conflict with the deci-

Ny sions of this court in

Lh, United States v. Causby, 328 U. S. 256, a S. Ct. 1062

\ . .(1946) Vines . ra

\. Griggs v. County of Allegheny, 369 U. s{ 8 84, 82°S. Ct.

631 (1962)

~“Jankovich v. Indiana Toll Road Clinidaien, 379 U.S. 487,

85 S. Ct. 493 (1965)

Village of Euclid v. Ambler, 272 U.S. 365, 47 S. Ct. ny!

(1926) . i

Nectow v. City of ' Ct ot, dat

(1928) \ aa S \A

te ;

In both the Griggs \no-fa, this court held that .

usable air space over private property canno taken except

by due process and with just compensation to the owner. These

cases involv d ight paths above private property. This gg

. found that, although the paths used by aircraft -were above a

structures or trees on the property, the/t use of this airspace

_____ for a public. purpose constituted the taking of an easement.

‘The court in Causby noted that this:easement of flight, if

permanent, was equivalent to a fee interest. Thus, a taking

aia such an easement required compensation to the owner to

the extent that the utility of his property is diminished. It was

critical to these decisions that the easement taken materially

interfered with the enjoyment and use of the property. J ustice

Douglas in Causby stated :*°

“* * * that if the landowner is to oie: full enjoyment ©

of the land, he must have exclusive control of the imme-

diate. reaches of the enveloping atmosphere.” (328 U.S.

at 264)

baked 2 saa a a ne

s i a

. It is apparent that this court has recognized that, although .

property is subject to many restrictions, there is a zone of air

rights immediately above ai! property which is indispensible

to its use and enjoyment. It is so necessary that it cannot be

taken for public use even though the owner would leave it

vacant. In Causby, the court, stated: , Ne ~

“The landowner owns at Yeast as much of | the space above

the ground as he can occupy or use in conhection with the

land. The fact that he does not occupy, it in a physical -

sense by. the | erection of buildings and the like is not ma-

terial. gi -_ U.S. at 264) \

Siehflarly, the Jeubovich case supports the ae that

_ the zoning power cannot justify the taking of an easement of

flight.* Jankovieh let stand a decision of the Indiana Supreme

Court which found that a zoning ordinance which limited the

height of construction on defendant’s property to.18 feet con-.

stituted a taking which required compensation. The ordinance

had sought to limit building ——* in order to provide a glide re

path for aircraft.

Jankovich bears! some striking similarities to ‘the facts in

this case. Here the city of of St. Paul has sought, by ordinance,

to limit the height of construction on petitioners property to

no higher than the ground level of adjacent property. The

ordinance condemns usable air rights which, under Minnesota

law (Sec. 360.012, subd. 2, printed in Appendix A,. infra, p.

18), inure to the. holder of surface rights, for the sole pur-

pose of extending the view from Kellogg Boulevard Park.

Thus, a path of view, created by ordinance, has bisected the

air space essential to the use and enjoyment of petitioners

* In Jankovich this court dismissed the Writ of Certiorari ay having

been improvidently granted. The dismissal was based on/the fact

that adequate state J aixrous sis sates the decision. \ /

\ A BAe %

\\° \\" \ \ propaty. Subject to this servitude, the utility of petitioners’ :

aa | property has been greatly diminished.

| || The ordinance has created a scenic easement over. peti- \

y tioners property from the Mississippi River to Kellogg Boule-

"| yard Park. This easement allows the spatial expansion of a

fi city park, which could ordinarily have: ‘only been acquired by \,

}

* the use of eminent domain or condemnation. The scenic ease-

~ ment deprives the petitioners of the use of the property just

as surely as would low-flying aircraft, a bridge acorn or .

—= an elevated railway. \

NS The distinction between-a valid zoning ordinance and a tak-

ing for which compensation is required is often obscure. Here,

: sc is clear ‘that the air space condemned as an ease-

ment of view has been converted to a public use. This public \- =:

\ use constitutes the taking. “ “i aes

“When private propert ‘ights are actually destroyed f

through the governmeéntal action, then police power rules F

‘c_e usually applicable. . . . But, when private property

rights are taken from the individual, and are conferred

_ upon the public for public use, eminent, domain principles

are applicable. . . 2’ Ackerman v. Port of Seattle, 55

. Wash. 2d 400, 348 P. 2d 664 at 668, 669, 77 A.L.R. 2d -

1344 (1960) om

The majority opinion of the Court of Appeals has permitted { ay

the city of St. Paul-to do what this court has prohibited the r i

United States Army (Causby) and the county of Allegheny-

(Griggs) from doing. In those cases, the easement was RN i |

to promote air travel; here it is taken improve the view. In ;

-~Causby and Griggs, vacant air space was taken; here air

rights intended to beused in construction have been taken. .

Unquestionably, open space and scenery are a necessary ‘

component of urban planning. So, too, are schools, streets and

a AITO NTRS an

it would. stamp with judicial approval a method of condemning

property | ‘without compensation.

The majority opinion below\upheld a zoning ordinance on

a. concept of reasonableness that is contrary to the ‘constitu-

< tional test prescribed by this court. The decision can be sum-

: marized as follows:

(a) Neither state nor federal constitutional provi-

sions bar the enactment of a zoning ordinance pursuant

to an exercise of the police power;

(b) Whether the police ie is valid is a question

of reasonableness; and’

: - function. )

The reasoning is perfectly circular. It allows the controlling

’ vote of the City Council ‘to decide not- only a legislative ques-

tion, but a question of constitutional law. In addition, the deci-

sion permits reasonableness to supersede the constitutionak—

test prescribed by this court in Village of Euclid v.‘Ambler,

‘ 212, U.S. 365, 47S. Ct. 114 (1926), and Nectow v. City of Cam-

-nounced that a zoning ordinance must be reviewed to de-

termine if its “provisions are clearly arbitrary and unreason-

able, having no substantial relation to the public health, safety,

morals, “or general welfare.” The ‘majority decision -has

abandoned this test for amorphous standard of reasonableness

alone.

The majority opinion is a complete deviation from all

previously. accepted law. Resting on “reasonableness”, alone,

+ it ig founded on no existing case law. On the- other hand, the

f nS :

dissent buttressed its position on state and federal cases which

‘speak to the issue. Cases which have decided the question con-

trary to the majority opinion are numerous.

LaSalle National Bank of Chicago v. City of Chicago, 5

. ST. 2d 344, 125 N.E. 2d 609 (1955)

"Piper v. Ekern, 180 Wis. 586, 194 N.W. 159, 34 ALR.

32 ,(1923)’

Ackerman v. Port of Seattle, 55 Wash. 2d 500, 348 P. ‘2d

~~ 644, 77 A.L.R. 2d 1344 (1960) z

Yara Engineering Corp. v. City of Newark, wi N.J.L.

370, 40 A. 2d 559 (1945)

Commissioner of Natural Resources v. S. Volpe & Co.,

349 Mass. 104, 206 N.E. 2d 666 (1965)

State ex rel. Royal v. City of Columbus, 3 Ohio St. 2d 154,

209 N.E, 2d 405. (1965)

| 193 N. E. 2d 237 (1963)

Jackson Municipal Airport Authority v. Evans, 191 So.

2d 126 (Miss. 1966) 3

It is apparent that if the decision of the Court of ‘Appeals

stands, it will raise a serious question for state and federal

courts'in determining the proper constitutional criteria tobe |.

applied in these frequently litigated zoning cases..

2. The majgrity opinion has decided an important: state

question in conflict-with the applicable state law, as, the per-.

spicacious dissenting opinion of Judge Mehaffy (infra, pp.

°59-77) so. ably indicates. In Alexander v. City of Min-

neapolis, 267 Minn. 155, 125 N. W. 2d 583 (1963), the facts are

identical to those here on all important points. There, the City

enacted an ordinance limiting buildings on the plaintiff’s prop-

erty to two and a half stories (here it is limited to ‘or below the

2. —_ oneunernconimesnonts aenemenaripeeeemees . .

a OTT ATE ME sli iia iia RELL ESOS DLN ELT INT HNP NM

3 Indiana Toll Road Commission v. Jankovich, 244 Ind. 574, com i

Fe Rent NE

ground line). As a result of this ordinance, the plaintiff’s

property was depreciated in value from $57,000 to $22,000.

The Minnesota Supreme Court held the ordinance to be void -

and unconstitutional for failing to provide compensation for

this taking, under both the state and federal constitutions. In

Burger v. City of St. Paul, 241 Minn. 285, 64 N.W. 2d 73

(1954), the court specifically held that, under the Minnesota

Constitution, a zoning easement in land is property ef which

_ the owner cannot be deprived without just compensation. In

four other cases, the enacted restriction was different from.

that in Alexander; bit the same constitutional considerations

' were applied the same way, by the Minnesota court, in ‘Olsen

v. City of Minneapolis, 263 Minn. 1, 115,N. 'W. 2d 734 (1962) ;

Pearce v. Village of Edina, 263 Minn. 553, 118 N. W. 2d 659.

(1962) ; Golden v. City of St. Louis Park, 266 Minn. 46, 122

N.W. 24.570 (1968) ; and Ostrand v. Village of North St. Paul,

275 Minn. 440, 147 N.W. 2d 571 (1966).

. The‘only tbiengg by the Court of Appeals to distinguish the

_ Alexander and its companion cases to the same effect is the

following from the majority opinion (R. Vol. II, p. 13; infra

p. 50):

“We. would add that in those four cases, as-in those where .

a contrary result was reached, the Minnesota court made

it clear that the test was one of reasonableness.”

‘With, due deference to the Court of Appeals, we must inform

the court that neither i in the Alexander case, nor in any of the

three other cases has the Minnesota court said anything of the

kind. In the Alexander case, for exanfple, the only place where

the word is even used is when the court is speaking of the vea-

sonable market value. In the latest of the cases. referred to

‘(Ostrand v. Village of North St. Paul, 275 Minn. 440, 147

N.W. 2d 571 (1966) ), the Minnesota court took a directly op-

\ ‘ 13 : / F moet, “ ’

\ ce > re.

posite view from ila obama to it by the Court of Appeals.

_ There the concluding\ sentence of the opinion ‘is: yy F

“We have held that an ordinance of this kind constitutes

taking a propert without due. process contrary to con- q

“ stitutional requirements.” * ie 4

Of course, it has always been held that if an ordinance is

unreasonable, that fact alone is sufficient to render it void;

but no court, until the majority opinion in this case, has ever

held that reasonableness of an ordinance, rather than the re-

quirements of: the constitution, is the test of its validity ; and

certainly the Minnesota Supreme Court has never so held.*

In denying the Petition for Rehearing, the majority opinion ©

has cited Minneapolis - St. Paul Metropolitan Airports Com-

mission v. McCabe, 271 Minn. 21, 185 N.W.- 2d 48 (1965). The L

court indicates that McCabe stands for the proposition. that

_ the validity of zoning ordinance under Minnesota law, is de- : i

termined by reasonableness. Yet the Minnesota court states: :

“Neither is it possible at this time to determjne whether f

the operative effect of an ordiriance proposed, but not yet ; :

adopted, will be to deprive any person of property without ~~ .

just compensation or will represent an unreasonable exer-

* Naegele, Outdoor. Advertising Co. v. Minnetonka, —— Minn. ——. ‘|

162 N.W. 2d 206 (1968), is cited by the court below. as broadening ;

the scope of zoning regulations under Minnesota law; but it plainly °°

does not change the Alerander case nor its companion decisions. :

The Naegélé case involved a village ordinance prohibiting all bill-

boards within all areas zoned exclusively for residential use. The

érdinance was held reasonable and was sustained. Naegele is inap-

plicable here. It is based on a comprehensive zoning plan, whereas

_ petitioners’ property alone is affected by the ordinance in question.

Antibillboard laws. merely limit the type of structure which can

be erected, unlike a height restriction which prohibits all use above

a certain level (here ground level). Following the Naegele case, the

Minnesota Supreme Court again affirmed, as it had done several .

times before, the rule of the Alexander case. Sanderson v. City of — *F

Willmar, (Nov, 1, 1968) —— Minn. ——, 162 N.W. 2d 494. ;

° e 4

é >

;

a ‘ ; :

: cise of the police power”, 271 Minn. at-34 (Citing Janko-..

vich v. Indiana Toll Road Commission, supra)

c It is clear that the Minnesota’ Court recognized that’ essen-

tial determination in-a zoning case is “whether there is a tak-

ing without compensation as the Indiana Supreme Court found

_ in Jankovich and as the District Court found here.

By refusing to apply.the controlling Minnesota law and

adopting an independent standard based” on reasonableness,

the majority has clearly disregarded the mandate of this court

in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S, Ct. 817

(1938).

_ &%. The Court of Appeals has so. far depaeteit from the ac-

cepted and usual course of judicial proceedings as to call for

an exercise of this court’s power of supervision. The majority

opinion held that, as a matter of, law, the ordinance of the city

of, St. Paul was reasonable and therefore constitutional. In

so doing, the court ignored the findings of the District Court

that the ordinance: }

(a) bore no substantial relationship to health, safety,

morals or the general welfare; ©

» (b) was an instance of spot zoning and not part of

a comprehensive plan; and :

the benefit to the public was small in comparison to the

detriment of the property owner. (R. 381; — p. 36)

. Federal Rules of Civil Procedure 52(4) provides that “find-

ings of fact shall not be set aside unless clearly- erroneous, and

“due regard shall be given to the opportunity of the trial court

to judge the credibility of the witness.” It is apparent from

the majority opinion that it has deliberately disregarded thé ~

facts on which the District Court based its opinion. (R. Vol. II,

p. 8; infra p.45)

‘\

{ ’ /

‘Mt is essential in a case of dts kind that the trial court fake

extensive factual determinations, as-did the lower court here.

In Village of Euclid: Ambler Realty Co., 272 U.S. 365, at 395

(1926), and in Nectow v. City of Cambridge, 277-U.S. 183, at

188 (1928), this court stated that a zoning ordinance Wit be

sustained unless its “provisions are clearly arbitrary and un-

reasonable, having no substantial relation to the public health,

safety, morals, or* general welfare.” This constitutional test

- ean only be applied after a finding of fact by the trial court.

-District Court findings of fact have always provided the

basis for Appellate review in zoning cases. McMahon v. City

of Dubuque, 255 F. 2d 154 (8th Cir., 1958), cert. denied 358

U.S. 833 (1958) ; Hazen v. Hawley, 86 F. 2d 217 (D.C. Cir., ©

1936), cert. denied 299 U.S. 613 (1936) ; Leventhal v. District

of Columbia, 100 F. 2d 94 (D.C. Cir., 1938). The same is true

of trial court findings in Minnesota Pearce v. Village of Edina,

263 Minn. 553, 118 N.W. 2d 659.

“Judged against the background of these authorities, the

majority opinion can be characterized as an aberration. It

violates a Rule of Federal Procedure by disregarding a finding

of fact which is required by this court.

\ 4. The majority opinion is in conflict with the decisions

of another Court of Appeals. The District Court found that

since the ordinance of the city of St. Paul isolated petitioners’

property for height restrictions, it constituted invalid spot

zoning.* The effect of the reversal by the Court of Appeals

* The fact that this is a case of “spot zoning” is indirectly, and prob-

bly unconsciously, noted by the majority opinion when it ‘states

‘ correctly, that only the petitioner appeared before the city council

opposing the ordinance. (R. Vol. II, p. ——; infra ——). This is’

necessarily so, since only petitioners property is affected by it (R.

365). A valid zoning restriction must operate uniformly upon all

persons similarly situated within the particular d'strict. (Pearce vs.

Edina, supra) which this one certainly does not do. .

_— wer <a

is to hold that spot zoning is constitutionally permissible. The

Court of Appeals for the District: of Columbia has held other-

wise. In Hazen v. Hawley, 86 F. 2d 217 (D.C. Cir., 1936), cert.

denied 299 U.S. 613 (1936), and Wolpe v..Poretsky, 154 F. 2d

330 (D.C. Cir., 1946), cert. denied 329 U.S. 724 (1946), that

court upheld the District Court decisions which found that |

* spot zoning constituted an arbitrary and unreasonable exer-

cise of the policepower which bore no relation to the public

welfare.

- CONCLUSION

_ Considering all the authorities to the contrary, the decision

below ‘can be seen as clearly erroneous. It is therefore respect-

fully suggested that this may be an appropriate case for this

court to.invoke its power of summary disposition and accord-

ingly reverse.

For the foregoing reasons, this Petition for Writ of

“Certiorari should be*granted and the judgment below should

be summarily reversed.

_—

_ Respectfully submitted; |

e ARTHUR J. DONNELLY

_ PHILIP STRINGER

R. PAUL SHAROOD —

gee E-903 First National Bank

‘ Building

‘ Saint Paul, Minnesota 55101

RICHARD M. FREEMAN

EDWARD WARDEN

——~~ JAMES P. DALEY

400 West Madison Street

Chicago, Illinois 60606

Attorneys for Petitioners

APPENDIX) A

THE CONSTITUTIONAL PROVISJONS,

STATUTES AND ORDINANCES INVOLVED

UNITED STATES CONSTITUTION

Amendment V:

No person shall be held to answer for a capital or otherwise

_ infamous crime, unless on a presentment or indictment of a°*

grand jury, except in cases arising in the land or naval forces,

or in the militia, when in actual service, in time of war and

public danger; nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be witness against him-

self; nor be deprived of life, liberty, or property without due

process of law; nor shall private property be taken for public

use without .just compensation.

Amendment XIV, Section 1:

Section 1. -All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they reside. No ‘

state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty; or property

without due process of law, nor deny to any person within its

jurisdiction the equal protection of the laws.

MINNESOTA CONSTITUTION Pt he

Article I, Section 7: _—

Due process; prosecutions; second jeopardy; self-incrimina-

tion; bail; habeas corpus. Sec. 7. No person shall be held to

answer for a criminal offense without due process of 4aw, and

no person for the same offense shall be put twice in jeopardy

of punishment, nor shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life, liberty

or property without due process of law. All persons shall be-

fore conviction be bailable by sufficient sureties, except for

capital offenses when the proof is evident or the presumption

feat; and the privilege of the writ of habeas corpus shall not

be suspended unless when in case of rebellion or invasion the

public safety may require.

“Arti¢le I, Section 18: | 4

Private proper ty for public use. Sec. 13. Private propert

shall not be: taken, destroyed or damaged for public us

without: just compensation therefor, first paid or secured.

Minnesota Statutes, Section 360.012, Subdivision 2:

Subd. 2. The ownership of the space above the lands and

waters of this state is declared to be vested in the several

owners of the surface beneath, subject to the right of flight

described in subdivision 3.

ST. PAUL were ORDINANCE NO. 13346.

Council File No. 230015—Ordinance No. me Victor

J. Tedesco— -

An ordinance amending Ordinance No. 7103,.approved J aly

2, 1929, amending Ordinance No. 5840, approved J uly 6, 1922,

entitled, —

“An ordinance for the purpose of promoting the public

health, safety, order, convenience, prosperity and general wel-

_ fare by providing for the classification, regulation and restric-

re ~., 19

tion of the location of trades and industries and of buildings

used for. human habitation and for specified purposes and the

_~height and bulk of buildings hereafter erected or altered; and _

regulating and determining the minimum size of lot line courts |

and other open spaces and establishing the boundaries of dis-

tricts for said puises.” ,

. Section 1

‘That for the purpose of promoting the public health, safety,

order, convenience, prosperity, and general welfare of said -

~ City and its inhabitants and the regulation of the location, size,

use, height, site arrangements of buildings, and density of .

population therein and the accomplishment of said purpose,

it has become necessary to amend the Zoning Code, Chapters |

60 to 64, of the Saint Paul Legislative Code, to the end that

the same shall include express provisions therefor and effec-

tively regulate and limit the height and bulk of buildings and

structures hereinafter constructed or altered within that cér-

tain ‘portion of said Height District III and within that certain

portion of said Height District IV, established and shown on

said zoning map created as a part of the Ordinance No. 5840,

approved July 6, 1922, which portion of said Height District.

III, to be amended, is bound by the following described lines:

Commencing at a point which constitutes the inter-

section of the westerly line of Saint Peter Street with the

southerly line of Height District IV established by the

City of Saint Paul Building Zone Ordinance number 5840

and‘shown on the zoning map thereby made a part of said

ordinance, as enacted; thence easterly from said point

along said southerly line of said Height District IV to

the point of intersection of the same with the westerly

line of Height District II established by said ordinance

\ 204

; ' \ ;

‘and ‘shown on said zoning map; thence southerly along

said west line of said’ Height District II produced from

said last mentioned point: to the intersection of the same

with the U. S. Harbor Line as the same is established ad-

““jacent to the commonly designated east bank of the

Mississippi River. Thence westerly (or upstream) along

ai established U. S. Harbor Line from said last men-

tioned point to the point of intersection of the same with |

the west line of Saint Peter Street produced ; thence in

a northerly direction along said westerly line of Saint Z

_ Peter Street —— to the point of ew oe

In the several particulars hereinafter act forth; and which.

portion of said Height District IV, to be ‘amended, is bound

by the following described lines: _ |

All that triangular portion of Height District IV es-

tablished by Saint Paul Building Zone Ordinance No.

5840 and shown on the zoning map made a part of said

ordinance, as enacted, which is bounded on‘ the orth by

the center line of Kellogg Boulevard; on the east by a.

westerly line of Height District II established by ‘said

ordinance and shown on said zoning map produced fro

the center line“ of: Kellogg Boulevard: to the intersection \.

of said westerly, line. of said Height — II with the

said southerly line of* said Height District IV; pam

south and west by. said sout erly line ok Height Distzict, i /

IV, as said southerly line t Height District IV is | ex \)

tended from the interséction of the same with. said Nea bey!

ly line of said Hei District {I westerly to the interse¢-

tion of the same with the center line of Kellogg Boulevard

x at or adjacent to the west line of Wabasha Street pro-

“4, duced across Kellogg Boulevard. |

‘Plies

. ’

< : ® yen

- .

21"\ / |

f ‘ gti \ |

iculars: a set forth.

In the several

Section 2 ||

Sections q 2, and 4 of Ordinance ‘Number 7108, approved

‘July 2, 1929, and Sections /61. 04 and 61. 05 of the Saint Paul

~ -Lagigiative Code are op) repealed. \

eation 3 , \

The Zoning Code provisions of Chapter 61 of the Saint Paul

‘Legislative Code, Section 61. 04, be and hereby are amended

a Ne

to read as follows:

61.04 Height District IN eS any ive

(a) There shall be no restrictions as to the heigh to .~

which any building or structure may be erected or altered

“din Height District HI except in respect to any building

or structure which may ‘be erected in that portion of said

Height ae III which lies within the following f

scribed boundary lines: i |

Commencing at a point which constitutes the inter-

section of the westerly line of Saint Peter Street jwith

~~ the the southerly line of Height District IV established

by the City of Saint Paul Building Zone Ordinance

Number 5840 and a on the zoning map thereby

made a part of sdid ordinance, as enacted; thence

easterly from séid point along said southerly line of

said Height District IV to the point of intersection

of the same with the westerly line of Height District

II establishéd by said ordinance and shown on said

_goning map; thence southerly along said west line of

said Height District II produced from said last men-

tioned pgint to the intersection of the same with the

U. S. Harbor Line as the same is established adjacent

RE et Vee A

MIP DEEN TI I POLE he

ae ee

PRS LIES Tw

OM NY RD ETT

‘

j ARIAL EN Neer IEE ERE Deu AT Pesan eh

to the commonly designated eqst bank of the

Mississippi Riv Thence westerly (or upstream)

along said established U. S. Harbor Line from said last

mentioned point to the point of intersection of the

same with the west line of Saint Peter Street produced ;

_—thence in a northerly direction em said westerly line

of Saint — Street produce

ning. 4

‘ me . —~e

: ba

Thé Zoning Code provisions of Chapter 61 of the Snint Paul

Legislative Code be and the same are hereby amended by the

insertion therein immediately following Section 61.04(a). as

~ get out in Section 8 of this ordinance the following additional

section: !

Section 4

(b) © That for the specification and. Kapifcation 0 of the

hereinafter prescribed and imposed regulations and

limitations on the height and bulk of buildings and

structures which may be erected or altered therein, said .

part of said Height District III within said hereinabove

ee described boundary lines of the same mci is; divilled

| into four separate and hereby established -s ctfons. !

(1) Section 1;-Height District III, shall consist

of all that part of the same which lies west of the wést

line of Cedar Street as said line of Cedar Street is

produced from the north to the south noe aay of |

the afore-described part of Height District III

(2) Section 2, Height ‘District III, shall consist of

all that part of the same which lies east of said west

line of Cedar Street produced as aforesaid and ‘west

_of the west line of Minnesota: Street produced from: the

north to the south boundary line of the sa aaa

part of — District III. -.

to the point of begin-

Ae - 23

\\ (3) Section 3, Height District III, shall consist of.

all that part of the same which lies east of the west

line of Minnesota Street produced as aforesaid and west

of the centér line of Robert ‘Street produced: from the _

north to the south boundary line of the afore-described _

part of Height District. III.

(4) Section 4, ‘Height District III, shall fonsist of

all that part of the same which Jies east of.the said line

of Robert Street. produced as aforesaid and west of

the. west line of Height District II produced from the

north to the south boundary line ¢ the afore-described

part of ae District III.

Section 5

The Zoning Code provisions of Chapter 61 of the Saint Paul

Legislative Code be and the same hereby. are amended by the

insertion therein immediately following Section 61.04 (b) as

“set out in cca ci this ordinance the following additional

section:

(c)~-That in the various sections of Height District

III described above no building, structure, or part of any

building or structure, shall be. erected or altered except

_ in conformity with the regulations herein prescribed for

said established sections of said Height District III.

. (1) Section 1, Height District Ill

—~ Tn Section 1, Height District III, no building or struc-

ture shall be erected or altered to a height in excess of

Elevation 90, City of Saint Paul datum.

(2) Section 2, Height District Tit

-In Section 2, Height District. III, no building or

‘structure shall be erected or altered to a height in

excess of Elevation 75, City of Saint Paul datum. -

peta

24 :

| a |

~, (8) Section 3, Height District III

In Section 8, Height District III, no building or struc-

ture shall be erected or altered to a height in excess of

Elevation 60,-City of Saint Paul datum. See:

(4) Section 4, Height District HI

In Section 4, Height District uf, : no “building or

structure shall be erected or altered to a height in ex-

cess of Elevation 45, City of Saint Paul datum.

The Zoning Code provisions of Chapter 61- of the Saint

Paul Legislative ACode, Section 61.05, be and hereby are

amended to read 4s follows: |

. 61.05 Height District IV

(a) There shall be no restrictions as to the height to.

which any building or structure may be erected or

altered in Height District IV, except in respect to any

building or structure which may be erected or altered in

that portion of said Height District IV which lies within

the. following described boundary lines:

All that triangular portion of Height District IV

established by Saint: Paul Building Zone Ordinance

‘Number 5840 and shown on the zoning map made a

part of said ordinance, as enacted, which is bounded

on the north by the center line of Kellogg Boulevard;

--on the east by a westerly line of Height District II

established by said - ordinance and shown on said

zoning’ map produced from the center line of Kellogg

Boulevard to the intersection of said westerly line of

said Height District II with the said southerly line of

said Height District IV on the south and west by said

“southerly line of Height District IV is extended from

‘the intersection of the same with said westerly line of

ar said Height District II ‘westerly to the intersection of

the same with the.center line of Kellogg Boulevard at

or adjacent to the west line of Wabasha Street produced

across. Kellogg Boulevard. [

Section 7 }

The Zoning Code provisions of Chapter 61 of the Saint Paul -

Legislative Code be and the same hereby are amended by the —

insertion therein immediately following Section 61.05 (a) as .

set out in Section 6 of this ordinance the following additional

section: a

(b) That for the as application of the

herein prescribed and imposed regulations and limitations

on the height and bulk of buildings and structures which

may be erected or altered therein, said part of Height

District IV within said herein-described boundary lines

of the same is hereby divided into four separate and here-

by established sections. Stee

(1). Section 1, Height District IV, shall consist of |

all that part of the same which lies: west of the west line

of tedar Street as said line of Cedar Street is produced

.from the north to the south boundary line of the afore-\

described part of Height District IV.

(2) Section 2, Height District IV, shall consist of

‘all that part of the same which ‘Ties east of: ‘said west

line of Cedar Street produced as aforesaid and west

of the west line of Minnesota Street produce ‘from the

north to the south boundary line of the afo e-described

part of Height District rv...

(3) Section 3, Height District IV, hall nsiat of

all that — of the same which lies east of the west line

epee oe

SOS CTS

” of Minnesota Street produced as aforesaid and west

* . of the center line of Robert Street produced from the

~ north to the south boundary line of the afore-désc ibed

part of Height District IV. »

(4) \Section 4, Height District IV, shall consist of |

all that part of the same which lies east of the center

line of Robert Street produced as aforesaid and west

of the west line of Height District Il produced from

the north to the-south boundary line of the afore-de-

scribed part of Height District IV.

Section 8

The Zoning Code provisions of Chapter 61 of théSaint Paul

Legislative Code be and the same hereby are amended by the

insertion therein immediately following Section 61.05 (b) as

set out in Section 7 of this ordinance the following a ame

section:

IV described above no building structure;-or part of any

building or structure shall be erected or altered except

in conformity with the regulations herein prescribed for

said established sections of said Neight District IV.

(1) Section 1, Height ct IV

In Section 1, Height District IV, no building or struc-

ture shall be erected or. altered to a height in excess

of Elevation 90, City of Saint Paul datum. ©

(2) Section 2, Height District IV

In Section 2, Height District IV, no building or struc-

ture shall be erected or altered to a height in excess of

Elevation 75, City of Saint Paul datum.

(3) Section 3, Height District IV

In Section 3, Height District IV, no building or

‘structure shall be erected or altered to a height in ex-

cess of Elevation 60, City of Saint Paul datum.

(4) Section 4, Height District IV

In Section 4, Height District IV, no building or struc-,

ture shall be erected or altered to a height in excess of

Elevation 45, City of Saint Paul datum.

\ - §$ection 9

The Zoning Code provisions of Chapter 61 of the Saint Paul

Legislative Code be and the same hereby are amended by the

insertion therein immediately following Section 61.06, the fol-

lowing additional section:” —

61.07 Saint Payl City Datum

Elevation 90, Elevation 75, Elevation 60, and Eleva-

tion 45. City of Saint Paul datum herein specified shall

-be deemed to signify respectively 90 feet, 75 feet, 60 feet,

and 45 feet above Elevation 0, City of Saint Paul datum. |

The Water Table incorporated in the southeast corner

of the present City Hall and Court House Building for

the purpose of the application of said restrictions on the

height of any such building or structure shall be deemed

to represent Elevation 98.597 City of Saint Paul datum

or 98.597 feet above Elevation 0, City of Saint Paul datum

and to constitute an elevation of approximately 4 feet in

excess of the elevation of the paved surface of the inter-

section of Kellogg Boulevard and Wabasha Street as in

existence as of the effective date of this ordinance.

Section 10

That the zoning map which constitutes a part of said Zon-

ing Code be amended in respect of its Height Districts to

Mad-

‘

show and designate thereon Sections 1, 2, 3 and 4 of Height

District III and Sections 1, 2, 3 and 4 of Height District IV,

which are éstablished by this ordinance and no building or

structure or part of any building or structure shall be erected

or altered except in conformity with the regulations prescribed

in this amendatory ordinance for said established sections of

Height District III and Height District IV.

Section 11

The Zoning map wKich constitutes a part of the Zoning

Code of the City of Saint Paul be and hereby is amended in

respect of its key height provisions so that as the same applied

to Height District III and Height District, IV respectively the

~ provision “No Restrictions” b be revised to read. “No —

tions save for part restricted by Chapter 61, as amend

ate

The Zoning Code provisions of Chapter 61 of the Saint Paul

Legislative Code be and the same hereby. are amended by the

insertion therein immediately following Section 61.07 as set

_ out in Section 9 of this ordinance, the following section:

61.08 That neither Section 63.13 of the Saint Paul

Legislative Code nor any provi8ions of the same shall in

any manner or degree be deemed to have any application

‘to the erection of any building or structure or part of any

building or structure in Sections 1, 2, 3 and 4, Height

District III; or Sections 1, 2, 3, and 4, Height District IV.

Section 13

Sections 3, 4, 5, 6, 7, 8, 9 and 12 of this ordinance shall be

deemed a part of the Saint Paul Legislative Code and shall be

_ 29

Oo therein and given the approriate chapter and/

, section numbers at the time of the next revision and ~

sales of said Legislative Code.

Section 14

This ordinance shall take effect and be in force thirty (30)

days after jts passage, approval and publication. |

Passed vd the Council September 20, 1966." "”

Y ouncilmen Carlson, Dalglish, ‘Holland, Meredith,

Tedesco, Mr. President (Byrne)—6. i

_ Nays—0.

Approved September 20, 1966.

THOMAS-R. BYRNE,

Attest:

HARRY E. MARSHALL,

City Clerk. r

(September 24, 1966)

rnreercs ft

- Mayor.

cities iia in

‘a>

\ a

APPENDIX B |”

UNITED, STATES DISTRICT COURT

DISTRICT-OF MINNESOTA

THIRD DIVISION \

ee ; ‘ ; | \ ; 3 /

. / CHICAGO, ST. PAUL, MINNEAPOLIS and

OMAHA RAILWAY COMPANY, and

CHICAGO and NORTH WESTERN RAILWAY”

COMPANY, t |

\. Plaintiffs,

VS.. | eae

CITY OF SAINT PAUL, a municipal corporation,

/ Defendant.

FINDINGS OF FACT,

. CONCLUSIONS OF LAW

"AND ORDER FOR JUDGMENT.

No. 3-66-156 Civ.

Stringer, Donnelly and Sharood; By Philip Stringer and” |

Paul Sharood, E-903 First National Bank Building, St.

Paul, ‘Minnesota, Attorneys ‘for Raintitts;

Honorable Joseph P. Summers, Corporal on Counsel for City

of Saint Paul, By Jon R. Duckstad, City Hall and.

Courthouse, St. Paul, Minnesota, \Attorneys mee

Defendant. es aes

ei!

$1 3 \

“The above entitled matter came duly on 1 for trial before the

rr undersigned, one of the Judges of this Court, without a jury,

mee

| ‘on the 27th day of June, 1967. Upon the admissions of the par-

“ties, the evidence received and upon due consideration, the

Court makes the following

estar FACT

1. During all times herein mentioned plaintiffs were and

are each a corporation duly organized to do business as com- |

-mon carriers by railroad in the State of Minnesota. Each of

plaintiffs was and is incorporated in and by the State of Wis-

consin; the principal place of business of each of plaintiffs

is in the City of Chicago and State of Illinois; and each plain-

tiff is a citizen of both the States of Wisconsin and Illinois. -

Defendant is a municipal ‘corporation located in and incorpor-

ated under the laws of and a citizen of the State of Minnesota.

This action is wholly between the citizens of different states

and the matter in controversy exceeds the sum or value of Ten

Thousand Dollars ($10,000.00), exclusiye of interest and costs.

2: This i isa civil action wherein the matter in controversy

A weer sa the sum,..or. value of Ten Thousand Dollars

($10, 000. 00), exclusive of interest and costs, and arises under

the Constitution of the United States, namely the Fifth and

Fourteenth Amendments .thereto ,/and was originally brought

for declaratory relief under the/ provisions of 28 U.S.C., §§

2201 and 2202.

The Court has jurisdiction both because of the federal ques-

tion involved and because of diversity of citizenship.

8. “During all times, herein mentioned, plaintiff Chicago,

~ St. Paul, Minneapolis and Omaha Railwé y Company was-the

owner in fee, and plaintiff Chicago and, North Western ~-

Railway Company the Nee of the geen in the City of

St. Paul described as follows: <” ere.

All of blocks 36, 37, 38 and 39, St. Paul proper, to- \

gether with those parts of Cedar Street and Minnesota ~

Street lying between the same, and lying south of the

south line a Second Street “3 the pe of = ‘Paul, vacate

nesota, in Book “77” of Miscellaneous, page 232, except

the surface rights over such portion-of said Block 36 as

is described in that certain resolution : ‘of the council

of said City, adopted January 24, “1928, a of rec-

ord in the office of said Register of Deeds; in Book

“39” of plans, page 46, condemning and appropriating

such surface rights upon the same for public purposes,

and subject to a sewer license to the City of St. Pau ~

_ dated April 13, 1937, and an easement for public sewer

j i jadopted by said Council, on June 24, 1936, and of record

“s.in the office of said Register of Deeds, in Book “49”, of

ns, page 41, all according to the plat of St. Paul proper,

on file-and of record in the office of said Register of .

Deeds.

‘

The lease between the plaintiffs was made on December 31,

1956 under authority from the Interstate Commerce Commis-

sion.

Ownership of the premises was_and is subject also to the

reservations in the City of St. Paul to lay water mains, pipes, |

conduits, and sites for bridge piers in the portions of the

premises within, the parts of vacated Cedar and Minnesota

Streets, and subject to certain outstanding leases to the St.

Paul Dispatch and Pioneer Press, to Farwell, Ozmun, Kirk &

Co. and to Northern States Power Company in “certain parts

or portions of the said premises. “The parts of the tract so de-

scribed above as are not actually used by plaintiffs for rail-

road purposes, are herein referred to as the “subject property”

and comprise an area of approximately 102,000 square feet.

“ 4, The subject property abuts upon, and has the legal right

of access to Second Street and Kellogg Boulevard or Parkway

on the north, Jackson Street on the east, Wabasha Street on |

the west, and the railroad tracks of plaintiffs on the south.

It is located at an elevation considerably below that , am ‘

Kellogg Boulevard, immediately below which is an “abri t

cliff. Second Street is set into this cliff, descending from the

level of Kellogg Boulevard at’ the west to the level of the

subject property at its eastern end. - he

5. /in about the year 1960, plaintitts undertook to attempt

the sale of the subject property, and, as a part of the develop-

ment thereof for sale, interested a number of, prospective

buyers in the possible purchase thereof. The highest and best

potential use of the subject property then was and still is for

purposes of a motel, a multiple story apartment house or a

series of houses, to start at, or about at the ground line of the

- gubject property as it now lies, and to extend, up. to and for a

considerable distance above the level of Kellogg , Boulevard.

Construction of such a series ‘of structures would be feasible

from the structural standpoint and“would be economically

sound.~.

6. Up until September, 1964, there were no restrictions,

applicable to the.subject property, which would impair the

right of owners of the subject property to erect such struc-

tures rising to heights 5 a stories above the level of Kellogg &§

Boulevard, as might be desired; but on September Sass the .

SA ial

City Council of the City of St. Paul by a resolution then

adopted proceeded to adopt, in principle, a height restriction

whereby no structure of any. kind would be permitted to be

~ erected on the subject property to a height rising above the

level of Kellogg Boulevard to any extent whatever; and di-

recting the Corporation Counsel of the defendant City to draft

a formal ordinance to that effect and submit the same to the

Council for formal adoption. Thereupon and thereafter, and

because thereof, it became impossible for plaintiffs to interest

any prospective buyers in the subject property in its purchase

at anything like its worth for thehighest and best use to which

‘it was’and is adaptable. |

_%. This action was begun by the filing of the complaint

herein on May 20, 1966, when the ordinance so to be drafted

‘and adoptéd had not been presented; but its-restrictive effect

“upon any sale of the subject property was, for all practical

, purposes,, as great as if it had been enacted formally. By order

‘of this Court dated August 31, 1966, a motion of defendant

- to dismiss this action was denied ; and on September 20, 1966,

the City Council of defendant city mmerisa to adopt

formally, Ordinance No. 13346.

8. Ordinance No. 13346 actually, applies only to the subject

property. By its terms, not only is any structure prohibited ©

on the:subject property which rises above*the level of Kellogg

Boulevard, but any structure is forbidden which reaches

within 17 feet thereof in some locations, and less in others.

The properties of other-owners lying immediately to the north,

to the west and to the east of the subject property are not sub-

ject to any such restrictions; in fact, there already are existing

on them several structures extending many . stories above that’

level, and more structures of this kind are being planned, The

: passage of Ordinance No. 13346 is a clear case of Spot zoning, —

~ 35

singling out this er property as the object of ”

‘ restrictions: :

9. Notwithstanding the recitals in its preamble, Ordinance

No. 13346 was not passed, nor is it effective to any appreciable

extent in the promotion of public health, safety, order, con-

venience, prosperity or general welfare of the defendant city

or’its inhabitants; but, on the contrary, the sole and only basis

for the enactment of Ordinance No. 18346 was to enhance the

view of the Mississippi River and the river valley from

Kellogg Boulevard and the multi-storied buildings built ox \to

be built on the northerly side of Kellogg Boulevard and to up-

grade the beautification and recreational featurés of the

Kellogg Boulevard park. These are purely oak ’

and constitute the primary, if not the sole, motive for the

enactment of this ordinance.

10. If unrestricted by a height limit ordinance such as

ordinance .No. 13346, the fair and reasonable value of the sub-

ject property on September 20, 1966, the date of its passage

by the efty Council of the defendant city, was $320,000.00.

11. When restricted by a height limit ordinance such as

ject property on September 20, 1966, the date of its passage

by the City Council of. defendant city was $150, 000.00.

12. The ordinance provides no compensation for the taking.

of the air rights or for any method of ascertaining proper com-

pensation.

13. The plaintiffs’ proposed uses would not create any un-

reasonable fire or traffic hazards or dangers to public health.

In this respect the problems created are not any different than |

those created by any other tall building in the City of St. Paul.:

PEE NAL AR TIN aI IME 0 :

on vee 1

‘died tao

éf

“8 | . \ se

CONCLUSIONS OF LAW >

The Court finds that this zoning ordinance is unreasonable

and arbitrary and, therefore, not a valid exercise of the police -

power based on the following considerations—

(a) The ordinance bears no substantial relation to public

_ health, safety, morals or general welfare but is for aesthetic

reasons only. It is designed merely to improve the appear-

ance of the area and thereby increase the aesthetic value of

the surrounding businesses, the public park and the public

thoroughfare. :

(b) The ordinance is an instance of spot zoning and not

a part of a comprehensive, well-considered plan. The result

is to confiscate valuable property rights and make this prop-

erty subservient to the surrounding property.

pensation since the gain to the public is small compared to the

damage inflicted on the owners of the property. |

. The ordinance is, therefore, unconstitutional as violative

of due process of law and enforcement is hereby enjoined.

II. . C

Since it is clear. that this was a good faith attempt by the

city to pte Fe its policé power and since there is no demon- -

stration that there will be any future improper interference

with the plaintiffs’ property rights, the Court does not at this

time award damages and thus, in effect, turn this action into

an eminent domain proceeding. Z

| } aR a

The City is not liable for damages for enforcement of the

ordinance previous to this action, during which period the or-

‘

dinance was presumptively valid: IW addition, the Court feels

that any damages would be minimal, speculative and un-.

certain. Bae ae: Z

oes

The Court will retain jurisdiction for the purpose of grant-

ing. any further relief. which might become necessary and —

proper under 28 U. S.C. § 2202. >

=< LET JUDGMENT BE ENTERED ACCORDINGLY. :

Dated this 19th day of September, 1967". * ait

MILES W. LORD f

Ads United States District. Judge \

Ra Ab ont

4 -

APPENDIX B

UNITED STATES COURT OF APPEALS

‘FOR THE EIGHTH CIRCUIT

No. 19,151

City of St. Paul, a Municipal Cor-

few poration,

/ Appellant,

v. ‘

Chicago, St. Paul, Minneapolis and

Omaha Railway Company, and

Chicago and Northwestern Rail-

way Company, .

/ ; nin

» “May 6, 1969.

Appeal from the

‘United States Dis-

trict Court for the

District of Minne-

sota.

‘Before Matthes, Mehaffy and Heaney, Circuit Judges.

Heaney, Circuit Judge. ;

The City of St. Paul appeals from a judgment enjoin-

ing the enforcement of an amendatory zoning ordinance re-

stricting building heights in a downtown river front area and

adjudging the rezoning unconstitutional. |

The rezoned area includes a city park which stretches more

than three blocks along the edge of a sharp bluff overlooking

the Mississippi River and Valley. The appellees’ property lies

from forty to ninety feet below the surface of the park at the

foot of the bluff and is separated from the Mississippi River

by railroad tracks anda waterfront street.’ Z

_ The ordinance imposed height restrictions which effectively

prohibit the erection of building on the appellees’ property

which would rise above the level of the park and the adjacent

bluff.? : . ‘

The city park and the appellees’ property lies largely

between the Wabasha Street and Robert bridges which

cross the Mississippi River and serve as the gateways to the

downtown area from the south. The park was established in

1930 and serves to open up the southern approach to the core

- area which lies immediately to the north of the park.’ It

1 See Appendixes I, Il and Ik rae ~

2 In 1922, as part of anguyeral acne orn a the ‘appellees’ prop-_

riction of one\ hundred feet.

Property on top of the bluff was restricted to & height of one

and fifty feet. In 1929, the height\ restrictions were re-

| moved and the appellees’ property has not bgp subjert to restric: >

tions until the_present ordinance was *There oe evidence |

indicating that either the-city or the railroads consid high rise

construction on appellee’s property before the 1960's.

8 An appellee witness testified with respect to the consi tions q

anna aaaeee Adeeedenees

Paul was going to be progressive. We were Zoing places and we

did with a 29 million dollar bond issue: built a | court house,

{and streets to improve traffic on the north side the Loop.]

- T can’t give you the thinking of the men that made all the decisions

.{n those days, but I would assume. {that the park location was

chosen] because of its scenic value, and. the outlook over the-river

and the fact that it was just a delightful place to be.” ,

; ~_ y

completed and more construction is conte

further tres} a passive recreational area for residents,

shoppers, visit6rs and an estimated 23,000 to 25,000 \downtown

employees. .

In the early 1960’s, the St. Paul Housing and Redevelopment

Authority undertook planning for the renewal and redevelop-

ment of the downtown core area with the cooperation of other

public agencies and private interests. The plan was formally

. adopted in 1964. A similar task was undertaken by the City

Planning Department as a part of an effort to develop a com- —

prehensive plan for the entire city. The downtown portion of

the comprehensive plan was adopted in March of 1963, and

the plan as a whole in April, 1963. Both the renewal plan and —

the comprehensive plan envisioned that the park would remain

and that no structures would be built on the railroads’ prop-

erty which would rise above the level of the park.

The area immediately north of the zoned areas has under-

_ gone the contemplated intensive redevelopment. The Hilton

‘Hotel, Degree of Honor, Y.W.C.A. and Federal Courts build--

ings have been erected in the last few years. Block J has been

_ cleared for the construction of a high rise apartment building.

Further north in the core area, the Osborn, Northwestern

National Bank and Farm Credit Bank~buildings have been

onstr lated. -

At about the time that the ‘public agencies began their plan-

ning, the railroads‘ started a program of disposing of its non-

operating p throughout its?system. The manager of,

the Real Estate Department of the railroad con @ num-

ber of parties, beginning in the Spring, of 1961, in an effort

#The Chicago, St. Paul, Minneapolis and Omaha Railway Company is

the owner in fee of the property. On December 31, 1956, under

authority from the\Interstate Commerce Commission, the property

was leased to the icago and Northwestern Railway Company.

For convenience, th ees will be occasionally referred to as

the “railroads.”

, \

to stimulate interest in the subject property. He testified that

publicity in the Fall of 1963, regarding the possible imposition *

of height restrictions on the property, dampened the sales ef-

fort. In late 1963, the railroads’ reeeived an offer to.purchase

about one-half of the property, i.e., the land at the Wabasha~——_ -

Street end, for $4.00 per Square, foot, It was ‘subject to the con-

dition that the premises ‘not, be zoned so.as to prohibit the con-

struction of structures above the existing grade of the park.

The management of the railroads rejected the offer on the

_ basis that the property was needed for the railroad’s operating

purposes.. A least two other potential purchasers of the prop-

erty, who did Wot intend to build above the level of the park, .

indicated an interest but made no firm offers.

A consulting firm was engaged~by™the railroads in

February, 1966, two months prior to trial, with a view toward ~

a determination of the highest and hest use of the property.

The railroads’ orily interest was to sell the property. The study

indicated that the highest and best use would be to construct

a motel and four high rise apartments which would rise from

ten to twenty-two stories above the park.® This use would

give the apartment occupants the benefit of the light and view.

over the river valley but, in so doing, would equally deprive

thers of these benefits. It would also result in the closing off

(— theyre door” of the core’ area from the southern ap-

{

proaches‘ The study envisioned building on the property

5 The appellees’ study demonstrating: the highest and best use of the

property calls for the construction of a motel and four apartment

buildings containing 600 apartment units on 102,000 square fee

Under the St. Paul Zoning Code, Chapters 16 through 64,\the ap-

pellees could not have constructed the 600 apartments without ob-

taining a variance. It requires 544,200 square feet of land.\ If the

appellees devoted the entire 102,000 square feet to apartments, less

than 125 units could be constructed under the Code provisions.

The granting of a variance is discretionary ‘and the decision to

grant or deny one cannot be reversed in the absence of:a clear

abuse of that discretion. Siate v. Gunderson, 198 Minn. 51, 268

N.W. 850, 851 (1936). ; ool ie

originally deemed necessary for « éperating purposes. A witness |

for the railroads testified that the problem had been resolved

and the property was available.

Although the record is not clear, the city, in the. Fall of 1963,

apparently first became aware that ‘the railroads were

attempting to sell the bottom property for the possible

construction of buildings that’ would rise. above the ‘park level. ‘te

A number of municipal alithorities and boards, including

the Housing and Redevelopment “Authority, the, Planning; °

Boards andthe - Zoning . Board recommended. the imposition

of height restrictions. The action- of the Planning Board was

taken after a public hearing. The resolution passed by that

Board recited that the rezoning: was reasonably related to

existing land uses, overall | needs of the community and the

, “planning for future and | use. .

* On September 8, 1964, the City Council, after a publi¢ hear-

ing at which the railroads were the sole voice in sonnet ;

unanimously approved an ordinance restricting height in the

questioned area and directed the corporation counsel to draft

' guch an ordinance. The City Council sat acd adopted t the or-

dinance on September 20, 1966.

In May of 1966, the appellees brought Suit for a seid.

» tory judgment and asked that the proposed ordinagge be

declared void and unconstitutional.® ‘Following the formal en-- ~ -

6 The-appellees (plaintiffs below) wpe this action by filing’ a com-

plaint on May 20, 1966, praying for a de@laratory- judgment. At that

time, the subject ordinance had not been inforntally adopted but the

adoption of the ordinance- in’principle on September 3, 1964, had

the effect of restraining the’sale of the subject property. The Dis-

trict Court, on August 3ly 1964, denied the appeliant’s (defendant ~

below) motion to dismiss tHe action for failure to state a claim -

and lack of jurisdiction. . The-eourt K eld that while no jurisdiction

existed to deelare unconstitutionaMany ordinance which might ,

impose height _restrictions on the subject property in the future,

the complaint ‘presented an actual controversy with respect to the

ordinangé adopted in principle. The City Council, on September

20, 1966, formally adopted the-ordinance. we consider here and the |

appel ees’ amended their eomplaint accordingly. !

_— ’

ee / / 1 ? ~

a ~ \ |

actment of the wiissane, the appellees f e/a supplemental

complaint and/asked that the enforcement, of the ordinance_

- be enjoined or, in the alternative, money damages be awarded.

The District Court found that the fair value of the property

“

af.

~———

. =

~% - prior to the passage of the ordinance was $320,000, and that //.

ie after ‘value/vas 3150, 000. og is substantial evidence in/

‘The court also found: that the ordina ee was unreadotabil

and arbitrary and, th efore, not ‘a valid exercise of the police.

_ power because: (1) it~bore-no substantial relationship. to >

health, safety, morals or the general-wel elfa fa e, and was enacted _

for aesthetic réasons only; (2) it was an instance of spot zon- —

NE. Su aie

4 ;

) <

. \

ing and not part of a comprehensive plan; and (3) it-was a Ne

confiscation without compensation in that the benefit to the

public was small in inp to the detriment of the prop-

erty.owner. ‘The court conc ded that the ordinance was was/fun], - |

: cOnstitutional as-violative to due process of law.- oat ——

enforcement of the ordinance. oo /

The court. held that the appellees oe not entitled to dam-

ages for enforcement: -of ‘thé ordinance during t the pendency

of the action: as any ea ss during ied eg were: paiaianal

and speculative. ee ee a ote

“Since it js ‘clear ‘that this was a a good faith attempt by.

the city to exercise its police power and s sinee there. is no

demonstration that there will be any further improper .

_interference with the plaintiffs’ ‘property | rights, the

"Court does not at this time award damages and thus, in

effect, turn this_action into an eminent domain pro-

Por es

ee yh ' “hate

It retnigod jurisdiction for the ak of siaritinb any |

further relief which might become necessary we ES proper under.

28 U.S.C. § ee We reverse. oe | Se \

/ A

ers

GR ese. ms Pike Fy wieaif ; =

se | fae) Ne

% i

“«

ri ie :

The appellees concede that. the city’sspurpos 2 is-a Soblic aie tt Ee

~~ They acknowledge that the city can a¢complish its objective ZF

by the proper exercise of its emine at domain power—com-

‘pensating the r ilroads for the‘damiage to their property. They

argue, eae that the ordinance is violative of the Fifth

®mendrnent to the United States Constitation and Articlé 1,

Section 18 of the Minnesota Constitution in that it takes the

railroads’ property without compensation:7 /"@

Neither. constitutional provision interposes a batrier-to the

‘imposition of restrictions on the use of private property if a

- von, Zoning ordinance is enacted pursuant to a valid exercise of the

police’ power. Goldblatt v. Town of ‘Hemstead, 369 U.S. 590;

a ae (1962) 8 City of Marysville v. Standard Or Co.,| 27 F. 2d

478 (sthGr. 1928), aff'd; Standard Oil Co. v. Marysville, 279

U.S; 582 (1929); Kiges v. City of St. Pau, 240 Minn. 522, 62

_. — N.W.2d' 368, 369-70~(1953) ; State ex rel. Berry v. Houghton,

+164 Mind. 146/204 N.Ws 569 (1925), aff'd mem. 273 U.S. 671

rN AS °F J \ N .

‘

- a/The Fifth Amendment to th 2U

nited States Constitution provides

part: “*.* * nor shall private\property be taken for public use

/ without just_compe sation.” Article 1, Section 13 of\ the Minnesota .

//Constitution provides: “Private property shall not\ be taken, de-

" stroyed or damaged for public use without just com sation there-

for, first paid or secured.” \

The appellees argue that the Minhesota provision imposes a

stricter standard than that under the f al provision. Because we

- believe that the ordinance does not violate)\the Minnesota Constitu-

tion as.it has been ‘interpreted, by the Supreme Court of Minnesota,

we express no opinion on whether a more’ tringent standard exists.

8.«‘* * * The power-which tHe States have of prohibiting such use

by individuals of their property as will be prejudicial to the health,

‘the morals, or the safety of the,/public _is-not—and, consistently

’ with the existence and safety of organized s¢ iety cannot be—bur-

dened with the condition that the\ State csudk. CORAANTAAD such in-

dividual owners for pecuniary losses they may sustain, by/reason

> of their not being permitted, by a noxioys use of their property, to

inflict injury upon the community.” * ; :

« Goldblatt p. Town of Hempstead, 369 U.S. 599, 593 (1962).

‘a

—

nea

l er

Lee

2 ;

“

{/ \t

‘ i

t'«

if 45

| Pa

(1927 ).2 The test of wate: the enactment falls within that

power is one of reasonableness. ies .

The zoning ordinance will be sustained unless its. re fi ++

“Ne

provisions-are clearly arbitrary and unreasonable, ‘having no

_ substantial relation to the publie health, safety, morals, or gen-

eral welfare. "\Evelid v. Ambler. Realty 0.5 272 U.S. 6b;. 395 *

(1926). vane v. Fox, 274 a ‘6 , 608-609 (1927) ; Me

| Mahori v,/City of Dubuque, Ipwa,255 F. ad 154, 158/59 (8th

Cir.), ceft. denied; -358 U.S. 833/(1958) ; Naeyele Outdoor, Adv.

Co. v. Village of: Minnetonka, ..<¢ Minn. ..., 162 N.W.2d

206, 212 (1968); State ex rel. Howard v. Village of Rosdville,

244 Minn. 343, 70 N.W32d 404, 407 (1955).

+ %In reviewing the trial court’s deter nation of invalidity,

-we examine the record not to’ see whether its firldings are sup-

ported by evidence but to: ascertai upon the whole record

nit r . whether it is*possible to say that th legislative choicé is with-

“out ‘rational basis. South Carolina State,H. Dept. v. Barnwell

| Bros., , 803U. S. 177, 191492 (1938) ; ‘Weinberg v. Northern Pac

Ry. Co., 150 F. 2d 645, 648 (8th Cir. 1945). :

Fairly debatable questions as to the scaueaiitaiehes wisdom

and pfopriety of an ordinance are not for the determination

of the courts but for that of tly legialative body on which rests

9 “The public use, which sustains the taking of property under the

power of eminent domain vipon compensation paid, differs from the

public interest or welfare which justifies the restriction of the in-

dividual in the use of his property without compensation, in con-

sideration of the public interest and common welfare of the com-

munity..* * *_

Or x * * * *

“Zoning statutes are béComing common. The police power, in its

nature indefinable, and quickly responsive, in the interest of com-

mon welfare, to changing conditions, authorizes various restrictions

_ upon the use of private property as social and economic changes

come. 'A restriction; which years ago would have been intolerable,

and would have been thought an unconstitutional: restriction of

the owner’s use of his prdperty, is accepted now without a thought

that it invades a private right. As social relations become more

complex, restrictions. on individual rights bécome more common.’

/State ex rel. Berry v. Houghton, 164 Minn, 146, 204 N.W. 569, 569-70

(1925), aff'd mem., 273 U.S. 671 (1927). .

‘

? SPIER EY MRE CA EM SHMTMRETNTS lid ol "ES 1 GANS ghee Pn Nampa HrNR Re ED

Py,

EPP R PL OE

4 ’

ae coh ah be

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5 *) 0} { =: hs

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\ «\ the duty ‘and esponsibility of the decisidn. Standard Oil Co.

Pax } |, v.Marysville, supra; Naegele Outdoor Adv. Co. v. Village of

\y. -/ Minnetonka, 162 N.W.2d-at 209. ee

] MG | The mere fact that the. ordinance seriously depreciates the

, r Noooue value of the. complainants’ property is not enough to establish

‘ / Poe its invalidity. Goldblatt v. Town of Hempstead, supra at

| 593 ; 10 American Wood Products Co. v. City of Minneapolis,

, 4 . 21 F.2d 440, 444 (D. Minn. 1927) (J . Sanborn), aff'd, 35 F.2d

657 (8th Cir. 1929) ; Kiges v. City of St. Paul, 62 N.W.2d at

'869. Nor can it be ifvalidated’on the grounds that aesthetic

considerations will be furthered if it is. permitted to stand.

ie Berman v. Parker, 348 U.S. 26 /(1954) ;!1 Naegele Outdoor

Adv. Go. v. Village of Minnetonka, supra, }? State ex rel. Twin

he ians }

10 This is not to say, however, that governmental action in the form

of regulation cannot be so: onerouS,as/to constitute a taking which

constitutionally requ'res compensation. Pennsylvania Coal Co. v.

Mahon, 260 US.-393 * * *.: There is’no set formula to determine

where regulation ends and taking begins. Although a comparison

of. values before and after is-relevant, see Pennsylvania Coal Co.

©. Mahon (US) supra, it is-by no means conclusive, see Hada-

check v. Sebastian, 239 US 394 * * *, where a diminut.on of value

ae “ from $800,000 te $60,000 was upheld. * * *.” ,

Géldblatt v. Town of Hempstead, supra at 594.

_“l1 “k * * The concept of the public\ welfare is broad and inclusive.

j * * * The values it represents are spiritual as well as_ physical,

aesthetic as well as monetary. It is within the power of the legisla-

-ture to determine that the community should. be beautiful as well

: as healthy, spacious as*well as clean, well-balanced as well as care-

- \fully/patrolled. In the present case, the Congress and #s autho-

‘rized agencies have .made determinations that take into gocount

a wide variety of values. It is not-for us to reappraise. thtem. If

those who govern the District of Columbia decide that the Na-

tion’s Capital should be beautiful as well as sanitary, there is

nothing in the Fifth Amendment that stands in the way.”

Berman v. Parker, 348 U.S. 26, 33 (1954).

. 12 * * *The mere fact that the adoption ofa zoning ordinance

reflects a desire to achieve aesthetic ends should not invalidate an.

_ reasonably related to promoting the general welfare of the com-

bg munity’or any other legitimate police power objective, the fact

; \_ that aesthetic considerations were a significant factor in motivat-

- . ing its\adoption carinot justify holding it unconstitutional. * * *.”

(Citations omitted.) ae

Naegele Outdoor Adv. Co. %. Village of. Minnetonka, —— Minn.

/ ——, 162 N,W. 2d 206, 212 (1968).

. SE PR roe

ZA nae : :

f #

' otherwise valid’ ordinance. Thus, if the challenged. restriction is »

> - mae

. eae 47

City Blag. & Inv. Co. v. Houghton, 144 Minn. 1, 176 NW. | 159, es

162 (1920).18 3 2

An examination of the entire record i in n the light of the shigks

standards convinces us that the trial court erred in substi-

tuting its judgment for that of the City Council.14 In so hold-

ing, we note that the city’s answers to the railroads’ interroga-

tories were vague, conclusionary, unresponsive and not in ac-

cordance wath Rule 33, Federal Rules of Civil Procedure. If.

these answers reflected accurately the sun! of the Council’s

- reasons for enacting the ordinance, we would have no alterna-

‘tive but to hold that they were inadequate.!5 The record indi-

cates, however, that the Council’s action was preceded by

studies and recommendations of other municipal agencies ;

and, that reports of these studies were communicated to the .

13k * * *It is time that courts recognize the aesthetic as a factor

in life. Beauty and fitness enhance values in public and private

structures.”

State ex rel. Twin City Bldg. & Inv. Co. v. Houghton, 144 Minn. 1,

176 N.W. 159, 162.(1920).

14 The trial*court found that the traffic and fire protection problems

which could be created by the construction of high rise buildings

on appellees’ property were. ~ unreasonable and were an in-.

sufficient basis on which to sustain the ordinance. We place

primary reliance on other factors in sustaining the ordinance.

15 “Interrogatory Number 9: ‘How and in what manner and to what

extent does Ordinance No. 13346 promote public health.’ Answer:

‘Unable to answer specifically.’

“Interrogatory number 10: ‘How and in what manner and to

what.extent does Ordinance No. 13346 promote public safety.’

Answer: ‘Unable to answer: specifically.’

“Interrogatory number 11: ‘How, in what manner and to what

extent does Ordinance‘No. 13346 promote public order.’ Answer:

‘Unable to answer specifically.’

“Interrogatory number 12: ‘How, in what manner, and to what

extent does Ordinance No. 13346 promote public convenience.’

Answer: ‘Unable to answer ‘specifically.’

“Interrogatory number 13: ‘How, in what manner and to what

extent does Ordinance No. 13346 -promote public prosperity.’ An-

swer: ‘Unable to answer specifically.’

“Interrogatory_number 14: ‘How, in what manner and to what

extent does Ordinance No. 13346 promote general welfare.’ An-

-swer: ‘Promotes the general welfare in a general way.’”

+e “> °

ete oe

;

caer TAU

0 *

ouncil conductéd a public

_ hearing before passing the ordinance. From a rea ing of the

record, it is fair to say that as a sult of the rep and

recommendations it received from the public. agencies, the

Council had before it most of the evidence developed at trial

before the District Court including the following:

(1) The passage of the ordinance was\preceded by studies

and favorable recommendations of the Housing and- Redevel-

opment Authority, the Planning Board (after a public hearing)

and the Zoning- Board. These recommendati ons were com-

‘ municated to the City Council. American Wood Products Co.

v. City of Minneapolis, supra at 444. See, Ostrand v. Village

of North St. Pail, 275 Minn, 440, 147 N.W. 24 571) 573 (1967).

(2) The City Council/held a public hearing prior to the

adoption of the ordinance. The Housing. and Redevelopment

Authority, the Planning Board, the Metropolitan Improve;

ment Committee, the, yy, W.C.A., the St, Paul Automobile Club

and the Downtown. Department of the nie of Commerce

appeared at the hearing and submitted their views as to why

the ordinance should be adopted. /,

(3)~Mr. B. Warner Shippee, the former ‘streets of the

Housing. and Redevelopment- Authority, testified at trial that

the downtown renewal project had three objectives: -

_*First, the economic improvement of the city and the -

central business district. Secondly, its physical improve-

ment; and thirdly, in the course: of. doing this the removal

of blight, deleterious ae cad and influences ie

economic disuse in the area.”

Mr. Shippee further testified that vithien the Authority under=" at

took the renewal project, it acted on the assumption “that the

area in front of the mall would be kept clear of obstructions— ;

, ~\ 9

. that [the] park would remain and provide sort of a front door

for the Capitol Center downtown project as well as generally

the central business district.” He added that the subject area

was directly related to the. renewal proj ick and that the

Authority felt ‘that high rise construction could have an

adverse effect on property values and the renewal project.

“* * * The Authority actually took cognizance of this

problem in a meeting of June 11, 1964, * * *.”,. /

[T]he authority commissioners after discussing “tn

ter moved unanimously that it was their opinion that

the ordinance [restricting height] was feasible and in

“the best interest of the community. The. discussion had

related to the relationship of the ordinance to’ the Capitol

Center Downtown Renewal project. * * *.”

(4) Dr. Noland Heiden, City Planner for the City of St.

Paul, quoted from the comprehensive city plan as follows:

“<¢A sixth land use area of the central business dis-

yf trict can be called the “south Kellogg” area and will re-

main largely: as it now exists. Iti is composed of the blocks

along the edge of the river bluff ‘south of Kellogg”

Boulevard and presently contains industital office opera-

tions * * * The major proposal is to ict the Kellogg” a

Mall one block up to the east to the post office. This would

more fully open up the “front porch” ofthe central busi: ¢

“ness distriet. and provide necessary land for street im-.’

provements designed to facilitate access _to-the central

business district from Warner Road.’ au

(5) .Appellees’ witnesses conceded that the property. values

on the north side of Kellogg Boulevard would be diminished :

el the erection of ~— rise building on the appellees’ property

mat-

<2 PALER A AE OLI

ee ppg teneimers pen

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“which would partially obstruct, the view of the river valley. 16

See, State v. Wieland, 69 Wis. 262, 69 N.W. 2d 217, 222, cert.

denied, 350 U. S. 841 1955)

No evidence was offered at trial to show: that the ordinance *

was designed, to restrict competition, compare, Pearce v. Vil- .

lage of Edina, 263 Minn. 553, 118 N.W.2d 659, 671, n. 1

(1962) ; or that the railroads acquired the property with the

expectation that it would be used in the manner they now seek,

compare, Alexander v. City of Minneapolis, 267 Minn. 155,

125 N.W.2d 583, 585 (1963) ; or that the railroads cannot con-

¢ -finge to use their property as they have in the past.

-In our view, the appellees’ reliance on Ostrand. v. Village —

of North St. Paul, supra; Alexander v. City of Minneapolis,

supra; Pearce v. Village of Edina, supra; and Olsen v. City

of Minneapolis, 263 Minn. 1, 115 N.W.2d 734+(1962), is mis-

placed. While there is language in each opinion supporting: ~

the appellees’ position—that an amendatory zoning ordinance

designed to protect aesthetic values and resulting in “the .

diminution of the market values of the complainants’ prop- -

erty is invalid—that language must be viewed in the light of

the facts in those cases. Those factual situations were |

significantly different from the one presented here. ‘We would

add “that in those four cases, aS,in those where a contrary

result was reached, the Minnesota. Court ean it clear that

the test is one of reasonableness.

We are convinced that were this case presented to the Min-

nesota Supreme Court, it would. hold that ‘the determination .

of the City Council—thut the ordinance was reasonably related °

16 Mr. Rohland H. Thomssen, Executive Vice President of the Clapp-

Thomssen Company of St. Paul, a leading real estate firm in the

city, and Mr. Stanley Miller, Vice President of the Real Estate

Research Corporation, a real estate consulting firm employed ‘by

the railroads, testified that the value of properties on the north

side of Kellogg Boulevard would be diminished by high rise con-

struction on appellees’ emery

eae 7 *

pn, eee

to the protection of public welfare—would be permitted to

stand. In our view, the action of the City Council was based

“on reason and logic and not on whim and caprice.” It pro-

moted a legitimate. police power objective—the renewal of the

core area of Downtown St. Paul so as to be a desirable place

in which to work, shop, live and enjoy cultural and recrea-_

tional activities. The benefit to the public in preserving: these

values was great in comparison to-the diminution in market

values suffered by the appellees. it |

| Reversed.

_ 68

APPENDIX I

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III. XICNAddy

Mehaffy, Circuit Judge, dissenting.

I respectfully dissent primarily because the opinion of the

majority eondones a discriminatory taking of valuable ‘prop- :

‘erty rights without compensation in plain derogation of the

Fifth’ Amendment to the federal Constitution as well as the

broader provisions of the Constitution of the State of Min- .

nesota. Subsidiarily, yet importantly, I am of the view that

the majority opinion falls in error by ignoring the findings.

of fact of the trial court, thus setting up this reviewing court ,

asa trier of facts, a function never condoned. by the Supreme

Court, this Court, or any other court of which I have

knowledge.

The maj jority opinion is erroneously based first on the mis-

‘taken assumption that there-is no “taking” of appellees” prop-

erty, and hence no violation of.the mandate of the Fifth ~_

-Amendment that “.” : nor shall private property be taken for .

public use, without just compensation,” and Article 1,°§ 13, °

of the Minnesota:-Constitution which provides. that ‘ ‘private

property shall not be taken, destroyed or damaged. for public.

use without just compensation therefor, first paid or: secured.

- The Supreme Court has long and consistently held that gov-

- ernmental restrictions can so diminish the value: of property

as to constitute a taking. In United States v. Central Eureka

“Mining Co., 357 U.S. 155,168 (1958), the Court said: —

‘ “Traditionally, we have treated the issue as to whether aie.

a particular governmental restriction amounted to ay

_ constitutional taking as being a. question properly turn- —

ing upon the particular circumstances of each case.

‘ . In doing so, we have recognized that action in -

the form-of regulation can so diminish the value of prop- ee

erty as to constitute a taking. (Emphasis supplied.)”

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« 60

‘It is not arguable but that a taking is effected in this case

by the restrictive ordinance. The railroad undeniably incurred

substantial damage to its property by reason of this amenda-

tory, height-restricting ordinance, which’ in some places

forbids.the railroad from even building to within seventeen

” feet of the ground level of the park property. The majority

opinion admits there is substantial evidence supporting the

court’s finding ‘respecting the damage. The Minnesota

Supreme Court in Burger v. City of St. Paul, 241 Minn. 285,

64 N.W.2d 73 (1954), held that a “taking” included every in-

terferehce with-the ownership, possession and enjoyment of

- yalue of private property. The court there said at 64 N.W.2d

TT: , zee

“It is settled law in Minnesota that easements, whether

in the nature of a right-of-way, a restrictive covenant,

or a negative or equitable easement, are property within

_ the meaning of the Minnesota Constitution and cannot

be taken without compensation or be removed by mere

zoning under the police power.”

.’ Following this quotation, the Minnesota cart quotes the ap-

plicable state constitutional provision’ appearing elsewhere

in this opinion and also cites several Minnesota cases as well

as United States v. Wheeler Township, 66 F.2d 977 (8th Cir.

1933). |

Alexander v. City of Minneapolis, 267 Minn. 155, 125

N.W.2d 583 (1963), is a case strikingly similar to the one here.

There, because of the city’s plan to impose a height restriction

on proposed construction, it refused to issue a building permit

for an apartment building for the reason that the proposed

plan would cause the property owner to suffer a substantial

diminution in the-value of his property without compensation

61 a

being paid. The Minnesota court stated at 125 N.W.2d 586,

"587: tee

“We have recently stated that the enactment of ‘spot’

zoning ordinances or amendments to comprehensive zon-

ing ordinances- under the police power which results in |

a total destruction or substantial diminution of value of

property affected thereby without just compensation |

therefor constitutes the taking of property without due

process. Olsen v. City of Minneapolis, 263 Minn. 1, 115 2.

N.W.2d 734; Pearce v. Village of Edina, 263 Minn. 553, - |

118 N.W.2d 659. See, also, Golden v. City of St..Louis

Park, 266 Minn. 46, 122 N.W.2d 570; Connor v. Town-

ship of Chanhassen, 249 Minn. 205, 81 N.W.2d 789. Where .

the motivating basis for such enactments is in further-

ance of the esthetic concepts of nearby property owners

who are not @alled upon to make compensation to the

.owner for any resulting loss or diminution in the value

of his property, this would be partigularly true.”

Additionally, the Minnesota court in Alexander quoted the

“eogent and appropriate language of Mr. Justice Holmes in

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415-416 (1922),

as follows:

“«* * * The protection of private property in the Fifth |

;

Amendment -* * * provides that it shall not be taken

for such [public] use without compensation. A similar

assumption is made in the decisions upon the Fourteenth

_ Amendment. [Citing cases] When this seemingly abso-

lute protection is found to be qualified by the police

power, the natural tendency of human nature is to extend

_the qualification more and more until at last private

property disappears. But that cannot be accomplished

‘ in this way under the Constitution of the United States.

“‘The general rule at least is that while property .

may be regulated to a certain extent, if regulation goes

too far it will be recognized as a taking. * * * In

general it is not plain that a man’s misfortunes or

necessities will justify his shifting the damages to his

neighbor’s shoulders. [Citing cases.] We are in dan-

ger of forgetting that a strong public desire to improve

the public condition is not enough to warrant achieving

the desire by a shorter cut than the constitutional way

of paying for the change.’ ”

The majority quotes in footnote 11 from Berman v. Parker,

348 U.S. 26, 32 (1954), Mr. Justice Douglas’ statement: “. . .

If those who govern the District of Columbia decide that the

Nation’s Capital should be beautiful as well as sanitary, there

is nothing in the Fifth Amendment that stands in the way.”

er the majority failed.to quote Mr. J ustice Douglas;

statement in the same opinion on page 36: “The rights of these

property owners are satisfied when they receive that just com-

pensation which the Fifth Amendment exacts.as the price of

the taking.”

In the Berman case, the Court held that statutes delegating

to redevelopment agencies the power of eminent domain are

not invalid and that the rights of property owners are pro-

tected where they are compensated for the taking of their

property. With this approach, i.e., condemnation, I have no

quarrel. Neither do ‘appellees nor the Minnesota Supreme

Court, which made its position on this question abundantly

clear in Golden v. City of St. Louis Park, 266 Minn. 46, 122

‘N.W.2d 570, 577 (1963), where it said:

“While there should be no objection to a municipality’ 7

endeavors to apply esthetic considerations to plans for

future development, in doing so it should be aware that

where such plans involve destruction or diminution of

property rights or interests, just ‘compensation therefor

should be paid to the owners whose rights or interests

are thus taken for the benefit of the community as a

whole.” - | ee

Supportive to its statement that neither constitutional -

provision interposes-a barrier to the imposition of the restric-

tions imposed here, the majority cites and relies upon

of Marysville v. Standard Oil Co., 27 F-24478 (8th

aff'd Standard Oil Co. v. Marysville, 279 U.S. 582 (1929) ; :

Kiges v. City of St. Paul, 240 Minn. 522, 62 N.W.2d 363

(1958) ; State ex/rel. Berry V. Houghton, 164 Minn. 146, 204

N.W. 569 (1925), aff’d Mem. 278 U.S. 671 (1927).

The cases cited and relied upon to avoid the constitutional

1928) ;

Goldblatt v. Town of Hempstead, 369 U.S. 590 (1 muh City -

requirement f payment of just compensation are patently .

inapposite to the facts and the issues in the instant case.

Goldblatt, supra, involves ark.prdinance regulating mining

within the corporate limits of a town. Specifically, the

ordinancs provided that “no excavation shall be made below

two feet above the maximum ground water level at the site.”

369 at 591, n. 1. The contention of one of appellants was that

the ordinance would prevent it from continuing in business

and thus was the taking of property without due process of

law in violation of the Fourteenth Amendment. The property

owner (Goldblatt) owned a 38-acre tract within the town

limits upon which one of the other appellants was engaged in

mining sand and gravel. In describing the situation there, the

Court said: ae

, “Before the end. x, the- first year [after mining opera-

tions commenced iin 1927] the excavation had reached

‘ the water table leaving a water-filled crater which had

been widened and deepened toa point that it is now a 20-

acre lake with an average depth of 25 feet. The town has

expanded around this excavation, and today within a

radius of 3,500 feet there are more than 2,200 homes and

... four public schools with a combined enrollment of 4,500

“pupils. wt 369 U.S. at 591.

The Supreme Court noted that “the ordinance in euention was

passed as &. safety measure, , attd the town is attempting to up-

hold it on that basis.” 369 U.S. at 595. The Court noted also

a dearth of relevant evidence upon which it could evaluate the

reasonableness of the ordinance and, inter alia, the loss which

appellants would suffer from the imposition of the. regulation.

Significant is the following language of Mr. Justice Clark at

369 U.S. at 594:

“How far regulation may go before it becomes a taking

we need not now decide, for there is no evidence in the

present record which even remotely suggests that prohibi-

tion of further mining will reduce the value -of the lot in

" question.”

Thus, Goldblatt, supra, specifically did not reach the issue

which is crucial here.

The next case cited and relied on n by the majority is also

clearly distinguishable. It is City of Marysville v. Standard

Oil Co., supra, and, like Goldblatt, involved a safety ordinance

as distinguished from the usual zoning ordinance. The ordi-

nance required all tanks within the city limits used for storage

of petroleum products or other inflammable liquids to be

}

buried at ledst three feet underground. Tanks of a capacity

of 500 gallons or less, if used for the storage of crude oil, dis-

tillate or fuel oil, and less than ten gallons, if used for the stor-

age of gasoline, kerosene or naphtha, were exempt from’the

requirement. The petitioners, dealers in petroleum products

who were licensed under a former ordinance, had maintained

for many years two tanks for storage of gasoline and kerosene

limits. Petitioners contended that the ordinance was “80-°-

arbitrary and capricious as applied to them as to constitute |

a deprivation of their property without due process of law.

In upholding the ordinance, the Supreme Court noted that the

master found that: gasoline and kerosene stored in large

quantities are dangerous, inflammable substances, which when

ignited are a menace to life and property in the vicinity; that

even with the use of most modern safety devices, fires or ex-

plosions of such storage tanks occur, and that within the four

years preceding the trial five disastrous firdy of gasoline stor-

age stations had occurred in Kansas, in two of which gasoline -

tanks had exploded, in one case striking and burning a build- -

ing 475 feet away, killing nine people, wounding 26 more, and K

burning several houses. Additionally, the findings show -that

within an even smaller radius from petitioners’ tanks and in,

the same or adjacent blocks, there are many buildings includ-

ing residences, a hotel, warehouses and garages, some of

wooden structure, and kerosene storage tanks of 75,000 gallons

capacity, and that the principal street of the town is within

two blocks of the Standard tank. The Court further observed =>

that the ordinance does not preclude petitioners from locating [

their storage tanks without the city limits and hence the ;

burden imposed upon them cannot be greater or otherwise

more objectionable than that imposed by the forced removal ‘

of dangerous or offensive trades or businesses. .

—

Ber a era al cae

It is one thing to ordain for the safety of residents of a city

but quite another to single out and take a person’s property

for esthetic purposes without compliance with the constitu-

tional provisions for just compensation.

The two Minnesota cases relied upon by the majority are

| not in point and hardly justify a passing word, in light of the

‘more recent cases of the Minnesota court which are in point

and which I think are controllitg here. ;

The first of these two cases cited by the majority is Kiges -

v. City of St. Paul, supra, where the court merely held that

in a case tried to the court without a jury, when the trial court

bt», had found that an amendatory ordinance was within the

scope of the city’s comprehensive plan, such findings will not

be reversed on appeal unless they are “manifestly contrary

to the evidence. ...” The majority in the instant case ignores

the findings of the trial court, so it is difficult to comprehend

how Kiges, supra, is relevant to its conclusion.

The final case cited by the majority on this crucial-issue is

State ex rel. Berry v. Houghton, supra. This was a mandamus

suit seeking a permit for a four-family flat prohibited by a

comprehensive zoning ordinance, dnd the Minnesota court held

that a fair zoning ordinance resulting in the exclusion of a

four-family flat building from a designated residential district

is constitutional. |

It appears obvious to the writer that the cases relied upon

by the majority form too fragile a base to justify a skirting

of the constitutional provisions which protect a landowner

from a ‘confiscatory taking of substantial property rights

without compensation. Moreover, it is singular to note

that the majority completely ignores the deliberate and ob-

viously discriminatory “spot” zoning in the instant case, and

beyond that the majority opinion is based on a coftcept that

would only be applicable if constitutional doe oned is first de-

termined.

The specific premise of the majority opinion rests upon a

patently erroneous basis in that it completely overlooks the . -

requirement of constitutionality’ in its’ approach to this. case.

The majority states : “In reviewing the trial court’s |

determination of invalidity, we examine the record not to see.

whether its findings are supported by evidence but to ascer-” =

tain upon the whole record whether it is possible to say that

the legislative choice is without rational basis,” and “fairly

debatable questions as to reasonableness, wisdom, and:

propriety of an ordinance are not for the determination/of the ,,

courts but for that of the legislative body on which rests the _

duty and responsibility of the decision.” There can be no quar-

rel with the majority’s ‘abstract statements, but the premise

is valid only if based upon the assumption: of absence of con-

. gtitutional infirmity. It cannot be questioned that under the

principle of separation of powers the courts cannot invade the-

jurisdiction of other departments of government, but it is

equally elementary that a city, state, or even the Congress,

cannot validly invoke any ordinance or statute regardless of

its “reasonableness, wisdom and propriety” if such ordinance ~

or statute violates fundamental provisions of the Constitution.

We are dealing here with the power ofa municipality—the

validity of an.amendatory crdinance—not with the rational

basis of the ordinance. ms

The cases relied on for the formation of the erroneous

premise upon which the majority opinion rests are inapposite,

’ as will be revealed by close reading of the opinions—and the

Supreme Court, this:court and every other court of which I

have any knowledge support the principle I suggest—that be-

fore a city, the state or the national Congress can validly make

65 eh tate POEL AE ee ee

“a 68 Q

a choice, whether: under the police power or not, the choice

must first be constitutionally. valid.

It seems so elementary as to be unnecessary to cite cases

to the effect that the doctrine advanced by the majority can- —

not be invoked if. specific. constitutional prohibitions are vio-

lated. For example, the Supreme Court“Said in Sinclair Re-

fining Co. v. Atkinson, 370 U.S. 195, 215 (1962): _

“In dealing with problems of interpretation and ap-

plication of federal statutes, we have no power to

change deliberate choices of legislative policy that

Congress has made within its .constitutional powers.

( mmnpnase supplied.)”’

‘The Supreme Court also said in Polish Alliance v. Labor

Board, 332 U.S. 6438, 650 (1944) :

“On the other hand, the old admonition never becomes

stale, that this Court is concerned with the bounds of

- legal power and not with the bounds-of wisdom in its exer-

- cise by Congress.”

This court said in Review Committee, Venue VII, etc. v.

Willey, 275 F. 2d 264, 271 (8th Cir. 1960):

“And ‘once the question of constitutional power. is

answered in the affirmative the wisdom, need and. ef-

“#fectiveness of a particular statute enacted in the exercise

of that power is a question for the Congress not the

courts.’ United States v. Kissinger,.supra, at page 942

of 250 F.2d, Wickard v. Filburn, supra, page 129 of

317 U.S., at page 91 of 63 S.Ct. (Emphasis supplied.)”

See also and compare Joseph E. Seagram & Sons, Ine. v.

Hostetter, 384 U.S. 35 (1966) ; Wolff v. Selective Service Local

69 —

' Bd. No: 16; 372 F.2d 817 (2nd Cir. 1967) ; Hurley v. Reed, 288

F.2d 844 (D.C. Cir. 1961). ; ;

The miajority takes as its text extracts from the opinion in

South Carolina State Highway Dept. v. Barnweli Bros., Inc.,

303 U.S. 177 (1938), but this is an altogether different ques-

tion from the one presented here. Barnwell dealt with a South

Carolina statute concerning the weight and width regulations .

of trucks on its highways’so as to conserve the highways and +.) |

promote safety thereon. The Supreme Court there held that

the adoption of the methods used by South Carolina was a leg-

islative and not a judicial choice, but what the majority here

overlooks is that the Supreme Court in Barnwell was discuss-. .

ing a state statute that did not infringe the Constitution or

any national legislation relating to interstate commerce and -

_ was not discriminatory. The Supreme Court noted at 303 U.S.

181 at the outset of its opinion that the district court of three

judges had ruled that the provisions of the South Carolina

statute had not been superseded by the Federal Motor Carrier

Act, and “do not violate the Fourteenth Amendment.” The Su-

preme Court also said in Barnwell, “when the action of a legis-

lature is within the scope of its power, fairly debatable ques-

tions are not for determination of the court , but for the legis-

_lative body on which rests the duty and esponsibility of deci--

sion. (Emphasis supplied.)” 308 U.S. at~190-191.-The Court

then continues its discussion. based ' on the constitutionality

of the statute. ES 8 conclusional ss the Su-

~ preme Court in Barnwell said:

“The legislative measures taken by South Carolina are’

within ,its legislative, power. They do not infringe the

' Fourteenth Amendment, and the resulting burden on in-

70 |

terstate commerce is not forbidden. (Emphasis sup-

plied.)”?

The other case cited in the majority opinion in support of

its premise is Weinberg v. Northern Pac. Ry. Co., 150 F.2d -

645- (8th Cir. 1945), where an extract from Barnwell was

quoted relating to the examination of -the whole record to

| ascertain whether it is possible to say that the legislative

choice is without rational basis, but preceding that statement

we note that the court said at. page 648: _ .

“Tt is generally held that if the action of a legislative body

is within the scope of its power, questions as’to the rea-

sonableness, wisdom and propriety of its action, if fairly

debatable, are not for the determination of courts, but

~ for the legislative body. (Citing cases.) (Emphasis sup-

ey -

1Consider‘ng a similar question in Bibb v. Navajo Freight Lines,

359 U.S_520, 523-524 (1959), the Court cited in Barnwell case and

there said: - . ‘ . ;

“The power of the State to regulate tne use of its highways is

broad and pervasive. We have recognized the peculiarly local

nature of this subject of safety, and have upheld state statutes

applicable alike to interstate and intrastate commerce, despite

the fact that they may have an impact on interstate commerce.

South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. 177;

Maurer v. Hamilton, 309 U.S. 598; Sproles v. Binford, 286 U.S.

374. The regulation of highways ‘is akin to quarantine measures,

game laws, and like local regulations of -rivers, harbors, piers,

and docks, with respect to which the state has exceptional scope

for the exercise of’its regulatory power, and which, Congress

not acting, have been sustained even though they materially in-

terfere with interstate commerce.’ Southern Pacific Co. v.

Arizona, 325 U.S. 761, 783. : had

when ‘challenged in court.9If there are alternative ways of

solving a problem, we do not sit to determine which of them is

besty suited to achieve a valid state objective. Policy decisions

are for the state legislature, absent federal entry into the field.

Unless we can conclude on the whole record that ‘the total

effect of the law’ as a safety measure in reducing accidents and

casualties is so slight or problematical as not to outweigh the

natonal interest in keeping interstate commerce free from inter-

ferences which seriously impede it’ (Southern “Pacific Co. v.

Arizona, supra, pp. 775-776), we must uphold the statute. (Em-

phasis supplied.)” :

71° é

It is significant to note also that in Weludive this court ~~

found that the findings of the trial judge were sustained by

the.evidence and affirmed the court’s order permanently en-

joining the city from the enforcement of its ordinance with

respect to the appellee railway company. 150 F.2d at 652.

There the court noted that “an ordinance even though not in-

valid in its entirety may, nevertheless, in operation be found,

under existing facts, to be arbitrary and unreasonable, and ..

to that extent may. be declared to be cities 8 (Citing

cases.)” 150 F.2d at 648.

Spot Zoning. As background material, peers it will be

~ helpful: to recite some of the undisputed facts leading up to’

this litigation. For many. years, the appellee-owner of the

property here involved, Chicago, ‘St. Paul, Minneapolis and

Omaha, Railway Company. (Nortgwestern Railway Company

is lessée), maintained a freight house ‘on the property but the.

same was retired and the building taken down in 1957. By

1960, said appellee was engaged in.a program of disposing of

its property that was not required for its operating purposes.

In that same year, the subject. property ‘was brought to the

attention of the real estate department of. the appellee-owner

as being a non-paying ‘facility. After the usual preliminary

work embracing title investigation, etc., appellee instituted

_an active campaign to sell the subject property. In connection’ .

with this campaign, appellee contacted some forty to fifty pro-

spective purchasers. The subject property at the time was

zoned for industrial usage and, of course, there was no restric-

- tion upon it.

At the time it commenced its campaign to dispose of this

property, there was no such thing as the St. Paul Downtown

Redevelopment Plan iri existence, and when such a plan was

adopted it did not. embrace the subject property. Mr. B.

Warner Shippee, the then executive director of the St. Paul

PEI SHR ee

vr ¢

Housing and Redevelopment *Author‘ty, testified relating to

the downtown project as follows:

_4Q. Then, could I ask you specifically what, if any,

urban planning or development ‘objectives did the Hous-

ing Authority have toward the property that’s the dispute

of this lawsuit; that is, the railroad property below the

bluff, Kellogg Mall bluff between Robert Street. and

“Wabasha? eos

“A. Well, first I have to-indicate that this property

is not within the urban redevelopment or renewal area

of the downtown project, which is a twelve block area.”

Mr. Shippee also testified that “the Housing Authority is gen-

erally responsible for the “housing programs and urban

renewal programs in connection with the entire city of, St.

Paul; and has had both actively going on a series of renewal

projects and has contemplated or had been planning a series

of additional projects both in and out of the core area.” The

witness in discussing objections to construction of buildings ;

+. which would extend into the area above’ Kellogg Boulevard

. gaid that this subject did not come to the attention of the Au-

thority’s commissioners’ until 1964. He testified:

“The- Authority actually took cognizance of this prob-

lem in a meeting of June 11, 1964, when the proposed

ordinance which has been referred to was brought to

their attention by me 4s executive director.” .

The Council of the City met on September 3, 1964 and

adopted a motion instructing its attorney to prepare an or-

dinance amending the zoning code to establish height restric-

tions, but such an ordinance was not adopted until September

20, 1966. This was only after the instant suit had .been in-

stituted on May 20, 1966 and after Judge Larson had on

August 31, 1966 denied the city’s motion to dismiss the ~*r

appellees’ complaint. The publicity, however, of the: earlier

council meeting sufficed to chill the interest of any prospec-

tive purchaser ‘in the subject property, and it seems apparent

that appellees would have been left in this stymied position

indefinitely had this suit not been brought.

Actually, this subject was brought to the attention of the

city by the appellee-owner’s-campaign to sell its property, and

at least one of the city committees had had a so-called public

meeting prior to the one mentioned above, but appellee was

given no notice of it and, therefore, was not represented. The

' first knowledge of the city’s threat to impose a height restric-

tion on the subject property was brought to the attention of

appellees in 1963.

The amendatory ordinance is directed solely at the subject

property and is a classical example of illegal “spot” zoning.

The ordinance affects no other property and there have been

and are being constructed buildings of great height on all —

other sides of the park. Property within 100 feet of the subject

property was recently condemned by the Housing Authority

as “blighted,” the owner was paid compensation therefor, and

it was sold to private interests as a site for a high rise luxury

apartment building. Housing and Redevelopment Authority

of the City of Saint Paul v. Coleman’s Service, Inc.,—

_Minn.—160 N.W.2d 266 (1968). At’ the time of this con-

demnation proceeding, the property there involved was used

as a parking lot which is the use to which a portion of the

subject property is now being put.

The Minnesota court has repeatedly held that the enact-

ment of “spot” zoning ordinances or amendments to compre-

hensive zoning ordinances under the police power, which re-

sults in a total destruction or substantial diminution of value

_ of property affected thereby without just compensation there-

Poe ene eRe

Ser PP eT

for, constitutes a taking of property without due process.

Alexander v. City of Minneapolis, supra; Pearce v. Village

of Edina, 263 Minn. 553, 118 N.W.2d 659, 671 (1962), and

cases therein cited. In Golden v. City of St. Louis Park, supra,

the Minnesota Supreme Court said (122 N.W.2d at page 577):

- “Likewise, it should consider evidence relative to au-

thorized uses and classifications of property adjacent

to that. involved in the proceedings, and where it finds

from. the evidence that restrictions imposed upon the

property involved have not been made applicable to ad-

jacent or nearby tracts within the same zoning classifica-

it should not hesitate to determine that the restric-

applied to the property involved are violative of

sntal, constitutional property rights of its owner.

Rowland v. City of Racine, 223 Wis. 488, 271 N.W. 36;

City of Pleasant Ridge v. Cooper, 267 Mich. 603, 255 N.W.

371.”

For further references concerning spot zoning, see an-

notation in 51 A.L.R.2d 263, 311 and 58 Am. Jur., Zoning §

39. ;

Findings of Fact. There are many factual resolutions re-

quired for a determination of this case such as: the scope of

the ordinance; its purpose; its effect on the property involved ;

its relation to the adjoining property and many more. Only

a fact finding tribunal can make such determinations.

Fed. R. Civ. P. 52 (a) provides that “findings of fact shall

not be set aside unless clearly erroneous, and-due regard shall

_ be given to the opportunity of the trial court to judge of the

credibility of the_witnesses.” We applied the “clearly er-

roneous” rule in the zoning case of McMahon v. City of

858 U.S. 888 (1958), where we affirmed the action of the dis-

trict court upholding the ordinance and there stated: “The

findings of the District Court are presumptively correct and

the evidence presented in this appeal does nat show that they

are clearly erroneous.” We cited McMahon with approval in

Barryhill v. United States, 300 F.2d 690, 693 (8th Cir. 1962).

More. recently, this court, speaking through Judge Van

Oosterhout, now Chief Judge, in Whitson v. Yaffe Iron & Metal

Corp., 385 F.2d 168, 169 (8th Cir. 1967), said:

-“The clearly erroneous standard applies to appellate

* review of findings of fact by the trial court in cases tried

to the court without a jury. Rule 52 (a) Fed. R. Civ. |

Friedman v. Fordyce Concrete, Inc., 8 Cir., 362 F.2d 386,

387; Nelson v. Seaboard Sur. Co., 8 Cir., 269 F.2d 882,

886. ae |

“We do not try cases de novo upon appeal. With respect

to credibility findings, great weight must be given to the

fact that the trial court had an opportunity to observe and

hear the witnesses. A finding is clearly erroneous only if —

it is induced by an erroneous view of the law or if sub-

stantial evidentiary support is lacking.”

Other Eighth Circuit cases to the same ‘effect include

First National Bank of Clinton v.. Julian, 383 F.2d 329, 333

(8th Cir. 1967) ; Commissioner v. Riss, 374 F.2d 161, 166 (8th

Cir. 1967); Coca-Cola Co. v. C.1.R., 369 F.2d 913, 919 (8th Cir.

1966); Hamm v. C.1.R., 325 F.2d 934, 937 (8th Cir. 1963),

cert. denied, 377 U.S. 993 (1963).

Cases of this type must be considered upon oud set of par-

ticular facts and the trial court here of necessity made numer-

ous findings of fact which I do not think we are at liberty to |

ignore in this case under the rule and concept of ascertaining

from the whole record whether it is possible to say that the

a kN RAR RI ed at «MS

BE OS MON Py PNT ET NO NRT REN ETE ES RE SNP ORO

ORE TENET ES

a ST SRY NS Tes

legislative choice is without rational basis. If “we have such

authority in the instant case, we are permitted to bypass fun-

damental constitutional rights, and, furthermore, with this

precedent, we certainly would feel privileged to exercise such

a rule in many other cases ‘in the future. This would be, in dis-

regard of Rule 52 (a), and there would be no end to the em-

ployment of such a rule even in situations like we have here

that would bring about a circumvention of basic constitutional

rights. Ss |

Here, it was the trial court’s duty to weigh the evidence,

determine its credibility and ascertain whether the evidence

was supportive of establishing that factors relative to health,

safety and public welfare bore a material relationship to the

restrictive provisions of- the ordinance. Pearce v. Village of

Edina, supra. Beyond that in the instant case it was the trial

court’s duty to consider the evidence relating to adjacent prop)

erty, and the effect, if any, of the ordinance on other and

» adjacent property with respect to the “spot” zoning issue.

Standard for Review on Doubtful Questions of State Law. -

While this writer has never been particularly enchanted by

it, there nevertheless exists a deeply embedded rule in this cir-

cuit to the effect that our standard for review on a doubtful

question of state law is to ascertain only whether the trial

court has reached a permissible conclusion, and, if so, we will

not interfere with it. General American Life Ins. Co. v. Yar-

brough, 360 F.2d 562, 568 (8th Cir. 1966) ; Solomon v. North-

western State Bank; 327 F.2d 720, 723 (8th Cir. 1964);

‘Campbell v. Village of Silver Bay, Minn., 315 F.2d 568, 575

(8th Cir. 1963) ; St. Paul Hospital & Cas. Co. v. Helsby, 304

F.2d 758, \759 (8th Cir. 1962).

I do not think a doubtful question of state law exists here.

The opinions of the Minnesota Supreme Court we have cited

seem to clearly support the trial.court’s conclusion. Judge Lar- .

son, while not reaching the heart of this case, wrote an exten-

sive memorandum denying the city’s motion to dismiss, citing

the Minnesota cases of Pearce v. Village of Edina, supra; and

Alexander v. City of Minneapolis, supra. Judge Lord, who

heard this case, served as Attorney General of the State of

Minnesota, and was Aperienced . in eminent domain proceed-

ings. See, e.g., State v. Case; -263 Minn. 47, 115 N.W.2d

749 (1962). es

The majority speculates that the Supreme Court of Min-

nesota would hold as the majority has held, but I do not agree.

I think that this case can and should be determined without

reaching a federal question, and it is inconceivable to me that

the Minnesota court would permit a confiscation of property

rights without just compensation. This is particularly so

" because of the broad provisions of the Minnesota ‘Constitution

and its interpretation thereof.

It alarms me that this court would go further in the direc- .

tion of condoning an arbitrary and unreasonable taking of

private property without just compensation than either the

United States Supreme Court or the Minnesota Supreme

Court. I would affirm the judgment of the ‘district court.

Noting that this suit was brought in the alternative, and that

the district court has retained jurisdiction, said court if the

city prefers, could treat the case as one of eminent domain, and

if in the trial court’s opinion the ends of justice required it, the.

court could permit the parties to adduce additional evidence on

the damage issue.

ALE ENR OY IO

rvs BY

eS: |

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

i |

No. 19,151

City of St. Paul, a Municipal Corporation,

| f= : Appellant,

) Vv.

Chicago, St. Paul, Minneapolis and Omaha } Petition for

Railway ‘Company,. and Northwestern e Rehearing. —

Railway Company,

Appellees.

[July 2, 1969.] : a

Before Matthes, Mehaffy and Heaney, Circuit Judges. .

sd:

Per Curiam.

The appellees petition for a rehearing on the grounds that

Indiana Toll Road Commission v. Jankovich, 244 Ind. 574, 193

Ns. 2d 287 (1968), cert. granted, 377 U.S. 942 (1964),

cert. dismissed as improvidently granted, 379 U.S. 487 (1965),

- a case not cited by either party, is controlling and requires that

this Court’s decision be set aside. We cannot.agree.

In Jankovich, the Commission owned a toll road adjacent

to an airport and contended that a zoning ordinance regu-

lating the height of the toll road. owned by them was invalid

under Article 1, Section 21 of the Indiana Constitution, and

the Fourteenth Amendment to the United States Constitution.

The Supreme Court of Indiana sustained. the Commission’s

contention. The Supreme Court of the United States granted .

a petition for certiorari but subsequently dismissed it as being

improvidently granted. In so doing, the Court said:

“Neediess to say, we express no opinion in this case re-

garding the validity under the United States Constitution

of the city’s airport zoning ordinance.”.

: \

379 U.S. at 496, n. 3.

The Court also, stated:

ited eo The Indiana Supreme Court had before it a

case in which the effect of the ordinance was -to estab-

lish a maximum height. of 18 feet for structures on re-

spondent’s land. Although it recognized that zoning regu-

ations may be upheld as a reasonable exercise of the police

power ‘where the owner of property is merely restricted

in the use and employment of his property,’ 244 Ind.. at

581, 193 N.E. 2d, at 240-241, the court held that a taking

requiring compensation—rather than mere regulation—

was effected: here because ‘the City of Gary has at-

tempted, by the: passage of the ordinance under consider-

ation, to take and appropriate it to its own use the ordi- ~ °

narily usable air space of property adjacent to the Gary

Airport. . . .’? 244 Ind., at 582, 193 N.E. 2d, at 241. (Em-

phasis added.) As we read the opinion of the Indiana Su-

preme Court, it certainly does not portend the wholesale

invalidation of all airport zoning laws.”

379 U.S. at 493. |

The Minnesota Supreme Court considered airport zoning

SED IT RE ORIOL PEI RE NAS ESAS IS ELT

, whe) =

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pera rt

3 OTST LEELA LENOIR AT BOM EEE a

80 ©

regulations in Minneapolis-St. Paul Metropolitan A. Com’n v.

McCabe, 271 Minn. 21g N.W. 2d 48 (1965). The court

held that the M.A.C. had authority to promulgate zening regu-

- Jations controlling the use of vertical space in “airport hazard.

areas” lying within twenty-five miles of the City Hails of Min-

neapolis and St. Paul. It stated:

_“* * * [T]t [is not] possible at this -time to determine

whether the operative effect of an ordinance proposed,

but not yet adopted, will be to deprive any person of

property without just compensation or will represent an

unreasonable exercise of the ‘police power.!° [1° Note,

Jankovich v. Indiana Toll Road Comm., 379 U.S. 897, 85

S. Ct. 463, 18 L. Ed. 2d 439.] We cannot anticipate and |

settle problems which may arise as between M.A.C. and

the cities and villages located within its territorial ambit

if a zoning ordinance promulgated by one of the legisla-

tively created governmental bodies comes in conflict with

an ordinance promulgated by another. For the present,

we must assume that the matter will be fully explored at

the public hearing contemplated by the statute and that

the proposed ordinance! will be amended and refined, in

so far as necessary, so that in’ the end only those require-

ments or restrictions will be imposed which will be rea-

sonably necessary to effectuate the purposes of the enact-

ment as required by §360. 066.”

Id. at 57. on | e

A rereading of Jankovich and McCabe strengthens ‘our con-

viction that the Minnesota Supreme Court will determine the

validity. of zoning ordinances on the basis of whether the

ordinance is a reasonable exercise of the police power. We re-

tnain convinced that were it to consider the ordinance passed

SS —_

by tha\St. Paul City Council in this case, it would hold that it

was enacted pursuant to a valid exercise of that power.

We have also reviewed United States v. Causby, 328 U.S.

256 (1946), and Panhandle\E. Pipe Line Co. v. State High-

way Com., 294 U.S. 613 (1935), and associated decisions. We

do not believe they are controlling here. See, Note, Jet Noise

in Airport Areas: A National Solution Required, 51 Minn. L.

Rev. 1087 (1967) and 31 Minn, L. Rev. 384 (1947).

The petition for rehearjng is denied.

-Mehaffy, Circuit Judge, dissenting. J

I respectfully dissent from the denial of the petition for —

rehearing primarily for the reasons stated in my dissenting

opinion, which basically point up that the majority has failed

to come to grips with the controlling question and has thereby

reached a conclusion which in my view makes for an important

and dangerous precedent proscribed by both the Fifth Amend- —

ment to the Federal Constitution and Article A § 13 of the’

«Minnesota State Constitution. Simply stated, the sole and de-

terminative question is: Can a municipality by enactment of

an ordinance circumvent the plain mandate of the Constitution

’ by the taking of private property without — ee

‘The answer has to be “No.”

The Jankovich case cited in the petition for rehearing and ~

discussed in the majority per curiam opinion, while not dis-

positive of the crucial ‘issue here, certainly affords no support

for the decision reached by the majority. Jankovich lets stand

a State supreme court decision which holds unconstitutional

a height restriction ‘ordinance purporting to authorize ap-

propriation of air space without just compensation. If any-

| thing, Jankovich, as well as other airport cases, e.g., Griggs

v. Allegheny County, 369 U.S. 84 (1962), and United States

v. Causby, 328 U.S. 256 (1946), lends weight to the views

expressed in my dissenting opinion.

‘

se .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.