# Petition for Writ of Certiorari — Chicago, St. Paul, Minneapolis & Omaha Railway Co. v. City of St. Paul > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1136%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 396 U.S. 985 ## Text 41 i*REME COURT. U. & - i Ofi. by Je i US. HE See a INTHE = a. . , : . ° * ; ; : ‘ ; * . r _ : ; yi ; . . . QL —. ‘ | i . | * a tar : é . \ Say - od * . ; ¢ 8 ait . *, ' > ? % - ‘ . . r a ry a en agit t be fe ; . ‘ 7 : ree - : ., © ae : ’ iS F t ° 7 = F ‘ . is & -, j } >; * : ; J . ROS ce ee - i 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, | G5 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) “ 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 ; : ~ — od (c) Whether a decision upholding such an ordinance di- 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. 5 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. | —: > a an * In Jankovich this court dismissed the Writ of Certiorari ay having t 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 ae 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 z \ ° mx Un f 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- 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 > 14 ; 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 : (c) was a confiscation without compensation in that 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. . B _— wer / i \ a APPENDIX B |” UNITED, STATES DISTRICT COURT DISTRICT-OF MINNESOTA 7 THIRD DIVISION \ as 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. A 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 4 4 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 ~- 32 Railway Company the Nee of the geen in the City of St. Paul described as follows: I. 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. (c) . The ordinance is, in effect, a confiscation without com- 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. > = 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.” 41 , \ 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 42 » 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 ' / | “ y S i af. ~——— . = ~% - prior to the passage of the ordinance was $320,000, and that //. e ie after ‘value/vas 3150, 000. og is substantial evidence in/ rh a ‘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 a 4 ; ) 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 ae — nea ee / l er Lee 2 ; “ et {/ \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, .. ‘ ? SPIER EY MRE CA EM SHMTMRETNTS lid ol "ES 1 GANS ghee Pn Nampa HrNR Re ED Py, a EPP R PL OE 4 ’ ae coh ah be - j x ie ie 5 *) 0} { =: hs ’ ; j | : \ \ «\ 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 # oe ' 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.’” ia +e “> ° oe ete oe y ; 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: “ APPE | 1 “F ae S/ | | > EL, $ ANA OWA NQSANIS 4 swore “fr a fA ey a delineated is oC. Yd f ar PLAINTIFFS {et0y REZONED AREA “ee— CORE AREA (@ZZa SUBJECT PROPERTY — REALESTATE RESEARCH CORPORATION vt APPENDIX III NWUMLVOUDSUT HIYVISIN JLVISI WY *u0T9onNI4SUCD + : “eee quadad BYZ JO aWOS JO UOTILOOT oUy SUTQEOT puT UQTH SuoTe qunoo“stuy fq paqvourTap us9q Sty vale yueg ALlY3d0Nd. LOIACENS ZZ $0018 V3uV WM3N38 O a — ‘,00o1 » Wauy ‘WYOO ce PLAINTIFFS ae A ¥31L3d 1S 0. .C. B&261U, Roe dVW ‘NOILV907 . ~ _ 8 dv e gg ee ‘OAI8 “Je001030 a - Meena PA + 10H) [ SS ‘di ncn YOM 2 = pA ae ‘bpig SLdy | @ ‘ea a e— é 3 aphid Neva ul | zs1g| --— B} vou sie > TK mee FS ee & e - PO ee ave IK] | ps bg] | TI f = : arsddoua| 4) qssodcad cman EH tmmonl | AL10 é ‘3 . 1S ; H1uNOs i\n-- \ gp: IT te Isf si ere ]z s[ ' ip@) fet taale * ” | Oo Ly sph iYOUON | z= eS log mis é 13 gia 1 Aormpon | 3 6 I copy | aC) Dre te SE Be tle a “ > ; ra) Lr = r 4 Dice as m4 i JIDU0Y “ j ssary | Ps tage, o 2 b——- > ' NR hehe 1 I Peo sagt fo yy SSN , _ eee iti en are | Foca} j yNVE io | oe jusogso biP249} b= = (4) » (ay — tfet@ | Fax@ | | © a wong! ~§ _ PLYN AN J ; eens - | eRe "LS HixiS | @ w 2 F.. n “” s 2- “1 @® Bhae@ [2] @ [2 evntea | avout : 172) : : 4 RO : 7 | hice: ee * Radia er te al cial shee OE i le i ae sea a = ~ ewe pe =. ———S4 a ___B_,_B_ FE ._ Pe ee ee OY } Att Are + \ 1s Sr TUTTE III. XICNAddy 59 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.)” I OS ee Le Me eee On ee * e : wre LRT ALE WOR Daze x 4 4. a e% ad DARE DR eRe Ine PR I BERT EM A yl PN LATOR LEE NEE NE SLUT UTITE LES? OI g - ° . : ° ° > , PERLE TIM PTE LEI OLE ORE - . ie oD ts > a « 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 wu si 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 62 ‘ 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 63 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 64 , “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 } 65 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 66 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 67 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 ©*“These safety measures meng 4 a strong presumption of validity 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.)” : cS 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 72 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 * 73 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 v 4 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 Dubuque, Iowa, 255 F.2d 154, 159 (8th Cir. 1958), cert. denied, © 858 U.S. 888 (1958), where we affirmed the action of the dis- ° 75 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 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 —_ a oe 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 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1136%3A1. Public record. Not legal advice.