Bigwood v. City of Wahpeton

1997 ND 124, 565 N.W.2d 498, 1997 N.D. LEXIS 127, 1997 WL 343954
CourtNorth Dakota Supreme Court
DecidedJune 24, 1997
DocketCivil 970003
StatusPublished
Cited by8 cases

This text of 1997 ND 124 (Bigwood v. City of Wahpeton) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bigwood v. City of Wahpeton, 1997 ND 124, 565 N.W.2d 498, 1997 N.D. LEXIS 127, 1997 WL 343954 (N.D. 1997).

Opinion

VANDE WALLE, Chief Justice.

[¶ 1] Charles Bigwood, Steve Zoucha, Rick Krueger, Mary Krueger, Dennis Holtz, Koyla Holtz, Mel Tangen, and Tim Schmidt, the plaintiffs, appealed from the judgment entered on the trial court’s order granting summary judgment to the defendants, the City of Wahpeton, the Wahpeton Community Development Corporation, and Douglas A. Carlson Development, Inc. The plaintiffs contend the City did not follow proper procedure in rezoning portions of Wahpeton’s industrial park. We affirm the judgment.

[¶ 2] The plaintiffs are owners of industrial property located in an industrial park on the south side of the City of Wahpeton, North Dakota (City). The plaintiffs individually *500 own Lots Nine, Ten, Eleven, and Twelve of Block One, and Lots Three and Four of Block Two of the industrial park subdivision. This area of the city was designated, in 1968, for light industrial use as part of the City’s comprehensive master plan. The land for the subdivision is owned by the Wahpeton Community Development Corporation (Wah-peton CDC). Each plaintiff purchased their property in the industrial park during 1979. In 1987, the property was officially platted as the Industrial Park Subdivision. All the property in the subdivision is currently zoned for industrial and business use, except for Lots Five and Six of Block One and Lot One of Block Two which were rezoned in 1994 and contain multi-family dwellings, and Lots Fifteen and Sixteen of Block One, which have a single-family home, built prior to 1968.

[¶ 3] In 1995, defendant Douglas A. Carlson Development, Inc. (Carlson), a Minnesota construction company, purchased from the Wahpeton CDC, Lots Nineteen and Twenty of Block One and Lots Six and Seven of Block Two for the purpose of constructing low income housing, a construction plan which would qualify for the North Dakota Low-Income Housing Project. These lots were originally zoned for light industrial use and are located near the plaintiffs’ property but do not abut any lot owned by the plaintiffs.

[¶ 4] Apparently as a condition of the sale, the Wahpeton CDC submitted a request to the Wahpeton Planning Commission (Planning Commission) of the Wahpeton City Council (City Council) to rezone the property for residential, multi-family use. The Planning Commission notified the City Council it intended to hold, on February 5, 1996, a public hearing on the matter. Notices of this hearing were published in the Wahpeton Daily News on January 24 and January 31,1996.

[¶ 5] Several of the plaintiffs attended this hearing and the zoning request was discussed at length. The Planning Commission decided to delay a vote on the matter until February 20 to obtain more information and to allow the Commissioners to visit the site. Immediately following the Planning Commission’s hearing, the full City Council met and, following a report stating the Planning Commission did not act on the rezoning request, the City Council heard arguments and discussed the issue. The City Council, like the Planning Commission, did not act on the request, delaying a vote until further information could be reviewed.

[¶ 6] On February 20, 1996, the Planning Commission met and again discussed the rezoning request. The Commission rejected the rezoning proposal by a vote of 4 to 2. Later that same day the City Council met, and, with knowledge of the results of the Planning Commission’s vote, discussed the rezoning request. The City Council entertained a first reading of Ordinance No. 751, the proposed rezoning of the lots in question.

[¶7] The Planning Commission met on March 4,1996 and again discussed the rezoning issue and, again, opposition was raised by the plaintiffs. The president of the Planning Commission stated the previous “recommendation” would stand. No further formal action was taken. The City Council, again, with knowledge of the Commission’s action, discussed the issue at the Council meeting on the same day. Ordinance No. 751 was read for the second time. Following debate, Ordinance No. 751 was approved by a 5 to 3 vote.

[¶ 8] The plaintiffs’ started this action in late March, seeking a declaration Ordinance No. 751 was null and void because the City Council did not follow the proper procedure and notice requirements for rezoning as outlined by the Wahpeton City Code. The plaintiffs argued the procedures used were arbitrary, capricious, and unreasonable thereby violating due process. Moreover, the plaintiffs maintained the rezoning of the lots amounted to spot zoning. The defendants moved for summary judgment, to which the plaintiffs responded with their own motion for summary judgment. The trial court granted summary judgment in favor of the defendants, stating,

“[i]t is clear to the Court that the notice does show a change in zoning from 1-1 to R-3. The evidence also reveals that the City did comply with the scheduling of and holding the hearing as well as its reading and voting procedure. The Court does not find a violation of due process.”

*501 I

[¶ 9] Summary judgment is a method of disposing of a lawsuit promptly without a trial. Opp v. Matzke, 1997 ND 32, ¶ 6, 559 N.W.2d 837, 839. Summary judgment is proper, if, after viewing all the evidence in a light most favorable to the non-moving party, the court determines there is no genuine issue of material fact. Rule 56(c), N.D.R.Civ. P., Diegel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D.1996). We will not reverse a trial court’s grant of summary judgment unless, after reviewing the record, we believe a genuine issue of material fact exists. Opp, 1997 ND 32, ¶ 6, 559 N.W.2d at 839 (citing Binstock v. Tschider, 374 N.W.2d 81, 83 (N.D.1985)). Summary judgment also allows for disposal of a controversy if either party is entitled to judgment as a matter of law. Chapman v. Wells, 557 N.W.2d 725, 730 (N.D.1996).

II

[¶ 10] A city has the authority to zone the property located within the city’s limits to promote the health, safety, morals, or general welfare of the city. N.D.C.C. § 40-47-01; Munch v. City of Mott, 311 N.W.2d 17, 20 (N.D.1981). However, cities are creatures of statute and all power and authority must be derived from the legislature. Ebach v. Ralston, 469 N.W.2d 801, 804 (N.D.1991); Munch, 311 N.W.2d at 20 (citing Roeders v. City of Washburn, 298 N.W.2d 779, 782 (N.D.1980)). Enactment of municipal ordinances are legislative functions, but interpretations of these ordinances by the municipality’s governing body are quasi-judicial acts. Munch, 311 N.W.2d at 22. In reviewing the action of a city council, courts do not substitute their judgment for that of the council, but rather review the council’s actions to determine if they were arbitrary, capricious, or unreasonable. City of Fargo v. Ness,

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Bluebook (online)
1997 ND 124, 565 N.W.2d 498, 1997 N.D. LEXIS 127, 1997 WL 343954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bigwood-v-city-of-wahpeton-nd-1997.