Hirsch v. Scherr

295 N.W.2d 131, 1980 N.D. LEXIS 273
CourtNorth Dakota Supreme Court
DecidedJuly 17, 1980
DocketCiv. 9758
StatusPublished
Cited by3 cases

This text of 295 N.W.2d 131 (Hirsch v. Scherr) 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
Hirsch v. Scherr, 295 N.W.2d 131, 1980 N.D. LEXIS 273 (N.D. 1980).

Opinions

PEDERSON, Justice.

Darvin and Mary 'Kay Hirsch brought an injunction action against Wendelin Scherr alleging that Scherr had violated the City Subdivision Ordinances by re-subdividing a lot situated adjacent to theirs. Summary judgment was granted in favor of Scherr. We affirm.

The Hirschs’ home is located in Bismarck in North Hills Third Addition on Lot 24. They do not hold title to all of this lot. Scherr owns a small strip on the west side of Lot 24, and all of Lot 25 next door.

Scherr applied for and received building permits from the City Building Inspector, Jack Hegedus, to construct two duplexes, one on the west side of Lot 25 and the other on the remaining part of Lot 25 and the west portion of Lot 24. It is conceded by the parties that the construction does not violate any zoning ordinance as to area, length, width, setback or side separation requirements as between the duplexes themselves or the Hirschs’ home.

At some point during the construction process of the duplexes, the Hirschs made an objection to the city building inspector regarding the issuance of the permit to Scherr. Mr. Hegedus affirmed that the construction undertaken by Scherr was in accordance with the regulations of the City of Bismarck.

Apparently this same subdivision question had been raised some years before. The record before us contains a letter written on June 18, 1974, by Mr. Hegedus, requesting an opinion of the city attorney on this matter, stating in relevant part:

“It has been the practice of this department for the 15 plus years that I have been associated with it, that if a person bought a lot in an approved subdivision that wasn’t large enough for his home, he could purchase whatever amount of footage on the next lot to give him what he would need to meet his requirements as long as what would be left of the lot or combination of part of an adjacent lot would not be in violation of zoning regulations for lot size in its respective district.
“If we are wrong and every time a lot is broken down to be used with adjacent lots, I can see nothing but problems in the future. It would mean all of these would have to go through the City Planning Commission before a permit could be issued. This would be a delay of up to 180 days and a tremendous increase in the burden placed upon the City Planning Commission. I don’t believe this is the intent of the regulations, but would you please give me your opinion on the matter.”

The city attorney responded by letter dated June 19, 1974, that this was not a re-subdivision:

“The purchase of part of a lot which has already been platted and recorded is not a re-subdivision or a subdividing of the property. .
“In short, there is no change in the subdivision plat as recorded and approved, but simply your question involves the use of lots which have been platted and recorded and as stated, so long as they comply with the zoning requirements for size, area, setbacks, etc., there is no violation.”

On October 9, 1979, the Hirschs had a summons and complaint served upon Scherr, alleging that Scherr had violated the City Subdivision Ordinances by re-subdividing Lot 25 and the strip of Lot 24 he owns into two separate lots which, they contend, requires prior approval of the City Planning Commission. The Hirschs asserted that they had been damaged in that their property value had been diminished as well as their right to quiet enjoyment of their property. They asked for $10,000 in compensatory damages, for injunctive relief ordering the removal of one of the buildings (which at this point was 70% completed), and for restoration of the lot.

Both parties brought motions for summary judgment alleging that, under the law, [133]*133they were entitled to judgment against the other, there being no real dispute as to the facts. The district court reviewed the applicable city zoning ordinances and reached the following conclusions:

1. There is no city ordinance restricting one building per platted or record lot;

2. Without such a prohibition a person may build as many houses as he wishes on a piece of land, providing the zoning lot requirements are complied with;

3. Subdividing means the creation, on paper, of a separately identifiable piece of land, which had not occurred in this case.

Summary judgment was awarded in favor of Scherr, which the Hirschs appealed to this court.

As a preliminary matter we note that Article 2, § 15.0230(4), of the City Zoning Ordinances of the City of Bismarck, provides that an injunction action is an appropriate method of proceeding in a case such as this:

“(4) Remedies. In case any building or structure is erected, constructed, . or maintained, or any building, structure, or land is used in violation of this article, the building inspector ... or any adjacent, nearby or neighboring property owner who would be affected by such violation, in addition to other remedies, may institute injunction, mandamus, or other appropriate action in proceeding to prevent the occupancy of such building, structure, or land.” [Emphasis added.]

As to the merits, we agree with the district court that Scherr’s action in purchasing Lot 25, plus a strip of a lot which had already been platted and recorded, and erecting two buildings on this area, was not a re-subdivision of the property.

’ The crux of the Hirschs' complaint is that when they purchased their lot and saw that there was one empty lot next door, they expected only one house to be built on it. For this to be a valid cause for relief, there must be some statute or ordinance that provides there can be only one building per lot and that building two houses on a lot •automatically constitutes a subdvision of the property. No such statute or ordinance exists.

The Bismarck City Zoning Ordinances, Appendix A, is broken down into four articles: 1. City Planning Commission'; 2. Zoning; 3. Master Plan; 4. Regulations Governing the Subdivision of Land. These articles interrelate and must be read as a whole.

Section 15.0401 of Article 4 provides that the City Planning Commission is authorized to review and approve or disapprove the subdivision of land. Section 15.0404 defines subdivision as follows:

“The division of a lot, tract or parcel into lots for the purpose, whether immediate or future, of sale or of building development, . . . ‘Subdivision’ includes the resubdivision of one or more lots in a subdivision . . . .”

“Lot” is defined in this same section as “A portion of a subdivision, or other parcel of land intended as a unit for transfer of ownership or for development.” This is not the only definition of the word “lot” given in the ordinances. Article 2 of the City Zoning Regulations defines two specific types of “lots”:

“Lot — Record: Land designated as a separate and distinct parcel on a legally recorded subdivision plat or in a legally recorded deed filed in the records of Bur-leigh County, North Dakota.
“Lot — Zoning: A tract of land occupied or to be occupied by a principal building and its accessory buildings, together with such open spaces and yards as are required under the provisions of this article, . A ‘zoning lot’ need not necessarily coincide with a ‘record lot’ as herein defined.”

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Related

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Hirsch v. Scherr
295 N.W.2d 131 (North Dakota Supreme Court, 1980)

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Bluebook (online)
295 N.W.2d 131, 1980 N.D. LEXIS 273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hirsch-v-scherr-nd-1980.