McLain v. Midway Township

326 N.W.2d 196, 1982 N.D. LEXIS 384
CourtNorth Dakota Supreme Court
DecidedNovember 15, 1982
DocketCiv. 10144
StatusPublished
Cited by7 cases

This text of 326 N.W.2d 196 (McLain v. Midway Township) 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
McLain v. Midway Township, 326 N.W.2d 196, 1982 N.D. LEXIS 384 (N.D. 1982).

Opinions

ERICKSTAD, Chief Justice.

This is an appeal by Midway Township from a judgment of the District Court of Stutsman County, dated December 7, 1981, by which the court awarded the plaintiffs, Bernard and Kathryn McLain, damages, together with costs and disbursements, against Midway Township, in the total amount of $15,456.25. We reverse.

The McLains own, jointly with other persons, a section of land in Midway Township. During 1979, the McLain’s children purchased a house from the Jamestown school system which they gave to the McLains as a present for their 34th wedding anniversary. At the time this gift was made, Bernard, an ordained minister with the United Church of Christ, and Kathy resided at Winthrop, Minnesota. Upon receiving the house as a gift the McLains made plans to move it to their property in Midway Township to use as their retirement home within a couple of years.

[197]*197The McLains contacted Charles Purdy, the zoning administrator for Midway Township, to determine how to proceed with their plans. Purdy gave them a copy of the Midway Township zoning ordinance with which he told them they must comply, and he specifically instructed them to make certain they complied with Section II(H.) of the ordinance, which provides as follows:

“H. Quality of Building Construction
No structure or building shall be erected in or moved into the township unless such structure or building shall be decent, safe, and sanitary. Decent, safe and sanitary shall be defined as those buildings and structures erected within the specifications of the National Building Code of the American Insurance Association as used by the City of Jamestown. Before any variance can be granted for the moving in of a building, a written request for a variance hearing must be received and petition signed by 100% of the property owners within a one-half (⅜) mile radius of the proposed location of the structure." [Emphasis added.]

The McLains were instructed that they must rezone the property on which they intended to place their house from an agricultural zone to a restricted residential zone. The McLains were also instructed to submit a formal plat of the property.

The McLains attempted to comply with these instructions. Bernard drafted a petition to obtain the signatures of the property owners within a one-half mile radius of the proposed location of their house in an attempt to comply with Section II(H.) of the Midway Township zoning ordinance. After the McLains believed they had obtained all the necessary signatures on the petition they presented it to the Midway Township board supervisors and to Mr. Purdy at an informal meeting on August 25, 1979. At that time the McLains were advised that they needed to obtain additional signatures from people living in a residential development called Diamond Acres which was located within the one-half mile radius of the proposed location of their house.

Following the informal meeting on August 25, 1979, the McLains attempted to once again obtain the necessary signatures to comply with Section II(H.) of the ordinance. Because the McLains had not taken the original petition with them after the August 25 meeting, Bernard drafted a new petition. He then secured the necessary signatures and submitted the petition to Purdy.

Purdy testified that while he was getting information together on the McLain matter for a rezone meeting to be held on October 2, 1979, he discovered that the second petition circulated by the McLains contained, in his opinion, defective wording which did not comply with the ordinance. According to Purdy, the petition was defective because it sought the approval of the property owners to allow the McLains to be their “neighbors” but failed to state that the McLains intended to move a house into the township. Purdy informed the McLains that in order to comply with the ordinance they would have to obtain signatures of the appropriate property owners on a corrected version of the circulated petition. The McLains attempted to obtain the necessary signatures on a newly drafted petition but, for various reasons, were unable to obtain all the necessary signatures.

On October 2, 1979, the Midway Township board of supervisors held a public hearing on the McLains’ request to rezone their property. At that hearing many of the township citizens expressed an unfavorable attitude toward allowing the McLains to move into the township. Various members of the board of township supervisors also expressed reservations about the McLains’ proposed move. The board members’ reservations were primarily directed toward their concern about the future costs of building and maintaining a road to the McLains’ property.

The McLains had promised Jamestown School District that the house their children purchased from the district would be removed from the school district’s property by October 15, 1979. Although the McLains had not received approval to move the [198]*198house into the township, they hired a mover and directed him to move the house into the township by October 15,1979. Upon learning of this, the township board of supervisors secured an ex parte court injunction prohibiting the removal of the house into the township. Subsequent to the service of the injunction against the mover, the house was vandalized while located on the school district property in Jamestown.

Thereafter, the McLains filed a damage action against Midway Township in the District Court of Stutsman County. In their complaint, the McLains asserted that the Midway Township zoning ordinance was unconstitutional and that the township and its representatives had acted unlawfully in refusing to permit them to move their house into the township. Midway Township moved for a dismissal of the action on the ground that the township was immune from suit, but the motion was denied by the district court. At the conclusion of the trial, the district court entered its judgment in favor of the McLains from which Midway Township has filed this appeal.

On appeal Midway Township asserts that it, as a political subdivision, is immune from the McLains’ claim for damages pursuant to Subsection 32-12.1-03(3), N.D.C.C., which provides:

“32-12.1-03. Liability of political subdivisions — Limitations.
3. A political subdivision shall not be liable for any claim based upon an act or omission of an employee of a political subdivision, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance, exercising due care, or the failure to exercise or perform a discretionary function or duty on the part of a political subdivision or its employees, whether or not the discretion involved be abused.

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McLain v. Midway Township
326 N.W.2d 196 (North Dakota Supreme Court, 1982)

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Bluebook (online)
326 N.W.2d 196, 1982 N.D. LEXIS 384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclain-v-midway-township-nd-1982.