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CITY ORDINÀNCES: ZONING: RETROACTIVE AMENDMENT: ENFORCEMENT:
to
Whether city mãy vaiid,ly amend zoning ord'inance retroactively
of
render illegal iand useã i"éäi can oñly be determined inorlight
refuse
particular facts and circo*Ëiãt."" ' citv T"I--"?:*liÌl
known
ignorjng
by
ord.inañce
of zoning
to enforce
of
="ãùir"*ents
úses. wheth"t-"iiv-could lsree :?
illesa1 rand
::::}"*"nt
poses
Iiti[ation that would. allow illegal- land use, to conttnue
hypoinetical question not answered here'
July 29' 1991
477b-34
gtg.
#4)
ref. to 59a-32
Charies À. Johnson
'rJrrna
ñi+-r
r1uqu
uiLts lìLLornev
^++,
P. O. Box f5
i{ugo, :'1N 55038
Dear l{r . Johnson:
In -,'our ì etÈer --3 Àt.tornev Generar äuberc g. iiumDnrev ' iTI
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FACIS
The City of Hugo has enacted a zoning ordinance which
establishes zoning dist,ricts and defines land uses that' are
including land
authorized. in each of the zoning districts,
uses that are authorized only after issuance of special-use
oermits- The ordinance prohibits land uses which are not in
ðompliance with these prõvisions and states that a violation
thereof is a misdemeanor. Several issues have arisen as to
the Iegality of certain actions the city might take in
dealing with illegal land uses under the ordinance.
You ask substanciaily the following questions:
V¡
Y¿¿¡g¡¡V
guEsrroN
oNE
I f illegat
land u.ses , within Lhe f ramework and
requirements of the zoning ordinance, are found to exist' frâY
the city amend the ord,iñance retroactively to render such
uses legal?
OPINION
Generally
Your question cannot be answereci categorically.
speakingr âo otherwise valid. exercise of municipal legislative
power to amend. a zoning ordinance wilL not be rendered invalid
solely by virtue of the fact t,hat it may operate retroactively.
However, the valid.ity of any such enact'ment, as an exercise of
Equat Ooportunrtv Employer
Printeo on RecYcled Paper
lharres À. -;nnson
i
lana
regis lat j-ve Þower / can only be determineci in tight
of the
Ðarticular racts and ci¡cumstances.
The general rul-e with respect to retroactive orciinances is
set Íorth in 6 McQuill-in Municrpal Corporations S 20.7 0 (3rd ed.
f 9 I B ) '*hich states in part :
municipal
The enactment of retrospective
legislation may be constitutionally prohibit,ed, but in
the absence of such prohibition, there is no rule
against retroactive municipal Iegislation unless it
ì nrerf eres with conEract or r,'estecì riqhEs .
l-Footnotes
¡mi riarì
l
prohibition
Àbsent any epparent conscitutional
against,
retroactive municipal Iegislation, as such, and excluding any
special situations involving claimed contractual rights, the only
question presented by the retroactivity of an ordinance amendment
of the kind proposed here is whether it would interfere with
so-called "vested riohts. " 1
Depending upon the scope and application of its specific
terms and þrovisions, such an amendmenË could, of course, amount
to a rezoning or reclassif icat.ion of particuJ-ar property under
the zoning ordinance.2 In any event, tuhere is no vested right in
A zoning ordinance which summarily terminates an existing use
is sometimes characterized as retroactive zoning. See
general-ly I Ànderson American Law of Zoning S 6.06 ( 3rd ed.
1986); see also Op. Atty. Gen. 477b-34t September L6, L949,
where we said that " Ia] zoning ordinance cannot operate
retroactively to deprive an owner of the lawful use which he
is making of the property at the time of the adoption of the
ordinance. " Since the zoning amendment apparently
contemplated by your question v¡ould Iegalize certain
previously iIIegal
land uses, it would not operate
reÈroactivej-y in this sense.
l^le assume, for purposes of this opinion, that your question
does not, contemplate an across the board legalization of all
ilIegal land uses so as to constitute a virtual repeal of the
zoning ordinance itself .
*l:.aries A. .i¿hnson
faqe
J
a zoning classification.
See Property Res. and Dev. Co. v. City
of Eagan, 289 N.W.2d I57 (Minn. 1980); see generaily 2 ZLeglex,
Rathkopf 's The Law of Zcning and Pl-anning S 27A,03[2][a] (4th ed.
1990) where the general ruLe is summarized as follows:
As a general proposition, property owners and
residenÈs have no legal right to the continued. existence
of current zoninq, either with respect to the zoning of
nearby property or with respect to zoning of one's own
nrôtìêrr\-r
rv
iL¡vvgvu.]
I'nnf rrnt-aq
.\mì f f ori
i
ì
C^^'
^¡ fect/
generai
ef
see also I Ànderson, American Law of
Zoning S 1.28 (3rd eci. l_986).
On the other hand, ihe original zoning classification of
property is presumed to be wel"I planned, and it is expected to be
somewhat permanent . See Freundshuh v. City of B]aine, 385 N.I^¡.2d
6 (Minn. Ct. App. 1986). See also Olsen v. City of Minneapolis,
263 ì'finn. )-, L2, 115 N.l^¡.2d 734, 74L (1962) where the court
observed that "Io]ne who has acquired property zoned for
particuLar purposes under a comprehensive zoning ordinance should
rFn
=|¡a
u¿¡E
Ðq¡.Ë
be entitled to rely thereon as against the arbitrary enactment of
thereto which result in the diminution in value or the
rest.riction of his rights and interests in such property. "
In the final analysis, the validity of a zoning amendment,
retroactive or ot,herwise, which modifies land-use provisions wil}
be determined in tight of the criteria alluded to in Parranto
Bros. v. City of New Brighton,425 N.W.2d 585 (l4inn. Ct.App.
1988) which involved a challenge to the city's rezoning of
amendments
property:
When a government body adopts or amends a zoning
ordinance it acts within its legislative capacity. Sun
Oil Co. v. Village of New Hope, 300 lvlinn, 326, 333, 220
.lharies A. . chnson
?age
4
N.I^l.2d 256, 26I (1974). Such a declsion must, be upheld
unless ic can be shown the cl-assification is not
supported by any rational basis relating to promot,ing
che public heaithr sâfetyr or welfare, or that it
amounts to a taking wit,hout, just compensation. State,
bv Rochester Association of Neighborhoods v. City of
Rochester, 268 N.W.2d 885, 888 (Minn. 1978).
Id. at 588; see also Freundshuh, supra. The appiication of these
criteria to a particul-ar zoning amendment involves factual
determinat,ions which are outsid.e the scope of our opinions. See
qenerally Op. Àtty. Gen. 629a, ì4ay 9, 1975.
QUESTTON TWO
May the city fail or refuse to enforce the requirements
of the zoning ordinance by ignoring known ilJ-egal land uses?
OPINION
In our opinion,
the city, acting through the city council, has a general duty to
enforce the zoning ordinance, although it has reasonable
discretion in making enforcement decisions in specific cases.
Your question is answered in the negative.
Thg aUthg¡i t-rr nf
lho
r-ì fr¡
¡ni-i nn f hrnrrnh
i f e rrnrrg¡nlng
bOdy,
to engage in land use planning is found in l4j-nn. Stat. SS 462 .35L
to 462,365 (1990). Zoning is specifically dealt with in section
462,357 which provides, in subdivision L, that a municipaliÈy may
"by ordinance regulate" the uses of buildings and land for trade,
indusEry, residence, recreaÈion, etc. "If]or the purpose of
promoting the public health, saf et,y, morals , and general
welfare
. ." Implicit j-n this grant of povrer is the notion
that an ordinance adopted pursuant thereto will be enforced. See
generally 4 ZLegLer, Rathkopf's The Lraw of ZoninÉ and Planning
S 45.01[3]tal (4th ed. 1990) citing cases to the effect' that it
.lharies À.
?aqe 5
- chnson
j-::rpiicit
rhat rhe zoning orciinance will ciesignate an
aciminiscrative officer to adminiscer the ordinance anci to enforce
is
i =
!L.
;ñ,-¡^^-:
irr.u.ËËL¡,
ample aut,hority to provicie ror such enforcement is
conferred upon the city by section 462.362.3
It
f ottows,
iheref ore, chat, having .aciopt,eci a zoning
the city counciL has a duty to make reasonable
nrr'ìlri q i nn f nr itS enf orcemeni.
TO hold otherwise would be tO
ordinance,
deprive che orciinance of anlr reai neaning and rencier i c a nullity
ior ait int.encs and Ðurposes . { Moreover, ¿he citv has
q.i. ¡trrinri
I r¡
a
-'ecognized duty to provicie f or the prosecution of
t
ì'tinn. Stat. S 487 .25 , subd. 10
in, among
( f9 9 0 ) relates to prosecutorial
responsibitities
others, Washington count,y where the city of Hugo is located. The
statute provides, in part:
AII violations of a municipal ordinance, charter
provision, ruler or regulation must be prosecuted by the
attorney for the governmental unit that promulgated the
municipal ordinance, charter provision, rule' or
ordj-nance violations generally.
Minn. srat,. s 462.362 (1990) provides:
'A municipality may by ordinance provide for
the enforcement of ordinances or regulations
adopted under sections 462.351- to 462.364 and
À
provide penalties for violation
thereof.
municipality may also enforce any provision of
sections 462.351- to 462.364 or of any ordinance
adopted thereunder by mandamus' injunction, oE any
other appropriate reneciy in any court of competent
jurisdiction.
A failure or refusal of a city council to properly enforce
various provisions of its zoning ordinance might also be Seen
as a ele. f acto amendment of the ordinance without observing
See Minn. Stat.
applicable procedural requirements.
S 462.357 | subds. 2 and. 3 (f 990) requiring a two-thj-rds vote
of the council- and a public hearing in order to amend a
zoning ordinance.
l::ar.l- es
:^ge
A. -chnson
b
regulat.ion cr by che councv artorney with
contracted to prosecute chese matters.
r+hom
ic
has
Ccmparable language in the preciecessors to this sect.ion has been
ziewecj as imposing a dut.y ro prosecute on municipal attorneys
anci, in addition, imposing, by impiication,
e duty upon
munic ipal- ities
to provide an attorney ro conduct such
orosecutions. See Op. Àtty. Gen. 469-b-1, November 7 | i969.
In carrving out it's obli,gation to provide for the enforcement,
: i --l:e zoning ordinance , :he c ì-ty ccuncrf : s vesced with
,rcnsicierable ciiscretionary auchority.
See, e.g., Arcadia
Deveiopment Corp. -¡. City of Bloomington , 267 ì,linn . 22L, L25
N.I^f.2d 846 (1964) where the city, acting t,hrough its city
council, was accorded "wide discretion" in the enforcement of
zoning ordinance provisions restricting and regulating business
signs and setbacks. On the other hand, the court, in paragraph
one of its syllabus, cautioned that, this was not the power "to
acË arbitrãriIy,
capriciously, or without, regard to property
right,s and the city is not free from the necessity to exercise
its powers reasonably, having regard for the purposes to be
attained compared with the restrictions thereby pJ-aced on each
property. " See oeneral-ly 13À DunneII Minn. Digest 2d Municipal
Corporations S 1.03 (3rd ed. 1981).
In a similar vein is the decision in Scinocca v. St. Louis
Cty. Bd. of Com'rs, 281- N.W.2d 659 (1979) which involved a
mandannus proceeding to compel the county board and the county
attorney to enforce the zoning ordj-nances of a town located in
the county. The court, held that " Im]andamus may be used to
lhari=s
\J r¡lllJUll
?age :
review a reiusai to exercise anv cij-screcíon whatsoever or Eo
reviets the aroitrary anci capricious exerci-se of discrecion. " Id..
q
.'.i
'
aE p. obI.r
further noting that '[m]andamus is aopropriat,e
-A.fter
only when there is a clear, nandatory cìucy ro performr " the court
concluded that, since neither the county board nor the county
attorney had such a duty/ the lower court erred in ordering them
to entorce t.he town zoning ordinances. Id. at p. 663. If these
offic:als haci been founci tc have such a ciutr¡, it seems clear that
'-IIey
-lrarr
¡r'r'l
C3UIO.l
ì..-r¡a
flâve
haa¡
lJeelr
u.i-uer€d.
^r¡iar
tC
.',CllSCnaf .ñô
ì:
Tn
rhi
q
râcñâñf
our ccurt aÞÞears to be in oeneraL accorci wich courts in other
jurisciictions.
See, e.s., 4 Anderson, Àmerican Law of Zoning
S 28.07 (3rd ed. 1986) where the foll-owing observation is made:
If the officers of a municipality whose clear duty
it is to enforce the zoningi regulations, fail to
discharge such duty, a citizen having no other remedy
may maintain an action for a v¡rit of mandamus compelling
such officers to enforce the requlations.
lFootnote
omittedl.
The court held that, under l{inn. Stat. S 394.37, subd. 4, the
plaintiff, as a county taxpayer, had standing to institute a
proceeding aqrainst the county board if thaÈ board
were required to enforce the town zoning ordinances.
Moreover, the plaint,iff also had standing, under Minn. Stat.
S 586.02, to institute such a proceeding against the county
attorney since the plaintiff, âs a resident and taxpayer, had
an interest in ensurinq that town zoning ordinances were
mandamus
enforced.
With respect to judicial review of city zoning decisions
see l4inn. Stat. S 462.36L (f-990). The refusaL of a request
for enforcement of zoning ordinance provisions is arguably a
"decision" within the contemplation of this section. C-f..
--**, \r" . Þ/'¡
-*. of Appeals of Ïrlestgort , 348 Mass . 515 , 204
N.E.2d 513 (1965) construing comparabJ-e statutory Ianguage.
trlr:rlrr
-t-;ìrl
=q
À
l,:hncnn
l¡no;
See aiso 4 Ziegier Rathkopr's The Law of Zoning anci Planning
S 45.0212) (1th ed. i990); ÀnnoEationr Zoning-Compelling
Enforcement, 35 ALR 2d 1135 (1954).
It is,
of course, well established that manciamus is not
avaii-abi-e to control the exercise of discretion of municipal and
other governmental bodies or boards. Seer e.g*r Curry r¡. Young,
285 Minn. 387 , I73 N.W.2d 410 (1969 ) invoj-ving the issuance of a
..'ariance under a zoning ordinance. ìlor is i-" available to
:onrrci the ciiscretion of crosecucing arcorneys, es the court in
Qr.innnnå
râñ^õnizorl
hr¡ it(
æ
- "" ob"at.raaro., chat, althougn mandamus
was appropriate to review t.he county attorney's refusal to
prosecute any tov¡n zoning ordinance violations, it "would not be
appropriate to compel the county attorney to initiate a specific
prosecution. " 28 I N.I^I. 2d at. p. 6 61 .
The concl-usion to be drav¡n here is that city officials may
not altogether fail or refuse to discirarge their general duty to
enforce the zoning ordinance by simply ignoring known' illegal
land uses; they are, however, vest'ed with reasonable discretion
in making the individual enforcement decisions necessarily
involved in the dischar'ge of that duty. If necessary, city
officials can, at the very minimum, be compelled by the courts to
fulfiLl their responsibilities by formally addressing apparent
violations and exercising reasonable discretion in dealing with
them. Depending upon the particular situat,ion this could include
the institution of appropriate civil- and/or criminal enforcement
proceedings by the city.
-harres À. -chnson
-tage
y
QUESTTON THREE
If *uhe citlr commenceci legai accion to enforce compiiance
:vith requiremencs of the zoning crciinance, couid j--' enter
i nto a settiemenE agreemenc that woutd all-ow ari iJ-Iegai land
use to continue?
OPINION
necessarr/ to deciine to respond *uo chis question
I^le finci it
since we are nor in a position ro attempt, to hypochesize about
the regal oropriecv of a theoretical sectlement agreement entered
inco in an unspecif ; eci 'leûai accion. " iee Op. Àtt-¡. Gen . ,529-a,
Yay 9,1975,
purporring
indicacing chat our office
ooes noE issue opinions
to decide hypot,heticaL quescions.
The answer to
a
question of this kind would, of course, depend upon the nature of
the particu-l-ar legal proceedings and the factual context in which
t.hey were commenced.
There can,
f or
examp.i-e, be circumstances
in which
a
municipality may be estopped from enforcing specific zoning
ordinance provisions against a given property owner. See, Ð-g-r
State, City of Eden Prairie v. Liepke, 403 N.!¡.2d 252 (Minn. Ct.
App. 1987 ) . A reasonable settlement agireement entered into in
good faith by a city in a situation of this kind to avoid
protracted litigation, whose ultimate outcome may be subject to
considerable doubt, could be deemed appropriate, notwithstanding
the inclusion of terms allowinq continuance of an otherwise
iIIacr¡I
Ianrì
rrqÂ
Qao ntO"tut,"
7 Dunnell l4inn' Digest
-*-''.
Compromise and Settlement S 1.05 (4th eci. 1990) indicating that
the settlement of Lawsuits is ordinarily favored.
Chart"es
Page 10
A.
Johnson
the other hand, a settlement agreement, in another factual
cont,ext, could be found to be inappropriate. See, e.9., Andgar
Associates, Inc. v. Board of Zoning Appeals of fncorporated
Vil-l-age of Port lJashington North, 291- N.Y.S. 2d 991' 30 À.D.2d
672 (N.Y. App. Div. f968) where the municipality could not, under
guise of compromise, abrogate or otherwise impair its public duty
to maintaj-n control of zoning in a specified area.
Accordingly, no single definitive ansv¡er applicable to all
possibÌe situations can be provided here.
Very truly yours,
HUBERT H. HUIÍPHREY, rrr
Attorney Genera]On
R. GÀLLÀGHER
Special Assistant
Àttorney GeneralMICHAEL
IvIRc !
gpp