(concurring specially).
Counsel on appeal have conceded that certain language of the Midway Zoning Ordinance (Plaintiff’s Exhibit No. 1.) should be found unconstitutional as an unlawful delegation of legislative power to individual citizens who are property owners within one-half mile radius of the proposed location of a structure intended to be moved into the township. The constitutionally offensive language is emphasised in the opinion of the Court as Subsection “H” of the Ordinance as follows:
“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 one-half (½) mile radius of the proposed location of the structure.”
The admitted effect of that sentence is to give absolute veto power to any described property owner over the use by an affected landowner of his land.
*200In Eck v. City of Bismarck, 283 N.W.2d 193 at 197 (N.D.1979), our Court said inter alia,:
“... A zoning ordinance, one type of land-use regulation, will withstand constitutional scrutiny even though it diminishes the value of the regulated property (Citations omitted.), or disallows a use that the property owner considers to be the most valuable use of his property (Citations omitted.). Nevertheless, the' State’s power to zone is not boundless. A zoning ordinance must be reasonable: Courts will invalidate a zoning ordinance that bears no reasonable relationship to a legitimate governmental purpose, that is arbitrary, or that deprives a property owner of all or substantially all reasonable uses of his land. (Citations omitted.).
In my opinion this Court should have stated its acceptance of the parties’ concessions and should have specifically held that the last sentence of Subsection I, Section II of the Midway Zoning Ordinance is invalid. In my opinion its invalidity would rest on its unreasonable delegation of a legislative power to any one member of an ascertainable group of property owners with the zoning district. This delegation suffers from the additional infirmity of providing an absolute veto to any such property owners without any right of administrative review of that veto being afforded to the affected landowner petitioner. The township has conceded to the appellant that this sentence of the ordinance is unconstitutional and that it should be invalidated. It appears to me that the constitutional objection to the language is that it grants a privilege to a particular class of citizens, viz., property owners within one-half of the proposed building site. That privilege is a personal veto power over the -petition of another landowner, for a moving permit. It partakes of a non-delagable governmental power. Furthermore, such privilege was not granted to all citizens resident therein on the same terms. The language should be declared invalid as being violative of Article I, Section 21 of the North Dakota Constitution:
“No special privileges or immunities shall ever be granted which may not be altered, revoked or repealed by the legislative assembly; nor shall any citizen or class of citizens be granted privileges or immunities which upon the same terms shall not be granted to all citizens.”
I am also persuaded that another section of the subject ordinance deserves attention. That is Section IV “Administration and Enforcement.”
That Section provides in part:
“The Board of Supervisors of Midway Township shall assume the following responsibilities and duties in the administration of this zoning ordinance and in accordance with Chapter 58-03-11 to 38-03-15 of the North Dakota Century Code.
A. Duties of the Board of Supervisors:
1. Establish and administer the rules and procedures for conducting the zoning affairs of the township.
4. Establish requirements and procedures for submission of applications.
7. Issue Building Permits and Certificates of Compliance:
8. Hear appeals from any person, party, firm or organization aggrieved by the actions or decisions of the zoning administrator.”
The record in this case shows that the processing of the appellants’ applications and petitions in this case was conducted on an ad hoc basis. The governmental immunity invoked here renders the township immune from liability for damages in this case. The township’s officials should not infer from the Court’s opinion herein that such governmental immunity excuses the township and its officials from carrying out the responsibilities to their constituents that they solemnly assumed when they, or their predecessors in office, enacted the Ordinance in question.
They have carried out those responsibilities in many respects. However, it appears *201to this writer that the township’s determination of inadequacy or insufficiency of the form of the appellants’ petitions and applications should only have been based upon a procedural deficiency or rule violation of procedures or rules that had been previously established by the township under the ordinance. I agree that the township is immune from liability for damages in this case. I also believe that its officials should never-the-less be reminded that they are ultimately responsible to their constituent voters of the township for their performance under the ordinance.
With these additional statements, I concur in the decision of the Court.