(dissenting).
I respectfully dissent. There is ample evidence on the record to support the trial court’s conclusion that the 8-month zoning moratorium1 was arbitrarily and capriciously directed at Earle Almquist’s property. Because of this posture of the evidence, I would affirm, or, at the very least, allow Almquist to challenge the arbitrary nature of the moratorium on remand without dooming him to failure under a “substantial prejudice” standard.
The majority opinion finds some difficulty with this case because “neither the authority which Almquist sought to obtain from Marshan nor the issues litigated in the trial court are clearly defined.” While initially there might have been some confusion as to what Almquist was seeking, the town board knew almost from the beginning that he was seeking a special-use permit. This is shown by the town’s brief:
“Confronted here by the necessity of Town Board approval, Almquist first appeared before the Planning Commission, on March 7,1972 with a very rough sketch of his proposed development * * *. From the outset, there was some confusion as to precisely what Almquist was seeking. * * * This confusion stemmed primarily from Almquist’s failure to couch his requests in specific terms of special use permit, building permits, or plat approval. Nevertheless, the Town Board correctly recognizing that this application was governed by special permit provisions of the zoning ordinance and not by its subdivision regulations, *76referred Almquist to the Planning Commission for a recommendation on the appropriateness of Almquist’s application before rendering a decision on the special permits * * *. After some preliminary discussions of the development with both the Planning Commission and the Town Board, the matter was referred to the Town’s newly acquired consulting engineer, Mr. Donald Overland of the Milner W. Carley engineering firm * * * for study and recommendation.”
There is no evidence that the town board at any time refused to grant approval of Almquist’s application because it did not know what he was seeking. Initially, he had asked for approval of a development project under a project plan showing lots and roads. At the request of the town board and its consultants, he showed the drainage, the topography, etc. on his project plan. When he asked for approval of his project, he was told that he had to have a plan acceptable to the town board. It was abundantly clear to both Almquist and the town board that Almquist was seeking at all times the necessary approval to proceed with his residential development project. If this were not clear, why did both parties, through meetings and consultants, work on the project for over 6 months? It is ridiculous for the town board to argue now that Almquist asked only for approval of his plan for development and that he should be denied any approval because he did not use the magic words, “special-use permit.”
While the issues at the time of trial may not have been well defined, they were adequately defined. Our liberal rules of pleading do not usually lead to well-defined issues and this case was no exception. The factual issues that were decided, however, are quite clear. The essential ones are set forth in the findings as follows:
“At the Town Board meeting of September 19, 1972, Plaintiff was advised that action on his application would be taken at their October 1972 meeting. No further conditions or changes in the plan were requested or fixed at that time.
*77“At the October 17, 1972 meeting the Town Board denied Plaintiff’s application for a special use permit by passing a resolution declaring a moratorium on all development within the Township for a period of six (6) months.
“That the action of the Town Board with respect to this application was arbitrary, capricious and unreasonable.
“The evidence before the Court establishes that Plaintiff’s requested use is compatible with the basic use authorized within a P-O-C zone, is in complete harmony with the intent and purpose of the zoning ordinance and in no manner endangers the public health, safety or general welfare of the Town of Marshan or any resident of that community.”
The majority opinion reversed, at least in part, on the ground that the court below based its decision on the erroneous theory that a municipality does not have the power to impose a moratorium of limited duration. I agree that if that court’s decision was so based, and the town was thereby prejudiced, it should be reversed. However, I conclude that the court based its decision on the ground that the moratorium was arbitrary as applied to Almquist and that its remarks concerning the erroneous theory were gratuitous and not prejudicial to the town. The trial court made a number of findings, all of which would be superfluous if the court intended that the moratorium was per se invalid. They read as follows:
“Almost every month thereafter meetings were had with the planning commission, the Town Board or correspondence passed between the parties resulting in various changes and alterations in Plaintiff’s proposed development plan.
“At all times Plaintiff was willing and able to comply and has complied with all change recommendations and conditions fixed by the Planning Commission or the Town Board with respect to his proposed development.”
Those findings were an important part of the basis for the *78court’s subsequent finding that the “action of’the Town Board with respect to this application was arbitrary, capricious and unreasonable.”
The conclusion that the trial court based its decision on the arbitrary and capricious action of the town board in delaying any decision on Almquist’s action for 6 months and then extending that by a moratorium for a further 8 months is fortified by that court’s memorandum accompanying its order denying a new trial:
“Proceedings leading to the commencement of this action show that it would have been futile for Plaintiff to make further efforts to seek relief from the Town Board. Under the circumstances the doctrine of exhaustion of administrative remedies does not apply.
“The permits sought by Plaintiff are for the development of single family dwellings on tracts of 2 acres in a totally rural area. That use is contemplated under existing zoning and is consistent with the intent and purpose of the ordinance. I know of no more desirable type of development.
“Plaintiff established that he was and is willing and able to comply with all ordinance provisions and other reasonable conditions deemed necessary to proceed with this development. Doubtless he experienced some difficulty by reason of the fact that procedures required to obtain permits are virtually nonexistent.
“Noteworthy is the fact that this application was pending before the Town Board for about six months before being denied by way of a. moratorium. All facts surrounding this matter compel a conclusion of arbitrary conduct.”
I recognize that the trial court’s memorandum accompanying its earlier order for judgment, standing alone and at first blush, might lead one to believe that he was mistaken as to the law to be applied. It reads as follows:
“Unlike the situation where an application is made for a vari-*79anee or change in zoning Pláintiff in this case seeks to obtain a permit to use his land for a purpose expressly permitted by the zoning ordinance.
“Nothing in the record reasonably tends to show that the construction and maintenance of the proposed subdivision is liable to work any injury, inconvenience or annoyance to the community or any person.
“Accordingly, the Court must recognize the absolute right of an individual to rely upon zoning in effect at the time he makes application for a use contemplated under a zoning ordinance.”
I do not construe this language as the majority does. First, the word “accordingly” prefacing the last paragraph refers back to the record in this case, and, second, the memo accompanies an order which determined that the action of the town board was arbitrary in adopting a moratorium, but limited that finding to its effect on Almquist’s application. In addition, the court did not at any time find or indicate the moratorium was per se invalid. Finally, the memorandum of the trial court accompanying the order denying amended findings or new trial further clarifies the basis of the initial decision: “Noteworthy is the fact that this application was pending before the Town Board for about six months before being denied by way of moratorium. All facts surrounding this matter compel a conclusion of arbitrary conduct.” (Italics supplied.)
Based on the above discussion, I see the dispositive issue in the instant case in a somewhat different posture than the majority. I would frame the issue as follows: Was the trial court’s finding that the actions of the town board in declaring and applying to the property of Earle Almquist a moratorium of a total of 8 months’ duration clearly erroneous?
The record amply supports the finding of the trial court that the town’s refusal to grant Almquist a special-use permit was arbitrary, capricious, and unreasonable. Between March and *80October of Í972, Almquist appeared before the town, planning commission three times and the town board three times seeking permission to proceed with his development. He and his consultant worked on his project with Donald G. Overland, a professional engineer serving as consultant on land development to Marshan Township, from July to September 1972. It is undisputed that immediately prior to the town board meeting of October 17,1972, Almquist had surmounted all of the obstacles to his project the town had placed in front of him. In a letter to the planning commission on September 5, 1972, Overland had described Almquist’s plat as “well prepared” and nowhere in these proceedings has the town presented any evidence that Almquist had not painstakingly met every reasonable requirement for obtaining the special-use permit he formally requested at the town board meeting on October 17, 1972. At that meeting, however, he received an unpleasant surprise from the town board, which had theretofore incrementally approved and advanced his proposal. Before considering his request, the board passed a 6-month moratorium on building permits, 2 and then denied his request because of that moratorium. It should be noted that the moratorium expired on April 19, 1973, and that the town board advised Almquist it would render a decision within 6 months. That period had expired by the time of trial and at the time of the decision in the court below. 3 At the trial, board member Robert Weber gave no specific reasons for the moratorium, although he did note, as the majority points out, that three other requests were being considered at the same time. The minutes of the meeting reveal that two other requests besides Almquist’s were denied because of the moratorium. Neither those minutes nor the trial transcript supply any specific reason why Almquist or anyone *81else should not be allowed to build single-family houses on 2y% acre lots other than the board’s dramatically sudden decision that a moratorium was necessary to allow a “sensible and comprehensive study” leading to a comprehensive land use plan for the township. No substantial facts or policy considerations underlying that decision were presented at the trial. On this record, the trial court could reasonably have concluded that the moratorium was pure artifice — a device calculated to deny Alm-quist’s proposal with only a window dressing of public interest.
While I agree that a moratorium for a reasonable period of time might be a permissible exercise of a municipality’s zoning power, such a moratorium should be carefully scrutinized where arbitrariness and capriciousness may be present. Neither our prior decisions, fairly read, nor the bulk of well-reasoned foreign decisions support the moratorium in this case. Although the “hold order” which the city imposed in Alexander v. City of Minneapolis, 267 Minn. 155, 125 N. W. 2d 583 (1963) was longer than the moratorium here, we quoted as an additional basis for our decision the following language from State ex rel. The Fair-mount Center Co. v. Arnold, 138 Ohio St. 259, 34 N. E. 2d 777, 136 A. L. R. 840 (1941):
“A municipal council may not, by the enactment of an emergency ordinance, give retroactive effect to a pending zoning ordinance thus depriving a property owner of his right to a building permit in accordance with a zoning ordinance in effect at the time of the application for such permit.” 267 Minn. 159, 125 N. W. 2d 586.
Thus, in Alexander, we recognized at least some limited right in a landowner to rely on existing zoning ordinances. In Ostrand v. Village of North St. Paul, 275 Minn. 440, 147 N. W. 2d 571 (1966), we concluded that an ordinance intended to act as a “stopgap,” until a new comprehensive zoning ordinance could be enacted was irrelevant to an application for a construction per*82mit made before the adoption of the new comprehensive ordinance. While we noted that the “stopgap” ordinance there lasted for nearly two years, we based our holding on the ground that “stopgap” ordinances deny due process:
“The language of Ordinance No. 320, upon which the council determined that existing zoning ordinances could be ignored until action was taken upon the contemplated general comprehensive zoning, is indefinite. We are inclined to agree with the trial court’s concept of it as a ‘stopgap’ ordinance, although its. language makes any conclusion as to its meaning extremely uncertain. It was adopted August 15, 1960, almost 2 years before the new zoning ordinance was adopted. As the trial court stated, ‘[I]t appears to be an effort to freeze all zoning as of a certain date unless the council decides otherwise.’ We have held that an ordinance of this kind constitutes taking of property without due process contrary to constitutional requirements. In such light it must be held irrelevant in the present proceedings. See, Alexander v. City of Minneapolis, 267 Minn. 155, 125 N. W. (2d) 583.” (Italics supplied.) 275 Minn. 448, 147 N. W. 2d 576.
Since we expressly premised the above decisions on constitutional grounds, any reliance by the majority on the vaguely worded legislative policy to promote traditional objectives of “public health, safety, morals and general welfare” found in L. 1965, c. 670, is misplaced.
But one need not go even as far as we have gone in the above decisions to affirm in this case. While the majority is correct in its statement of the general rule allowing retroactive application of zoning ordinances, Annotation, 50 A. L. R. 3d 596, 602, the instant case falls within a major exception to that rule refusing to allow retroactive application in cases of bad faith or arbitrary action on the part of a governmental subdivision. 50 A. L. R. 3d 603. Several courts have indicated in this vein that an ordinance enacted as special legislation in an attempt to frustrate a developer’s plans to lawfully use his property will not be enforced *83against such a developer. Commercial Properties, Inc. v. Peternel, 418 Pa. 304, 211 A. 2d 514 (1965); Linda Development Corp. v. Plymouth Township, 3 Pa. Cmwlth. 334, 281 A. 2d 784 (1971); Nott v. Wolff, 18 Ill. 2d 362, 163 N. E. 2d 809 (1960); Vine v. Zabriskie, 122 N. J. L. 4, 3 A. 2d 886 (1939). See, also, State ex rel. Humble Oil & Refining Co. v. Wahner, 25 Wis. 2d 1, 130 N. W. 2d 304 (1964), and Willingham v. City of Dearborn, 359 Mich. 7, 101 N. W. 2d 294 (1960) (ordinances enacted pendente lite).
In the face of this record and this authority, the majority maintains that the moratorium was a good-faith action by laymen without expertise to permit a laudable objective: comprehensive zoning. First, there is no evidence that the town board members lacked expertise in zoning matters. In fact, the only evidence we have on that issue indicates that one board member had seven years’ experience on the planning commission and has assisted in developing the pre-moratorium ordinance at issue in this case. In addition, the board has the services and advice of a professional on land development in the person of its engineer; Overland, whose suggestions were followed by Almquist. Second, there is no evidence that an 8-month moratorium followed by a comprehensive zoning ordinance was necessary in the Town of Marshan in this case. There is no evidence of any threat posed by the Almquist proposal or any other proposal to the health, safety, or welfare of the people of Marshan that would justify a moratorium and comprehensive zoning. In the absence of such evidence, the trial court could have concluded, as it did, that the moratorium was directed at Almquist’s property and constituted arbitrary action.
In the past, this court has been particularly sensitive in balancing the important governmental interests in flexible and comprehensive land use planning and the oft-times forgotten interests of the individual citizen in freedom from government interference in the use of his property and in fair and civil treat*84ment by government officials. Metro 500, Inc. v. City of Brooklyn Park, 297 Minn. 294, 211 N. W. 2d 358 (1973); Main Realty, Inc. v. Pagel, 296 Minn. 362, 208 N. W. 2d 758 (1973); Hay v. Township of Grow, 296 Minn. 1, 206 N. W. 2d 19 (1973); Zylka v. City of Crystal, 283 Minn. 192, 167 N. W. 2d 45 (1969). There is unquestionable merit in the majority’s argument that a moratorium of reasonable duration ought to be a weapon in local government’s arsenal as it faces land use problems. But such a moratorium should not apply to Earle Almquist on the facts of this case. After many months of planning and diligent compliance with town requirements, Almquist was confronted with a new ordinance and the task of starting all over. The town should not have been allowed to deny his request without good and sufficient reason and then to take refuge behind a shield of “greater public good.” Whether the legal theory is labeled estoppel, arbitrary action, denial of due process, or a taking without compensation, there should be some remedy for the wrong he has suffered. Minn. Const, art. 1, § 8.4
A further issue suggested by the facts in this case is the validity of Marshan’s new comprehensive zoning ordinance. As I read the majority opinion, it does not foreclose a direct attack upon the ordinance by Almquist or anyone else affected by it. I have grave doubts that the ordinance could withstand such an attack. Under the ordinance, Almquist’s land is zoned for “agricultural preservation,” allowing single-family dwellings on 10 acres of farmable land or on 5 acres of nonfarmable land. This size requirement is unbelievable when it is contrasted with engineer Overland’s statement to the planning board that the lots of 21/2 acres called for by Almquist’s plan were large and should perhaps be broken down into smaller parcels. First, Almquist’s uncontradicted testimony in the case at bar establishes that his land is unfit for farming because the soil is sandy and would *85yield an average of only 5 bushels of soybeans per acre. The town’s attempt to zone his land for agricultural use thus may well be confiscatory and invalid. County of Freeborn v. Claussen, 295 Minn. 96, 102, 203 N. W. 2d 323, 327 (1972); State ex rel. Howard v. Village of Roseville, 244 Minn. 343, 70 N. W. 2d 404 (1955); 1 Rathkopf, The Law of Zoning and Planning (14 ed.) § 6.03.
Second, the imposition of 10-acre-minimum lot sizes for single-family homes seems an unreasonable means to achieve the purported objective of agricultural preservation. It is difficult to imagine a profitable farm in the area in question no larger than 10 acres. And yet, the ordinance permits a single-family house on 10 acres of land. This suggests to me that the ordinance is not tailored to preserve agriculture, but to allow only large country estates.
Finally, the ordinance is exclusionary5 in that it tends to keep poor and middle-income citizens who might like to live in the Marshan countryside from doing so because of the potentially prohibitive price of a 10-acre lot. In this way the town is able to exclude all but the rich and to hamper necessary residential development as well. The effect of this goes far beyond the town itself and tends to promote overcrowding in our metropolitan areas. The majority speaks in derogatory terms of urban sprawl. I suggest that urban overcrowding is likewise a serious problem. However, freedom of choice for our people is most important. In a recent extensive and well-reasoned opinion, the Supreme Court of New Jersey has so held, striking down, among other provisions, a restrictive minimum-lot-size requirement.6 South-*86era Burlington County N.A.A.C.P. v. Township of Mt. Laurel, 67 N. J. 151, 336 A. 2d 713 (1975). As Justice Hall wrote for the majority:
“It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such municipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources <?f all categories of people who may desire to live within its boundaries. Negatively, it may not adopt regulations or policies which thwart or preclude that opportunity.” 67 N. J. 179, 336 A. 2d 727.
The Marshan ordinance does not reflect any sense of responsibility for securing the “good life in Minnesota” to our low- and middle-income citizens, many of whom might want to and could afford to purchase a 21^-acre lot from Almquist.
As to the disposition of the instant case, I would hold only that the Marshan moratorium is arbitrary as applied to Earle Alm-quist. I would do so to preserve some limited freedom of action and fairness of treatment for individual citizens in the face of local irrationality in land use decisions.
Todd, Justice (dissenting).I join in the dissent of Mr. Justice Kelly.
Yetka, Justice (dissenting).I join in the dissent of Mr. Justice Kelly.
Mr. Justice Breunig took no part in the consideration or decision of this case.The town board initially passed a 6-month moratorium and then extended it 1 month. The new ordinance was passed 1 month later, so in effect the moratorium was 8 months in duration.
The terms building permit and special-use permit are used synonymously in the ordinances involved herein.
The original 6-month moratorium was extended for 2 months. A new comprehensive ordinance rezoning Almquist’s property was passed on June 19,1973.
Therefore, even if the majority is correct in its view that the trial court proceeded on an erroneous theory of law, Almquist should at least receive a new trial on the issue of arbitrariness.
Exclusionary zoning has produced much scholarly writing. Among the better articles are: Note, 84 Harv. L. Rev. 1645; Note, 81 Yale L. J. 61; Note, 69 Mich. L. Rev. 339; Symposium, 22 Syracuse L. Rev. 465.
See, generally, on minimum lot sizes: Appeal of Kit-Mar Builders, Inc. 439 Pa. 466, 268 A. 2d 765 (1970); National Land & Investment Co. v. Kohn, 419 Pa. 504, 215 A. 2d 597 (1965).