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(- Cal. —, 234 Pac. 381.) cable to the precise question pre- and double family residence propsented here. State ex rel. Carter v. erty district. Harper, 182 Wis. 148, 33 A.L.R. There are some decisions which 269, 196 N. W. 451.

do not uphold the validity of a zonThe court of appeals of New ing ordinance establishing strictly York, in Lincoln Trust Co. v. Wil residential districts. We are of the liams Bldg. Corp. supra, held the opinion, however, that the better adoption of a zoning resolution reasoned cases are in favor of the creating three districts—residential, validity

validity of comprehensive zoning business, and unrestricted—to be a which establishes strictly private valid exercise of the police power. home districts, and that the most The Iowa supreme court, in Des which can be said of the cases to the Moines v. Manhattan Oil Co. 193 contrary is that they merely show Iowa, 1096, 23 A.L.R. 1322, 184 N. that this is a question upon which W. 823, 188 N. W. 921, held that a reasonable minds may differ. zoning ordinance establishing a re- In addition to all that has been stricted residential district was not said in support of the constitutionin contravention of a state statute ality of residential zoning as part nor the Federal Constitution. And of a comprehensive plan, we think the supreme court of Kansas, in it may be safely and sensibly said Ware v. Wichita, 113 Kan. 153, 214 that justification for residential zonPac. 99, held that cities could plan ing may, in the last analysis, be and create reasonable zoning dis- rested upon the protection of the tricts for the future systematic de- civic and social val

Buildings-jasvelopment of the city, and provide ues of the American tification of zon

home, therein for residential, commercial,

ing ordinance,

The estaband industrial districts. The su- lishment of such districts is for the preme court of Louisiana pointed general welfare because it tends to out, as do almost all of the cases promote and perpetuate the Ameridealing with the subject, the con- can home. It is axiomatic that the siderations of public health, safety, welfare, and indeed the very existmorals, and general welfare upon ence, of a nation, depend upon the which a zoning ordinance, providing character and caliber of its citizenry. for the creation of residential, com- The character and quality of manmercial, and industrial districts, hood and womanhood are in a large may be based. State ex rel. Civello measure the result of home environv. New Oreans, supra. The su- ment. The home and its intrinsic preme court of Wisconsin, in a care- influences are the very foundation of fully considered opinion, has like- good citizenship, and any factor conwise upheld, and for much the same tributing to the establishment of reasons, the validity of residential homes and the fostering of home zoning districts. State ex rel. Car- life doubtless tends to the enhanceter v. Harper, supra.

ment not only of community life, The case of State ex rel. Morris

but of the life of the nation as a v. Osborn, 22 Ohio N. P. N. S. 549,

whole. presents the precise point in contro

The establishment of a singleversy here, and hence is particularly family residence district offers in

ducements not only to the wealthy, pertinent. While the decision is not

but to those of moderate means, to one of a court of last resort, never

own their own homes. With ownertheless we are in accord with the ship comes stability, the welding toreasoning of the court in refusing a

gether of family ties, and better atwrit of mandamus sought by the tention to the rearing of children. petitioner to compel the building in

With ownership comes increased inspector to issue him a permit to erect terest in the promotion of public certain apartment houses in a neigh- agencies, such as church and school, borhood zoned as an exclusive single which have for their purpose a desired development of the moral and structed zoning plan—he may be mental make-up of the citizenry of forced by the ever-increasing enthe country. With ownership of croachment of apartments and flats one's home comes recognition of the to relinquish, if not altogether abanindividual's responsibility for his don, the benefits emanating from a share in the safeguarding of the permanent home site. welfare of the community and in- Of course, the establishment of creased pride in personal achieve- exclusive residence districts does not ment which must come from per- mean that all members of a comsonal participation in projects look- munity will perforce be compelled to ing toward community betterment. live in individual homes. It simply

It is needless to further analyze means that, by a comprehensive zonand enumerate all of the factors ing plan, such uses will be segrewhich make a single-family home gated to districts best suited to their more desirable for the promotion development with benefit to their and perpetuation of family life than own locality and without detriment an apartment, hotel, or flat. It will to the strictly home districts. suffice to say that there is a senti- We do not wish to unduly emment practically universal that this phasize the single-family residence is so. But few persons, if given as a means of perpetuating the home their choice, would, we think, delib- life of a people. There are many erately prefer to establish their

persons who, by reason of circumhomes and rear their children in stances, find apartment, fiat, or hotel an apartment-house neighborhood life necessary or preferable. Unrather than in a single-home neigh- doubtedly many families do mainborhood. The general welfare of a tain ideal home life in apartments, community is but the aggregate flats, and hotels; and it is also unwelfare of its constituent members, doubtedly true that in many singleand that which tends to promote the family dwellings there is much of welfare of the individual members dissension and discord. It cannot be of society cannot fail to benefit so- gainsaid, however, that the presence ciety as a whole.

of families is usually not encouraged The entrance of one apartment in apartments, flats, and hotels, and house or flat into a district usually that people having children are dis. means the entrance of others, and, criminated against and in some inwhile it may mean an enhancement stances actually barred. It is also a of value of the adjacent property well-recognized fact that apartfor the building of similar struc- ments, flats, etc., are noted for their tures, it detracts from the value of transient occupancy. All these inneighboring property for home fluences tend to militate against the building. The man who is seeking permanence and stability of home to establish a permanent home life. would not deliberately choose to What has been said about the build next to an apartment house; desirability of encouraging home and it is common experience that the life in single-family dwellings as an man who has already built is dis- element in the promotion of the gensatisfied with his home location and eral welfare of a community may desires a change. In other words, not apply with equal force to a reguthe apartment house, tenement, flat, lation which relates to two-family and like structures tend to the ex- dwellings. Nevertheless the reasonclusion of homes. The home owner ing in that behalf is not wholly inmay move to another district, but applicable to zoning regulations this may not be a sufficient solution having as their basis the general of his problem, for if no protection welfare of the community, which can be given to strictly home dis- permit the two-family dwellings in tricts--such as is contemplated by a strictly residential districts. A twocomprehensive and properly con- family dwelling requires no radical (-- Cal. -, 234 Pac. 581.) change of architectural design, and described in this ordinance is prodoes not entail any added burdens vided for in advance of the general over the single-family residences in zoning ordinance, for the reason the way of fire or health protection that it is a portion of the district or the exercise of those civic safe- which is to be of the highest resiguards on the part of the body dential class under such general politic which become necessary in

ordinance; that there are at present localities where many large apart- no buildings in said district which ment houses are permitted to prevail. violate the provisions of this ordiMoreover, the permitting of two- nance; and that the best interest family dwellings does not radically and general welfare of the comchange the character of the neigh- munity will be served and the genborhood which by proper zoning eral city plan preserved by the mainregulations may be devoted to resi- tenance of this district in this condential purposes. It should require dition.” no argument to show the clear dis- Obviously, the purpose of compretinction between permitting a two- hensive zoning is the attainment of family dwelling, and permitting a unity in the construction and detwenty or even ten family apart- velopment of a city, along lines of ment house, or a number of ei- reasonable regulations which tend to ther, in a residential neighborhood. promote the health, safety, morals, Somewhere the line of demarcation and general welfare of the communimust be drawn, and it is primarily ty; and it is equally obvious that to the province of the municipal body accomplish this purpose there must to which the zoning function is com- be definitely in the minds of the

mitted to draw that -drawing of

makers of comprehensive zoning a line in zoning line of demarcation, plan, in outline at least, sufficiently ordinance.

and it is neither extensive so that when embodied in the province nor the duty of courts an enacted ordinance a reviewer to interfere with the discretion with thereof may say with confidence that which such bodies are invested, in it will redound to the welfare of the the absence of a clear showing of an city as a whole, and that any part of abuse of that discretion. In short, that plan is reasonably related as previously indicated, we are not thereto. Of course, a comprehensive permitted to substitute our judg- zoning plan should ment for the legislative judgment. contemplate and dinance should Brown v. Los Angeles, 183 Cal. 783, provide for 192 Pac. 716.

planning from time to time of the It is insisted upon behalf of the execution of further details, extenappellants that the ordinance in con- sions, and such modifications of extroversy is not what is usually des- isting features

as

unforeseen ignated as a general zoning ordi- changes, occurring in the civic connance, but is one creating a single ditions, make necessary to the perexclusive residence zone.

On the fection and perpetuation of the other hand, it is insisted upon behalf plan. of the respondents that the ordi- It is a matter of common knowlnance is part and parcel of a com- edge that a zoning plan of the exprehensive zoning plan, because the tent contemplated in the instant case ordinance itself declares that it was cannot be made in a day; therefore enacted "in contemplation of and in we may take judiconformity with a general zoning cial notice of the Evidence-jaordinance covering the entire city fact that it will take time for perof Los Angeles, and which will much time to work ing plan. create residence, business, indus- out the details of trial, and other zones covering the such a plan, and that obviously it territory within said city in a com- would be destructive of the plan if, prehensive manner; that the district during the period of its incubation,

-what zoning or

the embrace.

38 A.L.R.-94.

dicial notice

fecting of zon

forcement of

parties seeking to evade the opera- must prevail. That being so, it may tion thereof should be permitted to be fairly said, we think, that the enter upon a course of construction ordinance in question, being, as it which might progress so far as to declares, an initial unit in the gendefeat, in whole or in part, the ulti- eral zoning of the city, is part and mate execution of the plan.

parcel of a comprehensive plan It follows, it seems to us, that the which has relation to the welfare of fact that comprehensive zoning in the city as a whole, and therefore it

the instant case had must be held that the ordinance in Buildings-en

not matured to the question is a valid exercise of the partial zoning point of being an police power. ordinance.

enacted and exist- The judgment is affirmed. ing ordinance, at the time the emergency ordinance in the instant case

We concur: Myers, Ch. J.; Law. was enacted, does not detract from

lor, J.; Waste, J.; Seawell, J.; Richthe validity of the latter ordinance

ards, J.; Shenk, J. upon the theory that there could be

Petition for rehearing denied no assurance that the contemplated March 26, 1925. zoning ordinance would be ultimately enacted and enforced. The good faith of the council in enacting the

NOTE. ordinance in question is not challenged; nor is it asserted that the council will not proceed in good The constitutionality of zoning statfaith to the enactment of a general utes or ordinances creating restricted zoning ordinance, and, in the ab- residence districts from which busisence of any issue concerning the ness buildings or multiple residences good faith of the council, the pre- are excluded is the subject of the ansumption of fair dealing on the part notation following STATE v. THOMAS, of the council, and the further pre- post, 1496, which supplements earlier sumption that they will not fail in annotation on the same subject in 19 the performance of an official duty, A.L.R. 1395, and 33 A.L.R. 287.

STATE OF WEST VIRGINIA EX REL. H. L. AUSTIN

V.
W. H. THOMAS, Mayor, et al.

West Virginia Supreme Court of Appeals - June 16, 1924.

C

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(96 W. Va. 628, 123 S. E. 590.) Buildings, $$ 3, 8 — ordinance requiring consent to building validity.

A city ordinance providing that no permit shall be granted for the erection of a business house, or a building intended or designed as a place for the sale of goods, wares, and merchandise, if there are more residence than business houses within a radius of 300 feet of the proposed location of such structure, without the consent of three fourths of the resident property owners owning property within the prescribed area, is unconstitutional and void as an unreasonable and discriminatory exercise of the police power.

[See note on this question beginning on page 1496.] Headnote by Litz, J.

STATE EX REL. AUSTIN V. THOMAS.

1491 (96 W. Va. 628, 123 S. E. 590.) APPLICATION for a writ of mandamus to compel respondents to grant petitioner a permit to erect a business structure upon a lot owned by him in the city of Bluefield. Writ awarded.

The facts are stated in the opinion of the court.
Mr. James S. Kahle, for petitioner: Litz, J., delivered the opinion of

The board of directors of the city the court: of Bluefield cannot require, by ordi- H. L. Austin, by petition, seeks a nance, a property owner to obtain the

writ of mandamus commanding the consent, in writing, of a majority of the property owners within a radius of respondents, W. H. Thomas, mayor, 300 feet of his proposed structure, as a

and Henry A. Lilly, C. L. Cheney, condition to granting the applicant a

J. B. Kirk, and George W. Troutpermit for the erection of his build- man, directors of the city of Blueing.

field, to grant the petitioner a perState ex rel. Omaha Gas Co. v. With- mit to erect a business structure upnell, 78 Neb. 33, 8 L.R.A.(N.S.) 978, on a certain lot owned by him in 126 Am. St. Rep. 586, 110 N. W. 680; said city. Hays v. Poplar Bluff, 263 Mo. 516,

The petition and special replicaL.R.A.1915D, 595, 173 S. W. 676; Ex

tion of petitioner to the answer of parte Sing Lee, 96 Cal. 354, 24 L.R.A. 195, 31 Am. St. Rep. 218, 31 Pac. 245; respondents show that under the Re Quong Woo, 13 Fed.' 229; Eubank title, “An Ordinance Providing Regv. Richmond, 226 U. S. 137, 57 L. ed.

ulations for the Location, Erection, 156, 42 L.R.A.(N.S.) 1123, 33 Sup. Ct.

and Construction of Business BuildRep. 76, Ann. Cas. 1914B, 192; 19 R. ings in the Residence Portion of the C. L. $ 119, p. 815; Tilford v. Belknap, City of Bluefield, West Virginia, and 126 Ky. 244, 11 L.R.A.(N.S.) 708, 103 Providing a Penalty," the said city S. W. 289; St. Louis v. Russell, 116 Mo. 248, 20 L.R.A. 721, 22 Ş. W.470; Lynch following ordinance:

on January 24, 1922, adopted the v. North View, 73 W. Va. 609, 52 L.R.A. (N.S.) 1038, 81 S. E. 833; Wigal v.

“Section 1. That it shall hereParkersburg, 74 W. Va. 25, 52 L.R.A.

after be unlawful for any person, (N.S.) 465, 81 S. E. 554; Bostock v. firm, or corporation or association Sams, 95 Md. 400, 59 L.R.A. 282, 93 of persons to locate, erect or conAm. St. Rep. 394, 52 Atl. 665.

struct any business house or buildThe refusal by the board of direc- ing intended or designed to be used tors to grant the permit amounts to a for the barter and sale of goods, taking of property within the meaning of $$ 9, 10, art. 3, of the Constitution

wares, and merchandise of any deof West Virginia, and of the 14th

scription or character, or for the Amendment to the Constitution of the

conduct therein of any business United States.

within any residence portion of the Fruth v. Board of Affairs, 75 W. Va. city, except as hereinafter provided. 456, L.R.A.1915C, 981, 84 S. E. 105; “Sec. 2. By 'a residence portion Old Colony & F. River R. Co. v. Ply- of the city of Bluefield, West Virmouth County, 14 Gray, 155; Pumpellyginia,' as used in this ordinance, is v. Green Bay & M. Canal Co. 13 Wall. intended and meant any part of said 166, 20 L. ed. 557; United States v. city where there are more dwelling Lynah, 188 U. S. 445, 47 L. ed. 539, houses than business houses within 23 Sup. Ct. Rep. 349; Sweet v. Rechel,

a radius of 300 feet of the place 159 U. S. 380, 40 L. ed. 188, 16 Sup. Ct.

where any business houses or buildRep. 43; Mugler v. Kansas, 123 U. S.

ings intended or designed as a place 668, 31 L. ed. 212, 8 Sup. Ct. Rep. 273;

for the barter and sale of goods, Cooley, Const. Lim. 6th ed. 475; State ex rel. Sale v. Stahlman, 81 W. Va.

wares, and merchandise of any de335, L.R.A.1918C, 77, 94 S. E. 497; Eu

scription, or for the conduct of any bank v. Richmond, 226 U. S. 137, 57 L.

business, is sought to be erected, loed. 156, 42 L.R.A. (N.S.) 1123, 33 Sup. cated, or constructed. Ct. Rep. 76, Ann. Cas. 1914B, 192

“Sec. 3. Any person, firm, corMr. Russell S. Ritz for respondents. poration, or association of persons

desiring to locate, erect, or construct

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