West v. Bank of Commerce & Trusts

Citation153 F.2d 566,174 ALR 848
Decision Date02 February 1946
Docket NumberNo. 5447.,5447.
PartiesWEST et al. v. BANK OF COMMERCE & TRUSTS et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

R. Hugh Rudd and Harold H. Dervishian, both of Richmond, Va., for appellants Alice M. West and others.

Henry R. Miller, Jr., Asst. City Atty., of Richmond, Va. (Horace H. Edwards, City Atty., of Richmond, Va., on the brief), for appellant City of Richmond.

Ralph T. Catterall (Williams, Mullen & Hazelgrove and Guy B. Hazelgrove, all of Richmond, Va., on the brief), for appellees.

Before SOPER and DOBIE, Circuit Judges, and GILLIAM, District Judge.

SOPER, Circuit Judge.

The declaratory judgment in this case entered on October 4, 1945 undertakes only to state the true intent and meaning of an earlier judgment of the court entered on February 19, 1942. In the last-mentioned judgment the court declared that the zoning ordinance of the City of Richmond approved April 13, 1927, in so far as it applied to the southern half of a lot in the city, known as the Allen lot and belonging to the plaintiffs, was an unreasonable and arbitrary exercise of the police power and therefore unconstitutional; but that as applied to the northern half of the property, the ordinance was reasonable and proper. Accordingly the court enjoined the city, the Mayor and the Commonwealth's Attorney of the city, the defendants in the earlier cause, from enforcing the ordinance against the plaintiffs in so far as it denied them the right to use the southern half of the lot in such manner as is permitted in a B-1 business district in the zoning ordinance.

This decree of February 19, 1942 was based upon the pleadings and upon a stipulation of facts signed by counsel for the respective parties substantially as follows: When the ordinance of 1927 was adopted, it was contemplated that the Allen lot, which is located at the northeast corner of Chamberlayne Avenue and Lancaster Road in the city, and the neighboring section to the north would become and remain a high-class residential section; but the character of the neighborhood had changed. Chamberlayne Avenue had become a principal arterial highway for traffic north and southbound on United States Highway No. 1, a number of residences had been turned into tourist homes, and the other corners of the intersection were zoned for business purposes. Hence the whole of the Allen lot was not susceptible of development for residential purposes and unless the southern half could be used for business purposes, it could not be used in a reasonably profitable manner. The application of the ordinance to the southern half of the property and the prohibition against the use thereof for business purposes did not tend to promote the public health, safety, morals or general welfare of the community. Finally it was stipulated that the city had recently appointed a Planning Committee to consider the rezoning of the city, and that the Commission had appointed an expert to advise it and that the Commission and the expert would report to the city that the southern half of the Allen lot should be zoned as a B-1 business district.

It seems that the stipulation of facts and the judgment of the court based thereon were the result of a compromise between the attorneys representing the city and the attorneys representing the property owners who desired to dispose of the lot for use as a gas station; but the war made the use of the property for business purposes impracticable and it is still unimproved.

A new element entered into the situation on May 19, 1943 when the city adopted a new general zoning ordinance, which amongst other changes liberalized the residential restrictions applicable to the property on Chamberlayne Avenue north of Lancaster Road; but retained the whole of the Allen lot in the residential zone so that the use of any part of it for a gasoline filling station was forbidden. Nothing was done by the plaintiffs until the present suit was brought on April 25, 1945. The complaint alleged that the purpose and effect of the injunction issued by the court in 1942 was to allow the southern half of the property to be used as a gasoline station, but that the ordinance of 1943 forbade such use and that the city attorney had asserted that the property could not be so used, and that the city, acting through its attorney, was threatening to enforce the new ordinance against the owners and their successors in title. The plaintiffs therefore prayed the court to make an order in the form of a declaratory judgment wherein the court would decree that the true intent and meaning of this judgment of February 20, 1942 was that the plaintiffs and their successors in title are entitled to use the property for a gasoline station and for all other uses permitted in a B-1 business district, as defined in the zoning ordinance of 1927, and that no ordinance adopted after the judgment of 1942 can diminish the rights of the plaintiffs thereby established.

The city in its answer admitted the allegations of the complaint with respect to the proceedings in the earlier case but denied that the city or its attorneys had taken the position that the owners of the lot could not use it for business purposes. The answer asserted that the attorneys of the city had merely expressed the opinion that if the owners desired to use the lot for business purposes, they should apply to the Commissioner of Buildings of the city for a permit to erect a building and if denied should apply to the Board of Zoning Appeals, and if denied permission by the Board, should then invoke the State courts in accordance with the statutory provisions covering such cases. The answer expressly declared that no controversy existed between the owners of the lot and the City of Richmond. The answer also stated that the city and all of its officers would recognize and obey the judgment of the court entered on February 20, 1942.*

Subsequently forty-eight owners of residence property in the neighborhood of the Allen lot were allowed to intervene in the case and to file an answer. Therein they set up the following matters in defense: (1) that there was no actual controversy between the plaintiff on the one hand and the City of Richmond and the intervenors on the other; (2) that the judgment of February 19, 1942 merely declared that the ordinance of 1927, as applied to the southern half of the Allen lot, was unconstitutional and consequently enjoined the enforcement thereof; but the present suit seeks to enlarge that judgment into an injunction against the enforcement of any subsequent ordinance of the City of Richmond, and to interfere with the city in the exercise of its legislative functions; (3) that the intervenors were not parties to the original suit and were therefore not bound by the judgment of February 19, 1942; (4) that the ordinance of 1943 does not violate the Fourteenth Amendment to the Federal Constitution but is a reasonable regulation in the interests of the public health, safety, morals and welfare of the City as a whole and of the area in which the property is located, and that the ordinance of 1943 permits a broader use of the plaintiffs' property in that it allows the use thereof for multiple family dwellings whereas the ordinance of 1927 permitted only single family and two family dwellings; (5) and that the plaintiffs have an adequate remedy in the provisions of the zoning ordinance and the laws of the State.

Upon these pleadings and without the taking...

To continue reading

Request your trial
15 cases
  • McCahill v. Borough of Fox Chapel, 18940.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 10, 1971
    ...case does not present an `actual controversy' within the meaning of the Federal Declaratory Judgment Statute." West v. Bank of Commerce and Trusts, 153 F.2d 566, 568 (4 Cir. 1946). To use the formulation of the distinguished scholars, Hart and Wechsler, we are here presented with a "doubly ......
  • New Jersey Home Builders Ass'n v. Division on Civil Rights in Dept. of Ed. of State, C--2196
    • United States
    • Superior Court of New Jersey
    • November 13, 1963
    ...ed. 1951), § 224; accord, First Camden Nat. Bank & Trust Co. v. Wilentz, 129 N.J.Eq. 333, 19 A.2d 648 (Ch.1941); West v. Bank of Commerce and Trusts, 153 F.2d 566 (4 Cir., 1946). The Thirteenth Amendment issue is considered only with reference to the statute on its face. See United States v......
  • Steel Hill Development, Inc. v. Town of Sanbornton, Civ. A. No. 3319.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • October 4, 1971
    ...that declaratory relief in zoning cases should not be allowed and has cited for this proposition the cases of West v. Bank of Commerce, 153 F.2d 566 (4th Cir. 1946), and McLarty v. Borough of Ramsey, 166 F.Supp. 291 (D.N.J.1958). Both cases are factually distinguishable and were decided on ......
  • American U. Park Citizens Ass'n v. Burka, 12597.
    • United States
    • Court of Appeals of Columbia District
    • March 20, 1979
    ...present intention, coupled with active steps visible in the community, to develop the property. For example, in West v. Bank of Commerce & Trusts, 153 F.2d 566 (4th Cir. 1946), the circuit court of appeals reversed summary judgment for plaintiffs, who had sought a declaratory judgment that ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT