278 U.S. 116 (1928), 29, Washington ex Rel. Seattle Title Trust Co v. Roberge

Docket Nº:No. 29
Citation:278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210
Party Name:Washington ex Rel. Seattle Title Trust Co v. Roberge
Case Date:November 19, 1928
Court:United States Supreme Court

Page 116

278 U.S. 116 (1928)

49 S.Ct. 50, 73 L.Ed. 210

Washington ex Rel. Seattle Title Trust Co



No. 29

United States Supreme Court

Nov. 19, 1928

Argued October 11, 12, 1928



1. Zoning measures must find their justification in the police power exerted in the public interest; unnecessary and unreasonable restrictions may not be imposed upon the use of private property or the pursuit of useful activities. P. 120.

2. A trust company owning and maintaining, as trustee, a philanthropic home for old people in a residential district sought to replace the structure with a larger one for the same purposes, but was denied a permit under a zoning ordinance providing that such a building should be permitted "when the written consent shall have been obtained of the owners of two-thirds of the property within 400 feet of the proposed building." The denial was based upon the sole ground that such consent had not been obtained, there being nothing to show that the building and its use would constitute a nuisance or be otherwise objectionable in the community or conflict with the public interest or the general zoning plan.


(1) That the condition requiring consent of property owners was repugnant to the due process clause of the Fourteenth Amendment. P. 121.

(2) The condition being void, the trustee was entitled to a permit. P. 123.

144 Wash. 74 reversed.

Error to a judgment of the Supreme Court of Washington which affirmed the dismissal of an action for a writ of mandate to compel the Superintendent of Building of the City of Seattle to issue a permit to the relator, the plaintiff in error.

Page 117

BUTLER, J., lead opinion

MR. JUSTICE BUTLER delivered the opinion of the Court.

Since 1914, the above-named trustee has owned and maintained a philanthropic home for aged poor. It is located about 6 miles from the business center of Seattle, on a tract 267 feet wide, extending from Seward Park avenue to Lake Washington, having an average depth of more that 700 feet and an area of about 5 acres. The home is a structure built for and formerly used as a private residence. It is large enough to accommodate about 14 guests, and usually it has had about that number. The trustee proposes to remove the old building and, in its place, at a cost of about $100,000, to erect an attractive 2 1/2-story fireproof house large enough to be a home for 30 persons. The structure would be located 280 feet from the avenue on the west and about 400 feet from the lake on the east, cover 4 percent of the tract, and be mostly hidden by trees and shrubs. The distance between it and the nearest building on the south would be 110 feet, on the north, 160, and on the west, 365.

A comprehensive zoning ordinance (No. 45382). passed in 1923. divided the city into six use districts, and provided that, with certain exceptions not material here, no building should be erected for any purpose other than that permitted in the district in which the site is located (§ 2). The land in question is in the "first residence district." The ordinance permitted in that district single family dwellings, public schools, certain private schools, churches, parks, and playgrounds, an art gallery, private conservatories for plants and flowers, railroad and shelter stations (§ 3a). And, upon specified conditions, it also permitted garages, stables, buildings for domestic animals, the office of physician, dentist, or other professional person when located in his or her dwelling (§ 3b), fraternity, sorority, and boarding houses, a community clubhouse, a memorial building, nurseries, greenhouses, and buildings necessary

Page 118

for the operation of public utilities (§ 3c). It declared that the section should not be construed to prohibit the use of vacant property in such district for gardening or fruit raising, or its temporary use for fairs, circuses, or similar purposes (§ 3e). By an ordinance (No. 49179) passed in 1925, § 3c was amended by adding:

A philanthropic home for children or for old people shall be permitted in first residence district when the written consent shall have been obtained of the owners of two-thirds of the property within four hundred (400) feet of the proposed building. *

Page 119

Subsequently the trustee, without having obtained consents of other landowners in accordance with the provision just quoted, applied for a permit to erect the new home. It is the superintendent's official duty to issue permits for buildings about to be erected in accordance with valid enactments and regulations. He denied the application solely because of the trustee's failure to furnish such consents. Then the trustee brought this suit in the Superior Court of King County to secure its judgment and writ commanding the superintendent to issue the permit, and it maintained throughout that the ordinance, if construed to prevent the erection of the proposed building, is arbitrary and repugnant to the due process and equal protection clauses of the Fourteenth

Page 120

Amendment. That court held that the amended ordinance so construed is valid, and dismissed the case. Its judgment was affirmed by the highest court of the state. 144 Wash. 74.

The trustee concedes that our recent decisions require that, in its general scope, the ordinance be held valid. Euclid v. Ambler Realty Co., 272 U.S. 365; Zahn v. Board of Public Works, 274 U.S. 325; Gorieb v. Fox, 274 U.S. 603; Nectow v. Cambridge, 277 U.S. 183. Is the delegation of power to owners of adjoining land to make inoperative the permission, given by § 3(c) as amended, repugnant to the due process clause? Zoning

Page 121

measures must find their justification in the police power exerted in the interest of the public. Euclid v. Ambler Realty Co., supra, 387.

The governmental power to interfere by zoning regulations with the general rights of the landowner by...

To continue reading