Austin v. Thomas

• Decision Date: 06 June 1924
• Citation: 96 W.Va. 628
• Parties: H. L. Austin v. W. H. Thomas, Mayor; Henry A. Lilly,CI. Cheney, J. B. Kirk and George W. Troutman,Directors, of the City of Bluefield.Written Opinion filed
• Court: West Virginia Supreme Court

96 W.Va. 628

H. L. Austin

v. W. H. Thomas, Mayor; Henry A. Lilly, CI. Cheney, J. B. Kirk and George W. Troutman, Directors, of the City of Bluefield.Written Opinion filed

Supreme Court of Appeals of West Virginia.

Submitted May 21, 1924.

Decided June 6, 1924.

June 16, 1924.

Municipal Corporations Ordinance Forbidding Grant of Building Permits Without Consent of Three-Fourths of Property Owners Within District Held Void as Discriminatory.

A city ordinance providing that no permit shall toe 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 three hundred 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.

Original mandamus by H. L. Austin against W. H. Thomas, Mayor, and others, Directors of the City of Bluefield.

Writ awarded.

James S. Kahle, for relator. Russell S. Ritz, for respondents.

Litz, Judge:

H. L. Austin, by petition seeks a writ of mandamus commanding the respondents, W. H. Thomas, Mayor, and Henry A. Lilly, C. L. Cheney, J. B. Kirk and George W. Troutman, Directors, of the city of Bluefield, to grant the petitioner a permit to erect a business structure upon a certain lot owned by him in said city.

The petition and special replication of petitioner to the answer of respondents show that under the title of, "An ordinance providing regulations for the location, erection and construction of business buildings in the residence portion of the city of Bluefield, West Virginia, and providing a penalty" the said city on January 24th, 1922, adopted the following ordinance:

"Section 1. That it shall hereafter be unlawful for any person, firm or corporation or association of persons to locate, erect, or construct any business house or building intended or designed to be used for the barter and sale of goods, wares and merchandise of any description or character, or for the conduct therein of any business within any residence portion of the city except as hereinafter provided.

"Section 2. By 'A Residence Portion of the City of Bluefield, West Virginia', as used in this ordinance, is intended and meant any part of said City where there are more dwelling houses than business houses within a radius of 300 feet of the place where any business houses or buildings intended or designed as a place for the barter and sale of goods, wares and merchandise of any description or for the conduct of any business is sought to be erected, located or constructed.

"Section 3. Any person, firm, corporation or association of persons desiring to locate, erect or construct any business house or any building intended or designed as a place for the barter and sale of goods, wares and merchandise of any description, or for the conduct; of any business outside of the fire limits as now or may be hereafter designated and prescribed by ordinance of the City of Bluefield, West Virginia, shall make an application in writing to the Board of Directors for a permit so to do and accompany such patition or application with a written statement setting forth the exact place where the proposed building is to be located, erected or constructed with a map or, other evidence snowing that there are no more residences than there are business houses within a radius of 300 fee": from the center of such location. If upon examination of said application the Board of Directors are satisfied that there are more business houses than residences within a radius of 300 feet as herein prescribed that the applicant is entitled to such permit, then such permit shall be issued.

"Section 4. If it shall appear that there are more residences than business houses within a radius of 300 feet of the proposed location of such building and the applicant for such permit shall accompany such application with the consent of three-fourths of the resident property owners owning property within said radius of 300 feet, then in that event, the Board of Directors shall cause such permit to be issued, provided, however, that the building for which such permit is granted must be of a design approved by the City Building Inspector.

"Section 5. If an application is made for the construction of a business house in a residence portion of the City of Bluefield, West Virginia, as a Residence Portion of the City of Bluefield, West Virginia', is defined in Section 2 hereof, and it shall appear that there are in such district two or more adjoining business houses which were erected prior to and used as a business house at the passage of this ordinance, and that the building for which the permit is desired is to be constructed as an addition to, or in extension of an existing business house, but not to extend beyond the original lot upon which said business house or houses stand, then such permit shall be granted and in such case it shall not be necessary to accompany the application with the consents of property owners as prescribed in Section 4 hereof.

"Section 6. That all buildings erected under any permit granted under the terms of this ordinance shall be constructed in compliance with all ordinance and building regulations of the City of Bluefield, West Virginia.

"Section 7. That any person, firm, corporation or association of persons, or agents or servants or employes of such who shall hereafter locate, erect or construct any business house within a residence portion of the City of Bluefield, West Virginia, as defined herein, or who shall proceed with the construction of said building without first applying for and being granted a permit in compliance with the terms of this ordinance, shall be deemed guilty of a misdemeanor and upon conviction, shall be fined not less than $50.00, nor more than $200.00, and each and every act done and performed toward the erection, construction and location of such business house without such permit shall constitute a separate offense and each and every day that any such person is engaged in constructing such building without such permit, and each and every day such building is permitted to remain in such residence portion of the City, shall constitute a separate and distinct offense.

"Section 8. That all ordinances and parts of ordinances in direct conflict herewith are hereby expressly repealed."

That petitioner is the owner of a lot of land situated within the corporate limits of the city designated and described as follows, to-wit:

"BEGINNING at a stake at the intersection of the east line of Farmer Street with the north line of Adams Street (now College Avenue); thence along the North line of Adams Street (now College Avenue), North 60 30 E. 52.1 feet to a stake; thence North 29 30 W. 150 feet to the south, line of a 10 feet wide alley; thence along a line of same South 60 30 W. 52.1 feet to the east line of Farmer street; thence with the east line of said Farmer Street South 29 30 E. 150 feet to the point of BEGINNING."

That on April 22d, 1922, he made formal application to respondents, constituting the board of directors of the city of Bluefield, for a permit to erect upon that portion of said lot fronting on the ten foot alley a one-story brick building measuring 26 feet by 45 feet, to be used in the conduct of a mercantile business; that on the 1st day of May, 1924, at its regular meeting the said board of directors refused the permit on the ground that the place where the building was proposed to be erected lies within a residence section of the city, as defined by the foregoing ordinance, and that the application for the permit had not been approved by threefourths of the residents owning property within a radius of 300 feet therefrom, in accordance with the ordinance.

That petitioner actually obtained and filed with his application the written consent of sixty per cent, of the property owners, and was assured of the consent of a sufficient additional number to increase the percentage beyond the required proportion, when a former business competitor owning a lot near the property of petitioner, through ill will for him, circulated a petition among the neighboring property owners opposing the granting of the permit.

That the entrance to the proposed building is on a side street and by an alley way, not facing any other property, and at the rear of other properties which face on College Avenue and Augusta Street; that it will be in harmony and...