Building Inspector v. McInerney, 1864

• Decision Date: 26 June 1934
• Docket Number: 1864
• Citation: 47 Wyo. 258,34 P.2d 35
• Parties: BUILDING INSPECTOR, ET AL. v. McINERNEY
• Court: Wyoming Supreme Court

34 P.2d 35

47 Wyo. 258

BUILDING INSPECTOR, ET AL. v. McINERNEY

No. 1864

Supreme Court of Wyoming

June 26, 1934

APPEAL from District Court, Laramie County; SAM M. THOMPSON, Judge.

Proceeding by W. H. McInerney to review in the District Court a determination of the Building Inspector and Board of Adjustment of the City of Cheyenne, in issuing building permit No. 5702 to Andy Kozel. From an adverse judgment the Building Inspector and others appeal.

Affirmed.

L. C Sampson and H. B. Henderson, Jr., both of Cheyenne, for appellants, who filed a brief and made oral arguments.

Statutes material to this controversy are Sections 22-1001, 1002, 1003, 1007, and Cheyenne Ordinance Number 485. The trial court erred in taking jurisdiction of the appeal; Art. V Sec. 10, Constitution. The issuance of permits is an administrative act and not appealable; 12 C. J. 877, and 3 C J. 372. No proper grounds of appeal were stated. Mere esthetic considerations will not sustain restrictions of zoning ordinances; Women's K. C. Soc. v. Kansas City, 58 F.2d 593; Forbes v. Hubbard, (Ill.) 180 N.E. 767; Eaton v. Sweeny, (N. Y.) 177 N.E. 412; State v. Woodworth, (O.) 169 N.E. 713; Euclid v. Realty Co., 272 U.S. 365. There are no allegations of illegality in granting the permit; the application was in conformity with the ordinance. The property was in district "B" at the time the application was filed, and four family dwellings were permitted in the district. The lot contains sufficient area and the front yard and sidelines were as required by the ordinance; Holden v. Connor, et al., (Mich.) 241 N.W. 915. The court below erroneously held that when the building permit authorized the building to front on Morrie Avenue, the requirements as to yards shifted, and then it was necessary for the applicant to provide a space of 20 feet between the west side of the building and the west side of said Lot 8 in Block 365. Appellants contend that if the ordinances are interpreted as they were by the Building Inspector and Board of Adjustment, they are valid.

For the appellee there was a brief and oral argument by Clyde M. Watts and Carleton A. Lathrop, of Cheyenne.

The Board of Adjustment acted as a judicial body and its decision was appealable to the District Court; Coleman v. Board of Appeals, (Mass.) 183 N.E. 166; Anderson v. Jester, (Ia.) 221 N.W. 354, Hendey v. Ackerman, Supr., (N. J.) 136 A. 733; State v. Roberson, (N. C.) 150 S.E. 674; Madden v. Zoning Board, (R. I.) 136 A. 493. Some courts have held that appeals of this class are simply a process for invoking judicial power to determine the legality of acts performed; De Flumeri v. Sunderland, (Conn.) 145 A. 48. The question of jurisdiction was not raised below and should not be considered here; 3 C. J. 608; Card v. Bissing, (Conn.) 157 A. 644; M. K. & T. R. R. Co. v. Prince, (Okl.) 271 P. 253; Fast v. Gilbert, (Okl.) 229 P. 275; Duigman v. United States, 71 (L. ed.) 996; United States v. Gaffney, 10 F.2d 694; State v. Knudtsen, (Neb.) 236 N.W. 696. The constitutionality of a law will not be determined on appeal where the question was not presented below; McBride v. Taylor, (Neb.) 220 N.W. 683. The application did not conform to the ordinance. The terms "front" and "frontage" refer to street frontage, facing according to the manner in which property is improved and used; Rhinehart v. Leitch, (Conn.) 140 A. 763. A building inspector cannot license a party to violate the laws and ordinances of the city; Nolan v. Blackwell, (Wash.) 212 P. 1048; Eichenlaub v. St. Joseph, (Mo.) 18 L. R. A. 590. The ordinance is within the police power; State v. Harper, 182 Wisconsin 148; State v. Burdge, 95 Wisconsin 390. The validity of such ordinances is measured by the principles of police power; Welch v. Swasey, 214 U.S. 91; Ayer v. Commissioners, (Mass.) 136 N.E. 338; Opinion of Justices, 127 N.E. 525; Cochran v. Preston, (Md.) 70 A. 113; Thomas Cusack Co. v. Chicago, 242 U.S. 526; St. Louis Poster Co. v. St. Louis, 249 U.S. 269; Hubbard v. Taunton, (Mass.) 5 N.E. 157. The courts have held quite generally that so-called esthetic considerations, meaning outward appearances, good taste, and beauty of the neighborhood, come within the police power as general welfare. There are many cases holding that where a change of zone is made after a permit is issued and even after the building is partially constructed, the permit can be cancelled and permittee required to remove his building. In this case no building has been erected and no harm was done in cancelling the permit; Brett v. Building Commissioner, 145 N.E. 269; General Baking Co. v. Commissioners, (Mass.) 137 N.E. 245. All property is held subject to police power; Commonwealth v. R. I. Sherman Manuf. Co., (Mass.) 75 N.E. 71; Manigault v. Springs, 199 U.S. 473; Union Dry Goods Co. v. Service Corporation, 248 U.S. 372. The judgment of the District Court was properly entered; no question of the constitutionality was raised in the lower court. The zoning ordinance is a valid exercise of police power.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This is a proceeding brought under the provisions of Section 22-1007, Wyo. Rev. St. 1931, one of the sections of the zoning law enacted to enable the cities, towns, and villages of the state, as the law itself (section 22-1001, Wyo. Rev. St. 1931) declares, "for the purpose of promoting health, safety, morals and the general welfare" of their respective communities, "to regulate and restrict by ordinance," among other things, "the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes, and may also establish setback building lines." By this proceeding, a review is sought of a judgment of the District Court of Laramie County which disposed of what the section of the statute first above cited designates as an "appeal" to that court from the decision of the Board of Adjustment, which said section authorizes municipalities to create, and which, in the instant case, was established by the City of Cheyenne, under an ordinance passed in 1931, pursuant to the statutory authority just mentioned.

The facts necessary to be considered now, as they are presented by the record before us, are briefly these:

The south half of Block 365 in the original plat of the City of Cheyenne is bounded on its southerly side by 17th Street; on its easterly side by Morrie Avenue; on its northerly side by an alley extending through the said block in an easterly and westerly direction; and on its westerly side by Russell Avenue. This half block is composed of four lots, each originally platted as 66 feet in width and 132 feet in length, each in its width dimension abutting on 17th Street, and the two corner lots each extending lengthwise along Morrie and Russell Avenues, respectively. The several lots are numbered 5 to 8, inclusive, commencing with the corner lot adjoining Russell Avenue. The property chiefly concerned in the present litigation is the East 52 feet of the corner Lot 8 in said block, at the intersection of Morrie Avenue and 17th Street.

On June 7th, 1933, Andy Kozel, being the owner of that portion of Lot 8 aforesaid, made a signed application, upon a form partly written and partly printed, to the Building Inspector of the City of Cheyenne for a permit to build, on the aforesaid portion of Lot 8, a four-family brick dwelling, the address thereof being given in writing in the application as "1702 Morrie," and as located within a "B" zoning district. On the reverse side of the application, as required by the printed regulations on the form, aforesaid, was set forth a "plot plan" showing the portion of the lot aforesaid, and the location of the proposed structure thereon. This plan indicated the distance from the southerly or side line of the building to the lot line on 17th Street would be 27 feet; that from the easterly or front line of the building to the lot line on Morrie Avenue would be 12 feet 3 inches; the distance from the northerly side line of the building to the lot line on the alley aforesaid would be 44 feet 4 inches; and 3 feet between the extreme westerly or rear line of the structure and the westerly line of the premises owned by Kozel. The extreme dimensions of the building were shown to be 36 feet 9 inches by 60 feet 8 inches, the latter dimensions fronting on Morrie Avenue.

This application was accompanied with certain blueprint sheets showing the details of construction of the proposed building, and that its main entrance and front elevation faced Morrie Avenue.

The following day, June 8th, 1933, a Building Permit was issued to Kozel, to which was affixed the name of the Building Inspector by a Miss Amy Sherard, an employee in the Inspector's office. This Permit was numbered 5702 and reads in part as follows:

"THIS MAY CERTIFY, That Andy Kozel has permission to erect a 4 family brick residence on the E. 52' of Lot 8, Block 365, fronting on Morrie Avenue, between 17th Street and 18th Street, provided, that the owner or his agents, the architect and builder, shall, in every respect, conform to the terms of the application and to the provisions of the Ordinances of the City of Cheyenne, relating to the regulations for the construction and inspection of buildings.

"Should any section of the Building Ordinance be violated or evaded in any particular, this Building Permit shall immediately be revoked."

All the owners of the remaining portion of the half block aforesaid being dissatisfied with the issuance of this Permit, thereafter appealed to the Board of Adjustment, as allowed by the State Statute (section 22-1007,...