Carter v. City Of Bluefield, No. 10142.

CourtSupreme Court of West Virginia
Writing for the CourtHAYMOND, President
Decision Date14 June 1949
PartiesCARTER et al. v. CITY OF BLUEFIELD et al.
Docket NumberNo. 10142.

54 S.E.2d 747

CARTER et al.
v.
CITY OF BLUEFIELD et al.

No. 10142.

Supreme Court of Appeals of West Virginia.

Submitted May 8, 1049.
Decided June 14, 1949.


[54 S.E.2d 748]

[COPYRIGHT MATERIAL OMITTED].

[54 S.E.2d 749]
Syllabus by the Court.

1. As a general rule, the petitioner, before instituting a proceeding in mandamus, must demand performance of the act or the duty which he seeks to enforce; but when it appears that a demand would be useless or unavailing it need not be made.

2. In a proceeding in mandamus by a landowner to compel the authorities of a municipality to grant him a permit to construct a business building upon land which, by the provisions of a zoning ordinance of the municipality may be used only for residential purposes, the validity of the ordinance which forbids the issuance of a permit to use the land for business purposes may be challenged and the issue of validity or invalidity of the ordinance determined.

3. A zoning board of adjustment, created by and deriving its powers from, a zoning ordinance of a municipality, in passing upon an application of a landowner for a permit to use for business purposes land located in a district zoned for residential use, is without power to consider or determine the validity of the ordinance.

4. Upon petition, under the provisions of Code, 8-5-7, to the circuit court of the county in which a municipality which has enacted a zoning ordinance is located, to review the decision of a zoning board of adjustment, created by and deriving its authority from the ordinance, refusing the application of a landowner for a zoning permit to use for business purposes land restricted by the ordinance to use for residential purposes, the validity of the ordinance can not be questioned or determined.

5. Final action of a zoning board of adjustment in refusing to issue to a landowner a zoning permit for which he has applied in the manner provided by the zoning ordinance of a municipality does not adjudicate or determine the validity of the ordinance.

6. A landowner, in applying to an officer of a municipality for a zoning permit to use for business purposes land located

[54 S.E.2d 750]

in a residential district, in appealing from an adverse ruling of such officer to the zoning board of adjustment, pursuant to the provisions of a zoning ordinance of the municipality, in failing to apply, in the manner provided by Code, 8-5-7, to the circuit court for review of the decision of the board denying the application, and in subsequently applying without success to the municipal authorities to amend the ordinance to authorize the issuance of such permit, is not estopped, by such course of action, to attack the validity of the ordinance in a subsequent independent proceeding in mandamus in which he seeks to compel the issuance of a permit to erect upon his land a building to be used for business purposes.

7. Under a valid statutory delegation to it of the police power of the State a municipality may enact a zoning ordinance which restricts the use of property in designated districts within the municipality if the restrictions imposed by the ordinance are not arbitrary or unreasonable and bear a substantial relation to the public health, safety, morals, or the general welfare of the municipality.

8. A municipal ordinance creating zoning districts and imposing restrictions upon the use of property within such districts may be valid in its general scope and broad outline but invalid to the extent that the restrictions imposed are clearly arbitrary and unreasonable in their application to particular property.

9. A zoning ordinance of a municipality, creating use districts and imposing restrictions upon the use of property in the various districts, which, as applied to particular property, does not bear a substantial relation to the public health, safety, morals, or the general welfare of the municipality, and is clearly arbitrary and unreasonable in depriving the owner of the beneficial use of his property and in substantially depreciating its value, is, as to such property, invalid as violative of Sections 9 and 10, Article III of the Constitution of this State and the Fourteenth Amendment to the Constitution of the United States.

KENNA and LOVINS, JJ., dissenting.

Error from Circuit Court of Mercer

County.

Mandamus proceeding by U. D. Carter, and others, against the City of Bluefield, a municipal corporation, A. Harry Vest, its mayor, and T. L. Brown, and others, members of board of directors of city, to compel defendants to grant petitioners a permit to erect a business building in zone restricted to u, se for residential purposes, wherein Arlie Midkiff, and other landowners, intervened as defendants. To review judgment sustaining demurrers to petition and dismissing petition, petitioners bring error.

Judgment reversed, and proceeding remanded with directions.

Arthur F. Kingdon, Bluefield, for plaintiffs in error.

Katz & Katz, Luther G. Scott, Bluefield, for defendants in error.

HAYMOND, President.

In October, 1948, the petitioners, U. D. Carter, U. D. Carter, Jr., and F. E. Carter, instituted this proceeding in mandamus in the Circuit Court of Mercer County to compel the defendants, the City of Blue-field, a municipal corporation, A. Harry Vest, its mayor, and T. L. Brown, T. C. Tanner, S. O. White and R. A. Sisson, members of its board of directors, to grant to the petitioners a permit to erect a business building upon two lots of unimproved land owned by them, designated as numbers 44 and 45, in section 207 of the Hale Land Addition, fronting on the south side of Bluefield Avenue and located at the northeast corner of Bluefield Avenue and Willow Street in that city, that portion of section 207 being, by zoning ordinance, restricted to use for residential purposes. Before the proceeding was heard by the circuit court it permitted Arlie Midkiff, the owner of a residence located on lots numbers 46 and 47, in section 207, adjoining the lots of the petitioners, and forty two other owners of lands in various parts of the Hale Land Addition, or in other nearby sections, to intervene as defendants. The original defendants and the intervening defendants entered their joint and sev-

[54 S.E.2d 751]

eral demurrers to the petition. The circuit court sustained the demurrers and, the petitioners declining to amend, dismissed the petition by order entered January 3, 1949. To that judgment this Court granted this writ of error upon the application of the petitioners.

The principal questions presented on this writ of error are: (1) Whether the validity of a zoning ordinance of the City of Bluefield may be attacked in a proceeding in mandamus; and (2) whether the ordinance is valid with respect to its effect in restricting the use of land of the petitioners to residential purposes. Other incidental issues, hereafter stated and discussed, also arise.

In 1938 the City of Bluefield, pursuant to the provisions of Article 5, Chapter 8 of the Code of 1931, adopted a comprehensive zoning ordinance which divided the city for zoning purposes into five types of use districts and five types of area districts. The use districts are designated as A residence districts, B residence districts, business districts, light industry districts, and heavy industry districts. The area districts are designated as First Area Districts, Second Area Districts, Third Area Districts, Fourth Area Districts and Fifth Area Districts. All districts, both use and area districts, are indicated upon the zoning map adopted at the time of the passage of the ordinance, and the property of the petitioners, as indicated by the map, is located in one of the designated residential districts. The ordinance prescribes in detail regulations and restrictions relative to types, size, height, and character of construction of buildings and structures and the uses to which property in the various districts may be devoted. It prohibits the use for business purposes of property located in the various residential districts. The ordinance is based upon the police power of the State, as delegated to the municipality of Bluefield by the Legislature, Chapter 8, Article 5, Code of 1931, and was enacted for the recited purpose of promoting the health, the safety, the morals or the general welfare of the community embraced within the corporate limits of the city.

Among the various terms and conditions of the ordinance these particular provisions are referred to as pertinent to the issues involved in this proceeding: The duty of administering and enforcing the ordinance is conferred upon the city manager; all applications for building permits shall be accompanied by a plat showing the dimensions of each lot used for building, the size and the location of each structure to be erected, constructed or structurally altered on each lot, and such other information as may be necessary to determine that the proposed structure and use of land will conform to the ordinance; no building permit shall be issued before application has been made for a certificate of occupancy; a certificate of occupancy is a statement signed by the city engineer and issued by the city manager that a structure or a parcel of land complies with the ordinance or that a structure may be lawfully employed for specified uses under the ordinance; no vacant land shall be occupied or used and no structure used or changed in use until a certificate of occupancy shall have been regularly issued by the city manager; a certificate of occupancy for the use of vacant land, or for a change in its use, or for a change in the use of an existing building, shall be applied for and issued before any such land shall be occupied or used, or such land or building changed in use, and such certificate shall be issued within fifteen days after application has been made, provided the proposed use is in conformity with the ordinance; an appeal from any decision made in the administration of the ordinance may be taken...

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54 practice notes
  • State ex rel. Perry v. Miller, No. 15655
    • United States
    • Supreme Court of West Virginia
    • January 28, 1983
    ...840, 179 S.E.2d 577 (1971) ]; Stowers v. Blackburn, [141 W.Va. 328, 90 S.E.2d 277 (1955) ]; Carter v. City of Bluefield, [132 W.Va. 881, 54 S.E.2d 747 (1949) ]." (Footnote In Smith v. W.Va. State Board of Education, supra, the relator was seeking to have the respondent promulgate a regulati......
  • Quesenberry v. Estep, No. 10827
    • United States
    • Supreme Court of West Virginia
    • December 22, 1956
    ...upon the use of private property or [142 W.Va. 437] the pursuit of useful activities, Carter v. City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747; Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385; Anderson v. Jester, 206 Iowa 452, 221 N.W. 354; Merrill v. City of Wheaton, 356 Ill. 4......
  • Smith v. West Virginia State Bd. of Educ., No. 15454
    • United States
    • Supreme Court of West Virginia
    • June 22, 1982
    ...of a writ of mandamus must be read against the back drop of Judge Haymond's statement in Carter v. City of Bluefield, 132 W.Va. 881, 897, 54 S.E.2d 747, 757 "The tendency in this jurisdiction is to enlarge and advance the scope of the remedy of mandamus, rather than to restrict and limit it......
  • State ex rel. Vance v. Arthur, No. 10887
    • United States
    • Supreme Court of West Virginia
    • May 28, 1957
    ...of the particular case and requires performance of the duty sought to be enforced. Carter v. City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747; State ex rel. Looney v. Carpenter, 106 W.Va. 170, 145 S.E. 184; City of Philippi v. Tygarts Valley Water Company, 99 W.Va. 473, 129 S.E. 465; State e......
  • Request a trial to view additional results
54 cases
  • State ex rel. Perry v. Miller, No. 15655
    • United States
    • Supreme Court of West Virginia
    • January 28, 1983
    ...840, 179 S.E.2d 577 (1971) ]; Stowers v. Blackburn, [141 W.Va. 328, 90 S.E.2d 277 (1955) ]; Carter v. City of Bluefield, [132 W.Va. 881, 54 S.E.2d 747 (1949) ]." (Footnote In Smith v. W.Va. State Board of Education, supra, the relator was seeking to have the respondent promulgate a regulati......
  • Quesenberry v. Estep, No. 10827
    • United States
    • Supreme Court of West Virginia
    • December 22, 1956
    ...upon the use of private property or [142 W.Va. 437] the pursuit of useful activities, Carter v. City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747; Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385; Anderson v. Jester, 206 Iowa 452, 221 N.W. 354; Merrill v. City of Wheaton, 356 Ill. 4......
  • Smith v. West Virginia State Bd. of Educ., No. 15454
    • United States
    • Supreme Court of West Virginia
    • June 22, 1982
    ...of a writ of mandamus must be read against the back drop of Judge Haymond's statement in Carter v. City of Bluefield, 132 W.Va. 881, 897, 54 S.E.2d 747, 757 "The tendency in this jurisdiction is to enlarge and advance the scope of the remedy of mandamus, rather than to restrict and limit it......
  • State ex rel. Vance v. Arthur, No. 10887
    • United States
    • Supreme Court of West Virginia
    • May 28, 1957
    ...of the particular case and requires performance of the duty sought to be enforced. Carter v. City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747; State ex rel. Looney v. Carpenter, 106 W.Va. 170, 145 S.E. 184; City of Philippi v. Tygarts Valley Water Company, 99 W.Va. 473, 129 S.E. 465; State e......
  • Request a trial to view additional results

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