Chapman v. City of Troy

• Decision Date: 13 June 1941
• Docket Number: 4 Div. 189.
• Citation: 4 So.2d 1,241 Ala. 637
• Parties: CHAPMAN v. CITY OF TROY et al.
• Court: Alabama Supreme Court

4 So.2d 1

241 Ala. 637

CHAPMAN v. CITY OF TROY et al.

4 Div. 189.

Supreme Court of Alabama

June 13, 1941

Rehearing Denied Oct. 16, 1941.

Opinion Modified and Judgment Rendered Oct. 23, 1941.

Appeal from Circuit Court, Pike County; W. L. Parks, Judge.

The ordinance is as follows:

"Be it ordained by the City Council of the City of Troy, as follows:

"Section 1. That there be and is hereby created and established a zone or district for residential purposes only, the said zone or district so created and established being the territory within the following boundaries, to-wit:

* * * * * *

"Section 2. That within said zone or district no building or other structure shall be erected, maintained or used for any purpose other than residential purposes or necessary for or incidental to such purposes, and especially shall no building or other structure be erected, maintained or used within said zone or district for business, commercial or industrial purposes, and that the erection, maintenance and use of any building so erected, maintained or used contrary to the provisions of this ordinance shall constitute a separate offense for each day that the same is so erected maintained or used.

"Section 3. That any person, firm or corporation, or agent thereof who erects, or attempts to erect, maintain or use any building or other structure in violation of this ordinance shall, on conviction thereof be fined not exceeding One Hundred Dollars, and in addition thereto may be sentenced to hard labor for the City of Troy not exceeding six months in the discretion of the Mayor, Judge, or Jury trying the case."

J. H. Wilkinson and Oliver W. Brantley, both of Troy, for appellant.

J. L. Giddens, of Troy, and Thomas & Thomas, of Montgomery, for appellees.

BOULDIN Justice.

In 1936, the City Council of the City of Troy, a city of more than seven thousand inhabitants, passed an ordinance to create a zone or district for residential purposes only. The ordinance clearly fixed and defined the boundaries of this district; and penalized the erection or use of any building within such district for business, commercial or industrial purposes.

In 1940, appellant purchased a corner lot located within this district with a view to the erection and operation of a filling station thereon. Favorably located as a site for this business, application was made in due form to the proper authority for a permit as required by city regulations. His application was refused upon the ground that this location is within the residence district created by the zoning ordinance.

Thereupon appellant filed a bill in equity for a declaratory judgment or decree adjudging whether the zoning ordinance is valid or invalid.

The parties framed their pleadings with a view to submission on bill and answer. On such submission the trial court denied complainant relief and dismissed the bill.

Both parties, in their pleadings, disclose a real controversy as to the validity of the ordinance involving the property rights of complainant as well as the powers and duties of the administrative officers, growing out of the ordinance.

Section 2 of the Declaratory Judgment Law, Acts 1935, p. 778, Code 1940, Tit. 7, § 157, expressly looks to a declaration of property rights dependent on the construction or validity of a municipal ordinance, 16 Am.Jur. p. 296, § 24; Klein v. Jefferson County Building & Loan Ass'n, 239 Ala. 460, 195 So. 593, and authorities cited p. 464.

We are of opinion the bill presented a justiciable issue invoking the jurisdiction of the court to determine the validity vel non of the zoning ordinance in question.

The bill is not directed to the right of complainant to a permit to erect and operate a filling station in a residence district under general principles of law. The answer denies this right, and no averments of the bill meet the requirements stated in Gillette, Bldg. Inspector, v. Tyson et al., 219 Ala. 511, 122 So. 830.

The aim of the bill is to determine whether this zoning ordinance stands in the way of the issuance of a permit, the agreed ground upon which a permit was denied at the time.

The grounds upon which the bill was dismissed were not stated in the decree.

This bill does not question that the area zoned as a residence district is in fact a residence district; such a district that under police powers, duly delegated, may be zoned as such; and protected from the intrusion of commercial structures and enterprises, without infringing upon property rights protected by constitutional guaranties, state and federal. This court has very fully considered these questions in the light of the controlling decisions of the Supreme Court of the United States. Leary v. Adams et al., 226 Ala. 472, 147 So. 391; White et al. v. Luquire Funeral Home, 221 Ala. 440, 129 So. 84; Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016.

The ordinance is attacked as violative of what we may term the Zoning Act of 1935, conferring and defining the powers of municipalities in the premises. Acts of 1935, p. 1121. In particular, the power to create one residence district, leaving other areas in the city without zoning regulations as industrial, commercial or residence districts, pursuant to a comprehensive plan, as per Section 3 of above act, is the question of moment.

By this act, the Legislature of Alabama has adopted in substance and effect, the Standard State Zoning Enabling Act, prepared by an Advisory Committee under auspices of the Secretary of Commerce of the United States. Law of Zoning by Metzenbaum, p. 303 et seq.; 3 McQuillin's Municipal Corporations, § 1029.

The act is quite inclusive in the...