City of Norfolk v. Tiny House, Inc.

• Citation: 281 S.E.2d 836,222 Va. 414
• Decision Date: 11 September 1981
• Docket Number: No. 790686,790686
• Parties: CITY OF NORFOLK v. TINY HOUSE, INC., t/a Tiny House Mom's Restaurant, and Lillie A. Johnson. Record
• Court: Supreme Court of Virginia

Page 836

281 S.E.2d 836

222 Va. 414

CITY OF NORFOLK v. TINY HOUSE, INC., t/a Tiny House Mom's Restaurant, and Lillie A. Johnson.

Record No. 790686.

Supreme Court of Virginia.

Sept. 11, 1981.

Benjamin W. Bull, Asst. City Atty. (Philip R. Trapani, City Atty., on briefs), for appellant.

Frederick T. Stant, Jr., Mary Keating, Virginia Beach (Clark & Stant, P. C., Virginia Beach, on brief), for appellees.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.

HARRISON, Justice.

The City of Norfolk sought to enjoin Tiny House, Inc., and its president, Lillie A. Johnson, from selling alcoholic beverages for on-premises consumption until Tiny House had obtained the use permit required by Norfolk City Ordinance 28,759, adopted February 1, 1977 (hereinafter referred to as the Ordinance). The trial court held that the Ordinance infringed upon the exclusive authority delegated to the Alcoholic Beverage Control Commission and dismissed the City's bill of complaint. In this appeal we decide if the City, in the exercise of its police power, may enact a zoning ordinance regulating the location of an establishment selling alcoholic beverages.

Tiny House, a restaurant located in a C-2 district of Norfolk, desired to sell beer for on-premises consumption and on February 20, 1977, applied for the use permit required in the district by the Ordinance. The City Planning Commission, after a public hearing on March 18, 1977, recommended to the City Manager that the use permit be denied. On April 4, 1977, while City Council action on the recommendation was still pending, Tiny House withdrew its application. It has never been denied the use permit. Subsequently, on April 18, 1977, the ABC Commission, over the City's objection, issued the restaurant a license to serve beer for on-premises consumption. Tiny House then commenced selling beer without obtaining the City's use permit.

Norfolk filed a bill of complaint seeking injunctive relief, and Tiny House responded with an answer and cross-bill alleging, inter alia, that the Ordinance was null and void because the ABC Commission had "exclusive authority ... to regulate or control the sale or use of alcoholic beverages." The trial court, after reviewing the statutes granting the ABC Commission its powers, found evidence of a legislative intent "to limit local authority" in matters pertaining to the location and concentration of establishments selling alcoholic beverages. ¹ Thereupon, the court held that the City was "outside the delegated authority granted it by the General Assembly" in enacting the zoning ordinance under attack because "such authority (was deposited) exclusively with the (ABC) Commission." It declared the Ordinance null and void "insofar as it regulates the location and concentration of establishments selling (alcoholic beverages)" and dismissed the City's bill of complaint. There was no ruling by the court on the cross-bill.

Code §§ 15.1-427 to -503.2 grant to municipalities the power to adopt zoning ordinances. Code § 15.1-427 states that "(t)his chapter is intended to encourage local governments to improve public health, safety, convenience and welfare of its citizens and to plan for the future development of communities to the end that ... residential areas be provided with healthy surrounding for family life." The general purpose of zoning ordinances is the promotion of "health, safety or general welfare of the public and of further accomplishing the objectives of § 15.1-427." Code § 15.1-489. To accomplish these ends, ordinances are to be designed "to facilitate the creation of a convenient, attractive and harmonious community." Code § 15.1-489(3). The General Assembly, in Code § 15.1-486, granted municipalities jurisdiction in each zoning district to regulate, restrict, permit, prohibit, and determine the following:

(a) The use of land, buildings, structures and other premises for agricultural, business, industrial, residential ... and other specific uses;

(b) The size, height, area, bulk, location, erection, construction, reconstruction, alteration, repair, maintenance, razing, or removal of structures;

(c) The areas and dimensions of land ... to be occupied by buildings, structures and uses....

The Ordinance defined several businesses as constituting "adult uses." It included as an adult use any establishment which had as a principal or accessory function the sale of alcoholic beverages for on-premises consumption and which required a retail on-premises license from the ABC Commission. ² The City Council recognized "serious objectionable operational characteristics" inherent in adult uses, "particularly when several of them are concentrated ... or located in direct proximity to residential neighborhoods," and enacted special regulations to prevent a concentration of adult uses that would create adverse effects on residential areas. Among the regulations provided by the Ordinance was the requirement that a use permit be obtained and that "no more than two such (adult) uses shall be located within 1,000 feet of each other." City Council was authorized to waive this requirement provided certain circumstances existed and certain stated findings were made.

Tiny House argues that it was "grandfathered" under the Ordinance or that its use constituted a nonconforming one and that it need not obtain a use permit. It points to amendments of the Ordinance and asserts that "the original version of Ordinance No. 28,759 did not accomplish the council's goal of requiring a use permit in a C-2 zone where the sale of alcohol is allowed as accessory to a permitted use (restaurant)." While the language of the Ordinance in Sections 2:613.2(1)-(3) appeared to provide exemptions to the use permit requirement regarding establishments providing on-premises consumption of alcohol, subsection (4) of Section 2:613.2 provided no exception for these establishments. When read with the prefatory clause of Section 2:613.2 of the Ordinance, it is clear that subsection (4) thereof required a use permit for adult uses located within 1,000 feet of one another unless the requirement was waived by City Council, as provided in Section 2:613.2(5)(a-d). ³ Testimony at trial revealed that Tiny House was situated within 1,000 feet of other adult uses. It was therefore required to obtain the use permit.

There is "a presumption favoring the validity of municipal ordinances, and the presumption governs unless it is overcome by unreasonableness apparent on the face of the ordinance or by extrinsic evidence which clearly establishes the unreasonableness." Kisley v. City of Falls Church, 212 Va. 693, 697, 187 S.E.2d 168, 171, appeal dismissed, 409 U.S. 907, 93 S.Ct. 237, 34 L.Ed.2d 169 (1972). "Whether a particular ordinance enacted pursuant to a general grant of power is void as arbitrary and unreasonable is a question of law for the courts." Id. The United States Supreme Court, in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), upheld the validity of a Detroit zoning ordinance prohibiting two regulated uses within 1,000 feet of one another. Those challenging the Detroit ordinance did so on the ground that the ordinance violated the First and Fourteenth Amendments to the United States Constitution. This contention was rejected by the Court. It said:

It is true, however, that adult films may only be exhibited commercially in licensed theaters. But that is also true of all motion pictures. The city's general zoning laws require all motion picture theaters to satisfy certain locational as well as other requirements; we have no doubt that the municipality may control the location of theaters as well as the location of other commercial establishments, either by confining them to certain specified commercial zones or by requiring that they be dispersed throughout the city. The mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances.

Putting to one side for the moment the fact that adult motion picture theaters must satisfy a locational restriction not applicable to other theaters, we are also persuaded that the 1,000-foot restriction does not, in itself, create an impermissible restraint on protected communication. The city's interest in planning and regulating the use of property for commercial purposes is clearly adequate to support that kind of restriction applicable to all theaters within the city limits.

427 U.S. at 62-63, 96 S.Ct. at 2448.

In the instant case, counsel for Tiny House acknowledged that the rights of Tiny House, allegedly infringed upon by the challenged Ordinance, are of lesser dignity than First Amendment rights. The effect of the holding in Young is that a municipality's police power, exerted through its zoning regulations, may be broad enough to limit First Amendment rights. If a locality's police power is that broad, then assuredly it can restrict rights of lesser dignity, such as those asserted by Tiny House. We hold that the City's Ordinance was a proper exercise of its police power and that the Ordinance is not arbitrary or unreasonable. Our position is aptly summarized in Young, where it was said:

The remaining question is whether the line drawn by these ordinances is justified by the city's interest in preserving the character of its neighborhoods.... The record discloses a factual basis for the Common Council's conclusion that this kind of restriction will have the desired effect. It is not our function to appraise the wisdom of its decision to require adult theaters to be separated rather than concentrated in the same areas. In either event, the city's interest in attempting to preserve the quality of urban life is one that must be accorded high respect. Moreover, the city must be allowed a reasonable opportunity to experiment with...