Dundee Realty Co. v. City of Omaha
| Decision Date | 17 March 1944 |
| Docket Number | 31578. |
| Citation | 13 N.W.2d 634,144 Neb. 448 |
| Parties | DUNDEE REALTY CO. v. CITY OF OMAHA et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Cities of the metropolitan class, for the purpose of promoting the health, safety, morals, or the general welfare of the community, are empowered to regulate and restrict the height, number of stories and size of buildings and other structures, 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. Comp.St.1929, sec. 14-404.
2. The police power is inherent in the effective conduct and maintenance of government and is to be upheld, even though the regulation affects adversely property rights of some firm, business or individual.
3. What is the public good as it relates to zoning ordinances affecting the use of property is, primarily, a matter lying within the discretion and determination of the municipal body to which the power and function of zoning is committed, and unless an abuse of this discretion has been clearly shown it is not the province of the court to interfere.
4. In determining the validity of a city ordinance, regularly passed in the exercise of police power, the court will presume that the city council acted with full knowledge of the conditions relating to the subject of municipal legislation.
5. Police regulations promoting public safety and welfare may be valid, though restricting the liberty of citizens in regard to occupations and the ownership and use of property.
6. In passing upon the validity of zoning ordinances, an appellate court should give great weight to the determination of local authorities and local courts especially familiar with local conditions.
7. In appeals from the district court to the supreme court in suits in equity, on trial de novo this court will retry the issue or issues of fact involved and reach an independent conclusion as to what findings are required under the pleadings and the evidence, without reference to the conclusion reached in the district court.
Ellick Fitzgerald & Smith, of Omaha, for appellant.
H C. Linahan, W. W. Wenstrand, G. H. Seig, and Edward Sklenicka, all of Omaha, for appellees.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, CHAPPELL, and WENKE, JJ.
Plaintiff owned real estate in Omaha which was included by ordinance within a restricted zone for high-type residential use. Plaintiff contends that such inclusion was unreasonable arbitrary and amounted to the taking of its real estate, or a part thereof, unlawfully. The trial court sustained the ordinance.
In this case there is a stipulation that the trial court, who heard and determined the first action, try the issues involved in this, the second, action. The transcript sets forth a history of the ordinances involved, their relationship to each other and their effect. Inasmuch as the two actions are consolidated and the issue to be determined is whether ordinance No. 15068 is unconstitutional and void for the reason that it is arbitrary and unreasonable, that it destroys the plaintiff's property, and that it does not promote the public health and morals or general welfare, we deem it unnecessary to set forth the pleadings involving the prior ordinances, their relationship to each other and their effect, but rather to confine the decision in this case to the ordinance here involved and the pleadings relative thereto, having considered the previous litigation and the factors upon which the trial court determined it. A summary of the pleadings directly involving the issue here presented is as follows:
The petition alleges that plaintiff is the owner of the following described real estate:
The petition alleges that on July 21, 1942, the city council of defendant city passed a purported ordinance No. 15068, made a part of the petition; that more than 15 days have elapsed since the passage of said ordinance, and no protest has been lodged against the same, as provided by section 14-211, Comp.St.1929; that plaintiff's land, hereinbefore described, is wholly within the area covered by section 1 of the ordinance; that by the terms thereof plaintiff's property is classified for building purposes as AA residence and AB height and area.
For brevity we summarize the uses provided under section 61-1.3, AA residence district: (1) One family dwellings; (2) churches; (3) only such gardening as is exclusively for the use of occupants of the dwelling located on the premises; (4) certain accessory buildings; (5) uses customarily incident to any of the above uses when located on the same lot and not involving the conduct of a business; (6) no signs except those appertaining to the lease, hire or sale of building on premises and then not exceeding eight square feet in area. With reference to the AB height and area ordinance, attached to the petition, it requires a lot area of not less than 5,000 square feet per dwelling, a main building more than one story in height, to have a ground area of not less than 1,200 square feet, and, if one story in height, a ground area, exclusive of garage, of not less than 1,000 square feet, as provided in section 61-1.15 AB height and area district, and providing for the setbacks, which we need not set out. With reference to the lot area per dwelling and building area, the effect of ordinance No. 15070, repealing certain parts thereof, is contained in the opinion.
The petition further alleges that the tract of land involved has a frontage of 718.3 feet on Dodge street and extends back from Dodge to the north a distance of 560 feet; that Dodge street, abutting this land, is a transcontinental highway, used by 9,000 motor vehicles, including trucks and transport vehicles, each 24-hour period; that, as a result of such heavy traffic on Dodge street, the street is dangerous and difficult for pedestrians to cross, and there is almost continual noise from the passage over Dodge street of so many vehicles, caused, by the sounding of horns, application of brakes, and noise incident to the movement of such a volume of traffic; that, consequently, said tract of land is wholly unsuited and unfit for high-class residence purposes, such as provided for by paragraph 4 of the ordinance, referred to above; alleges that the passage of ordinance No. 15068 does not promote the public health, morals or general welfare, and that the zoning, as contemplated by the ordinance, is an unlawful, arbitrary and unreasonable exercise of the power of zoning, as vested in the city authorities by law, and that such ordinance is null and void and of no effect; that the existence of the ordinance, absent any attempt to enforce it, operates to and does reduce the value of plaintiff's property, destroys the market-ability thereof for its actually lawful uses, and constitutes an invasion of plaintiff's property rights, deprives the plaintiff of its property without due process of law and equal protection of the laws, in violation of the Fifth Amendment and of section 1 of the Fourteenth Amendment to the Constitution of the United States, and of section 3, art. I of the Constitution of Nebraska, amounts to a taking and damaging of plaintiff's property without just compensation, in violation of the Fifth Amendment to the Constitution of the United States, and of section 21, art. I of the Constitution of Nebraska.
The petition alleges that plaintiff intends to and will erect upon said tract of land certain buildings and structures that do not comply with the requirements of the AA and AB classifications, respectively, and that the defendants intend to and will seek to prevent plaintiff from so using that part of its property, and the plaintiff will be denied building permits except for residences conforming to the provisions of the ordinance, and, unless restrained by this court, will harass, embarass and impede plaintiff in the lawful use of its property. Plaintiff prays that the court adjudge ordinance No. 15068 unconstitutional, null and void, as applied to plaintiff's land, and that defendants be permanently enjoined from attempting to enforce the ordinance.
The answer, for the purposes of this opinion, may be considered as a general denial of the petition, and all of the admissions of fact therein have been noted. Its prayer is for a dismissal of plaintiff's petition. The court adjudged ordinance No. 15068 valid and constitutional, and not arbitrary or unreasonable. Plaintiff appeals.
In the record is an agreement made on the 23d day of January, 1939, between the plaintiff as seller and one George D. Fraser as purchaser, describing the real estate to be sold: A frontage on Dodge street of 718 feet, fanning out to a width of 750 feet at a point 560 feet north of Dodge street. The tract is 700 by 560 feet in dimension. On the date of...
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Neb. Const. art. I § I-3 Due Process of Law; Equal Protection
...certain size of buildings and ground area did not operate to deny property owners due process of law. Dundee Realty Co. v. City of Omaha, 144 Neb. 448, 13 N.W.2d 634 It is a general rule that a person has no vested right in statutory licenses, permits or privileges. Beisner v. Cochran, 138 ......