G-M Realty, Inc. v. City of Wheeling

• Decision Date: 06 June 1961
• Docket Number: G-M,No. 12038,12038
• Citation: 146 W.Va. 360,120 S.E.2d 249
• Court: West Virginia Supreme Court
• Parties: REALTY, INC. v. CITY OF WHEELING et al.

Page 249

120 S.E.2d 249

146 W.Va. 360

G-M REALTY, INC. v. CITY OF WHEELING et al.

No. 12038.

Supreme Court of Appeals of West Virginia.

Submitted April 18, 1961.

Decided June 6, 1961.

Syllabus by the Court

1. A zoning ordinance of a municipality prohibiting a gasoline service station within a definite zone or area of a municipality, though other types of businesses are permitted therein, is not invalid as constituting an unwarranted classification, or as violating constitutional provisions relating to due process, since the nature of the operation of such a station inherently involves potential dangers to the health, safety, morals and general welfare of the people.

2. A zoning ordinance of a municipality is not invalid as being arbitrary or discriminatory, as to a particular property owner within a particular zone, where such property owner is not treated differently from other property owners, and the ordinance bears a substantial relationship to the health, safety, morals and general welfare of the people.

3. The enactment of a zoning ordinance of a municipality being a legislative function, all reasonable presumptions should be indulged in favor of its validity.

George G. Bailey, Jeremy C. McCamic, Wheeling, for plaintiffs in error.

Handlan, Garden, Matthews & Hess, Lester C. Hess, Wheeling, for defendant in error.

GIVEN, Judge.

In this proceeding, a writ of error to a judgment of the Circuit Court of Ohio County entered on September 26, 1959, we are required to determine whether a zoning ordinance of the City of Wheeling so discriminates against rights or property of the plaintiff, G-M Realty, Inc., as to render the ordinance invalid in so far as it applies to or affects such rights or property. The circuit court found and held that the ordinance did so discriminate against the property of plaintiff, and awarded a writ of mandamus requiring the City of Wheeling and Andrew J. Prudhome, Building Official of the City of Wheeling, 'to grant a Permit for the erection of the Gasoline Service Station Building as prayed for'.

The ordinance in question was adopted by the city council in 1946. Included in the ordinance were provisions classifying or zoning several described districts or areas, including 'Commercial A' and 'Commercial B' zones. The only material difference between the two zones is that gasoline service stations are prohibited in Commercial A, but are permitted in Commercial B. The property here involved is situated entirely within Commercial A zone.

The real estate in question, designated or 'numbered 178 to 188, 29th Street', was conveyed to plaintiff in 1956 for a consideration of $25,000. The present income therefrom is $153.79 per month, being rental for residence type buildings. It is alleged that the annual income from the property, in the event the gasoline service station is permitted, will be approximately $6,000 per annum, but the cost of the construction of the improvements, if permitted, is not established.

The property fronts on the south side of 29th Street, apparently more than two thousand feet east of the intersection of Eoff Street with 29th Street. Eoff Street is the first street east of Chapline Street. State Route No. 2 presently follows 29th Street through Wheeling, at least as to the part of 29th Street here material. The nature of the present use of 29th Street in the immediate and general area of the property is well illustrated by the following quotation from the petition filed in the circuit court: '* * * proceeding westwardly from the intersection of McColloch Street and Twenty-ninth Street; a pizza store, a Sears-Roebuck warehouse, which is immediately adjacent to the Air Reduction Company plant, which faces on 29th Street, the Nolte Baking Company Plant, a large A & P Super Market with a drive-in and parking area, a railroad street crossing, a Tastee Freeze establishment, the Schroeder Casket Company plant, the wholesale plant of City Building Supply Company, the intersection of Jacob Street and 29th Street, the plant of the Hitt Heating and Air Conditioning Company, and the Wheeling Auto Seat Cover Company plant; that on the same south side of Twenty-ninth Street and proceeding eastwardly from said McColloch Street intersection towards Petitioner's property are the following: a corner beer parlor and confectionery, the Gramlich Plumbing Shop and sales room, the plant of Power Brake Company, with a large drive-in area, a brake service and general truck repair service, a vacant lot, and several residences; that on the south side of 29th Street and proceeding eastwardly from Petitioner's property are the following: the storeroom of Dixon Oil and Supply Co., which retails auto grease and allied items, a residence, a shoe repair shop, several residences, a presently vacant storeroom, the Silver Rail Bar, a food store, a barber shop, a grocery store, an auto repair garage, and Companion Products Company aluminum products plant; that on the north side of 29th Street, and in the area near to Petitioner's property there is a beer parlor, a confectionery store, a dry cleaning plant and fur and clothing storage plant, a farm dairy market, a grocery store, and another dry cleaning plant, and a beer parlor.'

It may be noticed that no gasoline service station is within the immediate vicinity of, or even near, the location of the property involved. Two gasoline service stations occupy the northerly side of 29th Street between Chapline Street and Eoff Street, and one such station is located on the opposite side of 29th Street, at the southeast corner of 29th Street and Chapline Street. And one such station occupies the northeast corner of 29th Street and Eoff Street. Each of such stations either adjoins a station or is situated immediately opposite such a station. They are all within Commercial B zone, though one of such stations, the one at the southeast corner of Chapline Street and 29th Street, was permitted by an amendment to the city ordinance. The station nearest the property involved is more than two thousand feet west thereof.

Two witnesses, familiar with the methods of operation of gasoline service stations, and especially familiar with questions relating to the frequency of fires, explosions and accidents occurring at or because of the operation of such stations, as compared with such happenings occurring at or in the operation of other types of businesses, testified on behalf of plaintiff. This testimony apparently establishes that fires, explosions or accidents occur less frequently at such stations than at most other types of businesses. Yet the testimony reveals that the infrequency of such happenings at such stations results, in large part, at least, from the caution and training of the employees operating such stations, revealing, perhaps, the fact generally believed that potential danger is always present in certain products handled at such stations.

As will be noticed, no question is presented as to the right or power of the city to adopt the ordinance involved, the property owner contending that 'the only issue before the lower court, and here, is whether the ordinance, insofar as it applies to the property of plaintiff, is arbitrary and unreasonable, and, to that extent, is...