Gear v. City of Phoenix

• Citation: 93 Ariz. 260,379 P.2d 972
• Decision Date: 27 March 1963
• Docket Number: No. 7085,7085
• Parties: Robert L. GEAR, also known as Robert Lee Gear, a divorced man, Appellant, v. CITY OF PHOENIX, a municipal corporation, Appellee. . In Division
• Court: Supreme Court of Arizona

Page 972

379 P.2d 972

93 Ariz. 260

Robert L. GEAR, also known as Robert Lee Gear, a divorced man, Appellant, v. CITY OF PHOENIX, a municipal corporation, Appellee.

No. 7085.

Supreme Court of Arizona. In Division.

March 27, 1963.

Bayham & Huffsteter, Phoenix, for appellant.

Merle L. Hanson, present City Atty., John R. Franks, former City Atty., Leven B. Ferrin, Patrick E. Burke and Ben C. Pearson, Asst. City Attys., Roush & Kamps, Phoenix, of counsel, for appellee.

JENNINGS, Justice.

In 1958 the City of Phoenix (appellee), pursuant to a city ordinance authorizing and directing the widening of north Seventh Street, instituted proceedings to condemn the west seven feet of a lot owned by Robert L. Gear (appellant). Pursuant to stipulation the appellee posted an $8,000 bond and took immediate possession. The matter was subsequently tried before a jury and appellant received a verdict of $2,200 upon which judgment was entered. Appellant's motion for judgment n. o. v. for $8,000 or for new trial was denied and he appealed.

Appellant complains of two ordinances ¹ of the City of Phoenix which were included in the instructions given by the court. One ordinance requires that a six inch high curb or bumper guard be constructed around lots used for parking more than three automobiles so that no part of the vehicles will extend over any property line. The other ordinance provides that curb cuts and sidewalk driveway crossings for access to private property should not be placed where they would unreasonably interfere with traffic in adjacent streets. It further provides that no driveways in a commercial area shall be permitted unless there is sufficient space on private property to provide egress without backing the vehicle across the sidewalk.

Appellant's lot, which is on the east side of Seventh Street, contains a building housing appellant's residence and chiropractic office. This building was situated thirty-three feet east of the lot's west boundary line as it was located before the condemnation. Appellant's patients customarily parked five or six cars in this area west of the building prior to the widening of the street. However, if the cars were parked in accordance with the foregoing ordinances there was sufficient space to park only four cars. After the taking of the seven-foot strip there was sufficient space to park only two cars lawfully.

Appellant contends that the eminent domain proceedings were the sole cause of the loss of four parking spaces for which he is entitled to severance damages. Appellee contends that the taking of the sevenfoot strip caused the loss of only two parking spaces for which appellant was compensated. If the ordinances are a reasonable exercise of the city's police power as applied to this case, the appellee's contention is correct because the availability of land for a use which is prohibited by law cannot be considered in determining its value in eminent domain proceedings. Department of Public Works and Buildings v. Hubbard, 363 Ill. 99, 1 N.E.2d 383 (1936); Joly v. City of Salem, 276 Mass. 297, 177 N.E. 121 (1931); 4 Nichols, Eminent Domain § 12.3143 (4th ed. 1962); 1 Orgel, Eminent Domain § 33 (2d ed. 1953).

The exercise of the police power is valid where the subject to which the regulation relates is within the scope of legislative power, the ends sought to be attained are appropriate and the regulations prescribed are reasonable and have a rational basis. A regulation is reasonable if fairly appropriate to its purpose and not destructive of inherent rights. Myerson v. Sakrison, 73 Ariz. 308, 240 P.2d 1198 (1952). A municipality clearly has the power to regulate the use of its streets, including ingress thereto and egress therefrom. Hughes v. City of Phoenix, 64 Ariz. 331, 170 P.2d 297 (1946); Wood v. Phoenix-Tempe Stone Co., 35 Ariz. 155, 275 P. 5 (1929). The regulation in this case sought to avoid the danger of collision with vehicles or pedestrians created by automobiles backing into traffic from off-street parking places. The elimination of this danger is a legitimate consequence of the city's right and duty to regulate traffic for the benefit of the public's safety and general welfare. Hillerege v. City of Scottsbluff, 164 Neb. 560, 83 N.W.2d 76 (1957). A requirement that motorists wishing to enter the public street back and turn in some place other than a heavily traveled lane of traffic appears to be reasonably calculated to eliminate the hazard. Also, the city has the power to require construction of a curb so as to eliminate any hazard to pedestrians which would otherwise be created by automobile bumpers extending over part of the sidewalk. Therefore, the ordinances, as such, are a valid exercise of the police power.

Appellant contends, however, that as applied to his property the ordinances are unconstitutional. He maintains that they restrict the use of his property to the extent that it cannot be used for any reasonable purpose, and that they curtail the manner in which he had used the property prior to their adoption. In support of this contention appellant points to the reduction of parking spaces from six to four and cites two cases which he deems analagous. In Roer Construction Corp. v. City of New Rochelle, 207 Misc. 46, 136 N.Y.S.2d 414 (1954), a city ordinance left the owner unable to build on his property or to do anything constructive with it. In O'Connor v. City of Moscow, 69 Idaho 37, 202 P.2d 401 (1949), a zoning ordinance prohibited the continuation of an existing lawful business. In obth of these cases there was such serious interruption of the common and necessary use of the property and interference with the rights of the owner as to constitute a 'taking.' Patently, the ordinances in the instant case do not constitute a serious interference with the owner's rights. They certainly do not prevent the use of appellant's property for any reasonable purpose, and, without more, the elimination of two parking spaces cannot be said to be an unreasonable or arbitrary exercise of power in view of the public interest involved. Nor are the ordinances destructive of any inherent right. The appellant does not have an inherent or vested right in the continuation of a particular manner of parking automobiles on his property.

Therefore, we conclude that as applied to this case the ordinances are a reasonable exercise of the...