Gorieb v. Fox, et Als.

• Citation: 145 Va. 554
• Parties: S. M. GORIEB v. CHARLES D. FOX, ET ALS., MEMBERS OF CITY COUNCIL OF ROANOKE, VIRGINIA, ET ALS.
• Decision Date: 29 September 1926
• Court: Virginia Supreme Court

Page 554

145 Va. 554

S. M. GORIEB v. CHARLES D. FOX, ET ALS., MEMBERS OF CITY COUNCIL OF ROANOKE, VIRGINIA, ET ALS.

Supreme Court of Virginia, Wytheville.

September 29, 1926.

1. POLICE POWER — Abridgement — Exercise of Police Power. — Section 159 of the Constitution of 1902 declares that the exercise of the police power of the State shall never be abridged. The legislature may, in the exercise of the police power, restrict personal and property rights in the interest of public health, public safety, and for the promotion of the general welfare.

2. POLICE POWER — Conferred Upon Municipalities — Extent of Power — Exercise of Police Power. — The legislature may confer the police power of the State upon cities and towns located therein. The extent of this power is difficult to define, but it is elastic and expands automatically to protect the public against the improper use of private property to the injury of the public interest. It must never be exercised except in a reasonable manner and for the welfare of the public.

3. MUNICIPAL CORPORATIONS — Building Restrictions — Building Lines — Zones — Police Power. — It is within the police power of the legislature to pass an act authorizing the councils of cities and towns to divide their municipalities into "districts" or "zones," and to establish building lines on the streets to which all property owners must conform; and such an act, if passed in the interest of the health, safety, comfort, or convenience of the public, or for the promotion of the public welfare, when not unreasonable, is constitutional and valid.

4. MUNICIPAL CORPORATIONS — Validity of Zoning and Building Line Ordinances. — Although the authorities are in conflict on the validity of zoning and building line ordinances the weight of authority and reason supports the validity of such ordinances.

5. PUBLIC OFFICERS — Uniform Rule of Action — Arbitrary Discretion — Validity of Ordinances and Statutes Vesting Discretion in Public Officials. — While the courts have held that, generally speaking, statutes and ordinances which vest arbitrary discretion in public officials, without prescribing a uniform rule of action, by which they shall be guided, are unconstitutional and void, this rule is subject to a qualification, where it is difficult or impracticable to lay down a definite rule, or where the discretion relates to the administration of a police regulation and is necessary to protect the public morals, health, safety and general welfare.

6. MUNICIPAL CORPORATIONS — Zoning and Building Lines — Ordinances Vesting Discretion in Council — Case at Bar. — A city ordinance regulating the erection of buildings in a city vested discretion in the council to grant or refuse a permit to erect buildings closer to the street than provided for in the ordinance.

Held: That the ordinance was valid.

7. MUNICIPAL CORPORATIONS — Building Lines — Discretion Vested in Public Officials — Case at Bar. — Where a city has been built up without much regard to building lines the establishment of any uniform building line may result in unequal burdens on the landowners. Therefore, a provision in an ordinance providing for the establishment of building lines authorizing the council to grant special permits to erect buildings not in conformity with an existing building line and nearer the street than such line is not invalid.

8. MUNICIPAL CORPORATIONS — Building Lines — Discretion Vested in Council to Depart from Building Line not an Arbitrary Discretion. — Where an ordinance establishing building lines vested in the city council the authority to depart from such lines by granting special permission to erect buildings not in conformity with the lines, the discretion thus vested in the council is not an arbitrary or whimsical, but a reasonable, discretion, and does not authorize the council to grant a permit to A and refuse one to B under like circumstances and conditions. If they should exercise this discretion, in an arbitrary manner, the party aggrieved would be entitled to relief through the courts.

9. MUNICIPAL CORPORATIONS — Building Lines — Permission from Council to Depart from Established Lines — Error, if any, in Favor of Appellant — Case at Bar. — In the instant case the petitioner, a landowner, desired to erect a store on the street upon which his land abutted. He applied to the building inspector for a permit which was refused. He then petitioned the council for permission to erect a store on the property. The council passed a resolution permitting him to build a brick store thirty-four and two-thirds feet from the street line. Petitioner contended that under no construction of the building ordinance could this restriction of thirty-four and two-thirds feet from the street be sustained. Under the ordinance the building would have had to be located forty-four and two-tenths feet from the street line.

Held: That if the council erred in permitting the landowner to build thirty-four and two-thirds feet from the street, it was an error in his favor of which he could not complain.

10. MUNICIPAL CORPORATIONS — Zoning and Building Lines — Validity of Statutes and Ordinances — Case at Bar. — The act of 1922, page 46, authorizing councils of cities to divide their cities into districts or zones, and to establish set-back building lines, and compel the property owners to conform thereto, and the ordinance of the city of Roanoke of August 26, 1922, as amended on July 11, 1924, regulating the erection of buildings in the city, passed under the authority of the statute, are constitutional and valid.

Error to a judgment of the Circuit Court of the city of Roanoke, upon a petition for a writ of mandamus. Judgment for defendants. Petitioner assigns error.

The opinion states the case.

W. V. Birchfield, Jr., for the plaintiff in error.

R. C. Jackson, for the defendant in error.

WEST, J., delivered the opinion of the court.

By an act of the General Assembly of Virginia, approved February 17, 1922, councils of cities were authorized to divide their cities into districts or zones, and to establish set-back building lines, and compel the property owners to conform thereto. The act (Acts of Assembly 1922, p. 46) reads as follows:

"That for the promotion of the health, safety, morals, comfort, prosperity and general welfare of the general public, the council, or other governing body, of any city may, by ordinance, divide the area of the city into one or more districts, of such shape and area as may be best suited to carry out the purposes of this act, and in such district or districts may establish set-back lines, regulating and restricting the location of buildings and other structures; their height and bulk; the percentage of lot to be occupied by buildings or other structures; and the size of courts and other open spaces, and the trade, industry, residences and other specific uses of the premises in such district or districts, provided that nothing in this act contained shall be construed as intended to authorize the impairment of any vested right."

On August 26, 1922, the council of the city of Roanoke, acting under the authority granted by this act, passed an ordinance regulating the erection of buildings in the city. Sections 243, 244, and 245 of the ordinance, as amended on July 11, 1924, read as follows:

Section 243. "That all buildings hereafter to be erected in the city of Roanoke must be built to correspond to the existing house line of the houses built in the same block unless special permission otherwise granted by the city council; provided, that if the buildings to be erected shall be located upon a switching track of any commercial railroad it shall be permitted to build closer to the street than the line of the existing houses."

Section 244. "That the line of the existing houses shall be the line upon which sixty per cent of the houses in the block in which the proposed building is intended to be erected, have with relation to the street, and the said proposed buildings must be at least as far from the street as the line established by said sixty per cent of the houses. The word `block' herein used does not refer to any entire city square, but shall be construed to be that portion on the same side of the street upon which the new building is proposed, bounded by the nearest intersecting streets to the right and left of said proposed building."

Section 245. "That if there be not more than two houses in the block upon which said building is proposed to be erected, that the building line of said new structure may be such line as shall be fixed upon by an average line for the owner of said building, provided however, that in no event shall the front of the proposed building be nearer than twenty feet from the front line of his said lot, exclusive of the sidewalk, in case his said grant shall carry him to the street line. Provided, however, that the council within their discretion may grant or refuse a permit to erect buildings closer to the street than hereinbefore provided, in any block wherein there now exists buildings used for business or mercantile purposes, accordingly as their judgment will dictate whether the proposed buildings will subserve the general welfare of the neighborhood and city, and, provided further, that they shall grant a permit whenever in their judgment the block to contain the proposed building has a greater value for business or mercantile than for residential purposes."

On January 19, 1923, the council passed an ordinance dividing the city into two districts, one designated as the "business district" and the other as the "residential district."

S. M. Gorieb is the owner of several building lots located in the "residential district" on the northeast corner of Patterson avenue and Eleventh street, fronting on Patterson avenue 139 feet and on Eleventh street 150 feet, back to an alley. On the eastern portion of the lot he has a dwelling house, but there is no building on...