Howden v. Mayor & Aldermen of Savannah
| Decision Date | 11 June 1931 |
| Docket Number | 7966. |
| Parties | HOWDEN v. MAYOR AND ALDERMEN OF SAVANNAH. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Property may front on one street only or on two streets within zoning ordinance; corner lot lying within triangle formed by intersection of two streets fronts on both streets; lot fronting on street separating lot from park fronts on park within zoning ordinance prohibiting erection of certain buildings fronting on park.
Property may front on one street only, or it may front on two streets. Where a corner lot, made up of two lots, lies in the triangle formed by the intersection of two streets, such lot fronts upon both of such streets. Where the side of such lot fronts on Drayton street, and is separated from Forsyth Park extension by that street, the same fronts on Forsyth Park extension, within the meaning of the zoning ordinance of Savannah which prohibits the erection of certain buildings fronting on Forsyth Park and extension.
Denial of permit to owner of residence lot to erect filling station within district zoned for residences, apartments, schools etc., held not deprivation of property without due process; zoning ordinance restricting district to residences apartments, churches, hospitals, schools, and hotels held not to deprive property owner in district of property without due process; zoning ordinance excluding business buildings from district held not arbitrary and unreasonable when applied to residence property within district (Const. U.S. Amend. 14; Const. art. 3, § 7, as amended [see Laws 1927, p. 127]; Laws 1929, pp. 1281, 1286).
The denial of a permit to the owner of a residence lot to erect thereon a filling station, the lot being located in a district zoned by ordinance of the city of Savannah, passed in pursuance of legislative authority, exclusively for residences, apartments, churches, hospitals, schools, and hotels, is not a deprivation of the owner's property within the meaning of the due process clauses of the Constitution of this state and of the Fourteenth Amendment to the constitution of the United States, especially when a lot has been improved and used for residential purposes long before the passage of such ordinance.
(a) While formerly statutes or ordinances which sought to create residence districts from which all business buildings were to be excluded would not have been sustained as coming within the police power, and the same would have been denounced as unconstitutional and void because they deprived owners of their property without due process of law, the majority of the recent cases upon this subject uphold the constitutionality of zoning statutes and ordinances.
(b) Now by amendment to the Constitution of this state the General Assembly is clothed with power to grant to the governing authorities of the city of Savannah authority to pass zoning and planning laws whereby that city may be zoned for various uses, or other or different uses prohibited therein, and for regulating the use for which said zones may be set apart.
(c) By the Act of August 20, 1929 (Laws 1929, pp. 1281, 1286) amending the charter of the city of Savannah, the mayor and aldermen of that city are given authority to enact zoning and planning laws, whereby such city and its environments in Chatham county may be zoned or districted for various uses and other or different uses prohibited therein, and regulating the uses for which said zones or districts may be set apart.
(d) Under the above amendment to the Constitution of this state and the stature amending the charter of the city of Savannah the provision of the zoning ordinance of that city under which the lot of the plaintiff is embraced in a zoning district does not deprive her of her property without due process of law.
(e) The provision of the zoning ordinance of Savannah, creating the zone or district in which plaintiff's property is located, is not void because it is arbitrary and unreasonable, when applied to the property of the plaintiff under the facts of this case.
In construing the due process clause of the Fourteenth Amendment to the federal Constitution, the Supreme Court of the United States holds that the police power generally supports an ordinance forbidding the erection in designated residential districts of business houses, retail stores, shops, and other like establishments; and that such ordinances, apart from special applications, cannot be declared arbitrary and unreasonable, and without substantial relation to the public health, safety, morals, and general welfare. The facts of this case do not take it out of this general principle announced by the Supreme Court of the United States.
Error from Superior Court, Chatham County; Peter W. Meldrim, Judge.
Mandamus by E. M. Howden against the Mayor and Aldermen of the City of Savannah. Judgment for defendants, and plaintiff brings error.
Affirmed.
Zoning ordinance excluding business buildings from district held not unreasonable when applied to residence property within district.
Mrs Howden owns lot No. 15 and lot C in Cuthbert ward of the city of Savannah. These lots are located at the northeast corner of Park avenue and Drayton street. They are contiguous, and have a total southern frontage of 70 feet on Park avenue and a northward depth of 105 feet along Drayton street to Waldberg Street lane. Forsyth Park and Forsyth Park extension constitute a parallelogram, bounded on the north by Gaston street, on the east by Drayton street, on the south by Park avenue, and on the west by Whitaker street. Drayton street separates the property of Mrs. Howden from Forsyth Park extension, and Park avenue constitutes its southern boundary. Mrs. Howden acquired this property in 1910, and shortly thereafter made considerable extensions and alterations in the improvements located thereon, at an approximate cost of $7,000. The existing improvements on the property consist of a two-story frame dwelling facing on Park avenue, and a two-story frame outhouse in the rear facing on Waldberg Street lane. Mrs. Howden and her two children occupy the residence, which is much too large for their needs, and requires outlays for insurance, taxes, and repairs greatly disproportionate to her income, financial worth, and the value of the property for residential purposes. At the time she acquired this property it was very desirable for residential purposes; but conditions have changed, and it has become less and less desirable for residential purposes, and more and more valuable for business purposes. As a result of these conditions Drayton street, which runs for more than two miles from Victory drive to Bay street, has become more and more a traffic thoroughfare over which a large part of the vehicular traffic moves from the southern to the northern portion of the city. It is the only street in the city over which traffic is limited by city ordinance to north-bound traffic. Across town traffic is required to stop before attempting to cross it. The continued growth of traffic upon it and upon Whitaker street, which is limited to south-bound traffic, caused the city by ordinance to extend the maximum speed limit thereon from 15 miles per hour to 25 miles per hour. From Park avenue the burden of traffic on Drayton street is considerably increased by the fact that the traffic over Bull street from the southward is deflected eastward to Park avenue, when it reaches the southern limits of Forsyth Park extension, and turns northward on Drayton street at the intersection of Park avenue andthat street. Park avenue carries a considerable east and west traffic. The traffic on Drayton street has been still further increased by the fact that the city has permitted the north-bound traffic on the Atlantic Coastal Highway, extending from Florida to Maine, to be routed northward through the city on Drayton street. During the last two or three years Mrs. Howden has made diligent efforts to dispose of her property, finding it less and less desirable for residential purples, because of the increased traffic on Drayton street, which is only 27 feet in width from curb to curb. She has found little difficulty in getting attractive offers for her property for business purposes, but has been unable to obtain a single offer for the property for any other purpose. She has been unable to convert her house into apartments, for the reason that the cost of making the necessary alterations is prohibitive. On May 5, 1930, she presented to the city council of Savannah her application for a permit for the purpose of constructing on her lots a drive-in gasoline filling station, the same to be built out of steel, brick, and cement stucco, and to be similar in appearance to an attractive filling station located at Forty-First and Bull streets. The fire risk on such a structure is unobjectionable. In her application she alleged that the proposed use of the premises would occasion no objectionable odors or noises. The estimated cost of the completed work would be $8,000. By previous examination she found that she could make a sale of her property at a satisfactory price if the building permit she applied for could be obtained. The building inspector of the city is not allowed by the city to issue a permit in such cases until the application therefor has been approved by the city council. On May 7, 1930, the city council denied her application upon the ground that it violated section 8 of the zoning ordinance of the city, which declares that "only residences, apartments, churches, schools, hotels, and hospitals shall be erected on lots fronting on Forsyth Park and Extension, *** as said lots appear upon the present official map of said city." By the eleventh section of said ordinance,...
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