Kroner v. City of Portland

• Decision Date: 03 November 1925
• Parties: KRONER ET AL. v. CITY OF PORTLAND ET AL.
• Court: Oregon Supreme Court

240 P. 536

116 Or. 141

KRONER ET AL. v. CITY OF PORTLAND ET AL.

Supreme Court of Oregon

November 3, 1925

In Banc.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Suit by Ernest Kroner and another against the City of Portland and others. Decree for plaintiffs, and defendants appeal. Reversed, and suit dismissed.

McBride C.J., and Rand, J., dissenting.

Frank S. Grant, City Atty., and H. M. Tomlinson Deputy City Atty., both of Portland, for appellants.

Thomas Mannix, of Portland, for respondents.

W. B. Shively, of Portland, amicus curiæ.

BURNETT J.

Claiming to be the owners of two lots covering a space of 100 feet square at the southeast corner of East Thirteenth and Pine streets in Portland, Or., the plaintiffs have brought this suit against the city and the mayor and commissioners, composing the city council, to restrain them from interfering with the plaintiffs in their construction of a building on the premises mentioned. In the complaint they quote three admitted sections of the city ordinance in force at the beginning of the suit whereby buildings erected, used, occupied, or altered for occupancy in certain industries, including creameries employing over five persons, should be restricted to location. They avow that they intend to construct a building to be used for such a creamery and retail store. The ordinance, as quoted, prescribes that no such building shall be erected until a permit therefor shall have been approved by the council. Another section requires that an application for such a permit shall be accompanied by a plan giving location of the building in question, together with all buildings within a radius of 200 feet from the building and giving also the names and addresses of the owners of such buildings. Provision is made for notification and hearing of protests, and it is said in the ordinance that--

"The granting of the application for permit will not be approved by the council wherever it appears that the granting of the same is or may be detrimental to public health or safety or detrimental to the welfare and growth of the city."

The complaint avers:

"That the said plaintiffs have conformed to the said ordinance in every way with respect to the provisions thereof relating to securing permission from the city council to construct the said building in the following manner: That is, the said plaintiffs made application to the said council on or about May 12, 1924, for permission to construct a building on the said premises and such as has heretofore been described, and thereafter the said council, pursuant to the said ordinances, had a hearing on the said application, and thereafter notified the said plaintiffs that the application for permission to erect and maintain a building for a proposed creamery and retail store on the above-described premises, and filed in the office of the said council, had been refused and denied, and it is further averred in this connection that the said defendants above do refuse and have refused to issue any permit, and have threatened and are theatening the said plaintiffs with legal proceedings if they start to construct the said building."

The quoted sections of the ordinance are admitted by the answer, which otherwise traverses most of the complaint. Further answering, the defendants set up various sections of ordinances relating to the erection of buildings in the city, providing, among other conditions, that an application for permit shall be accompanied by two sets of plans and specifications covering the work as required by the building code and going into particulars as to the nature of the plans and specifications. The answer also points out that, by virtue of one of the sections quoted in the complaint, no building of the kind proposed by the plaintiff shall be erected in a residential district, and that the term "residential district" applies to property having at least 70 per cent, of the buildings on both sides of the street on which the property fronts between the nearest intersecting streets designed for and used as single or two family residences, and as measured by that standard the place in which plaintiff proposes to erect his building is in a residence district. It is averred in the answer that the application for permit was not accompanied by any plans or specifications or other documents whatever showing the method of the construction of the proposed building. The denial of the permit is admitted. The reply denies the averments of the answer except as they admit the allegations of the plaintiff's complaint.

A supplemental answer sets up that, after the filing of the complaint and answer, what may be called, for convenience, a zoning ordinance, was enacted by the legal voters of the city on November 4, 1924, by the initiative process. Later on the plaintiffs filed a supplemental complaint in which the zoning ordinance is averred and set forth by copy, concerning which the supplemental complaint alleges:

"The said plaintiffs have conformed in every respect with the zoning ordinance, and have requested of the defendants authority to construct such a building as that described in the original complaint but the same has been refused. The plaintiffs say that the said zoning ordinance adopted as aforesaid is null and void and of no effect, and contravenes the Fourteenth Amendment of the federal Constitution and also section 10 and section 18 of the Constitution of the state of Oregon, in that the said provisions of the said zoning ordinance, in so far as applicable, deny to the plaintiffs due process of law, and constitute a taking of their property without compensation, and deny them the equal protection of the laws; that under such zoning ordinance and by the defendants, the plaintiffs are prohibited from building such a creamery building as that described in the original complaint on the premises described in the said original complaint, and further the said zoning ordinance by its own terms prohibits the erection of the proposed building mentioned in original complaint on the premises mentioned in question."

The answer to the supplemental complaint denies the allegations thereof, except the enactment of the zoning ordinance.

The circuit court adjudged that enactment to be void and unconstitutional, and entered a decree enjoining the defendants from interfering with the plaintiffs in the erection of the proposed building, and the defendants have appealed.

In passing, it may be noted that, in the main, the various complaints state nothing more than conclusions of law in that they aver in general terms that the plaintiffs have conformed to the ordinances. Good pleading in the matter requires that they should state with precision what they have done, pleading also the ordinance so that the court could determine. as a matter of law whether the plaintiffs had indeed conformed to the city law.

The legislative assembly of 1919 enacted a general law entitled:

"An act to provide for the establishment within municipalities of districts or zones within which the use of property, height of improvements and required open spaces for light and ventilation of such buildings, may be regulated by ordinance, and providing that the council may establish a penalty for the violation of such ordinance." Laws 1919, c. 300.

A condensed résumé of the ordinance involved in this suit is here set down. It is entitled:

"An ordinance dividing the city of Portland into four districts, prescribing the uses to which property in such districts may be put or used, providing for the establishment of building setback lines, providing a penalty for violation thereof, and repealing all ordinances or parts of ordinances in conflict therewith."

The ordinance is comprehensive and includes all the territory within the boundaries of the city which is divided into classes as follows: Class I. Residential district--for single family dwellings with appurtenances such as a garage, having not more than three motor vehicles, summer house, pergola, and greenhouse, all for private use. Class II. Residential district--for single and two family dwellings, flats, apartment houses, boarding houses, hotels, multiple dwellings, and the like. Class II. Special temporary residence district--for temporary residences for period of two years, etc. Class III. Business district--general assemblage buildings such as assembly halls, auditoriums, churches, theaters, and similar uses; also certain business purposes such as hotels, stores, offices, restaurants, and many others; likewise public buildings, including courthouses, schools, libraries, hospitals, and others, apartment houses, lodging houses, clubs, etc. Class IV. Unrestricted district--all uses allowed or optional or prohibited in other districts subject to general ordinances of the city are permitted. Boundaries of districts are to coincide with streets, alleys, or lot lines. Buildings and uses thereof in existence at the passage of the ordinance not conforming thereto are protected and allowed in any district except as against change, enlargement, or 90 per cent. destruction by fire. Provision is made for change of business or installation of prohibited business of certain kinds subject to local option of property holders. Boundaries of districts may be changed or the ordinance amended by council after compliance with certain conditions about public hearings, remonstrances, etc. It is said in section 15:

"The provisions of this ordinance shall be held to be the minimium requirements for the preservation of public safety, health, convenience, comfort, prosperity and general welfare of the people of the city of Portland."

Without dispute, the site of the proposed building is within a district where a...