Leary v. Adams

• Decision Date: 23 March 1933
• Docket Number: 6 Div. 271.
• Citation: 147 So. 391,226 Ala. 472
• Parties: LEARY v. ADAMS et al.
• Court: Alabama Supreme Court

147 So. 391

226 Ala. 472

LEARY v. ADAMS et al.

6 Div. 271.

Supreme Court of Alabama

March 23, 1933

Rehearing Denied April 20, 1933.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Petition of William M. Leary, for mandamus to John H. Adams, Harold H Henderson, and R. A. Walker, as members of the Zoning Board of Adjustment, and John W. Hunter, Acting Building Inspector of the City of Birmingham. From a judgment dismissing the petition, petitioner appeals.

Affirmed.

Horace C. Wilkinson, of Birmingham, for appellant.

W. J Wynn and Jas. H. Willis, of Birmingham, for appellees.

GARDNER Justice.

The city of Birmingham, pursuant to express legislative authority (General Acts 1923, p. 581), entered into a comprehensive zoning scheme, passing an ordinance, effective August 4 1926, by which the city is divided into two major districts one relating to the use of property and the other to the matter of height and area. Birmingham Code 1930, p. 336.

We are here concerned only with the first, the "Use Districts," which are subdivided as follows: "A-1-Residence; A-2-Residence; B-1-Residence; B-2-Residence, Commercial, Light Industrial and Heavy Industrial." Nor is there here necessity for detailed discussion as to these various districts. Suffice it to say that as to "A-1-Residence" districts the use is limited to one-family dwellings, with some few additional uses such as a church, library, museum, playground, greenhouse or nursery, truck garden, and accessory uses incident thereto. While as to "B-1-Residence" districts the use includes all in A-1-Residence and, in addition, two-family and multiple dwellings, hotels or apartments, hospital (with limitation), fraternity or sorority house or dormitory, clubhouse, public or semipublic institutions, educational or charitable (with limitation), lodging or boarding houses, electric substation without rotary machinery, gas regulation station, accessories to above uses.

There are some further regulations as to both "A-1 and B-1-Residence Districts" which are not important to the instant case, and, therefore, need no specific reference.

Gasoline filling stations are not among the permitted uses in either of these districts, but are expressly classed in the "Commercial District." Birmingham Code 1930, pp. 339 and 341. A copy of the "Zone Map," here exhibited, very plainly discloses the various districts into which the city is divided, and is most helpful.

Petitioner owns a vacant lot on the northwest corner of Clairmont avenue and Forty-First street, fronting 165 feet on the north side of Clairmont, and extending back northwardly 140 feet to an alley, upon a portion of which he desires to erect a gasoline filling station with a building that is "structurally proper." The building inspector declined to issue the permit, and, his action being sustained on appeal to the zoning board of adjustment (Birmingham Code 1930, p. 345), petitioner has resorted to the courts. Gillette v. Tyson, 219 Ala. 511, 122 So. 830.

The validity of the zoning ordinance, in its general scope, is not questioned (White v. Luquire Funeral Home, 221 Ala. 440, 129 So. 84, 87), but the argument is that, as applied to petitioner and his property, the restrictions of use are clearly arbitrary and unreasonable and constitute a taking of his property without due process of law, in violation of both the State and Federal Constitutions. See Const. Ala. 1901, art. 1, § 13; Const. U.S. Amend. 14. The authority for zoning laws is found within the bounds of the police power, asserted for the public welfare, and it has been well said that the line in this field which separates the legitimate from the illegitimate assumption of power is incapable of precise delimitation, varying with circumstances and conditions. The leading case on the subject, and one which speaks with final authority concerning the due process clause of the Fourteenth Amendment to our Federal Constitution, is that of Village of Euclid, Ohio, v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 118, 71 L.Ed. 303, 54 A. L. R. 1016.

The cases, of course, recognize the rule that the lawmaking authorities may not, under the guise of the police power, impose restrictions that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities; that governmental interference by zoning ordinances with such use, is not unlimited, and such restrictions should bear some substantial relation to the public health, safety, morals, or general welfare, [ State of Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210; Nectow v. Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842; Standard Oil Co. v. City of Bowling Green, 244 Ky. 362, 50 S.W.2d 960] or, as otherwise elsewhere expressed, the "public convenience or the general prosperity" (Chicago, B. & Q. Ry. Co. v. Illinois, 200 U.S. 561, 26 S.Ct. 341, 349, 50 L.Ed. 596, 4 Ann. Cas. 1175; Town of Wake Forest v. Medlin, 199 N.C. 83, 154 S.E. 29).

As applicable to the rules relating to regulations and restrictions of zoning ordinances, the Euclid Case, supra, is here much in point, and wherein it is noted that, while the meaning of constitutional guaranties never varies, yet the scope of their application must expand or contract to meet new and different conditions constantly coming within the field of their operation. "In a changing world it is impossible that it should be otherwise."

As to ordinances of this character, and their particular application, much must depend upon circumstances and conditions, for, as there pointed out, zoning regulations which would be clearly valid as applied to the great cities might be as clearly invalid when applied to rural communities. The law of nuisances is to be consulted and considered as helpful in determining the scope of the power. In this connection, the court in the Euclid Case, supra, said: "Thus the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality. * * * A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. * * * There is no serious difference of opinion in respect of the validity of laws and regulations * * * excluding from residential sections offensive trades, industries and structures likely to create nuisances." In that case, the exclusion from the residential district was in general terms of all industrial establishments, and it was observed that such a general provision may exclude, along with the rest, industries which are neither offensive nor dangerous. But the court said that "this is no more than happens in respect of many practice-forbidding laws which this court has upheld, although drawn in general terms so as to include individual cases that may turn out to be innocuous in themselves. * * * The inclusion of a reasonable margin, to insure effective enforcement, will not put upon a law, otherwise valid, the stamp of invalidity. Such laws may also find their justification in the fact that, in some fields, the bad fades into the good by such insensible degrees that the two are not capable of being readily distinguished and separated in terms of legislation. In the light of these considerations, we are not prepared to say that the end in view was not sufficient to justify the general rule of the ordinance, although some industries of an innocent character might fall within the proscribed class." It cannot be said that the ordinance in this respect "passes the bounds of reason and assumes the character of a merely arbitrary flat." But, as here more directly in point, the court in the Euclid Case, supra, proceeds to uphold the restrictions there in question upon the "broader exclusion from residental districts of all business and trade structures," expressing concurrence in the majority view of the state courts that such restriction bears a "rational relation to the health and safety of the community," and quoting approvingly from the Illinois and Louisiana courts in City of Aurora v. Burns, 319 Ill. 84, 149 N.E. 784, 788, and State v. City of New Orleans, 154 La. 271, 97 So. 440, 444, 33 A. L. R. 260, respectively. This by way of giving recognition to the validity of the general comprehensive scheme of excluding trades and industries from residential districts, though the court further observed that as to concrete application of the provisions of the ordinance in minute detail to particular premises or conditions some of them may be found clearly arbitrary and unreasonable.

The case of Zahn v. Board of Public Works, 274 U.S. 325, 47 S.Ct. 594, 595, 71 L.Ed. 1074, is also of interest, especially in view of the fact that "Zone B" there involved will be seen to closely correspond to the "B-Residence" district here considered, wherein approval was given to the opinion of the California court in Zahn v. Board of Public Works, 195 Cal. 497, 234 P. 388, 395. In this latter case stress is laid upon the fact that, where a given situation admittedly presents a proper field for the exercise of the police power, the extent of its invocation and application is a matter which lies largely in legislative discretion, and the courts are loathe to substitute their judgment as to the necessity for a particular enactment for the legislative judgment with reference to its exercise.

The...