Robertson v. City of Salem

• Decision Date: 01 March 1961
• Docket Number: Civ. No. 73-59.
• Citation: 191 F. Supp. 604
• Parties: John Dayton ROBERTSON, Plaintiff, v. CITY OF SALEM, an Oregon municipal corporation, Defendant.
• Court: U.S. District Court — District of Oregon

191 F. Supp. 604

John Dayton ROBERTSON, Plaintiff, v. CITY OF SALEM, an Oregon municipal corporation, Defendant.

Civ. No. 73-59.

United States District Court D. Oregon.

March 1, 1961.

Steve Anderson, Salem, Or., for plaintiff.

Chris J. Kowitz, Salem, Or., for defendant.

Robert Y. Thornton, Atty. Gen., State of Or., and Catherine Zorn, Asst. Atty. Gen., State of Or., amicus curiae.

EAST, District Judge.

Parties in Jurisdiction

Plaintiff John Dayton Robertson (Robertson), is a citizen of the State of Washington, and Defendant City of Salem (Salem), is a municipal corporation duly existing under the laws of the State of Oregon (Oregon), and diversity of citizenship exists between the parties. Robertson seeks declaratory judgment relief herein, and this Court has held that a "justiciable controversy" exists between the parties and that it has jurisdiction.¹

Facts

Robertson is now and through his parental predecessors in interest has been continuously for many years prior to the year 1953 the owner in fee simple of two parcels of real property² within Salem and lying within the boundaries of "G1 Capitol District" (District), delineated and prescribed in the hereinafter mentioned Salem Ordinance No. 4578.

The structures situate on Parcel I consist of some 50-or-more-years' vintage residences and are presently used for multiple use housing of secondary, to say the least, standards, enjoying approximately one-half time occupancy. Parcel I is located along the north line of Center Street, N. E., and the west line of Capitol Street, N. E., and the residential units bear the addresses of 943-947, 955-959, 975-985 and 995 Center, and 415 Capitol Streets, respectively. Parcel I lies to the north and directly across Center Street from the most northerly of the recently constructed Oregon owned office buildings.

Parcel II is located along the north line of Marion and the west line of Capitol Streets, N. E. Marion Street is the first city street to the north of Center Street, hence Parcel II lies one city block north of the above-mentioned Oregon owned office buildings. The improvement on Parcel II consists of a duplex residential structure of more modern design than the units on Parcel I.

Center Street bounding Parcel I on the south is a state highway and a main traffic artery for eastbound traffic, being heavily traveled by both private and commercial vehicles. Capitol Street likewise is a state highway and a main traffic artery for northbound traffic and is heavily traveled by both private and commercial vehicles, and Marion Street is a main traffic artery for westbound traffic and is heavily traveled by both private and commercial vehicles. There are located within the same block as Parcel II and along the same side of Capitol Street three residential structures; a mortuary establishment; a service station; and an office building, the latter business uses being pre-existing, nonconforming uses under Ordinance No. 4578. The property fronting on the east side of Capitol Street from Court Street (one block south of Center Street) and extending northerly for approximately four and one-half blocks to Mill Creek (two blocks north of Marion Street), is now and has been for some time past under ordinance of Salem, zoned for commercial and business land uses.

Zoning by Salem's Council

Oregon, through its Legislature, has provided that its cities, acting through their respective councils, may by ordinance:

"For the public interest, health, comfort, convenience, preservation of the public peace, safety, morals, order and the public welfare * * * create or divide the city into districts within some of which it shall be lawful and within others of which it shall be unlawful to erect, construct, alter or maintain certain buildings or carry on certain trades or callings * * *" O.R.S. 227.220,

and

"* * * regulate, restrict and segregate the location of industries, the several classes of business, trades or callings, the location of apartment or tenement houses, clubhouses, group residences, two family dwellings, single family dwellings and the several classes of public and semipublic buildings, and the location of buildings or property for specified uses, and may divide the city into districts of such number, shape and area as the council may deem best suited to carry out the purposes of ORS 227.220 * * *" O.R.S. 227.230.

However, the cities are admonished that:

"These regulations shall be designed to promote the public health, safety and general welfare. The council shall give reasonable consideration, among other things, to the character of the district, its peculiar suitability for particular uses, the conservation of property values and the direction of building development in accord with a well considered plan." O.R.S. 227.240.

Salem is the hostess city of the State of Oregon³ and as such is, understandably, hypersensitive to suggestions of the Legislature of Oregon. As early as February 2, 1939, the Legislature of Oregon made public its policy of seeking the cooperation and agreement of Salem with the objective of restricting future higher and better private development of land uses within the so-called Capitol area of Salem,⁴ and, again, on February 21, 1951, the Legislature of Oregon, for its own economic use at large, resolved as follows:

"Whereas a declaration by the State of Oregon of its intention to carry out this element of the plan would serve as a basis for the Capitol Planning Commission to request of the Salem common council such zoning of the area as would give protection against construction within it of a nature that would add to the costs to be met in a program of acquisition or of a type unsuited to the dignity of the state buildings nearby; now, therefore, * * * it hereby is declared to be the purpose of the State of Oregon to acquire ultimately and to include in the Capitol area for development all real property in the area north from Court Street to D Street between Capitol and Winter Streets in the City of Salem." Laws 1951, pp. 1171, 1172. Emphasis added.⁵

On October 29, 1953, the Council of Salem, pursuant to the requests of the Capitol Planning Commission and in co-operation therewith, adopted Zoning Ordinance No. 4578, designating an area of Salem as District,⁶ and (so far as this case is concerned) bounded on the south by Court (two blocks south of Center), on the east by the west line of Capitol, and on the north by Division, if extended (approximately two blocks north of Marion), and on the west by the midblock line west of Winter (three and one-half blocks west of Capitol) Streets. Within the District, commercial and business activity and land use is prohibited and the land uses are restricted to:⁷

"(a) Any use permitted in an R2 residential (multiple) district, except churches and elementary or high schools;

"(b) Office buildings of any governmental unit."

Oregon now owns all that part of District lying south of Center Street and puts the same to governmental building uses. Oregon also has purchased and owns several isolated parcels or islands throughout the District not as yet being put to governmental building uses.

Robertson contends:

I.

That Salem adopted Ordinance No. 4578 and delineated District's boundaries and restricted the land uses therein solely for the accommodation of Oregon, to prevent further economic development in the District, and to hold and freeze the area of the District for future acquisition by Oregon, all without the present payment of just compensation therefor. That such zoning was urged upon Salem's Council because of Oregon's desire to create a so-called "Capitol Zone" at the expense of the owners of the property in such area and without compensation for the impairment of use and partial taking thereof. That the sections of the ordinance creating the District and restricting the land uses therein are illegal, unconstitutional and void;

A. In general because:

1. They are arbitrary, unreasonable, discriminatory and class legislation;

2. They bear no reasonable relation to public health, safety and general welfare, and were adopted in violation of the provisions of Oregon Revised Statutes 227.220 and 227.240;

3. They establish an arbitrary classification distinguishing without reason between government and private office buildings;

4. They deprive plaintiff of his property without due process of law and constitute a denial of the equal protection of laws as guaranteed by the laws and Constitution of the State of Oregon.

B. As applied to plaintiff's respective properties because of the above general reasons and the following specific reasons:

1. The premises in question cannot be effectively used by plaintiff for residential purposes or governmental office buildings,—the uses permitted by said ordinance, inasmuch as the only reasonable use thereof is for business and commercial purposes;

2. They result in confiscation of plaintiff's property without payment of just compensation;

3. They create a lack of uniformity throughout an area of the defendant city which is in fact similarly constituted and bar commercial use from such zone while permitting such uses in adjoining similar property;

4. The beneficial use of the property is permanently so restricted that it cannot under the ordinance be used for any reasonable purpose;

5. Such limitation upon the use of said property greatly diminishes its value without benefit to public health, safety, morality or general welfare.

II.

That due to the locations of his respective parcels, they are not adaptable, valuable or profitably usable for the purposes restricted by Ordinance No. 4578 and that due to their location and its business and commercial uses of property in the immediate neighborhood, the reasonable and higher use and value of the properties are for commercial and business uses.

Salem contends:

I.

That the effect of Ordinance 4578 does not appreciably depreciate the market value of Robertson's...