Standard Oil Co. v. City of Charlottesville

• Decision Date: 14 June 1930
• Docket Number: No. 2920.,2920.
• Citation: 42 F.2d 88
• Parties: STANDARD OIL CO. OF NEW JERSEY v. CITY OF CHARLOTTESVILLE et al.
• Court: U.S. Court of Appeals — Fourth Circuit

42 F.2d 88 (1930)

STANDARD OIL CO. OF NEW JERSEY v. CITY OF CHARLOTTESVILLE et al.

No. 2920.

Circuit Court of Appeals, Fourth Circuit.

June 14, 1930.

Homan W. Walsh and Lyttleton Waddell, both of Charlottesville, Va. (Rowland K. Adams, of Baltimore, Md., and C. W. Allen, of Charlottesville, Va., on the brief), for appellant.

John S. Graves and John S. Battle, both of Charlottesville, Va., for appellees.

Before PARKER and NORTHCOTT, Circuit Judges, and HAYES, District Judge.

PARKER, Circuit Judge.

This is an appeal from a decree denying an injunction. The suit was instituted by the Standard Oil Company of New Jersey against the city of Charlottesville, Va., its mayor and commonwealth's attorney, to enjoin the enforcement of an ordinance which forbade the operation of a gasoline filling station which it was engaged in erecting in that city. The ordinance was attacked on the ground that it was unreasonable and therefore void, and also on the ground that it was violative of the provisions of the Fourteenth Amendment to the Constitution of the United States. The District Judge held the ordinance valid, denied the injunction, and dismissed the bill; and complainant has appealed.

On December 2, 1927, complainant entered into a contract to purchase a lot in the city of Charlottesville at the corner of Ninth and High streets, on condition that a permit could be obtained for the erection of a filling station thereon. On December 5th the company was advised by the mayor that there was no ordinance prohibiting the erection of such filling station, and on the same date a permit to erect same was issued to the then owner of the lot. On December 12th permits were granted to install four 550-gallon underground tanks and four pumps and to construct driveways across the sidewalks on Ninth and High streets. Thereafter complainant completed the purchase of the property, removed a brick dwelling situate thereon, and began the erection of a filling station. On June 4, 1928, certain citizens presented to the city council a petition requesting that the permits for the erection of the filling station be revoked; and a special meeting was held on June 8th to consider the matter. A large number of citizens were present at this meeting and protested against allowing this filling station to be erected in the residential section of the city. As a result of the discussion had, the following ordinance was adopted:

"An ordinance to direct the location of buildings for storing explosives and combustible substances, and to prevent the sale of kerosene, gasoline, benzine, and naptha in residence sections, in the fire limits, and congested fire limits of the City of Charlottesville, as defined in existing ordinances;

"Be it ordained by the council of the City of Charlottesville that it shall be unlawful within the area of Charlottesville known as fire limits and congested fire limits of the City of Charlottesville as described in existing ordinances, to store for sale, keep for sale, or sell upon any lot within 100 feet of any building used solely for residence purposes, dynamite, kerosene, gasoline or naptha. This ordinance shall not be applied to building in or lots upon which tanks are now installed.

"Any violation of any of the provisions of this ordinance shall be punished by a fine of not less than $10.00, nor more than $100.00, for each offense. Each day such violation continues shall constitute a separate offense."

At this meeting resolutions were passed revoking the permit to install tanks and the permit to construct a driveway on Ninth street; and in addition a resolution was passed, reciting that zoning of the city was in progress and providing that "no permit for the construction or operation of any gasoline filling station be issued from this date until the general zoning ordinance shall become effective."

The lot of complainants, although in a residential section, was within the "fire limits and congested fire limits" of the city. Other filling stations were being operated within such limits; and in one not being operated tanks had just been installed so that it came within the exception of the ordinance. Gasoline was being sold at thirty-seven places within the city; and in twenty-six of these the lots on which it was sold were within 100 feet of "one or more buildings used solely for residence purposes." In twenty-three cases the tanks and pumps themselves were within 100 feet of such buildings. It was shown by uncontroverted evidence that a filling station does not increase the risk of fire to nearby buildings, and that there is no danger of explosion when gasoline is stored in the manner contemplated under the permits.

The evidence shows that the lot in question is within 100 feet of buildings used solely for residential purposes, and that such buildings are so scattered over the city that no lot is available for a filling station which would not be within 100 feet of some one of them, except business property which could be bought only at prohibitive prices.

This suit was instituted to enjoin the city, its mayor and the commonwealth's attorney, from enforcing against complainant the penal provisions of the ordinance above quoted; the jurisdiction of the court being invoked both on the ground of diversity of citizenship and because relief was asked under the Constitution of the United States.

It should be noted in the outset that the ordinance in question not only does not purport to be a zoning ordinance, but also that it does not comply with the zoning statute of Virginia and consequently cannot be upheld under the principles laid down in such cases as Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016; Zahn v. Board of Public Works, 274 U. S. 325, 47 S. Ct. 594, 71 L. Ed. 1074, or Gorieb v. Fox, 274 U. S. 603, 47 S. Ct. 675, 71 L. Ed. 1228, 53 A. L. R. 1210. The zoning statute of Virginia, Acts 1926, p. 345, provides that:

"* * * The council * * * may, by ordinance, divide the area of the city or town into one or more districts of such shape and area as may be deemed best suited to carry out the purposes of this act, and in such district or districts may establish * * * the trade, industry, residence and other specific uses of the premises in such district or districts." Section 1.

But it is further provided by this act that:

"In order to avail itself of the powers conferred by this act the hustings or corporation court shall appoint a commission * * * to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein." Section 6.

In this case steps had been taken toward the zoning of the city, but there had been no report by the zoning commission; and, in the absence of such report, the council had no power to pass a zoning ordinance. It certainly had no power to pass a substitute for a zoning ordinance in face of the express provision of the statute governing the matter. Reimer v. Dallas (N. J. Sup.) 129 A. 390, 392; Paffendorf v. Lyndhurst Tp., 129 A. 389, 390, 1 N. J. Misc. R. 289. As said in the case last cited:

"We do not think that the respondents had any lawful right, before a zoning ordinance was in force, to, by resolution, practically put in force a zoning ordinance not existing. * * * The effect of the resolution was to apply a rule which it was intended to establish by a future ordinance, and if this could be done there was no need of the zoning ordinance, for the erection of any building could be arbitrarily prevented by resolution."

In the case of Reimer v. Dallas, supra, which forbade the erection of a garage within 150 feet of a dwelling, the court said:

"It also seems to me that the ordinance is merely a subterfuge for a zoning ordinance. There could be no more danger in erecting a garage within 150 feet of a dwelling house than within 150 feet of a school, church, library, or other premises. The ordinance seems to me to be a substitute for a zoning ordinance and designed for the protection of residential property. Its enactment is an unreasonable exercise of the police power. A municipality cannot do by indirection that which it cannot do directly."

It is but fair to counsel for the city to say that they do not contend that the ordinance can be sustained as a zoning ordinance, and in their answer expressly disclaim this position. They contend that it should be upheld as an exercise of the police power of the city to regulate the storage and sale of gasoline and other explosives within its limits.

We do not think that the ordinance can be sustained as an exercise of the police power to regulate the storage and sale of gasoline, but that, considered as such, it is so manifestly unreasonable as to transcend the powers conferred upon the city in its charter and is therefore void. Where a municipal ordinance is expressly authorized by the lawmaking power of a state, its reasonableness is not a matter for the consideration of the courts, and it will be upheld unless clearly and unmistakably in violation of the constitution; but where, as here, it is enacted under general charter powers and is in contravention of the natural rights of individuals, it must not only be constitutional but reasonable as well. "The court before which it is brought must be able to see that it will tend to promote the public health, morals, safety or welfare; that the means adopted are adapted to that end, and that it is impartial in operation and not unduly oppressive upon individuals." 19 R. C. L. 805, 806; Yates v. Milwaukee, 10 Wall. 497, 19 L. Ed. 984; Bristol Door & Lumber Co. v. City of Bristol, 97 Va. 304, 33 S. E. 588, 75 Am. St. Rep. 783; Harrigan & Reid Co. v. Burton, 224 Mich. 564, 195 N. W. 60, 33 A. L. R. 142; Pacific Palisades Ass'n v. Huntington Beach, 196 Cal. 211, 237 P. 538, 40 A. L. R. 782.

The only legislative authority for the ordinance in question is a general charter provision authorizing the city...