Ware v. City of Wichita

• Citation: 113 Kan. 153,214 P. 99
• Decision Date: 10 March 1923
• Docket Number: 24,337,24,542
• Parties: L. B. WARE, Appellee, v. THE CITY OF WICHITA, Appellant. THE CITY OF WICHITA, Appellee, v. L. B. WARE and H. M. WARE, Appellants
• Court: Kansas Supreme Court

214 P. 99

113 Kan. 153

L. B. WARE, Appellee, v. THE CITY OF WICHITA, Appellant.

THE CITY OF WICHITA, Appellee, v. L. B. WARE and H. M. WARE, Appellants

Nos. 24,337, 24,542

Supreme Court of Kansas

March 10, 1923

Appeals from Sedgwick district court. Division No. 1, THOMAS E. ELCOCK, judge; case No. 24,337 dismissed. Division No. 2 THORNTON W. SARGENT, judge; case No. 24,542 affirmed.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MUNICIPAL CORPORATION--Permit to Erect Business Building in Residential Section--Permit Rescinded by Subsequent City Ordinance. The fact that an owner of a town lot procured a writ of mandamus requiring a city to grant him a permit to erect a business building in a residential section of the city and an injunction restraining the city from interfering with its erection, which judgments were entered before the city had any ordinance prohibiting such use of the property, did not prevent the city from enacting such valid zoning ordinance, nor make it inoperative as to the town lot in controversy as soon as it was enacted, when the status of the property and the position of its owner had not been materially changed in the short interval which elapsed between the entry of the judgments and the adoption of the zoning ordinance.

2. SAME--Cities May Create Reasonable Zoning Districts and Prohibit Construction of Certain Classes of Buildings Therein. Under express grants of legislative power conferred upon cities of the first class having 20,000 inhabitants (Laws 1921, chapters 99 and 100), such cities may plan and create reasonable zoning districts for the future systematic development of the city, and provide therein for residential, commercial and industrial districts, and prohibit the construction of buildings at variance with such plan of development.

3. SAME--Ordinance a Valid Exercise of the Police Power. The city ordinance in controversy, adopted pursuant to express statutory authority and which forbids the construction of a business building in a residential district, is a valid exercise of the police power, and does not violate any provision of state or federal constitution.

4. SAME--Chapters 99 and 100 of the Laws of 1921, Relating to the Creation of Zoning Districts Not Unconstitutional. Chapter 99 of the Laws of 1921, which authorizes the creation of city planning commissions in cities of 20,000 population, and chapter 100 of the Laws of 1921, which authorizes such cities to establish districts or zones within their corporate limits and to regulate the use of property and the construction of buildings therein, are not unconstitutional.

A. V. Roberts, J. N. Haymaker, and R. E. Angle, all of Wichita, for the appellants L. B. Ware and H. H. Ware.

Robert C. Foulston, and George Seifkin, both of Wichita, for the appellee City of Wichita.

OPINION

DAWSON, J.:

These appeals relate to the right of an owner of a town lot to construct a business building thereon in a residential section of the city of Wichita.

The plaintiff in case No. 24,337, L. B. Ware, owned a town lot on which he proposed to construct a business building. The lot was located in a residential section of the city. Shortly prior to the time he applied for a permit to construct the building, the city had enacted an ordinance creating a city planning commission under authority of chapter 99 of the Laws of 1921, and this commission had embarked on its duties of planning the systematic development of the municipality but its work was not quite ready to be submitted to the city government for consideration and action. But in view of the impending completion of the plan of development, which contemplated the creation of zoning districts within the city and which would bar the construction of a business building on such locations as that of plaintiff's lot, a permit was denied him; and he brought mandamus against the city and its officials to compel the issue of such permit. Plaintiff prevailed in that action, which is one of the appeals brought here for review.

About the same time the mandamus action was filed, the city brought a suit for an injunction against Ware to restrain him from building a business building on this lot. He filed a cross-petition asking that the city and its officials be restrained from interfering with the construction of his proposed building. Ware prevailed in that action, it being decided on the same day the writ of mandamus was allowed to him. This injunction case was not appealed, and it is only chronicled here because it was set up as res judicata in defense in a later action by the city to which reference will presently be made.

About the time the mandamus and injunction suits were decided, the plan of development prepared by the city planning commission was finished, and thereupon the city, under authority of chapter 100 of the Laws of 1921, enacted an ordinance dividing the city into zones or development districts and regulating and restricting the location and character of buildings, trades and industries therein. The zoning ordinance, which incorporates two maps showing the division of the city into districts, is too elaborate for reproduction here. In substance the city is divided into five districts or zones--residential districts "A" and "B," a commercial district "C," a light industrial district "D," and a heavy industrial district "E." Throughout the residential districts, "A" and "B," provision is made at convenient intervals for commercial locations to serve the reasonable immediate needs of each particular neighborhood. There are also certain "area" restrictions, "A," "B," "C" and "D," in respect to the erection of new buildings. In these area districts, buildings are required to have a certain amount of space for side yards and rear yards and to be so placed as to be in line with adjacent property with reference to distance from the street.

The most exacting requirements and restrictions provided by the zoning ordinance are those covering residence district "A" and area district "A." Plaintiff's lot is located in residence district "B" and in area district "B," where the requirements and restrictions are more liberal, but business buildings are not permitted therein.

As soon as this zoning ordinance was adopted, the city commenced a suit to enjoin Ware from constructing his proposed building in violation of its terms. A temporary injunction was issued. Ware, as defendant, moved to set it aside for various reasons and set up the judgments in his favor in the mandamus action and in the earlier injunction case. He also urged that the relief sought by the city would be retroactive, that the ordinance violated the fourteenth amendment, and the uniformity clause of section 17 of article 2 of the state constitution, that it deprived him of his property rights without compensation, that the ordinance was passed after his rights had accrued, that it was unreasonable and permitted the city officials to administer it at their discretion, with obvious and convenient opportunities for fraud and favoritism.

These objections to the temporary injunction were overruled; and the defendant appeals. This is case No. 24,542.

Defendants points out that by the result reached in these cases, the judgments in mandamus and injunction first entered in his behalf were rendered nugatory by the last judgment, which was in favor of the city. This anomaly is more superficial than real. When the mandamus and first injunction suits were decided there was no zoning ordinance; hence the lot owner might very properly have prevailed in those actions. But when the zoning ordinance was adopted (and its enactment followed immediately on the heels of the earlier litigation and before the defendant had done anything substantial towards the construction of the proposed building), it governed the then existing rights of the defendant property owner. Counsel for defendant cite cases which declare the general rule that a statute or ordinance should be construed as dealing only with conditions arising after its enactment, and that legislation should not be given a retrospective operation unless such intention is unequivocally expressed. But this zoning ordinance was undoubtedly designed as a police regulation to arrest the further indiscriminate construction of miscellaneous business buildings in the residential districts of the city, as well as to provide for the future harmonious development of the town. It is only to a slight extent, if any, that the ordinance may be said to have a retrospective operation; it would be more precise to say that it merely crystallized the actual conditions at the time of its adoption. It did not bar buildings already built or prevent the completion of buildings partly constructed, but did provide that buildings not then substantially in course of construction and all those thereafter to be erected would have to conform to its terms. Such municipal legislation is not invalid, and the fact that the defendant had applied for a permit, and that his right thereto as of the date of his application had been adjudicated in his favor, did not prevent the new ordinance, when it was enacted, from governing the situation. (Shepherd v. Kansas City, 81 Kan. 369, 375, 105 P. 531.) The permit was not issued; it has not yet been issued; and the passage of the ordinance altered the status of defendant's right thereto. (In re Cherry, 201 A.D. 856, 193 N.Y.S. 57; 23 Cyc. 1161.) Even if the permit had been actually granted, it could have been revoked after the passage of the ordinance, if done with reasonable promptness and before the situation had been materially changed to the prejudice of the defendant. ( City of Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 184 N.W. 823, syl. P 2.)

The...