West Bros. Brick Co. Inc v. City Of Alexandria

• Decision Date: 23 September 1937
• Court: Virginia Supreme Court
• Parties: WEST BROS. BRICK CO., Inc. v. CITY OF ALEXANDRIA.

192 S.E. 881

WEST BROS. BRICK CO., Inc.

v.CITY OF ALEXANDRIA.

Supreme Court of Appeals of Virginia.

Sept. 23, 1937.

BROWNING, J., dissenting.

Appeal from Circuit Court of City of Alexandria; Walter T. McCarthy, Judge.

Suit by the West Brothers Brick Company, Incorporated, against the City of Alexandria, Virginia. From an adverse judgment, the complainant appeals.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

John S. Barbour, of Fairfax, for appellant.

Carl L. Budwesky, of Alexandria, and Thomas B. Gay, of Richmond, for appellee.

HOLT, Justice.

West Brothers Brick Company, Inc., appellant here and complainant below, contends that it has a right to mine and remove a bed of clay on a certain tract ofland owned by it and lying within the corporate limits of the city of Alexandria. The city contends that this company has no such right and refuses to permit the prosecution of that proposed undertaking. An injunction was sought and refused; hence this appeal.

This lot is an eighteen-acre tract practically undeveloped, triangular in shape, bounded on the south by First street, on the west by Henry street, on the northwest at the apex of the triangle by the property of the Richmond, Fredericksburg & Potomac Railroad, and on the northeast and east by the Washington and Alexandria Road, sometimes known as the Old Georgetown Road.

To the east and one block from its eastern apex runs the Mount Vernon Memorial Boulevard. All of the land lying to the south between it and the center of the business section of the city, distant nine blocks away, has been set apart for residential purposes.

The West brothers were brickmakers and had for many years followed that vocation at their plant in what is now known as Arlington county, Va. That business was taken over by the plaintiff corporation on May 20, 1902, which since then has been making both brick and hollow tile. It is art undertaking of moment. In 1926 it was greatly enlarged and now represents an investment of about a half million dollars and has a pay roll on which are between two and three hundred men. The plant itself is about two miles from the city limits and about four miles from the lot in controversy. This company owned and owns about one hundred and thirty acres of clay land, but in 1927, anticipating that their supply of raw material might some day be exhausted, it commenced a quest which turned out to be successful and located this lot, on which there is a bed of clay from eight to fourteen feet deep, suitable for its purposes and well adapted to the making of high-class tile. It was carefully inspected and then purchased at the price of $47,000. At that time about 20 per cent. of that lot lay within the city limits, the balance being in the county. More than a year after this purchase these limits were extended. This extension went into effect on January 1, 1930, and includes all of this eighteen-acre lot.

It seemed desirable to the city that there be established within its limits certain zones or territorial sections to be set apart for certain designated uses. To that end it secured the services of Irving C. Root, city planner for the Maryland National Capitol Park & Planning Commission, and an expert with twenty years' experience in work of this kind. He was employed to prepare, and undertook to prepare a comprehensive zoning plan, showing property adapted to residential, commercial, and industrial uses, and in conjunction with a commission appointed for the purpose was engaged in this work for about a year. There were public hearings held by it and one at least by the mayor and city council, after which and on July 25, 1931, that council, acting under authority of chapter 122A of the Code, sometimes known as the Enabling Act (Acts 1926, c. 197, as amended by Acts 1930, c. 205), adopted a comprehensive ordinance, known as Zoning Ordinance 109; the plan adopted being substantially that recommended by its commission. This plan thus adopted classified all of appellant's eighteen-acre tract as residential except a 100-foot strip which bordered on Henry street and which was set apart for industrial uses.

This situation continued without protest until the latter part of 1934, when appellant petitioned the city council to rezone its land to the end that it might all be classed as industrial--this in order that it might obtain permission to begin excavation of its underlying clay bed. At that hearing counsel for the Brick Company appeared on its behalf. Relief was resisted by A. S. Doniphan, an adjoining property owner. Written protests were also received from the Alexandria Chamber of Commerce and the Sixth Ward Citizens Association. Petitioner's request was denied by a vote of six to three. Thereafter and on July 1, 1935, the bill in this cause was filed, its prayer being that a declaratory decree be entered quieting the right and title of said complainant to the use of its premises and enjoining the city and its officials from interfering therewith. It was heard on depositions, answer, and exhibits; the court, upon consideration thereof, being of the opinion that complainant was not entitled to the relief prayed for, did so decree.

Evidence for the complainant shows, or tends to show, the following facts:

This land, sometimes spoken of as the Taylor land or lot, was, to the extent that it was used at all, used as farm land when purchased by petitioner. On it were five or six residential buildings of little value; nor had there been any residential develop-ments of moment in its neighborhood. Mr. West, president of the plaintiff company, tells us of conditions:

"To the west is a large ice manufacturing plant and to the south of that was a lumber yard and mill plant; to the east there were some small stores, as I remember, sort of a roadside stand selling groceries and eatables, such as motorists would stop and buy. To the south was a warehouse, I think known as Janney's Warehouse, and also there are other small industries in the immediate vicinity. I might state there was also a colored settlement immediately south of this property consisting largely of some very dilapidated types of colored dwellings. I might also state there is a railroad track along the Washington-Alexandria roadway between the highway and this property line, which railroad track, I think, connected with the Janney's Warehouse."

A number of other witnesses, among them Mr. Ezra, a member of the zoning commission, has testified. The substance of their evidence is that this land is better suited for industrial than for residential purposes and that there has never been any real residential development in its immediate vicinity. We have seen that four blocks along its western edge, fronting on Henry street and which lie between it and the Potomac yards, were set aside for industrial purposes and are not involved in this litigation.

Both brick and tile are made. For the latter a more plastic clay is necessary. This necessary characteristic appears in the underlying stratum on the Taylor lot and makes it valuable. Its gross value has been placed at $18 a cubic yard. From this, of course, must be deducted all costs incident to its use. If its use is forbidden, that part of plaintiff's plant devoted to that work must some time be abandoned, unless other available supplies can be uncovered; but it is also true that this deposit was neither relied upon nor known when the tile plant and kilns were built.

So far as this testimony deals with existing conditions as distinguished from opinions, it has not been seriously questioned.

For the city, Mr. Allwine, manager for the Portner properties, testified: That estate has large holdings in Alexandria, one of which is a lot east of this Taylor land and separated from it by the Washington and Alexandria Road. That lot, this wit ness thinks, is valuable for residential purposes, but that such value would be wholly destroyed if the Brick Company be permitted to develop its property in the manner desired. Negotiations for the sale of the Portner property to Mr. Hillegeist at the price of $42,000 are now under way. He represents a number of men who plan to build on it an apartment to consist of thirteen units, together with an underground garage which will accommodate 104 cars, all at a cost of something under $2,000, 000. This proposed development would be seriously affected if the Brick Company's plans are carried out.

Mr. Root, another witness for the city, is a city planner with twenty years' experience. He was employed by Alexandria and worked with its zoning commission for about a year. Existing conditions were studied and future possibilities were considered, based upon the center of population, traffic lanes, transportation facilities, etc. Public hearings were had, and the conclusion was reached that a residential development here was most desirable; one of the features considered being the proximity of the Mount Vernon Memorial Boulevard. Speaking of that factor, he said:

"It was one of the factors, because the agreement between the City and the Federal Government regarding the development of that Memorial Boulevard called for its residential use, and being protected for residential use and undoubtedly available for structures of a high character, it was assumed by myself that the influence of that high residential character would extend a considerable distance in that direction from the Memorial Boulevard."

He also tells us why those lots fronting on Henry street were classed as industrial:

"The property, the portion of this West Brothers property facing the ice plant, which is zoned industrial, should also be zoned industrial because it would be obviously unfair to say that one side of the road should be zoned industrial and the other side should be denied a similar use, but that is only for the depth of the frontage actually facing on the ice company property; and the city plan...