West v. Bank of Commerce & Trusts

• Decision Date: 26 April 1948
• Docket Number: No. 5724.,5724.
• Citation: 167 F.2d 664
• Parties: WEST et al. v. BANK OF COMMERCE & TRUSTS et al.
• Court: U.S. Court of Appeals — Fourth Circuit

167 F.2d 664 (1948)

WEST et al. v. BANK OF COMMERCE & TRUSTS et al.

No. 5724.

Circuit Court of Appeals, Fourth Circuit.

April 26, 1948.

Henry R. Miller, Jr., Asst. City Atty., of Richmond, Va. (J. Elliott Drinard, City Atty., of Richmond, Va., on the brief), for appellant City of Richmond.

R. Hugh Rudd, of Richmond, Va., for appellants Alice M. West and others.

Ralph T. Catterall and John J. Wicker, Jr., both of Richmond, Va. (Guy B. Hazelgrove, of Richmond, Va., on the brief), for appellees.

Before PARKER, SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

The owners of a lot of ground, located at the northeast corner of Chamberlayne Avenue and Lancaster Road in the City of Richmond at the dividing line between business and resident zones laid out by the municipal authorities, are endeavoring on this appeal to sustain a judgment of the District Court which permits the erection of a gasoline filling station on the southern half of the property, and the city and the owners of adjacent properties oppose the judgment on the ground that the maintenance of such a business would be a violation of a zoning ordinance of the city which is now in effect.

Upon an earlier appeal, West v. Bank of Commerce & Trusts, 4 Cir., 153 F.2d 566, we reversed a judgment in favor of the property owners on the ground that the controversy was moot. At that time we considered the effect of a declaratory judgment of the District Court entered on October 4, 1945, which stated the intent and meaning of a prior judgment of the District Court entered on February 19, 1942. The latter judgment was entered as the result of a compromise between attorneys representing the owners of the lot and attorneys representing the city, upon a stipulation of facts which declared that although a city ordinance passed in 1927 limited the use of the lot to residence purposes, the neighborhood had since changed to such an extent that the application of the ordinance to the southern half of the property did not tend to promote the public health, safety, morals, or general welfare of the community. Accordingly, the court declared that the application of the ordinance to the southern half of the lot was an unconstitutional exercise of the police power and enjoined the city from enforcing the ordinance insofar as it denied the owners the right to use the southern half of the lot in such manner as was permissible in a B-1 business district. The effect of the injunction was to move the boundary line between residence and business districts from Lancaster Road to the middle of the lot.

The owners were thus at liberty to proceed with the project but the war intervened and rendered it impracticable; and on May 19, 1943, before any action could be taken, a new zoning ordinance was passed which in some respects enlarged the uses to which property might be put in residence districts and restricted the uses to which it might be put in business districts. The lot in controversy was, however, retained in the residence zone. Nothing further was done until the end of the war was in sight and then on April 25, 1945 suit was brought for a judgment declaring that the judgment of February 19, 1942 was binding on the city and hence the owners were entitled to proceed with their project notwithstanding the passage of the ordinance of 1943. In this suit forty-eight owners of residential property in the neighborhood were allowed to intervene as parties defendant. After consideration of the matter, and without the taking of evidence, the court entered a declaratory judgment as prayed by the owners.

We reversed the judgment on the ground that the case presented only an abstract question and not an actual controversy calling for judicial decision, since the plaintiffs had failed to show a definite intention to use the lot at that time for any purpose forbidden by the ordinance, but, on the contrary, had admitted that it was not feasible on account of the war and might not be possible for years to come to erect a filling station on the lot.

That difficulty has since been removed and the controversy was renewed on April 11, 1946, when the property owners filed a petition or motion in the same case wherein they prayed the court to enjoin the city from enforcing the ordinance of 1943 in such a manner as to prevent the erection of a filling station on the lot. In the proceedings which followed, it was shown that the owners had sold the northern half of the lot for $5500 and had contracted to sell the southern half of the lot for $25,000 to an oil company on condition that a permit to use the premises for a filling station could be obtained; and it was further shown that the plaintiffs had applied to the Commissioner of Buildings of the City of Richmond for a building permit for such a station, but had been refused. Both sides offered evidence bearing upon the question whether the zoning of the lot for residence purposes was an arbitrary and unreasonable exercise of power in violation of the 14th Amendment. Witnesses for the plaintiffs, who were familiar with real estate in the city, testified that the property was useful only for business purposes, while witnesses produced by the city and the adjacent property owners who were familiar with the public works of the city and the purposes of the Planning Commission and zoning authorities of the city testified that the property was on the dividing line between business and residential neighborhoods, and that it was in the interest of the community to prohibit the maintenance of business properties north of that line. The District Judge did not determine whether the evidence required the conclusion that there was no reasonable ground for the classification of the lot in question for residential purposes; but he held that the plaintiffs were entitled to a permanent injunction against the city prohibiting the enforcement of the restrictions as to the southern half of the lot because the attorneys for the city had authority under the city charter to enter into the stipulation of facts and to consent to the decree of February 19, 1942. That decree, he held, was res judicata, binding both on the city and the intervenors, and he therefore decreed that the city should be perpetually enjoined from enforcing against the owners and their successors in title any zoning ordinance of the city so as to prevent them from using the southern half of the lot in such manner as was permitted in a B-1 business district under the ordinance of 1927, which...