Kroner v. City of Portland

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] IN BANC.

REVERSED. Claiming to be the owners of two lots covering a space of 100 feet square at the southeast corner of East Thirteenth and Pine Streets in Portland, Oregon, the plaintiffs have brought this suit against the city and the mayor and commissioners composing the city council to restrain them from interfering with the plaintiffs in their construction of a building on the premises mentioned. In the complaint they quote three admitted sections of the city ordinance in force at the beginning of the suit whereby buildings erected, used, occupied or altered for occupancy in certain industries, including creameries employing over five persons, should be restricted to location. They avow that they intend to construct a building to be used for such a creamery and retail store. The ordinance, as quoted, prescribes that no such building shall be erected until a permit therefor shall have been approved by the council. Another section requires that an application for such a permit shall be accompanied by a plan giving location of the building in question together with all buildings within a radius of 200 feet from the building and giving also the names and addresses of the owners of such buildings. Provision is made for notification and hearing of protests, and it is said in the ordinance that

"The granting of the application for permit will not be approved by the Council wherever it appears that the granting of the same is or may be detrimental to public health or safety or detrimental to the welfare and growth of the city."

The complaint avers:

"That the said Plaintiffs have conformed to the said ordinance in every way with respect to the provisions thereof relating to securing permission from the City Council to construct the said building in the following manner: that is, the said Plaintiffs made application to the said Council on or about May 12th, 1924, for permission to construct a building on the said premises and such as has heretofore been described, and thereafter the said council pursuant to the said ordinances had a hearing on the said application, and thereafter notified the said Plaintiffs that the application for permission to erect and maintain a building for a proposed creamery and retail store on the above described premises and filed in the office of the said Council, had been refused and denied, and it is further averred in this connection, that the said Defendants above, do refuse and have refused to issue any permit, and have threatened and are threatening the said Plaintiffs with legal proceedings if they start to construct the said building."

The quoted sections of the ordinance are admitted by the answer, which otherwise traverses most of the complaint. Further answering, the defendants set up various sections of ordinances relating to the erection of buildings in the city, providing among other conditions, that an application for permit shall be accompanied by two sets of plans and specifications covering the work as required by the building code and going into particulars as to the nature of the plans and specifications. The answer also points out that by virtue of one of the sections quoted in the complaint no building of the kind proposed by the plaintiff shall be erected in a residential district and that the term "residential district" applies to property having at least 7 per cent of the buildings on both sides of the street on which the property fronts between the nearest intersecting streets designed for and used as single or two family residences, and as measured by that standard the place in which plaintiff proposes to erect his building is in a residence district. It is averred in the answer that the application for permit was not accompanied by any plans or specifications or other documents whatever showing the method of the construction of the proposed building. The denial of the permit is admitted. The reply denies the averments of the answer except as they admit the allegations of the plaintiff's complaint.

A supplemental answer sets up that after the filing of the complaint and answer, what may be called for convenience, a zoning ordinance, was enacted by the legal voters of the city on November 4, 1924, by the initiative process. Later on the plaintiffs filed a supplemental complaint in which the zoning ordinance is averred and set forth by copy concerning which the supplemental complaint alleges:

"The said Plaintiffs have conformed in every respect with the Zoning ordinance and have requested of the defendants authority to construct such a building as that described in the original complaint but the same has been refused.

"The Plaintiffs say that the said zoning ordinance adopted as aforesaid is null and void and of no effect and contravenes the 14th amendment of the Federal Constitution and also section 10 and section 18 of the Constitution of the State of Oregon, in that the said provisions of the said zoning ordinance in so far as applicable, deny to the plaintiffs due process of law, and constitutes a taking of their property without compensation, and denies them the equal protection of the laws.

"That under such zoning ordinance and by the defendants, the plaintiffs are prohibited from building such a creamery building as that described in the original complaint on the premises described in the said original complaint, and further the said zoning ordinance by its own terms prohibits the erection of the proposed building mentioned in original complaint on the premises mentioned in question."

The answer to the supplemental complaint denies the allegations thereof, except the enactment of the zoning ordinance.

The Circuit Court adjudged that enactment to be void and unconstitutional and entered a decree enjoining the defendants from interfering with the plaintiffs in the erection of the proposed building, and the defendants have appealed.

In passing, it may be noted that in the main, the various complaints state nothing more than conclusions of law in that they aver in general terms that the plaintiffs have conformed to the ordinances. Good pleading in the matter requires that they should state with precision what they have done, pleading also the ordinance so that the court could determine as a matter of law whether the plaintiffs had indeed conformed to the city law.

The Legislative Assembly of 1919 enacted a general law entitled:

"An Act to provide for the establishment within municipalities of districts or zones within which the use of property, height of improvements and required open spaces for light and ventilation of such buildings may be regulated by ordinance, and providing that the council may establish a penalty for the violation of such ordinance." Laws 1919, Chap. 300.

A condensed resume of the ordinance involved in this suit is here set down. It is entitled:

"An Ordinance dividing the City of Portland into four districts, prescribing the uses to which property in such districts may be put or used, providing for the establishment of building set-back lines, providing a penalty for violation thereof, and repealing all ordinances or parts of ordinances in conflict therewith."

The ordinance is comprehensive and includes all the territory within the boundaries of the city which is divided into classes as follows: Class I. Residential District: For single family dwellings with appurtenances such as a garage having not more than three motor vehicles, summer house, pergola and greenhouse, all for private use. Class II. Residential District: For single and two family dwellings, flats, apartment houses, boarding-houses, hotels, multiple dwellings and the like. Class II. Special Temporary Residence District: For temporary residences for period of two years, etc. Class III. Business District: General assemblage buildings such as assembly halls, auditoriums, churches, theaters and similar uses. Also certain business purposes such as hotels, stores, offices, restaurants and many others. Likewise public buildings, including courthouses, schools, libraries, hospitals and others, apartment houses, lodging-houses, clubs, etc. Class IV: Unrestricted District: All uses allowed or optional or prohibited in other districts subject to general ordinances of the city are permitted. Boundaries of districts are to coincide with streets, alleys or lot lines. Buildings and uses thereof in existence at the passage of the ordinance not conforming thereto are protected and allowed in any district except as against change, enlargement or 90 per cent destruction by fire. Provision is made for change of business or installation of prohibited business of certain kinds subject to local option of property holders. Boundaries of districts may be changed or the ordinance amended by council after compliance with certain conditions about public hearings, remonstrances, etc. It is said in Section 15:

"The provisions of this ordinance shall be held to be the minimum requirements for the preservation of public safety, health, convenience, comfort, prosperity and general welfare of the people of the City of Portland."

Without dispute, the site of the proposed building is within a district where a structure to be used as a creamery employing over five persons is forbidden. Passing the criticism upon the complaints, that they state only conclusions of law and not facts from which a court can deduce any legal result, we address ourselves to the merits of the zoning ordinance as quoted in the supplemental complaints. At the outset, referring to Section 15, already quoted, as stated inCamas Stage Co., Inc., v. Kozer, 104 Or. 600, 606 (209 P. 95, 25 A.L.R. 27):

"We hold that — ``The declared purpose of the act is to be accepted as true, unless incompatible with its meaning and effect.' White Dental Mfg. Co. v. Commonwealth, 212 Mass. 35 (98 N.E. 1056, Ann. Cas. 1913C, 805, 808); citing Hazen v.Essex Co., 12 Cush. (Mass.) 475; Flint v. Stone Tracy Co.,220 U.S. 107, 145, (55 L. Ed. 389, 31 Sup. Ct. Rep. 342, Ann. Cas. 1912B, 1312)."

The testimony shows that the property of the plaintiffs formerly had been occupied only by a church which had been partially destroyed by fire. They had purchased it in that condition and had not put it to any other use. It is not an instance where they have a vested use of the property, such as described in City of Portland v. Yates, 102 Or. 513 (199 P. 184, 203 P. 319). In an opinion written by Mr. Justice BEAN in that case we are informed that the defendant had applied to the city authorities and had been granted the privilege under its then existing ordinances, to erect an electric sign upon a building occupied by himself. He put up the sign at considerable expense and at the time the action was begun it was secure and safe and did not interfere with the rights or convenience of anyone and so its maintenance had become a quasi vested right. After the sign had been installed, an ordinance was enacted changing the regulation of such signs in minor immaterial particulars and it was held to be an arbitrary and void exercise of the police power because it had no relation to the peace, health, safety or welfare of the city or its people. Here no such situation is presented. In advance of any use of the property by the plaintiffs in the manner proposed, the people of the city enacted the zoning ordinance and the question is whether that legislation is valid or void.

It may be premised that injunction is a proper remedy to prevent the enforcement of void legislation: Sandys v.Williams, 46 Or. 327, (80 P. 642); Spaulding v. McNary,64 Or. 491 (130 P. 391, 1128); Sherod v. Aitchison, 71 Or. 446 (142 P. 351, Ann. Cas. 1916C, 1151); Chan Sing v.Astoria, 79 Or. 411 (155 P. 378); Winslow v. Fleischner,110 Or. 554 (223 P. 922), in which last case Mr. Justice COSHOW points out the scope of equity powers in such cases, notwithstanding there may be some remedy at law.

The general rule relating to local regulation concerning the use of property for business purposes in thickly inhabited cities is aptly stated by Mr. Justice PITNEY in Reinman v. City ofLittle Rock, 237 U.S. 171 (59 L. Ed. 900, 35 Sup. Ct. Rep. 511), thus:

"While such regulations are subject to judicial scrutiny upon fundamental grounds, yet a considerable latitude of discretion must be accorded to the law-making power; and so long as the regulation in question is not shown to be clearly unreasonable and arbitrary, and operates uniformly upon all persons similarly situated in the particular district, the district itself not appearing to have been arbitrarily selected, it cannot be judicially declared that there is a deprivation of property without due process of law, or a denial of the equal protection of the laws, within the meaning of the Fourteenth Amendment." Citing many precedents.

The exercise of the police power is a matter of legislation and the courts cannot interfere with such expressions of the power unless it is shown that it is purely arbitrary or that the legislation has no connection with or bearing upon legitimate objects sought to be attained. It is plain that governmental agencies entrusted with the police power, as the City of Portland is, can enact laws regulating the use of property for business purposes. Otherwise it would be permissible to erect a powder-mill on the site of the Hotel Portland or to install a glue factory next to the city hall or to erect a boiler-shop adjacent to the First Congregational Church. Such things would be legitimate but for the restraint of the police power. The difference between such instances and the present contention is in degree and not in principle.

Applied to the present situation, it is very clear that a creamery, with its boilers, milk cans, delivery trucks, processes of manufacturing, and fire risks of the business, requires treatment in the way of regulation different from that appropriate to a mere private dwelling. In other words, there is a fair basis of classification. It is not for us to say in exercise of judicial authority whether or not those reasons are such as would control us if we were enacting an ordinance. That is a matter to influence the legislative power, and if a classification can be made resting upon just principles it is a valid exercise of the police power.

The property of the plaintiffs is not taken. They have precisely the same estate that they had before. All that the people of Portland have said is, that within certain districts certain businesses shall not be carried on and the property situated therein shall not be used for such undertakings. It is far more convenient and conducive to the welfare of the city that enterprises of certain kinds shall be located in certain districts than to have them scattered promiscuously throughout the municipality. It makes the administration of the regulations less expensive and hence easier upon the taxpayer for one thing. It is pointed out also in the testimony as illustrating this that lighter pavement is sufficient in purely resident districts than in parts of the city where manufactories are carried on, and that the fire risk is increased in such places over that of purely residence districts.

In brief, the people of the city have exercised their legislative discretion in the application of the police power. They have not singled out the plaintiffs as special objects of that legislation, but have treated all alike, including the whole city in the operation of the ordinance and have undertaken only to regulate the use of property and not to deprive owners of any part of their estate therein.

There is no dispute about the facts. All the testimony portrayed a contest that ought to have been carried on at the hustings. The effort of the plaintiffs was to show that the residences in that district were old and dilapidated, and that within a few blocks there were other manufacturing institutions. The defendants introduced testimony to the effect that the residences were in good repair and constituted a great majority of the buildings in that vicinity and that near by were various public schools which would be prejudiced by the advent of manufacturing establishments. Such things cannot affect the administration of the ordinance. The ordinance itself is an accomplished fact. The contest against its passage was foreclosed by the election. It is within the police power of the city. It is general in its application and the classifications promulgated are founded on reasonable distinctions. The case ought to have been settled on demurrer. The ordinance being in our judgment a valid exercise of the police power, the decree of the Circuit Court is reversed and the suit is dismissed.

REVERSED AND DISMISSED.

BEAN, BROWN, COSHOW and BELT, JJ., concur.