172 Ga. 833 | Ga. | 1931
Lead Opinion
(After stating the foregoing facts.)
Section 8 of the zoning ordinance of the City of Savannah provides that “only residences, apartments, churches, schools, hotels, and hospitals shall be erected on lots fronting on Forsyth Park and Extension, Monterey Square, and Jasper Square, as said lots appear upon the present official map of said city.” The property of the plaintiff involved in this case is situated on the northeast corner of Park Avenue and Drayton Street. It consists of lot C and lot 15 in Cuthbert Ward. The combined property has a frontage of 70 feet on Park Avenue, and extends northward along Drayton Street 105 feet. The improvements on this property consist of a two-story frame dwelling, the entrance of which faces Park Avenue. The west side of this residence fronts on Drayton Street, which alone separates it from Forsyth Park Extension. On the rear of this property is a two-story frame outhouse, the entrance into which faces on Waldberg Street Lane, which is the northern boundary of the property. This building, like the residence, is separated from Forsyth Park Extension by Drayton Street alone. It is contended by the plaintiff that in these circumstances this property does not front upon Forsyth Park Extension, and that for this reason it does not come within the provisions of this zoning ordinance. We do not think that this contention is well founded. Any side or face of this property is the front thereof within the meaning of this provision of this ordinance. Property may front on one street only, or it may front on two streets. Where a lot, or combined lot, is a corner lot which faces on two streets, it fronts upon both of such streets. Re Dennick, 3 Ont. W. N. 1061; Waters v. Collins (N. J. Eq.), 70 Atl. 984; DesMoines v. Dawe, 31 Iowa, 89, 93. A lot which is separated from a park by a street alone fronts on such park. We are of the opinion that this property of the plaintiff falls within this provision of the ordinance.
In the next place it is insisted by counsel for the plaintiff that the trial judge erred in failing and refusing to find and ’adjudge that the effect of this zoning ordinance, if applied to her property under the facts of the case, amounted to depriving her of her property without due process of law, in violation of the due-process clauses of the constitution of this State and of the Federal constitution ; and because it amounted to the taking of her property for public purposes without just and adequate compensation being first
This court has, in several cases, passed upon the constitutional validity of zoning statutes and ordinances. In Smith v. Atlanta, 161 Ga. 769 (132 S. E. 66), this court dealt with the act of August 4, 1921 (Acts 1921, p. 665), which authorized the mayor and council of Atlanta to pass an ordinance “zoning the city for the purpose of regulating the location of trades, industries, apartment-houses, dwellings,” etc.; and we held that this provision of that act and the ordinance passed in pursuance thereof violated the due-process clauses of the State and Federal constitutions, and were therefore void in so far as they authorized the municipal authorities to prohibit the building of stores in districts which had been established as residential sections. In that case this court declared that its decision was “not to be construed as a holding upon other
Our decisions upon this subject are in harmony with the decisions of other courts. Formerly statutes or ordinances which sought to create residence districts from which all business buildings were to be excluded would not have been sustained as coming within the police power, and the same would have been denounced as unconstitutional and void because they deprived owners of their property without due process of law. In re Jacobs, 98 N. Y. 98 (50 Am. R. 636); People v. Chicago, 261 Ill. 16 (103 N. E. 609, 49 L. R. A. (N. S.) 438, Ann. Cas. 1915A, 292); St. Louis v. Dawe, 145 Mo. 466 (41 S. W. 1094, 42 L. R. A. 686, 68 Am. St. R. 575); Calvo v. New Orleans, 136 La. 480 (67 So. 338).; State v. Houghton, 124 Minn. 226 (158 N. W. 1017, L. R. A. 1917F, 1050); Willison v. Cooke, 54 Colo. 320 (130 Pac. 828, 44 L. R. A. (N. S.) 1030); People v. Roberts, 153 N. Y. Supp. 143; Spann v. Dallas, 111 Tex. 350 (235 S. W. 513, 19 A. R. E: 1387); Fitz
The courts have, however, for some time been taking more and more liberal views of the zoning power; and there are cases where it was decided that the police power is broad enough to exclude business buildings from residential districts. DesMoines v. Manhattan Oil Co., 193 Iowa, 1096 (184 N. W. 823, 188 N. W. 921); In re Opinion of Justices, 234 Mass. 597, 127 N E. 525; State v. New Orleans, 154 La. 271 (97 So. 440, 33 A. L. R. 260); State v. New Orleans, 154 La. 278 (97 So. 445); State v. Harper, 182 Wis. 196 (33 A. L. R. 269); Schait v. Senior, 97 N. J. L. 390 (117 Atl. 570); Ware v. Wichita, 113 Kan. 153 (214 Pac. 97); People v. Board, 234 N. Y. 484 (138 N. E. 416); Holzbauer v. Ritter, 184 Wis. 35 (198 N. W. 852); Zahn v. Board, 195 Cal. 497 (234 Pac. 388); Blumenthal v. Cryer, 71 Cal. App. 668 (236 Pac. 216); West v. Wichita, 118 Kan. 265 (234 Pac. 978); Spector v. Building Inspector, 250 Mass. 63 (145 N. E. 265); Brett v. Building Comr., 250 Mass. 82 (145 N. E. 269). In Miller v. Board of Public Works, 195 Cal. 477 (234 Pac. 381, 38 A. L. R. 1479), a new principle seems to have been introduced, the California court holding that “The establishment of strictly residential districts by zoning ordinances may be justified because it is for the protection of the civic and social values of the American home.” Many other
This brings us to consider the bearing upon the case now sub judice of the amendment to the constitution of this State, which was proposed to the qualified voters in 1927 (Ga. L. 1927, p. 127), and thereafter adopted by them, and whicli provides that “The General Assembly of the State shall have authority to grant to the governing authorities of the cities of Atlanta, Savannah,” and other named cities, “and cities having a population of 25,000 or more inhabitants according to the United States Census or any future census, authority to pass zoning and planning laws whereby such cities may be zoned or districted for various uses and other or different uses prohibited therein, and regulating the use for which said zones or districts may be set apart, and regulating the plans for development and improvement of the real estate therein.” This amendment further gives to the General Assembly authority to authorize the cities named “to pass zoning and planning laws.” So we have in the constitution as now amended both the due-process clause and this zoning provision. They must be construed together. In view of this amendment it can not longer be held that a zoning statute, which authorizes a city embraced within it, to pass a zoning and planning ordinance, is per se unconstitutional and void because it deprives the owner of real estate of his property without due process of law. This constitutional provision supersedes the decisions of this court which declared zoning statutes unconstitutional and void because they denied due process of law to the owners of real estate embraced in zoning districts. By the act of August 26, 1929, amending the charter of the City of Savannah, it is provided “that the Mayor and Aldermen of the City of Savannah shall have authority to enact zoning and planning laws whereby such city, and also its environs within the limits of Chatham County, may be zoned or districted for various uses and other or different uses prohibited therein, and regulating the uses for which
This brings us to determine whether, under the amendment to the constitution of this State and the statute enabling the city to pass a zoning and planning ordinance, the above provision of the zoning ordinance passed by the city is void because it is arbitrary and unreasonable when applied to the property of the plaintiff under the facts of this case. The charter of the city does not undertake to fix the provisions of the zoning ordinance which it authorizes the mayor and council of the city to pass. The ordinance in this ease is based upon a general power granted by the charter of the city. A municipal ordinance based oar a general power in a charter of a city must be reasoaaable. Mayor &c. of Savannah v. Cooper, 131 Ga. 670 (63 S. E. 138). Municipal ordinaaaces must be reasonable. The limitations of the power of the city council in this regard are aaot to be measured by the more extensive powers of the State legislature. Atlantic Postal Tel. &c. Co. v. Savannah, 133 Ga. 66 (65 S. E. 184). An ordinance pray be unreasonable or arbitrary, and if.itds unreasonable or arbitrary it will be declared void and unenforceable. Western &c. R. Co. v. Young, 81 Ga. 397 (7 S. E. 912, 12 Am. St. R. 320); Loeb v. Jennings, 133 Ga. 796. The reasonableness or unreasonableness of a city zoning and planning ordinaaace is a questioaa of law for the court to decide, unless it depends on the existence of particular facts which are disputed,
Does this provision of the zoning ordinance violate the due-process clause of the 14th amendment to the constitution of the United States? The Supreme Court of the United States has made a number of decisions which hold to the contrary of the proposition that zoning ordinances in general are unconstitutional and void because they deny due process to the owners of land. That court has laid down a number of propositions which are pertinent to the decision of the question in this case. If the validity of the legislative classification be fairly debatable, the legislative judgment must be allowed to control. The police power generally supports an ordinance forbidding the erection in designated residential districts of business houses, retail stores, shops, and other like establishments; and such ordinances, apart from special applications, can not be declared arbitrary and unreasonable, and without substantial relation to the public health, safety, morals, or general welfare. Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (47 Sup. Ct. 114, 54 A. L. R. 1016). Again, the Supreme Court of the United States has laid down these propositions : A zoning ordinance dividing the City of Los Angeles into five building districts, and prescribing the lines of buildings that may be erected in each district, was held constitutional in its general scope, and not violative of the due-process or equal protection clauses as applied in the case under consideration. In that case the plaintiff’s lot was in a zone limited by the ordinance to buildings for residences, churches, private clubs, educational purposes, etc., which ordinance excluded buildings for private business purposes other than physicians’ offices. The value of the lot of the plaintiff in that case would have been much enhanced if it could be used for business purposes, for which it was favorably situated. Other property in the zone was largely restricted by covenant to residential uses. The entire neighborhood at the time of the ordinance was largely unimproved, but in course of rapid development. The conclusion of the city council, on these and other facts, that the public welfare would be promoted by establishing the zone could not be adjudged clearly arbitrary or unreasonable, and the court would not in such circumstances substitute its judgment
The case at bar is different from Nectow v. Cambridge, 277 U. S. 183 (48 Sup. Ct. 447). In that case the master to whom the controversy was referred found that no practical use could be made of the land in question for residential purposes; and that embracing the plaintiff^ land in the residential district would not promote the health, safety, convenience, and general welfare of the inhabitants of that part of the city. In the case at bar it can not be held that this zoning ordinance clearly bears no relation to the public health, safety, convenience, and general welfare. In determining whether this zoning ordinance offends the due-process clause of the 14th amendment to the Federal constitution, we are governed by the decisions of the Supreme Court of the United States on this question. That court is the final arbiter of such question.
So we reach the conclusion that .the trial judge reached the proper conclusion in denying a mandamus absolute requiring the grant of a permit to the plaintiff to build a filling-station upon her property.
Judgment affirmed.
Dissenting Opinion
dissenting. I concur in the rulings in headnote 1 and the corresponding division of the opinion, on the incidental or preliminary questions. I also concur in substantially all of the general principles stated in the majority opinion, but dissent from some of the inferences drawn therefrom, and also from the Tesult reached. It might be useful to state at the outset a number of general principles which are deemed not fairly open to debate, and which do not require citation of authority.
1. Courts are not concerned with the wisdom and advisability of legislation. Courts will not declare a statute or an ordinance invalid because of constitutional conflict, unless such conflict is clear
2. The sovereign State possesses inherently, and without constitutional or statutory provision, the right of self-preservation, which is called “police power,” and this power may be delegated to municipalities by appropriate legislation.
3. The definition or the extent of police power has never been adjudicated. All efforts to do so have been held to be incomplete and limited by the facts of each particular case.
4. Under police power, property may be taken or damaged without payment of compensation, but such power is not unlimited.
5. The exercise of such power must bear a substantial relation to the public health, safety, morals, and general welfare of the public. It must be reasonable and not arbitrary. What is reasonable is for the court to decide.
6. “Due process of law in each particular case means, such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.” Cooley’s Con. Lim. (8th ed.) 741; 12 C. J. 1188, § 956 and cit.
7. When the constitution of the State or of the United States is duly amended, such amendment takes its appropriate place among the other provisions therein contained, the whole to constitute the fundamental charter. All of the different provisions must be harmonized, if practicable.
8. If an amendment duly adopted necessarily conflicts with some previous provision, the amendment, being the last expression of the sovereign will of the people, will prevail as an implied modification pro tanto of the former provision. The constitution of Georgia was duly amended in the year 1927. That amendment provided that the City of Savannah and other named cities in Georgia should have “authority to pass zoning planning laws whereby such cities may be zoned or districted for various uses and other or different uses provided therein, and regulating the use for which said zones or districts may be set apart, and regulating the plans for development and improvement of real estate therein. The General Assembly is given general authority to authorize said municipalities to pass zoning and planning laws.” Ga. Laws
While constituted authorities have the right to restrict property rights, it must be done in accordance with the “law of the land.” The owner must receive notice and be given an opportunity to be heard. The exercise of the power must bear a reasonable relation
When the government, State or municipal, takes away from the property owner the right to so improve his property in his own way, his property has been to a degree taken or damaged. Courts and text-writers have, without exception so far as I am aware, agreed that the right to use and develop one’s property as the owner may
Applying the principles above stated, the exercise of the power
It may not be out of place to make some reference to the arguments used in the majority opinion. In the opinion written by Mr. Justice Hines lie states: “The courts have, however, for some time been taking more and more liberal views of the zoning power; and . . a new principle seems to have been introduced, the California court holding that ‘the establishment of strictly residential districts by zoning ordinances may be justified because it is for the protection of the civic and social values of the American homed” I must confess that I am stumped by the expression that such “ordinances may be justified because it is for the protection of the civic and social values of the American home.” Whatever that may mean, it would seem to be'sufficiently elastic to permit to be done whatever the court may by “construction” so decree. Yerily, property rights, under that rule, rest upon frail support. No one in this day contends that the right of private ownership of property is absolute. If held, it must be so used as not to injure un
