165 P.2d 280 | Or. | 1945
IN BANC. Action by Orin O. Page and Jenny Page, his wife, against the City of Portland and others to enjoin the enforcement of an amendatory zoning ordinance. From a decree declaring the ordinance void, defendants appeal.
AFFIRMED. REHEARING DENIED. This is a suit to enjoin the enforcement of an amendatory zoning ordinance of the City of Portland purporting to reclassify two lots, owned by the defendant Hughes, so as to permit their use for business purposes. The lots were formerly in Zone I, or a residential district. If the ordinance is sustained, they will be changed to Zone III, or a business district. The plaintiffs, who are home-owners in the residential district and whose property is 100 feet north of the north line of the lots in question, challenge the validity of the ordinance on the ground that it is an arbitrary and unreasonable exercise of police power. The ordinance is attacked on other grounds but, in view of the conclusion reached on the above issue, it will not be necessary to consider them. From a decree in favor of the plaintiffs that the ordinance is null and void, the defendants have appealed.
In 1924, the City of Portland enacted a comprehensive zoning ordinance dividing the municipality into four use districts, viz: Zone I, single family dwellings; Zone II, multiple dwellings; Zone III, business; and Zone IV, unrestricted. The ordinance is set forth in greater detail in Roman Catholic Archbishop ofDiocese of Oregon v. Baker,
On the southwest corner of this street intersection, there is a drug store, grocery store, and meat market, all of which are non-conforming uses, authorized prior to the enactment of the original zoning ordinance. There is a residence on the northwest corner of the intersection; the lots on the southeast corner are vacant. Aside from the above mentioned commercial enterprises, there are no business houses within a quarter of a mile of the intersection in question. There are, however, business houses on the perimeter of this large district on Broadway and the eastern part of Fremont Street.
We have adverted to the business conducted on the southwest corner of the intersection to show the actual conditions but, since these business activities existed prior to the enactment of the original zoning ordinances and are therein defined as non-conforming uses, such cannot be considered relative to the question as to whether there has been any substantial change in the character of the district.
On October 24, 1940, the defendant, Mrs. Hughes, filed a petition for a change of zone and it was referred to the Planning Commission which later reported *636 favorably thereon. On December 19, 1940, the petition was referred to the Commissioner of Public Works and was held by him, at the request of the petitioner, without action until May, 1942, when it was returned to the Council for consideration as a whole. The Council, in May of the same year, referred the petition again to the Planning Commission for further consideration and it reported that the petition should be denied. The Council, in July, laid the petition on the table. After a cooling period had expired, it was taken from the table in December, 1943, for further consideration. The ordinance, changing the zone, was finally passed by a majority vote on January 28, 1943. Mrs. Hughes during the course of the years filed three previous petitions to change the zone but all of them were denied. Indeed, ever since this residential district was created in 1924, it has been subjected to attempted invasion by commercial interests. The above recital of the history of this petition has not a great deal to do with the legal problems confronting the court, but it, at least, affords an interesting back-ground.
The plaintiffs contend that the change of zone is an arbitrary and unreasonable exercise of the police power and has no substantial relation to the public welfare. They assert that permission to use these lots for commercial purposes is contrary to the purpose and spirit of the comprehensive zoning plan of the city and will result in arbitrary discrimination between property owners similarly situated. They also contend that this change of zone constitutes a taking of their property without process of law.
Defendants assert that the amendatory ordinance is a valid exercise of the police power and that it is not practicable or feasible to use the lots for residential purposes. They also contend that there has been a *637 substantial change in the district adjacent to this street intersection and that the Council in the exercise of its wide discretion had the right thus to reclassify the property. Mrs. Hughes says in effect that to restrict the use of these lots to residential purposes is depriving her of any beneficial use thereof and constitutes a taking without due process of law.
Since the leading case of Village of Euclid, Ohio v.Ambler Realty Company, decided by the Supreme Court of the United States in 1926, reported in
Authority to zone or establish use districts was conferred upon the City of Portland and other municipalities by Chapter 300, Laws of Oregon for 1919, codified as § 95-2401 O.C.L.A., wherein the power thus delegated was, as stated therein, "for the public interest, health, comfort, convenience, preservation of the public peace, safety, morals, order and the public welfare." Establishing a residential district wherein *638
commercial enterprises are excluded tends, without doubt, to promote the public welfare. We may assume that the Council, in creating the residential district in 1924, had in mind the purposes recited in the above Enabling Act. The reasons for establishing residential districts are thus well summarized inState ex rel. Carter v. Harper,
"* * * they attract a desirable and assure a permanent citizenship; they foster pride in and attachment to the city; they promote happiness and contentment; they stabilize the use and value of property and promote the peace, tranquillity, and good order of the city."
Zoning, however, is not static. It changes with changed conditions and the complexities of a modern age. If the rule were otherwise, there could be no progress. A regulation concerning the use of property might be considered reasonable today whereas, under different conditions, would be deemed so arbitrary and unreasonable as to amount to confiscation. Clearly, a city has the power to amend a zoning ordinance from time to time, if there has been a substantial change of conditions and the amendment has some reasonable relation to the end sought to be attained, viz: furtherance of the public interests. Village of Euclid v. AmblerRealty Co., supra; Miller v. Board of Public Works
Property owners have no vested rights by reason of the enactment of an ordinance establishing use districts. No contractual relations are thereby created. Property is held subject to a valid exercise of the police power. We think, however, that a home owner has the right to rely on the rule of law that a classification made by ordinance will not be changed unless the change is required for the public good. Phipps v.City of Chicago, supra; Kennedy v. City of Evanston,
"If a general zoning ordinance is passed and persons buy property in a certain district, they have a right to rely upon the rule of law that the classification made in the general ordinance will not be changed unless the change is required for the public good."
While the City Council has wide discretion in enacting zoning ordinances, it has no right or authority to place restrictions on one person's property and by mere favor remove such restrictions from another's property. There must be reasonable ground or basis for the discrimination. In White'sappeal,
Defendants' contention that there has been a substantial change in the character of the district is based solely upon the increase of traffic at the intersection of 33rd Avenue and Knott Street. 33rd Avenue is a through street and leads directly to the ship yards and a large army air base. Traffic count taken during the war period discloses heavy traffic over such street. There is a red stop flash signal at the intersection. It is a loading place for passenger buses. It is believed, however, that the traffic condition is to some extent due to war activities and therefore is of a temporary nature. Be that as it may, there are many streets in residential districts of the city where traffic is equally heavy, and still many fine homes are maintained. If residential districts can be changed merely on account of increased traffic, there would be no certainty or stability to zoning. We conclude that this evidence in itself affords no reasonable ground for enactment of the amendatory ordinance.
It is true that the lots are far more valuable for business than for residential purposes, but that in itself is not a sound reason for permitting the change of use of the property. That the property has great value for business purposes is a matter for consideration but it is not controlling. We must also bear in mind the depreciation in value of other property in the district caused by the removal of the restriction. That Mrs. Hughes may profit at her neighbors' expense does not appeal to equity. A different question would *641 be presented if the restriction for residential use entirely deprived the owner of any beneficial use of the property. It is an exaggeration to say that these lots can never be used for residential purposes. There are only a few vacant lots in the district — seven of which are owned by the defendant Hughes and are in the same block as the lots in controversy. True, Mrs. Hughes had the right to refuse to sell her property for residential purposes, but if loss is sustained by reason of speculating on the removal of zoning restrictions, she has no just cause to complain.
Here, the Council have singled-out these lots in the heart of an exclusive residential district in its prime. The lots — excluding the non-conforming uses above mentioned — are entirely surrounded by the homes of people who desired to get away from the environment of business and industry. If this single intrusion of business is sustained, it will be merely the opening wedge for other commercial interests. It will result in a "commercial island" established in the center of one of the best residential districts in the City of Portland. We fail to see wherein the change has any substantial relation to the public welfare and therefore it is an arbitrary and unreasonable exercise of the police power. To sustain this amendatory ordinance would frustrate and destroy the purpose and plan of the original comprehensive zoning ordinance enacted in 1924, and under whose protection this district has developed.
Leahy v. Inspector of Buildings,
The books are replete with decisions concerning various phases of zoning, but there is no question more controversial than those arising out of an invasion of residential districts by commercial enterprises. It is impossible to reconcile the decisions. Courts are agreed, however, that zoning must be based upon a valid exercise of the police power, and whether it has been so exercised is subject of judicial review.
Appellants have cited numerous authorities, and it would greatly extend this opinion to discuss all of them. We will select those cases upon which appellants chiefly rely.
Arverne Bay Construction Company v. Thatcher,
Avery v. Village of La Grange, decided in 1943,
Chayt v. Maryland Jockey Club,
Having concluded that the evidence in this case discloses no reasonable ground for the exercise of the police power in enacting an amendatory ordinance, and that it has no substantial relation to the public welfare, it follows that the decree of the circuit court is affirmed. Plaintiffs are entitled to their costs and disbursements. *646