Village of Euclid v. Ambler Realty Company

1. A suit to enjoin the enforcement, of a zoning ordinance with respect to the plaintiff's land, need not be preceded by any application on his part for a building permit, or for relief under the ordinance from the board which administers it, where the gravamen of the bill is that the ordinance of its own force operates unconstitutionally to reduce the value of the land and destroy its marketability, and the attack is not against specific provisions but against the ordinance in its entirety. P. 386.

2. While the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. P. 386. [p366]

3. The question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined by considering the building or the thing, not abstractly but in connection with the circumstances and the locality. P. 387.

4. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. P. 388.

5. No serious difference of opinion exists in respect of the validity of laws and regulations fixing the height of buildings within reasonable limits, the character of materials and methods of construction, and the adjoining area which must be left open, in order to minimize the danger of fire or collapse, the evils of over-crowding, and the like, and excluding from residential sections offensive trades, industries, and structures likely to create nuisances. P. 388.

6. The same power may be extended to a general exclusion from residential districts of all industrial establishments, though some may not be dangerous or offensive; for the inclusion of a reasonable margin to insure effective enforcement will not put upon a law, otherwise valid, the stamp of invalidity. P. 388.

7. The power to relegate industrial establishments to localities separate from residential sections is not to be denied upon the ground that its exercise will divert a flow of industrial development from the course which it would follow and will thereby injure the complaining land-owner. P. 389.

8. The police power supports also, generally speaking, an ordinance forbidding the erection in designated residential districts, of business houses, retail stores and shops, and other like establishments, also of apartment houses in detached-house sections-since such ordinances, apart from special applications, can not be declared clearly arbitrary and unreasonable, and without substantial relation to the public health, safety, morals, or general welfare. P. 390.

9. Where an injunction is sought against such an ordinance, upon the broad ground that its mere existence and threatened enforcement, by materially and adversely affecting values and curtailing the opportunities of the market, constitute a present and irreparable injury, the court, finding the ordinance in its general scope and dominant features valid, will not scrutinize its provisions, sentence by sentence, to ascertain by a process of piecemeal dissection whether there may be, here and there, provisions of a minor character, or relating to matters of administration, or not shown [p367] to contribute to the injury complained of, which, if attacked separately, might not withstand the test of constitutionality. P. 395.

297 Fed. 307, reversed.

from a decree of the District Court enjoining the Village and its Building Inspector from enforcing a zoning ordinance. The suit was brought by an owner of unimproved land within the corporate limits of the village, who sought the relief upon the ground that, because of the building restrictions imposed, the ordinance operated to reduce the normal value of his property, and to deprive him of liberty and property without due process of law.

Mr. James Metzenbaum for the appellants.

The police power is very wide, C. B. & Q. Ry. v. Drainage Commrs., 200 U.S. 561; Munn v. Illinois, 94 U.S. 113, and adequate to meet new conditions, Bacon v. Walker, 204 U.S. 317; Hadachek v. Los Angeles, 239 U.S. 394; Sligh v. Kirkwood, 237 U.S. 52; Barbier v. Connolly, 113 U.S. 27; Gundling v. Chicago, 177 U.S. 183; Bank v. Haskell, 219 U.S. 104. Legislation under it is presumptively legal. Sinking Fund Cases, 99 U.S. 718; Powell v. Penn, 127 U. S. 684. Courts will not assume the function of the legislative branch, Barbier v. Connolly, supra. To be unconstitutional, the legislation must have no relation to health and welfare. Cusack Co. v. Chicago, 242 U.S. 526; Salt Lake City v. Foundry Co., 55 Utah 452; State v. Withnell, 91 Neb. 513; Armour & Co. v. North Dakota, 240 U.S. 510. Unconstitutionality must be plainly and palpably clear. Jacobson v. Massachusetts, 197 U.S. 11; Cusack Co. v. Chicago, supra. The law must be plainly and manifestly unreasonable, Cusack Co. v. Chicago, supra; Porter v. Wilson, 239 U.S. 170. Illegality must be clearly established, Sinking Fund Cases, supra; Powell v. Pennsylvania, 127 U.S. 678; People v. Warden, 216 N.Y. 154; People v. Schweinter Press, 214 U.S. 395. Financial [p368] loss is not the test, Hadachek v. Los Angeles, 239 U.S. 394; United States v. Noble, 237 U.S. 78; Reimman v. Little Rock, 237 U.S. 171; Erie R. R. Co. v. Williams, 233 U.S. 700; Mugler v. Kansas, 123 U.S. 623; Sheehan v. Scott, 145 Cal. 684; Cochrane v. Preston, 108 Md. 220; State v. Cunningham, 97 Oh. St. 130; Biggs v. Steinway, 229 N.Y. 320. Local conditions must be considered, McLean v. Denver, 203 U.S. 38; Ohio Co. v. Indiana, 177 U.S. 190; Afield v. N. Y. Co., 198 U.S. 361; Welch v. Swasey, 214 U.S. 91; Pleasay v. Ferguson, 163 U.S. 537; Brown v. Walling, 204 U.S. 320.

Though there is unquestionably a "taking" under the exercise of police power, yet that taking is not such as is inhibited by or as requires compensation under the Constitution. This view is recognized in the case of ''Interstate Ry. Co. v. Commonwealth'', 207 U.S. 79. See also Hadachek v. Los Angeles, 239 U.S. 394; Welch v. Swasey, 214 U.S. 91; Cochrane v. Preston, 108 Md. 220; Publicity Co. v. Supt. of Building, 218 N.Y. 540; Doan Co. v. Cleveland, 97 Oh. St. 130; Barbier v. Connolly, 113 U.S. 27. Classification is permitted and even necessary. C. & N. W. Ry. v. R. R. Comm., 280 Fed. 394; Welch v. Swasey, supra; Hadachek v. Los Angeles, supra; Powell v. Pennsylvania, 127 U.S. 678.

The courts will not substitute their judgment for that of the legislature. Armour & Co. v. North Dakota, 240 U.S. 513; Jacobson v. Massachusetts, 197 U.S. 11; Benson v. Henkel, 198 U.S. 1; Cusack v. Chicago, 242 U.S. 526; Salt Lake City v. Foundry Works, 55 Utah 447; C. B. & Q. R. R. v. Haggarty, 67 Ill. 113; Central R. R. v. Pittus, 113 U.S. 127. The general application and not one single instance must be the guide. Rochester v. West, 164 N.Y. 510; Tenement House Dept. v. Moeschen, 179 N.Y. 325; St. Louis Poster Co. v. St. Louis, 249 U.S. 269; Pierce Oil Corp. v. Hope, 248 U.S. 500; Benz v. Kremer, 142 Wis. 1.

[p369] On the validity of the provisions of the ordinance concerning the Board of Appeals, see People v. Board of Appeals, 234 N.Y. 484; Welch v. Swasey, 214 U.S. 91; Ayer v. Cram, 242 Mass. 30; Broadway Co. v. Nulle, 203 App. Div. 468; Sanders v. Walsh, 108 Misc. 193; Mutual Film Co. v. Industrial Comm., 236 U.S. 230; Presbyterian Church v. Edgcomb, 109 Neb. 18; Chicago R. R. Co. v. R. R. Comm., 280 Fed. 387; Merrick v. Halsey & Co., 242 U.S. 590.

The constitutionality of comprehensive zoning ordinances was involved in the following cases:

New York, (favorable): Lincoln Trust Co. v. Williams Corp., 229 N.Y. 313; People v. Board of Appeals, supra; In re Russell, 158 N.Y. Supp. 162; People v. Ludwig, 218 N.Y. 240; Barker v. Switzer, 209 App. Div. 151; Wulfsohn v. Burden, 241 N.Y. 288. Massachusetts, (favorable): Building Inspector v. Stoklosa, 250 Mass. 52; Spector v. Milton, 250 Mass. 63; Brett v. Building Commissioner, 250 Mass. 73; Welch v. Swasey, 193 Mass. 364, affd. 214 U.S. 91; Parker v. Commonwealth, 178 Mass. 199; Attorney General v. Williams, 174 Mass. 476; Ayer v. Cram, 242 Mass. 30. New Jersey decisions at least partially opposed are: State v. Nutley, 99 N.J.L. 389; Handy v. South Orange, 118 Atl. 838; Ignaciumas v. Risley, 98 N.J.L. 712; Max v. Building Inspector, 127 Atl. 785; Schaite v. Senior, 97 N.J.L. 390; Cliffside Park Co. v. Cliffside, 96 N.J.L. 278. Maryland, (opposed): Goldman v. Crowther, 147 Md. 282. Missouri, (opposed): St. Louis v. Evraiff, 301 Mo. 231; State v. McKelvey, 256 S.W. 495. Texas: Spann v. Dallas, 111 Texas 350, is not properly a zoning case. But see Dallas v. Mitchell, 245 S.W. 944. California, (favorable): Miller v. Board, 195 Cal. 477; Zahn v. Board, 195 Cal. 497. Cf. Hadachek v. Los Angeles, 239 U.S. 394; Ex parte Quong Wo, 161 Cal. 220. Kansas, (favorable): Ware v. Wichita, 113 Kan. 153; West v. Wichita, 118 Kan. 265. Iowa, (favorable): [p370] Des Moines v. Manhattan Oil Co., 193 Iowa 1096. Louisiana, (favorable): Calvo v. New Orleans, 136 La. 480; State v. New Orleans, 142 La. 73; Civello v. New Orleans, 154 La. 271. Connecticut, (favorable): Whitney v. Windsor, 95 Conn. 357. District of Columbia, (favorable): Schwartz v. Brownlow, 50 App. D.C. 279. Minnesota, (favorable): Banner Grain Co. v. Houghton, 297 Fed. 317; Twin City Co. v. Houghton, 144 Minn. 1; Beery v. Houghton, 164 Minn. 146. Wisconsin, (favorable): Carter v. Harper, 182 Wis. 148; Holzbauer v. Ritter, 184 Wis. 35. Ohio, (favorable): Perrysburg v. Ridgway, 108 Oh. St. 245; Morris v. Osborn, 22 Oh. N.P. (N.S.) 549; Youngstown v. Kahn Bros., 112 Oh. St. 654; Bolce v. Hauser, 111 Oh. St. 402.

See also: Stephens v. Providence, (not yet officially reported), 133 Atl. 614; Wood v. Boston, (not yet officially reported), 152 N.E. 62; Deynzer v. Evanston, 319 Ill. 226; Aurora v. Burns, Id. 84; Fourcade v. San Francisco, 196 Cal. 655; State v. New Orleans, 159 La. 324; Bradley v. Board of Zoning Appeals, (not yet officially reported), 150 N.E. 892.

The Ambler Company—without any application for revision, amendment or modification of the ordinance and without desiring to build any kind of structure whatsoever—hastened into court and applied for an injunction against the enforcement of the ordinance or any part of it. The decree struck down the entire ordinance. Under the conditions, the Company neither then had nor has now the right to bring into issue any question other than that the ordinance is fundamentally and per se in violation of the federal and state constitutions.

Until the complainant shall at least have applied for a permit to build some kind of structure; and until such permit shall have been denied, the complainant does not have the right to obtain an injunction upon the ground that the ordinance is unreasonable in its effect upon the property in question.

[p371] Mr. Newton D. Baker, with whom Mr. Robert M. Morgan was on the brief, for the appellee.

The recent industrial development of the City of Cleveland, following the railroad lines, has already reached the Village and to some extent extends over into it. In its obvious course, this industrial expansion will soon absorb the area in the Village for industrial enterprises. It is in restraint of this prospect that the ordinance seeks to operate. In effect it erects a dam to hold back the flood of industrial development and thus to preserve a rural character in portions of the Village which, under the operation of natural economic laws, would be devoted most profitably to industrial undertakings. This, the evidence shows, destroys value without compensation to the owners of lands who have acquired and are holding them for industrial uses.

Since the industrial development of a great city will go on, the effect of this attempted action necessarily is to divert industry to other less suited sites, with a consequent rise in value thereof; so that the loss sustained by the proprietors of land who cannot so use their land is gained by proprietors of land elsewhere. In other words, the property, or value, which is taken away from one set of people, is, by this law, bestowed upon another set of people, imposing an uncompensated loss on the one hand and a gain which is arbitrary and unnatural on the other hand, since it results, not from the operation of economic laws, but from arbitrary considerations of taste enacted into hard and fast legislation. Such legislation also tends to monopolize business and factory sites.

In the argument below it is alleged, that the Company could have no matured right of action until it had first made application for a permit as to specific proposed uses of its lands, taken appeals from refusals to grant such permit, and filed petition with the council of the Village for such amendments as it might deem necessary. [p372] The wrong done to the plaintiff below was done when the ordinance was passed and continues as long as the ordinance is in existence. Prospective purchasers of land for commercial and industrial development will not even consider the plaintiff's land so long as the ordinance is in existence. To require the plaintiff to wait until he can find a purchaser sufficiently brave and sufficiently patient to buy a site in the teeth of this ordinance, bear the cost and delay of preparing plans, applying for a permit and having it rejected, perfecting an appeal and having it denied, and then exhausting the possibilities of petitions for amendment of the ordinance which would permit the proposed use, would, in fact, deprive the plaintiff of any remedy whatever, for no such complaisant purchasers can be found in a competitive real estate market. The plaintiff and others similarly situated with regard to their lands would simply be required to sit still and see the normal industrial and commercial development diverted, as purchasers passed them by and took less desirable land, free from the necessities of protracted litigation, in preference to the lands in the Village of Euclid, each acre of which would require litigation and lobbying before it could be devoted to entirely lawful and normal uses.

Ordinance No. 2812 is penal in character. That a court of equity will enjoin the enforcement of a void statute where the legal remedy is inadequate is no longer open to question, in view of the decisions of this Court. Kennington v. Palmer, 255 U.S. 100; United States v. Schwartz, Id. 102; Adams v. Tanner, 244 U.S. 590; Truax v. Raich, 239 U.S. 33; Bloch v. Hirsch, 256 U.S. 135; Brown Holding Co. v. Feldman, 256 U.S. 170.

Whether Ordinance No. 2812 rests for its authority upon the "power of local self-government" granted by § 3 of Art. XVIII of the Ohio Constitution, or upon the attempted donation of power to municipal corporations by §§ 4366-1 to 4366-12 of the General Code, the same [p373] tests must be applied to its validity, and those tests are whether or not that ordinance is a reasonable and real exercise of the police power or an unreasonable and arbitrary exercise of the powers of local self-government and an impairment of the rights of property guaranteed to the plaintiff by the constitutions of the United States and of Ohio.

The ordinance does not, in fact, pursue any rational plan, dictated by considerations of public safety, health and welfare, upon which the police power rests. On the contrary, it is an arbitrary attempt to prevent the natural and proper development of the land in the Village prejudicial to the public welfare. This property in the interest of the public welfare, should be devoted to those industrial uses for which it is needed and most appropriate. Therefore, while it will be necessary for us to discuss "zoning" and point out what we believe to be the point of collision between the so-called zoning power and the Constitution of the United States, the appellee's primary interest is to protect its property against the damage wrought by this particular ordinance.

That municipalities have power to regulate the height of buildings, area of occupation, strengths of building materials, modes of construction, and density of use, in the interest of the public safety, health, morals, and welfare, are propositions long since established; that a rational use of this power may be made by dividing a municipality into districts or zones, and varying the requirements according to the characteristics of the districts, is, of course, equally well established. We believe it, however, to be the law that these powers must be reasonably exercised, and that a municipality may not, under the guise of the police power, arbitrarily divert property from its appropriate and most economical uses, or diminish its value, by imposing restrictions which have no other basis than the momentary taste of the public authorities. [p374] Nor can police regulations be used to effect the arbitrary desire to have a municipality resist the operation of economic laws and remain rural, exclusive and aesthetic, when its land is needed to be otherwise developed by that larger public good and public welfare, which takes into consideration the extent to which the prosperity of the country depends upon the economic development of its business and industrial enterprises.

The municipal limits of the Village of Euclid are, after all, arbitrary and accidental political lines. The metropolitan City of Cleveland is one of the great industrial centers of the United States. If the Village may lawfully prefer to remain rural and restrict the normal industrial and business development of its land, each of the other municipalities, circumadjacent to the City of Cleveland, may pursue a like course. Thus the areas available for the expanding industrial needs of the metropolitan city will be restricted, the value of such land as is left available artificially enhanced, and industry driven to less advantageous sites. All this would be done at the expense of those land owners whose lands, being most advantageously located from an industrial point of view, have as a part of their right of property, which the constitutions of the Nation and the States undertake to protect, the expectation of value due to their superior availability for industrial development. Kahn v. Youngstown, 113 Oh. St. 17; Pritz v. Messer, Id. 89.

The distinction between the power of eminent domain and the police power is important. In the first place, there must be a public need, the property proposed to be taken must be taken for a public use, all the forms of law must be observed in the taking, and the private owner ultimately compensated. The courts do not allow the private owner to argue with the legislative authority in the exercise of its discretion as to what is a public need and his opinion is not important in the definitions [p375] of a public use, but the books are full of cases in which the exercise of this power has been stayed, even against the legislative determination, where the proposed use was only colorably public and the plain purpose of the appropriation was private advantage, no matter how widely distributed. Even where the owner is to be fully compensated, his right to retain and use his own property is protected unless there is a real, as against a pretended, public need to take it and use it.

Quite different is the police power under which the ordinance in this case purports to be passed. In every ordered society the State must act as umpire to the extent of preventing one man from so using his property or rights as to prevent others from making a correspondingly full and free use of their property and rights. The abstract right of a man to build a fire trap is limited by the rights of other people not to have their houses subjected to the peril created by it. The right of a man to maintain a nuisance on his own property is limited by the rights of others not to be subjected to the danger of its proximity. Accordingly, the so-called police power is an inherent right on the part of the public umpire to prevent misuses of property or rights which impair the health, safety, or morals of others, or affect prejudicially the general public welfare.

The limitations imposed by the police power do not have to be compensated for, for the reason that they are inherent in the ownership. If I buy a piece of land I have no means of knowing whether or not it will be needed for the public use, and if any need develops, I must be compensated when the public takes it. But I always know when I buy land, that I may not devote it to uses which endanger the safety, health, or morals of others or make its use a cormnon nuisance to the prejudice of the public welfare. Because of its nature, the exercise of the [p376] police power has always been restrained to those uses of property which invade the rights of others, and courts consistently decline to permit an extension of the police power to uses of property involving mere questions of taste or preference or financial advantage to others. Unless the theory of our expanding civilization is wrong, the public welfare is advanced by the devotion of the most available sites to business and industry, as the need for them develops. Restrictions upon limited areas have always been established, when desired, by mutual contracts, and such restrictions have been upheld so long as they were reasonable, in view of the changing growth and development of the country. It has, however, only recently been suggested that use restrictions, which formerly lay in contract, may be imposed or abrogated by municipal regulation and that the fleeting legislative judgment and will of a municipal council can select which, out of a variety of admittedly innocent uses, it will permit the owners of land to enjoy. Yates v. Milwaukee, 10 Wall. 497.

Even if the world could agree by unanimous consent upon what is beautiful and desirable, it could not, under our constitutional theory, enforce its decision by prohibiting a land owner, who refuses to accept the world's view of beauty, from making otherwise safe and innocent uses of his land. The case against many of these zoning laws, however, is much stronger than this. The world has not reached a unanimous judgment about beauty, and there are few unlikelier places to look for stable judgments on such subjects than in the changing discretion of legislative bodies, moved this way and that by the conflict of commercial interests on the one hand, and the assorted opinions of individuals, moved by purely private concerns, on the other.

Perhaps the most often quoted definition of the police power is that of Judge Cooley. [p377] Constitutional Limitations, 7th ed., p. 245. This limits the power to the establishment of rules to prevent the conflict of rights. See also, Id. 768, 839; Truax v. Corrigan, 257 U.S. 336; People v. Road, 9 Mich. 285; Tiedeman, State and Federal Control, § 146; Freund, Police Power, § 511. Munn v. Illinois, 94 U.S. 113, sustained the police power in the regulation of grain elevators, because such property was held to be affected with a public use, but the court sharply declined to regard the rule then established as an invasion of rights purely private. See also Coppage v. Kansas, 236 U.S. 1; Wolf Packing Co. v. Court of Industrial Relations, 262 U.S. 522; 267 Id. 552; Penna. Coal Co. v. Mahon, 260 U.S. 393; Eubank v. Richmond, 226 U.S. 137.

It has not been difficult for this Court to vindicate the great guaranties of the Constitution against direct attack. The trouble comes when these guaranties of individual rights of liberty and property appear to stand in the way of some genuinely benevolent and praiseworthy object which enlists support or enthusiasm, and when only a little infringement of the right of the individual is asked to be indulged. Yet the danger of frittering away the constitutional guaranties by successive encroachments has always been apparent. Railway Co. v. Commissioners, 1 Oh. St. 77; Miller v. Crawford, 70 Oh. St. 207; Williams v. Preslo, 84 Oh. St. 345; Coppage v. Kansas, 236 U.S. 1; Boyd v. United States, 116 U.S. 616.

It is impossible to reconcile the rulings of the supreme courts of the States upon the questions here presented. Each case is, of course, decided on its own facts. Many of them presented familiar restrictions, more or less demonstrably involving the public safety, health, or morals. In some of the cases, although the opinions seem to sanction very wide extensions of the traditional police power, the facts involved do not necessitate the width of the rulings; but even this consideration does [p378] not make it possible to follow through these cases any thread which leads to an authentic definition and application of the constitutional restraints upon unlimited extensions of the police power. Spann v. Dallas, 111 Tex. 350; Fitzhugh v. Jackson, 132 Miss. 585; State v. Thomas, 96 W. Va. 628; Tighe v. Osborne, 131 Atl. 801; Goldman v. Crowther, 147 Md. 282; Mayor v. Turk, 129 Atl. 512; State v. McKelvey, 301 Mo. 130; Ignaciunas v. Rislcy, 98 N.J.L. 712; Lachman v. Haughton, 134 Minn. 226; Roerig v. Minneapolis, 136 Minn. 479; Blackman v. Atlanta, 151 Ga. 507; State v. Edgcombe, 108 Neb. 859; Byrne v. Realty Co., 129 Md. 202; Illinois v. Friend, 261 Ill. 16; Windsor v. Whitney, 95 Conn. 357; Losick v. Binda, 128 Atl. 619; Sarg v. Hooper, 128 Atl. 376; Ingersoll v. South Orange, 128 Atl. 393; Becker v. Dowling, 128 Atl. 395; Summit Co. v. Board, 129 Atl. 819; Reimer v. Dallas, 129 Atl. 390; Plymouth v. Bigelow, 129 Atl. 203; Printz v. Board of Adjustment, 129 Atl. 123; Passaic v. Patterson Bill Co., 72 N.J.L. 285; Youngstown v. Kahn, 113 Oh. St. 17; Pritz v. Messer, 113 Oh. St. 89.

New conditions may arise and new discoveries be made that will cause new conceptions of social needs and bring within the legislative power fields previously not occupied; but we frankly do not believe that there has been any such development of new conditions as necessitates or justifies the communal control of private property attempted by this ordinance, or by many others, some of which have been sustained by state courts. Restraints and restrictions upon alienation and use, even when imposed by covenant, are looked upon with disfavor and construed strictly in the interest of the free transfer and use of property. 7 R.C.L. 1115, citing Hutchinson v. Ulrich, 145 Ill. 335; Hitz v. Flower, 104 Oh. St. 47. Yet the theory of zoning, in its ampler definitions, assumes that the municipal councils will be able to do, comprehensively, what private owners, most interested, have found it difficult to do, even on a small scale.

[p379] That our cities should be made beautiful and orderly is, of course, in the highest degree desirable, but it is even more important that our people should remain free. Their freedom depends upon the preservation of their constitutional immunities and privileges against the desire of others to control them, no matter how generous the motive or well intended the control which it is sought to impose.