Hoffmann v. Kinealy

HYDE, Judge

(dissenting).

I respectfully dissent from the opinion of Stone, Special Judge, herein and state the following views as to the situation involved. All that is involved in this case is whether the City may prohibit open storage on vacant land in residence districts after allowing a six-year period for discontinuance. My view is that this is a reasonable exercise of the police power. It is well established that the test of validity of the exercise of the police power is reasonableness, 11 Am.Jur. 1073 et seq., Constitutional Law, Secs. 302-307; 16 C. J.S. Constitutional Law, § 198, p. 951. All zoning is based on reasonable exercise of the police power; that is, it must have a reasonable relation to public health, safety or welfare.

In the leading case of Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 , 47 S.Ct. 114, 115 , 71 L.Ed. 303 , the Court said that zoning and “all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare.” The court pointed out the following reasons for this use of the police power: “[T]he segregation of residential, business and industrial buildings will make it easier to provide fire apparatus suitable for the character and intensity of the development in each section; that it will increase the safety and security of home life, greatly tend to prevent street accidents, especially to children, by reducing the traffic and resulting confusion in residential sections, decrease noise and other conditions which produce or intensify nervous disorders, preserve a more favorable environment in which to rear children.”

The court also stated: “Until recent years, urban life was comparatively simple; but, with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for, while the *756 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. In a changing world it is impossible that it should be otherwise.”

In view of these applicable principles, it does not seem reasonable to say that the existence of a particular use of vacant land when a zoning ordinance is adopted gives the owner a vested right to continue it in perpetuity, especially the right to pile material on vacant ground. The St. Louis Court of Appeals In re Botz, 236 Mo.App. 566 , 159 S.W.2d 367, 372 , points out sound reasons for making a distinction between land and buildings in permitting a nonconforming use, saying: “A building represents an investment in the improvement of the land upon which it is erected; and if regard were not had for the reasonable protection of such investment, then the ordinance would frequently be confiscatory with respect to its application to particular structures. Not only is a building erected with a view to its adaptation to a specific form of use which is to be made of it, but it is often difficult, if not impossible, to convert it to an entirely different form of use. Consequently, where the building is only adaptable to nonconforming uses, the ordinance grants the special privilege, where no structural alterations are involved, of changing from one nonconforming use to another of the same or a more restricted classification, and also allows the recommencement of a definite nonconforming use which has been previously discontinued. Not so, however, in the case of land, where the owner has made no investment in its improvement, and where, in most instances, he would be expected to suffer no hardship if compelled to conform to the strict letter of the zoning plan with respect to the use to which his land might be subjected.”

The landmark opinion of this Court, State ex rel. Oliver Cadillac Co. v. Christopher, 317 Mo. 1179 , 298 S.W. 720 , upheld zoning in this state for the first time as a valid exercise of the police power and held the zoning regulations established for the City of St. Louis were not arbitrary and unreasonable. The dissenting opinion therein made the following argument: “The present opinion extends the police power to the destruction of private property and private rights. Under its definition of police power, there is no limit to the taking of property. Under its broad doctrine of police power, the city authorities could take the whole of a person’s property, if it so desired, and that too without a cent of compensation. If the police power authorizes the taking of a part of the property for public use, by the same token, title as well as use of the property could be taken.” This is essentially the same argument made by appellants in this case.

As pointed out in City of Los Angeles v. Gage, 127 Cal.App.2d 442 , 274 P.2d 34, 44 , as follows: “The distinction between an ordinance restricting future uses and one requiring the termination of present uses within a reasonable period of time is merely one of degree, and constitutionality depends on the relative importance to be given to the public gain and to the private loss. Zoning as it affects every piece of property is to some extent retroactive in that it applies to property already owned at the time of the effective date of the ordinance.”

It is not necessary in this case to consider any amortization principal as to buildings or even land without buildings which has been improved for a particular use such as a paved parking lot. Prohibiting use of vacant unimproved land in residential districts for open storage seems to me to be a very different situation from removal or abandonment of use of buildings or other improvements on land. It requires no destruction or costly conversion of buildings but only finding another location for the stored material and hauling it away. This may be a matter of degree but degree is a material consideration in determining reasonableness of the exercise of police power. *757 High piles of stored material are not conducive to the maintenance or development of a good residential environment not only because they are unsightly but also because they could provide a lurking place for thieves and other criminals and also could attract children who might be injured playing there. See Hull v. Gillioz, 344 Mo. 1227 , 130 S.W.2d 623, 627 , and cases cited. While such open storage has not been classified as a nuisance, it thus has some of the undesirable characteristics of nuisance in a residential district. See 84 A.L.R.2d 654 and cases cited which have applied nuisance principles to a lawful business not a nuisance per se because of location in a residential district. Therefore, I would hold the ordinance in this case, for termination of open storage in residential districts after six years, a reasonable exercise of the police power and valid.