No. 31.

VILLAGE OF EUCLID et al. v. AMBLER REALTY COMPANY.

Decided November 22, 1926.

Argued January 27, 1926;

reargued October 12, 1926.

Mr. Justice Van Devanter, Mr. Justice McReyn­olds and Mr. Justice Butler, dissent.

Mr. James Metzenbaum for the appellants.

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

Mr. Justice Sutherland

delivered the opinion of the Court.

The Village of Euclid is an Ohio municipal corporation. It adjoins and practically is a suburb of the City of Cleve­land. Its estimated population is between 5,000 and 10,000, and its area from twelve to fourteen square miles, the greater part of which is farm lands or unimproved acreage. It lies, roughly, in the form of a parallelogram measuring approximately three and one-half miles each way. East and west it is traversed by three principal highways: Euclid Avenue, through the southerly border, St. Clair Avenue, through the central portion, and Lake Shore Boulevard, through the northerly border in close proximity to the shore of Lake Erie. The Nickel Plate railroad lies from 1,500 to 1,800 feet north of Euclid Ave­nue, and the Lake Shore railroad 1,600 feet farther to the north. The three highways and the two railroads are substantially parallel.

Appellee is the owner of a tract of land containing 68 acres, situated in the westerly end of the village, abutting on Euclid Avenue to the south and the Nickel Plate rail­road to the north. Adjoining this tract, both on the east and on the west, there have been laid out restricted resi­dential plats upon which residences have been erected.

On November 13, 1922, an ordinance was adopted by the Village Council, establishing a comprehensive zoning plan for regulating and restricting the location of trades, industries, apartment houses, two-family houses, single family houses, etc., the lot area to be built upon, the size and height of buildings, etc.

The entire area of the village is divided by the ordi­nance into six classes of use districts, denominated U-l to U-6, inclusive; three classes of height districts, denomi­nated H-l to H-3, inclusive; and four classes of area districts, denominated A-l to A-4, inclusive. The use districts are classified in respect of the buildings which may be erected within their respective limits, as follows: U-l is restricted to single family dwellings, public parks, water towers and reservoirs, suburban and interurban electric railway passenger stations and rights of way, and farming, non-commercial greenhouse nurseries and truck gardening; U-2 is extended to include two-family dwellings; U-3 is further extended to include apart­ment houses, hotels, churches, schools, public libraries, museums, private clubs, community center buildings, hospitals, sanitariums, public playgrounds and recrea­tion buildings, and a city hall and courthouse; U-4 is further extended to include banks, offices, studios, tele­phone exchanges, fire and police stations, restaurants, theatres and moving picture shows, retail stores and shops, sales offices, sample rooms, wholesale stores for hardware, drugs and groceries, stations for gasoline and oil (not exceeding 1,000 gallons storage) and for ice delivery, skating rinks and dance halls, electric substa­tions, job and newspaper printing, public garages for motor vehicles, stables and wagon sheds (not exceeding five horses, wagons or motor trucks) and distributing sta­tions for central store and commercial enterprises; U-5 is further extended to include billboards and advertising signs (if permitted), warehouses, ice and ice cream manu­facturing and cold storage plants, bottling works, milk bottling and central distribution stations, laundries, carpet cleaning, dry cleaning and dyeing establishments, blacksmith, horseshoeing, wagon and motor vehicle repair shops, freight stations, street car barns, stables and wagon sheds (for more than five horses, wagons or motor trucks), and wholesale produce markets and salesrooms; U-6 is further extended to include plants for sewage disposal and for producing gas, garbage and refuse incineration, scrap iron, junk, scrap paper and rag storage, aviation fields, cemeteries, crematories, penal and correctional in­stitutions, insane and feeble minded institutions, storage of oil and gasoline (not to exceed 25,000 gallons), and manufacturing and industrial operations of any kind other than, and any public utility not included in, a class U-l, U-2, U-3, U-4 or U-5 use. There is a seventh class of uses which is prohibited altogether.

Class U-l is the only district in which buildings are restricted to those enumerated. In the other classes the uses are cumulative; that is to say, uses in class U-2 include those enumerated in the preceding class, U-l; class U-3 includes uses enumerated in the preceding classes, U-2 and U-l; and so on. In addition to the enumerated uses, the ordinance provides for accessory uses, that is, for uses customarily incident to the principal use, such as private garages. Many regulations are pro­vided in respect of such accessory uses.

The height districts are classified as follows: In class H-l, buildings are limited to a height of two and one-­half stories or thirty-five feet; in class H-2, to four stories or fifty feet; in class H-3, to eighty feet. To all of these, certain exceptions are made, as in the case of church spires, water tanks, etc.

The classification of area districts is: In A-l districts, dwellings or apartment houses to accommodate more than one family must have at least 5,000 square feet for interior lots and at least 4,000 square feet for corner lots; in A-2 districts, the area must be at least 2,500 square feet for interior lots, and 2,000 square feet for corner lots; in A-3 districts, the limits are 1,250 and 1,000 square feet, respec­tively; in A-4 districts, the limits are 900 and 700 square feet, respectively. The ordinance contains, in great vari­ety and detail, provisions in respect of width of lots, front, side and rear yards, and other, matters, including restric­tions and regulations as to the use of bill boards, sign boards and advertising signs.

A single family dwelling consists of a basement and not less than three rooms and a bathroom. A two-family dwelling consists of a basement and not less than four living rooms and a bathroom for each family; and is further described as a detached dwelling for the occupa­tion of two families, one having its principal living rooms on the first floor and the other on the second floor.

Appellee’s tract of land comes under U-2, U-3 and U-6. The first strip of 620 feet immediately north of Euclid Avenue falls in class U-2, the next 130 feet to the north, in U-3, and the remainder in U-6. The uses of the first 620 feet, therefore, do not include apartment houses, hotels, churches, schools, or other public and semi-public buildings, or other uses enumerated in respect of U-3 to U-6, inclusive. The uses of the next 130 feet include all of these, but exclude industries, theatres, banks, shops, and the various other uses set forth in respect of U-4 to U-6, inclusive.*

Annexed to the ordinance, and made a part of it, is a zone map, showing the location and limits of the various use, height and area districts, from which it appears that the three classes overlap one another; that is to say, for example, both U-5 and U-6 use districts are in A-4 area districts, but the former is in H-2 and the latter in H-3 height districts. The plan is a complicated one and can be better understood by an inspection of the map, though it does not seem necessary to reproduce it for present purposes.

The lands lying between the two railroads for the entire length of the village area and extending some distance on either side to the north and south, having an average width of about 1,600 feet, are left open, with slight excep­tions, for industrial and all other uses. This includes the larger part of appellee’s tract. Approximately one-sixth of the area of the entire village is included in U-5 and U-6 use districts. That part of the village lying south of Euclid Avenue is principally in U-l districts. The lands lying north of Euclid Avenue and bordering on the long strip just described are included in U-l, U-2, U-3 and U-4 districts, principally in U-2.

The enforcement of the ordinance is entrusted to the inspector of buildings, under rules and regulations of the board of zoning appeals. Meetings of the board are pub­lic, and minutes of its proceedings are kept. It is author­ized to adopt rules and regulations to carry into effect provisions of the ordinance. Decisions of the inspector of buildings may be appealed to the board by any person claiming to be adversely affected by any such decision. The board is given power in specific cases of practical difficulty or unnecessary hardship to interpret the ordi­nance in harmony with its general purpose and intent, so that the public health, safety and general welfare may be secure and substantial justice done. Penalties are pre­scribed for violations, and it is provided that the various provisions are to be regarded as independent and the holding of any provision to be unconstitutional, void or ineffective shall not affect any of the others.

The ordinance is assailed on the grounds that it is in derogation of § 1 of the Fourteenth Amendment to the Federal Constitution in that it deprives appellee of lib­erty and property without due process of law and denies it the equal protection of the law, and that it offends against certain provisions of the Constitution of the State of Ohio. The prayer of the bill is for an injunction re­straining the enforcement of the ordinance and all at­tempts to impose or maintain as to appellee’s property any of the restrictions, limitations or conditions. The court below held the ordinance to be unconstitutional and void, and enjoined its enforcement. 297 Fed. 307.

Before proceeding to a consideration of the case, it is necessary to determine the scope of the inquiry. The bill alleges that the tract of land in question is vacant and has been held for years for the purpose of selling and developing it for industrial uses, for which it is especially adapted, being immediately in the path of progressive industrial development; that for such uses it has a market value of about $10,000 per acre, but if the use be limited to residential purposes the market value is not in excess of $2,500 per acre; that the first 200 feet of the parcel back from Euclid Avenue, if unrestricted in respect of use, has a value of $150 per front foot, but if limited to residential uses, and ordinary mercantile business be excluded therefrom, its value is not in excess of $50 per front foot.

It is specifically averred that the ordinance attempts to restrict and control the lawful uses of appellee’s land so as to confiscate and destroy a great part of its value; that is being enforced in accordance with its terms; that prospective buyers of land for industrial, commercial and residential uses in the metropolitan district of Cleveland are deterred from buying any part of this land because of the existence of the ordinance and the necessity thereby entailed of conducting burdensome and expensive litiga­tion in order to vindicate the right to use the land for lawful and legitimate purposes; that the ordinance con­stitutes a cloud upon the land, reduces and destroys its value, and has the effect of diverting the normal indus­trial, commercial and residential development thereof to other and less favorable locations.

The record goes no farther than to show, as the lower court found, that the normal, and reasonably to be ex­pected, use and development of that part of appellee’s land adjoining Euclid Avenue is for general trade and commercial purposes, particularly retail stores and like establishments, and that the normal, and reasonably to be expected, use and development of the residue of the land is for industrial and trade purposes. Whatever injury is inflicted by the mere existence and threatened enforce­ment of the ordinance is due to restrictions in respect of these and similar uses; to which perhaps should be added—if not included in the foregoing—restrictions in respect of apartment houses. Specifically, there is noth­ing in the record to suggest that any damage results from the presence in the ordinance of those restrictions relating to churches, schools, libraries and other public and semi­public buildings. It is neither alleged nor proved that there is, or may be, a demand for any part of appellee’s land for any of the last named uses; and we cannot assume the existence of facts which would justify an in­junction upon this record in respect of this class of restric­tions. For present purposes the provisions of the ordi­nance in respect of these uses may, therefore, be put aside as unnecessary to be considered. It is also unnecessary to consider the effect of the restrictions in respect of U-I districts, since none of appellee’s land falls within that class.

We proceed, then, to a consideration of those provisions of the ordinance to which the case as it is made relates, first disposing of a preliminary matter.

A motion was made in the court below to dismiss the bill on the ground that, because complainant [appellee] had made no effort to obtain a building permit or apply to the zoning board of appeals for relief as it might have done under the terms of the ordinance, the suit was pre­mature. The motion was properly overruled. The effect of the allegations of the bill is that the ordinance of its own force operates greatly to reduce the value of appel­lee’s lands and destroy their marketability for industrial, commercial and residential uses; and the attack is di­rected, not against any specific provision or provisions, but against the ordinance as an entirety. Assuming the premises, the existence and maintenance of the ordinance, in effect, constitutes a present invasion of appellee’s property rights and a threat to continue it. Under these circumstances, the equitable jurisdiction is clear. See Ter­race v. Thompson, 263 U. S. 197, 215; Pierce v. Society of Sisters, 268 U. S. 510, 535.

It is not necessary to set forth the provisions of the Ohio Constitution which are thought to be infringed. The question is the same under both Constitutions, namely, as stated by appellee: Is the ordinance invalid in that it violates the constitutional protection “to the right of property in the appellee by attempted regulations under the guise of the police power, which are unreason­able and confiscatory?”

Building zone laws are of modern origin. They began in this country about twenty-five years ago. 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 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. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Con­stitution, of course, must fall.

The ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities. In solv­ing doubts, the maxim sic utere tuo ut alienum non laedas, which lies at the foundation of so much of the common law of nuisances, ordinarily will furnish a fairly helpful clew. And the law of nuisances, likewise, may be consulted, not for the purpose of controlling, but for the helpful aid of its analogies in the process of ascertaining the scope of, the power. Thus 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, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality. Sturgis v. Bridge­man, L. R. 11 Ch. 852, 865. A nuisance may be merely a right thing in the wrong place,—like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. Radice v. New York, 264 U. S. 292, 294.

There is no serious difference of opinion 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. See Welch v. Swasey, 214 U. S. 91; Hadacheck v. Los Angeles, 239 U. S. 394; Reinman v. Little Rock, 237 U. S. 171; Cu­sack Co. v. City of Chicago, 242 U. S. 526, 529-530.

Here, however, the exclusion is in general terms of all industrial establishments, and it may thereby happen that not only offensive or dangerous industries will be ex­cluded, but those which are neither offensive nor dan­gerous will share the same fate. But this is no more than happens in respect of many practice-forbidding laws which this Court has upheld although drawn in general terms so as to include individual cases that may turn out to be innocuous in themselves. Hebe Co. v. Shaw, 248 U. S. 297, 303; Pierce Oil Corp. v. City of Hope, 248 U. S. 498, 500. The inclusion of a reasonable margin to insure effective enforcement, will not put upon a law, otherwise valid, the stamp of invalidity. Such laws may also find their justification in the fact that, in some fields, the bad fades into the good by such insensible degrees that the two are not capable of being readily distinguished and separated in terms of legislation. In the light of these considerations, we are not prepared to say that the end in view was not sufficient to justify the general rule of the ordinance, although some industries of an innocent character might fall within the proscribed class. It can not be said that the ordinance in this respect “passes the bounds of reason and assumes the character of a merely arbitrary fiat.” Purity Extract Co. v. Lynch, 226 U. S. 192, 204. Moreover, the restrictive provisions of the ordinance in this particular may be sustained upon the principles applicable to the broader exclusion from resi­dential districts of all business and trade structures, presently to be discussed.

It is said that the Village of Euclid is a mere suburb of the City of Cleveland; that the industrial development of that city has now reached and in some degree extended into the village and, in the obvious course of things, will soon absorb the entire area for industrial enterprises; that the effect of the ordinance is to divert this natural devel­opment elsewhere with the consequent loss of increased values to the owners of the lands within the village bor­ders. But the village, though physically a suburb of Cleveland, is politically a separate municipality, with powers of its own and authority to govern itself as it sees fit within the limits of the organic law of its creation and the State and Federal Constitutions. Its governing au­thorities, presumably representing a majority of its inhab­itants and voicing their will, have determined, not that industrial development shall cease at its boundaries, but that the course of such development shall proceed within definitely fixed lines. If it be a proper exercise of the police power to relegate industrial establishments to local­ities separated from residential sections, it is not easy to find a sufficient reason for denying the power because the effect of its exercise is to divert an industrial flow from the course which it would follow, to the injury of the residential public if left alone, to another course where such injury will be obviated. It is not meant by this, however, to exclude the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way.

We find no difficulty in sustaining restrictions of the kind thus far reviewed. The serious question in the case arises over the provisions of the ordinance excluding from residential districts, apartment houses, business houses, retail stores and shops, and other like establish­ments. This question involves the validity of what is really the crux of the more recent zoning legislation, namely, the creation and maintenance of residential dis­tricts, from which business and trade of every sort, includ­ing hotels and apartment houses, are excluded. Upon that question, this Court has not thus far spoken. The decisions of the state courts are numerous and conflicting; but those which broadly sustain the power greatly out­number those which deny altogether or narrowly limit it; and it is very apparent that there is a constantly increas­ing tendency in the direction of the broader view. We shall not attempt to review these decisions at length, but content ourselves with citing a few as illustrative of all.

As sustaining the broader view, see Opinion of the Jus­tices, 234 Mass. 597, 607; Inspector of Buildings of Low­ell v. Stoklosa, 250 Mass. 52; Spector v. Building Inspec­tor of Milton, 250 Mass. 63; Brett v. Building Commis­sioner of Brookline, 250 Mass. 73; State v. City of New Orleans, 154 La. 271, 282; Lincoln Trust Co. v. Williams Bldg. Corp., 229 N. Y. 313; City of Aurora v. Burns, 319 Ill. 84, 93; Deynzer v. City of Evanston, 319 Ill. 226; State ex rel. Beery v. Houghton, 164 Minn. 146; State ex rel. Carter v. Harper, 182 Wis. 148, 157-161; Ware v. City of Wichita, 113 Kan. 153; Miller v. Board of Public Works, 195 Cal. 477, 486-495; City of Providence v. Stephens, 133 Atl. 614.

For the contrary view, see Goldman v. Crowther, 147 Md. 282; Ignaciunas v. Risley, 98 N. J. L. 712; Spann v. City of Dallas, 111 Tex. 350.

As evidence of the decided trend toward the broader view, it is significant that in some instances the state courts in later decisions have reversed their former deci­sions holding the other way. For example, compare State ex rel. Beery v. Houghton, supra, sustaining the power, with State ex rel. Lachtman v. Houghton, 134 Minn. 226; State ex rel. Roerig v. City of Minneapolis, 136 Minn. 479; and Vorlander v. Hokenson, 145 Minn. 484, denying it, all of which are disapproved in the Houghton case (p. 151) last decided.

The decisions enumerated in the first group cited above agree that the exclusion of buildings devoted to business, trade, etc., from residential districts, bears a rational rela­tion to the health and safety of the community. Some of the grounds for this conclusion are—promotion of the health and security from injury of children and others by separating dwelling houses from territory devoted to trade and industry; suppression and prevention of disorder; fa­cilitating the extinguishment of fires, and the enforcement of street traffic regulations and other general welfare or­dinances; aiding the health and safety of the community by excluding from residential areas the confusion and danger of fire, contagion and disorder which in greater or less degree attach to the location of stores, shops and fac­tories. Another ground is that the construction and re­pair of streets may be rendered easier and less expensive by confining the greater part of the heavy traffic to the streets where business is carried on.

The Supreme Court of Illinois, in City of Aurora v. Burns, supra, pp. 93-95, in sustaining a comprehensive building zone ordinance dividing the city into eight dis­tricts, including exclusive residential districts for one and two-family dwellings, churches, educational institutions and schools, said:

“The constantly increasing density of our urban pop­ulations, the multiplying forms of industry and the grow­ing complexity of our civilization make it necessary for the State, either directly or through some public agency by its sanction, to limit individual activities to a greater extent than formerly. With the growth and development of the State the police power necessarily develops, within reasonable bounds, to meet the changing conditions. . . .

“. . . The harmless may sometimes be brought with­in the regulation or prohibition in order to abate or destroy the harmful. The segregation of industries com­mercial pursuits and dwellings to particular districts in a city, when exercised reasonably, may bear a rational relation to the health, morals, safety and general welfare of the community. The establishment of such districts or zones may, among other things, prevent congestion of population, secure quiet residence districts, expedite local transportation, and facilitate the suppression of disorder, the extinguishment of fires and the enforcement of traffic and sanitary regulations. The danger of fire and the risk of contagion are often lessened by the exclusion of stores and factories from areas devoted to residences, and, in consequence, the safety and health of the community may be promoted.....

“. . . The exclusion of places of business from resi­dential districts is not a declaration that such places are nuisances or that they are to be suppressed as such, but it is a part of the general plan by which the city’s ter­ritory is allotted to different uses in order to prevent, or at least to reduce, the congestion, disorder and dangers which often inhere in unregulated municipal develop­ment.”

The Supreme Court of Louisiana, in State v. City of New Orleans, supra, pp. 282-283, said:

“In the first place, the exclusion of business establish­ments from residence districts might enable the munic­ipal government to give better police protection. Patrol­men’s beats are larger, and therefore fewer, in residence neighborhoods than in business neighborhoods. A place of business in a residence neighborhood furnishes an ex­cuse for any criminal to go into the neighborhood, where, otherwise, a stranger would be under the ban of suspicion. Besides, open shops invite loiterers and idlers to congre­gate; and the places of such congregations need police pro­tection. In the second place, the zoning of a city into residence districts and commercial districts is a matter of economy in street paving. Heavy trucks, hauling freight to and from places of business in residence districts, re­quire the city to maintain the same costly pavement in such districts that is required for business districts; where­as, in the residence districts, where business establishments are excluded, a cheaper pavement serves the purpose. . . .

“Aside from considerations of economic administration, in the matter of police and fire protection, street paving, etc., any business establishment is likely to be a genuine nuisance in a neighborhood of residences. Places of busi­ness are noisy; they are apt to be disturbing at night; some of them are malodorous; some are unsightly; some are apt to breed rats, mice, roaches, flies, ants, etc. . . .

“If the municipal council deemed any of the reasons which have been suggested, or any other substantial reason, a sufficient reason for adopting the ordinance in question, it is not the province of the courts to take issue with the council. We have nothing to do with the ques­tion of the wisdom or good policy of municipal ordinances. If they are not satisfying to a majority of the citizens, their recourse is to the ballot—not the courts.”

The matter of zoning has received much attention at the hands of commissions and experts, and the results of their investigations have been set forth in comprehen­sive reports. These reports, which bear every evidence of painstaking consideration, concur in the view that the 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, etc. With particular reference to apartment houses, it is pointed out that the development of de­tached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in such sections very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by others, interfering by their height and bulk with the free circu­lation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bring­ing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities,—until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed. Under these circum­stances, apartment houses, which in a different environ­ment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances.

If these reasons, thus summarized, do not demonstrate the wisdom or sound policy in all respects of those restric­tions which we have indicated as pertinent to the inquiry, at least, the reasons are sufficiently cogent to preclude us from saying, as it must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no sub­stantial relation to the public health, safety, morals, or general welfare. Cusack Co., v. City of Chicago, supra, pp. 530-531; Jacobson v. Massachusetts, 197 U. S. 11, 30-31.

It is true that when, if ever, the provisions set forth in the ordinance in tedious and minute detail, come to be concretely applied to particular premises, including those of the appellee, or to particular conditions, or to be considered in connection with specific complaints, some of them, or even many of them, may be found to be clearly arbitrary and unreasonable. But where the equitable remedy of injunction is sought, as it is here, not upon the ground of a present infringement or denial of a specific right, or of a particular injury in process of actual execu­tion, but upon the broad ground that the mere existence and threatened enforcement of the ordinance, by mate­rially and adversely affecting values and curtailing the opportunities of the market, constitute a present and irreparable injury, the court 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 to contribute to the injury complained of, which, if attacked separately, might not withstand the test of constitutionality. In respect of such provisions, of which specific complaint is not made, it cannot be said that the land owner has suffered or is threatened with an injury which entitles him to challenge their constitutionality. Turpin v. Lemon, 187 U. S. 51, 60. In Railroad Commission Cases, 116 U. S. 307, 335-337, this Court dealt with an analogous situa­tion. There an act of the Mississippi legislature, regu­lating freight and passenger rates on intrastate railroads and creating a supervisory commission, was attacked as unconstitutional. The suit was brought to enjoin the commission from enforcing against the plaintiff railroad company any of its provisions. In an opinion delivered by Chief Justice Waite, this Court held that the chief purpose of the statute was to fix a maximum of charges and to regulate in some matters of a police nature the use of railroads in the state. After sustaining the con­stitutionality of the statute “in its general scope” this Court said: “Whether in some of its details the statute may be defective or invalid we do not deem it necessary to inquire, for this suit is brought to prevent the com­missioners from giving it any effect whatever as against this company.” Quoting with approval from the opin­ion of the Supreme Court of Mississippi it was further said: “Many questions may arise under it not necessary to be disposed of now, and we leave them for considera­tion when presented.” And finally: “When the com­mission has acted and proceedings are had to enforce what it has done, questions may arise as to the validity of some of the various provisions which will be worthy of consideration, but we are unable to say that, as a whole, the statute is invalid.”

The relief sought here is of the same character, namely, an injunction against the enforcement of any of the re­strictions, limitations or conditions of the ordinance. And the gravamen of the complaint is that a portion of the land of the appellee cannot be sold for certain enumer­ated uses because of the general and broad restrain of the ordinance. What would be the effect of a restraint imposed by one or more of the innumerable provisions of the ordinance, considered apart, upon the value or marketability of the lands is neither disclosed by the bill nor by the evidence, and we are afforded no basis, apart from mere speculation, upon which to rest a conclusion that it or they would have any appreciable effect upon those matters. Under these circumstances, therefore, it is enough for us to determine, as we do, that the ordi­nance in its general scope and dominant features, so far as its provisions are here involved, is a valid exercise of authority, leaving other provisions to be dealt with as cases arise directly involving them.

And this is in accordance with the traditional policy of this Court. In the realm of constitutional law, espe­cially, this Court has perceived the embarrassment which is likely to result from an attempt to formulate rules or decide questions beyond the necessities of the immediate issue. It has preferred to follow the method of a gradual approach to the general by a systematically guarded ap­plication and extension of constitutional principles to par­ticular cases as they arise, rather than by out of hand attempts to establish general rules to which future cases must be fitted. This process applies with peculiar force to the solution of questions arising under the due process clause of the Constitution as applied to the exercise of the flexible powers of police, with which we are here concerned.

Decree reversed.

*

The court below seemed to think that the frontage of this prop­erty on Euclid Avenue to a depth of 150 feet came under U-l district and was available only for single family dwellings. An examination of the ordinance and subsequent amendments, and a comparison of their terms with the maps, shows very clearly, however, that this view was incorrect. Appellee’s brief correctly interpreted the ordi­nance: “The northerly 500 feet thereof immediately adjacent to the right of way of the New York, Chicago & St. Louis Railroad Com­pany under the original ordinance was classed as U-6 territory and the rest thereof as U-2 territory. By amendments to the ordinance, a strip 630 [620] feet wide north of Euclid Avenue is classed as U-2 territory, a strip 130 feet wide next north as U-3 territory and the rest of the parcel to the Nickel Plate right of way as U-6 territory.”

Supreme Court of Missouri, Division No. 2.

No. 54911.

STATE of Missouri ex rel. Dimiter STOY­ANOFF and Joan T. Stoyanoff, his wife, Respondents, v. Robert BERKELEY, Building Commissioner, City of Ladue, Missouri, Appellant.

Sept. 14, 1970.

Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 12, 1970.

BARRETT and STOCKARD, CC, con­cur.

DONNELLY, P. J., MORGAN and FINCH, JJ., and JENSEN, Special Judge, concur.

Cupples, Cooper & Haller, Ronald L. Cupples, Gary H. Sokolik, Clayton, for (relators) respondents.

Willson, Cunningham & McClellan, J. H. Cunningham, Jr., St. Louis, for appellant.

PRITCHARD, Commissioner.

Upon summary judgment the trial court issued a peremptory writ of mandamus to compel appellant to issue a residential building permit to respondents. The trial court’s judgment is that the below-men­tioned ordinances are violative of Section 10, Article I of the Constitution of Mis­souri, 1945, V.A.M.S., in that restrictions placed by the ordinances on the use of prop­erty deprive the owners of their property without due process of law. Relators’ pe­tition pleads that they applied to appellant Building Commissioner for a building per­mit to allow them to construct a single family residence in the City of Ladue, and that plans and specifications were sub­mitted for the proposed residence, which was unusual in design, “but complied with all existing building and zoning regula­tions and ordinances of the City of Ladue, Missouri.” 

It is further pleaded that relators were refused a building permit for the construc­tion of their proposed residence upon the ground that the permit was not approved by the Architectural Board of the City of Ladue. Ordinance 131, as amended by Ordinance 281 of that city, purports to set up an Architectural Board to approve plans and specifications for buildings and struc­tures erected within the city and in a pre­amble to “conform to certain minimum architectural standards of appearance and conformity with surrounding structures, and that unsightly, grotesque and unsuitable structures, detrimental to the stability of value and the welfare of surrounding property, structures and residents, and to the general welfare and happiness of the community, be avoided, and that appropri­ate standards of beauty and conformity be fostered and encouraged.” It is asserted in the petition that the ordinances are in­valid, illegal and void, “are unconstitu­tional in that they are vague and provide no standard nor uniform rule by which to guide the architectural board,” that the city acted in excess of statutory powers (§ 89.020, RSMo 1959, V.A.M.S.) in en­acting the ordinances, which “attempt to allow respondent to impose aesthetic stand­ards for buildings in the City of Ladue, and are in excess of the powers granted the City of Ladue by said statute.”

Relators filed a motion for summary judgment and affidavits were filed in op­position thereto. Richard D. Shelton, Mayor of the City of Ladue, deponed that the facts in appellant’s answer were true and correct, as here pertinent: that the City of Ladue constitutes one of the finer sub­urban residential areas of Metropolitan St. Louis, the homes therein are consider­ably more expensive than in cities of com­parable size, being homes on lots from three fourths of an acre to three or more acres each; that a zoning ordinance was enacted by the city regulating the height, number of stories, size of buildings, per­centage of lot occupancy, yard sizes, and the location and use of buildings and land for trade, industry, residence and other pur­poses; that the zoning regulations were made in accordance with a comprehensive plan “designed to promote the health and general welfare of the residents of the City of Ladue,” which in furtherance of said objectives duly enacted said Ordinances numbered 131 and 281. Appellant also asserted in his answer that these ordi­nances were a reasonable exercise of the city’s governmental, legislative and police powers, as determined by its legislative body, and as stated in the above-quoted preamble to the ordinances. It is then pleaded that relators’ description of their proposed residence as “‘unusual in design’ is the understatement of the year. It is in fact a monstrosity of grotesque design, which would seriously impair the value of property in the neighborhood.”

The affidavit of Harold C. Simon, a de­veloper of residential subdivisions in St. Louis County, is that he is familiar with relators’ lot upon which they seek to build a house, and with the surrounding houses in the neighborhood; that the houses therein existent are virtually all two-story houses of conventional architectural de­sign, such as Colonial, French Provincial or English; and that the house which relators propose to construct is of ultra­modern design which would clash with and not be in conformity with any other house in the entire neighborhood. It is Mr. Simon’s opinion that the design and appearance of relators’ proposed residence would have a substantial adverse effect upon the market values of other residen­tial property in the neighborhood, such average market value ranging from $60,000 to $85,000 each.

As a part of the affidavit of Russell H. Riley, consultant for the city planning and engineering firm of Harland Bartholomew & Associates, photographic exhibits of homes surrounding relators’ lot were at­tached. To the south is the conventional frame residence of Mrs. T. R. Collins. To the west is the Colonial two-story frame house of the Lewis family. To the north­east is the large brick English Tudor home of Mrs. Elmer Hubbs. Immediately to the north are the large Colonial homes of Mr. Alex Cornwall and Mr. L. Peter Wetzel. In substance Mr. Riley went on to say that the City of Ladue is one of the finer residential suburbs in the St. Louis area with a minimum of commercial or industrial usage. The development of res­idences in the city has been primarily by private subdivisions, usually with one main lane or drive leading therein (such as Lorenzo Road Subdivision which runs north off of Ladue Road in which relators’ lot is located). The homes are considerably more expensive than average homes found in a city of comparable size. The ordi­nance which has been adopted by the City of Ladue is typical of those which have been adopted by a number of suburban cities in St. Louis County and in similar cities throughout the United States, the need therefor being based upon the pro­tection of existing property values by pre­venting the construction of houses that are in complete conflict with the general type of houses in a given area. The in­trusion into this neighborhood of relators’ unusual, grotesque and nonconforming structure would have a substantial adverse effect on market values of other homes in the immediate area. According to Mr. Riley the standards of Ordinance 131, as amended by Ordinance 281, are usually and customarily applied in city planning work and are: “(1) whether the proposed house meets the customary architectural requirements in appearance and design for a house of the particular type which is proposed (whether it be Colonial, Tudor English, French Provincial, or Modern), (2) whether the proposed house is in gen­eral conformity with the style and design of surrounding structures, and (3) wheth­er the proposed house lends itself to the proper architectural development of the City; and that in applying said standards the Architectural Board and its Chair­man are to determine whether the proposed house will have an adverse affect on the stability of values in the surrounding area.”

Photographic exhibits of relators’ pro­posed residence were also attached to Mr. Riley’s affidavit. They show the residence to be of a pyramid shape, with a flat top, and with triangular shaped windows or doors at one or more corners.

Although appellant has briefed the point that it is a constitutional exercise of the police power for the Legislature to au­thorize cities to enact zoning ordinances, it is apparent that relators do not contest that issue. Rather, relators’ position is that “the creation by the City of Ladue of an architectural board for the purpose of pro­moting and maintaining ‘general conformi­ty with the style and design of surround­ing structures’ is totally unauthorized by our Enabling Statute.” (§§ 89.020, 89.040, RSMo 1959, V.A.M.S.) It is further con­tended by relators that Ordinances 131 and 281 are invalid and unconstitutional as be­ing an unreasonable and arbitrary exer­cise of the police power (as based entirely on aesthetic values); and that the same are invalid as an unlawful delegation of legislative powers (to the Architectural Board).

Section 89.020 provides: “For the pur­pose of promoting health, safety, morals or the general welfare of the community, the legislative body of all cities, towns, and vil­lages is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spac­es, the density of population, the preserva­tion of features of historical significance, and the location and use of buildings, structures and land for trade, industry, residence or other purposes.” Section 89.040 provides: “Such regulations shall be made in accordance with a comprehen­sive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide ade­quate light and air; to prevent the over­crowding of land; to avoid undue concen­tration of population; to preserve features of historical significance; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. Such regulations shall be made with reasonable considera­tion, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the values of buildings and en­couraging the most appropriate use of land throughout such municipality.” (Italics added.)

Relators say that “Neither Sections 89.­020 or 89.040 nor any other provision of Chapter 89 mentions or gives a city the au­thority to regulate architectural design and appearance. There exists no provision pro­viding for an architectural board and no entity even remotely resembling such a board is mentioned under the enabling leg­islation.” Relators conclude that the City of Ladue lacked any power to adopt Ordi­nance 131 as amended by Ordinance 281 “and its intrusion into this area is wholly unwarranted and without sanction in the law.” As to this aspect of the appeal rela­tors rely upon the 1961 decision of State ex rel. Magidson v. Henze, Mo.App., 342 S.W.2d 261. That case had the identical question presented. An Architectural Con­trol Commission was set up by an ordinance of the City of University City. In its re­port to the Building Commissioner, the Architectural Control Commission disap­proved the Magidson application for per­mits to build four houses. It was comment­ed that the proposed houses did not provide for the minimum number of square feet, and “In considering the existing character of this neighborhood, the Commission is of the opinion that houses of the character proposed in these plans are not in harmony with and will not contribute to nor protect the general welfare of this neighborhood” (loc. cit. 264) i The court held that § 89.­020, RSMo 1949, V.A.M.S., does not grant to the city the right to impose upon the landowner aesthetic standards for the buildings he chooses to erect.

As is clear from the affidavits and at­tached exhibits, the City of Ladue is an area composed principally of residences of the general types of Colonial, French Pro­vincial and English Tudor. The city has a comprehensive plan of zoning to maintain the general character of buildings therein. The Magidson case, supra, did not con­sider the effect of § 89.040, supra, and the italicized portion relating to the character of the district, its suitability for particular uses, and the conservation of the values of buildings therein. These considerations, sanctioned by statute, are directly related to the general welfare of the community. That proposition has support in a number of cases cited by appellant. State ex rel. Carter v. Harper, Building Commissioner, 182 Wis. 148, 196 N.W. 451, 454, quotes Chicago B. & Q. Ry. Co. v. People of State of Illinois ex rel. Drainage Commissioners, 200 U.S. 561, 26 S.Ct. 341, 50 L.Ed. 596, 609, “‘We hold that the police power of a state embraces regulations designed to pro­mote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety.’” In Marrs v. City of Oxford (D.C.D.Kan.) 24 F.2d 541, 548, it was said, “The stabilizing of prop­erty values, and giving some assurance to the public that, if property is purchased in a residential district, its value as such will be preserved, is probably the most cogent reason back of zoning ordinances.” See also People v. Calvar Corporation et al., Sup., 69 N.Y.S.2d 272, 279 (aff’d 286 N.­Y. 419, 36 N.E.2d 644); Kovacs v. Cooper, Judge, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513, 526; Wulfsohn v. Burden, 241 N.Y. 288, 150 N.E. 120, 122 [3], 43 A.L.R. 651; and Price et al. v. Schwafel (Cal.), 92 Cal.­App.2d 77, 206 P.2d 683, 685. The preamble to Ordinance 131, quoted above in part, demonstrates that its purpose is to conform to the dictates of § 89.040, with reference to preserving values of property by zoning procedure and restrictions on the use of property. This is an illustration of what was referred to in Deimeke v. State High­way Commission, Mo., 444 S.W.2d 480, 484, as a growing number of cases recognizing a change in the scope of the term “general welfare.” In the Deimeke case on the same page it is said, “Property use which offends sensibilities and debases property values affects not only the adjoining property owners in that vicinity but the general pub­lic as well because when such property values are destroyed or seriously impaired, the tax base of the community is affected and the public suffers economically as a result.”

Relators say further that Ordi­nances 131 and 281 are invalid and uncon­stitutional as being an unreasonable and ar­bitrary exercise of the police power. It is argued that a mere reading of these ordi­nances shows that they are based entirely on aesthetic factors in that the stated pur­pose of the Architectural Board is to main­tain “conformity with surrounding struc­tures” and to assure that structures “con­form to certain minimum architectural standards of appearance.” The argument ignores the further provisos in the ordi­nance : “ * * * and that unsightly, gro­tesque and unsuitable structures, detrimen­tal to the stability of value and the welfare of surrounding property, structures, and residents, and to the general welfare and happiness of the community, be avoided, and that appropriate standards of beauty and conformity be fostered and encourag­ed.” (Italics added.) Relators’ proposed residence does not descend to the “‘patent­ly offensive character of vehicle grave­yards in close proximity to such high­ways’” referred to in the Deimeke case, supra (444 S.W.2d 484). Nevertheless, the aesthetic factor to be taken into account by the Architectural Board is not to be con­sidered alone. Along with that inherent factor is the effect that the proposed resi­dence would have upon the property values in the area. In this time of burgeoning urban areas, congested with people and structures, it is certainly in keeping with the ultimate ideal of general welfare that the Architectural Board, in its function, preserve and protect existing areas in which structures of a general conformity of architecture have been erected. The area under consideration is clearly, from the record, a fashionable one. In State ex rel. Civello v. City of New Orleans, 154 La. 271, 97 So. 440, 444, the court said, “If by the term ‘aesthetic considerations’ is meant a regard merely for outward appearances, for good taste in the matter of the beauty of the neighborhood itself, we do not ob­serve any substantial reason for saying that such a consideration is not a matter of gen­eral welfare. The beauty of a fashionable residence neighborhood in a city is for the comfort and happiness of the residents, and it sustains in a general way the value of property in the neighborhood.” See also People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.­2d 734, 191 N.E.2d 272, 274 [3]; State ex rel. Saveland Park Holding Corp. v. Wie­land, 269 Wis. 262, 69 N.W.2d 217, 222; Reid v. Architectural Board of Review of the City of Cleveland Heights, 119 Ohio App. 67, 192 N.E.2d 74, 77; and Oregon City v. Hartke, 240 Or. 35, 400 P.2d 255, 261, for pronouncements of the principle that aesthetics is a factor to be considered in zoning matters.

In the matter of enacting zoning ordinances and the procedures for deter­mining whether any certain proposed struc­ture or use is in compliance with or offends the basic ordinance, it is well settled that courts will not substitute their judgments for the city’s legislative body, if the result is not oppressive, arbitrary or unreasonable and does not infringe upon a valid pre­existing nonconforming use. Landau et al. v. Levin, 358 Mo. 77, 213 S.W.2d 483, 485 [2-4]; Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771, 777 [1]; Wrigley Properties, Inc. et al. v. City of Ladue, Mo., 369 S.W.2d 397, 400 [2-4], The denial by appellant of a building permit for relators’ highly modern­istic residence in this area where tradition­al Colonial, French Provincial and English Tudor styles of architecture are erected does not appear to be arbitrary and unrea­sonable when the basic purpose to be served is that of the general welfare of persons in the entire community.

In addition to the above-stated purpose in the preamble to Ordinance 131, it estab­lishes an Architectural Board of three members, all of whom must be architects. Meetings of the Board are to be open to the public, and every application for a building permit, except those not affecting the out­ward appearance of a building, shall be sub­mitted to the Board along with plans, ele­vations, detail drawings and specifications, before being approved by the Building Com­missioner. The Chairman of the Board shall examine the application to determine if it conforms to proper architectural stand­ards in appearance and design and will be in general conformity with the style and design of surrounding structures and con­ducive to the proper architectural develop­ment of the city. If he so finds, he ap­proves and returns the application to the Building Commissioner. If he does not find conformity, or has doubt, a full meet­ing of the Board is called, with notice of the time and place thereof given to the ap­plicant. The Board shall disapprove the application if it determines the proposed structure will constitute an unsightly, grotesque or unsuitable structure in appear­ance, detrimental to the welfare of sur­rounding property or residents. If it can­not make that decision, the application shall be returned to the Building Commissioner either with or without suggestions or rec­ommendations, and if that is done without disapproval, the Building Commissioner may issue the permit. If the Board’s dis­approval is given and the applicant refuses to comply with recommendations, the Building Commissioner shall refuse the per­mit. Thereafter provisions are made for an appeal to the Council of the city for re­view of the decision of the Architectural Board. Ordinance 281 amends Ordinance 131 only with respect to the application ini­tially being submitted to and considered by all members of the Architectural Board.

Relators claim that the above pro­visions of the ordinance amount to an un­constitutional delegation of power by the city to the Architectural Board. It is ar­gued that the Board cannot be given the power to determine what is unsightly and grotesque and that the standards, “whether the proposed structure will conform to proper architectural standards in appear­ance and design, and will be in general con­formity with the style and design of sur­rounding structures and conducive to the proper architectural development of the City * * * ” and “the Board shall disap­prove the application if it determines that the proposed structure will constitute an un­sightly, grotesque or unsuitable structure in appearance, detrimental to the welfare of surrounding property or residents * *," are inadequate. First cited is State ex rel. Continental Oil Company v. Waddill, Mo., 318 S.W.2d 281, which held an ordinance provision unconstitutional which clothed the City Planning Committee with arbi­trary discretion without a definite standard or rule for its guidance, following the gen­eral rule in Lux v. Milwaukee Mechanics’ Ins. Co., 322 Mo. 342, 15 S.W.2d 343, 345. In the Lux case, as well as in State ex rel. Ludlow v. Guffey, Mo., 306 S.W.2d 552, exceptions to the general rule were stated to be “in situations and circumstances where necessity would require the vesting of discretion in the officer charged with the enforcement of an ordinance, as where it would be either impracticable or impos­sible to fix a definite rule or standard, or where the discretion vested in the officer relates to the enforcement of a police regu­lation requiring prompt exercise of judg­ment” (306 S.W.2d 557). The ordinance here is similar to the ordinance in the Guffey case wherein it was held that general standards of the ordinance were sufficient. Although it was said that neither of the above-stated exceptions applied in the Guf­fey case, the impracticality of setting forth a completely comprehensive standard in­suring uniform discretionary action by the city council was discussed. It was held that the general standards were sufficient and that the procedure for determining whether the proposed filling station would or would not promote the “health, safety, morals or general welfare of the communi­ty” or would or would not adversely affect “the character of the neighborhood, traffic conditions, public utility facilities and other matters pertaining to the general welfare” (306 S.W.2d 558) was sufficient to provide against the exercise of arbitrary and uncon­trolled discretion by the city council. Here, as in the Guffey case, the procedures are for public hearings with notice to the appli­cant, not only by the Architectural Board but also by the City Council on appeal on the factual issues to be determined under the ordinance. An applicant’s rights are safeguarded in this respect, and thus dis­tinguished is the ordinance which was con­demned in State ex rel. Magidson v. Henze, supra. Otherwise, in the respect that the Magidson case did not consider the purpose of § 89.040, supra, it should no longer be followed. Ordinances 131 and 281 are suf­ficient in their general standards calling for a factual determination of the suitabili­ty of any proposed structure with refer­ence to the character of the surrounding neighborhood and to the determination of any adverse effect on the general welfare and preservation of property values of the community. Like holdings were made in­volving Architectural Board ordinances in State ex rel. Saveland Park Holding Corp. v. Wieland, 269 Wis. 262, 69 N.W.2d 217, and Reid v. Architectural Board of Review of the City of Cleveland Heights, 119 Ohio App. 67, 192 N.E.2d 74, supra.

The judgment is reversed.

PER CURIAM.

The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.