Summary
In Walker, this Court found that a challenge to an ordinance establishing zoning districts, made seventeen years after the ordinance went into effect, was untimely.
Summary of this case from Riverside Traffic Sys., Inc. v. BostwickOpinion
No. 40295.
January 21, 1957.
1. Municipalities — zoning ordinance — defects and irregularities in mode of enactment — waiver — estoppel — laches — as precluding relief against.
Notwithstanding defects and irregularities in the mode of enactment of a zoning ordinance, waiver, estoppel or laches may operate under certain circumstances to preclude relief against zoning ordinances or regulation.
2. Municipalities — zoning ordinance — defects and irregularities in mode of enactment — ordinance upheld in action by city to enjoin defendants from operating commercial business in residential district.
Although statutory procedure had not been followed in adopting zoning ordinance, where ordinance had been amended 32 times since adopted in 1940, population of city had more than doubled, 7,100 permits which reflected millions of dollars in expenditures had been issued under ordinance and amendments and defendants had obtained permits and licenses under ordinance, the ordinance would be upheld in action by city to enjoin defendants from operation of commercial business in residential district. Secs. 3592, 3593, Code 1942.
Headnotes as approved by Arrington, J.
APPEAL from the Chancery Court of Harrison County; D.M. RUSSELL, Chancellor.
Rushing Guice, Biloxi, for appellants.
I. Ordinance No. 790, the zoning ordinance of the City of Biloxi, was void ab initio. Arkansas Fuel Oil Co. v. City of Oxford, 188 Miss. 455, 195 So. 316; Morris v. City of Columbia, 184 Miss. 342, 186 So. 292.
II. The property here in question has always been improperly zoned and is and has been a nonconforming use. Jones v. Hattiesburg, 207 Miss. 491, 42 So.2d 717; Nectow v. City of Cambridge, 277 U.S. 183, 72 L.Ed. 842, 48 S.Ct. 447-48; State exrel. Manheim v. Harrison, 164 La. 564, 114 So. 159; Mobile County v. Williams, 61 So. 963.
III. No comprehensive plan was ever adopted and enforced for zoning, and defendants are in a position to defend against the enforcement of this void ordinance. Morris v. City of Columbia, supra; Southern Pacific RR. Co. v. Bogert, 259 U.S. 483; Foshay Trust Savings Bank v. Public Utilities C. Corp., 64 F.2d 665; Lippow v. City of Miami Beach (Fla.), 68 So.2d 827; Anno. 2 A.2d 369, 121 N.J.L. 380; 30 C.J.S. 524 (Note 6); 62 C.J.S., Secs. 206, 228(2), 319(b), 434(c) pp. 387, 563, 669 832; 44 Words and Phrases p. 319.
Thos. J. Wiltz, Biloxi, for appellee.
I. Ordinance No. 790 of the zoning ordinance of the City of Biloxi, is not void ab initio and would have been at the most voidable, if seasonable attack had been made upon same, before the intervention of and vesting of rights of third parties and interests of great proportion, and in any event, there was a substantial compliance with the law in the enactment of the ordinance, and the defendants below and appellants here would now be estopped to attack same and precluded by laches, as an equitable proposition. Holcombe v. Clarksdale, 217 Miss. 892, 65 So.2d 281; Benequit v. Borrough of Monmouth Beach, 125 N.J.L. 65, 13 A.2d 847, Vol. VIII, McQuillin on Municipal Corporations, pp. 552-53; Arrington v. Masonite Corp., 213 Miss. 817, 58 So.2d 10; City of Preston v. Center Milk Products Co., 51 N.W.2d 463; Stone v. Reichman-Crosby Co. (Miss.), 43 So.2d 184.
II. The property in question is properly zoned and is not a permitted nonconforming use, as asserted in Proposition No. 11, urged in the brief of appellants. Holcombe v. Clarksdale, supra; Vol. VI., McQuillin on Municipal Corporations, Sec. 20.9 p. 20.
III. Appellants, defendants in the Court below, in attempting to attack the validity of the ordinance in question, are making a collateral attack, on the proceedings of the Mayor and Board of Councilmen, and such may not be done in this proceeding. Harrington v. Wofford, 46 Miss. 31; Vol. VI., McQuillin on Municipal Corporations, Sec. 20.14 p. 31.
IV. Res adjudicata. At the time of the trial in the Court below, the matters in question were res adjudicata as to the defendants who could not then raise any question as to the ordinance in controversy.
V. Defendant, Mrs. Myrtle Walker, appellant here, is estopped from attacking the validity of the ordinance, by virtue of having sought relief under it and having recognized same by securing permits for construction thereunder. Vol. VIII, McQuillin on Municipal Corporations, Sec. 25.291 p. 553.
VI. The operation of the appellants constituted a nuisance, as the Court below so found, and would be enjoined on such basis.
VII. The appellants cannot prevail on this appeal for the further reason that the appeal must be dismissed in that the cause has now become moot, as will be reflected by motion to dismiss appeal and supporting affidavits filed in the cause. Orgill Bros. v. Roddy Robertson Engineering Co., 227 Miss. 291, 86 So.2d 37; 3 Am. Jur., Sec. 736 p. 313.
APPELLANTS IN REPLY.
I. A zoning ordinance, where amendatory to an invalid ordinance, is not enforceable alone. State ex rel. Manheim v. Harrison, 164 La. 564, 114 So. 159; Mobile County v. Williams, 61 So. 963; City of Kewanee v. Calender, 324 Ill. 476, 155 N.E. 275; Dean Milk Co. v. City of Aurora, 88 N.E.2d 827.
II. Appellants are in a position to attack void Ordinance No. 790, the Biloxi zoning law. Chudno v. Blumfield, 113 Conn. 49, 154 A. 161; Riverside v. Kuhne, 897 Ill. 108, 73 N.E.2d 286; Benequit v. Borrough of Monmouth Beach, 125 N.J.L. 63, 13 A.2d 847; Morris v. City of Columbia, 184 Miss. 342, 186 So. 292; City of Preston v. Center Milk Products Co., 51 N.W.2d 463; Arkansas Fuel Oil Co. v. City of Oxford, 188 Miss. 455, 195 So. 316; Holcombe v. Clarksdale, 217 Miss. 892, 65 So.2d 281; Muenz v. Village of Mayfield Heights, 92 Ohio App. 471, 111 N.E.2d 20; Baddour v. City of Long Beach, 279 N.Y. 167, 18 N.E.2d 18, 19 N.E.2d 90; 62 C.J.S., Sec. 228(2) p. 563.
This appeal is from a decree of the Chancery Court of Harrison County enjoining the appellants from the operation of a commercial business in a residential district of the City of Biloxi in violation of a zoning ordinance. The City of Biloxi filed its bill of complaint against the appellants alleging substantially the following facts:
Mrs. Myrtle Walker was the owner of the west seventy-seven feet of Lot 10, Block 2, Keller Addition (Avondale), on which property there is a two-story building facing Highway 90 and Beach Boulevard; that Mrs. Walker purchased the property in November 1950; that the property was located in a residential section; that during the year 1952 the appellant, Mrs. Deedy Baxter, with the assistance and acquiescence of the appellant Mrs. Walker, started the operation of a ladies'-ready-to-wear shop in the residence; that the operation of the commercial business was in violation of the zoning ordinance of the City of Biloxi, and also that it constituted a nuisance; that on May 16, 1940, the City of Biloxi adopted a zoning ordinance, No. 790, which classified the property of the City of Biloxi into five districts, namely: (1) single family residence districts; (2) two family residence districts; (3) general residence districts; (4) commercial districts, and (5) industrial districts. The property of the appellant, Mrs. Walker, was located in a two-family residence district and any commercial business was prohibited in said district.
The appellants answered the bill admitting the operation of the commercial business and contended that the ordinance establishing the zoning districts was void, and in addition thereto, plead other affirmative defenses.
The chancellor, after a full hearing in which a number of witnesses testified, found that the premises of the aplellant, Mrs. Baxter, was in a residential neighborhood and that the operation of the commercial business was in violation of the zoning ordinance of the City of Biloxi, and further found that the operation of the business constituted a nuisance and enjoined the appellant, Mrs. Walker, from the use and rental of said property for commercial purposes in connection with said use as a commercial activity, and enjoined the appellant, Mrs. Baxter, from further violation of the zoning ordinance in the operation of the ladies'-ready-to-wear shop.
The sole question before us is the validity of the zoning ordinance. Counsel for appellant argues with much force that the ordinance was void in that the municipal authorities did not comply with Sections 3592 and 3593 of the Mississippi Code of 1942, which sections set out the procedure to be followed in adopting zoning laws, and cite the case of Morris v. City of Columbia, 184 Miss. 342, 186 So. 292. Our examination of the record reveals that the municipality did not follow the procedure announced in the above cited case; that although notice was given, it was not for fifteen days as required by the statute. It further appears that a hearing was held and the ordinance later adopted on May 15, 1940. This did not comply with the law. Brooks, et al v. City of Jackson, et al, 211 Miss, 246, 51 So.2d 274. If timely attack had been made in the case at bar, we would have to hold that the ordinance was void as was held in the cited cases; however, in those cases timely attack was made on the ordinances involved. The case now before us presents a different question. The record shows that this ordinance has been in effect since 1940, and has been amended thirty-two times. It is also shown that the population of the City of Biloxi, according to the 1940 census, was 17,475; in 1950, the population was 37,425; that 7100 permits have been issued up to the time of the trial of this cause under the ordinance in question and the amendments thereto; that these permits reflected millions of dollars in expenditures; that houses are being constructed in the residential districts. The general public of the City of Biloxi has recognized the ordinance and acted under it. The appellants in this case have obtained permits and licenses under the ordinance.
(Hn 1) "Waiver, estoppel or laches may operate under certain circumstances to preclude relief against zoning ordinances or regulations. This may be true with respect to defects and irregularities in the mode of enactment of a zoning ordinance. Even with respect to a challenge to the validity of a zoning ordinance, based on a person's constitutional rights, they are private rights that may have been waived by not being invoked." 8 McQuillin, Municipal Corporations, 3rd Ed., Sec. 25.291.
"Property owner cannot attack validity of zoning ordinance because of noncompliance with formal requirements in manner of its enactment, where it has been recognized by him and has been in effect for more than nine years at time objections are asserted. Benequit v. Borough of Monmouth Beach, 125 N.J.L. 65, 13 A.2d 847." Footnote 41, 8 McQuillin, page 552.
It was also held in Benequit v. Borough etc., supra, that "Where there is no laches, however, and an ordinance is attacked within a reasonable time after its enactment, formal or procedural defects will not be tolerated and will cause it to be set aside."
In City of Creston v. Center Milk Products Co., 51 N.W. 463 (Iowa), the Court, in upholding and ordinance, said:
"For twenty-one years the public acquiesced in and permitted the exercise of authority, under the Zoning Ordinance, throughout the City. During this time and in reliance upon the validity of the ordinance there have been changes in conditions involving extensive property interests. An adjudication that the ordinance never took effect, because of the failure to strictly comply with the statute requiring its publication after its adoption, would result in much confusion and loss. Such a sacrifice should not be demanded upon merely techincal grounds. Under the circumstances the doctrine of estoppel is applicable. After such long acquiescence by the public with the results above stated, no one may contend the ordinance never took effect because of irregular publication." (Citing cases)
(Hn 2) In view of our conclusion on this question, we do not consider the nuisance aspect of the case. Under the facts and circumstances of this case, we are of the opinion that the ordinance should be upheld. On the other questions raised by the appellant, the chancellor's finding on the conflicting testimony disposes of these questions, and we think there is ample evidence to support the same.
The motion to dismiss this appeal, which was passed until consideration of the case on its merits, is dismissed.
It follows from what we have said that the decree of the court below is affirmed.
Affirmed.
Roberds, P.J., and Kyle, Ethridge and Gillespie, JJ., concur.