THE JUDICIAL VIEW OF THE RELATIONSHIP BETWEEN

LAND USE AND TRAFFIC

BY

Robert F. Trojanek

A THESIS

Submitted to the College of Business and Public Service
of Michigan State University of Agriculture and
Applied Science in partial fulfillment of
the requirements for the degree of

MASTER IN URBAN PLANNING
Department of Urban Planning and Landscape Architecture

1960

@1962

Robert F. Trojanek
East Lansing, Michigan

All Rights Reserved

327i9/
ail/1':1 / 'J ‘7!

ABSTRACT

THE JUDICIAL VIEW OF THE RELATIONSHIP BETWEEN
LAND USE AND TRAFFIC

by Robert Trojanek

Each of the several United States has enacted Zoning
Enabling Legislation which states the purposes of zoning.
One of these purposes can provide the basis for minimizing
further increase of traffic upon the streets and highways.
"The Purpose," as it is used throughout this thesis, is that
of "lessening the congestion on the public streets and
highways."

With the development of new and specialized land
uses which cater solely to the users of automobiles, the
incidence of two—car families and three-car families has
been rising steadily. The American uses his car for every
imaginable use, from the trip to the local store to get a
loaf of bread to extended vacation trips. More people are
moving to the suburbs, and the commercial establishments,
business, and industrial developments are moving along
with them to be closer to the customers and employees, as

well as to have space for adequate parking facilities.

Robert Trojanek

These developments are some of the factors creating great
volumes of traffic and consequent congestion.

This study undertakes to: (l) establish that there
is a direct relationship between traffic and land use, (2)
examine and discuss the judicial View of this relationship,
and (3) analyze, study, and recommend what can be done to
give the Zoning Enabling Acts, and therefore the Municipal
Zoning Ordinances, greater control in the development of
land uses.

The main portion of this study consists of the
reporting and analysis of court cases involving zoning in
order to see if the subject of traffic and congestion was
injected into the discussion of the case and to determine
if any of the decisions were definitely based upon the
purpose of "lessening congestion on the public streets and
highways."

The cases included in this thesis cover a wide
range of zoning districts, from various residential classi—
fications to industrial and parking classifications. Over
2,500 zoning cases were read or scanned, and of these over
300 contain some mention of traffic or congestion ranging
from a passing reference to "The Purpose" to quite extensive

traffic discussion, traffic counts and traffic flow data.

Robert Trojanek

Most of the cases reported are from seven states: Cali-
fornia, Connecticut, Illinois, Michigan, New Jersey, New

York and Pennsylvania.

ii
ACKNOWLEDGEME NTS

Material for this study was gathered primarily from
the published records of the courts of the various states
selected for representation in this study. The task of
locating court cases involving material pertinent to this
study required numerous days and hours of time-consuming
effort and research. The few individuals whose positions
enabled them to provide access to such limited material have
been most helpful, and the author wishes to acknowledge the
assistance freely rendered by the staff of the Michigan
State Law Library. Particular thanks are extended to Miss
Charlotte Dunnebacke, Head Librarian, for her patience and
understanding and in giving the author unlimited use of the
library. The help of Miss Maurine Brunner and Mrs. George
R. Sidwell also is gratefully acknowledged.

The author also acknowledges the very patient and
tireless effort rendered by Assistant Professor Carl Gold-
schmidt of the urban Planning Department and the Highway
Traffic Safety Center at Michigan State University, in his
service as faculty advisor to this study. His capable
guidance and suggestions were essential to this study and
have grealy enriched the learning experience which a project

such as this type entails.

iii
FOREWORD

Interest in this thesis topic originated when the
author was doing research work for the Highway Traffic
Safety Center at Michigan State University. While with
the Center the author's work consisted of intensive re-
search: reading and scanning of voluminous material, the
reporting and compiling of information, and final analysis
for presentation to the Center. These were the preliminary
phases of investigation into and consulting practically
all of the many publications related to zoning, such as the
various law quarterlys and reviews, legal and other indices,
books on zoning, and other magazines and publications.
Since it was found that there was very little material
published or available concerning this topic, the field was
narrowed to the court cases of the various states and a few
books relating to zoning. The court case investigation was
commenced while with the Center, and the completion of the
work was done on the author's time.

The termination of the graduate research assistant-
ship with the Highway Traffic Safety Center due to the
conclusion of the required residence work for the master's

degree in Urban Planning took place before the final report

iv

and analysis were written. Therefore it was decided that
the final product would be of more value and of earlier
realization if the person who compiled all of the pertinent
data were to finish it.

With the permission of the Highway Traffic Safety
Center and with the approval of the Department of Urban
Planning and Landscape Architecture, the originally anti-
cipated report is now completed in another form--that of a

thesis for the degree Master in Urban Planning.

TABLE OF CONTENTS

Page
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . ii
FOREWORD . . . . . . . . . . . . . . . . . . . . iii
LIST OF TABLES AND FIGURES . . . . . . . . . . . Vii
INTRODUCTION . . . . . . . . . . . . . . . . . . 1
CHAPTER
I. BACKGROUND . . . . . . . . . . . . . . . . 3
(a) Developments 3
(b) Land Uses 7
(c) Early Legal Developments 13
(d) Traffic and Traffic Congestion 16
(e) Summary 25
II. LEGISLATIVE PROVISIONS - ZONING
ENABLING ACTS . . . . . . . . . . . . . 28
(a) Resume - Discussion 28
(b) Summary - General Comments 35
III. STATES SELECTED FOR STUDY -
RESEARCH DATA . . . . . . . . . . . . . 38
IV. ANALYSIS AND DISCUSSION OF COURT CASES
BY STATE OR STATES . . . . . . . . . . . 43
(a) General Research Findings 43
(b) Analysis and Comparison Of Cases
by Categories 52

V. SUMMARY} CONCLUSIONS AND
RECOMMENDATIONS . . . . . . . . . . . 207

BIBLIOGRAPHY . . . . . . . . . . . . . .
APPENDICES O O O O O O O O O O O O O O O

I. Bibliography of Material Covered
for Each State's Court Reports
II. Data for Cases Reported - Name,
Date, Case Number, Case Code,
and Citation
III. Listing and Brief Description of
Cases in the "L" Classification

Page
225

226

226

229

266

vi

LIST OF TABLES AND FIGURES

Tables
I. Analysis of Zoning Enabling Acts
by States
II. Number of Cases Reported for the
Selected States from 1944 to 1959
III. Category of Cases as Reported by the
Selected States
Figures
1. Total Number of Reported Cases by

Years—+1940—44 to 1959 for the
Selected States

vii

Page

33-34

45

51

46

INTRODUCTION

"The Judicial View of the Relationship Between Land
Use and Traffic" would seem to be a topic for a thesis in
the field of jurisprudence, instead of in the field of
urban planning. A student in law might well be more capable
of investigating and interpreting court cases. However,
traffic congestion has become a problem for the planner
because of the close relationship between the use of the
land—-as well as zoning-—and the increase in traffic and
traffic congestion on our public roads and streets.

Traffic congestion is a very serious problem. Since
WOrld War II, more and more people are owning more and more
automobiles. The two-car family is no longer a rarity.
Coupled with the increasing number of automobiles is the
increasing number of functions which they serve. Today,
there is a multiplicity of new land uses which cater solely
to the automobile and its occupants. Even the desire of
people to own homes on relatively large parcels has con—
tributed to the problem by forcing longer journeys to work.
"Suburbia" as a way of life is surely one of the greatest
causes of traffic congestion on many of our major arteries

today.

That there is a measurable relationship between
tnaffic and land use is an accepted fact.* Furthermore,
'Umere is an established judicial position on the traffic
germaration of the various land uses which might be permitted
Lnxfiar the exercise of the power of zoning by municipalities.**
In aaddition, many states in their zoning-enabling acts,
definitely state in one form or another that one of the
purxnoses of zoning is to lessen congestion in the streets.

The problem is not one of recognizing the situation
or its causes, but rather one of gaining acceptance of
ZCuLing by both courts and municipalities as an instrument

for reducing congestion .

*Robert B. Mitchell and Chester Rapkin, Urban Traffic
éLliggction of Land Use (New York: Columbia University Press,
1954), pp. 3-19.

3 **Village of Euclid,v. Ambler Realty Co., 272 U.S.
65 (47 s. Ct. 114, 71 L. ed 303, 54 A. L. R. 1016).

CHAPTER I

BACKGROUND

Section (a): Developments
Since the invention of the automobile and its evo-
lution into one of the major means of transportation, there
has been a continual increase in congestion upon our streets.
Basically, this congestion has been created by
(l) the concentration of population in large municipal
centers,
(2) more intensive development of land,
(3) more extensive use of the automobile,
(4) the many new and varied types of land uses catering
to the automobile and its occupants,
and to a limited degree,
(5) the increase in the physical size of the individual
vehicle.
All of these factors have developed since the invention of
the automobile, yet, the widespread judicial recognition of
the problem dates back only a decade or so.
Within the past quarter century the automobile has
evolved from the novelty and pleasure stage to the neces—

sity and essential stage. This evolution has occurred due

to the continuation of the expansion of municipalities into
so-called suburban areas, this expansion began originally
with the use of the street car in providing transportation
to persons living on the "outskirts” of town. Americans
have, in the past twenty years, had the desire to live in

a less crowded environment, away from the crowded areas of
the metropolitan and municipal centers. The automobile has
contributed greatly to the influence of this expansion into
the suburban areas. The automobile has provided for greater
ease in going to and from the central city. The more
adequate the roads and streets became, the farther out the
person could reside and still commute to the central city
quite easily. This has gone on until the city and also

the streets cannot handle all of the automobiles adequately
or efficiently and therefore congestion has resulted. The
development of the outer reaches of the suburban areas with
all types of commercial, business and industrial areas, to
help relieve the central city, have caused congestion to
become apparent in these suburban areas also. With this
continual expansion the automobile has become a necessity
because of the lack of adequate public transportation or
the inconvenience of using the public transportation facil-

ities and the effect is therefore that the automobile has

directly caused the decline in public transportation. The
public transportation facilities cannot hope to serve all
of the needed areas adequately today because of the great
distances people will commute or drive for a certain
purpose in mind--whether it be employment or personal uses.
The distances to the shopping areas, to places of employ-
ment, to areas of recreation, and to the areas of enter-
tainment have become so great that the automobile has
become essential. The American has also adopted the
automobile to a great extent for use as the mode of trans-
portation when taking his vacations to tour the country.
With this mass movement of automobiles as sightseeing
facilities, there is the increase of traffic upon the
country highways as well as the addition to the traffic on
the streets of the municipal centers.

With the use of the automobile as the essential
means of transportation for everyday use the problem of
land use and traffic congestion relationships can be seen.
Any land when put to use will probably depend upon the
motor vehicle to provide transportation for prospective
customers, for its own employees, and for the suppliers of
its own goods and services. With this attraction of the

motor vehicles, the streets will be called upon to bear a

heavier load of traffic, and possibly also to serve as
parking facilities. This overloading is evident unless
adequate provisions and regulations can be provided through
zoning regulations for the development of the land use.
Zoning ordinances can provide for regulations to furnish
adequate parking facilities, to provide ingress and egress
regulations, and provide for the possible analysis of the
adequacy of the streets in the area which are to serve the
land use. All of these means can assist in the relief of
the possible traffic and the resultant congestion of the
streets.

The purpose of this study is to examine and expand
upon the causes and effects of the problems developed by
land uses and their relationships to traffic congestion
of the streets. This examination and analysis is based
mainly on an investigation of pertinent court cases. The
court cases utilized were selected on the basis of the
discussion of problems involved by virtue of their review
by an appellate court. The material used for the analysis
of land use and traffic congestion relationships is based
upon the court decisions and upon the zoning enabling laws
of the several selected states. One of the purposes of

zoning, among those which are stated in these laws, is the

lessening of congestion on the public roads or streets. It
is this purpose which forms the basic formula of this thesis.
For the purposes of this study the following terms
are defined:
LAND USE—-the utilization of land by human activity.

TRAFFIC--the movement of people and goods by motor
vehicles upon public rights of way.

TRAFFIC CONGESTION—-the over—concentration of the movement
and the using of, the human's modes of transportation
upon his roads and streets to the point at which the
traffic will no longer move at a ”normal” pace but
becomes slowed and hazardous due to the voluminousness
of traffic movements and the intervening of automobile
conflicts.
Section (b): Land Uses
Every time a piece of land is put to,use, theoreti-
cally that use is attracting motor vehicles. This attraction
of automobiles stems from the use of that land for business,
living, pleasure, employment, or for other purposes. When
a parcel of land is developed for a particular use, the
users will always need a way of ingress and egress. Further,
part of that area may be needed either as a parking area or
as a storage area for the mechanical conveyances attracted
by the new use.

Every time land is put to use, that use may increase

traffic congestion. Every opening onto the street, whether

it is from a parking lot, a service drive, or a driveway,
as well as the resultant parking of the automobiles on the
streets, will create problems, slow down traffic, create
traffic hazards, and thus cause congestion. The effects
of the land use upon traffic may not only be felt upon,

or in front of, or adjacent to the parcel of land being
used, but may also affect the traffic and cause congestion
and hazards for several blocks from the property being used.
In order to relieve the traffic congestion and hazards
created by the particular land use, provisions will even-
tually have to be made elsewhere to accommodate the
increased parking demand and traffic flow that has been
indirectly caused by the use of that parcel of land. These
provisions may be in the form of additional parking facil—
ities, street widenings, rearrangement of traffic flow, or
stricter regulations in the traffic codes.

A single residential use of land may, for instance,
create a very minor change in the traffic pattern. In the
case of a multiple-family residential use the traffic
change will become more apparent. Increase the multiple-
family residential use several times and the traffic be-
comes increasingly more noticeable. These proportions of

traffic increase potentials keep enlarging for each type

of land use, from the more restrictive land uses (i.e.
single—family residential types) to the less restrictive
land uses (i.e. heavy industrial types). When business,
commercial, and other or more concentrated land uses are
compared to residential uses, usually traffic congestion
problems are substantially larger. When the intermingling
of a larger traffic generator, such as a commercial use,
with one that creates little traffic generation, such as

a single-family residential use, is permitted through
improper zoning practices, there is actually a deterioration
of the efficient traffic pattern on affected streets and
highways. This intermingling usually causes deterioration
in areas which normally are not adequate—~or prepared--for
this impact of increased traffic and the resulting traffic
congestion.

As an example, when a supermarket or some other
intensive land use is placed in a strictly residential area,
it is sometimes felt to be a detriment to that residential
area. Such use may not have its effects felt immediately,
but it will if given a little time. Residential property
values generally decrease; deterioration of the surround-
ing area is then likely to result. It may also form a wedge

for other intensive uses to invade the area.

10

When a supermarket is placed in the residential
area, place is needed to park the added vehicles of the
employees and the customers. Trucks and other types of
commercial vehicles are necessary to service and supply
the supermarket. All of these additional functions add
to the traffic flow and thereby add to the traffic con-
gestion problems. With the addition of more traffic there
is an indirect effect upon the surrounding land uses:
possible parking in the streets, slowing down of traffic
due to more traffic movement, new hazards, and more noise
in a once quiet neighborhood.

In order to relieve the traffic congestion problems
created in such situations, adequate measures should be
taken through effective and enforceable legislation and
through well-organized and defined zoning ordinances. Along
with the measures of control of the land use, there are
also needed the properly organized planning agencies upon
which usually lies the responsibility of preparing the
zoning ordinances and comprehensive plans, and there are
also needed adequately prepared and enacted regulatory
powers upon which the zoning ordinances rely for enforcement.

The control of the land uses is one of the ways in

which we can help prevent traffic congestions. In 1935

ll

Messrs. Bassett and Williams said, "It is urged that the
control of the land bordering on main highways is essential
. l
to their usefulness for traffic over them." To control
land uses, local governments must be given certain regula-
tory powers. The regulatory means or instruments upon which
the municipalities rely are the powers which are granted
to them through the zoning enabling acts. These give the
municipalities the powers to classify the land within the
municipality into various uses. As a typical example, the
City and Village Zoning Act of the State of Michigan
includes the following:
Provide[s] for the establishment in cities and villages
[or other types of governmental units] of districts or
zones within which the use of land and structures, the
height, the area, the size and location of buildings
may be regulated by ordinance, . . . to provide by
ordinance for the acquisition by purchase, condemnation
or otherwise private property which does not conform
to the regulations and restrictions of the various zones

or districts so provided; to provide for the adminis-
tering of this act. . . .2

 

1Edward M. Bassett et al., Planning Law ("Har-
vard City Planning Studies," Vol. VII (Cambridge: Harvard
University Press, 1935), p. 30.

 

2Michigan Department of Economic Development,
Michigan Laws Related to Local Planning (City and Village
Zoning Act, Act 207 of the Public Acts of 1921 as amended,
Lansing, Michigan, June 1949), p. 59.

12

The Act also regulates and restricts the power of munici-
palities in the following manner:

The legislative body of cities and villages may regu-
late and restrict the location of trades and industries
and the location of buildings designed for specified
uses and for such purposes divide any city or village
into districts of such number, shape and area as may be
deemed best suited to carry out the provisions of this
section. For each of such districts regulations may
be imposed designating the uses for which buildings or
structures shall or shall not be erected or altered,
and designating the trades and industries that shall be
permitted or excluded or subjected to special regula—
tions. Such regulations shall be made in accordance
with a plan designed to lessen congestion on the public
streets.[emphasis supplied], to promote public health,
safety and general welfare, and shall be made with
reasonable consideration, among other things, to the
character of the district, its peculiar suitability for
particular uses, the conservation of property values
and the general trend and character of building and
population development.

 

The Act also provides for the regulation of buildings
and gives the authority to zone. It also empowers legislative
bodies to adopt zoning ordinances and other regulations and
provisions. The preceding quoted portions of the Michigan
Zoning Enabling Act are typical of the ones of other states.

This section has established that land uses do have
a direct effect upon traffic and traffic congestion on the
roads and streets. Provisions for the controlling of these

land uses has been made in the powers granted by the State

 

3Ibid., p. 60.

13

Zoning Enabling Acts. When the unregulated development

along the roads and streets was recognized in 1935 as a

cause of traffic hazards and congestion, Mr. Whitten said:
. . . the present unregulated and disorderly roadside
development is destructive of property values and is
a serious handicap to the safe and efficient use of
the highway. By control of the development along the
rural highway [as well as municipal streets] many
traffic dangers and unnecessary interruptions to traf-
fic flow can be avoided, . . . and the appropriate and
orderly use of adjacent property promoted and its value
protected.

Section (c): Early Legal Developments

Even though the problem of traffic and the resulting
congestion of the streets in the United States has been
more noticeably increasing since the invention of the auto-
mobile, the problem was by no means unknown prior to that
time.

The problem of traffic and congestion was considered
as far back as 1889 in the United States, when the New York
State Court of Appeals based a decision upon the principal
factors of an English case, in which Lord Chief Justice

Ellenborough in 1812 had declared: ”The King's Highway is

not to be used as a stable-yard."5 The latter case referred

 

4Bassett et al., p. 133.
5Rex v. Cross, 3 Camp. 224, 170 Eng. Rep. 1362 (1812).

14

to the use of the public streets for loading, unloading, and
standing of stage coaches. The unloading and loading were
to be done in a reasonable time, and private premises were
to be procured for the coach to stop at during the inter-
val between trips, the end of one trip and the beginning

of another.

E. C. Yokely has said that "There is early legal
precedent that at least points up the need for clearing
the streets of congestion due to the propensities of some
to exercise squatters rights to the exclusion of the use
of the streets by others," and then he used the case of
Rex v. Cross as an example.

The trial court's decision in the 1889 New York
case described the following course of events in the state—
ment of the case:

Evidence was given on the trial tending to prove the
following facts: On the morning of October 20, 1879,
said Cohen was walking through Attorney street in such
city, and at the same time an ice wagon was passing
south through that street, and a wagon loaded with
coals was coming north through the same street. A
grocery wagon without any horse attached was standing
in front of the grocery store kept by one Marks, who

owned the wagon. The thills were tied up in a perpen-
dicular manner with some kind of string, and the length

 

6 . .
E. C. Yokely, Zoning Law and Practice, Vol. II

(2nd ed.; Charlottesville, Virginia: The Michie Company,
Law Publishers, 1953), p. 93.

 

'nfi

15

of the wagon, was parallel with the street. For some
reason the driver of the ice wagon started up his
horses, seemingly for the purpose of passing the
grocery wagon before the driver of the coal wagon should
reach it. The street was narrow and the ice man's
wagon caught in someway against the wheel of the gro-
cery wagon, and turned the wagon somewhat around, so
that the thills came down on the sidewalk. At that
time Cohen was passing and the iron on one of the
thills struck him on the head. . . . The wagon was used
by its owner, the grocer, as the evidence tended to
show, for the purpose of facilitating the transaction
of his private business, and it was in no sense a
public cart. When not in actual use the wagon was kept
in the street in front of the owner's grocery store,
day and night, under a permit which was granted by
defendant. . . . No law or ordinance existed which gave
jurisdiction to the defendant, through its Common
Council, or through any of its officers, to license or
permit such a use of the highway. . . . Judgment in
favor of the defendant.7 [Lower court.]

In the opinion of the Court of Appeals Judge
Peckham said that

The storing of the wagon in the highway was a nuisance.
The primary use of a highway is for the purpose of per—
mitting the passing and repassing of the public, and it'
is entitled to the unobstructed and uninterrupted use

of the entire width of the highway for that purpose,
under temporary exceptions as to deposits for building
purposes, and to load and unload wagons, and receive

and take away property for or in the interest of the
owner of the adjoining premises, which, it is not now
necessary to more specifically enumerate.

It is no answer to the charge of nuisance that, even
with the obstruction in the highway, there is still

 

7Cohen v. Mayor, 113 N. Y. 532, 533, 534, 21 N. E.

700 (June 4, 1889).

16

room for two or more wagons to pass, nor that the
obstruction itself is not a fixture. If it be perma-
nently, or even habitually in the highway, it is a
nuisance. The highway may be a convenient place for the
owner of carriages to keep them in, but the law, looking
to the convenience of the greater number, prohibits any
such use of the public streets. The old cases said the
king's highway is not to be used as a stable yard, and

a party cannot eke out the inconvenience of his own
premises by taking in the public highway. These gen-
eral statements are familiar and borne out by the cases
cited.8

Judge Peckam reversed the judgment of the Supreme Court
(the lower court) which had affirmed a judgment in favor of

the defendant.

Section (d): Traffic and Traffic Congestion

Prior to WOrld War II the volume of traffic on the
roads seemed to be of little concern to the nation, except
possibly for a very few large metropolitan centers. But
since the conclusion of world War II there seemed to be

figuratively an "explosion," of the automobile population.

 

81bid., 535, 536.

Cases cited in this case:
King v. Russell, 6 East, 427 (1805).
B§§.V- Cross, 3 Camp. 224, 226, 170 Eng. Rep. 1362, 1363
(1812).
§§x_v. Jones, 3 Camp. 230.
People v. Cunningham, l Denio, 524.
Davis v. Mayor, etc., 14 N. Y. 506, 524.
Callanan v. Gilman, 107 N. Y. 360.

17

With this great increase of automobiles the roads and
streets of the cities, towns, the suburban areas and the
country as a whole felt this impact of traffic.

The factors influencing the increase in the volume
of traffic on the streets are many, as previously stated in
Section (a) of this Chapter. The intensive use of the
automobile by individuals has evolved together with the
development of land uses that depend dteCtly upon the motor
vehicle for their existence, and which have been provided
purposely for the convenience of the customer. These land
uses, among others, are drive-in theaters, drive-in banks,
drive—in restaurants, shopping centers of various types,
and other types of drive-in facilities.

Because more parking facilities have been provided
and because reaching the older developed portions of exis-
ting cities has been made easier, the motor vehicle has
been attracted to cities even more than before. The estab-
lishment of ribbon commercial developments along the major
roads and streets can be directly attributed to traffic.

As the people realize they can live farther out
from the city and still easily get to the core of the city

on newly constructed expressways, more people tend to live

18

at a greater distance from the core of the central city.
Eventually "bedroom" communities develop. These communi-
ties, developing around all of the larger cities, cause the
traffic into the central city to become more voluminous,
thus causing congestion of the streets.

It is well known that important highways and streets
which carry the greater amount of the traffic volume,
attract business and commercial establishments. One rea-
son seems to be that the owner of land bordering heavily
traveled streets will usually say that the only logical—-
or best--use is for business or commercial use. The writer
has often wondered if it is seriously realized that for
every business, commercial or other intensive use more
drives, parking, servicing and delivering and other facili—
ties have to be provided in excess of those required for
residential uses. Incidentally intensive use is a land use
which attracts large numbers of people and/or automobiles,
more than a residential use. These needed facilities
result in more points of conflict. "Points of conflict"
are the cross-overs of vehicles in the traffic flow thereby
creating more possible points in which an accident can
occur. The number may seem negligible for each individual

parcel of intensively used land. When these intensive uses

19

are continually increased up and down the streets, serious
traffic congestion problems are created.

The altogether too-common practice of allowing busi-
ness, commercial, and industrial uses to develop along the
major network of streets has caused a dangerous situation.
With the development of these intensive uses, the street and
highway speed has been slowed considerably. This slowing of
traffic creates irritation and dissatisfaction in the driver
of the motor vehicle, and then he is tempted to be a little
less careful and becomes restless; therefore he tries to
find short cuts--and these short cuts eventually are through
the residential areas thereby causing an increase of traffic
in these once quiet areas. As a result, there may soon be
a request for rezoning of the land bordering on these heav-
ily traveled residential streets because of the deteriora-
tion, or traffic congestion, and then the whole cycle
begins over again.

The development of these intensive uses along the
streets and highways is known as "strip commercial," or
“ribbon commercial," or "business strips," or by other
similar nomenclature. It may be pointed out here that the

expressways and limited access highways have prohibited or

20

limited the egress and ingress upon them'and are therefore
limiting the land use adjacent to them.

Another effect that traffic and congestion have upon
land use relates to the value of the land adjacent to cer—
tain streets and highways. Land tends to produce more
income for the owner if he can sell his land for or if he
can use it for commercial purposes than if it is used for
residential purposes. A major factor that usually makes
these properties low in residential value is of course--
traffic. The land along the major streets is usually more
desirable, hence more valuable, for commercial or other
types of intensive uses than it is for residential uses.
Will this mean that all of the streets, just because they
are heavily traveled, have to be turned into "strings," of
land uses which create far greater traffic problems by in-
creasing the volume of traffic and increasing the traffic
congestion?

What are some of the possible ways or solutions that
can be applied toward alleviating this rapidly expanding
problem of traffic congestion? Providing expressways and
limited access highways, widening the streets, and creating

oneaway traffic flow, among other things, can afford some

21

temporary relief. In recent years and in most American
cities some provisions have been made, some construction and
planning have been done; some have helped and some have
failed. As streets are widened and new thoroughfares are
constructed in urban areas, there always seems to be crea—
ted an immediate increase of automobile traffic and the
resulting congestion within these areas. Because the new
or easier means of access had been designed and built to
the central part of the cities to relieve traffic conges-
tion, the resultant impact of additional traffic creates
additional parking problems, chokes up the streets again,
and creates more congestion; the municipality finds itself
in the same predicament as when it started. This sequence
can turn into a vicious cycle as pointed out in 1935 by Mr.
Robert Whitten when he said in a discussion that
The motor age has also created the need for modern high—
ways or expressways. The type and volume of present-day
traffic require different highway facilities from those
adequate and suitable in former days. It is now recog-
nized that every large metropolitan community needs a
limited number of expressways and parkways, and that
these are necessary not only to prevent congestion .
and the slowing down of the business and life of the

community, but in order to prevent the blighting of the
residence sections.

Many state and county highways constructed during the
past ten years have gradually become less and less
adequate for the purposes of motor travel because of

22

the uncontrolled development of their frontages. Clus-
ters of filling stations and other business uses have
created bottlenecks for through traffic. The subdivi—

‘1 sion of adjacent lands and the opening of numerous
interSecting streets have tended to give the former
open highway the characteristics and disadvantages of a
narrow village street.

In some instances a by—pass highway has been construc-
ted around a community with a View to avoiding the
slowing down of traffic incident to a built-up city
street. In a few years, however, a shoe—string build—
ing development along the new route has created the
same undesirable traffic conditions to avoid which was
a chief purpose of the construction of the by-pass.9
This has been true, and today these roads are being by—wu
passed again. Even some of the highways built since World
War II are obsolete today and have to be corrected. Mr.
Whitten also said, "The enormous expenditures that are
being made for highways cannot be justified unless invest-
ments are protected by some continuing control of the uses
. 10
of the abutting land."
Another way of reducing traffic congestion is to
require off-street parking facilities for all businesses,
industries, and other major land uses. When the streets

are relieved of the necessity of serving as parking lots,

more lanes of moving traffic may be opened up. The

 

9Bassett et al., pp. 133-134.

10Bassett et al., p. 134.

23

establishment of such parking facilities is often effected
through zoning ordinances. The regulations are usually
based upon the type of use, the square footage of floor
area, the number of persons employed, or the number of
customers. In addition, due to the increase in the length
and width of the automobile there has been a decline in
the number of parking spaces in the existing parking facil-
ities in the last ten to fifteen years, thereby causing
more cars to be parked in the streets or necessitating con-
struction of additional parking facilities to take care of
the loss in parking spaces of the older parking facilities.
In the development of concentrated shopping cen-
ters either adjacent to or some distance from the major
streets and highways, there may be required a network of
traffic routes designed and built specifically to serve
the shopping area adequately and efficiently without inter-
fering with the local or residential streets. This will
also tend to relieve traffic congestion on streets that
are inadequately prepared to handle the increase in traf-
fic caused by the shopping center. There also may be
requirements for shopping centers to provide for adequate
and sufficient off-street parking spaces that are needed to

serve the shopping center and thereby stop forcing the cars

24

to park on the adjacent streets. Such practices may be
causing the decline of the ribbon developments so common in
the past, and still being allowed today. In the planning
and development of new industrial areas, and the redevelop—
ment of older ones, the provision of off—street parking
facilities and off—street loading and unloading areas
should be required; and, also, in addition, an attempt
should be made at relieving the congestion created by the
trucks and employees' automobiles traversing and parking

on the local and residential streets through the construc-
tion of adequate roads to and from the industrial areas to
further relieve traffic congestion.

This section has established that traffic and
traffic congestion not only affect the land use bordering
on or adjacent to the streets and highways, but has also
shown that where heavy traffic and congestion occur, the
streets and highways eventually become obsolete as avenues
serving as adequate transporation routes. The streets
that have heavy traffic and congestion usually affect the
use of the land in an undesirable way. By this it is meant
that usually a more intensive land use will develop thus
adding more traffic and congestion to the heavy traffic

and congestion that is already existing. When this traffic

25

and congestion becomes so great as to decrease the actual
effective use of the street for travel, remedial correcé
tions have to be made. If when the remedial corrections
are made, and there is not adequate regulation of the adja-
cent land uses, the cycle of traffic and congestion will

repeat itself again.

Section (e): Summary

The advent of the automobile provided the nation
with a problem that has been steadily increasing. In the
last quarter century the automobile has had an influence
upon the development of the municipalities far beyond the
dreams of man at its first appearance. Within the last
decade the municipalities have been experiencing such an
increase in traffic and its resultant congestion that they
are feeling the effects in many ways. The development of
land uses bordering on the streets and highways has been
influenced by the motor vehicle. The traffic and conges—
tion on the roads and streets has been increased by the
land use adjacent to these roads and streets.

Therefore, there are direct relationships between
traffic congestion and land use. One of the factors that

can be controlled is the land use. Land use can be

26

controlled by the zoning ordinances of the municipalities.
By providing for adequate regulations and provisions through
zoning ordinances, specific measures can be provided that
can be applied to the land use which can tend to relieve
traffic congestion. Notably among these measures can be the
adequate provision for off-street parking facilities, for
limiting the egress and ingress to and from the streets,

for limiting of the size and use of the structures, and for
providing the means and the powers whereby the municipali-
ties have the authority and the legal instruments to accom-
plish what is deemed necessary to help relieve congestion

in the streets.

The right to zone, to regulate, and to enforce
adequately prepared zoning ordinances is granted to the
municipality through the zoning enabling acts which have
been enacted by the legislatures of the various states.
These acts, among other provisions, set forth the purposes
of zoning, which are the basis for the preparation and
presentation of zoning cases in the courts.

As a very simple statement of land use and traffic

congestion relationships the following may be offered:

(2)

(2A)

Zoning controls land use,

-Land use affects traffic,

Traffic affects land use,

Increased traffic increases congestion.

 

27

The following diagram may show this more clearly.
ZONING
1.-
LAND USE TRAFFIC

 

f

CONGESTION

28

CHAPTER II

LEGISLATIVE PROVISIONS—-

ZONING ENABLING ACTS

 

Section (a): Resume - Discussion

The Zoning Enabling Acts are acts that provide for
the establishment of districts or zones in municipalities
within which the use of the land and structures, the
height, the area, the size and the location of buildings,
among other things, may be regulated by ordinance. lTheseLE
acts will usually state in some way that such regulationsj
must be made in accordance with a plan designed to lessen.
congestion of the public roads and streets.

When and where did the first Zoning Enabling Act
originate? In 1924 the United States Department of
Commerce prepared a Standard State Zoning Enabling Act,

. ll .

which was revised in 1926. It was generally followed

slavishly in the preparation of the Acts of the States.

 

ll . .
U. S” Department of Commerce, Adv1sory Committee

on Zoning, A Standard State Zoning EnablingiAct (Revised
edition; Washington D. C.: U. S. Government Printing Office,
1926).

29

Mr. Herbert Hoover, then Secretary of the Depart—
ment of Commerce, in his Foreword in the "A Standard State
Zoning Enabling Act," said:

The importance of this standard State zoning enabling
act can not well be overemphasized. . . . The urgency
of the need for such a standard act was at once demon-
,strated, when, within a year of its issuance, 11
States passed zoning enabling acts which were modeled
either wholly or partly after it. (By 1925 the follow-
ing 19 States had used the standard act wholly or in
part in their laws: Arizona, Colorado, Delaware,
Florida, Georgia, Idaho, Illinois, Iowa, Nevada, New
Hampshire, New Jersey, North Carolina, North Dakota,
Oklahoma, Pennsylvania (sic.), Rhode Island, South
Carolina, Utah, and Wyoming.) Similar acts have been
introduced in four other States, with the prospect of
more to follow.

* * *

In this rapid movement the fundamental legal basis on.
which zoning rests can not be overlooked. Several

Of our States, fortunately, already have zoning enab-
ling acts that have stood the test in their own courts.
This standard act endeavors to provide, so far as is
practicable- to foresee, that proper zoning can be
undertaken under it without injustice and without vio—
lating property rights. . . .1

In 1935 Messrs. Bassett and Williams prepared a
Model Municipal Zoning Enabling Act.13 It was based upon
the Standard State Zoning Enabling Act and also bears cer-
tain similarities to the then existing Zoning Statutes of
the State of New York. Pertinent excerpts from this later

Model Act follow:

 

12 . ... .
Ibid., p. 111. (Foreword by Herbert Hoover.)

3
Bassett et al., pp. 31—38.

30

14
MUNICIPAL ZONING ENABLING ACT

Title.

AN ACT in relation to the regulation of the height,
bulk, and use of buildings and other structures;
the use of lands; and the density of population
in municipalities.

SECTION. 1. GRANT OF POWER. For the purpose of
promoting health, safety, morals, or the general wel-
fare of the community, the legislative body or every
municipality is hereby empowered to regulate and
restrict. . .

SEC. 2. DISTRICTSJ For any or all of said pur-
poses the local legislative body may divide the muni-
cipality into distriCts . . . and within such districts
it may regulate and restrict. . . . All such regula-
tions shall be uniform for each class or kind of build-
ings and for the use of land throughout each district,
but the regulations in one district may differ from
those in other districts.

SEC. 3. PURPOSES IN VIEW. Such regulations shall
be made in accordance with a comprehensive plan and
designed to lessen congestion in the streets; [emphasis
supplied] . . . Such regulations shall be made Wifll
reasonable consideration, among other things, of the
character of the district and its peculiar suitability
for particular uses, and with a View to conserving the
value of buildings and encouraging the most appropriate
use of land throughout such municipality.

 

l4 . .
The names given to local governments in the laws

of the different states vary. Besides various types of
municipalities, the Zoning Enabling Act may refer to counties,
townships, or other larger political units and, the proper
wording in any given state is left to the local drafters.
There are several portions of this Model Act, by Bassett and
Williams, in which wording has been changed and new words or
phrases added which were not in the Standard State Zoning
Enabling Act.

31

The other sections concern the method of procedure, changes,
zoning commission and the board of appeals, and the final
section concerned conflict with other laws. One of the
sections concerned enforcement. That section is:

SEC. 8. ENFORCEMENT AND REMEDIES. The local leg-
islative body may provide by ordinance for the enforce-
ment of this Act and of any ordinance or regulation
made thereunder.

One of the purposes of zoning as stated in the

Acts which has been consistently emphasized throughout this

paper is to lessen congestion in the public roads and

 

streets. Also one of the regulations of the acts is to

 

regulate the use of lands——or land uses. Therefore, putting
these two statements together, there must have been some
indirect and unforeseen correlation, and evidence seen, in
the traffic congestion and land use relationships at the
time the acts were formulated and enacted by the states in
general, as the majority of the states have included the
purpose in some manner in their respective zoning enabling
acts. The purpose is also incorporated in the zoning ordin-
ances in general, which have been adopted by the various
types of local governmental units in many instances.

The zoning enabling acts of all 50 states have been

investigated to see if the purpose of lessening congestion

32

in the public streets was incorporated. Enabling acts for
all types of governmental units of each State were investi-
gated as thoroughly as possible. These are units such as
city, county, borough, town, township, municipality, parish,
population division or other types of division or govern—
mental breakdown.

The results of this investigation into these Zoning
Enabling Acts are as follows: Of the 50 states, 44 states
and the District of Columbia have the purpose to lessen the
congestion in the public streets--or a similar phrase--
included in one or more of their Acts. Six of the states
did not have the purpose included in any of their Acts:

Alaska

Arizona

Arkansas

California

Hawaii

Ohio
Two of the states above, Arizona and Arkansas, were included
in the above list because the meaning of the enabling acts
was not clear to the author.

In Table I, on pages 33 and 34, is a list of all
the states and the results of the investigation in more

detail. The enabling acts are listed under three major

divisions, to simplify categories. For example, in a state

TABLE I
ANALYSIS OF ZONING ENABLING ACTS BY STATES

= Yes

No

Interpretation

No act or none found

NJZI<
II II

 

 

State15 Municipality Township County

 

Z
2

Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa

Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesita
Mississippi
Missouri
Montana
Nebraska
Nevada

New Hampshire
New Jersey
New Mexico

I 232
lo“)!

I
Z

I
W K K K Z K K |

I
K

I
K 2 2 K K ZI< I

K K K K K K K K K K K K K K K K K K K K 2 K K K K K K 2 N Z 2 K
K

I
K

TABLE I.——Continued

 

 

State

Municipality

Township

County

 

New York

North Carolina
NOrth Dakota
Ohio

Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas

Utah

Vermont
Virginia
Washington
west Virginia
Wisconsin
wyoming

K K K K K K K K 2 K‘K K K 2 K 2 K K K

2 K | I

K K K Z l

K K I K I K N K I

Z Z

 

5Results based on latest information on Enabling

Acts on file at the Michigan State Law Library,
Michigan, April,

1960.

Lansing,

34

35

in which the enabling act is for counties containing a city
over 70,000 population, this is listed under counties in
general (other county divisions of that state may or may

not have the purpose included in their acts). This proce-
dure is also used for cities whether they are listed as lst
or 4th class, as in some states, or by population size

(one type of city classification may have the purpose inclu-
ded in its act but another city classification of the same
state may not have the purpose included). The same proce-

dure again applies to the township division.

Section (b): Summary—-General Comments

Throughout the country, zoning enabling acts,
besides giving the municipality the right to regulate and
restrict land uses through creating and enforcing zoning
ordinances, have been enacted to give the local governmental
units and the judicial systems of the states something upon
which they could rely.

Thus we see that a beginning has been made in legis-
lative measures by which we can hope to c0pe with some
aspects of the traffic problem. Practically every state
has recognized, to a limited degree, that traffic conges-

tion problems can be directly associated with the use of

36

the land. Whether or not these enabling acts have to be
supplemented with further legislation in order to give the
zoning ordinances more or additional regulatory and pro-
visional powers remains to be seen.

In the states that have the purpose of "lessening
congestion in the public streets and highways" included in
their enabling acts, has this provision been used effec-
tively in the various courts when a zoning case comes
before them? Have the courts and the municipalities been
more or less "skipping" over this one important way in
which they can attempt to control the increase in our
already serious traffic congestion problems? Should more
strict and enforceable provisions be provided for in the
enabling acts of the states? Should our judicial systems
be given more definite and spelled out legislative means
and provisions upon which they can provide a sound basis
for their decisions? Should rules and regulations govern?
ing zoning-—1and use-—and traffic relationships be more
precise and definitive?

In the following chapters an attempt will be made
to show reasons and the basic fundamentals in the available
subject matter that can be used in providing an answer to

the above questions. Court cases regarding zoning will be

37

used, together with analyses, discussion, and decisions of
the cases forming the basic portions therein. An attempt
will be made to answer the preceding questions by examining

the judicial reasoning presented in the court cases cited.

38

CHAPTER III

STATES SELECTED FOR STUDY--RESEARCH DATA

In selecting the states for this study it was deter-
mined first that they should represent the three major
divisions of the country--the East, the Midwest, and the
west. Then it was determined that the most populated state
of each of the above divisions should be included so New
York represents the East, Illinois represents the Midwest,
and California represents the west. Incidentally these
three states also contain the largest metropolitan centers
and the three largest cities in the United States, accord-
ing to the preliminary 1960 census figures.

The East, being the most densely populated area of
the country, was felt to be the division that should be
represented by the most states. Therefore four states,
including New York, were selected from this area. Because
the Midwest is second in overall population, two states,
including Illinois, were selected from this division. The
west is represented in all areas of consideration only by
California, which was also chosen for the reason that it
does not have "the purpose," on which this thesis is based,

included in its zoning enabling acts. Hence it is deemed

39

to be pertinent as a comparison state with the states that
do have "the purpose" included in their enabling acts.
The states finally selected for study were:

California
Connecticut
Illinois
Michigan

New Jersey
New York
Pennsylvania

D

O

\lGU’lbLUNH

During the past several years a very large, but
undetermined number of books, magazines, pamphlets, and
various other types of printed matter were used in com—
piling research data. The major portion of the research
centered on volumes concerning various types of court
cases from the selected states.

Of the well over 2,500 court cases that were read
or reviewed, over 300 have been reported on and are listed
in Appendix II, beginning on page 229., The cases range in
importance from those with very minor data concerning
traffic congestion, to those which have very pertinent
data in reference to the problem of land use and zoning to
traffic congestion relationships.

This paper is concerned mainly with the zoning

CaSes in which the court, in its discussion or in its

qpldlion.of the case, and in some instances in its reaching

40

a decision, had involved traffic or traffic congestion in
its deliberations. These cases will be, for the most part,
from the appellate courts; the trial court decisions that
have not been appealed have been practically eliminated
from this study, mainly because the case proceedings are
not normally transcribed and are not readily available.
The cases are usually transcribed (Michigan in particular)
only when the case goes to a higher court. The decisions
were, in many instances, scrutinized as to interpretation
of the purposes as stated in the zoning enabling acts.
There is always the possibility that some of the
cases reported on as of minor importance for reference
material, may have had the problem of traffic and conges-
tion brought up to a greater degree in the lower courts;
this fact can only be determined by the reviewing of the
entire case proceedings from the local courts through the
high court. Therefore, in all cases referred to here,
the decisions of the highest court involved were utilized.
1 3
The evidence for the higher court decisions is taken from
the proceedings of the‘lower courts and sometimes is

supplemented by additional information acquired prior to

or during the higher court deliberations.

The periods of time included in the data of this
study were from various years of 1940—1945 up through
various dates of 1960, unless otherwise noted. The states
and the courts of these states that were covered are
listed in Appendix I, pages 226—228.

New Jersey contributed more cases than any of the
other states. The reason for selecting the cases reported
was that they include material regarding traffic either of
minor or of major importance in relation to this study.
Minor importance may be the casual mention or citing of
the zoning enabling act in regards to purposes, or the
citing of the purposes of zoning including the purpose to

"lessen congestion in the public roads and streets,‘ or one
brief mention of some phase of traffic. The major impor-
tance may include the discussion of traffic counts, inter-
section discussion, effect of traffic on adjacent property,
noises, nuisances of traffic, or description of the
surrounding sireets and other phases of traffic and
congestion.

The states in order of the number of court cases

reported are as follows:

42

New Jersey 84 cases
Illinois 68 cases
Pennsylvania 50 cases
Connecticut 44 cases
Michigan 33 cases
California 21 cases
New York 13 cases

 

Total 313 cases
Also a total of six cases was reported from the states of
Maryland, Florida, Texas, and Oklahoma.

The case listing in Appendix II presents the date
of decision, volume number or citation, and the plaintiffs
and defendants involved. It is surprising to find New York
in last place in the above listing as New York had the
purpose of lessening congestion in the public streets
included in some of its zoning enabling acts. California
does not have the purpose included in its enabling acts,

. . , .
yet more cases are reported than for New York.' The reason
that New York has the least cases reported could be that
the local governing bodies or the local court satisfied
the problems of traffic and congestion in its deliberations
and decisions if it Was brought up and therefore, does not
becOme a factor in the upper court's deliberations and

I

decisions.

43
CHAPTER IV

ANALYSIS AND DISCUSSION OF COURT CASES

BY STATE OR STATES

Section (a): General Research Findings

One result of the research is an indication that
a peak may have been reached in the frequency of zoning
cases in which traffic congestion, some phase of traffic
involvement, or thegpurposeggpught* and land use relation-
ships were used in the opinions of the courts. Of the
seven states studied, California, Connecticut, Illinois,
and New York reached peaks in 1956. Michigan and Penn-
sylvania reached peaks in 1957. New Jersey reached its
peak in 1952,)four years before the majority of the states
studied; the only year that approached 1952 was 1956,
when the next highest number of cases was reported.

The entire number of cases, arranged by years
reported and states, is shown in Table II, on page 45.
Figure l, on page 46 presents the same information in

graph form. Figure 1 also establishes that the peak year

 

*The phrase "to lessen congestion in the public roads
and streets," when not mentioned in its entirety or in part,
will be referred to as the puppose or thegpurpose sought.

44

for the total number of court cases reported for all the
selected states was reached in 1956, and that there has
been a steady decline in the totals since that date.
Categories of land use changes were assigned the
following codes for use in analysis:' the terms of which

are explained on pages 44, 47 and 48.

2:3: Land Uses

A Residential - Residential

E Business and Commercial - Business and Commercial

C Industrial & Manufacturing - Industrial & Manufacturing

D Residential ==Business and Commercial

E Residential :=Industrial & Manufacturing

F Business and Commercial ==Industrial & Manufacturing

G Residential :=Gas Stations

H Business and Commercial ==Gas Stations

I Industrial & Manufacturing ==Gas Stations

J Res., Bus. & Comm., ;=Private, Public,and Quasi-
Industrial & Manufacturing Public Uses

K I Res., Bus. & Comm., ;=Parking Facilities, All

Industrial & Manufacturing Types

L Unclassified(Airports,etc.)

The following explanations apply to the above listing.
1. Items A, B, and C refer to zoning or land use changes
from a more restrictive use to a less restrictive

classification within the same general classification,

45

TABLE II

NUMBER OF CASES REPORTED FOR THE SELECTED STATES
FROM 1944 TO 1959

 

—

 

 

Year Calif. Conn. Ill. Mich. N. J. N. Y. Pa. Total
1944 O O O 2* 1 O O 3
1945 O O 1 O 3 O O 4
1946 O 1 O 1 3 O O 5
1947 O 3 3 2 3 O O 11
1948 1 1 1 O 8 O 3 14
1949 2 3 4 1 7 O 1 18
1950 1 1 2 1 3 O 2 10
1951 1 2 4 1 2 1 1 12
1952 O 5 O O (12) O 3 20
1953 1 4 6 3 2 1 2 19
1954 2 4 6 2 8 3 6 31
1955 2 4 8 2 7 1 5 29
1956 (5) (6) (12) 3 9 (4) 5 44
1957 1 1 7 (10) 5 1 (10) 35
1958 4 5 8 2 4 0 7 30
1959 1 4 6 3 7 2 5 28
Total 21 44 68 33 84 13 50 313

 

*Michigan cases listed under 1944 include years 1940-
1944.

46

mwumum omuomamm man now mmma on vvuovmauumummw an mammo wouuommm mo Hmnssz Hmuoe .H .mam

KKWN figma
mmma wmma hmma omma mmma gmma mmma mmma Hmma omma mvma mvma hvma mvma mgma Iovma
o
m
0H
ma
om
mm
MHCHOMHHMU mmmm
USUADOOQCOO 0m
mm
cmmasoflz
ow
mmmumh 3oz
mg

 

xuow 3oz

mflcm>ammccwm

 

SHSVO JO HHHWHN

47

or vice versa. For example, Residential - Residen-
tial may mean (1) change of zone or use from single
family to a multiple family, or vice versa; or (2)
removal of restrictive zoning measures, such as
height, ground coverage, or square footage of lot
or building area. Agricultural and farming zones,
and areas of open residential use are included in
the residential categOry.*fi

In D, E, and F, the double arrow means that (1) the
case involves a change from a more restrictive use
toga less restrictive use of a different type of
use classification, or vice versa; or (2) the case
involves change from a more restrictive use to a
less restrictive use, or vice versa, and a subsequent
attempt to nullify the change.

Items G, H, and I are used because of the ever
increasing number of gas stations being built in
all types of land use classifications zones. These
cases are ones in which the gas» station is the
major part of the land use in question. The double
arrow means changing the zone from one use to another

use and a subsequent attempt to nullify the change.

48

Item J refers to churches, public and private
schools, private clubs, public and private swim-
ming pool facilities, and other types of public
and private land uses in which numbers of persons
are likely to assemble.

Item K is also treated separately because of the
increase in the number of parking facilities,
whether it be a parking lot or a parking structure.
If the parking facility was in conjunction with a
business or other use, in which the parking facil-
ity was secondary, the case is listed under the
specific land use categories above.

Item L the "unclassifiable" cases are ones in which
there were peculiar circumstances which prevented
the case from being listed in one of the other 11
categories or was another type of use, such as an
airport zone. Also other types of cases, such as
nuisance cases, are in this category, but are
reported because they had the subject of zoning
and/or land use brought up and there was some ref-

erence to traffic and congestion.

49

More cases evolved out of a zoning change from
Residential :=Business and Commercial,Dqthan evolved out of
any other change, embracing approximately 33% of the court
cases reported.

The second highest of the types of changes was of
the A,Residential - Residential type; this group included
approximately 14% of the total cases reported.

The third highest of the 12 types of categories
was E.with 32 cases reported, Residential ==Industrial and
Manufacturing, and then followed B, with 31 cases repor-
ted, Business and Commercial — Business and Commercial, or
approximately 10% each of the total number of cases repor-
ted. Also the J classification had a total of 31 cases
reported.

The top five categories accounted for over 76% of
the total number of cases. These findings may indicate
that these five categories may need more thorough study
by the various legal authorities to establish possible
reasoning in writing, interpreting, , and making deci—
sions regarding zoning ordinances. Possible further expan—
sion upon traffic and traffic congestion is needed in the
enabling acts and the zoning ordinances to assist all

legal authorities in their decisions. This would also aid

50

the courts in their determination in explaining and pro-
viding them with a more sound factual basis as to when,
where, how, or to what extent traffic and the resultant
congestion factors should be used in determining their
decisions as to whether or not a specific land use increases
traffic and congestion. The remaining categories are not

to be ignored either, even though they represent a minor-
ity of the zoning change requests.

In Table III on page 51, is shown the general
category breakdown of all the cases reported for the vari—
ous states studied. The codes as used on page
44 and in Table III, on page 51, are also used in Appendix
II to signify cases fitting this particular category of
change classifications.

At the bottom of Table III are listed four addi—
tional states and the categories for the cases of these
states. These special states are reported because the
author felt that for a comparison, other court decisions
would broaden the scope of action in certain classifica—
tions and therefore show what some other state court

actions have been.

l
5

 

 

 

 

mHmI o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o EEO—H. Ozgw
w KH.mmmeumH .meo .KH mpHulo “OH paw mH .QH UGMHmpmS “Umpuommh mommu HMHmem
MHm om MH cm mm mm v4 Hm mHmuoe
NH m I o m H I I H H.0um .muuomuHav

mHQmHMHmmMHocD
NH v m m I N N H M . momma.) .mmz d HMHHumSUGH

HH< .mmHuHHHomm monumm.1...ssoo a .msm ..mmm
Hm A m a I m m a a mwmo oHHnsmIHmmso .662 w HmHuumsacH
paw .UHHQDA .mum>HHmnu ..EEoo w .msm ..mmm

a I I H I I m H H mcoHpmum mmonu .mmz w HmHHumsqu
HH m H H I m m I m wGOHumum mmonu HMHonEEoo w mmOCHmsm
mH m I m H o I H o qmcoHpmum mmonu HMHpcmonmm
OH H I m I m g H m .0“: w HMHHumSUQHuu HMHonEEoo w mmmchom
mm m I v m NH m a m .mmz a HmHupmswaHun HmHuzmonmm
NOH «H 4 6m mH mm 4H 4 o HmHuumssoo w mmmchsmuu HmHunmchmm
m m I H H I I H o .mmz w HmHHpmsocH I .mmz w HmHHumsocH
Hm o H HH v m m H m (HMHUHwEEoo,w mmmCstm I HMHUHmEEoo w wmmchom
mv m H mH a, HH H! m .« HMHucmpHmmm - HmHucmemwm
11 a . . . . L
.a n Y 70 Lu . n .1 e
+. n c 11 n 11 d .
mm m N. N. .m H m % mm \HHco womb no OCONIImmcmno wage

 

\l

 

 

ill

L‘

mmBKBm QMBUmHmm MEB Mm Qmfimommm m4 mmmKU m0 NMOUMBKU

HHH MHmKB

Section

categorical listings,

(b):

Analysis and Comparison of Cases

by Categories

52

In the analysis and comparison of the various

the following examples,

each of the selected states,

cases used here are not,

in most instances,

one case from

is used where applicable. The

the only ones

reported for these states; Appendix II gives a complete

listing of other cases within all analysis categories. The

states, other than the selected states, will be used where

appropriate, but not in all categories.

Section

1:

10:

11:

12:

Category A begins

B

C

on Page

77.

91.

98.

134.

144.

153.

167.

174.

182.

195.

205.

53

Section 1: Category A Residential - Residential.

In a 1952 Connecticut case (56)* concerning the
contemplated construction of a multiple dwelling unit of
195 families on property which was vacant, the court of
Common pleas reversed the action of the board of zoning
appeals granting a special exception. The land in ques—
tion was in a multi—faniW' dwelling zone, and the dwell—
ings were limited to not more than eight families per
unit. To build a unit which could house over eight fam-
ilies the zoning ordinance required a special exception by
the board. The plan commission recommended against the
granting of the special exception.

The upper court in sustaining the appeal, referred
to the subject of traffic and congestion in several
instances. The court said that:

the board must not only find the existence of these
requirements listed previously in the case but also
that the proposed building, structure or use of the
land (a) [w]ill not create or aggravate a traffic,

. . .hazard; (b) [w]ill not block or hamper the town
pattern of highway circulation; . . . The board in its
decision ruled they "are pgrmitted uses and must be

granted" . . . "almost, as it were, by rubber-stamp
approval, unless it is shown that they should be denied

 

 

*
Case No. - as here 56 - refers to Case No. 56 in

Appendix II and no citations will be made in the text, of
these cases.

54

because of the existence of certain hazards or
nuisances. In cases dealing with permitted uses the
burden of proof is on those who claim that they should
not be permitted. Those who assert there is a traffic
hazard of fire hazard have the burden of proving it.

Again in this opinion the board states that its approv-
al of the application "would merely be a determination
that none of the hazards and nuisances to which our
consideration of the case is confined by the regula-
tions" are found to exist. Thus its consideration was
limited to the traffic angle required . . . [a section
of the ordinance was given here] in View of its holding
"that the special exception should be granted, and more
particularly that proof as to traffic and fire hazards
is insufficient to justify our withholding permission."

The court determined that the action of the board
in granting the special exception was arbitrary, illegal,
and in abuse of its discretion.

Did the court recognize the effect that such a
largermfltinamily dwelling could have upon the traffic and
congestion on the streets in the immediate vicinity of the
property in question? In an indirect way, probably it did,
even though it did not specifically enlarge on the subject
of congestion. The board evidently seemed to think that
the congestion and traffic increase was not a serious
problem. The board may have needed more sound requirements

and standards that could be used in declaring where, when,

and how a point is reached in determining when traffic and

55

congestion will be influenced to a degree that the streets
would become stagnated due to the parking along the streets
by the residents, increase of regular and commercial traf-
fic servicing this large apartment unit, and general over—
all effect of the surrounding area.

In an Illinois case (73), decided in 1951, the
supreme court affirmed the circuit court's ruling declar-
ing a zoning ordinance unconstitutional and void. This
case concerned the restrictive regulations of a multiple-
family zone. The height was changed from 50 feet to 35
feet, and the square footage per family was changed from
450 feet to 1,000 square feet per family. The plaintiffs
wanted the lesser restrictive regulations made applicable
to their property, thus declaring the latter ordinance
void. The property in question consisted of four parcels
of real estate lying vacant. The village and the plain—
tiffs both cited one case, and the plantiffs cited a
second case, which are also reported here, as (65) decided
in 1948 and (66) decided in 1949. The court said that

In both the Quilici and the Joseph Lumber Co. cases,

the evidence disclosed heavily travelled streets with
no buildings whatsoever along the travelled highways.
The evidence here clearly indicates that the property
in question is located on the western fringe of Oak

56

Park on one of the most heavily travelled streets in
the Village. . . .

The expert testimony on behalf of the Village was that
there would be an increase, not only in congestion on
the highways, [here other things mentioned] . . .

The trial court below pointed out that the statements
in this regard, in an attempt to satisfy the public
welfare test, would apply with equal force to 3-story
buildings anywhere in the entire municipality. Three—
story buildings with multiple occupants increase the
burden of the water supply of the sewage passages, and
of vehicular traffic.

Evidently the court in this case felt that the
increased traffic and congestion caused by the lesser
restrictive regulations, thereby allowing more families in
a smaller area, was not of enough consequence to warrant
the more restrictive regulations, thereby reducing the num—
ber of families in the same area. The court could have
looked further than just at the property in question.
Increasing the number of families per acre on one property
may not seem detrimental, but allow the same conditions on
numerous other properties in the same general area and the
traffic will increase and congestion will eventually result
and this congestion will increase to a point where it will
become harmful to the neighborhood unless adequate provi—
sions are made.

There are several other Illinois cases which have

Igood material in relation to traffic congestion and this

(:ategory; they are listed in Appendix II.

57

In 1944 a Michigan case (128) concerned the con—
struction and operation of a trailer camp or park. The
trailer camp had already been under construction when this
case went to court. The property in question was located
in a residence zone district which was the most highly
restricted residential zone. The property was abutted on
one side by a trailer camp operated by the city. Four
days after construction began, a newly adopted zoning
ordinance which came into effect would have prevented the
use of the property as a trailer park. Prior to this
ordinance there was no local ordinance prohibiting the
establishment of a trailer—coach park on the property in
question. Adjacent property owner filed a bill of com—
plaint to restrain defendant from constructing or maintain-
ing a trailer camp on his lots. The city intervened in the
case as a party plaintiff. The trial court had entered a
decree which permanently enjoined the defendant from con—
structing or maintaining the trailer camp on the property
in question, thereby holding that the trailer camp would
violate the city zoning ordinance and holding that the
ordinance prohibiting the trailer camp was valid. The

defendant asked for a decree dismissing the bill of com-

plaint in the Supreme court. The defendant also claims,

58

among other things, that the ordinance was arbitrary,
capricious, and unreasonable in forbidding the use of his
property as a trailer camp.

The supreme court, in its opinion, discussed the
evidence presented in the trial court, including a refer—
ence to parking of automobiles. There was a public bath—
ing beach across the street from the property in question,
and it was said that

. . .During the summer months the bathing beach is
used in varying numbers, . . .depending upon the
weather and the holidays. The bathers park their cars
in front of the houses along Conger street and at
times park their cars in front of the defendant's
premises, sometimes using their automobiles for dress-
ing rooms. On a Sunday afternoon there have been
parked at the foot of Lakeview avenue and along Conger
street as many as 50 cars. The city has a "Stop" sign
at the end of Conger street 50 feet north of the
trailer camp, and at this place the cinder drive widens
out and forms a turning basin for the beach traffic,
using the property in front of defendant's house.

The court had also cited the statute (zoning enab-
ling act) which authorized municipalities to pass zoning
ordinances and provided that (L Comp. laws 1929, §2633
[Stat. Ann. §5.293l])

Such regulations shall be made in accordance with a
plan designed to lessen congestion on the public
streets, . . .and shall be made with reasonable con-
sideration, among other things, to the character of
the district, its peculiar suitability for particular
uses, . . .

59

The court then referred to its opinion in gi£y_gf_
Pleagant Ridge v. Cooper, 267 Mich. 603, which had approxi-
mately the same situation as the case here in that the case
concerned residential property located not too far distant
from a public area (Detroit ZoolOgical Park), which was
shown that it too was also visited on Sundays and holidays
in the summer by many thousands of people. The court in
this case said that

Zoning regulations, to be valid, must be made in accor-
dance with plan to lessen traffic congestion, . . .and
with reasonable consideration to the character of the
district, . . .
Zoning ordinance restricting use of lot to residence
purposes held, unreasonable and confiscatory where lot
was on boundary of village, on corner of two busy
thoroughfares . . . and nearby zoo attracts large
crowds on Sundays and holidays making place less desir—
able for high-class residential purposes.
The court in using the above cited case was comparing the
situation with the Case here in discussion (128) about the
traffic and parking of cars in the streets.

There was no further reference to traffic or con-
gestion in the case. The supreme court said in its deci-
sion

The ordinance before us bears no substantial relation-
ship to the promotion of the public health, . . . Such
legislation amounts, in fact, to a capricious invasion

of the property rights of the appellee, and as such
cannot be sustained.

60

The court concluded that the ordinance was arbitrary and
unreasonable in restricting the property in question solely
to a high—class residential purpose. It also said that
properly operated trailer camps were not to be classed as
nuisances. In View of its conclusion the court said it was
not necessary to pass upon other questions raised. The
case was remanded for entry of a decree dismissing the bill
of complaint.

The subject of traffic and congestion might have
been brought up to a greater degree if it had been needed, as
there could have been other'points brought out, such as the
number of cars traveling over the road to the park, future
expectation of increase of traffic to the trailer park
because of the rather high population density, and so forth.
The case here was not decided on traffic or congestion but
it was brought up during context of case. Actually this
might have been the only solution in this case, as the use
had been under construction prior to effective date of the
zoning ordinance and thereby should have been allowed to
exist as a non—conforming use.

In New Jersey, a case (167) decided in 1947 dealt
with the construction of garden type apartment buildings.

After the plot plans of the proposed building were submitted,

61

an amendatory zoning ordinance reclassifying the land to a
l-and 2—family dwelling zone was adopted. The prior ordin-
ance classified the property in question as garden type
apartment zone. The property in question abutted upon the
easterly side of a heavily traveled highway. The property
owners challenged the validity of the ordinance on writ of
certiorari.

The court discussion disclosed that the land was
located on an avenue which is a heavily traveled highway
and the case states as follows that

Broad Avenue is a heavily traveled highway. A traffic
count from 3:00 P.M. to 5:00 P.M. resulted in a count
of 1,290 vehicles: . . . The highway is unusual in that
it bears the designation U.S. Routes 1 and 9 and State
Routes 1 and 5. It is also an important link with U.S.
Highway No. 6. The westerly side of the avenue is
zoned for business and its entire length on the westerly
side is in a transition stage. Obviously, small resi-
dential projects would make little return. The most
recent improvements on the westerly side of the street
have been the building of a garden type apartment and

a large restaurant. The area is one of heavy traffic
and continuous noise. The property would be best

zoned for business an expert testified, but the borough
has not grown sufficiently to justify such use. . . .
The action of the municipality seems to have been
unwarranted. . . . The committee felt that inasmuch as
one garden apartment had already come into town that
the next garden apartment would severely tax the school
facilities, the sewage plant and fire protection service,
and that the police force might have to be increased
with a further burden on the budget.

This seems to be specious reasoning. . . .

62

The court said, "The amendment flouts the mandate of the
statute and arbitrarily takes, from prosecutors, property
the only use to which it could be economically put." The
court in referring to zoning said that "it is no part of
zoning to prevent growth.” The court decided that the
amendment to the ordinance would be set aside.

This case, although it was not decided precisely
upon the basis of traffic or congestion problem, is inter—
esting in that it included several other points, hereto—
fore not mentioned: traffic counts, highway designations,
and other information.

In a case such as this the traffic and congestion
situation is an important factor in determining what uses
should be allowed along the highway. In determining what
uses should be allowed, maybe certain provisions should be
written into the zoning ordinances restricting the number
of entrances and exits permitted within a certain distance,
thus regulating interference with traffic flow. Parking
along the highway is liable to result from a use such as
is contemplated here unless drastically restricted. Every
effort should be made to minimize the interference with

traffic flow and to relieve the congestion caused by the

63

uses along the highway. Most of the provisions for regula-
ting the items mentioned above can be written into zoning
ordinances, except parking prohibitions on the street.

Several other cases listed in Appendix II also con—
cern this category for New Jersey.

A case (244) in New York, decided in 1954, concerned
the rezoning of land from a one—family residential district
to a multi-fam£QIresidential classification. Surrounding
property owners stated that the rezoning of the land con-
stituted "spot" zoning. The property in question was a
part of a country club. The lower court held that the
rezoning ordinance was constitutional, and an intermediate
court also affirmed the decision.

The opinion of the upper court included, among
other things, the plaintiff's statement that the ordin-
ance "would increase traffic congestion in the area." This
was the only reference to the subject of traffic and con—
gestion in this case. The court granted a motion to dis-
miss the appeal.

This case was investigated further out of the
author's curiosity. In the two other courts mentioned, one

made no mention of traffic or congestion; the other contains

very little additional discussion.

64

An attempt was made here by plaintiffs to nullify a
rezoning ordinance by referring to traffic congestion.
Maybe if they had delved further into the matter and came
up with more definite figures as to traffic volume, effect
of multiple—family apartment buildings contemplated by the
country club, on parking in the streets, and so forth, they
might have had a sounder basis for requesting nullification
of the zone change. Traffic and congestion was not in this
case a definite factor in the courts' decision, as closely
as can be interpreted.

A Pennsylvania case (291) which was before the
court in 1954 and again brought to court in 1955 (295)
dealt with the contemplated construction of a building con—
taining 54 dwelling units along with an outdoor parking
area. The owner had applied for a building permit and a
permit for outdoor parking. The zoning division of the
department of licenses and inspections granted the permits.
The zoning board of adjustment upheld the granting of the
permits. Appellants (surrounding property owners) had
presented several contentions. One was that the proposed
project did not meet certain requirements of the zoning

ordinance, such as certain yard requirements, and open air

65

parking requirements. The property, which was vacant, was
in a residential district where new multiple dwelling units
were intended. The ordinance provided that "there shall be
provided on the same lot parking spaces with adequate access
to a street or driveway." In 1954 the court remanded the
case for further hearing and consideration. In the 1954
decision the court said:

A full hearing and a careful study of the facts, and
the provisions of the ordinance relating thereto is
absolutely essential to a determination of the issues
involved. It is apparent from even a cursory examina-
tion of the plans that the proposed development, as
now planned, could and probably would result in danger-
ous fire hazards, undue congestion, serious traffic ‘
problems, and a possible infringement upon the rights
of way held by owners of the properties surrounding
this tract of land. The board apparently gave scant,
if any, attention to these serious problem.

The case again came to court in 1955, after the
zoning board of adjustment again affirmed the action of
the zoning administrator. Substantial testimony was heard
by the board at the new hearings. The court in its decision
again said that

At its first hearings the zoning board actually ruled
out testimony as to the traffic problems. When this
court referred the matter back to the board [in 1954],
the court pointed out that even a cursory examination
of the plans showed that the proposed development, as
now planned, could and probably would result in danger-
ous fire hazards, undue congestion, serious traffic
problems. . . .

66

Then a discussion as to the existing and proposed design of

the

driveways as to width, radii, lanes, parking spaces,

adequacy of parking, construction, access, and many other

points followed.

The

The court said that

The enabling Act of May 6, 1929, P.L. 1551, and sec-
tion 1 of the city's zoning ordinance, both state that
zoning is ”for the purpose of promoting the health,
safety, morals, and general welfare of the community."
Section 3 of the act expressly provides that zoning
regulations "shall be made in accordance with a com-
prehensive plan, and designed to lessen congestion in
the streets, to secure safety from fire, panic and
other dangers." The regulations established by our
city zoning ordinance are not an end in and of them-
selves; they exist for the ultimate purposes above
set forth, and must be so interpreted.

court later went on to say

. . . We believe we have established that the permits
in this case should not have been granted. Obviously,
the owner had a valuable piece of land and should be
permitted to develop it, but only after applying for
proper relief, and after full hearings by the zoning
board and a careful study to see that the development
when completed will conform as closely as possible to
the requirements of the zoning ordinance and will not
create a fire hazard, traffic congestion and other
obvious dangers.

Without in any way foreclosing the working out of the
problems which will have to be solved by the owner—
applicant and the zoning board, the court points out
for their consideration the fact that virtually all the
elements of danger might be eliminated if the plans
provided for a wide driveway, adequate for commercial
vehicles and casual parking and for two-way traffic,

to enter the property directly from Seventy-sixth

67

Street [here followed further instruction on how to get
into the irregular interior lot and parking lot]. If
such direct access to the public streets were provided,
there should not be too much difficulty in solving the
other problems involved.

The court reversed the action of the zoning board
of adjustment, and the permits issued to the applicant were
revoked.

This case also went to the supreme court in 1956,
which entered a decree affirming the decision of the lower
court (385 Pa. 295).

In this case the court seemed to be well aware of
the problems involved in traffic congestion. It returned
the case specifically to be reheard and to investigate the
{problems of traffic congestion. The board had seemed to
ignore the traffic congestion problem, or was unaware of
the consequences involved in allowing uncontrolled access
to and development of the property.

California, the one state of those selected that
has not included the purpgse in its enabling act, had some
cases which concerned this classification of zoning changes
or use considerations.

A California case (19) involving 12 vacant lots con-

cerned the construction of one six-unit apartment building

68

on each of the lots. Construction had begun on the project
while the area was zoned as a multiple—dwelling district.
The property was zoned as a single—family area prior to the
rezoning to the multiple-dwelling zone; work had actually
begun prior to the granting of permits, pursuant to oral
clearances. After some progress was made on the proper-
ties the city council rezoned the area again as single-
family district, because the area would be soon acquired
for airport purposes.

Traffic was brought into this case in a very minor
way. It was said, when the facts were given and were not
in dispute, that the plaintiffs were owners of 12 lots
:Nhich are bounded on the one side by a heavily traveled
main thoroughfare. The plaintiffs applied for a variance
to reduce the distance between the apartment buildings.

The local body had granted the variance and then also
granted the building permits. After adopting the emer-
gency rezoning ordinance and after work on the project had
commenced, the local body sought to revoke the permits

that were issued because of an airport expansion possi—
bility. The local court had held the rezoning ordinance
invalid. The upper court affirmed the judgment of the local

court. A petition for a hearing before the highest court

was denied.

69

Even though California does not have the purpose
included in its acts, at least the subject of traffic
entered the picture, momentarily. The main emphasis of the
airport may have overshadowed the picture of traffic. The
construction of these buildings containing a total of 72
apartments would add to the traffic congestion in that the
autos of tenants may be parked in the street. Many
entrance—exit locations also add to traffic problems. If

California had the purpose included in its act, would the

 

subject of traffic have been brought up to a greater degree?
It possibly could have been if there had been further evi-
dence needed to substantiate reasons for decreasing traf-
fic and congestion instead of increasing them, which evi-
dently here was not a serious problem. Of course this
case had other pertinent reasons upon which the decision
of the court had to be based. The use, after it had been
started, had the right to continue under a non-conforming
use too, if the rezoning ordinance was permitted to con-
tinue.

While preliminary investigation was underway to
determine what states were to be studied for this paper,

the author came upon several court cases from different

70

states, and these cases will be used where applicable in

the remainder of this paper, for comparison of court actions

and discussions.

Regarding Residential - Residential, two cases are
used here, from the States of Texas and Florida. The
Texas case (310), decided in 1953, involved the reclassifi-

cation of an area from single—family residence to apartment
(multiple—residence) use. The property in question was
rezoned as apartment usage, after the owners had made
numerous applications for changes to other uses, including
a change to a commercial use. The surrounding property
owners challenged the validity of the zoning ordinance
amendment. The lower court granted a temporary injunction,

and the defendant property owner appealed.

In the upper court's discussion and review of the
case, it cited portions of the zoning code and described

the conditions:

Where the City Plan Commission is considering a change
in zoning from a residential or apartment zoning to a
lower classification and the area in question involves
three or more acres under one or more owners, or if it
contains lesser area and would constitute the extension
of an existing district where by the provision of off-
street parking facilities, screening walls, fences or
planting and open space would create a protective tran-
sition between a lesser and a more restricted district,
or if it would constitute the extension of an existing

71

special permit, the City Plan Commission may, within
its discretion, make the following recommendations to
the City Council: (A) Recommend against the change in
zoning. (B) Recommend a change in zoning. (C) Recom-
mend that a special permit for such area be granted,
together with its recommendations as to requirements
for the paving of streets, alleys, and sidewalks,
means of ingress and egress to the public street,
provisions . . . parking space and street layouts.

The ordinance also stated that conditions and provisions
must be complied with. In discussing the street upon
which the property in question fronted, the court said:
. . . that pursuant to an earlier bond issue, Inwood
Road was widened in 1952, consisting of a six-lane
divided highway; the traffic thereon between Lovers
Lane and University Boulevard having doubled since
1948; [and] that on Lovers Lane at Inwood Road is a
large shopping center of many commercial activities;
[and continued on describing uses in the shopping
center, and other surrounding uses].
The property covered by the ordinance amendment was also
over the three acres as required in the ordinance, as it
included more than the lots in question. There was also
a large shopping center a short distance from the property
in question, and there were practically no business struc—
tures from the shopping center along the road (upon which
property in question fronts) for about one and one-half
Iniles. If real estate experts had been called upon to
testify as to the use of the lots in question, there would

‘have been reasonable dispute as to whether they were suitable

for residential or business usage, the court said.

72

The court continued, after considerable discussion
and statements about other considerations, saying,

But aside from all other considerations, only those
familiar with Inwood Road since its widening in 1952
can envisage the tremendously increased volume of traf-
fic that has ensued; evidencing without more, such a
change of conditions as to constitute a reasonable
basis for the rezoning under attack. "The legislative
body may determine in the first instance whether or
not facts or conditions exist warranting a classifica-
tion; and its determination of that issue cannot be
disturbed in the absence of a clear showing that there
is no reasonable basis therefor.” Edge v. City of
Bellaire, Tex. Civ. App., 200 S. W. 2d 226.

 

Prior to the above statement the court made reference to
amendments to zoning ordinances that they "should be made
with the utmost caution and only when changing conditions
clearly require the amendment; otherwise, the very purpose
of zoning will be destroyed." The court cited this from

Mc Quillin, Municipal Corporations, Vol. 8, 3d Ed., sec.

 

.25.68.
After further review and decisions the court said
that
The cause is accordingly reversed and judgment rendered
dissolving the temporary injunction; without prejudice
to petitioners' claim of deed restrictions on a trial
to the merits.

The court reversed and rendered in part, and the case was

otherwise remanded to the trial court for further proceedings.

73

The Florida case (305), decided in 1953, involved
ten lots of land interspersed among eighty-six lots in a
two—mile length. The whole area was zoned as a single-
family residential zone. It was said in testimony given at
the trial court that this strip of land, ocean frontage, is
the most valuable piece of land in the world, and there
were only about 4,500 people in the United States with suf—
ficient means to buy, build, and maintain homes on it.

The owners of these ten lots asked for a reclassi-
fication of the lots to permit the erection of hotels and
apartment buildings. The city refused the request to
change the zone. The trial court held flue ordinance arbi—
trary, unreasonable, oppressive, discriminatory, and con-
fiscatory, and accordingly ordered it rezoned for apart—
ment house and hotel purposes.

The upper court in reviewing the case said that

The City of Miami Beach declined the request of com—
plainants to rezone on the general theory . . . that
due to the location and configuration of the land it

is ideally suited to single family estates, that it

is a long narrow strip along the ocean transversed on
the west by Collins Avenue, which is heavily congested
and that to rezone would seriously aggravate the traf-
fic problem, that there is already an undue preponder—
ance of land in the City of Miami Beach zoned for hotel

and apartment use, and at present there is no need for
more. . . .

74

The court said in reference to the above that

There is ample evidence to support the theory of the
city; on the other hand, there is much to contradict or
offset it. It is not shown, . . . that if the zoning
restrictions are removed no other property owner would
be hurt or that the general zoning plan would remain
unaffected. . . .

Then when the court analyzed the various contentions made
by the city it said

An ordinance may be said to be fairly debatable when
for any reason it is open to dispute or controversy on
grounds that make sense or point to a logical deduction
that in no way involves its constitutional validity.

If such a deduction supports the city's contention that
to remove the present zoning restrictions would destroy
the entire zoning scheme and bring about the evils con—
tended by the city, then the Court should not substi-
tute its judgment for that of the City Council . . . .
When the contention of the city is analyzed and viewed
in the large, there are many elements in this case that
were not involved in . . . any of the other cases
cited. They make this case totally different from any
other that has been brought here. The right of access
of the public to the beaches, the effect on the zoning
scheme, traffic regulation . . . are involved in this
case. The amount of property involved is so great that
to change its classification would be to necessarily
affect the entire general zoning plan of the city.
These are matters for the city to settle and adjust and
when they enter the picture the Court should not invade
the city's authority, absent a paramount constitutional
right which is not shown in this case.

In conclusion the court said

Other questions presented have been considered but they
become inconsequential or have no place in the case.
Whether answered in the affirmative, or in the negative,
the answer to the first question concludes the contro—
versy. We think the first question was fairly debatable
and that the decree of the chancellor should be reversed.

75

The court reversed without prejudice on the part of appel-
lees to assert any right they may have under the city
charter.

Two justices concurred in part and dissented in
part; their discussions both referred to "spot zoning."
The only reference to traffic or congestion was when they
said in regards to the properties in question, that

. . . Located as it is on a heavily travelled state
highway, with hotels and apartments on both the north
and south sides, and with condemnations proceedings by
the city already under way to convert two separate
portions thereof to public park purposes, it is under-
standable that such persons find "the strip" undesi-
rable for residential purposes.
Their decision was that they would affirm that portion of
the decree of the lower court which held the residential
classification as invalid, but would reverse the lower
court's directive of rezoning the properties for apartment
and hotel use.

The street widening, as in the Texas case, evi-
dently was demanded because of the volume of traffic and
congestion that had been steadily increasing until a point
was reached where the traffic flow was impeded and the
result was the increase of traffic and congestion on the

adjacent streets. When a street is widened it is generally

for the purpose of providing more rapid movement of traffic

76

and relief from congestion. But as streets are so improved
there will be more vehicles attracted because of the easier
movement and therefore, naturally, the results are that the
widened street will again become obsolete due to the
increase of traffic and congestion. But why speed up this
process? By increasing the number of automobiles that will
be attracted to the adjacent land uses, especially if the
area is of a highly restricted use, the lessening of the
restricted uses on adjacent land uses will be a direct
factor in speeding up this obsolescence of the street again.
The court in this case possibly felt that after the widening
of the street in question and the resultant doubling of the
traffic volume, that these should be direct and determining
factors in declaring the lesser restrictions valid. This
seems to be unwarranted as they are aiding in the increa-
sipg_of congestion on the streets, and the same can be
said of the municipality in its reclassifying of the prop-
erty. By increasing the number of autos attracted to the
rezoned area by reducing the restrictions, more traffic
‘will be generated than for the higher restricted uses.

In the Florida case the city and the upper court

both realized that intensifying the land use along a

77

street will directly add to traffic and congestion, although
the upper court did not base its decision strictly on this
basis, as closely as can be interpreted. The lower court
evidently felt that the changing of the land use would not
increase the congestion to any discernible degree, although
the city had pointed out that the zone change "would seri-
ously aggravate the traffic problem." Who is right in

this case? After taking into consideration the reasons for
traffic congestion, the answer can simply be that the city
and the upper court made the most valid decision as they
were aiding in the relief of congestion on the public
streets to a certain degree, whereas the only results that
could come about by the lower court's decision would be to

increase congestion on the streets.

 

Section 2: Category B Business and Commercial -

 

Business and Commercial.

 

A Connecticut case (40), decided in 1955, concerned
the reclassification of vacant property from a business B
to a business A zone. The owner of the property in ques-
tion wanted the land to be rezoned (returned) to the busi-
ness B zone as he felt that the business A zone regula-

tions were too restrictive. The property owner had desired

78

to build a shopping center. Business A zone, "Planned Unit
Business Development," had among its restrictions and regu~
lations, requirements for off-street parking facilities,
but none were mandatory in a business B zone. The property
owner petitioned the zoning commission to rezone his prop-
erty, but the petition was denied. The trial court issued
an injunction on the ground that the regulation was uncon-
stitutional. The injunction enjoined the enforcement of
the regulation of the town plan and zoning commission of
the town rezoning the area in which the property in ques-
tion was located. The town appealed from the judgment.

The appellate court in reviewing the case had said
that the entire zoning plan and regulations and factors
affecting the growth and economic development of the town
was undertaken in 1950, by a professional planning engineer.
The court said that the review of the zoning plan by the

town

. . . dealt with traffic and parking problems, the
rapid growth in population, land uses, . . . The
review indicated that the population of the town would
continue to grow and that the number of automobiles
would increase more rapidly than the population, caus—
ing traffic and parking problems to become worse unless
remedial steps were taken. The commission concluded
that a lack of adequate parking facilities in the
business area was causing traffic congestion in the
business center, inconveniencing citizens generally,
driving business elsewhere, depreciating the value of
business properties, . . .

79

The court also referred again to traffic, saying:
The power of regulation is not limitless. It cannot
be exercised in a confiscatory or arbitrary fashion.
. . .Darien's traffic problems are urgent. They are
burdensome and inconvenient to many citizens and prop-
erty owners. They gravely affect the future welfare
of the whole community. They demand drastic measures.
Zoning commissions are necessarily vested with broad
discretionary powers.
There was discussion as to the construction of modern shop-
ping centers, and one point mentioned was the providing of
off-street parking facilities as regulated in various ways,
such as the "rule of thumb” commonly used is 60% for par—
king, 18% for services, and that a ratio of three or four
to one between parking space and floor area as some experts
agree that is desirable. The court discussed various other
regulations of the business A zone:
We conclude that until the plaintiffs have sought and
been granted or denied a variance by the zoning board
of appeals they are not in a position to seek injunc-
tive relief on the ground of the unconstitutionality
of the action of the zoning authorities.
There is error, the judgment is set aside and the case
is remanded with direction to enter judgment for the
defendants.
With this decision the court upheld the existing business
A.zone classification of the property in question.

The court in this case evidently felt that traffic

congestion is caused by business and commercial uses. The

80

court probably felt that the restrictive regulations of
business A zone would tend to add less traffic congestion
to the streets than a business B zone. The fact that the
property was located in or very near to the main business
area was held to be a factor in holding the business A
classification valid, due to the lack of parking facili—
ties in the central business district. The business A zone
might have had more restrictive regulations in regards to
the providing of off-street parking and other means of
controlling access and theretofore creating less oppor—
tunities for additional traffic congestion.

The Illinois case (77), decided in 1953, involved
an existing used car lot. The property, consisting of
several parcels of land, was rezoned in 1942 for business
purposes. The new ordinance prohibited the existing use.
The 1923 ordinance zoned the property as commercial use,
and the existing use was permitted under certain condi-
tions. The city had threatened to enforce the amended
ordinance. The appellees did not start to operate their
lots until dates which progress from 1946, and it was not
until 1952 that they, the appellees, initiated this action.

The lower court held the amendatory ordinance as void and

unconstitutional.

81

In the review of the case the supreme court said
that the facts show that the street upon which the prOperty
fronts is an important public thoroughfare. "It is a major
traffic artery bearing both streetcars and busses and
serves as a connecting link to main highways running east
and west." There was no other consideration of traffic
and congestion given. The supreme court said that the
circuit court had not erred in granting the legal and
equitable relief sought and its declaratory judgment was
therefore affirmed.

Evidently the court in this case felt that a used
car lot is not a serious traffic generator as much as
other types of business uses where there is a considerable
amount of turnover in customers. A used car lot is not
like a store which is visited more frequently by customers.
A car is an item which the people do not buy as often or
as much of as other items for everyday uses. Whether the
court considered this in its decision is uncertain. Even
thought this opinion favored the continuance of the used
car lot, possibly other factors could have been brought
out in determining traffic and congestion factors. Parking

spaces on a very busy thoroughfare add to conflicts of

82

traffic movement; entry and exit to a used car lot can cause
congestion at various times. The amount of traffic on the
adjoining street may have been presented more effectively by
traffic counts, number of accidents in the vicinity, and
other items of consideration for evidence if it was deemed
that the existing use was detrimental to public health,
morals, safety, comfort, or welfare as well as to the pur—
pose of relieving traffic congestion on the public streets
and roads.

In a Michigan case (135), decided in 1953, the
issuance of a building permit to construct an automatic car
wash building was the subject. The property was in a busi-
ness B zone but car washes were not a permissible use there,
except upon approval of the board of appeals. The permit
was denied by the board.

The Opinion of the supreme Court while determining
and reviewing of all the facts and data of the case, re—
ferred to traffic in only one brief statement. There were
statements made at the meeting (in circuit court) that

if the building was erected and operating, traffic
would be increased and with cars with running motors

would increase the supply of carbon monoxide and thus
be injurious to health.

83

The judgment of the trial court, which had granted
the writ of mandamus, was reversed and the petition dis-
missed.

There is not much that can be added to this case in
the discussion of traffic congestion as no information was
given about the existing street conditions, volume of traf-
fic, or other factors used in determining extent of possi—
ble consequences of the traffic resulting in the proposed
land use.

Case (226) in New Jersey, decided in 1955, concerned
the desire to sell motor vehicles on plaintiffs' property
upon which they already operate an automobile service sta-
tion. The town council rejected the application and
refused the necessary license. The property was in a neigh-
borhood business district. The desired use was nonconform-
ing in this district, and was permitted only in districts
of lower classification. Prior to the present zoning
classification the property was zoned as residential. The
trial court denied relief.

The superior court, appellate division, in review-
ing the case and in its decision, made the following ref-
erences to traffic and congestion. Plaintiffs testified,

among other things,

84

that Belleville Turnpike, on which the property fronts,
is "about the heaviest travelled" road in the West
Hudson area; that the restriction of the right to sell
motor vehicles on the subject property "would (not)
alter the usual traffic situation in anyway whatsoever:"
and that the grant of the right would not increase
traffic, affect the public safety . . .

The contention that the zoning plan operates arbitra-
rily as to plaintiffs' property is equally without
merit. It is based on the argument that the property
is at the intersection of two heavily travelled
thoroughfares. . . .

If necessary, the conclusion of the Board to deny the
application is additionally supported by the showing

of an already existing infringement upon the reason—
able right of access to their garages of nearby prop-

erty owners occasioned by the cars of business visi—
tors to the plaintiffs' premises.

The court said that it cannot quarrel with the
board's conclusion that such conditions might get worse if
the variance requested were granted.

The judgment was affirmed (in denying relief
sought).

The use of the property in this case would
undoubtedly have added to the traffic congestion by allow—
ing cars to enter and leave a service station located on
a very heavily travelled highway. Also cars would be
parked along the street (unless prohibited) for a use
such as the one proposed, whereas in using the gas station

the auto generally is removed from the street for ser-

vicing. The council and the courts had rec0gnized that an

85

increase in congestion would result with the additional use.
Although no mention was made by either the council or the
courts as to parking on the streets, additional movement
into and from the proposed use, here were or are additional
points that could have been brought up if the case had
needed more testimony to further supplement the council's
refusal, and the court's decision, in determining whether
to issue the required permits and license.

In New York, a case (248) decided in 1956 involved
the removal of old buildings on a property and the erec-
tion of new buildings with more square footage than is
allowable under the zoning ordinance. The board of appeals
had granted a variance. Each proposed building would have
a floor area of approximately three times the area of the
lot, whereas the ordinance limited floor area to one and
one—half times the area of the lot. One court had annulled
the granting of the variance. An intermediate court rein-
stated the variance and dismissed the proceeding.

In reviewing the above proceedings and in dis—
cussing the premises, the upper court mentioned that the
property was on the main business street of the village

and was located in a business district. An amendment to

86

the building zone ordinance limited the floor area of a
building in a business district to one and one-half times
the area of the lot, thereby limiting the number of occu-
pants and users. The "purpose of the amendment to the
zoning ordinance was to improve traffic and parking condi-
tions in the principal business section" of the village.
There was no other reference to traffic or congestion.

The upper court affirmed the order of the intermediate
court which had reinstated the variance. There was no
opinion given by upper court.

This case, although limited in its reference to
the problem of traffic, points up a phase. That is the
attempt to limit the number of autos that would be attrac-
ted to a land use, by limiting that use to a certain amount
of floor space. By limiting floor space there is auto-
matically a limitation placed upon the number of persons
employed by the use and upon the number of persons using
the building and therefore would theoretically limit the
number of parking spaces, and thereby tend to relieve
traffic congestion. On the other side of the picture one
can see the possibility that the congestion problem could
be substantially increased by more people using the fac-

ilities than it was planned for, thereby attracting more

87

people desiring to park their cars than are allowed in the
lot (if there is one) and forcing them to park on the adja-
cent streets. With this happening, people will tend to
double park, temporarily, or ride around until a parking
space is available. These factors will increase the con-
gestion of traffic to a considerable degree.

Case (268), of Pennsylvania, decided in 1957,
concerned the erection of a car wash building on property
formerly occupied by a gas station. The contemplated
building would occupy only 16% of the lot, and the prop-
erty was located in a commercial zone. The board of
adjustment refused the certificate. The lower court had
sustained the appeal and directed the permit (certificate)
to be issued. The case went to the upper court on
certiorari.

In the review and the opinion given by the court
the traffic factor entered the picture in several instances.
The board had refused to issue the certificate on the basis
that the proposed use would be contrary to public interest,
and in doing so the board declared the use would be offen—
sive because of the noise and the traffic hazards, ”and did

not fit into the general character of the neighborhood.”

88

In reviewing the evidence, the court went on to say:’

. . .More importantly affecting the Board's findings

was the evidence as to possible increase in traffic
hazards. As pointed out by the court below [lower
court], the only evidence produced by the protestants

in this regard was the declared "opinion" of several
non-expert witnesses that such use of the premises would
increase traffic. Yet the record shows that one of the
protestants, who had constructed ten stores in the area,
was contemplating construction of ten others - in them—
selves increasing traffic — which would make the area
even more commercial. Further, the conjectured

increase in traffic was not shown to be such as to
adversely affect the zoned area. . . . Nor was there

any foundation for the Board's finding that the use did
not fit into the general character of the neighborhood —
the evidence, as already indicated, was to the contrary.

The court agreed with the findings of the lower court and
affirmed the order.

Here is a case in which the traffic and resultant
congestion is pointed out by the court as being an influence
affecting the adjacent land use. It was stated that the
effect of increased traffic is to make the adjacent area
potentially a commercial use. As has been pointed out sev-
eral times and sometimes quite emphatically, land use
affects traffic and congestion, and traffic and congestion
affect the adjacent land use; here is a good case where the
court has recognized this fact, although this is not a
point in direct connection with this case. The court

pointed out that the proposed use would not increase the

89

traffic to a point of affecting the zoned area in itself.
This point of view implies that——theoretically each individ-
ual land use does not affect traffic enough to warrant a
denial of the use. This is taking a rather narrow minded
view of the situation. What if an adjacent property owner
wanted to use his property also as a commercial use and they
went to court because the council refused to grant the per-
mission because of traffic effects, and the court again

said the same thing. This could go on up and down the
street, yet the court could say to each one that the "con-
jectured increase in traffic was not shown to be of such as

to adversely affect the zoned area." In taking the area

ip_toto there would be a considerable effect upon traffic

 

and congestion in the area. Granted each use adds a little
more traffic, but why limit the scope at that time to the
one property, why not take the area as a whole and analyze
it, and then come up with the answers?

California, not having the purpose included in its

 

enabling act, is used again as a comparison to the States

having the purpose included.

 

In California a case (12) decided in 1956 involved
the use of vacant property located in a retail commercial

zone. The owner desired to build and operate a mortuary

90

upon his property situated at an intersection of two streets.
Another mortuary was located on another corner of the same
intersection directly across the street. The city council
granted the "zone variance.” The local court upheld the
granting of the variance.

In the upper court opinion there was little refer-
ence to traffic. The proposed parking for the mortuary was
for 32 cars. The opinion was expressed, at a city council
hearing,

. . .that the subject property was not suitable for
retail business due to the traffic problem. In this
connection one councilman suggested the possibility
that the city might desire to acquire these lots for
off-street parking. . . .The matter appears to have
been thoroughly considered by the city council, after
which the body voted to grant the variance.
An investigation was made of the property (by the city
council), and one of the items covered was the parking
problem in the area in relation to existing businesses.
The city council granted the variance after due notice,
fair hearings, and a thorough consideration by them and
the planning commission. The judgment of the lower court
was affirmed.
To what extent the subject of traffic was brought

up in this case in the lower court and city council delib-

erations is not known and could be found out only by

91

delving into their complete records. But as it stands here
the subject of traffic was brought up to a limited, but
important degree. Would a mortuary create less traffic than
a retail business use? It is doubtful, at least to a certain
extent. During a funeral the traffic would be tied up for a
considerably longer period of time than at a retail business.
At a retail business there ordinarily would be no specific
times at which traffic would be held up with long proces~
sion of autos entering or leaving a parking lot, such as
there would be in a mortuary use. Because there was a
traffic problem existing in the area, it could be assumed
that a retail business would have less effect upon the

traffic than would the proposed mortuary.

Section 3: Categgry C Industrial and Manufacturing

— Industrial and Manufacturing.

Michigan case (146), decided in 1957, involved
property classified for "light industrial” use. The owners
had been operating a wastepaper, scrap iron, and metal
business on their property under a township permit.
Plaintiffs sought the issuance of a license to operate a
junk yard for purpose of dismantling, wrecking, and dis-

posing of junk from automobiles. The township board refused

92

to issue the license. The trial court granted a writ of
mandamus compelling the issuance of the license. The defen-
dants appealed.

The property was in an area devoted predominantly to
industrial uses. Directly across the road from the property
in question was a large area zoned as general industrial on
which was located a large oil refinery; there were light
industrial zones on the two sides and at the rear was a
general agricultural zone. The trial court had said that
the

. .pictures in evidence show that plaintiffs'
property is in just that kind of area in which one
would expect to see a junk-yard business conducted.

This statement was in the upper court's opinion and discus-
sion of the case.

In the upper court's deliberations mentioned, very
little was said about traffic or congestion. Defendant
had admitted in its testimony that these uses (railroad
freight or passenger stations——which were permitted in the
light industrial zone) would

. .be productive of as much, if not more, smoke,
fumes, noise and traffic as plaintiffs' projected

operation and that the same is generally true of the
large refinery operation across the road.

93

There was no further discussion or reference to traffic
congestion either existing or contemplated in connection with
the junk-yard operations. The upper court affirmed the
action of the lower court.

In Pennsylvania, case (283),decided in 1949, was con-
cerned with the erection of a motor truck terminal garage.
The property was in an industrial zone. The desired use was
not listed in the prohibited uses described in the zoning
ordinance. The building inspector issued the building per-
mit. Residents of the community then filed an appeal from
the decision of the building inspector. The board of ad-
justment reversed the building inspector and voided the
permit. Appellant filed an appeal.

The court in its review and deliberations and
opinion dwelled upon the subject of traffic quite exten-
sively. It reviewed the action of the board in which the

Board found as follows: ". . . the narrow streets in
the vicinity [are] entirely inappropriate for the oper-
ation of large vehicles of the size in question. This
will constitute not only interference with the present
uses of these streets, but will be a hazard to the
residence . . . and children of the vicinity who must
use these streets for travel to and from school. The
fact that there is now vehicular traffic on these
streets, including some truck travel, does not lessen
the hazard which would be created by markedly increa-

sing the use of the streets by heavy vehicular
equipment."

94

The building would be three stories high, and the use would
consist of 18 trailers, 12 tractors, 2 trucks, and 3 automo—
biles, for transfer of goods and minor repair. The court

said that

. . . The board likewise found that the trucks would

be traveling Hector, Elm, End and Sandy Streets to and
from the terminal. The average paved cartway of these
streets is from 20 to 22 feet in width. The evidence
also showed that these streets are in constant use by
large trucks, including appelant's, enroute from indus-
trial plants in the area of Trenton, Philadelphia and
Reading.

The property was in an area in which in two direc—
tions from the property in question was zoned industrial and
the board found that the area was predominantly of a resi-
dential character. In another direction from appelant's
property were two fairly substantial factories, and across
the street was a medium—sized chemical plant; also in the
vicinity were railroad tracks. Appellant contends that the
action of the board was unreasonable, arbitrary, an abuse
of discretion, and without any substantial relation to the
public health, safety, morals, or general welfare and other
reasons.

The court said that the board's action was based on

the narrow ground that the contemplated use of the premises

would create a public hazard and said as follows that

95

The board found that locating a truck terminal on these
premises would create a public hazard because of the
narrow streets the trucks would use and the large num-
ber of children in the vicinity. The fact that the
streets are already used by large trucks, including
[appellant's], is not considered important, for the
board is concerned about the increase which would
result from appellant's building his garage. In other
words, the board ruled that because there would be more
trucks using these streets a public hazard would be
created. To the board a public hazard is something
more than a nuisance; it is a real, substantial, and
serious menace, such as a plant which manufactures
acids, explosives, or poisons.

It is readily apparent that the board went beyond the
range of its discretion in reaching its conclusion.

. . . It must be borne in mind that no matter what use
was to be made of the premises in question, an increase
in truck travel in the area could be expected. Unless
the land is to be idle, a public hazard will be created
under the board's reasoning. A similar problem was
before this court in Cohen et ux., y, Abington Township
Zoning Board of Adjustment, 43 D. & C. 362 (1941),
where it was alleged that gas stations create a traffic
hazard. See also Wunderle et al., 2, Board of Adjust—
ment of the Borough of Hatboro, 62 Montg. 231 (1946),
[and other cases were listed].

 

 

 

 

The court then said that if the terminal were oper-
ated and maintained so as to constitute a nuisance, the
residents have a remedy in equity to restrain such opera-
tion, and that

After a careful consideration of the entire record and
the law, we must conclude that the action of the board
in reversing the building permit issued by the building
inspector was arbitrary and unreasonable, and not
within the meaning of public hazard as used in the
zoning ordinance.

96

The decision was that the appeal was sustained, and
the decision of the board of adjustment was reversed, and
that the building permit previously issued was declared
valid.

These two cases are entirely opposite from one
another, for in the first case there was very little mention
of traffic, congestion, or width and condition of the
streets in the area; in the latter case there was a consid—
erable discussion of traffic, width of streets, and other
factors. In both cases the local board refused to approve
the issuance of a permit. Also in both cases the court
reversed the action of the board. Although the first case
was very limited in data, it would be hard to determine
whether any other decision could have come about. In the
latter case there was residential development in two direc-
tions from the property in question. With the increase of
traffic which was bound to happen, there would be further
additional traffic caused by the other vehicles, besides
the trucks: those of the employees of the concern, as the
property owners' proposed building was to be three stories
high. The increase of this traffic would have the effect
of adding to, or speeding up, the deterioration of the

residential properties, with the eventual blighted

97

conditions of the area to set in sooner. With the addi—
tional amount of truck traffic that would be generated by
the terminal use, the neighborhood would become noisier,
suffer more from fumes and smoke, and would become more
dangerous to the pedestrians and the automobile drivers
alike. There would be, as stated many times before, the
possible parking in the streets caused by the new use,
therefore reducing the numbers of lanes of moving traffic.
The court in the second case should not have approved such
use of the property. It based its answer on the belief
that "the board went beyond the range of its discretion"
and evidently erased the problems of traffic and conges-
tion as a basis for determining its decision. Did the
board act so? It can be said that it did because the
permit had been legally and properly issued. After the
permit was issued and when the complaint was raised, the
board evidently realized too late the consequences that
would come about and tried to inject points into its posi-
tion to "relieve congestion in the public roads and streets"
and also had in mind, too late, the public health and
safety, among other things.

The court had no alternative but to pay attention

to the action taken by the board, so therefore it can be

98

said that it did not purposely ignore traffic or congestion.
If the court reviewed and discussed the problem of traffic
and congestion as much as it did, it must have felt that
this possibly could have been a factor in denying the per—
mit originally, if it was deemed necessary to do so to
prevent the further deterioration of the residential area

existing.

Section 4: Category D Residential ==Business and

 

Commercial.

 

A case (50) in Connecticut, decided in 1958, con—
cerned the development of a 39—acre tract of vacant land.
The property was in a one-family residence district, and
upon application was changed to commercial. Surrounding
property owners wanted property returned to the one-family
residence district. The owner of the property desired to
have the zone changed to allow the construction and main-
tenance of experimental and research laboratories. The
local body granted the zone change upon certain "condi-
tions." The lower court dismissed the appeals and con—
cluded that the board had not acted wrongly and thereby

held the zoning change valid.

99

In the opinion of the upper court there was consid-
erable discussion and testimony in regards to traffic and
congestion. In the amendatory ordinance for certain zones,
in which was the commercial zone in this case, was included
one of the regulations provided that no use shall be per-
mitted that will cause or result in
"unusual traffic hazard or congestion due to the type
of vehicles required in the use or due to the manner
in which traffic enters or leaves the site of the use."
. . .the Board changed the zone of the subject prop-
erty to C-D commercial and authorized its use for the
purpose sought. One of the conditions of the change
was that ingress to and egress from the property be
limited exclusively to Buxton Farm Road.

The court cited a case in which the memorandum stated,

”The area affected is residential of very fine type, and

the change of zone will increase traffic in the vicinity

to a considerable degree. . . ." (Treat v. Town Plan &

Zoning Commission, 145 Conn. 136, 140, 139 A. 2d 601;

 

Maltbie, Conn. App. Proc., §152). The court continued in
reference to the Stamford zoning regulations, and said

that

. . .One of the purposes of zoning in Stamford is to
lessen congestion in the streets. . . . An issue before
the court, as indicated by its memorandum of decision,
was whether the zoning board, upon the facts before it,
abused its discretion in determining that the traffic
conditions resulting from the proposed change of zone
would not create a congestion of traffic in the highways

100

affected which would violate the purpose stated in the
special law. . . . That the board did not abuse its
discretion in this respect is implicit in the court's
conclusion sustaining the board's action. Our task
is to determine the correctness of that conclusion.
The property in question was isolated from the public high-
way without any direct access, except over a private road.
All company traffic passes over this road to a public road
which connects to a road that connects to the major highway.
There was considerable discussion concerning all of these
roads. The company prepared a traffic survey by traffic
consultants, which showed contemplated personnel, number
of persons using busses and automobiles, number of cars
expected daily, and traffic on all of the roads concerned.
ZIn regards to the major highway it was said that the sur-
xreys show
. . . that the peak hours of traffic on the Merritt
Parkway itself and on the High Ridge Road interchange
are between 8 and 9 o'clock in the morning and between
5 and 6 o'clock in the afternoon. These are the hours
within which the [company] employees would be arriving
or leaving. The afternoon traffic between 5 and 6

o'clock is about 25 percent greater than in the morning
rush hour.

3* <2<3nsiderable amount of other discussion of the amount of
tra ffic at the interchange and the backing up of the traf-
fij‘33 on the roads entering the interchange was given. Some

roads were discussed as to width and other items. One road,

101

a school bus route, was not equipped for any kind of heavy
traffic, and the traffic consultant had recommended that
none of the company traffic be permitted to use it. With

this recommendation it was said that

. . . Its [the school bus route] elimination would
require all of the A. M. F. [company] traffic to pass
through the bottle neck at Buxton Farm Road, River
Road and the feeder road. The capacity of the road—
ways in the interchange is 600 vehicles an hour.
Traffic counts have shown peak-hour volumes two and
one-half times that capacity. Under the existing
traffic load, the facilities are now taxed to capac-
ity, and with the injection of 400 or more additional
cars into the traffic stream at the peak hours, only
intolerable congestion with bumper-to-bumper traffic
moving at a snail's pace could result. . . .

Another case was cited here that has been reported as case
(47). The corrections and planning recommended by the
<:ompany consultant "to alleviate, but not remedy, the con-
ggestion" would require the widening of certain roads,
jgnstallation of traffic lights, remedial corrections to
salad from the major highway, and provide for acceleration
lanes and so forth, with some corrections involved two
mi les distance from the major highway.
The court continued and said that
. . . As the zoning board has no jurisdiction over the
physical improvement of the city's streets or the state's

parkways or traffic control, . . . it must be governed
by actualities and not theories in assessing the impact

102

of an exceedingly large additional volume of traffic on
present strained facilities. The only answer is con-
gestion.

The Stamford zoning regulations regarding ingress and
egress were reviewed. The regulations did not permit pas-
sage through certain districts from a public highway to
business or industrial districts, unless certain conditions
were met. The court said that
. . . As the regulations do not permit access to a
commercial district through an RA-l [one-family resi-
dence district] zone, the board lacked the authority
to attach the condition of ingress to and egress from
the subject property through Buxton Farm Road.
The property was completely surrounded by the one—family
residence zone, with the exception of 86 feet which bor-
dered upon the major highway.
The court said that
. . . In disregarding the special law and the zoning
regulations relating to traffic congestion and access

to commercial property through a residential area,
the board acted illegally.

There was error in both cases, and the judgments of the
lower court were set aside; the cases were remanded with
(direction to sustain both appeals.
In this case the court has done a rather thorough
.j<Db of investigation into traffic congestion problems. It
11613 delved into the aspects with such thoroughness that

t-‘—}1ere is no further comment to be made.

103

An Illinois case (111) decided in 1958 involved an
area of unimproved property, which had been classified for
single-family use, "since the inception of zoning in 1924."
The owners of the property desired to have it rezoned to
commercial use to permit the construction of an office
building to be occupied as real—estate and doctors' offices.
The plan commission recommended rezoning to a commercial
classification but the zoning board of appeals and the city
council refused to concur. The lower court declared the
zoning ordinance unconstitutional and enjoined its enforce-
ment, as applied to plaintiff's property.

During the upper court's discussion and opinion of
the case, traffic entered the picture in several instances.
The first was in reference to the Tri—State Highway (Route
83) described as a traffic artery lying in the immediate
vicinity of the property in question. Another street car-
ries the service ingress and egress from a stone quarry,
on which travel the trucks carrying the products of said
quarry both away from and into the quarry. These trucks
carried ready mix concrete, sand and gravel. It was also
Esaid that heavy traffic prevails in this vicinity, the

(:ount in a 24-hour period on the road in front of the

104

property in question was 12,000 motor vehicles; the load
was 18,000 vehicles on Route 83. The traffic at the inter-
section of the two highways was controlled by six stop—and-
go lights.

One of the plaintiff's witnesses, a lawyer—member
of the city council, testified that in his opinion the
property in question was not suitable for residential use
because of the noise of the traffic, among other things.

In testimony by defendants, three residents of
the immediate neighborhood denied that they were disturbed
by traffic noises.

The court continued:

Moreover, the record in this case is almost devoid of
evidence from which it is reasonable to infer that
there will be any substantial gain to the public if
the present residential classification is maintained.
The only reason suggested for the present restriction
is the possibility of increased traffic with attendant
danger to pedestrians . . . The large shopping center
will increase the commercial uses in both area and
intensity, the truck weighing station will continue
to produce heavy traffic in the vicinity of this busy
intersection, and the delivery of ready-mix concrete
and sand and gravel from the Elmhurst Chicago Stone
quarry will persist. If we give consideration to the
size and the proposed use of plaintiff's property, it
is reasonable to conclude that the additional traffic
generated by such use will indeed be a minor factor
in the overall picture. . . .

I
"H

I

105

The decree of the circuit court was sustained by the evi-
dence and was affirmed.

The court may well have considered further that the
additional increase of traffic generated by proposed use
would tend to add to the reasons of other residential
property owners in the neighborhood in seeking to have
their properties rezoned as commercial or other use. Each
additional business or commercial use adds more motor
vehicles, thereby possibly increasing the rate of the
deterioration of the neighborhood, and also hinders future
sale of property for residential purposes.

Case (144) of Michigan, decided in 1956, concerned
'the residential classification of a portion of a plain-
‘tiff's property, consisting of 30 acres of vacant land
ILocated on the west side of Telegraph Road, with a fron—
tzage of about 1,616 feet, and with a frontage on Eleven

.Diile Road of about 1,300 feet. The residential classi-

dEthation to a depth of 200 feet along Telegraph Road was
ci€e<11ared invalid, unreasonable, and void by the circuit
CZCDIJIt. The township appealed from the circuit court's

decision,

106

The affirming justice's opinion said

Appellant admits that Telegraph Road is a high speed,
heavily traveled, arterial highway and the proofs
disclosed that approximately 15,000 vehicles travel
Telegraph Road each day, at an average speed of 55
miles per hour. . . .

Ninety per cent of the people seeking lots to build
homes on would not consider lots on Telegraph Road and
fathers and mothers refuse to consider these lots be-
cause of the heavy traffic and high speed, according
to the testimony of [a] real estate broker.

Another real estate broker testified that

I am familiar with the traffic conditions upon Tele-
graph Road. It would affect the desirability of
this property fronting on Telegraph Road for resi-
dential purposes very much. . .

A property owner in close proximity to the prop—
erty in question had been attempting to sell her home and
property for some time. Several prospective buyers said
that they were not interested because of its proximity to
Telegraph Road. She had described the problems that were
caused by the traffic on Telegraph Road. She said:

I have observed the traffic conditions for these past
17 years. I will say it is increased to an awful
amount - much more - because we have our house standing
on Franklin Road and our kitchen is on the turn over
there, facing Telegraph Road - it is around 160 -
maybe a little more - feet, and when the heavy trucks
come by, the shaking and vibration I can feel in the
kitchen. You do feel it at night. The heavy trucks
at night. They start increasing after midnight -
haulaway trucks - the vibration is so I can hear the
windows shake in the house, so that is the vibration
we hear.

107

A professional city planner that was employed by the town-
ship on a per diem basis testified that

plaintiffs should be confined to residential develop—
ment because to allow them to develop their property
fronting on Telegraph Road for commercial purposes
would call for "ribbon zoning," thereby increasing
"the hazard of the highway, add to the congestion and
slow up the movement of the traffic on the highway
itself." He testified that he was quite sure a layout
could be prepared for plaintiffs' land that would make
it a very sound residential investment, and, being
questioned as to how this could be done, stated:

"I am not sure of all the details, it might possibly
be (the buildings could face some other street parallel
to Telegraph) or we might set the residences back three
or four hundred feet from the highway, or they might

be backed up to Telegraph."

The court went on to say that the professional city plan-
ner's testimony was not persuasive when
considered with that of the traffic engineer for the
State Highway Department, . . . who testified that
new commercial development is subject to controls of
the State Highway Department regulating traffic going
off or onto the highway; that recently such access con-
trols were satisfactorily established on Telegraph Road
between Nine Mile and Ten Mile Roads and, also, in
Birmingham, Royal Oak, Pleasant Ridge and Pontiac.
The court then said that "it has repeatedly held
1:hat each zoning case must be determined upon its own facts

Etnd circumstances." The judgment of the circuit court was

affirmed. Five justices concurred with the decision.

108

This case had a dissenting opinion that is very
worthy of elaboratin on also. The dissenting justice also
injected the subject of traffic into his opinion. He said
that

Careful consideration of . . . [the facts], and the
applicable legal principles, compels me to disagree
with his [Justice Kelly's affirming opinion] result.
The sole issue in this case is: Is it an unconstitu-
tional use of the police power for a township to zone
property adjacent to a heavily travelled highway for
residential purposes exclusively? An affirmative
answer to this question by this Court in my mind
would play havoc with all city planning and zoning.

Traffic of greater or lesser degree and in volumes
increasing or decreasing by the year, is a part of
our modern life. A declaration that as a matter of
law proof of heavy travel on an adjacent highway
voids a residential zoning provision would consti-
tute a threat to the stability of practically every
zoning ordinance in the state of Michigan. Further,
it would invite litigation in relation to every piece
of property zoned for residence along every heavily
travelled highway in the state. Moreover, it would
place the trial courts and the Supreme Court squarely
in the business of determining just how much traffic
and of what character would serve to void a particu-
lar litigated zoning provision.

Such a practice would, in my view, represent a major
judicial intrusion upon the discretion vested in
local legislative bodies who are charged with the
adoption of zoning ordinances.

The justice continued with a discussion of the function of

a zoning ordinance and other material. Then he went on to

say that

Ann-

109

The piece of property about which this litigation turns
is located at the juncture of Eleven Mile and Telegraph
Road. Eleven Mile Road is not a through or traffic
street. All of the property for a considerable dis-
tance both north and south of this property on both
sides of Telegraph Road is zoned* for residential pur-
poses, as is most of the Telegraph Road frontage for
several miles to the north . . . where Telegraph runs
through an area described in this record as one of fine
residences.

All of the property within a mile of plaintiffs' land
is residentially zoned with the exception of business
zoning at the major intersection of Telegraph and
Northwestern highways. Immediately across Telegraph
Road from plaintiffs' property there are 6 houses of
some considerable value, some of which have been

built in recent years since the development of traffic
volumes on Telegraph.

As the record stands before this Court, it is apparent
that a logical application of Justice KELLY'S opinion
would run a strip of commercial and/or industrial
development directly through one of the most com-
pletely residential areas in the Detroit metropolitan
district. . . .

Judge Doty in his opinion brushed aside the interests
of the residential property owners across Telegraph
Road and in the nearby areas of Southfield Township
and found as follows:

"The traffic hazard, noise, smoke and general increas-
ing business and commercial development in the imme-
diate vicinity of plaintiffs' property makes it
unsuitable for residential purposes . . ."

There is no testimony in this record relating to
increasing business and commercial development in the
immediate vicinity of plaintiffs' property. Traffic

*
Authority of c. L. l948,§125.l7l et seq., Stat.
1949 Rev. §5.2963 (1) et seq.

110

hazards, noise and smoke are, indeed, a part of high
volume traffic on through highways. The writer does
not feel that it lies within the function of the judi-
ciary to establish as a rule of law that these factors
of and by themselves render all residential zoning
adjacent to arterial highways unreasonable or unconsti-

tutional.
The dissenting judge then said that the zoning ordinance in

dispute should be held reasonable and valid, and that the

decree of the trial court should be reversed. One other

justice concurred.

A considerable amount of space was taken up this
case as it seemed that it is very important. Earlier in
'this report "ribbon development" of business and commer-
<:ial establishments was mentioned as having a considerable
EiffeCt upon traffic congestion and land use relationships.

fPhe allowing of such a large or long parcel of land adja—

<:ent to a highway, as in this case, to develop into busi-

Iiess and commercial uses will greatly affect further traf-

13ic congestion and land use development, even though the

terrtrance and exits from a "ribbon development" may be con-
trolled by the state.

With the developing of this property into business

Earlci commercial uses it will be attracting many more autos

tzllealreby increasing the congestion caused by the slowing

111

down of automobiles on Telegraph Road, which is already

heavily traveled upon entering the development, and again
hindering the movement of traffic upon reentering the flow
of traffic. Although the court may have thought at this
time that there may be little effect upon the traffic con-
gestion, this is a case where there will be repercussions
felt in the future. With the allowing of this extensive
use along Telegraph Road for a considerable distance, a
detrimental effect will be felt upon the properties across
Telegraph Road from this property, and other properties
adjacent and possibly properties to the rear of the rezoned
area due to the effect caused by the traffic and conges-

t ion problems created .

Eventually Telegraph Road will begin to look like
all the other main roads of our cities where long strings

of commercial development once flourished. The areas
aI'3‘C>1.1nd these "ribbon developments" usually begin to deteri-

orate and eventually spread out, like a kind of mold envel—

CDEDing a loaf of bread. Look in and around our cities and

3“: is unmistakably visible. Therefore in the affirming of

this case, there is the probability of the same thing hap-

Dehing here. The area will flourish for awhile, affect

112

surrounding areas, and then the down grading of the area
will begin; then the same thing will happen that is visible
in and around Detroit today.
It is the opinion of this writer that this case is
a very good example of one in which the affirming justice
of the supreme court and the judge of the circuit court
themselves are not aiding in the relief of traffic conges-
tion in many instances but are hindering such relief when
they allow such a thing to happen as in this case. They
are not helping "to lessen congestion on the public roads
and streets" in this case, as provided by the Township
Rural Zoning Act, Act 184 of the Public Acts of 1943 as
amended, §125.273.
A New Jersey case (186) decided in 1954 had con—

CeIli‘ned an amendment to the zoning ordinance of the defen—
dant borough. Suits challenging the amendment were brought
by three other adjoining boroughs having borough boundaries
in the immediate area. The amendment contested changed
the zoning of one block from a residential zone to a busi-
ness zone. The defendant borough's governing body unani-
mOUSly adopted the amendatory ordinance after the planning

board approved the change. The three adjoining boroughs

113

Ivexnted the block returned to the residential classification.

The lower court entered a decision setting aside the amend-

rnearit to the zoning ordinance. The defendant borough

aEDEDealed to the supreme court.

The opinion and decision of the supreme court con-

taij.11ed considerable reference to traffic and congestion.

Chase Iof the witnesses for the defendant testified that the

bl 0 CR in question

. . . "was a logical place to put a business area, in
Tkeeping with the plan of the Borough. The best inter-
ests of the public would be served by placing a shop-
‘ping center in an easily accessible area,
'have adequate off-street parking." He further stated
that both the planning board and the council had
considered traffic problems, parking facilities, the
element of safety, the comprehensive zoning plan of
the Borough and other important factors

that would

(DTIEB side of the block in question was bounded by a heavily
t1I‘Ei'veled county highway.

The plaintiffs had several witnesses who testi-
fijead, on the other hand, as to the undesirable aspects of
tlllea zoning amendment both from the standpoint of the traf-
j311<2 conditions and as it related to the comprehensive

25<3rling plan of the defendant borough and the three adjoin-

i rig boroughs .

114

There was also testimony give that

. . .Knickerbocker Road is a heavily travelled two-
1ane county highway where the traffic congestion, lack
of parking facilities, and the general safety problem
have for some time been a matter of public concern,
and that the rezoning of Block 197 as a business dis-
trict would increase these problems to the detriment
of the public generally and especially to the resi-
dents of the area. . .that a new shopping center was
unnecessary, since existing shopping facilities were
adequate.

A zoning expert testified that the rezoning of the block
in question was not in accordance with comprehensive zoning
of the borough.

The act was quoted in several parts including the
part RS 40:55-32 which included the section; "to lessen
congestion in the streets."

The supreme court said that

the comprehensive zoning plan of the borough reveals

an intention to maintain this whole area as a resi-
dential one and as testimony clearly shows that the
block is suitable for the construction of residences.
There is no reason why it should and cannot be used
profitably for that purpose. On the other hand, the
changing of Block 197 to business use will not "lessen
congestion in the streets." . . . On the contrary the
proposed use of the land cannot fail to achieve objec-
tives the zoning was designed to prevent. One has but
to remember that Knickerbocker Road, though an impor-
tant artery of traffic from Englewood to the New York
line, is merely a two-lane street to realize the con-
sequences which would flow from the congestion of traf—
fic at Block 197 in the event of the construction of a
shopping center there. We fully concur in the findings

115

of the trial court that the ordinance under review
"does not promote any of the statuory purposes rela—
ting to zoning."

The court said that the ordinance must be set aside
as "spot zoning" in violation of the comprehensive plan of
the borough and that it also is contrary to the provisions
of the zoning law. The judgment of the lower court was
affirmed.

The court in this case recognized the purposes of
zoning and the resultant traffic and congestion that would
result from the proposed rezoning. Permitting a large
shopping center in an area where evidently all of the
streets are unable to handle the increase in traffic would
result in undesirable effects upon the neighborhood. The
resultant traffic congestion would be a detriment to the
neighborhood unless adequate zoning regulations protect
the residential area. The streets around the shopping
center will become "shortcuts" to the shopping area if
adequate circulation, ingress and egress and traffic con-
trols are not provided for. Even though adequate provi-
sions are made, there is also the effect that such a use
will have upon the surrounding area as mentioned in con-

nection with the preceding case.

116

A New York case (251) decided in 1954 involved the
desire to change the use of a one-family dwelling to that
of an undertaking establishment (funeral home), and to
erect a one-story addition to the rear and side of the
existing building, to erect a three—story elevator shaft,
to have a lighted sign, and to provide for one-family
living quarters. The dwelling was located in a residence
district in which undertaking establishments were allowed
if approved by the board of appeals. The board refused to
grant a permit. The lower court had annulled the deter-
mination of the board and directed the issuance of the
permit. The zoning board of appeals appealed from the
order.

In the court's opinion, it referred to the hear-
ings and data of the board of appeals. During the hear-
ing before the board several residents of the neighbor-
hood appeared; some spoke in favor of the application
but several others objected. The board in denying the
application set forth clear and explicit reasons, the court
went on, in its "Findings of Fact.” Among the findings, the
board found that

. . . "The operation of a funeral home of the size

here proposed would greatly increase traffic in the
vicinity and would create parking problems and traffic

117

hazards, not only upon Lake Avenue but also upon
Senaca Parkway and Maplewood Avenue as well." The
board was "not satisfied that the proposed off-street
parking facilities would be sufficient for the type
and number of funeral services the proposed establish-
ment would be designed to accommodate."

Other findings of fact included the location and character
of the property in question, the character of the surround-
ing area (a highly desirable residential area), a smaller
funeral home in the vicinity which had slightly impaired
the residential character in its immediate vicinity, and
other facts. The court went on to say about the above
facts that

It will be seen from the above mentioned findings of
the board that the board had in mind the general pur-
pose and intent of the zoning ordinance, analyzed and
considered the effect upon the locality of a funeral
home, and concluded that to grant a permit for an
undertaking establishment in this particular area
would be contrary to that general intent and purpose.

The granting or the withholding of such a permit as
is asked for here is a matter peculiarly within the
discretion of the zoning board of appeals. The court
may not substitute its judgment for that of the board,
and may not set aside the determination of the board
unless it clearly appears that the board's action was
arbitrary and unreasonable. . . .

It clearly appears from the facts developed at the
hearing and from the circumstances and character of
the neighborhood that the board exercised a discretion
in harmony with the general purpose and intent of the
zoning ordinance. We conclude that the determination
of the board was not arbitrary or unreasonable.

118

The court after further discussion said that the appeal had
been properly taken and the order of the supreme court at
special term should be reversed and the determination of
the board of appeals confirmed.

The final order reversed on the law and determina-
tion of the zoning board of appeals was confirmed.

The board in this case evidently had foreseen the
results that would have occurred if this use had been per-
mitted. There naturally would have been an increase in
traffic. With insufficient parking facilities available
in the area, or inadequate facilities provided for by the
property owner, the automobiles would automatically be
forced to park in the streets, thereby creating additional
hazards and congestion by narrowing or reducing the num—
ber of the lanes of moving traffic-—creating a so-called
bottleneck at these points. This would affect not only
one street but all surrounding streets. The lower court
evidently had just ignored these facts along with the
intent and purpose of zoning: "to lessen congestion in the
public roads or streets."

A Pennsylvania case (267) decided in 1956 involved

a l3—acre tract of land which was zoned for residential

119

use. Previously much of the land in question had been in a
business zone. The owner applied for a building permit to
erect a supermarket and adjoining incidental retail stores
with parking thereon, and also petitioned for a variance.
The building inspector refused to grant the petition and
building permit, because the application was for a busi-
ness purpose in a residential zone. The board of adjust—
ment denied the appeal by the owner. The lower court
sustained the appeal and concluded that the zoning ordin-
ance was arbitrary, discriminatory, confiscatory and
therefore unconstitutional, as to this tract of land.

The upper court, in its opinion and discussion,
reviewed the facts concerning the property in question and
also the surrounding area. The court said in using some
of the material findings of the lower court, that there
is no access to the property except for about 125 feet
along one road which is heavily traveled, and therefore is
isolated from the adjoining streets, dwellings, and build-
ings. The court further said that appellant's land was
not suited for residential purposes because of the diffi-
cult problems presented (among other things, the heavy
traffic along the road), and that is would not be economi—

cally feasible or practical to build houses on the tract.

120

The court cited the lower court's finding further:
"If appellant's land is used for the construction of a
super-market, there would be [among other reasons
listed] an increase of the traffic on Garrett Road, but
such increase would not coincide with the present peak
traffic periods and there would be no increased hazard
or damage from increased traffic or any other condi-
tion. . . . there will be no adverse effect on the
adjacent residences by reason of noise, confusion or
light. . . .
The literal enforcement of this ordinance would impose
an unnecessary hardship on the subject property. The
land is not suited for residential purposes because of
the difficult problems presented by . . . the heavy
traffic along Garrett Road. . . ."

The upper court affirmed the action of the lower
court in saying that the zoning ordinance, as applied to
this tract of land, was arbitrary, confiscatory and uncon-
stitutional.

There is not much that can be said about this case
as the property was in an odd situation, railroad on one
side with storage area for freight and heavy machinery, a
stream traversing the subject tract and flooding at vari-
ouse times among other things. Another boundary of the
property in question was the rear property line of the
lots of 15 dwellings. Third boundary adjoined vacant land.

The fourth boundary was the side toward Garrett Road, with

only 125 feet of 372 feet adjoining the road. Although

121

the property is in an isolated situation, there could be
undesirable effects on the 15 dwellings. The addition of
such a concentration of use will of course attract consi-
derable traffic. The parking problem should be taken care
of in this situation with adequate parking being provided
on the premises. The traffic may have detrimental effects
on the surrounding property caused by increasing the amount
of traffic on the local residential streets. Even though
traffic may have little effect upon neighboring resi-
dences, the noise, lights, and the glare from these lights
as well as other effects of a large commercial development
may tend to start deterioration of the residences unless
regulations are provided for minimizing their effects by
green belts, noise barriers, and so forth. After this
parcel is rezoned the owner of the adjacent parcel of va-
cant land, abutting this property, may enter into the pic-
ture by reason of the desire to have commercial or other
intensive development on his property. Thus the results
would be the tendency to spread the commercial attrac-
tion upon other property owners, beginning the cycle of
deterioration of residences, then the desire for commercial
uses and so forth, with traffic and congestion increasing

at each expansion. The property involved here would be

122

more ideally suited for the commercial use than the previous
case but--as has been said before--adequate protective meas—
ures should be taken to minimize the effect of the develop-
ment upon the surrounding property owners.

In comparing cases (251) and (267) the following
can be said. The property in (251) was located in an
ideally situated neighborhood, uninhibited by other influ-
ences of commercial development, natural barriers, topo-
graphical influences, and railroads. The street was heavily
traveled but evidently it did not inhibit the residential
character of the area; therefore it can be seen that there
were valid reasons for not desiring a commercial develop-
ment to get started and form a wedge for other intensive
development. Although there was one small business estab-
lishment in the area, the result of that use was said to
have slightly impaired the surrounding property. Adding
another intensive use would have increased both the traf-
fic congestion and deterioration of the area.

In case (267), although there were 15 dwelling lots
abutting one side of the property involved, two of the
other sides were undesirable because of the railroad and
other non-residential development. This property was unde-

sirable for residential development because it was low,

123

subject to flooding, and had a stream traversing the prop—
erty. The tract had been used previously for commercial
operation as a pay-as—you—go public golf course. Other
factors involved made it unsuitable for residential devel—
opment, extensive land filling to make it usable, sewers
and storm sewers traversing the property close to the sur-
face, and relocating the stream bed among other undesira—
ble factors. In this case it is believed that the

desired use is more feasible and that it could be properly
developed, providing adequate protection is given to the
adjacent 15 dwellings, through development of a green strip
on that side and other improvements to minimize the com-
mercial develOpment effects upon them.

A California case (4) decided in 1958 involved the
rezoning of a tract of land from a residential and agri-
cultural zone to a heavy commercial use zone. Most of
the land was planted in citrus trees. The property owners
requested a redistricting of their property. The boule—
vard frontage was finally rezoned as heavy commercial
uses by the city council after many delays and previous
denials of rezoning applications submitted by the plain-
tiff property owner. There were several public hearings

held during the time the plaintiffs attempted to get the

property rezoned.

124

Many registered voters petitioned to return the
property in question to a residential use (single-family
zone). At a special election, the citizens voted against
the adoption of the rezoning ordinance. Plaintiffs (prop-
erty owners) sought declaratory relief action to have the
ordinance held valid. The trial court, deciding that the
boulevard frontage was more suitable for commercial pur—
poses, that the rezoning ordinance was not discrimina-
tory as to plaintiffs, held that the ordinance was valid.

In the upper court's decision there was little
discussion of the traffic conditions around the property
in question. The boulevard, on which plaintiffs' prop—
erty fronts, is a widely travelled highway. The property
also fronts on another street which is evidently not
highly traveled. The defendants' appeal made no reference
to traffic conditions. In the chronological listing of
the case data the upper court listed, among other things,
that the trial court had found:

That the highway conditions in front of plaintiffs'
property rendered its boulevard frontage more reason-
ably usable and suitable for commercial purposes than
for residential or agricultural purposes; that sub-
stantially all the property in the county contiguous
to and for some distance east and west along Foothill

Boulevard was and had been zoned for business; and
that next to plaintiffs' property there were a

125

reservoir, water well, and pumping plant which for many
years had been used for commercial purposes. . . .
(item xiii. [b] of Chronology).

In the plaintiffs' appeal mention of the highway
conditions in regards to the property in question was made
by the court in answering stated questions. The first
question was

Was the zoning of plaintiffs' boulevard property for
residential and agricultural use in the general zoning
ordinance No. 441 unreasonable, oppressive, arbitrary
and discriminatory, in the light of the trial court's
finding. . . .?

The answer given by the upper court was

NO . . .
As hereinabove stated, the trial court found that the
highway conditions in front of plaintiffs' property
rendered its boulevard frontage more reasonably usable
and suitable for commercial purposes and that substan-
tially all the property contiguous to and for some
distance east and west along Foothill Boulevard was
zoned for business . . .
The judgment of the trial court was reversed, and the
plaintiffs' application for leave to produce additional
evidence and for the court to make additional findings was
denied.
In the dissenting opinion much mention of the traf-
fic and conditions was given. The dissenting justice said

he believed that the ordinance rezoning a portion of the

property in question as a commercial zone was subject to

126

referendum, and that the plaintiff property owners' consti—
tutional rights had been invaded by the basic ordinance
which zoned the plaintiffs' property for residential and
agricultural uses.

The justice then gave a thorough summary and dis—
cussion as to the property and the highways on which it
fronts. This will be condensed considerably. The property
lies at the corner of two roads. Foothill Boulevard, upon
which the main part of the property fronts, is not in the
city involved in this case, and this frontage is the part
that was rezoned. The boulevard also known as U. S. Highway
66, is a heavily traveled highway. An average of 12,800
vehicles per day of all types traverse the road at high
speeds during the weekdays; the number increases substan-
tially on weekends. Considerable noise, fumes, odors, gases,
and vibration are emitted from the traffic. The noise can
be heard over 300 feet from the highway; the odors, fumes,
and gases have killed or harmed the citrus trees for at
least 100 feet back from the highway. The property had
been used for a citrus orchard for many years. There was
no posted speed limit in front of the property in question,
but speed was restricted from the intersecting street

mentioned away from the property in one direction; the

127

opposite direction past property was unrestricted. These
are the main points mentioned in the discussion. This data
was taken from the trial court findings which the justice
cited. The justice cited the trial court in this conclu-
sion that
. . .said traffic conditions upon said Foothill Boule-
vard render plaintiffs' said boulevard frontage more
reasonably suitable and usable for commercial uses and
purposes, as authorized and permitted in a C-2 Zone by
the terms of said Zoning Ordinance No. 441, as amended
than for any other purpose . . .
The dissenting justice then cited a case closely in point
with this case:
Summarizing, plaintiffs' property is not usable for
either residential or agricultural purposes; it is
surrounded by commercially used property; . . . A
case closely in point is Skalko y, City pf_Sunnyvale,

14 Cal. 2d 213 (93 P. 2d 93). There plaintiff's
property was, as here, zoned residential, but it was

near a large cannery which emitted noise and on a

highway carrying heavy traffic . . .
The justice (dissenting) said he would affirm the judgment
of the trial court, which had held that the ordinance re-
zoning plaintiffs’ property as commercial property was
valid, on the ground that Ordinance No. 441 is unconsti—
tutional as applied to the plaintiffs' property. This
conclusion renders it unnecessary to determine whether

Ordinance No. 513 rezoning plaintiffs' property for com-

mercial uses was subject to referendum or was otherwise

valid and effective.

128

A petition by the plaintiffs and appellants for a
rehearing of this case was denied later in 1958. The dis—
senting justices in the dissenting opinion said that the
petition for a rehearing should have been granted.

The court, in reversing the decision of the trial
court, could have, if it had needed to, brought out some
additional factors in upholding its own opinion. The very
heavy traffic, as brought out by the dissenting Opinion,
would have been increased and interrupted even more if the
heavy commercial uses were allowed. Additional ingress
and egress facilities would be built. With each entrance
or exit there would be additional hazards created by vehi-
cles leaving and entering this highway from the adjoining
uses. Slowing down of traffic would result. Possible
parking on the local street could happen, unless prohi-
bited, and unless there were provisions in the zoning ordi-
nance requiring sufficient off-street parking spaces to
serve the new uses. The parking on the roads narrows the
space for moving traffic and creates hazards for pedes-
trians. There was a rather large residential area next to
the prOperty in question. Deterioration of this area could

result unless adequately protected.

129

The building of housing along a highway, as heavily
traveled as this one, is a problem that is hard to solve in
many instances. The lots along such a highway could be
extra deep or backed up to the highway and planted and
fenced in to cut down on the effect of the traffic noises.
Although there would be driveways from the residential
area, there would be the very minimum of cars entering or
leaving the premises. Also another factor that entered the
case here was that there was more than sufficient land
zoned for commercial uses in the city, as testified by some
witnesses. An enabling act could have possibly helped here
in this case in that the court (affirming opinion) would
have had something in its favor to further rely upon in
basing its opinion in regards to traffic and in relieving
congestion on the streets.

In the dissenting opinion, with the reasoning that
was presented, is every heavily traveled road to become a
mecca for various commercial uses? It stated that the
traffic, among other factors, rendered the land unsuitable
for residential use——therefore should all land bordering
upon a heavily traveled road be zoned or rezoned for com-
mercial uses as was iterated by Justice Edwards in Michi-

gan case (144) in his dissenting opinion? This is just

130

about what was happening in the country along practically
all heavily traveled roads, until some adequate provisions
were made. There has been a halt to this practice, at
least temporarily, due to the construction of freeways and
limited access highways, where there are limited or no land
uses allowed to connect directly with the roads.

The dissenting opinion had good reasons present
upon which to base its decision and deem the property
unsuited for residential uses, but as has been stated before
it could be used otherwise if adequately planned and regu-
lated.

A case from Maryland will be used for comparison
with the selected States. The Maryland case (307),decided
in 1954, involved a 65—acre tract of land which was zoned
for residence use. A petition was filed to reclassify a
portion of the property to commercial zone to permit the
erection of a shopping center. The zoning commissioner
granted the application subject to certain restrictions.
The owners of nearby properties protested and appealed to
the board of zoning appeals. The board affirmed the deci-
sion of the zoning commissioner, stating that there was a

need for a shopping center and that the proposed location

131

was an appropriate one. The surrounding property owners

petitioned for a writ of certiorari in circuit court, and

 

the court affirmed the decision of the board. The protes-
tants appealed to the upper court.
The upper court stated:

There was also a conflict in the testimony [before the
lower court] as to whether the proposed shopping center
would produce traffic jams and hazards on the streets
in this area. Mr. Beccio [owner of the property in-
volved] claimed that the shopping center would not
create any traffic problem on Edmonson Avenue whatever.
On the contrary, the protestants claimed that the
shopping center would make travel there very dangerous.

There was also conflicting testimony concerning whether

the neighborhood had changed enough to warrant the zone

change and whether a shopping area less than a half mile

away was adequate to satisfy the needs of the residents.
The upper court also said that

. the [trial] court should not substitute its own
judgment as to the wisdom or soundness of action taken
by the board, but should decide only whether or not
such action was arbitrary or discriminatory. It is
not the function of the court to zone, or rezone, and
it is only where there is no room for reasonable debate
as to whether the facts justified the board in deciding
the need for its action, or where the record is devoid
of supporting facts, that the court is justified in
declaring the action of the board arbitrary or discrim-
inatory and therefore void.

132

The court said that there was cogent testimony on both
sides of the case, and went on to discuss the action taken
at the public hearings and recommendations given at the
hearings.

The planning commission advised the board

. . . that Edmondson Avenue is the main thoroughfare
through this section of Catonsville, and the inter-
section of Edmondson Avenue and Lee Drive will be a
focal point for the movement of traffic and a logical
place for a shopping center.
This report was not placed either before the board or the
lower court, and in conclusion the upper court said that
. ./; In reviewing the action of the zoning board,
the court on appeals considers the board's action, not
the opinion of its members. We will therefore reverse
the order appealed from and remand the case for further:
hearing when the report of the Planning Commission may
be introduced in evidence, and the parties may produce
any further evidence and have the right of cross-
examination.

In this case, although not brought out here, there
may have been considerable testimony given as to traffic
conditions. With the erection of a shopping center, there
is always an increase of traffic. Whether the streets that
surround or serve the shopping center are adequate to
handle the increase of traffic should be considered. If the
shopping center is not adequately supplied with parking

facilities, or the center is not required through the zon-

ing ordinance to supply sufficient parking places, there is

133

the possibility of the cars parking on the adjacent streets,
thereby congesting the traffic flow by reducing the number
of moving lanes of traffic. Also if the shopping center is
not provided with adequate internal circulation and access
routes, congestion within the center itself will result.
Incidentally the problem of parking upon the streets will
depend upon the size of the shopping center, whether it is
a one-or two-small-store, neighborhood center or a large,
well-planned area shopping center.

Shopping centers should have sufficient provisions
and regulations provided for in the zoning ordinances so as
to minimize the effects they have upon surrounding land
uses, especially if they are in or adjacent to residential
uses. These provisions and regulations can designate the
amount of parking per square foot of floor space or possi-
ble customer demand, size of stores, size of property
involved to limit size of building upon the property——or
minimum area covered by buildings, and also by providing
adequate but well regulated access routes, ingress and
egress openings, and by limiting the location of shopping
centers in areas where there are already adequate roads

and streets.

134

Section 5: Category E Residential ==Industrial and

Manufacturing.

A California case (16) decided in 1956 involved the
rezoning of an area by an amending ordinance to light indus-
trial. The vacant 785—acre parcel had previously been
zoned for agricultural uses. Nearby property owners wanted
the area returned to its previous classification and
attacked the amending ordinance as arbitrary and unreason—
able. The planning commission and the city council held
elaborate hearings at which the various objections then
urged were advanced, considered, and held not to be valid
reasons for withholding the rezoning. The trial court
upheld the rezoning.

In the upper court's deliberation and decision
there was considerable interjection of the traffic situa—
tion. The appellants' major contentions were that

. . . the rezoning has and will depreciate the value
of their homes situated in the general neighborhood,
and that permitting light industry in that portion
of the valley is not consistent with the general
welfare because inter alia existing roads and sewers
are inadequate to accommodate the traffic which will
be developed by the improvement of this vacant land
in conformity with the new ordinance.

In the findings of the trial court it was mentioned, among

numerous other things, that the master plan of the city

135

had indicated ample highway and roadway access to the
rezoned area. Another of the findings concerned the num—
ber of commuting employees which leave the San Fernando
Valley for their employment. The finding was that more
persons were commuting from the San Fernando Valley than
were entering for such purpose.
The argument, the court went on, that

. . . development of the 785 acres (1.226 square

miles) for industrial uses would create intolerable

congestion of traffic and inadequacy of sewer service

presupposes that roads and sewers will remain in their

present limited capacity, rather than growing in pro-

portion to the increasing public demands. This is a

faulty notion of the basis for testing validity of a

zoning, which necessarily looks to the future and

proceeds upon the assumption that development of

properties and facilities within and without the

zoned area will proceed harmoniously with its

requirements. . . .
The appellants also contended that the industrial use of
the 785 acres would create, among other things, a great
increase in the dust, noise, and traffic and would occur
in what was a predominantly residential community.

This court affirmed the judgment of the trial court.

The appellants' petition for a hearing by the supreme court
was denied in 1957.

Michigan case (137) decided in 1953, concerned

property of 6 acres which was in two zone classifications

136

and had two dwellings, one about 160 years old. Part of
the lot was zoned for two-family dwellings and the remain-
der was zoned for one-family dwellings. Property adjoin-
ing the property in question on two sides is zoned resi-
dential and the other two sides are zoned as light manu-
facturing. The property in question was purchased for

the development as residential area, but there were no
buyers because no financial institution would accept
mortgages, because of the location and proximity to an
airport and manufacturing plants. Plaintiffs had requested
to rezone the property for manufacturing purposes, because
of the inability to sell the property for residential
uses. The application for rezoning was denied upon the
recommendations of the city plan commission. The lower
court held the ordinance invalid as applied to the plain-
tiffs' property. The defendant city appealed.

The upper court's opinion and discussion reported
that the residents testified, on behalf of the city, that
if light manufacturing were permitted on the lot in ques—
tion, it would increase traffic on the streets, make
parking difficult, increase noise and dust, and in gen-
eral would make the area less desirable from a residential

standpoint. The court went on to say that

137

. . . While residents of the area immediately adjacent
do not approve of a light manufacturing use of plain-
tiffs' property because of a probable increase in traf-
fic, noise, smoke and dust, the record indicates that
the area is already characterized as an undesirable
residential area because of the existence of those
conditions in larger degree than is normally found in
residential areas. The character of the area will be
changed in slight degree if light manufacturing is per-
mitted on plaintiffs' property.

The court declared that the zoning ordinances were
unreasonable and confiscatory and therefore invalid as
imposed upon plaintiffs' property. A decree was to be
entered accordingly. (This affirmed the lower court's
decision.)

This California case was one of the best ones found
in regards to the traffic question being included in the
discussion by the court, even though California does not
have the purpose included in its enabling acts. Although it
was alleged that the industrial use would create intoler-
able congestion of traffic, the court upheld the rezoning.
The same factors could apply here as has been stated many
times before, parking in the streets and so forth.

An ideal situation to be considered in the develop-
ment of a large industrial site is the so—called industrial

park type development. The effect upon a residential area

that a use such as is contemplated in the California case

138

can have can be minimized by providing adequate controls,
measures, and regulations--formulated and required so as to
provide for adequate parking, streets, traffic control,
landscaped settings, and roads, among other things, to
serve such an area without allowing it to become an instru-
ment in causing the deterioration of a residential area.
There are several differences between the property
involved in these two cases. One is that there were
industrial areas on two sides of the property involved in
the Michigan case; the California property was completely
surrounded by residential area (as closely as could be
determined). The Michigan case in its approval of the
rezoning as industrial, could bring upon the residential
area additional effects by increasing the traffic that
already existed to the already existing industrial areas,
whereas in the California case there might be similar
effects upon the residential area, but to a much more
limited degree, for there was no other intensive use in
the area. Also in the California case, because the prop-
erty was an exceptionally large, undeveloped area for which
the master plan shows adequate highway and roadway access,

there was a chance to provide appropriate streets within

139

the area and to develop the parcel into an ideal "industrial
park" type development, which has been shown generally to
have no effect upon the surrounding residential areas.
Therefore the effects upon the residential areas caused by
the rezoning in these two cases will be of two distinct
differences. There are more reasons applicable in the
favorable rezoning as industrial, the area in the Michigan
case, than there were in the California instance, because
of the adjacent industrial uses, but it has been shown that
the California rezoning can be allowed if adequately regu—
lated. More information as to street conditions, traffic
volume, and other pertinent data might have been used in
both cases to deter the rezoning for industrial uses if it
had been definitely felt that the use should not be
allowed. Of course the California case, as has been stated
previously, could be developed into the ideal industrial
park if the adequate protection was provided through the
zoning ordinance.

Would the inclusion of the purpose in the enabling

 

acts of California have helped in deterring the rezoning of
the area as industrial if it had been decided that the use

should not be allowed at all? It is believed that it would

140

have, because then the court would have had an additional
legal basis upon which to base its decisiOn,.as it had
reCOgnized the serious traffic situation that would be
involved and promoted if the desired use had been
permitted.

Maryland case (308) decided in 1955 concerned the
expansion of an existing manufacturing plant. The lot in
question was in a residential area, where it was a legal
non-conforming use. The building, occupying less than 10%
of the lot, was used for the manufacturing and repair of
motor truck bodies. Owner desired to add to the existing
building another building about the same size. The ordin-
ance provided that non—conforming uses could be extended
only with the approval of the board of zoning appeals.

The board granted the approval for the extension. Sur-
rounding property owners appealed to the circuit court

upon the decision of the board of appeals. The court
reversed the decision of the board. The owner of the prop—
erty involved in this case had previously sought to expand
his building under the previous ordinance, but was denied
by the zoning commissioner and the court affirmed that

decision.

141

The upper court said in its opinion that the board
had given careful consideration to the testimony presented
by the surrounding property owners, and it was impressed

that they

. . . had purchased his land and built his house after
the applicant had started in business, and by the fur-
ther fact that none of the protestants had been dis-

turbed by any noise or odor from the applicant's plant.

The upper court said that this appeal required it
to review and consider the zoning regulations which were
adopted. The part that is pertinent to cite here is

Section 24, entitled "Limitations, Guides and Stan-
dards," directs that the Board shall not approve an
application for a permit where it finds that the
"proposed building, addition, extension of building
or use, sign, use or change of use would menace the
public health . . . or would result in dangerous
traffic conditions, or would jeopardize the lives or
property of people living in the neighborhood."

The court then said that the above quoted section speci—
fically provided that in deciding such matters that the
board shall give consideration, among other things, to

l. O O O

2. Traffic conditions including facilities for pedes-
trians, such as sidewalks and safety zones and parking
facilities available and the access of cars to highways.
5. The purpose of these regulations as provided in
Sections 1 and 2.

13. As developed, the master plans for highways, . . .
and the like.

142

Sections 1 and 2 were not cited in the case but it is
assumed that in one of these the purpose of lessening the
congestion on the public streets was included.

The court said there was no dispute over most of
the limitation, guides and standards in this case. It said
that

. . . There is no problem as to masses of people resi—
ding, working or studying in the neighborhood. No
difficulties are expected from traffic conditions, such
as facilities for pedestrians, parking facilities, and
access of motor vehicles to the highway. . . . There
are no structures in the vicinity where people are apt
to gather in large numbers, such as schools, churches,
theatres, and hospitals. And finally there was no
controversy over any master plan for highways, parks,
or schools or other facilities.

The court also said that the property owners that protested
had not been disturbed in the past and that they fear they
might be in the future, and that their properties might be
depreciated. One of the protestants said that his only pro-
test was against "driving a wedge in this zoning business."
Others said that they couldn't see the building because of
the trees, and other statements were cited.
The court said that

However sincere the protestants may have been in their

belief, the Board was entitled to rely upon the expert

opinions of the real estate appraisers. The function

of a zoning board is to exercise the discretion of
experts, and on an appeal from a decision of the board

143

the Court, although it may not arrive at the same con—
clusion, may not disturb the decision if the board com—
plied with all of the legal requirements of notice and
hearing, and the record shows substantial evidence to
sustain the finding. . . .
Our conclusion is that there was substantial evidence
before the Board to warrant it in granting the permit.
As the Court below had no right to substitute its
judgment for the judgment of the Board, we must reverse
the order reversing the decision of the Board and
remand the case for the passage of an order affirming
the decision.

The upper court upheld the granting of the permit to expand

the business of the non-conforming use.

The board in this case evidently felt that the
increase in the size of the building used for industrial
purposes had no effect upon the traffic conditions, at
least not to a degree where it would further congestion.
Other reasons for the possible effects upon the surrounding
residence area would be essentially the same as in the pre-
ceding cases but to much more limited degree. The only
thing' that can be said about this case is that if the area
had been completely residential with no other intensive
uses in the area, here would have been a good chance for
the elimination of the use, because it was already non-

conforming, and therefore would have definitely helped in

the reducing of traffic in the area.

144

——.

Section 6: Category F Business and Commercial .—

 

Industrial and Manufacturipg.

The case from Connecticut (52),decided in 1948,
involved property of two acres which was in an area classi—
fied as a business zone. The existing use was of a light
industrial character in the manufacturing of wire cable
grips. The business zone regulations forbade industrial
uses save those clearly incidental to the conduct of a
retail business conducted on the premises. The main part
of the defendant's business was done on adjacent property.
Incidentally, there were no industrial zones in the town
in this case. Through the litigation presented here, the
town of Westport, its zoning and planning commission, and
its zoning enforcement officer sought to enjoin the defen-
dants from the operation of the manufacturing process
described. The defendants' challenged that the town's
zoning regulations were not uniform for each class or
kind of building or structure in the Saugatuck district,
since there were other buildings in the business district
being used for manufacturing purposes. Among other con-
tentions, they claimed that the prohibition against light
industry amounted to an unconstitutional taking of prop-

erty without due process of law.

145

The court in its opinion and discussion cited the

General Statutes of Connecticut in the following way:

and

The standard by which Westport's regulations are to

be scrutinized is to be found in General Statutes,
Section 424, providing: "Such regulations shall be
made in accordance with a comprehensive plan and shall
be designed to lessen congestion in the streets; . . .

then went on to say that

A personal inspection of the affected area satisfies

me [the Judge] that the Saugatuck district poses
Westport's most complicated traffic problem in that a
vast number of commuters use the principal arteries of
the locality to carry them to the railroad station,
located but a few hundred feet from the defendants'
plants. Likewise, the school children of the area are
required to use the same principal arteries to reach
the district school, also located a comparatively short
distance from the defendants' property. If industry is
permitted to continue to expand, then inevitably there
will be a substantial increase of street congestion
with consequent hazard from fire and other dangers and
with added exposure to school children. Saugatuck is
an area of Westport, and is the most densely populated
area.

I conclude, therefore, that the town's zoning regula-
tions, as presently drafted, do not offend the statu-
tory mandate in the matter of safety and health and
general welfare.

Accordingly, on the complaint and the counterclaims

the issues are found for the plaintiffs. The defend-
ants, and each of them, may be enjoined and restrained
from using or permitting to be used for industrial or
manufacturing purposes their land and buildings thereon
standing, as well as the leased building adjoining the
aforesaid land. . . .

146

The Illinois case (72),decided in 1951, concerned
an 18-acre tract of unimproved land within an industrial
district. Plaintiffs desired to erect an out—door motion
picture theater and related buildings. The use was per-
mitted in the district, as all uses permited in any of
the use districts were likewise permitted in all districts
of a lower classification. Plaintiff in 1949 had applied
for a building permit for constructing an out-door drive-
in theater. The board of trustees of the village denied
the application. Later in 1949 the board of trustees
adopted an amendment to the zoning ordinance, which by its
provisions excluded the plaintiffs from erecting a motion
picture theatre upon the property in question. The lower
court had granted appellees a writ of mandamus commanding
the village and the proper authorities to approve the appli-
cation for the building permit.

The upper court's decision and reviewing said that
the plaintiff's land was located on the west side of
McCormick Boulevard near an intersection and had an 824-
foot frontage on that boulevard. Surrounding the tract in
question were several industrial plants and unimproved

vacant land. The boulevard had four paved lanes but was

147

not a major highway carrying through traffic. Plaintiffs
contended that the refusal to issue the permit was not
based upon any considerations of the public welfare or
safety, health, or morals, but was arbitrary, capricious,
and willful on the part of the village. Defendants had
several experts testify, among them a "zoning expert and
city planner." The planner testified that
. . . the protection of industrial districts was a
proper element for zoning and that the highest and
best use for plaintiffs' tract was for industrial
purposes. His opinion was that the location of a
drive-in theater would have an adverse effect upon
the surrounding industries traffic-wise.
Other testimony, including that given by police officers,
claimed that the out—door theater would unduly increase
traffic on McCormick Boulevard.

The court concluded that the passage of the amend—
ment was unreasonable, arbitrary, and had no firm basis in,
or relation to the public health, morals, safety, or public
welfare, thus affirming the judgment of the lower court.

This case (72) is an excellent example of action
arising wholly out of a strictly poor zoning ordinance.

In case (52) is an example of the court's citing

the enabling act, or statute, and then basing its decision

upon portions of it.

148

In (52) the court had recognized that the street
was already congested and realized that the addition of
further traffic would hinder the movement of the traffic
and add additional hazards to the pedestrians. Although
the town did not provide for industrial uses in its zoning
ordinance, it is unfortunate that an area was not provided
for controlled industrial development, but of course this
type of development was not in vogue in the mid 1940's.
The court realized that there were no areas set aside for
industrial uses, and that if industry were permitted to
expand, the traffic would always be on the increase and
there would be no lessening in the traffic congestion in
the area.

In the Illinois case (72) the problem of the
drive-in movie theater is somewhat special. Although
these out-door theaters are used only in the nighttime,
the traffic flow into and out of the theaters usually
poses a different kind of problem. In the early evening
the traffic into out-door theaters is not a definitely
concentrated movement; granted, the attraction adds more
automobiles upon the roads approaching them, but it is

usually spread over a fairly long time. The greatest

149

interference that an out—door movie exerts upon the streets
is at the time a movie ends;then a mass exodus begins.
Whether or not in this case the court took appropriate
action is debatable. The village, in prohibiting out-door
theaters from being built in any part of the village, may
have had other reasons for prohibiting them than the one
stated below. For example, the village may not have had
sufficient vacant land within its boundaries for possible
future expansion of even the more desirable uses. Out-
door theaters are usually deemed to be a "lost use" or
"unawanted use" as few municipalities want them within
their boundaries. 'The prohibiting of out—door theaters
completely from a city, village, or town is a touchy
subject, and, as in the case presented here, one in which
a definite analysis seems to be lost.

The municipality in this case evidently had no

qualms about allowing drive-in theaters until after the

 

application for the construction of one had been made.
This situation has often existed in other municipalities
where it is noticeable that all drive-in theaters are
located outside the municipal boundaries.

The amount of traffic generated by outdoor theaters

is unquestionable more than the normal flow of traffic,

150

but this is only at certain times. This increase of traf-
fic can be taken care of by adequate controls and regula-
tions included in the zoning ordinances providing for safer
traffic movements and controls in the area in which the
proposed out-door theater is to be built. Some of these
stipulations can be the additional lanes of traffic, to
separate normal traffic from the movie traffic to assist in
the merging of the two traffic flows, through widening of
roads, installation of stop lights, turning lanes, and any
other improvement or function which is deemed necessary to
minimize the effect of increased traffic and congestion
upon the roads in the area of the out-door theater.

The Oklahoma case (309),decided in 1955, involved
property classified as commercial. The plaintiff property
owner constructed water and sewer pipelines for municipal—
ities, and his offices and storage area for the pipe and
equipment were located on the property in question. The
property owner had applied to rezone his property from the
general commercial zone to the light industrial classifi-
cation. The board of county commissioners abided by the
planning commission's decision and approved the change.

The district court refused to reclassify the property.

151

The upper court in its opinion and discussion
reviewed the evidence which included the fact that the
property in question fronted upon a boulevard and

. . . MacArthur Boulevard is a paved north-south
through street running from Will Rogers Field on the
south, and continuing north to the county line. . . .
Photographs of plaintiff's property and property
surrounding it were introduced showing a car lot,
grocery store, construction yard (analogous to plain—
tiff's premises), a beauty shop, sand pit, feed lot
and a dancing school. . . .

MacArthur Boulevard is an industrial, or heavy traffic,
street and zoning for industry is made on such traffic
arteries.

There was no further reference to traffic or congestion.
The upper court said that the trial court's decision to
refuse reclassification of the plaintiff's property was
based upon the statement of one witness Kwho operated a
well drilling outfit and who had upon his premises all the
material and equipment to operate said business), that he
intended to remove the pipe and equipment stored and
maintained at the rear of his property. In further dis-
cussion the court said:
The court's duty when change from classification of
property under zoning regulations is sought is to
determine whether the restriction on use of the prop-
erty is a reasonable exercise of power under zoning
regulations and statutes, and whether the restriction

is an arbitrary, unreasonable and capricious exercise
of that power.

152

The evidence in this case clearly shows that one of the

defendants is conducting a similar, or analogous, busi-

ness as being conducted by plaintiff.

In view of the general character of the neighborhood

and the surrounding circumstances, we hold that the

refusal of the trial court to rezone plaintiff's prop-

erty, which bears no reasonable relation to public

health, safety, morals or welfare, should not be

sustained.
The court covered abuse of discretion, debatable evidence,
and other material and said that there was an abuse of
sound legal discretion when the trial court refused to
rezone plaintiff's property. A judgment reversing the
trial court was entered. The court gave directions to
enter an order rezoning plaintiff’s property to light
industrial.

There is not much that can be discussed about
this case because there was very limited reference to
traffic and congestion. The street was heavily traveled;
the surrounding properties were devoted essentially to
commercial and industrial uses.
It was probably felt that this proposed change

would have no effect upon the traffic, although it could
if the use were to be expanded. If there were no provi-

sions in the zoning ordinance covering regulations for

off-street parking facilities, the traffic and congestion

could adversely affect the adjacent streets.

153

Section 7: Category G Residential===Gas Stations.

Illinois case (109),decided in 1957, concerned a
large parcel of vacant property on a corner of the inter-
section of two heavily traveled roads. Property was zoned
for single-family residences, with minimum lot size
restrictions, and was located in unincorporated territory.
The plaintiff desired to erect a gasoline service station
and wanted his property rezoned for commercial uses. The
county evidently refused to change the classification.

The lower court held that insofar as the zoning ordinance
applied to plaintiff's property, it was unconstitutional
and invalid.

In the court's opinion, review, and discussion,
traffic was mentioned several times. The two roads upon
which the property fronts were four—lane arterial highways
heavily traveled with the traffic exceeding 15,000 vehi-
cles per day. One of the plaintiff's expert witnesses
testified that

the highest and best use of the property was for com-
mercial purposes; . . . that the property is not
suitable for homes, because it is at a heavy-traffic

intersection, . . . adjacent to two four-lane heavy-
traffic roads and to a deep ditch. . . .

It was also testified by plaintiff's witnesses that com—

mercial improvement would have no harmful effect on the

154

neighboring property but would be beneficial because of the
increased taxes, additional light on the corner, and the
eliminatiOn of some of the traffic hazards.
The defendant's only witness, a city planner, said
that
four or five houses could be built on the property and
that if commercial use was permitted it would be inhar—
monious with residential development, attract addi-
tional traffic, create additional light glare. . .
The higher court said that the master's report of
the lower court
found that the zoning ordinance ignored the intermixed
character of the neighborhood, surrounding uses, the
traffic situation, and the highest and best use of the
property; . . . that denial of nonresidential use to
plaintiff's property was discriminatory since the ordi—
nance classified for business use other properties at
similar intersections. . . .
The defendant urged as ground for a reversal of the trial
court's judgment and findings that they were not supported
by the evidence and that,because of the conflicting evi-
dence,the ordinance should have been sustained.
Much evidence was heard before the trial court con—
cerning traffic conditions, general character of the
neighborhood, highest and best uses, and other things.

Each side had produced expert witnesses to sustain its

contentions.

155

The court said that a
Difference of opinion does not render plaintiff's
evidence unbelievable or require a finding that the
reasonableness of the ordinance is debatable.
No one factor is controlling. It is not the mere loss
in value alone that is significant, but the fact that
the public welfare does not require the restriction
and resulting loss. . . .
After examining the record we are satisfied that the
master in chancery and trial court were justified in
their conclusions. . . . We believe the findings and
judgment of the trial court are supported by the
evidence and should be affirmed.
The upper court with the above decision upheld the deci—
sion of the lower court.

The Michigan case (150) decided in 1957 concerned
the refusal to issue a building permit for the construc-
tion of a gasoline station. The property in question was
first restricted to a residential classification and then
by amendment, permitted the construction of professional
buildings (in the nature of doctors' offices) to be built.
The application for the permit was made prior to the
amendatory ordinance. It was shown that there was no zoning
ordinance in effect at the time application was made. When
the village adopted a new charter for a new city the old

zoning ordinance of the township was in effect for only a

few months after the charter was adopted. The new ordinance

156

was not adopted in the allowed time, so for several months
there was no effective zoning ordinance. The professional
building district was known at TP-l, which was Transition
Professional District, which evidently was to serve as a
transition zone from the commercial areas to the residen-
tial areas. The plaintiff sought a writ of mandamus to
compel the issuance of the building permit. The lower court
ordered the granting of the writ.
The upper court in its decision referred to traf-
fic in only one brief sentence. This reference was when
the plaintiff oil company claimed a constitutional right to
build a gasoline station on its lots.
It pointsto long-time business restrictions and 20 x
lOO-foot platting of its 7 lots, along with heavy
traffic on Southfield road as rendering the restric-
tive zoning unreasonable.

The defendant village points to
an immediate neighborhood of fine homes, the long-
time (if by chance interrupted) residential zoning
of the particular lots, and the claimed detrimental
effect of a gasoline station on nearby, though not
adjacent, homes. . . . The streets of Lathrup Village
are winding and shaded. There are only a few commer-
cial buildings in the entire city. There is no manu—
facturing, and as of now there are no gasoline
stations.

The upper court reversed the decision of the lower

Court, thus dismissing the writ of mandamus issued by the

lower court .

157

A New Jersey case (171) decided in 1948 involved
property at an intersection in an area zoned "A" Resi—
dential, the highest residential classification, on which
an oil company desired to build a gasoline service station.
The building inspector and the license bureau both refused
to issue the permit for the erection of the gasoline ser-
vice station. At a public hearing, the board of commis—
sioners also refused to approve the granting of the per—
mits. The property is located at an intersection that
could be appropriately called "litigation corner," as
the property in question and land directly opposite on
three occasions had on previous occasions; been involved
in zoning litigation.

The court, in its opinion, in reviewing and dis-
cussing the case, brought the subject of traffic and con—
gestion into the case. In referring to the location of
the property in question, it was brought out that

. . . Bloomfield Avenue, east and west street, carries
a heavy volume of motor vehicle traffic, acting as a
feeder to three state highways and the Holland and
Lincoln Tunnels. . . . A gasoline station was judi-
cially allowed on the premises here in question, at
one time, Hayes y, Blank, 2 N. J. Mis. R. 959. . . .
The nature of the heavy traffic on Belleville Avenue,

presence of the lumber company and the noisy opera—
tion of its saw mill, adjacent gasoline station and

158

lower restrictions of the neighboring community make
the use of this land for residential use untenable.

It remains to determine whether the board acted arbi-
trarily and without relation to the standard there
established. Belleville Avenue is a main thorough-
fare and is heavily traversed by motor vehicles. . . .
It was testified congestion on the streets would not
be increased nor would fire hazards be created with
the establishment of the gasoline station. Consider-
ing the general character of the neighborhood and all
the pertinent testimony, the refusal of the board to
grant the requested permit was arbitrary and unrea—
sonable.

The property owner was entitled to the permit
sought, the court said, and the resolution of the board of
commissioners was accordingly reversed and set aside.

Gas stations are one of the necessary land uses
created by the motor vehicle. Requests for permitting gas
stations in residential areas have been one of the results
of the motor vehicle.

In cases (109) and (171), can a gas station loca—
ted at an intersection where there is a very heavy volume
of traffic, eliminate some traffic hazards as stated in
case (109) by witnesses and subsequently by the court?

Of course not. Allowing a gas station at an intersection
would have created additional hazards and possible conges-

tion. With the moving of cars in and out of a gas station

there is the slowing down of traffic movement, creation of

159

additional conflict points (creating greater accident
potential), and an increase of traffic, even though slight,
will result from the motor vehicles' being attracted to
such use. As to having harmful affect upon the neighbor—
ing residential property, there is always the possibility
of this happening unless the gas station has adequate area
upon which there can be adequate measures provided for to
protect adjacent property owners, such as an adequate area
for a "green" space around the property, minimum property
size, lighting and access restrictions, among other
requirements. Although the property in case (109) was
fairly large, there was a small frontage on the intersec-
tion, thereby placing openings close to the intersection
and thus increasing traffic hazards at the intersection.
Approximately the same discussion can be applied
to case (171). Here the property was located in a resi-
dence zone of the highest classification. Even though
there were some surrounding commercial uses, the addition
of more commercial uses would tend to increase the traf—
fic hazards on the adjacent streets. The effect of lower
restrictions on property of the neighboring community was
felt to be influential in the deciding that the property in

question should be of a commercial use.

160

It was said that traffic on the streets would not
be increased, but nothing was said about other effects
that would be created.

Though there were some surrounding commercial uses
and very heavy traffic volume, surrounding property owners
objected to the proposed use. There would be an effect
felt upon the residential area as has been evidenced by
existing gasoline stations in practically every community.

In case (171) there was an existing gas station in
the area of the property in question; in case (109) there
was no gas station in the area of the property in ques-
tion; and in case (150) there was no gas station in the
entire community at the time of this action!

In case (150) because it was so limited in ref—
erence to traffic discussion, not much needs to be added.
The proposed gas station, if it had been allowed would
have been situated in an area which evidently was an area
of fine homes. The village was trying to protect these
homes from the encroachment of the gas station. The lower
court should not have compelled the issuance of such a
permit as this was a case of encroachment into a resi-
dential area of a gas station in a municipality which

theretofore had no gas stations within its boundaries.

161

The upper court did the right thing in reversing the trial
court's decision. When one gas station is permitted to be
built in an area where there were no other stations, others
are sure to follow.

The Maryland case (306) concerning property of
about two acres, located in a residential or agricultural
district, was decided in l954. The owner applied to have
the zone changed to a heavy commercial classification so as
to allow the erection of a gasoline station. The zoning
commissioner disapproved the application for rezoning.

The planning and zoning commission approved the zoning
commissioner's decision and was requested to set a hearing.
The board of county commissioners approved the requested
change to heavy commercial use. The owners of residences
in the immediate neighborhood filed a suit asking that the
rezoning be stricken down. The lower court granted the
relief prayed.

The court in its discussion and decision brought up
traffic to a considerable extent. In the location of the
property it was said that it lies between two roads, one
Ritchie Highway leading from Baltimore to Annapolis, and
the other was old Annapolis raod; the property was trian-

gular in shape, and the apex of the triangle was located

162

where old Annapolis road joins, but does not cross, Ritchie
Highway. Eighteen other applications for rezoning of lands
on Ritchie Highway and Revell Highway were refused by the
commissioners for commercial uses, but other properties in
the area were rezoned upon requests to heavy commercial-—
one of them for a service station.

The court in reviewing the action that had taken
place in this case reported the reasons of the zoning com—
missioner in refusing the rezoning and recommending that
the zoning remain as established by the ordinance. The
reasons for disapproving were:

"1. The zoning for the Governor Ritchie Highway has
established certain commercial intersections. These
intersections are not completely developed along com-
mercial lines at this time and therefore it is the
opinion of the Zoning Commissioner that no additional
commercial zones are necessary at this time.

2. In establishing the above plan the Board of County
Commissioners took into consideration the key inter-
sections of the highway. In the Arnold area it was
determined that the key intersection is the one adja-
cent to this intersection where there is not a blinker
light and accordingly the commercial zone at Arnold
was established at the latter intersection rather than
at the one now under consideration. [Arnold is the
name of a street that intersects with Ritchie Highway.]

3. Nothing has taken place on the Governer Ritchie
Highway since this request was originally filed and
acted on by the Board of County Commissioners to war-
rant a change in the recommendation of the Zoning Com-
missioner at this time.

163

4. Letters of protest were received from (7) property
owners in this area and no letters have been received
in favor of the application."

The court also reviewed the reasons for the board of county
commissioners' approval of the change. The resolution for
the approval contained the following:

"Whereas, the traffic on the Governor Ritchie Highway
will be considerably increased upon the completion of
the bridge over the Chesapeake Bay on U. S. Highway
No. 50 thus increasing the need for areas zoned for
commercial on the Governor Ritchie Highway, and
Whereas, there is now an inadequate number of dis-
tricts zoned as commercial on the Governor Ritchie
Highway, said inadequacy resulting in unreasonable
prices or rents being demanded by the owners of said
commercially zoned properties . . . and

Whereas, it is the opinion of the Board that additional
commercial zones at proper locations would not inter-
fere with the safety, comfort, convenience and welfare
of the users of the Governor Ritchie Highway * * * "

It might be injected here that the complaining property
owners declared that the service station would depreciate
their properties, destroy comfort and well—being and prop-
erty rights, that action by commissioners was arbitrary,
unreasonable, discriminatory, without relation to public
health, morals, and general welfare, and that the action
constituted "spot" zoning.
The court then said that
From the resolution of the Commissioners, it is evi-

dent that they based their action for rezoning on the
following: increase in traffic upon the completion of

164

the Chesapeaker Bay Bridge; inadequate number of sites
zoned commercially; . . . and that additional commercial
zones at proper locations would not interfere with the
safety, comfort, convenience and welfare of the users of

the highway.
As to the increase in traffic [a traffic analyst-traffic
control supervisor and attorney for the State Roads Com-

mission, (this is one person)] testified as to the
record of the State Roads Commission showing traffic

count on the Ritchie Highway.
The traffic counts given showed that traffic had increased
from a daily count of 7,803 vehicles in 1948, to 12,777 in
1952. The year 1952, the year the bridge was opened, showed
an increase of traffic of about 17% over 1951. It was also
stated in testimony that there were 41 gasoline stations
within a given area near and on Ritchie Highway, and that
the American Oil Company had eight of these. Then the court
continued with the testimony and said that

There is no testimony here to show that the service

stations in existence on the Ritchie Highway, when the

resolution was passed, could not reasonably accommo-

date all the traffic thereon. . . . In the instance

case, with the number of service stations on the

Ritchie and Revell Highways and with no testimony that

these could not accommodate the traffic, we are of

opinion that an increase in traffic of seventeen per

centum did not make the rezoning debatable.

The contention that there was an inadequate number of sites
zoned as commercial was also discussed. The court said

that

 

 

 

(I)

165

. . . with all the unused land zoned "Heavy Commercial"
on this highway, availability of adequate sites does
not seem to be debatable.

The court, in deciding on the resolution of the board of
county commissioners concerning interference on the highway,
said

As to whether this service station would interfere with
the safety, comfort, convenience and welfare of the
users of the highway, there was testimony that some of
the houses in this vicinity were built with the idea

of getting away from commercial establishments and

that the service station would depreciate the value of
the properties. . . . [a real estate businessman]
testified that the service station would seriously
reduce the value of the residential properties in the
neighborhood. There is no testimony to the contrary.

Then the court finally said:
Finding in this case that there was no mistake in the
original zoning; that the character of the neighbor-
hood had not changed to such an extent as to justify

the rezoning; and that the reasons given by the Com-
missioners are not supported by the facts in the

case, we agree with the finding of the chancellor
[lower court]. -
The decree of the lower court was affirmed.

Here is a case that seems to be decided on quite a
different basis than the preceding ones. There was a con-
sideration of the number of gas stations in the area of
the property in question, and part of the decision was

‘based upon this fact. Another factor injected here that

*was not in the preceding cases was the amount of area

166

already zoned for commercial uses,and the decision was also
based in part upon this fact, because a considerable number
of these were still unusued. Of course there were other
reasons shown by the court for holding the rezoning as

null and void.

The above two factors used by this court could well
be taken into consideration more seriously by all munici—
palities and courts concerned. It appears that in many
areas,that gas stations Seem to be permitted anywhere
though there may already be an adequate supply of stations
to serve the existing traffic. There are gasoline
"alleys" where new stations will be going up, or requests
submitted for zone changes to allow the use while in the
same area some of the existing stations may be on the
verge of collapsing because of the lack of customers.

It seems that any time that traffic increase on
any street, the first thing any property owner or oil
company does is request permission for a gas station.

There are many purely residential areas where, when a
street becomes rather heavily traveled, usually the first
commercial use will be that of a gas station; this will

usually be the beginning of other stations and/or other

167

commercial uses in the same area. The practice or the

desire to make every intersection of two rather heavily
traveled streets a haven for gas stations, regardless of
the surrounding uses, should be halted or severely cur-
tailed until thorough investigation is made to determine

if the station is seriously needed.

 

Section 8: Cateqpry H Business and Commercia1==

Gas Stations.

 

Connecticut case (38),decided in 1955, concerned
the desire of the property owner to build a gasoline sta-
tion. This case in court previously is listed in the
Appendix as case (33), which was decided in 1953. Data
for the two cases are practically the same. The prop-
erty in question was vacant and was located in a busi-
ness zone.

BeCauSe this is a rather odd case, a paragraph
summary has been taken directly from the court records to
orient the reader:

Owners of premises at a busy intersection near the
Milford Green obtained from the defendant board a
certificate of approval for the use of the location

as a gasoline station in 1946. In 1952, the new owner
of premises, unaware of the existence of the prior
certificate which had never been used, applied for a

new certificate of approval. Application was denied.
Instead of appealing from the denial, the owner having

168

learned of the 1946 certificate, obtained a license
under it to sell gasoline. The license was invalidated
by a decision of this court [upper court] which held
that the 1952 action of the board served to revoke the
1946 certificate. The present application was then
made to the defendant board for a certificate of
approval and was denied. The Court of Common Pleas
dismissing the appeal. . . . [the owners had also
applied in 1953-54 and were denied].

The Connecticut cases are interesting because of
the conditions that are required in the general statutes in
which certain conditions have to be satisfied before the
local authorities can issue a license and a certificate.

The section of the general statutes requires that
any person desiring to sell gasoline must receive a license
from the commissioners of motor vehicles.

Section 2539 of the General Statutes of Connecticut
provided in part that the local authority cannot issue a
certificate unless it

shall find that such location is suitable for the sale
of gasoline and other products, due consideration
being given to the proximity of schools, churches,
theatres or playhouses or other places of public
gatherings, intersecting streets, traffic conditions,
width of highway and effect of public travel, and that
such use of such proposed location will not imperil
the safety of the public.

The court in its decision reviewed the reasons of

the board for denying the application as follows:

169

It is the opinion of the Board that the traffic condi-
tions at #247 Broad Street, Milford, Connecticut, are
very hazardous and traffic has not decreased at this
location since the Board denied a similar application
by the Atlantic Refining Company at their meeting. . . .

The court then reviewed testimony of the plaintiff
in which the plaintiff before the board

produced a traffic engineer who expressed the opinion
that a gasoline station at the site would not increase
the traffic hazard . . . The traffic engineer's own
testimony was to the effect that the traffic on all
three streets was great and at peaks was enormous.

The chief of police of Milford, as well as several
residents in the neighborhood, testified that traffic
on the three streets on which the property had fron-
tages was frequently congested. . . .

The court further said that

it was also pointed out that the many cars, in leaving
and entering a gasoline station at that location,
would have to cross lanes of traffic.

On all the evidence, therefore, we cannot say that the
board acted unreasonably in concluding that a gasoline
station on the site in question would increase the
traffic hazard materially and for that reason the
application should be denied.

An attorney for the plaintiffs, in reply made sub-
stantially the same contention

that there had been a change in the traffic situation
since 1952. It rested its decision on the ground that
the location of a gasoline station at the site in ques-
tion would be hazardous because of the traffic condi-
tion. It is true that the board added a statement to
the effect that traffic had not decreased since the
board denied the application.

170

The court said in conclusion that

The first ground, the conclusion that a gasoline sta-
tion on the proposed site would create a traffic haz-
ard, is ample to support the board's decision. The
second ground for decision whether well taken or not
was the one regarding that the traffic had not
decreased since the board denied the 1952 application.

 

The plaintiff's further contention that, if the board
believed that it was powerless to reverse its former
decision, that consideration would affect its deter-
mination of whether a traffic hazard would be created
is based upon a surmise so nebulous that it has no
validity.
The upper court said that there was no error.
Case (255), of New York, decided in 1959, involved
a vacant parcel of land, located in a business district.
The property was located at the intersection of two streets,
one of which was a one-way street. The oil company
involved applied to the building commissioner for a permit
to construct a gasoline station, and the permit was
granted. The board of zoning appeals affirmed the action
of the building commissioner. The lower court annulled
the determination of the board of zoning appeals, thereby
revoking the permit and reversing the action of the board.
The upper court quoted Section 2 of Article 7 of
the zoning ordinance:
In business districts, no business or industry may be

carried on which is generally described as a "Whole-
sale" or "Heavy" business or industry; nor any which

171

involves noxious fumes, strong odors, objectionable
noise or undue hazard for pedestrian or other traffic.

The court came to the conclusion that

The real controversy before the board for all practical
purposes was pinpointed to the issue of whether the
erection of a gas station on the disputed site would
create an undue hazard for pedestrian or other traffic.
The Special Term (10 Misc 2d 530) in its decision did
not pretend to pass upon the merits of the controversy
so far as this issue was concerned. It reversed the
board, because it determined that the board in making
its determination went outside the record before it.
The essence of its decision is contained in the fol-
lowing paragraph: "It is clear that the board went
outside of the record of the hearing to obtain infor-
mation which was relied upon in reaching its decision.
The opinion of the prevailing members recite: To
further explore this 'undue hazard' claim, the whole
board has examined Ithaca's accident experience
records;" . . . "On investigation, in an interview

at Ithaca's Traffic Bureau, we find that the accident
experience is excellent. . . ."

The court said that this case was not a case of a

proposed variance, or for an exception to a prohibitive
use within a zoning area. The persons attacking the permit
therefore had upon them the burden of proving that the
issuance of the permit was in violation of the zoning
ordinance. Also the court said:

The prevailing members of the board conceded that

considerable congestion of pedestrian and vehicular

traffic occurred at the intersection on Sunday morn-

ings during the change of Masses, but it found on its
on its own knowledge that this situation is duplica—

ted many times at other locations and was not undue
or abnormal. . . . We have no doubt that the board

172

could examine on its own initiative any records kept
by city agencies relative to traffic or fire hazards,
and any incidental interviews with those in charge of
such records would not amount to error sufficiently
important to void the action of the board. The cir-

cumstances of the case lend weight to this conclu-

sion. Ithaca is not such a large city and unques—

tionably the members of the board were familiar with

the intersection in question, and moreover they made

their own inspection of traffic conditions there. . . .
The court reversed the order of the lower court and
confirmed the determination of the board.

The court in case (38) realized the effect upon
traffic of cars entering and leaving a gasoline station.
The streets were already frequently congested and had
enormous traffic at the peak times. The congestion would
be further increased by the movement into and out of the
gasoline station, additional accident points would be
created, additional traffic could be attracted by the
proposed use. These and other reasons mentioned under
G category can generally apply here except that this was
a business zone.

It can be said that generally in the "neighbor—
hood" type of business or commercial zones, gasoline ser-
vice stations are usually undesirable because of the

effect upon adjacent business or commercial uses created

by the noise, confusion, and possible odors of the gas

173

stations. Gas stations should be more readily allowed in
business zones than residential zones, but as has been said
before, in some instances they are undesirable. No matter
where gasoline stations are permitted, adequate regulations
and restrictions should be provided to make the gasoline
station an attractive business spot in the community.
Protection of adjacent uses by adequate measures for gas
station uses such as large plots of land, screening or
green areas around the station, light glare, parking
restrictions, ingress and egress restrictions are just a
few of the provisions that would help in locating gaso—
line stations. Some of these provisions would also aid

in controlling the traffic hazards and congestion created
by the gas station.

In case (255), which court was right? The lower
court had reversed the action of the board which had
granted the permit. The upper court reversed the action
of the lower court.

The city board should be more familiar with the
local conditions than possibly would be the court. The
board evidently felt that under normal circumstanzes a

gasoline station at this intersection would not aggravate

174

the traffic conditions, because the Sunday changes of
religious services at a church on the opposite corner
created the only real traffic congestion. There was a
school two and one-half blocks from the intersection. One
of the streets, it may be pointed out, was a one-way
street. The one—way street would eliminate the possibil-
ity of crossovers.

Because the local board felt that the traffic
would not be aggravated at this corner, it is presumed that
they are right, and the upper court in reversing the lower
court's determination seemed logical. If the board and
the upper court deemed it necessary to deny the applica-
tion, they could possibly have obtained additional infor-
mation in regards to traffic counts, conflict points of
the intersection, and other data if they felt the use should
not be allowed at this intersection.

Section 9: Category I Industrial and Manufacturing

 

==Gas Stations.

 

Case (42), of Connecticut, decided in 1956, involved
a parcel of vacant land located in an industrial zone.
Plaintiffs sought a certificate of approval of the location
for the sale of gasoline, and also sought a special excep-

tion. In this case also, the general statutes were cited

175

as stated in the previous section H, but in a little more
detail. The industrial zone permits gasoline service sta—
tions, with certain qualifications. Before a license for
the sale of gasoline can be issued by the commissioner of
motor vehicles a certificate of approval of the proposed
site has to be obtained from the local authority. The
zoning board of appeals refused to grant the certificate.
The lower court sustained the appeal of the plaintiff, and
the board appealed to the upper court.
In the upper court's decision, the statute was
cited again as in case (38) in classification H. The fur-
ther discussion of the court concerned traffic in a few
instances. The defendant board concluded, the court said,
on the evidence before it that the plaintiff's location was
not suitable for the sale of gasoline and other products
because,
"due consideration being given to the width of the
highway and effect on public travel," the presence of
a gasoline station there would imperil the safety of
the public. The sole question on this appeal is
whether the defendant was warranted in coming to that
conclusion.

In the statement of the facts concerning data of the case

it was said that certain facts were not disputed, among

them,

176

. . . It is an industrial zone. The highway consists
of two ten-foot concrete lanes with ten—foot shoulders.
There is a bend in the road about 400 feet west of the
plaintiff's property which would limit the range of
vision of drivers entering the highway from it. ["It,"
is the property in question.] On the appeal of the
case, the court permitted to call as a witness . . .

a civil engineer engaged in traffic work. He said
that he had first seen the area the day before, [at
times listed in the case]. . . . (the) testimony is

printed in full and is made the basis of the court's
finding. The court's conclusion was that the evidence
before the defendant on the amount of traffic was not
sufficient for the defendant to conclude that a
serious hazard would result from the granting of the
permit. In so holding, the court misconceived the
point involved. In Atlantic Refining Co. v. Zoning
Board of Appeals, 142 Conn. 64, 69, 111 A. 2d 1,

[case 38], we approved the conclusion of the local
authority that the location of a gasoline station at
the site in question would be hazardous because of the
traffic conditions. The most that can be said of
[civil engineer's] testimony in the present case is
that in his opinion a serious traffic hazard was not
apparent. The defendant, however, had before it

ample matter, in the way of verbal testimony and
exhibits, to support a conclusion that a gasoline
station at the point in question presented a traffic
hazard and involved a safety factor.

 

 

The court said that the defendant in considering the

application for a special exception was acting in its
capacity as a zoning board of appeals as stated in the

zoning regulations, and that

. . . Since the defendant found that a gasoline
station at the location in question would constitute
a traffic hazard, its refusal of the certificate was
justified even if the zoning regulations permitted
the use of the property for a gasoline station. . . .

177

The court's decision was that there was error; the judg-
ment of the lower court was set aside, and the case was
remanded with the direction to dismiss the appeal, thereby
upholding the action of the board of appeals.

In New Jersey case (170), decided in 1948, the
court was concerned with vacant property located at a
corner of two intersecting streets in an industrial zone.
The property owner desired to erect a gasoline service
station. Gasoline stations were not ordinarily permit-
ted in this zone, but were permitted by an ordinance
which empowered the board of adjustment to recommend to
the governing body whether a permit for a gasoline ser-
vice station should be issued

if, in its judgment, it will not be detrimental to
the health, safety and general welfare of the com-
munity, and is reasonably necessary for the conven-
ience of the community. . . .

Gasoline stations were permitted in a second type
of industrial zone directly across the street from the
property in question. And there was a gasoline station
(iirectly opposite from the property in question. The
board of adjustment denied the application of the owner

cxf the property in question to erect and operate a gas

station.

178

The court said in regards to the location of the

property that

Raymond Boulevard admittedly is an important traffic
artery starting at the Passaic River and ending at the
intersection of Warren and Wickliffe Streets, running
east and west. It carries practically all of the
traffic leaving the Pulaski Skyway from New York to
Newark and the suburbs. The other street is three
blocks long.

It also mentioned that the neighborhood of the
property in question included manufacturing plants, ele-
vated railroad tracks, eating establishments, warehouses,
stores, houses, and vacant lots. There was also testimony
given by an inspector for a fire insurance bureau and by
a traffic investigator for the department of motor vehi-
cles who said that they could see no harmful effects
resulting from the operation of the proposed gas station.

The court said:

We are satisfied from the general character of the
neighborhood and the surrounding circumstances and the
proof of this application that the refusal of the Board
of Adjustment to grant the application bears no rea—
sonable relation to the public health, safety and gen-
eral welfare and its decision is therefore arbitrary,
unreasonable and capricious.

The record discloses no cogent reason why the appli-
cation was denied. True, the decision of the Board

of Adjustment is presumably correct, but its decision

will not stand where, as here, it is clearly against
the weight of the evidence.

 

179

The court's decision was that the board's refusal
of this application was set aside and reversed.

Gasoline stations in industrial areas would seem to
be one place where logically there would be no opposition
to such use, as in many instances the stations are more
attractive or form a "bright spot" in an otherwise dull

area. This could be said of the older industrial areas

 

where there has been no planned or regulated development. i
In case (42) and (170), both pieces of property were
in industrial zones; one station was eventually allowed to
be built, and the other was refused. The one that was
refused by the upper court was also refused by the local
body because of consideration being given to the width of
a highway. The use was a permitted use in this zone with
certain qualifications. The highway was narrow, the range
of vision was limited, and therefore the cars entering and
leaving a gas station would be in a dangerous situation
through creating additional traffic hazards, among them
greater possibility of collisions. The highway traffic
was evidently of insufficient volume to have caused con-
gestion, and the amount of traffic that would be attracted

by the use would not be increased to a point of congestion.

180

Another (seldom considered) factor injected into the case
was the very narrow width of the highway.

In case (170), gas stations were not permitted
but could have been if the local body had approved. The
difference between this case (170) and the preceding one
(42) is that there was an important and heavily traveled
traffic artery passing in front of the property Here the
local body denied the use and the upper court approved
the use.

The fact that the traffic was very heavy was
evidently the reason for the local body's refusing the
permit. Although there was sufficient reason for allow—
ing the use--area had a mixture of manufacturing, busi-
ness, commercial, and some residential uses--the ques-
tion was whether the reasons for allowing the use were
more important than those for denying the use.

Although the upper court felt that the surround-
ing area and the traffic conditions warranted the deci—
sion it made, did it make the right choice? Actually,
in the opinion of the writer, it could have been decided
either way. The writer feels that because the boulevard
was an important artery, further consideration should have

been given to the effects that such a use has upon the

traffic movement and flow.

 

181

It has been said that the industrial and manufac—
turing zones are the areas in which gasoline stations could
be permitted without any question, but even in these zones,
as has been shown by these two cases, there are also times
when they should not be allowed. The provisions, regula-
tions, and restrictions for all zones and for all types of
gasoline stations may be the means in which there can be
definite measures set up to either quality or disqualify
the gasoline station location. Granted, the provisions,
restrictions, and regulations can be written so as to
exclude gas stations from all zones, but discretion should
be followed when writing them.

Before concluding the discussion on the last three
categories concerning gas stations, it may appear that the
analysis and discussion undertaken seem to be completely
one-sided, i.e., no gas stations should be allowed any-
where. fflfis is not to be construed that gas stations are
the one and only use that is not desired in any zone
classifications. Admittedly there are other commercial
uses that have the same effect, or worse, upon traffic,
traffic movement, and congestion as the gas station.

These uses are the many various types of drive-in facili-

ties, of which the drive-in quickee hamburger establishment

 

 

182

is the latest use that seems to have suddenly sprung up all
over the nation. A majority of these uses have developed
directly in response to people using their automobiles more

and more and to the growing shortage of parking facilities,

 

n
and to the desire for faster and more convenient service. :'
Gas stations are definitely needed and will be i
needed more in the future. However, proper consideration ;
of their influences on traffic suggest the need for more 1

thorough study of the appropriate numbers of stations,
their site plans, locations, and intervals, and the
restrictions and regulations to be applied to them.

Section 10: Category J Residential, Business and

CommercialL Industrial and Manufacturing ==

Private, Public ang:guasiepublic Uses.

New York case (246), decided in 1956, involved a
tract of 14 acres of land upon which there were two
dwellings. The property was located in a residential dis-
trict. Appellants (the diocese) agreed to purchase the
property upon obtaining a permit from the planning board
of the town to erect and use a church and school on part
of the property. The zoning ordinance stated that in this

residential district certain uses and accessory uses were

183

permitted. Among the permitted uses were educational or
religious buildings, if approved by the planning board.

The diocese applied to the planning board and the
board of appeals for permission to subdivide the property,
part as a life estate for the widow of the deceased prop-
erty owner, a portion to be used and constructed upon as
a church and school, and the remainder into four L—
shaped lots, with one dwelling on each and each having a
frontage of 100 feet or so, on the avenue, or, as an
alternative, for a variance from the provisions of the
zoning ordinance permitting the continuance of the said
two existing dwellings as they then existed. About four
acres had restrictions which confined their use to resi—
dence only. There was also to be a parking lot accommo-
dating 144 cars in conjunction with the church and
school.

The planning board denied the diocese's applica-
tion. The board of appeals also denied the application
for a variance, based upon the planning board's decision.
A review of the decisions was applied for and was heard
by the town board; the board filed a decision affirm—’

ing the determinations of the planning board and the

 

184

board of appeals. The lower court dismissed the petition
on the ground that no triable issue of fact had been raised
and affirmed the respondents' decisions denying peti-
tioner's application for a permit to build the church and
school with the necessary accessory buildings and for a
variance. Another court affirmed the above order.

In the upper court's decision there were several
instances where traffic was concerned. During the public
hearing before the planning board and the board of appeals,
evidence was presented on behalf of the diocese, alleging
that there would be no traffic problem, and that ample
parking facilities were provided.

The respondents' (planning board and others) ans-
wer to the petition set forth several denials and sepa-
rate defenses:

The first, second and third allege that the proposed
playgrounds, parking lot and other combined uses are
prohibited uses in a Class A [residential] district.
The fourth defense alleges respondents' good faith,
and a variety of elements taken into consideration,
among them: that the proposed buildings and parking
lot would cause serious traffic problems.

The court said that

The text writers agree that churches and schools
should be allowed in Class A residential areas which

are usually the quietest and least congested areas of
the town (Bassett on Zoning [1940 ed.], pp. 70-77,

 

‘ufif’

185

200; l Rathkopf on Law of Zoningiand Planning [3rd ed.,
1956], p. 259; Yokely on ZoninggLaw and Practice [lst,
ed., 1948], §l83, p. 367). It is well established in
this country that a zoning ordinance may not wholly
exclude a church or synagogue from any residential
district.

 

 

Then the court, continuing to examine the reasons advanced Ffi

yin-II v

by the planning board in its denial of the permit, said in

regard to the traffic hazards that

 

 

Although nothing is mentioned in the planning board's lg
decision about possible traffic hazards, evidence was i
presented on this question to that board, and much is

made of it in respondents' answer and brief, appar-

ently by way of afterthought. This was the very ques-

tion presented in Matter of Small v. Moss (279 N. Y.

288) where the regulation was stricken as an improper

delegation of legislative authority. There we held

that the commissioner of licences had no power to

deny a licence to a theatre on the ground that traf-

fic and parking problems would be created, since no

such policy or standard was declared in the statute.

Several jurisdictions have held that it is arbitrary

and unreasonable to deny a permit to a church or paro—

chial school because of possible traffic hazards that

may be created.

 

There were then listed several cases from the states of
Florida, Indiana, Ohio, and Oregon.
The court's decision said:

In the light of the foregoing cases, and under the
facts presented by this record, the decisions of the
planning board, the board of appeals and the town
board of Brighton bear no substantial relation to the
promotion of the public health, safety, morals or
general welfare of the community; they must therefore
be deemed arbitrary and unreasonable and should be
annulled. That is not to say that appropriate

186

restrictions may never to imposed with respect to a
church and school and accessory uses, nor is it to

say that under no circumstances may they ever be exclu-
ded from designated areas. In this case, however, and
in reference to this property, the decisions of the
townbodies are arbitrary and unreasonable.

Accordingly, the orders below should be reversed, the
decisions of the townbodies annulled and the matter
remitted to them for further proceedings, not incon—
sistent with this opinion. Inasmuch as the board of
appeals has not passed upon the merits of the appli-
cation for a variance, we do not pass upon this phase
of the appeal.

In essence, the court held the actions of the various local

legislative bodies as inappropriate.

There was one dissenting opinion, but its author
affirmed the majority opinion. In this dissenting opinion
there was reference to several points discussed previously.
It stated that the use here in question was permitted in
the zoning ordinance "if approved by the Planning Board,"
and that the planning board had denied approval. This

dissenting opinion said that

. . . The evidence is ample to sustain the View that
the proposed use will depreciate the value of real
property and change the nature of the neighborhood,
and create a traffic hazard at that location. . . .
Zoning Ordinances are required to regulate the use
of districts according to a comprehensive plan.

The final judgment was that the

Order of the Appellate Division and that of Special
Term reversed, the determinations of the planning

 

 

187

board, the board of appeals and the town board of the
Town of Brighton annulled, and the matter remitted to
those bodies for further proceedings not inconsistent
with the opinion herein.

Pennsylvania case (282), decided in 1957, con-
cerned vacant property situated at an intersection of two
roads. The property was located in a residential district.
Appellants desired to erect a church upon the property in
question and they sought a variance. The residential dis-
trict classification expressly permits a church, among other
uses, to be built. There is an off-street parking require-
ment for churches and other similar places of assembly; the
restriction states that there should be "one car space
(300 sq. ft.) for every five seats or fraction thereof."
One other requirement listed in the case was that "None of
the uses listed in Item 8 above shall be permitted within
1/4 mile of each other." Item 8 listed church, school,
auditorium, stadium, and similar places of assembly as the
permissible uses. Incidentally, Item 8 was the off-street
parking requirement provision. The zoning board of adjust-
Inent refused the building permit. The lower court affirmed

the decision of the board. The board of adjustment and the

lower court found

 

 

188

. . . on adequate evidence, that the appellants' pro-
posal violates the l/4 mile requirement in that the
proposed location is 877 feet from the nearest place of
assembly and that it violates the off-street parking
requirement in that 17 parking spaces are required
under the ordinance and only 13 spaces will be provided.

There was another church located within the one-fourth mile
restriction limit.

In the upper court's decision there was extensive
reference to traffic and congestion while discussing and
reviewing the case. It reviewed the board of adjustment's
and the lower court's findings and said that they

. . . found that appellants' land is located at the
intersection of Bethel Church Road and Fort Couch
Road, which intersection is heavily traveled and is
further complicated by the presence of traffic islands
in the intersection; that the erection of appellants'
church at this intersection would substantially
increase traffic dangers and congestion. . . .
Appellants concede that traffic regulation is a
proper exercise of police powers but they argue that
these powers may not be exercised against a church.

The court said in response to the above that

In Schaub Appeal, 180 Pa. Superior Ct. 113, we
pointed out that "The Enabling Act also 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 facilitate the adequate provi—
sion of transportation . . .' Act of May 4, 1927,

. . . Our Supreme Court, in McSorley y, Fitzgerald
§E_§1,, 359 Pa. 264, 269, 270, 59 A.2d 142, passed
upon the validity of a regulation which protects
against the dangers of traffic congestion in the fol-
lowing language: "those attacking the constitutionality

 

 

 

189

of such a law as that which is here under consideration
obviously labor under the mistaken notion that its pur-
pose is merely to cater to the convenience of the owners
and operators of motor vehicles; on the contrary its
effect may be to interfere with the perhaps greater con-
venience of parking on the public street; its real pur-
pose is to promote the larger and more general good of
the community by freeing the streets of the impediments
and perils arising from dangerous and often intolerable
conditions of traffic congestion. And since the Act
[parking authority law] is concerned with the regulation
of the transporation of persons and property along the
highways of the municipality, and since the evils it
seeks to remedy vitally affect conditions for the trans-
action of business, the prevention of accidents, the
effective operations of life and activities, its justi-
fication stems directly from the exercise of the police
power, which is the supreme power of government."

 

The zoning ordinance in this case did not prohibit
churches in the residential district but expressly per-
mitted them subject to certain restrictions. The court said
that the restrictions which impose certain conditions upon
the site on which a church may be built was the question
concerned in this case.

The court continued in saying that

The grouping of a number of public assembly buildings
in a residential district would obviously create addi-
tional traffic hazards. . . . Street and traffic control
facilities of a residential district are not normally
prepared to handle the large concentration of people or
automobiles which results fromgpublic assembly use
[emphasis supplied by the writer of this thesis].

It is reasonable to suppose that several public assem-
bly structures located closely together would create

an additional threat to the safety of their occupants
and the traveling public. Proximity requirements are

 

190

designed for the purpose of lowering the hazards which
can arise from the close grouping of assembly buildings
or structures which are exceptional in a residential
district. We are of the opinion that there was ample
evidence to justify the findings below to the effect
that both regulations here involved bear a reasonable
relation to the safety of the public. The evidence
shows that the intersection, where appellants propose
to locate their church building, is on a traffic

route connecting two major arterial routes, U. S. 19
and State 88. It also constitutes a connection between
the county system of belt routes. Motor vehicle traf-
fic, largely trucks, is heavy, especially on week-ends.
In addition to passenger cars, large trucks hauling
freight, steel, chemicals and gasoline pass through
this intersection. The vehicles leaving appellants'
lot would enter the intersection opposite the islands
located in its middle. . . . The double island and

the three—way intersection at appellants' site and the
additional automobiles of appellants' congregation
would certainly further complicate and increase the
traffic hazard already existing at this point.

In regards to the above quotation the court also described
the complications involved when an automobile would leave
the proposed parking lot to go in certain directions, in
one instance the auto leaving the lot and desiring to go
to the left would have to turn right and pass through the
intersection and go far enough in the opposite direction
and then make a U—turn and then come back through the
intersection a second time. This movement was due to the
lrfi:'s outlet's being located opposite one of the traffic
islands where the traffic was one—way.

The court then said that

 

 

{7"5'! H‘

1:...

191

Certainly freedom of worship does not mean that churches
are exempt from reasonable police power regulations.
.Board of Zoning Appeals of Decatur v. Decatur,
Ind. Co. of Jehovah's Witnesses, 117 N. E. 2d 115, 123.
The language used at page 123 is applicable to the
present case: "It is quite evident that the members of
the appellee could be killed just as dead going to and
from church as going to and from a theater or a basket-
ball game. It is a proper exercise of the police power
to protect appellee's members from their own negli-
gence as well as from the negligence of the traveling
public. There would be just as much logic in holding
that the members of appellee when going to church were
not required to comply with the traffic regulations as
in holding that the appellee is not required to make
reasonable provisions for lessening of the traffic haz—

ards by off-street parking.

"If it was a proper exercise of the police power for
the city by its zoning ordinance to require the appel-
lee to comply with the average setback line of the

residences, which only has a very remote bearing on
a fortiori it was a reasonable exer-

traffic hazards,
cise of the police power to require appellee to pro-
The

vide space for 25 cars to park off the streets.
right of appellee to exercise its religious freedom

is not violated in either case."

If the validity of the legislative classification
for zoning purposes be fairly debatable, the legisla-
tive judgment must be allowed to control.

In conclusion after discussion of other phases brought out

by the appellant, such as bias to their religion, hardship,

and other general conditions the court said
The appellants' lot does not possess any unique or
unusual characteristics which would make it unusable
for residential use.

We have examined this record and find there is evi-
dence to sustain the lower court's findings and we can
find no violation of law or any manifest abuse of

discretion.

 

 

 

192

The court therefore affirmed the order of the lower court
which had affirmed the decision of the zoning board of ad-
justment which had refused to issue the building permit and

refused to grant a variance from the provisions of the

 

borough zoning ordinance. PK
Churches, schools, private clubs, and other types

of private, quasi-public, and public buildings are uses

which are needed by a municipality. Should churches and 3

schools which are always used by numbers of people be
allowed in all zones? It is known that these buildings

are used by the people and therefore may be termed as essen-
tially an incidental use to residential use. A school lo-
cated in a strictly business and commercial district or in
an industrial and manufacturing district would be of no use
whatsoever. Other buildings, such as a city hall, or li-
brary, and other municipal buildings actually could be lo—
cated in practically any zone because they are tied in with
all different types of land uses, but they all attract
automobiles to a certain extent and this should be taken
into consideration when they are being located, especially
if in a residential zone. One thing for sure is that all

these uses generate traffic and create possible congestion.

193

In the two cases under discussion here, cases (246)
and (282), it is known that both of the uses will create an
increase in traffic. In case (246) the decision by the
higher court seemed right. Taking into account all of the
factors that influence traffic hazards and congestion, the
off-street parking being provided for in this case evi-

dently was sufficient, and there was no mention of the

 

‘13?

conditions of the street. The volume of traffic upon the
streets in this area probably was slight. Allowing such

a use as contemplated here does not create a steady stream
of traffic to and from the proposed use. There would be
rather specific times when the traffic would be increased:
in the morning when church services or school hours begin
and again when they end. On weekends the only traffic
would be usually at times of services at the church. These
rather specific hours will create a pattern as to when the
streets in the area will be used most. Actually there is
not much that can be said about this case, as churches and
schools of the present day are not the incompatible uses
‘they once were. The style of architecture today will
Iasually blend in and be an asset to a residential area, and

rust the usual rigid and decidedly statuesque buildings they

194

once were. And of course schools nowadays are usually
provided with sufficient acreages so the buildings are not
tightly set in the residential areas.

In case (282), the location of the proposed church
was just the opposite of the preceding case. It was loca-
ted at an intersection where there was heavy traffic and

also the intersection had traffic islands to separate

 

traffic flow. The traffic into and out of the proposed
parking lot would interfere with the traffic flow at the
intersection as was stated very appropriately by the
court. It could create greater confusion of the traffic
by the turning movements, create more conflict points for
the automobiles, and interfere with the efficient movement
of traffic, which had been the purpose of the placing of
the existing traffic islands at the intersection in the
first place. The parking lot was small and therefore would
force more autos to park in the streets than would normally
park if the parking lot were adequate to serve the church.
Again the uses of this classification are diffi—
cult to evaluate. The two cases here in discussion, to the
writer were of two distinct categories as one was located
at a heavily traveled intersection and one was evidently

located on a normal residential street. Schools are

195

essential-—whether they are public or private; and churches
are one of the uses which are also necessary for as freedom
of worship is one of the basic foundations of this country
and therefore both uses can be termed essential. They
normally are not a detriment, according to present day
standards, to the community, except for the result that

they do attract traffic, and create some noises; but it is

 

not the usual steady stream found in some other uses, and g
the traffic created will not normally be by the entire
municipality but generally of the neighborhood being
served.
Section 11: Category K Residential, Business and
Commercial, Industrial and Manufacturing ==Parking

FaCilitieS.

 

The California case (7), decided in 1951, involved
the use of several parcels of land used or to be used as
parking lots. The plaintiffs had leased three lots at the
intersection of two streets. The lease required a three-
story building to be constructed by the plaintiff, with
two lots being used for parking of cars. The city council
granted variance under certain specified conditions. Four

other lots in the area were paved and used for parking.

196

Numerous other, similar zone variances, were granted to
other applicants in the same area.

A group of citizens had asked the city council to
call a special election in 1947 for the sole purpose of
enabling the voters of the city to decide whether to pro-
hibit similar future zoning variances and to enforce the
existing zoning regulations. The plaintiff Which was a
corporation, objected and had given notice that it would
contest the legality of any such action so taken on the
submission of the above question to the electorate.

Subsequently, in 1947, an ordinance was adopted.
The ordinance "provided for the revocation of all of the
variances theretofore granted and amended the zoning
ordinance so as to prohibit the granting of any such
variances in the future." The plaintiff was using nine
and one-half lots for parking facilities at this time.

After the above action the plaintiffs immediately
filed an action to enjoin the enforcement of the above
ordinance, stating that it was arbitrary, unreasonable,
xnas improperly adopted, and so forth. Again a group of
citizens wanted the city council to take action by revok-

.ing the variances granted to plaintiff. The city council

<declined to take the desired action.

197

Subsequently, in 1949, another ordinance was
adopted by the city council. The ordinance was essentially
the same as the previous one. It "purported to revoke the
variances in zoning ordinances previously granted permit-
ting parking 1ots" as described. Plaintiff commenced
action.

The action of the lower court, after an extended
trial, had held that the plaintiff was entitled to the
relief sought, and judgment was given accordingly. The
actions were for restraining the enforcement of the revo-
cation of the variances, and for injunctive and declara-
tory relief.

In the upper court's opinion of the case, traffic
was brought up in a few instances. In answering questions
raised the court said:

Was there substantial evidence to sustain the trial
court's findings: Yes.

In the present case there is an abundance of evidence
to support the findings of fact questioned by defend-
ant city. The trial court found that as a result of
the business development along Wilshire Boulevard it
is indispensable to the public welfare to provide and
maintain off-street parking, to take care of customers
who patronize business establishments in the city;
that it was impossible to provide parking spaces for
these automobiles in the established commercial-
zoned areas since all the lots not already built upon
are presently in use for such parking; that the

198

existence of this shortage rquired the use of over
1,200 curb-parking spaces in the residential zones,
and the result of prohibiting parking upon the lots to
which variances had heretofore beenggranted would be
proportionately to increase such use of curb—parking
space in the residential area [emphasis supplied];
that there is no noise, dust or fumes arising from the
use of the parking lots which are offensive to persons
of ordinary sensitivity and the use of said lots would
not in any respect depreciate the value of surrounding
residential property; that during the Christmas shop-
ping season and on sale days considerable traffic con-
gestion occurs in the vicinity of the parking lots in
question, but the effect of prohibiting the use of
such lots would be to increase rather than decrease
such congestion, and the prohibiting of parking upon
plaintiff's lots does not, did not and cannot in any
respect promote the public peace, health, safety or
general welfare.

Here is an excellent showing that where there is an insuf—
ficient number of parking spaces provided within the devel-
<nped commercial areas the result will be the parking of
automobiles on the streets within residential areas. Did
the citizens in taking away what parking facilities were
available realize that they were bringing undesirable
consequences upon themselves, as there would be more park-
ing and heavier traffic in their neighborhoods? The trial
court and the upper court here have given considerable
thought to this problem.
The court went on to say that
These findings were supported by evidence of three

city planning experts and evidence of other witnesses
including the findings of the city council of

The

The

199

defendant city over a period of many years that the
parking lots in question, by relieving traffic conges—
tion and taking cars off the streets, were beneficial
to the public welfare. In addition the trial judge
inspected the area in question. This "view" of the
area was independent evidence which could be considered
by the trier of facts in arriving at his conclusion and
is substantial evidence in support of his findings
consonant herewith.

court answered two other questions:

Was Ordinance 698 [amending ordinance] invalid and
ineffective to terminate plaintiff's rights? YES.
Is plaintiff estopped to attack the validity of
Ordinance No. 698? NO.

The court's conclusion was

In view of our conclusions no useful purpose would be
served by discussing other propositions urged by
counsel for defendant city since, should we agree
with them, it would not result in a reversal of either
judgment.

judgments of the lower court were, and each was

affirmed.

This case was petitioned for a rehearing which was

denied, and appellant's (the city involved) petition for a

'hearing by the supreme court was also denied.

The Illinois case (115), decided in 1958, concerned

a lot which had been used as a parking lot prior to liti-

gation. The property was in a residential district. The

owners of the lot desired to continue using it as a parking

lot.

The plaintiffs, the City of Loves Park and its zoning

200

enforcement officer, sought to restrain the owner from
using the lot for parking.

It might be well to mention here that the company
maintained area for seven to eight—hundred-car parking on
one side of the plant for employees, and the smaller lot
was located on the opposite side of the plant and used for
salesmen, executives, and customers only. The lot in
question, classified as "B" residential, allowed apartment
houses with 12 dwelling units, and storage space for one
car per family could be maintained. The company parking
lot in question could accommodate about 14 cars. There
were several parking lots in the immediate area of the
one here complained, and these parking lots were maintained
by other industrial facilities also in the area. These
parking lots bear the same zoning classification as the
lot in question. The plaintiffs contended that the lot in
question--in this case, the small lot——caused increased
traffic.

The lower court had issued a decree restraining the
plant's owners from using the lot for parking.

The upper court's decision included the following

remarks in reference to traffic:

201

. . The lot is not used for industrial purposes nor
is any revenue directly gained since no charge is made
for parking thereon. Hardship can consist of some-
thing other than a direct monetary loss. Here, the
lot is for quick and easy access by customers, sales-
men who want to visit the purchasing department and
executives. The lot serves a useful purpose in giving
the users an opportunity to park without searching the
streets of the area for an open parking space.

Several of plaintiffs' witnesses complained that the
lot caused increased traffic. This seems improbable
since the same number of executives, salesmen and
customers drive into, and park in, the area. If it
were not for the parking lot provided for them, they
would park in the street in front of the lot or on
other streets as close as possible to their destina—
tion. The undisputed evidence was that Sydney Street
is not wide and that at peak hours of traffic the
flow is narrowed down to one-way traffic when cars
are parked on the street. The evidence establishes
that the use of the lot for parking will not increase
traffic hazards to the public but, on the contrary,
strongly indicates that residents of the neighborhood
and the traveling public will gain by alleviation of
some of the hazards caused by parking on the streets.

The court in making its conclusions and opinion made
excellent reference to the problem faced by local author-
ities in relation to zoning ordinances and traffic. The
court said that

We recognize the dilemma of municipal authorities.
They are faced with the problem of preventing erosion
of their zoning ordinances on the one hand and the
ever-increasing question of how to keep the streets
clear for traffic on the other. Off-street parking is
decried by some property owners, while the urban auto-
mobile driver is plagued by congestion caused by on-
street parking. We do not interfere with a zoning
classification where there is a fair difference of

202

opinion concerning its reasonableness. . . . but where,
as here, the prohibited use will not appreciably depre-
ciate values, does not tend to expose surrounding
property to untoward offensive noises, dirt or traffic,
and will help prevent traffic congestion, we are of the
opinion that the zoning classification as applied to
this property is unreasonable. The loss to the public,
if any, appears to be offset by the public good in
permitting the present use of the lot, to say nothing
of the hardship which would be worked upon the defendant
in refusing to permit the use of the lot for parking.

In our opinion there is not such a substantial rela—
tion between the zoning restriction and the public
welfare which requires the invocation of the police
power. We therefore hold that the ordinance is void
as to the defendant's lot, and the decree of the cir—
cuit court must be reversed.

Therefore the upper court upheld the use of the lot in

question as a parking lot thus reversing the action of

the city authorities and the lower court.

The increase of parking facilities is becoming one
of the uses which is a direct result of the increase in
the automobile population. As more autos are attracted to
the land uses, there is a greater demand for parking
spaces, whether it be on the streets or in publicly or
privately owned parking lots or structures. If parking
facilities are not provided, there is the evident increase
in congestion caused by parking on the streets and possible

double parking, which in turn slows down traffic through

the narrowing down of the streets thus having fewer lanes

203

of moving traffic, creating more possible points of con-
flict and other effects created by congestion and traffic
increase.

In case (7), if any one of or all of the parking
lots were suddenly closed, traffic and congestion would be
increased. It might have been, in this case, that the
citizens objected because of the possibility that there
were not adequate provisions in the zoning ordinance for
protecting the surrounding properties. Regulations,
restrictions, and conditions can be provided for in zoning
ordinances to make parking lots practically "unnoticeable"
by requiring the enclosing of the lot so it cannot be
seen by the adjacent properties, made to be anti-glare,
and also in limiting the entrances and exits and many
other provisions.

In case (115) the same general factors can be
applied. This parking lot was in a residential area. The
citizens complained that the lot caused increased traffic,
and it is wondered if they stopped to consider the results
that would happen if the cars were forced to park in the
streets, that this would be furthering congestion, possi-

bly having cars parked in front of their own homes, which

204

it is certain they would complain about. The upper court
recognized the consequences that would result if the owner
of the lot were forced to discontinue the use of the prop—
erty for parking.

The lot in question was actually very well kept;
it was black—topped and was surrounded on all except the
company's side by a neatly trimmed hedge. Actually, one
of the plaintiffs' witnesses had said that the defendant
kept its grounds better than anybody in the city, and
that "the lot looks better than the house that was there."
So with the above statement, how can a person say that
the surrounding properties would be depreciated in value.
The court said in response to the above statement and
other testimony in regards to depreciation that "based on
this record it is unrealistic to say that the value of
the surrounding property will be depreciated."

The municipality should have realized the conse-
quences of forcing the discontinuance of the use of the
lot. Instead, the authorities should have recognized
its advantages and attempted to prevent a recurrence of
the problem by enacting regulations and provisions to make

the parking lots more desirable, as mentioned previously.

Section 12:

Category L Unclassified Cases.

205

These cases concerned other uses that did not seem

to fit in the preceding classifications and also cases

that were considered nuisance cases,

and others, but were reported because of the reference to

condemnation cases,

traffic or congestion being injected into the proceedings.

These cases will be found in Appendix III,
with a brief description; therefore they will not be

elaborated upon as the preceding categories were.

These cases are as follows:

Illinois case numbers:

Michigan case numbers:

New Jersey case numbers:

Pennsylvania case numbers:

(122)

(129)
(131)
(139)

(160)
(166)
(180)
(188)
(218)
(222)

(256)
(261)

on page 266.

1953

1946
1947
1954

1945
1947
1952
1954
1954
1955

1948
1953

206

After digesting the cases in all of the cate-
gories used in this chapter, the conclusion can be that
there is still no definite way of determining when traf-
fic and congestion should be deemed as the one condition
for approving or denying a certain use upon a parcel of
land. The opinions vary from State to state, and it is
therefore thought desirable that possibly a standard
set of rules, regulations, and provisions should be con-
sidered. They could be written and made available to all
the political governments on the same basis as the zoning
enabling acts, or possibly made part of the acts. Further

conclusions follow in the next chapter.

207

CHAPTER V

SUMMARY, CONCLUSIONS, AND RECOMMENDATIONS

Summary and Conclusions

Traffic congestion on the public streets has been
steadily increasing since the invention of the motor
vehicle. This increase was not considered a serious prob-
lem prior to World War II. Since the War the increase in
the number of automobiles has been greatly accelerated by
the increase in the percentage of the population owning
automobiles and by the increase in the number of two-car
families. The influence of the automobile has been felt in
many ways, one of which has been the effect upon the central
business districts of municipalities by the new and spec-
ialized land uses which have generally taken place in the
outer fringes of the municipality and have catered pri-
marily to the automobile. This has caused the central
business districts to deteriorate to a certain degree, and
has forced the municipalities into considering redevelop-
ment, planning additional parking facilities, widening
existing streets, as well as providing new highways to the
Central Business District to bring the population "back to

town." Also the desire for the American to live in the

208

"suburban" atmosphere has added considerably to traffic and
congestion.

Motor vehicle use is and will be on the increase,
and it will continue to influence land uses. Land use
usually generates traffic, and traffic,in turn, influences
land use. There are several ways in which land use can be
controlled. One of the ways is the use of the limited-
access or expressway type of highway; this action will aid
in the relieving traffic and congestion considerably, but
it does not provide a relief of congestion upon the local
streets within the municipalities themselves or in other
areas not affected by the limited access or expressway
type highway. Zoning of land uses is another way in which
there can be control of the land uses adjacent to heavily
travelled streets; by controlling land use through these
ordinances, the amount of traffic generated by them can
be controlled.

The effect of traffic congestion has been seen on
practically all of the major travelled streets. It has
deteriorated many residential areas, and has often caused
the "ribbon commercial" type development. Another effect

of traffic and congestion is the increase in requests by

209

property owners to rezone their properties to a more inten-
sive use, usually as a result of traffic and congestion.

In McSorley v. Fitzgerald et al., 359 Pa. 264, (May
24, 1948), case (256), the court in its decision gave an
excellent description of the further effects of traffic and

traffic congestion:

. . . That there has been an ever—increasing trend in
cities . . . in the number of persons entering the
business sections by private automobiles; that the free
circulation of traffic of all kinds through the streets
of such cities is necessary to the health, safety and
general welfare of the public; that the greatly
increased use of motor vehicles of all kinds has

caused serious traffic congestion on the streets of
such cities; that the parking of motor vehicles on

the streets has contributed to this congestion to such
an extent as to interfere seriously with the primary
use of such streets for the movement of traffic; that
such parking prevents the free circulation of traffic,
impedes rapid and effective fighting of fires and the
disposition of police forces in the district and
endangers the health, safety and welfare of the general
public; that such parking threatens irreparable loss in
property valuations; that this parking crisis can be
reduced by providing sufficient off-street parking fac-
ilities properly located. . . .

The above quotation describes well most of the remaining
effects created by traffic and traffic congestion: parking
in the streets, effect upon property valuations, flow of
traffic upon the streets, and so forth. The case above
Concerned the constitutionality of the State of Pennsyl-

vania Parking Authority Law of June 5, 1947, P. L. 458.

 

210

The control of land uses along the streets is one
way of attaining some relief of traffic congestion. Land
uses may be controlled by judicious employment of the
zoning enabling acts; one of their specific purposes is
to lessen the congestion on the public streets and roads.

The relationship between land use and traffic and
traffic congestion has been established by discussion here
of the cases which show that there is a recognition by the
various governmental units and by the courts of the serious
problem of traffic congestion and its relationship to the
use of land bordering upon the streets. The results also
show that, even though legislation has been provided,
many faults can still be found in the individual zoning
ordinances of the municipalities, and much controversy has
ensued in relation to the question of congestion when a
zoning case is brought before the courts. Several of the
cases discussed herein, in addition to having the subject
of traffic or congestion included in their proceedings,
have shown the court action arose out of grossly inade-
quate zoning ordinances, as in case (72).

Summarizing and analyzing these cases have shown

that there is a wide discrepancy between the actions taken

211

by the various courts of the states selected upon cases
that have practically the same factual situations. In
cases (144) and (186) an ideal comparison is shown. The
properties in both instances
1. were zoned for residential purposes,
2. were situated so as to have frontage on a heavily
travelled highway,
3. were rezoned to commercial uses,
(a) 144 by the local court as the municipality
would not rezone the property in question
(b) 186 by the municipality.

In the actions in the courts the following actions occurred:

In 144 the lower court held the zoning ordinance as
invalid as to residential purposes.

In 186 the lower court set aside the amendment that
rezoned the property to commercial purposes.

In 144 the upper court upheld the action of the lower
court which approved the use of the property for com-
mercial purposes.
In 186 the upper court upheld the action of the lower
court which returned the use of the property to resi—
dential purposes.
Some cases have shown that zoning ordinances require
off-street parking facilities in proportion to the land use.

In case (40), there is some evidence of these provisions,

but it is not known whether all phases concerning off-street

212

parking provisions in the zoning ordinance covering the
specific land use were presented in the case; a complete
comparison cannot be made without consulting the particular
municipal zoning ordinance. But at least, it was shown
that off-street parking provisions in the zoning ordinances
are not a "new" innovation.

Other categories or points could be compared; but
the above examples indicate that considerable discrepancy
exists concerning zoning, land use, traffic, and traffic
congestion. A widespread and intensive attempt should be
made to erase such discrepancies.

Of the 44 cases covered in the text of Chapter IV,
15, approximately 33%, were decided by the various courts
with the subject of traffic or traffic congestion being a
part of that court decision.

The 44 cases are further analyzed as follows:

213

State Number of Number of Cases
Cases Decided with
Reported the Subject of

in Text Traffic or

Traffic Congestion
Being Part of
the Decision

California 5 1
Connecticut 6 4
Illinois 6 3
Michigan 6 1
New Jersey 5 3
New York 5 1
Pennsylvania 5 2
Other Various States _§__ _0_
Totals 44 15

The above analysis can mean then, that in the states where
there are proportionately fewer case decisions regarding
traffic or traffic congestion, either of two things is
happening. If the subject of traffic or congestion is
injected into the case at the local level, either the sub-
ject becomes satisfactorily answered or clarified or it
does not become an important subject in material presented

to the court. The analysis also shows that in California

214

the subject of traffic congestion has entered into the case
and has become a part of the decision without the California
Zoning Enabling Act having the purpose of "lessening conges-
tion in the public streets," included.

In Connecticut, Illinois, and New Jersey, where a
large proportion of the cases concerned traffic or conges-
tion, the local zoning ordinances may not adequately provide
for the lessening of congestion in the public streets.

Then in the analysis of the three main categories in
which all of the selected states were represented, the
results show that in category A one case was decided with
the factor of traffic or congestion being involved in the
decision of the court; in category B, also, one case was
decided involving the factor above, and in D, four cases wens
decided involving the same factor as above. This may sug-
gest that the D category (Residential ==Business and Com-
mercial) is the one which should be concentrated upon, in
reviewing the traffic and congestion problems. This does
not mean that the other categories should be ignored,
however. A complete breakdown of the categories, the number
of states involved, and the number of the cases that were
decided on the basis of traffic or traffic congestion is as

follows:

215

A 9 Cases 1 Decision involved factor
B 7 " l "
C 2 ” 0 "
D 8 ” 4 "
E 3 " 0 "
F 3 " l "
G 4 " 2 "
H 2 ” 2 "
I 2 ” l ”
J 2 " l "
K _2_ " _2_ "
Totals 44 15

The above results show that although the D category has
the most cases decided upon traffic or congestion, the
other categories need further consideration in zoning
ordinances also.

Therefore it can be said that there are inade—
quacies in both the zoning enabling acts and more speci-

fically in the municipal zoning ordinances.

The

(l)

(3)

(4)

216

principal inadequacies are as follows:

The enabling acts are very limited in describ-
ing specific methods for lessening congestion
There are no definitions or explanations in
either the acts or the zoning ordinances that
can help in determining when, why, how, or
where congestion would actually exist and
should be taken into consideration in a
decision

There are no standards by which a court or

a local government can base a finding that
traffic congestion is a valid basis for a
decision

The zoning ordinances provide no means of
limiting land use through restrictions con-
cerning parking facilities, street condi-
tions, egress and ingress, traffic volume,
surrounding area and its condition, and

many other points that could always be

assumed but not actually stated as facts for

comparison on which to determine a decision.

217

The courts have often injected into their decisions
or opinions a discussion of traffic and congestion, but the
decisions were based on other reasons which of course were
entirely valid. Case (72), as stated before, is a good
example. If traffic and congestion was not a deciding
factor in a particular case, why did the court discuss
traffic and, in some instances, diScuss it to a great extent?
The court must have felt that traffic and traffic conges-
tion was or could have been a factor in determining its
decision, but because of the other types of illegal action
committed by the local government body it was prevented
from doing so.

Evidence presented in the Table II, on page 45,
and the Figure l, on page 46, has also shown that the
number of zoning cases in the upper courts in which traf—
fic congestion, or the enabling act, or other reference
to traffic was used, had reached a high in 1956 and that
since that date the number of cases has been steadily
declining. Does this mean that the cases are properly'
decided in the lower courts, or by the local governmental
'body, or could it mean that since there is no definite way

to determine when traffic congestion really exists or would

218

be created by a specific land use in the consideration of
a zoning case, that this phase of the purpose of zoning
has come to be relatively insignificant and that the local
body or the lower court has deemed this to be a useless
aspect in trying to approve or deny a specific use even
though it would have serious effect or add to the traffic
congestion. We hope that this is not so.

The conclusions can be stated simply: the present
zoning enabling acts and many zoning ordinances are not
doing one of the important jobs for which they are
intended——to lessen the congestion in the public streets.
The existing zoning enabling acts and many zoning
ordinances are antiquated according to today's standards.
Governmental agencies should rewrite them to make them
adequate to deal with today's traffic congestion

problems.

219

Recommendations

 

The first recommendation is that the zoning
enabling acts should be rewritten or new ones prepared that
would bring up to date the standards deemed necessary to
adequately cover all phases of traffic congestion and the
factors that should be used in considering the relieving
of traffic congestion.

These acts or revisions should include, along
with the purpose of zoning, the fundamental methods that
could be used in regulating, restricting,and providing for
standards to be used in deciding a zoning problem or court
case:

1. The stated purposes of zoning in relieving

traffic congestion,

2. Suggested restrictions for determining egress

and ingress requirements of a land use,

3. Some suggested restrictions and regulations

such as, how to determine the number of

parking spaces needed for a specific use, how
to determine the existing conditions of traf—
fic and congestion upon the street, and other

things that would have to be determined after

220

a very thorough study made by qualified
personnel and without preventing flexi-
bility, as each municipality has its own
special problems.

There are possibly other restrictions, regulations,
and provisions that could be employed, to ably assist the
courts and the local governing bodies in having a defi-
nite means available upon which they could base a
decision.

Secondly the zoning ordinances of many munici-
palities are usually inadequate or inadequately written.
With antiquated legislation, there are no regulations,
restrictions,and provisions available to effectively
combat the problem of traffic congestion. They could be
brought up to date in the following manner by including
at least the items mentioned here:

1. The parking facilities should be adequate
enough to allow all automobiles to park off
the street. This can be taken care of by
using a ratio of the number of square feet
in a building, or the maximum number of

customers or other persons to be accommodated.

221

Many zoning ordinances include some such ratio
now, but in many cases they probably will have
to be brought up to date with the numerous new
types of land uses that have developed in
recent years.

The ingress and egress to property should be
specifically controlled as to location on the
property, and relationship to intersections,
street widths and other things, to control
turning movements and automobile accident
points.

Ways should be included to determine the
conditions of the street serving the land use
and limitations made as to the street width,
traffic flow, volume of traffic, and topo—
graphical and sight distances and other points
which would aid in determining whether the
street was adequately prepared to accommodate
an additional increase of automobiles gener-
ated by specific land uses.

The conditions of the neighborhood, adjacent

land uses, and other specified conditions should

222

be determined to see if the proposed land use
will affect the neighborhood as well as the
traffic in and around the land use being planned.

There are other specific conditions, regulations,
restrictions, and provisions that also should be taken into
consideration when preparing a zoning ordinance. The ordi-
nance should be diligently prepared, and all items that can
be foreseen that would influence existing and possible
future traffic congestion should be taken into consideration.
Also the ordinances should be periodically reviewed and
rewritten as new conditions develop.

Control of the land use abutting on the streets is
the one way left in which we can relieve traffic conges-
tion, after the street has been built; the traffic regula-
tions of most municipalities do not regulate land uses.

As has been pointed out before, the effectiveness of the
zoning enabling acts and the zoning ordinances of today
usually falls short of relieving traffic congestion.

The courts have not had adequate provisions upon
which they can completely rely in determining a zoning
case when rezoning a property to a more intensive use

than was previously allowed, especially upon a street

223

which carries heavy traffic loads. The local governing
bodies, in most cases, have at their disposal provisions
upon which they can rely, but in many instances the regu—
lations have been inappropriately prepared and in others
they are ineffective. Future judges and local governing
bodies should be given sufficient background and enforce
the purpose of the zoning enabling act and the zoning
ordinance.

Justice Edwards in the case of White v. Township

 

of Southfield, 347 Mich. 548, 79 N. W. 2d 863, case (144),
gave a good analysis and opinion regarding the effects of
rezoning all streets for uses other than residential, and
the problem that would be involved for the municipality
and its planning agencies and its zoning in general. His
opinion is to serve as a conclusion to this thesis:

. . . Is it an unconstitutional use of the police
power for a township to zone property adjacent to a
heavily travelled highway for residential purposes
exclusively? An affirmative answer to this question
by this Court in my mind would play havoc with all
city planninggand zoning. [Emphasis supplied.]

Traffic of greater or lesser degree and in volumes
increasing or decreasing by the year, is a part of

our modern life. A declaration that as a matter of

law proof of heavy travel on an adjacent highway

voids a residential zoning provision would constitute

a threat to the stability of practically every zoning
ordinance in the state of Michigan. Further it wOuld hmdte

224

litigation in relation to every piece of property
zoned for residence along every heavily travelled
highway in the state. Moreover, it would place the
trial courts and the Supreme Court squarely in the
business of determining just how much traffic and of
what character would serve to void a particular
litigated zoning provision.

Such a practice would, in my view, represent a major
judicial intrusion upon the discretion vested in local
legislative bodies who are charged with the adoption
of zoning ordinances.

With the above statement by Justice Edwards it is
deemed essential that the zoning enabling acts and the
zoning ordinances be rewritten and brought up to date under
the influence of today's way of life. Adequate regulations
and provisions included in the enabling acts and the
ordinances would relieve the courts themselves in deter-

mining traffic conditions as Justice Edwards so ably

stated.

225

BIBLIOGRAPHY

Books

Bassett, Edward M. et a1. Planning Law (Harvard City
Planning Studies, Vol. VII). Cambridge, Mass.: Har—
vard University Press, 1935.

Michigan Department of Economic Development. Michigan
Laws Related to Local Planning. Lansing, Michigan,
1949.

Mitchell, Robert B., and Rapkin, Chester. Urban Traffic
A Function of Land Use. New York: Columbia University
Press, 1954.

U. S. Department of Commerce, Advisory Committee on Zoning.
A Standard State Zoning Enabling Act. Washington, D.C.:
U. S. Government Printing Office, revised edition, 1926.
Yokely, E. C., Zoning Law and Practice. Vol. II, 2nd

Edition. Charlottesville, Virginia: The Michie
Company, Law Publishers, 1953.

Law Reports

Village of Euclid v. Ambler Realty Co. 272 U. S. 365,
(47 S. Ct. 114, 71 L. ed 303, 54 A.L.R. 1016),
November 22, 1926.
Cohen v. Mayor. 113 N. Y. 532, 21 N. E. 700, June 4, 1889.

Rex v. Cross. 3 Camp. 224, 170 Eng. Rep. 1362 (1812).

226
APPENDIX I

BIBLIOGRAPHY OF MATERIAL COVERED FOR

EACH STATE'S COURT REPORTS

This appendix includes all of the various State reports
used in compiling the court cases listed and used in this

report. These are for the selected States only.

CALIFORNIA
‘ California Reports (2d Series)

Reports of Cases Determined in the Supreme Court of
the State of California. . ‘
Vol. 25, Oct. 1944 - Vol. 53, April, 1960.

California Appellate Reports (2d Series)
Reports of Cases Determined in the District Courts
of Appeal of the State of California.
Vol. 67, Nov. 1944 - Vol. 176, Jan. 1960.

CONNECTICUT

Connecticut Reports
Cases Argued and Determined in the Supreme Court of
Errors of the State of Connecticut.
Vol. 131, May 1944 - Vol. 146, NOV. 1959.

Connecticut Supplement
Memoranda Filed in the Superior Court and the Court
of Common Pleas of the State of Connecticut.
Vol. 13, May 1944 - Vol. 21, Jan. 1960.

the: Connecticut cases of 1959 were mainly acquired
from the Atlantic Reporter, 2nd Series, but are
cited with Connecticut Report Numbers.

ILLINOIS
Illinois Reports (Regular) and (2d Series)
Reports of Cases at Law and in Chancery Argued and
Determined in the Supreme Court of Illinois.

Vol. 387, May 1944 - Vol. 415 (end of regular series).
Vol. 1 (2d Series) - Vol. 18, Feb. 1960.

227

Illinois Appellate Court Reports (Regular)and.(2d Series)
Reports of Cases Determined in the Appellate Courts
of Illinois.

Vol. 324, Feb. l944-Vol. 351(end of regular series).
Vol. 1 (2d Series) -Vol. 24, Mar. 1960.

MICHIGAN
Michigan Reports
Cases Decided in the Supreme Court of Michigan.
Vol. 295, Oct. 1940 — Vol. 360, Sept. 1960.

NEW JERSEY

New Jersey Law Rgports
Reports of Cases Argued and Determined in the
Supreme Court and, at Law, in the Court of Errors
and Appeals, of the State of New Jersey.
Vol. 132, Dec. 1943 - Vol. 137, Oct. 1948.

New Jersey_Equity Reports
Reports of Cases Decided in,the Court of Chancery,
the Prerogative Court, and on Appeal in,the Court
of Errors and Appeals of the State of New Jersey.
Vol. 136, Nov. 1944 - Vol. 142, Sept. 1948.

Note: The New Jersey Law Reports and the New
Jersey Equity Reports were combined in 1948 to
form the New Jersey Reports.

New Jersey Reports
Report of Cases Argued and Determined in the
Supreme Court of New Jersey.
Vol. 1, Nov. 1948 - Vol. 31, Mar. 1960.

New Jersey Superior Court Reports
Reports of Cases Argued and Determined in the
Superior Court, Appellate Division, Chancery
Division, Law Division, and in the County Courts
of the State of New Jersey.
Vol. 1, Sept. 1948 - Vol. 59, Feb. 1960.

New Jersey Miscellaneous Reports
Containing Cases Decided in the Court of Errors
and Appeals, Court of Chancery, Prerogative and
Supreme Courts that are not Reported in the New
Jersey Law and Equity Reports. Also important
cases decided in the New Jersey Courts of Common
Pleas, District and Circuit Courts, and by the
Surrogates and Department of Labor.
Vol. 22, Jan. 1944 - Vol. 26, Jan. 1949.

228

NEW YORK
New York Rgports-—Court of Appeals (Regular) and (2d
Series)

Reports of Cases Decided in the Court of Appeals

of the State of New York.

Vol. 295, Oct. 1945 — Vol. 309 (end of regular

series).

Vol. 1 (2d Series) — Vol. 7, April 1960.
Appellate Division Reports--Supreme Court of New York
(Regular) and (2d Series)

Vol. 270, Nov. 1945 — Vol. 286 (end of regular

series).

Vol. 1 (2d Series) — Vol. 10, May 1960.

Note: There is also available in the Michigan
State Law Library the following volumes which
were not reported upon but may have yielded
additional cases for study.
Miscellaneous Reports of New York.
Reports of Selected Cases Decided in
Courts of the State of New York other
than the Courts of Appeals and the
Appellate Division of the Supreme Court.

PENNSYLVANIA
Pennsylvania State Reports

Cases Decided by the Supreme Court of Pennsyl—

vania.

Vol. 351, Oct. 1944 - Vol. 398, April 1960.
Pennsylvania Superior Court Reports

Cases Decided by the Superior Court of Pennsyl—

vania.

Vol. 156, Aug. 1944 - Vol. 191, Mar. 1960.
Pennsylvania District and County Reports (Regular) and
(2d Series)

Containing Reports of Cases Decided in All the

Judicial Districts of Pennsylvania.

Vol. 51, various dates in 1944 — Vol. 89 (end of

regular series).

Vol. 1 (2d Series) - Vol. 20, June 1960.

 

Note: Pennsylvania cases are complete only through
reports available as of September 1960.

229

APPENDIX II

DATA FOR CASES REPORTED--NAME, DATE, CASE
NUMBER, CASE CODE, AND CITATION

 

 

Case Case

Date Citation Name
no. code

 

CALIFORNIA

1 F 1949 33 Cal. 2d 453 Charles C. Lockard, et al.,
Respondents, v. City of Los
Angeles, Appellant.

2 D 1950 36 Cal. 2d 95 Charles L. Clemons, Appellant,
v. City of Los Angeles, et al.,
Respondents.

3 J 1955 45 Cal. 2d 325 The Roman Catholic welfare
Corporation of San Francisco
(a Corporation), Petitioner,
v. City of Piedmont, et al.,
Respondents.

*4 D 1958 49 Cal. 2d 826 Philip F. Johnson, et al.,
Plaintiffs and Appellants, v.
City of Claremont, et al.,
Defendants and Appellants.

5 D 1948 86 Cal. App. Safeway Stores, Incorporated
2d 277 (a Corporation), Appellant,
V. City Council of San Mateo,
et al., Respondents.

6 D 1949 92 Cal. App. L. H. Price, et al., Appel-
2d 77 lants, v. John V. Schwafel,
as City Building Inspector,

etc., Respondent.

*7 K 1951 107 Cal. App. Saks and Company (a Corpor-
2d 260 ation), Respondent, v. City
of Beverly Hills, Appellant.

10

ll

*12

l3

14

15

*16

17

1953

1954

1954

1955

1956

1956

1956

1956

1956

1957

116 Cal.

2d 856

126 Cal.

2d 220

126 Cal.

2d 804

135 Cal.

2d 180

138 Cal.

2d 598

140 Cal.

2d 33

140 Cal.

2d 874

141 Cal.

2d 446

146 Cal.

2d 810

156 Cal.

2d 138

App.

App.

App.

App.

App.

App.

App.

App.

App.

App.

230

Morris, v. City of Los
Angeles.

Wallace Stegner, et al.,
Appellants, v. Bahr and
Ledoyen, Inc., et al.,
Respondents.

County of San Diego, Appel-
lant, v. Walter Williams,
Respondent.

D. Edgar Cohn, et al.,
Appellants, v. County Board
of Supervisors of the County
of Los Angeles, et al.,
Respondents.

Earl P. Miller, Appellant, v.
Planning Commission of the
City of Torrance, et al.,
Respondents.

Rodolfo Endara, et al.,
Respondents, v. City of
Culver City et al.,Appellants.

Al Schumm, et al., Appellants,
v. The Board of Supervisors
of San Joaquin County, et al.,
Respondents.

Desert Turf Club (a Corpora-
tion), Appellant, v. The Board
of Supervisors of Riverside
County, et al., Respondents.

Theodore C. Robinson, et al.,
Appellants, v. City of Los
Angeles, et al., Respondents.

Jean C. Flagstad, Plaintiff
and Appellant, v. City of San
Mateo, et al., Defendants;
Harry Regan, et al., Defen—
dants and Appellants.

18 I 1958
*19 A 1958
20 J 1958
20A J 1959
CONNECTICUT

21 D 1946
22 K 1947
23 I 1947
24 B 1947
25 H 1949
26 D 1949
27 B 1950

157 Cal.
2d 507

161 Cal.
2d 454

164

Cal.

2d 12

176

Cal.

2d 136

132

134

134

134

135

136

137

Conn.

Conn.

Conn.

Conn.

Conn.

Conn.

Conn.

App.

App.

App.

App.

537

28

149

240

706

89

36

231

C. L. Griffin, et al.,
Respondents, v. County of
Marin, Appellant.

Jane Reed Kissinger, et al.,
Respondents, v. City of Los
Angeles, et al., Appellants.

Appellant,
Respondent.

Robert F. Minney,
v. City of Azusa,

Garden Grove Congregation of
Jehovah's Witnesses (a Cor—
poration), Appellant, vu City
of Garden Grove, et al.,
Respondents.

Michael Devaney, et al., v.
Board of Zoning Appeals of
the City of New Haven, et a1.

Antonetta Abbadessa, et al.,
v. The Board of Zoning Appeals
of the City of New Haven.

Peter Mrowka, et al., v. Board
of Zoning Appeals of the Town
of Plainville.

Michael W. Delaney, et al., v.
Zoning Board of Appeals of the
City of Hartford, et a1.

George Dadukean, v. Zoning
Board of Appeals of the City
of Bridgeport.

Harry E. Bartram, et al., v.
The Zoning Commission of the
City of Bridgeport, et al.

William Strain, et al., v.
Zoning Board of the Town of
Greenwich, et a1.

28

29

3O

31

32

33

34

35

36

D

1952

1952

1952

1952

1953

1953

1953

1953

1954

138

138

138

139

139

139

140

140

Conn.

Conn.

Conn.

Conn.

Conn.

Conn.

Conn.

Conn.

141 Conn.

434

452

610

59

577

677

433

527

349

232

Fairlawns Cemetery Associa—
tion, Inc., v. Zoning Com-
mission of the Town of Bethel,
et a1.

Executive Television Corpora-
tion, v. Zoning Board of
Appeals of the City of
Dansbury.

Charles H. Miller, v. Zoning
Board of Appeals of the City
of Hartford.

Charles Eden, et al., v. Town
Plan and Zoning Commission of
the Town of Bloomfield, et al.

Joseph J. Farr, et al., v.
Zoning Board of Appeals of
the Town of Manchester, et al.

Town of Milford, v. Commis-
sioner of Motor Vehicles, et

al., The Atlantic Refining
Company, v. Philip B. Wil-
kinson, Building Inspector of

the Town of Milford.

Terrence McMahon, et al., v.
Board of Zoning Appeals of
the City of New Haven, et a1.

Mitchell Land Company, v.
Planning and Zoning Board of
Appeals of the Town of Green—
wich, et al.

James C. Bell, et al., v.
Planning and Zoning Board of
Appeals of the Town of Green-
wich, et a1.

Norman W. Couch, et al., v.
Zoning Commission of the Town
of Washington.

37

*38

39

*40

41

*42

43

44

45

46

47

48

1954

1955

1955

1955

1956

1956

1956

1956

1956

1957

1958

1958

141

142

142

142

143

143

143

143

143

144

145

145

Conn.

Conn.

Conn.

Conn.

Conn.

Conn.

Conn.

Conn.

Conn.

Conn.

Conn.

Conn.

595

64

349

415

263

316

322

609

634

641

435

476

233

Rowley Plumb, et al., v.
Board of Zoning Appeals of
the City of New Haven, et al.

The Atlantic Refining Com—
pany, v. Zoning Board of
Appeals of the Town of Milford.

Domenick Antenucci, et al., v.
The Hartford Roman Catholic
Diocesan Corporation.

Nicholas J. Florentine, et al.,
v. Town of Darien, et al.

The West Hartford Methodist
Church, v. Zoning Board of
Appeals of the Town of west
Hartford, et a1.

Silver Lane Pickle Company, v.
Zoning Board of Appeals of the
Town of East Hartford.

Michael Devaney, et al., v.
Board of Zoning Appeals of
the City of New Haven, et al.

The Calve Brothers Company, v.
City of Norwalk.

Joseph Mason, v. Board of
Zoning Appeals of the City of
Bridgeport.

Alfred Goldreyer, et al., v.
Board of Zoning Appeals of
the City of Bridgeport,et al.

Ferdinand H. Pecora, et al.,
v. Zoning Commission of the
Town of Trumbull, et al.

Everett A. Clark, et al., v.
Town Council of the Town of
West Hartford, et a1.

49

*50

51

51a

51b

51c

51d

*52

53

1958

1958

1958

1959

1959

1959

1959

1948

1949

145

145

145

146

146

146

147

Conn.

Conn.

Conn.

Conn.

Conn.

Conn.

Conn.

15 Conn.

Sup.

485

16 Conn.
Sup. 187

592

597

625

321

397

595

65

234

Margaret Wade, et al., v.
Town Plan and Zoning Commis—
sion of the Town of Hamden,
et a1.

Seema Gordon, v. Zoning

Board of the City of Stamford,
et a1.

George W. Baker, et al., v.
Hugh D. Catty, et a1.

Samuel Neuger, et al., v.
Zoning Board of the City of
Stamford, et al. (Two cases.)

James F. Whalen,et al., v.
Town Plan and Zoning Commis-
sion of the Town of Fairfield,
et a1.

William W. C. Ball, et al., v.
Town Plan and Zoning Commis-
sion of the Town of Windsor,
et al. (4728)

(Two appeals disposed of as
one.) Identically same word—
ing in the second appeal as
the one listed above (4729).

Steve Bonaldq et al., v.
Board of Zoning Appeals of the
City of New Haven, et a1.
Louis Pecoradq et al. v.
Board of Zoning Appeals of the
City of New Haven,et a1.

Thomas J. Tarasoviq et al” v.
Zoning Commission of the Town
of Trumbull,et a1.

Town of Westport, et al., v.
The Kellems Company, et al.

Helene L. Hawley, et al., v.
Zoning Commission of the City
of Bridgeport, et a1.

54 E
55 H
*56 A
57 D
58 J
59 D
60 B
ILLINOIS
61 E
62 A
63 D
64 D

1951

1951

1952

1954

1954

1955

1956

1945

1947

1947

1947

17 Conn.
Sup. 268

17 Conn.
Sup. 309

18 Conn.
Sup. 43

18 Conn.
Sup. 518
19 Conn.

Sup. 131

19 Conn.
Sup. 455

20 Conn.

Sup. 188

390 Ill.

396 I11.

398 Ill.

398 Ill.

138

404

142

265

235

State,ex. rel. Anthony Collucci,
et al., v. Milford Town and
Planning and Zoning Board.

The Texas Company, v. Zoning
Board of Appeals of the City
of Hartford.

Olin F. Harvey, et al., v.
Board of Zoning Appeals of the
Town of Greenwich, et al.

et al., v.
et a1.

Town of Waterford,
Eugene H. Lamphier,

Domenick Antenucci, et al., v.
Hartford Roman Catholic Dio-
cesan Corporation.

Edward H. Hamelin, et al., v.
Zoning Board of the Borough
of Wallingford.

The Lakeside Realty Company,
v. Town of Berlin.

Mercer Lumber Companies,
Appellant, vs. The Village of
Glencoe, Apellee.

Angeline DeBartolo, Appellee,
vs. The Village of Oak Park,
Appellant.

Federal Electric Company, Inc.,
Appellee, vs. Zoning Board of
Appeals of the Village of Mount
Prospect, et al., Appellants.

Offner Electronics, Inc.,
Appellant, vs. Paul Gerhardt,
Jr., et al., Appellees.

65

66

67

68

69

70

71

*72

*73

74

1948

1949

1949

1949

1950

1950

1951

1951

1951

1951

399

402

402

404

405

405

408

408

408

410

Ill.

Ill.

I11.

Ill.

I11.

I11.

Ill.

Ill.

Ill.

I11.

418

321

581

473

396

410

91

397

458

21

236

George L. Quilici, et al.,
Appellees, vs. The Village of
Mount Prospect, Appellant.

The People,ex rel. Joseph
Lumber Company, Appellant,
vs. The City of Chicago, et
al., Appellees.

Metropolitan Life Insurance
Company, Appellant, v. The
City of Chicago, Appellee.

William L. Pringle, et al.,
Appellants, vs. The City of
Chicago, Appellee.

Arthur T. Galt, et al., Appel-
lants, vs. The County of Cook,
Appellee.

Robert J. Dunlap, et al.,
Appellants, vs. The City of
WOOdStOCk, et al., Appellees.

The Trust Company of Chicago,
Trustee, et al., Appellees, vs.
City of Chicago, Appellant.

The People,ex rel. The Trust
Company of Chicago, Trustee,
et al., Appellees, vs. The
Village of Skokie, et al.,
Appellants.

Pioneer Trust & Savings Bank,
Trustee, et al., Appellees, vs.
The Village of Oak Park, '
Appellant.

John Downey, et al., Appel—
lants, vs. Charlotte V.
Grimshaw, et al., Appellees.

75

76

*77

78

79

80

81

82

83

84

85

1953

1953

1953

1953

1953

1954

1954

1954

1954

1954

1955

414 Ill.

414 I11.

415 I11.

1 I11.

1 I11.

2 Ill.

3 I11.

3 I11.

3 I11.

4 Ill.

5 Ill.

2d

2d

2d

2d

2d

2d

2d

2d

162

313

488

28

200

350

206

247

531

432

237

Miller Brothers Lumber Com-
pany, Appellant, vs. The City
of Chicago, Appellee.

Ronda Realty Corporation, Appel-
lee, vs. Samuel T. Lawton, et
al., Appellants.

Ray Zilien, et al., Appellees,
vs. The City of Chicago,
Appellant.

Hannifin Corporation, Appellee,
vs. The City of Berwyn,
Appellant.

Midland Electric Coal Corpor-
ation, Appellees, vs. The
County of Knox, et al.,
Appellants.

The People,ex rel. Alco Deree
Co., Appellant, vs. The City
of Chicago, Appellee.

Herzog Building Corporation,
Appellee, vs. The City of Des
Plaines, Appellant.

George Eleopoulos, et al.,
Appellants, vs. The City of
Chicago, Appellee.

Wilma Nichols, et al., Ap-
pellees, vs. The City of
Rock Island, Appellant.

The Northern Trust Company,
Trustee, et al., Appellees,
vs. The City of Chicago,
Appellant.

Tower Cabana Club, Inc., ‘
Appellee, vs. The City of
Chicago, Appellant.

86

87

88

89

90

91

92

93

94

95

96

1954

1955

1955

1955

1955

1955

1955

1956

1956

1956

1956

Ill.

Ill.

I11.

I11.

I11.

I11.

Ill.

Ill.

Ill.

I11.

Ill.

2d

2d

2d

2d

2d

2d

2d

2d

2d

2d

2d

22

49

270

344

419

213

104

155

156

326

238

Catherine Bullock, et al.,
Appellants, vs. City of
Evanston, et al., Appellees.

Harvey Langguth, et al.,
Appellees, vs. The Village of
Mount Prospect, Appellant.

Ntina Petropoulos, Appellant,
vs. The City of Chicago, et
a1. Appellees.

LaSalle National Bank of
Chicago, Trustee, et al.,
Appellees, vs. The City of
Chicago, Appellant.

LaSalle National Bank, Trustee,
Appellee, vs. The City of
Chicago, Appellant.

The Exchange National Bank of
Chicago, Trustees, et al.,
Appellees, vs. The County of
Cook, Appellant.

The First National Bank of
Lake Forest, Trustee, Appellant,
vs. The County of Lake, et al.,
Appellees.

S. H. Krom, et al., Appellees,
vs. The City of Elmhurst,
Appellant.

Mary H. Garner, et al.,
Appellants, vs. The County of
Du Page, et al., Appellees.

James A. Mahoney, et al.,
Appellees, vs. The City of
Chicago, Appellant.

Rams - Head Company, Appellant,
vs. The City of Des Plaines,
Appellee.

97

98

99

100

101

102

103

104

105

106

1956

1956

1956

1956

1956

1956

1956

1956

1957

1957

10

10

10

10

10

Ill.

I11.

Ill.

I11.

I11.

Ill.

Ill.

I11.

I11.

Ill.

2d

2d

2d

2d

2d

2d

2d

2d

2d

2d

448

561

568

577

596

130

132

137

198

582

239

Dr. Robert Reitman, et al.,
Appellees, vs. The Village of
River Forest, et al.,
Appellants.

Harold M. Bohan, et al.,
Appellants, vs. The Village
of Riverside, et al.,
Appellees.

Carl Anderson, et al., Ap-
pellees, vs. The County of
Cook, Appellant.

Clarence Regner, et al.,
Appellants, vs. The County of
McHenry, et al., Appellees.

Stanley J. Williams, et al.,
Appellees, vs. The Village of
Schiller Park, Appellant.

222 East Chestnut Street Cor-
poration, Appellant, vs. The
Board of Appeals of The City
of Chicago, at al., Appellees.

222 East Chestnut Street Cor-
poration, Appellant, vs. The
Board of Appeals of The City
of Chicago, at al., Appellees.

Liberty National Bank of
Chicago, Trustee, et al.,
Appellees, vs. The City of
Chicago, Appellant.

Lillian V. Foz, et al.,
Appellees, vs. The City of
Springfield, et al.,
Appellants.

Helen Kaczorowski, et al.,
Appellants, vs. Elmhurst
Chicago Stone Company, et al.,
Appellees.

240

107 D 1957 10 Ill. 2d 596 John A. Bolger, et al.,
' Appellees, vs. The Village of
Mount Prospect, Appellant.

108 G 1957 10 Ill. 2d 604 Ethel wehrmeister, Appellee,
vs. The County of Du Page,
Appellant.

*109 G 1957 12 Ill. 2d 40 LaSalle National Bank of
Chicago, Appellee, vs. The
County of Cook, Appellant.

110 D 1957 12 Ill. 2d 284 George G. Gordon, et al.,
Appellees, vs. The City of
Wheaton, Appellant.

*111 D 1958 12 Ill. 2d 537 Thomas O. Myers, et al.,
Appellees, vs. The City of
Elmhurst, Appellant.

112 E 1958 13 Ill. 2d 169 Otto A. Bauske, et al.,
Appellees, vs. The City of
Des Plaines, Appellant.

113 D 1958 13 Ill. 2d 329 Dr. Edward J. Skrysak,
Appellee, vs. The Village
of Mount Prospect, Appellant.

114 J 1958 13 Ill. 2d 562 Alvina W. Eckhardt, Appellee,
vs. The City of Des Plaines,
Appellant.

*115 K 1958 14 Ill. 2d 623 The City of Loves Park, et al.,
Appellees, vs. WOodward
Governor Company, Appellant.

116 D 1958 15 Ill. 2d 26 First National Bank and
Trust Company of Evanston,
Appellee, vs. The County of
Cook, Appellant.

117 A 1958 15 Ill. 2d 408 Fifteen Fifty Nerth State
Building Corporation, Appellee,
vs. The City of Chicago, et a1.—
(Cosmopolitan National Bank of
Chicago, Trustee, Appellant).

118

119

120

120a

120b

121

*122

123

124

125

1959

1959

1959

1959

1959

1949

1953

1955

1957

1958

16 Ill. 2d
16 Ill. 2d
16 Ill. 2d
17 Ill. 2d
18 Ill. 2d
337 Ill.
App. 157
350 Ill.
App. 343

8 Ill.
App. 2d 37
12 Ill.

App. 2d 365

16 111.
App. 2d 555

72

183

589

342

233

241

The County of Cook, Appellant,
Vs. Glasstex Company, Appellees.

The People,ex rel. Skokie Town
House Builders, Inc., Appellee,
vs. The Village of Morton
Grove, et al., Appellants.

Drovers Trust & Savings Bank,
Trustee, Appellee, vs. the
City of Chicago, Appellant.

Leonard Dalkoff et al., Appel—
lees, vs. The City of Rock
Island, Appellant.

Joseph J. Kovack,et al., vs.
The Village of LaGrange Park,
Appellant; --(Mary D. Kovack,
Appellee).

Bertha D. Baur, et al., Appel-
lees, v. The Ray Schools-
Chicago, Inc., Appellant.

Wacker—Wabash Corporation, et
al., Plaintiff - Appellant, V.
City of Chicago, Defendant —
Appellee.

Margaret Mary Ward and Wilmer
W. Foster, Appellees, V. Vil-
lage of Elmwood Park, Appellants.

John W. Hibser and Frances F.
Hibser, Plaintiffs - Appellants,
V. Zoning Board of Appeals of
Peoria County, Illinois, et al.,
Defendants - Appellees.

Phillips Petroleum Company,
Appellant, v. City of Park
Ridge, a municipal corporation,
James L. Galloway, et al.,
Appellees.

126 A
MICHIGAN
127 B
*128 A
*129 L
130 A
*131 L
132 E
133 D
134 D
*135 B
136 A
*137 E
138 D
*139 L
140 A
141 D
142 D

1959

1943

1944

1946

1947

1947

1949

1950

1951

1953

1953

1953

1954

1954

1955

1955

1956

23 111.
App. 2d 183
307 Mich. 219
309 Mich. 179
314 Mich. 326
317 Mich. 359
319 Mich. 372
326 Mich. 387
329 Mich. 146
330 Mich. 338
336 Mich. 261
337 Mich. 326
337 Mich. 549
340 Mich. 355
341 Mich. 84
342 Mich. 436
343 Mich. 413
344 Mich. 701

242

Samuel Papanek, Jr., et al.,
Appellees, v. John Rayniak, et
al., Appellants.

Spence V. Kuznia.

Pringle V. Shevnock.

Rohan V. Detroit Racing
Association.

Elizabeth Lake Estates V.
Township of Waterford.

Village of St. Clair Shores
v. Village of Grosse Pointe
WOOdS.

Grand Trunk western Railroad
Company v. City of Detroit.

Long v. City of Highland Park.
Rockenbach V. Apostle.
Janigan V. City of Dearborn.

Tel-Craft Civic Association v.
City of Detroit.

Janesick v. City of Detroit.
Penning V. Owens.

Plum Hollow Golf and Country
Club v. Township of Southfield.
Gust V. Township of Canton.

McGiverin v.
ton Woods.

City of Hunting-

Bassey V. Huntington woods.

143

*144

145

*146

147

148

149

*150

151

152

153

154

155

156

157

158

158a

1956

1956

1957

1957

1957

1957

1957

1957

1957

1957

1957

1957

1958

1958

1959

1959

1959

346 Mich. 667

347 Mich. 548

79 N.W. 2d 863

348 Mich. 153

348

348

348

349

349

349

350

350

350

351

351

355

357

358

Mich.

Mich.

Mich.

Mich.

Mich.

Mich.

Mich.

Mich.

Mich.

Mich.

Mich.

Mich.

Mich.

Mich.

184

193

311

296

650

693

187

425

489

435

550

252

459

136

243
Industrial Land Company, v.
City of Birmingham.

White v. Township of Southfield.

South Central Improvement
Association v. City of St.
Clair Shores.

Kurpinski v. Brownstown Town-
ship Board.

Korby v. Township of Redford.
McHugh v. City of Dearborn.

Township of Bloomfield v.
Beardslee.

Highland Oil Corporation v.
City of Lathrup Village.

Frendo v. Township of South-
field. Perry v. Same.

Scholnick v. City of Bloom—
field Hills.

City of
Robinson V.

Brae Burn, Inc., v.
Bloomfield Hills.
Same.

Bzovi V. City of Livonia.

Certain-teed Products Cor-
poration v. Paris Township.

Dipboye v. Acchione.
Spanich v. City of Livonia.
McClain v. City of Hazel Park.

Lamb v. City of Monroe.

NEW JERSEY

159 D 1944
*160 L 1945
161 D 1945
162 B 1945
163 G 1946
164 E 1946

132 N.J.L.
145

132 N.J.L.
370

133 N.J.L.
194

133 N.J.L.
485

133 N.J.L.
518

133 N.J.L.
544

244

L. Elizabeth P. Griggs,
Samuel Cohen, Edward H.
Saltzman and Frances B.
Saltzman, his wife, William
I. Lewis and Philip J.
Rappaport, Prosecutors, V.
The City of Paterson, a
Municipal Corporation, The
Board of Adjustments of the
City of Paterson, The Board
of Public works of the City
of Paterson and John H. Stead,
Agent for Donald Gerguson,
Defendants.

Yara Engineering Corporation,
a New Jersey Corporation,
Prosecutor, v. City of Newark,
et al., Defendants.

Romana Ingannamort, Prose—
cutor, v. Borough of Fair
Lawn, a Municipal Corporation,
etc., Defendants.

Pioget—Del Corporation,
Realtor, V. Jacob Kulik,
Building Inspector of the
City of Clifton, and City of
Clifton, Respondents.

R. wesley Grant, Petitioner,
V. Board of Adjustment of the
Borough of Haddon Heights and
Borough of Hadden Heights,
Respondents.

Fannie weininger and Jacob
Bass, Prosecutors, v. Borough
of Metuchen in the County of
Middlesex, and Howard Krough,
Building Inspector of said

164
cont.
165 B
*166 L
*167 A
168 A
169 D
*170 I

1946

1947

1947

1947

1948

1948

134 N.J.L.
473
135 N.J.L.
599
136 .J.
311
136 .J.
330
137 .J.
39
137 .J.
110

245

Borough, and Holger G. Holm,
Recorder of said Borough,
Defendants.

John A. Schaible, Jr., and

Anna V. Schaible, Prosecutors,
V. Board of Adjustment of the
Township of Millburn, Albert

F. Doly, Building Inspector of
the Township of Millburn, and
Township Committee of the Town—
ship of Millburn in the County
of Essex, Defendants.

Emily L. Yoemans, Kenneth B.
Dates and Edson W. Beatty,
Prosecutors, v. The Township

of Hillsborough in the County

of Somerset, The Township Com-
mittee of the Township of Hills-
borough, Frederick Kaiser, et
ux., et al., Defendants.

Ridgefield Terrace Realty Com—
pany, a Corporation, and George
Gooss, Prosecutors, v. Borough
of Ridgefield, a Municipal Cor-
poration of the County of
Bergen and the State of New
Jersey, Defendant.

The De Mott Homes at Salem,
Inc., Prosecutors, v. City of
Margate City, et al.,
Respondents.

Harry Krilov, Prosecutor, V.
The Board of Adjustment of the
City of Newark, Defendant.

William Lehrer, Prosecutor, v.
Board of Adjustment of the
City of Newark, New Jersey,
Respondent.

246

*171 G 1948 137 N.J.L. Tulsa Oil Company, a Corpor—
388 ation of the State of New

Jersey, Prosecutor, V. Florence
E. Morey, Clerk of the Town of
Belleville, James J. Tully,
William H. Williams, Patrick A.
Waters, Joseph King, Lewis Noll,
Constituting the Board of Com—
missioners of the Town of
Belleville, Campbell McCall,
Building Inspector of the Town
of Belleville, and William J.
Friel, Head of the License
Bureau of the Town of Belleville,
Respondents.

172 A 1948 137 N.J.L. Spring Brook Gardens, Inc., a
398 New Jersey Corporation, Prose—
cutor, v. Board of Adjustment
of the Township of Springfield,
and the Township of Springfield
in the County of Union,

Defendants.
173 D 1948 137 N.J.L. Edward W. Siegel and Oscar L.
423 Cohen, Partners Trading as

Commercial Overall Cleaning
Company, Prosecutors, v. Board
of Adjustment of the City of
Newark, Defendant.

174 D 1948 137 N.J.L. Harry Ramsbotham, et al.,
559 Prosecutors, v. The Board of
Public werks of the City of
Paterson, et al., Defendants.

175 F 1949 l N.J. 509 Duffcon Concrete Products,
Inc., a Corporation, Prose-
cutor-Respondent, V. The
Borough of Cresskill,
Defendant-Appellant.

176

177

178

179

*180

G

1950

1952

1952

1952

1952

4 N.J.

9 N.J.

9 N.J.

9 N.J.

9 N.J.

577

64

182

424

548

247

James H. Lumund, Plaintiff-
Appellant, V. Board of Adjust-
ment of the Borough of
Rutherford, and Clarence
Harden, Building Inspector of
the Borough of Rutherford,
Defendants-Respondents.

Monmouth Lumber Company, a Body
Corporate of the State of New
Jersey, Plaintiff-Appellant, V.
Township of Ocean, a Municipal
Corporation of the State of

New Jersey, and Benjamin Harvey,
Building Inspector of the Town-
ship of Ocean, Defendants-
Respondents.

Scarborough Apartments, Inc.,
a New Jersey Corporation, and
Other New Jersey Corporations,
Plaintiffs, and Others as
Plaintiffs-Respondents, v. The
City of Englewood, a Municipal
Corporation, Defendant-
Appellant.

Delawanna Iron and Metal Com—
pany, Plaintiff-Appellant.

V. Walter E. Albrecht, Building
Inspector and Zoning Officer

of the City of Clifton, and
Municipal Council of the City
of Clifton, Defendants-
Respondents.

Edward M. Pyatt, Charles W.
Smith, Stephen J. Brishey, and
Others Plaintiffs-Appellants,
v. Mayor and Council of the
Borough of Dunellen in the
County of Middlesex, and Art
Color Printing Company, a
Corporation of the State of New
York, Authorized to Transact
Business in this State, Defen-
dants-Respondents.

181

182

183

184

1855

*186

A

D

1952

1952

1952

1953

1954

1954

10 N.J.

11 N.J.

11 N.J. 194

11 N.J.

14 N.J.

15 N.J.

165

117

341

529

238

248

Lionshead Lake, Inc., Plaintiff-
Respondent, V. Township of
Wayne, Defendant—Appellant.

George B. Ward, Plaintiff—
Appellant, V. Donald H. Scott,
Mayor, et al., Constituting

the Town Council of the Town

of Bloomfield, a Municipal Cor—
poration of the State of New
Jersey; and Others, Defendants—
Respondents.

Herman W. Fischer, Plaintiff-
Appellant, v. Township of
Bedminister, in the County of
Somerset and State of New
Jersey, a Municipal Corpora—
tion, Defendant—Respondent.

Samuel Yanow, Reshela Yanow,

H. D. Myrtle, G. E. Myrtle,

A. T. Horowitz, R. S. Horowitz,
Plaintiffs, v. Seven Oaks Park,
Inc., a New Jersey Corporation,
Max Masin, and Others, Defen-
dants, and Eastern Christian
Institute, a New Jersey Cor-
poration, Intervening—Defendant
Respondent, City of Orange,
Cross-Claimant-Appellant.

Robert W. Beirn and Mary Beirn,
His Wife, Plaintiffs—Appellants,
v. August N. Morris, Building
Inspector of the Township of
Piscataway (and Others),
Defendants—Respondents.

Borough of Cresskill, et al.,
Plaintiffs—Respondents, v.
Borough of Dumont, Defendant—
Appellant.

187

*188

.189

190

191

192

D

L

1954

1954

1956

1956

1956

1956

16 N.J.

16 N.J.

21 N.J.

21 N.J.

21 N.J.

21 N.J.

16

150

180

199

226

400

249

George B. Ward, Plaintiff-
Appellant, v. Donald H. Scott,
Mayor, et al., Constituting
the Town Council of the Town
of Bloomfield, Others.

Camden Plaza Parking,Inc., a
New Jersey Corporation,
Plaintiff—Appellant, V. City
of Camden, a Municipal Cor-
poration of the State of New
Jersey, Defendant-Respondent.
William H. Heiser and Mary C.
Heiser, Plaintiffs-Appellants,
v. City of Camden; Nedman
Associates, Inc., a Corporation;
and Camden Plaza Parking, Inc.,
a New Jersey Corporation,
Defendants—Respondents.

Max Raskin, Ruth R. Raskin,
and Others, Plaintiffs-Appel-
lants, v. Town of Morristown,
and Others, Defendants-
Respondents.

Daniel J. Moriarty, et al.,
Plaintiff-Appellants, v. Jack
Pozner, Board of Adjustment
of the Township of North Ber-
gen and Others, Defendants-
Respondents.

John E. Tomko, et al., Plain-
tiffs-Appellants, v. William
Vissers, Mayor, et al.,
Defendants-Respondents.

Pietro Roselle, Veronica
Roselle, and Others, Plaintiffs-
Respondents, v. Thomas Wright,
Jr., Building Inspector of the
Township of Livingston,
Defendant-Appellant.

193

194

195

196

197

198

.299

1957

1957

1958

1958

1959

1959

1959

24

25

26

29

29

29

30

N.J.

N.J.

154

57

320

256

481

599

273

250

Kozesnik, v. Montgomery Twp.
Howard D. Bogert, John J.
Bogert and M. Catherine

Dwyer, Plaintiffs—Appellants,
V. The Township of Washington,
a Municipal Corporation
Exercising its Faculties in
the County of Bergen and State
of New Jersey, Pursuant to the
Authority of that State,
Defendant-Respondent.

Salvatore J. Fanale and Mary

K. Fanale, His Wife, Plaintiffs—
Respondents, v. Borough of
Hasbrouck Heights, a Municipal
Corporation, Defendant—
Appellant.

Elise L. Grundlehner, et al.,
Plaintiffs-Respondents, v. J.
Henry Dangler, et al.,
Defendants—Appellants.

Laura Napierkowski, Plaintiff—
Respondent, v. Township of
Gloucester, Defendant-Appellant.

Hugo Zampieri, et al., Plain-
tiffs-Respondents, v. Township
of River Vale, Defendant-
Appellant.

Allendale Congregation of
Jehovah's Witnesses, Plaintiff—
Appellant, v. Edwin W. Grosman,
Borough of Allendale Board of
Adjustment and Borough of
Allendale, Defendants-
Respondents.

200

201

202

203

204

205

1948

1948

1949

1949

1949

1949

l N.J.
Super.

1 N.J.
Super.

1 N.J.
Super.

2 N.J.
Super.

2 N.J.
Super.

4 N.J.
Super.

638

590

605

422

251

Wanda Martha Roberts, Plain-
tiff-Appellant, V. Board of
Adjustment of the Borough of
Fort Lee and the Borough of
Fort Lee, Bergen County, New
Jersey, Defendants-Respondents.

Edward J. Ackerman and Jeane

G. Ackerman, Plaintiff-
Appellants, V. Board of Com—
missioners of the Town of
Belleville, et al., Defendants-
Respondents.

Arthur J. O'Connor and Joseph
Calo, Plaintiffs, vs. Mayor
and Council of the Borough of
North Arlington, and Cordon
Motors, Inc., a Corporation of
the State of New Jersey,
Defendants.

Kerrigan Development Co., a
Corporation of the State of
New Jersey, Plaintiff, v. City
of Newark, et al., Defendants.

William A. Anderson and Marjorie
E. Anderson, His Wife, et al.,
Plaintiffs, v. The Mayor and
Council of the Town of Bloom—
field, et al., Defendants.

J. Russell Lacey and Perry
Albert M.D., Plaintiffs-
Respondents, v. Zoning Board

of Adjustment of the Township
of Hamilton in the County of
Mercer, Simon Rednor and Joseph
Rainear, Samuel Bombara and
Fred Bombara, Defendants-
Appellants.

206

207

208

209

210

211

212

1949

1949

1950

1950

1951

1951

1952

6 N.J.
Super. 474
6 N.J.
Super. 495
8 N.J.
Super. 310
8 N.J.
Super. 468
13 N.J.
Super. 490
16 N.J.
Super. 365
18 N.J.
Super. 36

James H. Lumund, Plaintiff.,
v. Board of Adjustment of the
Borough of Rutherford, and
Clarence Hardin, Building
Inspector of the Borough of
Rugherford, Defendants.

The N. T. Hegeman Co., a
Corporation of the State of
New York, Plaintiff, v.

Mayor and Council of the
Borough of River Edge, a
Municipal Corporation of the
State of New Jersey, Defendant.

Nathan N. Hendlin and Annette
Hendlin, et al., Plaintiffs, V.
Fairmount Construction Company,
a Corporation, and the City of
Newark, a Municipal Corporation,
et al., Defendants.

Lionshead Lake, Incorporated,

a New Jersey Corporation,
Plaintiff, v. Township of
Wayne, a Municipal Corporation
of the County of Passaic and
State of New Jersey, Defendant.

Lionshead Lake, Incorporated,
v. Township of Wayne.

Charles J. Shipman, 2nd,
Plaintiff—Appellant, v. Town

of Montclair, Board of Adjust-
ment of the Town of Montclair,
and William F. Karl, Defendants—
Respondents.

George B. Ward, Plaintiff, v.
Donald H. Scott, Mayor, et al.,
Constituting the Town Council
of the Town of Bloomfield, a
Municipal Corporation of the
State of New Jersey; Howard

212
cont.

213

214

215

216

217

1952

1952

1952

1952

1953

21 N.J.
Super. 81

22 N.J.
Super. 161

22 N.J.
Super. 188

22 N.J.
Super. 204

28 N.J.
Super. 26

Weikel, et al., Constituting
the Board of Adjustment (Zon—
ing) of the Town of Bloomfield;
Brooks C. Martin, Building
Inspector of the Town of Bloom-
field; and Ligham Construction
Company, a Corporation of the
State of New Jersey, Defendants.

Herman W. Fischer, Plaintiff,
v. Township of Bedminster, in
the County of Somerset and
State of New Jersey, a Muni-
cipal Corporation, Defendant.

Fred E. Preye, et al., Plain-
tiffs-Respondents, v. Board of
Adjustment of the Township of
North Bergen, Defendant and
Edward Motors, Inc., a corpor-
ation of New Jersey, Defendant-
Appellant.

Borough of west Caldwell by
Stephen Simony, Building In—
spector, Plaintiff, v. Morris
Zell and Ralph Rinehardt,
Defendants.

William C. Closterman, et al.,
Plaintiffs—Appellants, v.
Township of Cranford, a Muni—
cipal Corporation, at al.,
Defendants-Respondents, and
the H. A. Wilson Company, a
Corporation, Defendant.

Borough of Cresskill, a Muni—
cipal Corporation of the State
of New Jersey, et al., Plain-
tiffs, v. Borough of Dumont, a
Municipal Corporation of the
State of New Jersey, Defendant.

*218

219

220

221

*222

1954

1954

1954

1954

1955

29 N.J.
Super. 514

32 N.J.
Super. 397

33 N.J.
Super. 115

33 N.J.
Super. 205

35 N.J.
Super. 94

254

City of Trenton, Plaintiff-
Respondents, v. Lenzner,
Defendant-Appellants.

Walter H. Jones and Alice
Henshaw Jones, Plaintiffs-
Appellants, v. The Zoning
Board of Adjustment of the
Township of Long Beach, The
Board of Commissioners of
the Township of Long Beach,
Julis Edna Frazier, Claude
W. Taylor, Edna M. Taylor,
S. Robert Laslocky, Amelia
A. Laslocky, Defendants-
Respondents.

Arthur E. Sieber, Darwin A.
Sieber, and Others, Plaintiffs,
v. Harold W. Laawe, Stanley 0.
Styles, and Others, and the
Township Committee of the
Township of Wayne, Defendants.

Philip Mistretta, Plaintiff,
v. The City of Newark, New
Jersey, and Board of Adjust-
ment of the City of Newark,
New Jersey, and the Berkely
Savings and Loan Association,
of Newark, New Jersey, a Cor-
poration of New Jersey,
Defendants.

Marie's Launderette, Inc., a
Corporation of the State of
New Jersey, et al., Plain-
tiffs-Appellants, V. City of
Newark, a Municipal Corpora—
tion of the State of New
Jersey, et al., Defendants-
Respondents.

255

Agnes Skaf, Plaintiff-Appel-
lant, v. Zoning Board of
Adjustment of the City of
Asbury Park, a Municipal Body,
City of Asbury Park, a Muni-
cipal Corporation, and the
Women's Club of Asbury Park,
an Eleemosynary Corporation,
Defendants-Appellees.

David V. Izenberg, Leon,
Lanson, and Harry S. LaPoff,
and David Wajdengart, Plain—
tiffs-Appellants, v. The

Board of Adjustment of the
City of Paterson, The Board of
Public works, and Mayfair
Realty Co., Inc., Defendants—
Respondents.

Daniel J. Moriarty, Morris E.
Schwartz and Morton Goldstein,
Plaintiffs-Appellants, v. Jack
Pozner, Sam Pozner, Board of
Adjustment of the Township of
North Bergen and the Township
Commission of the Township of
North Bergen, Defendants-
Respondents.

Julis Gross, Arthur Gross and
Moe Gross, Plaintiffs—Appel-
lants, v. Donald Allan, Town
Clerk of the Town of Kearny,
Charles F. Warren, Building
Inspector, and Others,
Defendants—Respondents.

Roselle, Plaintiff, v. Wright,
Defendants.

Rockaway Estates, Inc., a New
Jersey Corporation, Plaintiff—
Appellant, v. Rockaway Town-
ship, a Municipal Corporation,
Defendant-Respondent.

229

230

231

232

233

K

1956

1956

1956

1956

1956

39 N.J.
Super. 452

40 N.J.
Super. 206

40 N.J.
Super. 276

41 N.J.
Super. 47

41 N.J.
Super. 74

256

Joseph Cummins and Baltimore
Holding Company, a New Jersey
Corporation, Plaintiffs-
Respondents, v. Board of
Adjustment of the Borough of
Leonia, County of Bergen and
State of New Jersey, Defendant—
Appellant.

Havelock I. James and Dorothy
James, Francesco F. Fonseca
and Rugh J. Fonseca, Edna B.
Post, Robert Kerr and Dorothy
Kerr and Others, Plaintiffs,
v. Board of Adjustment of the
Town of Montclair, The Inspec—
tor of Buildings of the Town
of Montclair, The Montclair
Art Association, Inc.,
Defendants.

Arthur Hochberg, Hanna Hoch-
berg, Carl J. Steinmetz, Anna
Steinmetz, Lee Isaacson,
Harold Hirsh, Ruth Hirsh, and
Others, Plaintiffs-Appellants,
v. Borough of Freehold, a
Municipal Corporation, Free-
hold Racing Association, a
Body Corporate, Abraham
Zlotkin and Walter J. Schiverea,
Defendants-Respondents.

Edmund B. Clary, Plaintiff-
Appellant, v. The Borough of
Eatontown, a Municipal Corpor—
ation of the State of New
Jersey, Defendants—Respondent.

The Van Corporation and Still-
man & Hoag, Inc., Corporation

of the State of New Jersey,
Plaintiffs-Respondents, v. The
Mayor and Council of the Borough
of Ridgefield, a Municipal

233
cont.

234

235

236

237

238

D

1957

1957

1957

1958

1958

45 N.J.
Super. 1

45 N.J.
Super. 574

47 N.J.
Super. 306

51 N.J.
Super. 589

53 N.J.
Super. 252

257

Corporation of the State of
New Jersey, The Board of
Adjustment of the Borough of
Ridgefield, and James Lauria,
Building Inspector, Defen-
dants—Appellants.

Thomas A. Gartland, et al.,
Plaintiffs—Appellants, v.
Borough of Maywood, a Muni-
cipal Corporation of the

State of New Jersey, Defendant-
Respondent, and Bergen Mall

and May-Par Garden Center, In-
tervening Defendants-Respondents.

Marion E. Grimley, et als.,
Plaintiffs-Appellants, V.
Village of Ridgewood, et als.,
Defendants-Respondents.

Newark Milk and Cream Company
of Newark, New Jersey, a
Corporation of the State of
New Jersey, Plaintiff, V.
Township of Parsippany-Troy
Hills, a Municipal Corporation
of the State of New Jersey;
etc.

The Saddle River Country Day
School and Chestnut Ridge
Land Co., Inc., Plaintiffs-
Appellants, V. The Borough of
Saddle River, Defendant-
Respondents.

Rain or Shine Box Lunch Co.,

a Corporation of New Jersey,
Plaintiff-Respondent, v.

Board of Adjustment of the
City of Newark and Nerman J.
Muller, Defendants-Appellants.

239 J

240 D

241 H

242 B

NEW YORK
243 D
*244 A

245 J

1959

1959

1959

1959

1954

1954

1956

54 N.J.
Super. 483

56 N.J.
Super. 135

56 N.J.

Super. 310

57 N.J.

Super. 142

307 N.Y. 493

308 N.Y. 736

1 N.Y.
2d 455

Harvey Tullo and Irmgard
Tullo, His Wife, and Others,
Plaintiffs-Appellants, v.
The Township of Millburn in
the County of Essex, a Muni-
cipal Corporation of New Jer—
sey, Board of Adjustment of
the Township of Millburn and
Short Hills Club, a Corpora-
tion of New Jersey, Defen-
dants-Respondents.

Borough of Leonia, Plaintiff—
Appellant, v. Borough of Fort
Lee, Defentant-Respondent,

and Mae Blauvelt, Emma Merkle,
Fortunato DiBartolo, Vincent
DiBartolo and Rose DiBartolo,
Intervenors-Respondents.

Socony Mobil Oil Co., Inc.,

a Corporation of the State of
New York, Plaintiff, v. Town-
ship of Ocean, Defendant.

Ridgeview Co., a Corporation
of the State of New Jersey,
Plaintiff, v. Board of Adjust—
ment of the Borough of Flor-
ham Park, et al., Defendants.

Vernon Park Realty, Inc.,
Respondent, v. City of Mount
Vernon, Appellant.

Leo Greenberg, et al., Appel-
lants, v. City of New Rochelle,
et al., Respondents.

In the Matter of the Community
Sypagggue, Appellant, against

Chester E. Bates, et al., Con—
stituting the Board of Appeals

 

245
cont.

*246

247

*248

249

250

1956

1956

1956

1951

1953

1 N.Y.
2d 508

l N.Y.
2d 798

1 N.Y.
2d 839

279 App.
Div. 762

281 App.
Div. 214

259

of the Incorporated Village of
Sands Point, Respondents, and
the Incorporated Village of
Sands Point, Intervenor-

 

 

Respondent.

In the Matter of the Diocese
of Rochester, et al., Appel-

 

ants, against Planninngoard
of Town of Brighton, et al.,
Respondents and John C.
Romano, et al., Intervenors-
Respondents.

 

In the Matter of Rae A. Oleet,
Respondent, against Elmer

 

Hildreth, et al., as Members

of the Common Council of the
City of Mount Vernon, Appellant.

In the Matter of the Village of

 

Bronxville, et al., Appellants,

 

against Clarence Francis, et
al., Constituting the Board of
Appeals of the Village of
Bronxville, Respondents, and
Pondfield Road Company, Inc.,

 

 

et al., Intervenors-Respondents.

The People of the State of New
York, ex rel., Ralph L.
Polcini, Petitioner, against
Lawrence S. Scofield, et al.,
Constituting the Zoning Board
of Appeals of the Village of
Larchmont, et al., Respondents.

In the Matter of Adelaide M.
Delpriore, Appellate, against
Richard Ball, et al., Con-
stituting the Zoning Board of
Appeals of the Town of Amherst,
County of Erie, Respondents.

*251

252

253

254

*255

1954

1955

1957

1959

1959

283 App.
Div. 282

286 App.
Div. 886

3 A.D.
2d 644

7 A.D.
2d 193

7 A.D.
2d 575

260

James C. Corbett, Respondent,
against Zoning Board of
Appeals of the City of
Rochester, et al., Appellants,
and Mrs. Thomas Chambery, et
al., Intervenors, Respondents.

Rae A. Oleet, Appellant-
Respondent, against Elmer
Hildreth, et al., as Members
of the Common Council of the
City of Mount Vernon,
Respondents—Appellants.

In the Matter of Great Neck
Community School, Appellant,
against James K. Dick, as
Building Inspector of the
Incorporated Village of
Thomaston, Nassau County,
Respondent.

In the Matter of Rose Rosen-
bloom, Appellant, against
Harry B. Crowley, et al.,
Constituting the Board of
Appeals of the Incorporated
City of Rochester, Respon—
dents, and Lincoln Rochepter
Trust Company, et al.,
Intervenors—Respondents.

In the Matter of C. Paul

Russo, as Member of the Lay

Committee of the Immaculate
Conception Church, et al.,
Respondents, against William
T. Stevens, et al., Consti—
tuting the Board of Zoning
Appeals of the City of Ithaca,
et al., Appellants.

 

PENNSYLVANIA
*256 L 1948
257 G 1948
258 A 1950
259 A 1952
260 K 1952
*261 L 1953
262 D 1954
263 D 1955
264 D 1956
265 B 1956
266 B 1956
*267 D 1956
*268 B 1957
269 J 1957
270 A 1957
271 B 1957
272 F 1958
273 A 1958

359

359

364

369

371

374

376

382

384

384

384

385

388

389

389

390

391

392

Pa.

Pa.

Pa.

Pa.

Pa.

Pa.

Pa.

Pa.

Pa.

Pa.

Pa.

Pa.

Pa.

Pa.

Pa.

Pa.

Pa.

Pa.

264

326

578

317

251

450

175

401

100

288

294

328

98

35

295

206

111

188

261

McSorley v. Fitzgerald et a1.

Bortz et al., Appellants, v.
Troth et a1.
Gratton et al., Appellants,

v. Conte et a1.
Borden Appeal.
McShain.

Katzin, Appellant, v.

Rolling Green Gold Club Case.

Pincus, Appellant, v. Power.
Michener Appeal.

Pierce Appeal.

Food Corporation, V. Zoning

Board of Adjustment (et al.,
Appellant).

Novello, Appellant,v. Zoning

Board of Adjustment.

Garbev Zoning Case.

Garner v. Zoning Board of
Adjustment (et al., Appellant).

Archbishop O'Hara's Appeal.

Schmalz et ux., Appellants,
V. Buckingham Township Zoning
Board of Adjustment.

Sears, Roebuck & Company,
Appellant, v. Power.

South Philadelphia Dressed
Beef Company, Appellant, v.
Zoning Board of Adjustment.

Edwards Zoning Case.

274

275

276

277

278

279

280

281

*282

*283

284

285

286

287

288

1958

1958

1958

1959

1959

1959

1954

1955

1957

1948

1949

1950

1951

1952

1953

392 Pa. 278
393 Pa. 10

393 Pa. 62

395 Pa. 118
395 Pa. 122
395 Pa. 338
176 Pa. Su-

perior Ct.463

180 Pa. Sue
perior Ct.105

183 Pa. Su-
perior Ct.219

67 D.&:C; 591

72

75

83

86

D.& C. 251
D.& C. 168
D. & C. 504
D. & C. 69
D.& C. 408

262

Nicholson, Appellant, V.
Zoning Board of Adjustment.

Scranton Board of Zoning
Appeals, Appellant, v. Silas.

Bilbar Construction Company,
Appellant, V. Easttown Town-
ship Board of Adjustment.

English, Appellant, v.
Zoning Board of Adjustment.

Kotzin V. Plymouth Township
Zoning Board of Adjustment
(et al., Appellants).

Fifty-fourth Street Center,
Inc., Appellant, V. Zoning
Board of Adjustment.

Putney, Appellant, v. Abing-

ton Township.

Schaub Appeal

Jehovah's Witnesses Appeal.

Tornetta V.
Whitemarsh.

Township of

Pontzer V.
Marys.

Borough of St.

Stark et al., Appeal.

Kellman v. Philadelphia
Zoning Board of Adjustment.

Reed V.
Wales.

Borough of North

Kelly et al., V.
et al.

Philadelphia

289

290

291

292

293

294

*295

296

297

298

299

300

1954

1954

1954

1954

1955

1955

1955

1956

1957

1957

1957

1957

88 D.&

88 D.&

2 D. &
2d 45

2 D. &
2d 468

5 D. &

2d 8

6 D. &
2d 289

6 D. &
2d 337

6 D. &
2d 688

12 D. & C.

2d 696

13 D. & C.
2d 43

13 D. & C.
2d 203

13 D. & C.
2d 697

265

538

Hinton v. Zoning Board of
Adjustment (No. 2).

Silver et ux., V. Board of
Appeals, etc.

Fleishon V. Zoning Board of
Adjustment et al.

Liddell et al., v. Swarth—
more Swim Clib et a1.

Steppler et al., V. Board of
Adjustment of Radnor Township.

Seeney v. Dintenfass, Inc.

Fleishon v. Zoning Board of
Adjustment.(N0te: This deci—
sion was affirmed in the
Supreme Court, 385 Pa. 295,
but was not included in the
list because traffic did not
enter into the decision.)

The First Pennsylvania Banking
and Trust Company, v. Zoning
Board of Adjustment.

Prince Realty Corp. V. Zoning
Board of Adjustment.

Seitchik V. Zoning Board of
Adjustment.

Gibson v. Zoning Board of
Adjustment. (Note: Degree Nisi

 

13 D. & C. 2d 209.)

Esso Standard Oil Co. V.
Cheltenham Township Zoning
Board of Adjustment.

2' 54

301 D 1958 16 D. & C. Udylite Corp. v. Philadelphia
2d 346 Zoning Board of Adjustment.

302 E 1958 16 D. & C. M. & M. Stone Co. V. Zoning
2d 584 Board of Adjustment of Lower

Salford Township.

303 C 1957 17 D. & C. Schugar Appeal.
2d 57

304 D 1959 18 D. & C. Stofflet & Tillotson
2d 104 Application.

304A E 1959 20 D. & C. Theresa Friedman & Sons, Inc.,
2d 149 v. Zoning Board of Adjustment.

(Note: The 1959 cases as
reported in the D. & C. 2d
Series will not be completed
as the reporting of cases for
certain years continued for
up to three years after the
case was decided.)

FLORIDA
*305 A 1954 Fla., 71 City of Miami Beach V.
So. 2d 148 Lachman et a1.

MARYLAND

*306 G 1954 204 Md. 32 American Oil Co., v. Miller‘
et al.

*307 D 1954 205 Md. 489 Temmink et al., V. Board of
Zoning Appeals for Baltimore
County et al.

*308 E 1955 207 Md. 389 Board of Zoning Appeals of

Howard County et al., v.
Meyer et ux.

26E

OKLAHOMA
*309 F 1955 Okl., 285 P. W. E. Fletcher, Plaintiff
2d 183 in Error, V. Board of County

Commissioners of Oklahoma
County, State of Oklahoma,
Defendent in Error.

TEXAS

*310 A 1953 263 S. W. Clesi et al.,v. Nerthwest

2d 820 Dallas Imp. Ass'n.et a1.

266

APPENDIX III

LISTING AND BRIEF DESCRIPTION OF CASES

IN THE "L'I CLASSIFICATION

 

 

State

Case
no.

Date

Brief Description

 

Illinois

Michigan

Michigan

Michigan

(122)

(129)

(131)

(139)

1948

1946

1947

1954

This case concerned condemnation pro-
ceedings for street construction.

This case dealt with the operating

and maintenance of a race track and
horse barns. Plaintiffs sought to
enjoin said race track and horse barns
and to have a Public Act declared
unconstitutional.

This case concerned the establishment
of a bathing beach by one municipality
on property purchased by them within
the confines of another municipality.
Plaintiff village sought a decree to
restrain the defendant Village from
establishing and operating a public

or municipal park and bathing beach
within its confines.

This case concerned the desire of a
golf club to reclaim some of its lands
by filling with rubbish. Land in
question was in a residential zone.
The rubbish was to be hauled from
Detroit. Plaintiff golf club sought
an application to allow the fill. The
permit was refused by the Township
Board. .The Zoning Board of Appeals
upheld action by the Township Board.

New
Jersey

New
Jersey

New
Jersey

New
Jersey

New
Jersey

(160)

(166)

(180)

(188)

(218)

1945

1947

1952

1954

1954

267

This case concerned the legality of an
"Airport Zoning Ordinance." Owner of
vacant land within the airport area

challenged the legality of this ordinance.

This case concerned proposed airport
development. Owners attack the legality
of the zoning ordinance of the munici-
pality. The residential and agricul-
ture zone expressly prohibited airports.

The case here dealt with the vacating
of one street and providing a detour
over another street. This was done
through the provisions of two ordin-
ances. The defendant desired to ex-
pand his present industrial facilities
and the only method was to expand the
width of the street to be vacated.
Defendant had facilities on both sides
of the street to be vacated. Plaintiffs
sought to have the ordinances set aside.

This case concerned action by the un-
successful bidder for proposed lease by
the city of land for purpose of the
construction and maintenance of an off—
street parking facility. The facility
was to be constructed in the Central
Business District. Taxpayers also
initiated action in this case.

Defendant city sought action to condemn
certain property for the purpose to

use the land for public parking facili—
ties. There was a city ordinance,which
was empowered by the Legislature for
any municipality, to provide for acqui-
sition by condemnation of lands for the
public parking of vehicles. Plaintiffs
seek to hold ordinance illegal, invalid,
null and void as to their property.

New
Jersey

Penn-

sylvania

Penn-
sylvania

(222)

(256)

(261)

1955

1948

1953

This case concerned action by owners of
launderettes to have a provision of the
city zoning ordinance declared invalid.
That provision was that no pick-up or
delivery by the management of the laun—
derettes was to be permitted. Four of
the plaintiff's businesses were located
in business zones and the fifth was
located in a residential zone.

This case was concerned with the Park—
ing Authority Law of Pennsylvania.
Plaintiff, a taxpayer of Pittsburgh,
challenges the constitutionality of this
law. The City of Pittsburgh established
a Public Parking Authority to help solve
the parking and traffic congestion of
Pittsburgh. Plaintiff also sought an
injunction to restrain the City from
appropriating any public funds to it or
entering into any agreement with it for
the waiver of taxes on its properties,
and from exercising the powers granted
by the law. This case is a very good
case in the problem of traffic congestion
and is cited very frequently by many
other states and by Pennsylvania itself.

This is a zoning case, but it was not
for change of zone. The property in
question was in a residential district.
The golf club, owner of property in
question, sought a special exception to
construct a road on this property from
an adjoining road to its parking lot,
thus making a second entrance and exit
to said parking lot. Zoning Board of
Adjustment refused to grant the permit
as a special exception to the zoning
ordinance.

a; USE 1.?