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Zoning Digest, Volume 8,Issue 12, December 1956Published online: 29 Aug 2011.

To cite this article: (1956) Zoning Digest, Volume 8, Issue 12, December 1956,Zoning Digest, 8:12, 265-280, DOI: 10.1080/00845566.1956.10396313

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Z O N I N G DIGEST Published b y

A M E R I C A N S O C I E T Y OF P L A N N I N G O F F I C I A L S 1 3 1 3 E A S T 6OTH S T R E E T , C H I C A G O 3 7 , ILLINOIS

Volume 8 DECEMBER 1956 Pages 265-280

Public Utility (Water) Exempted from Zoning Ordinance. df i f i l aca t ion of Backensack Water C o . , S u p e r i o r C o u r t

of New J e r s e y , A p p e l l a t e Division, S e p t . 4 , 1956, 125 A.2d 281.

mission, authorized the erection of a replacement ground water tank by the Hackensack Water Company on lands located in the borough of Carlstadt, New J e r s e y . that the u s e ' I . . . is reasonably necessary for the service, convenience, and the w e l f a r e of the public." The property is located in an A residence zone.

There are two water s torage tanks on the property that had been there for a number of y e a r s pr ior to the adoption of the zoning ordinance. The present capacity of the s torage r e s e r v o i r is 1.300 million gallons. It was proposed to double the capacity.

The zoning statute contains the following section: "This a r t i c l e or any ordinance or regulation made under authority thereof, shall not apply to existing property or t o buildings or s t r u c t u r e s used or to be used by public utilities in f u r - nishing service, i f upon a petition of the public utility, the board of public utility commissioners shall af ter a hearing, of which the municipality affected shall have notice, decide that the present or proposed situation of the building or s t ruc- tu re in question is reasonably necessary for the service, convenience or welfare of the public. I'

The court found that the extension w a s reasonably neces- s a r y for the service, convenience, or w e l f a r e of the public, and that the installation w a s , therefore , exempt f rom the provisions of the zoning ordinance. The court did say,

intend the local regulation to be overridden willy-nilly in La112 cases. Otherwise the Legis la ture could simply and

The board of public utility commissioners , a s ta te com-

The board found

They constitute a nonconforming u s e .

. . . the intent is equally clear that the Legislature did not 11

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shortly have said that no public utility shall be subject to a municipal zoning ordinance. . . . 11

Nonconforming U s e May Not Be Extended Even if Extension I s a Conforming U s e .

Puerto R i c o , Sept . 5 , 1956. Unreported.

Puerto Rico. ment d i s t r ic t . The f i r s t s tory of the building is used as a warehouse and is a legally nonconforming u s e . The second s tory and existing accessory buildings situated in the yard are devoted to conforming u s e s .

Petitioner sought a permit to e rec t a mirador (penthouse) 17 feet by 21 feet on the second floor and a two-story acces- s o r y building 2 1 feet, 6 inches by 25 feet, having a two-car garage in the lower floor and a l ibrary, bedroom, and bath- room on the upper floor. u s e s .

The permit official denied the application. w a s affirmed by the Puerto Rico planning board. I ts decision w a s in turn affirmed by the Supreme Court of Puerto Rico.

The court held that in accordance with the zoning regula- tion, the u s e of the building should be considered as entirely nonconforming, despite the fact that only the f i r s t s tory is devoted to a nonconforming u s e . The zoning regulation pro- vides that no additions or st ructural alterations to buildings or premises containing nonconforming u s e s shall be allowed unless the u s e is changed to a conforming u s e .

be treated separately. argument . Nor w a s the court impressed by the statement that the addition of the conforming s t ruc tures would reduce the percentage of building devoted to a nonconforming u s e . The court said the area devoted to a nonconforming u s e would sti l l be the s a m e .

Reyes V . Planning Board of Puerto R i c o , Supreme Court of

Petitioner is the owner of a two-story building in Santurce, The property is located in a residential-apart-

The additions would be conforming

This denial

Petitioner contended that the par t s of the building should The court refused to accept this

Nonconforming U s e May Be Continued.

I s l a n d , Aug. 13, 1956, 1.15 A.ad 108.

zoning ordinance adopted in 1951.

Bates e t a l . v . S t i t e l e y e t 0 1 . . Supreme Court of Rhode

The town of South Kingstown enacted amendments to the Cer t iorar i w a s sought t o

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review the action of the town council on the ground that the amendments would prohibit peti t ioners f rom rebuilding some of their nonconforming s t r u c t u r e s that w e r e destroyed by the hu r r i cane of August 1954.

The zoning statute specifically provides for the continua- tion of nonconforming u s e s . The court said that the action brought by peti t ioners w a s p rema tu re . The court went on to s a y that in so far as they may d e s i r e t o rebuild or replace buildings or improvements of identical s i z e and for the iden- t ical u s e t o which they w e r e devoted p r io r to the hurr icane, they are entitled to do so.

Board of Appeals May Change Mind.

Bronx County, Nay 29, 1956, 155 N.Y.S.2d 4 7 6 . The board of s tandards and appeals of the city of New

York in 1950 denied a n application for a var iance by a two to two vote. In 1955 the board granted the application unani- mously. It is not c l e a r f rom the decision what w a s involved, except that i t appea r s to have been an extension of a gasoline s ta t ion.

The court said that the board had the power to consider the second application because the situation had mater ia l ly changed. not, ips0 facto, show bad faith o r a r b i t r a r y action.

A p f i l i c a t t o n of J. Clarence D a v i e s , h c . , Sufireme Court ,

The court said fur ther that the change in vote did

Abattoir Pe rmi t t ed in Houston (Which Has No Zoning Ordi- nance). Action.

Texas, G a l v e s t o n . June 28, 1956, reh. den. Sept . 2 0 , 1956, 293 S . I .2d 515 .

This is not a zoning case , because Houston is the only large ci ty in America that h a s no zoning ordinance. F r e e d - man conditionally acquired a th ree -ac re parcel of land with- in the co rpora t e l imi t s of the ci ty of Houston, intending to e r e c t thereon a n abat toir . He filed plans that apparently met all of the code requirements . One section of the code dealing with the issuance of pe rmi t s for abat toirs provides that an application shall be submitted to the city council, and i f the council finds that the proposed location is sat isfactory i t shal l instruct the health officer to i s s u e a pe rmi t .

Standard or Rule Must Exist to Govern Legis la t ive

C i t y of Houston V . Freedman, Court of C t v i l Apfieals of

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Council took no action so suit w a s brought. The lower court issued a writ of mandamus. This w a s

affirmed by the court of appeals, which said that the city's contention that it has a discretionary right to refuse to direct the issuance of a permit is untenable. The court said that an ordinance is invalid i f i t does not set up any standard for determining whether the building may be erected in a parti- cular district or locality, but leaves the determination of the question to the caprice, whirrl, or unbridled discretion of a board or an officer o r a governing body. The court said that the city had failed to show any valid applicable ordinance within the police power providing a ru l e , canon, or other curb for the government of the council.

Undue Delay in Acting on Petition for Stadium W a s Not Found. EoLLand V . Catv of Long Beach, Subreme CwrtJ Nassau

County, June 1 6 , 1956, 155 W.r.S.ad 237. Petitioner sought an order compelling the city of-Long

Beach to issue a license for the operation of a stadiam, con- tending that there had been undue delay and consideration of the matter . The property consists of a plot 140 feet by 190 feet . Apparently the papers presented had been incomplete.

The court pointed out that the city has several ordinances that affect an operation of this nature, and that the application would be reviewed by the building commissioner, the city clerk , the police department , the corporation counsel , and possibly the zoning board. Also involved w e r e such matters as sanitation, parking, traffic, and fire. The court found that there had been no undue delay in the consideration of the petition.

Rezoning from Apartment to Single Residence Held Unreason- able. Zoning by the Court.

Caleb Heathcote Court . I n c . . V . C i t y of New R o c h e l l e , Sujw-erne Court , Westchester County, J u l y a , 1956, 155 N. Y.S. ad 38.

ment to the zoning ordinance of the city of New Rochelle, which had rezoned plaintiff's property from R-3b (garden apartments) to R-lb (single-family dwellings on 75-foot lots) . The property consists of approximately two and one-half ac re s

The city contended that what had taken place w a s a legis-

Plaintiff brought suit to declare unconstitutional an amend-

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lative act , not subject to review by the court . found, however, that the rezoning had so substantially and unreasonably depreciated the value of plaintiff's property as to amount to confiscation. It therefore declared the rezon- ing invalid.

The court

Petitioners Protesting Zoning Change May Not Withdraw Pro- test before Action I s Taken. Protest May Not Be Withdrawn.

Katona c t a l . v . Town Plan and Zoning Cormassion of t h e Town of F a i r f i e l d e t a l . , Court of Common P l e a s of Connccti- c u t , F a i r f i e l d County, J u l y 13, 1956, 20 Conn. Sup$. 7 7 , 105 A . ad 75.

Plaintiffs applied to the town plan and zoning commission of the town of Fairfield for a change of zone from residence A to neighborhood business 1. It w a s proposed to extend the neighborhood business zone to a depth of 500 feet, instead of the 200 feet now permitted.

property owners w a s filed at the public hearing. la te r the commission met in executive session. On that day i t received in writing a request by some of the signers of the protest petition to remove their names therefrom.

The zoning statute provides: "If a protest is filed at such hearing with the zoning commission against such change sign- ed by the owners of twenty per cent or more of the a r e a . . . of the lots within five hundred feet in any direction of the property included in the proposed change, such change shall not be adopted except by a vote of three-fourths of all the members of the zoning commission. "

therefore, became material . At the request of the commis- sion the matter w a s studied by the town engineer to determine the percentage of protest . In the meantime, the commission had voted four to three in favor of a change to a depth of 400 feet . When the town engineer reported that the protest con- tained the names of 20.579 per cent of the lots within 500 feet, and af ter the commission had refused to permit the withdrawal of protesting names, the commission decided the change had failed because of failure to obtain a three-fourth$ vote.

The material question w a s whether protesting petitioners could withdraw their names after the public hearing but before

A public hearing w a s held. A petition signed by numerous A month

The question of the number of protesting petitioners,

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action w a s taken. It wil l be noted that the statute in this case specifically provides for a protest to be filed "at such hearing." The court, after an examination of the law in other jurisdictions, said that the weight of authority holds that once a petition has been filed, names may not be withdrawn, not- withstanding that the body to whom the petition w a s brought had not taken final action.

The court held that the phrase "at such hearing" placed a time limit on a protesting petition. ing language: ". . . it follows that after the public hearing, no protestant should be permitted to withdraw his name from the petition. It i s plain to see that i f Protestants w e r e per- mitted to withdraw names after the public hearing, then persons on the other side would seek to add names in support of their position. i t would be most difficult to obtain finality. It would lead to havoc and confusion in zoning matters . contemplate that the legislature intended this should occur when it enacted the words 'at such hearing' into the existing law in 1951 . I '

The second case of George Katona u. Town P lan and Zoning Cornmasston of t h e Town of F a i r f i e l d w a s disposed of a t the same time.

The court used the follow-

Such a situation could lead to a status where

The court cannot

Res Judicata.

N a r y l a n d , Aug. 2 0 , 1956, 115 A.ad 4 1 .

the zoning commissioner and granted a special permit for a funeral home in a residential district . This w a s the second application for a funeral home at this particular location.

An earlier petition had been filed in November 1949. petition w a s denied by the zoning commissioner but w a s grant- ed by the board of zoning appeals. The circuit court for Baltimore County reversed the board of zoning appeals. At that t ime no further appeal to the Court of Appeals w a s possible.

Funeral Home Is a Commercial U s e . W h i t t l e e t al. u. Doiw e t al.. Court o f A # # e a l s o f

The board of zoning appeals of Baltimore County overruled

The

Two questions w e r e raised by the appellants: was the ear l ie r decision res judicata; and are the sections of the zoning regulations for Baltimore County that provide for the - -

issuance of a special permit or exceptions for a funeral establishment in a residential zone invalid because they

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authorize unlawful spot zoning?

and held that essentially the s a m e facts appeared in the second case as appeared o r could have been shown in the f i r s t case. as res judicata.

are subject t o changes which might reasonably lead to an opposite resu l t f rom that a r r ived a t in an earlier case , and i f there have been substantial changes in facts and c i rcum- s tances between the f i r s t c a s e and the second, the doctrine of res judicata would not prevent the granting of the special permit sought by the appellees. . . .

Editor 's Note: This is an important decision from the standpoint of res judicata. that the en t i re decision might be studied when necessary . There are severa l s ta tements obiter dicta that are important, such as: This court has on several occasions expressed disapproval of zoning and kindred actions being based upon a 'plebiscite of neighbors ' ." Also, 'I. . . zoning looks to the future . . .

The court decided the c a s e on the bas i s of res judicata,

Therefore , their petition should have been denied

The court said in par t , "It is our view that where the fac ts

I t

Readers should note i t in order

11

'I

Zoning by the Court .

Court of Machrgan, Oct. I , 1 9 5 6 , 78 N.W.nd 6 5 6 . Plaintiff is the owner of a triangular parcel of property of

approximately 9 acres located in Birmingham, Michigan. It abuts upon the Grand Trunk Railroad right-of-way for approxi mately 1 , 300 feet . The decision s a y s that partly surrounding the land, in addition to the right-of-way, are developments of land for multiple-family u s e , some industrial plants, and a heavily traveled highway. family dwellings.

for res idence purposes. be illegal and enjoined the city from enforcing i t . affirmed by the Supreme Court.

Residential Zoning Held Illegal. Industrral Land Co. V . C t t y of Birmingham, Supreme

The property is zoned for single-

The property has grea te r value for business purposes than The lower court held the zoning to

This was

Restrictive Covenant Not Abrogated by Zoning. Eisle V . Sambrook, Supreme Court of Michigan, Oct. 1,

1 9 5 6 , 78 N.W.2d 6 4 9 . This action w a s brought to enjoin defendants f rom erect ing

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a building for manufacturing purposes on lots res t r ic ted to residence purposes in the city of Livonia, Michigan. The subdivision w a s platted in 1942. All of the lots except three (not here involved) w e r e restricted to private residence pur- poses. Plaintiffs built their home before 1951. Defendants acquired their property in 1955, subject to the restriction.

u s e because a building permit w a s issued by the building de- partment. Plaintiffs appealed to the city zoning board of appeal, which upheld the permit.

abrogated by the zoning ordinance.

Apparently the Livonia zoning ordinance permits industrial

The Supreme Court held that the restrictions had not been

Exception for Industry. Noisy Industry Must Be Considered by Town Board. Performance Standards.

Court, Nassau County, J u l y 1 0 , 1956, 155 N.Y.S.ad 378. The building inspector of the town of Oyster Bay issued a

permit for the erection of an industrial plant in an industrial zone. Apparently the zoning ordinance requires in the case of an industry that is likely to produce noise, vibration, and noxious fumes that application for a permit must be referred to the town board. The building inspector failed to do this. The zoning board of appeals overruled the building inspector and this suit w a s brought.

industry fronted upon a public s t ree t . But the matter w a s decided on the basis of the failure to refer the application to the town board. The court held that the building inspector had committed an e r r o r of judgment.

J. L. Rennessy A s s o c i a t e s , I n c . . v . G r i f f i n , Supreme

Several issues w e r e raised, including whether the proposed

Unconstitutional Zoning Ordinance. Notice Is a Prerequisite to Valid Zoning. Hearing Is a Prerequisite to Valid Zoning.

S i k e s e t a1 v . P i e r c e e t 111.. Sutwcne Court of Georgia , Sept . 7, 1956, 94 S.E.ad 497.

Plaintiffs sought mandamus to require the city of Dublin to grant a building permit for the construction of a gasoline service station. The permit w a s refused because the prop- e r ty is zoned for residential purposes only.

nance w e r e unconstitutional because neither provide for any notice o r opportunity for a hearing to be accorded to anyone

It was contended that the city char ter and the zoning ordi-

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having a n in t e re s t or right in property affected by the zoning ordinance.

The court held the c h a r t e r and the ordinance to be uncon- stitutional, saying that due p rocess of law is guaranteed by the constitution. It includes notice and hear ing as a ma t t e r of r ight in m a t t e r s where one's property r ights are involved.

County Zoning in North Carolina. No Decision Reached on Constitutionality.

Fox u . Board of Commassroners f o r t h e C o u n t y of Durham, Supreme C o u r t of N o r t h Carolana, S e p t . 0 6 , 1956, 94 S.E.2d 482.

Plaintiffs, who are re s iden t s of s ix different townships of Durham County, North Carolina, sought an injunction to r e s t r a i n the board of commiss ione r s f rom appropriating and paying tax funds to employees o r m e m b e r s of the Durham County zoning commission or the Durham County board of adjustment. It w a s alleged that the statute, which applies t o Durham County only, w a s a local ac t and, therefore , uncon- stitutional.

comprehensive zoning ordinance establishing 18 types of dis- t r i c t s . One d i s t r i c t was RD, a r u r a l d i s t r i c t . The ordinance provided that all r ea l ty and all building and s t ruc tu res used for agricul tural , farming, livestock, or poultry operations w e r e exempt f r o m eve ry provision of the ordinance.

not amount to a n unlawful and unconstitutional delegation of legislative powers . The court held fur ther , however, that the portion of the county zoning ordinance dealing with agri- cul tural lands is void.

The Supreme Court held that the constitutionality of the a c t could not be tested in this proceeding. or shown that any plaintiff owns real ty constituting f a rm land, nor w a s i t shown that any plaintiff is r e s t r i c t ed by the ordi- nance. . . . in accordance with and under color of a n a c t of the

general assembly, the constitutionality of such statute may not be tested in a n action to enjoin enforcement thereof un- less it is alleged and shown by plaintiffs that such enforce- ment w i l l c ause them to s u f f e r personal, direct , and i r r e p - a rab le injury. ' I

Exercis ing authority under the act , the county adopted a

The lower court held that the ac t is constitutional and does

It w a s not alleged

The court said that when any public officials a c t 11

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Street May Serve as Zone Boundary Line. Boundary Must Be Drawn Somewhere. Undertaking Establishment Prohibited in Apartment District .

Hahoney e t a l . u. C i t y o f C h i c a g o . Supreme Cour t o f I l l i n o i s , Hay 23, 1 9 5 6 , a s m o d i f i e d on d e n . o f r e h . S e p t 23, 1 9 5 6 , 137 N.E.2d 3 7 .

Appellees are the owners of lo t s on the eas t side of Laramie Avenue in the city of Chicago. The eas t side of the s t r e e t is zoned for apartment u s e and is in an eight-block dis t r ic t , which has been developed residentially. s ide of the s t ree t is zoned for business u s e and has been developed commercially. Appellees wish to construct an undertaking establishment on their property.

illegal when it excluded undertaking establishments f rom apartment d i s t r ic t s .

In revers ing the lower court , the Supreme Court said that i t was valid to exclude an undertaking establishment f rom an apartment d i s t r ic t . s t r e e t might se rve as a boundary line between dis t r ic ts , and that a boundary l ine must be drawn somewhere. Unless the legislative body a c t s arbi t rar i ly , i t s judgment must be accepted.

The west

The lower court held the zoning ordinance a r b i t r a r y and

The Supreme Court said further that a

Tavern Prohibited in Commercial District . S a l a d i n o V . C i t y o f Sou th B e l o i t . Supreme Cour t o f

I l l i n o i s , Sep t . 2 5 , 1 9 5 6 , 137 N.E.2d 3 6 4 . Petitioner is the owner of a parcel of vacant and unim-

proved property, which he purchased in 1955 and which is located in a B-business dis t r ic t in the city of South Beloit. Under the zoning ordinance adopted in April 1954, sofne 75 separate and distinct u s e s are permitted in the B-business dis t r ic t , but these do not include the operation of a tavern, which is permitted in a 6-business dis t r ic t .

that his property would be in a C-business dis t r ic t , thus per- mitting the construction of a tavern. appeals recommended such a change, but the change w a s rejected by the city council.

valid. This w a s affirmed by the Supreme Court, which held that the classification w a s proper even though i t excluded taverns in the B-business dis t r ic t . The court said, "There

Petitioner sought to have the zoning ordinance changed so

The zoning board of

The lower court held the zoning to be constitutional and

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is in appellant's position the assumption of a fact which does not exis t , namely, that he had an inalienable right to u s e his property for tavern purposes. I '

Commercial Zoning Held Reasonable. Court Will Not Sub- st i tute i t s Judgment for that of Legislative Body.

Rams-Read C o . u. C i t y of D e s P l a i n e s , Supreme C o u r t

Plaintiff is the owner of a parcel of property located in of I l l i n o i s , S c p t . 25 , 1 9 5 6 , 137 N.E.ad 2 5 9 .

the c i ty of Des Plaines, Illinois. classification changed from c l a s s C-commercial to light industr ia l . w a s dismissed by the lower court even though a m a s t e r , to whom the mat te r had been re fer red , had recommended that the best u s e of the premises w a s for light industrial purposes .

The property is located in-what is pr imari ly a residential dis t r ic t , although adjacent to i t there are cer ta in industrial propert ies and a rai l road right-of-way. The testimony w a s conflicting. One planning expert testified that the best u s e w a s for industrial purposes . Another planning expert tes t i - fied that i t s best u s e w a s for residential purposes.

taking into consideration the evidence most favorable to plain- tiff, i t is evident that the property could be reasonably zoned for residential , commercial , or industrial purposes. The conflicting evidence created a substantial doubt, which must be resolved by the city council and not by the court . Plaintiff had not proved by clear and convincing evidence that the ordinance is confiscatory in i t s application to plaintiff's land, or that i t is a r b i t r a r y and unreasonable. The decree of the lower court w a s affirmed.

Plaintiff sought to have the

Plaintiff 's request for a declaratory judgment

The Supreme Court, in a well stated opinion, said that

Variance with Unreasonable Conditions Held Invalid. Prop- e r t y Taken without Due Compensation. Mapped St ree ts Act Invalid 7

Rand u. C s t y of New Y o r k . Supreme C o u r t , Q u e e n s C o u n t y .

Plaintiff sought a declaratory judgment holding section 35 Aug- 1 6 , 1 9 5 6 , 155 W.Y.S.2d 753.

of the General City L a w (Mapped Streets Act) unconstitutional as i t applies to her property. Plaintiff is the owner of a par - cel of vacant land located in an unrestricted dis t r ic t in which the erect ion of a nonstorage garage is permitted by the zoning

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ordinance. In 1951, the board of estimate of the city of New York adopted a map providing for the extension of Atlantic Avenue. More than 80 per cent of plaintiff's property lies within the bed of the proposed street.

for the erection of a nonstorage garage, but the application w a s denied on the ground that the erection of the garage in the bed of a mapped s t reet is forbidden by section 35 of the General City L a w . Thereafter, plaintiff appealed to the board of standards and appeals for a variance. w a s granted on condition that in the event of condemnation the cost would be amortized over a term of ten years a t the ra te of 10 per cent per year starting from the completion of the building.

The court held that the city had so restricted plaintiff's u s e of her property that it could not be used for any reason- able purpose for an indefinite period of time, and thus the regulation constituted a taking of the property. The court went on to say that the building wil l have a usefu l life of 50 years , but that plaintiff would receive no compensation for the building i f condemnation takes place more than ten years from the completion thereof. If condemnation takes place sooner, plaintiff's compensation wi l l be reduced by 10 per cent for each year that has elapsed ". . . although proper depreciation would be closer to two per cent .I' Plaintiff's motion for summary judgment w a s granted.

In December 1954, plaintiff applied for a building permit

The variance

Variance Cannot Be Limited by Contract for Taxes. and Taxing Statutes A r e Separate. Seminary Must Be Allowed in Residential District.

Zoning

A s s e s s o r s of Dover v . Dominican Fathers Province of S t . Joseph, Supreme J u d i c i a l Court of H a s s a c h u s e t t s . S c # t . 12, 1956, 137 N.E.nd 125.

erty, but zoning became an issue in the controversy. The board of a s ses so r s of the town of Dover had assessed most of a 78-acre parcel of property owned by the Dominican Fathers Province of St. Joseph. The property is a portion of a la rger estate of approximately 254 ac res . The church property is located in a district zoned for residential u s e s . Permitted u s e s include churches and educational institutions, if nonsectarian.

This is primarily a case involving taxation of church prop-

The institution took the position that the

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nonsectarian limitation on u s e for educational purposes w a s invalid. A statutory amendment provides that no bylaw or ordinance that prohibits or l imits the u s e of land for any religious, sectarian , or denominational educational purpose is valid.

the premises for church and residential purposes. The ce r - tificate w a s refused by the board of selectmen. Upon appeal to the board of appeals the action w a s sustained, but the board suggested that an application for a variance be made. The suggestion w a s acted upon, and a variance w a s granted so as to permit the u s e and occupancy of the premises "for a combination of church and multiple dwelling purposes. '' In i t s decision the board stated that the area of the property to be used for church purposes could be clearly delineated so as to guide the board of a s ses so r s in the assessment of taxes.

variance to use the property for a combination church and residence, and in so doing committed itself intentionally to the proposition that this w a s to be the status of i t s property for tax purposes. It w a s argued that the town accepted this statement a t face value and granted the variance on the basis of it; that this is, in effect, a contract binding on the institution.

when the institution asked for a variance for a more restr ic ted u s e for i t s property it was asking for all that the board of appeals, as indicated in i t s decision, would then allow. After the enactment of the amendment to the statute mentioned aborve and a decision of the Supreme Court, it became apparent that the provision of the town bylaw prohibiting u s e of the property for sectarian educational purposes w a s invalid. The ccurt said that the right to u s e the property within the f u l l l imits of the l a w w a s not lost simply because the institution had for- merly sought and obtained a variance under the zoning l a w s for a more limited u s e of the property. The court said, "The zoning and taxing statutes are separate and distinct, and each is separately adminstered. 'I Also, "If a board of appeals upon consideration of the relevant factors concludes that a property owner is entitled to a variance it should grant i t . It has no right in doing so to attach conditions by contract or otherwise touching the subject of taxes or exemptions. are mat te rs outside i t s jurisdiction. I'

The institution applied for a certificate of occupancy to u s e

The assessors contended that the institution applied for a

The court refused to accept this argument. It said that

These

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This i s s u e of ZONING DIGEST contains the following cases :

Application of Hackensack Water Co . , N . J . . . . . . . 265 Application of J . Clarence Davies. Inc. , N.Y. . . . . . 267 A s s e s s o r s of Dover v . Dominican F a t h e r s Province

of St . Joseph. Mass . . . . . . . . . . . . . . . . . . 276 R . I . . . . . . . . . . . . 266

Caleb Heathcote Court. Inc . v . City of New Rochelle. N . Y . . . . . . . . . . . . . . . . . . . . . 268

City of Houston v . Freedman. Tex . . . . . . . . . . . . 267 Fox v . Board of Commissioners for the

County of Durham. N.C. . . . . . . . . . . . . . . . 273 Hisle v . Sambrook. Mich . . . . . . . . . . . . . . . . . 2 7 1 Holland v . City of Long Beach. N.Y. . . . . . . . . . . 268 Industrial Land Co . v . City of Birmingham.

Mich . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7 1 J . L . Hennessy Associates. Inc . v . Griffin. N .Y. . . . 272 Katona e t a1 . v . Town Plan and Zoning Commission

of the Town of Fairfield e t al . , Conn . . . . . . . . . 269 Mahoney e t a1 . v . ‘City of Chicago. I11 . . . . . . . . . . 274 Rams-Head Co . v . City of Des Plaines. I11 . . . . . . . 275 Rand v . City of New York. N . Y . . . . . . . . . . . . . 275 Reyes v . Planning Board of Pue r to Rico. P . R . . . . . . 266 Saladino v . City of South Beloit. I11 . . . . . . . . . . . . 274 Sikes e t a1 . v . P i e r c e e t a l . , Ga . . . . . . . . . . . . . 272 Whittle e t a1 . v . Doing e t al. , Md . . . . . . . . . . . . 270

Bates e t a1 . v . Stiteley e t al . ,

Subiect Classification

Board of appeals:

Boundary line: may change mind . . . . . . . . . . . . . . . . . . . . 267

must be drawn somewhere . . . . . . . . . . . . . . . 274 s t r e e t may s e r v e as . . . . . . . . . . . . . . . . . . 274

County zoning:

Court: no decision on constitutionality (N.C . ). . . . . . . . . 273

w i l l not substitute judgment for that of legislative body . . . . . . . . . . . . . . . . . . . 275

property taken without due compensation . . . . . . . 275 Eminent domain:

Funeral home:

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commerc ia l u s e . . . . . . . . . . . . . . . . . . . . 270 in apar tment dis t r ic t . prohibited . . . . . . . . . . . 274

prerequis i te to valid zoning . . . . . . . . . . . . . . 272

noisy. mus t be considered by town board . . . . . . . 272

tavern in commerc ia l dis t r ic t . prohibited . . . . . . . 274

Hearing:

Industry: exception fo r . . . . . . . . . . . . . . . . . . . . . . 272

Liquor sales:

Mapped s t r e e t s act:

Nonconforming u s e : invalid ? . . . . . . . . . . . . . . . . . . . . . . . . . 275

continued . . . . . . . . . . . . . . . . . . . . . . . . 266 extension prohibited even i f extension is

conforming u s e . . . . . . . . . . . . . . . . . . . 266 Notice:

Per for manc e s tandards :

Procedure :

prerequis i te t o valid zoning . . . . . . . . . . . . . . 272

noise . . . . . . . . . . . . . . . . . . . . . . . . . . 272

peti t ioners protesting zoning change may not withdraw protest before action is taken . . . . . . 269

protest may not be withdrawn . . . . . . . . . . . . . 269 undue delay not found . . . . . . . . . . . . . . . . . . 268

exempt f rom zoning ordinance . . . . . . . . . . . . . 265

petition should have been denied as . . . . . . . . . . 270

not abrogated by zoning . . . . . . . . . . . . . . . . 271

unreasonable: apar tment to single res idence . . . . . 268

in res ident ia l zone. must be allowed . . . . . . . . . 276

permit ted (Houston) . . . . . . . . . . . . . . . . . . 267

mus t exis t to govern legislative action . . . . . . . . 267

zoning and taxing are sepa ra t e . . . . . . . . . . . . . 276

cannot be l imited by contract for taxes . . . . . . . . 276

Public utility:

R e s judicata:

Restr ic t ive covenant:

Rezoning:

Seminary:

Slaughterhouse:

Standards. r u l e :

Statutes:

Variance!

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with unreasonable conditions. invalid . . . . . . . . . 275

by the court . . . . . . . . . . . . . . . . . . . . 268. 271 commercia l . held reasonable . . . . . . . . . . . . . 275 residential . illegal . . . . . . . . . . . . . . . . . . . 271

unconstitutional . . . . . . . . . . . . . . . . . . . . . 272

Zoning:

Zoning ordinance:

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