278 U.S. 116
49 S.Ct. 50
73 L.Ed. 210
STATE OF WASHINGTON ex rel. SEATTLE TITLE TRUST CO.
ROBERGE, Superintendent of Building of City of Seattle.
Argued Oct. 11, 12, 1928.
Decided Nov. 19, 1928.
Messrs. Corwin S. Shank and Glenn J. Fairbrook, both of Seattle, Wash., for plaintiff in error.
Messrs. A. C. Van Soelen, Thomas J. L. Kennedy, and Arthur Schramm, Jr., all of Seattle, Wash., for defendant in error.
Mr. Justice BUTLER delivered the opinion of the Court.
Since 1914, the above-named trustee has owned and maintained a philanthropic home for aged poor. It is located about 6 miles from the business center of Seattle, on a tract 267 feet wide, extending from Seward Park avenue to Lack Washington, having an average depth of more that 700 feet and an area of about 5 acres. The home is a structure built for and formerly used as a private residence. It is large enough to accommodate about 14 guests, and usually it has had about that number. The trustee proposes to remove the old building and in its place, at a cost of about $100,000, to erect an attractive 2 1/2-story fire proof house large enough to be a home for 30 persons. The structure would be located 280 feet from the avenue on the west and about 400 feet from the lake on the east, cover 4 per cent. of the tract, and be mostly hidden by trees and shrubs. The distance between it and the nearest building on the south would be 110 feet, on the north 160, and on the west 365.
A comprehensive zoning ordinance (No. 45382) passed in 1923 divided the city into six use districts, and provided that, with certain exceptions not material here, no building should be erected for any purpose other than that permitted in the district in which the site is located (section 2). The land in question is in the 'first residence district.' The ordinance permitted in that district single family dwellings, public schools, certain private schools, churches, parks and playgrounds, an art gallery, private conservatories for plants and flowers, railroad and shelter stations (section 3a). And, upon specified conditions, it also permitted garages, stables, buildings for domestic animals, the office of physician, dentist, or other professional person when located in his or her dwelling (section 3b), fraternity, sorority, and boarding houses, a community clubhouse, a memorial building, nurseries, greenhouses, and buildings necessary for the operation of public utilities (section 3c). It declared that the section should not be construed to prohibit the use of vacant property in such district for gardening or fruit raising, or its temporary use for fairs, circuses, or similar purposes (section 3e). By an ordinance (No. 49179) passed in 1925, section 3c was amended by adding:
'A philanthropic home for children or for old people shall be permitted in first residence district when the written consent shall have been obtained of the owners of two-thirds of the property within four hundred (400) feet of the proposed building.'
Subsequently the trustee, without having obtained consents of other landowners in accordance with the provision just quoted, applied for a permit to erect the new home. It is the superintendent's official duty to issue permits for buildings about to be erected in accordance with valid enactments and regulations. He denied the application solely because of the trustee's failure to furnish such consents. Then the trustee brought this suit in the superior court of King county to secure its judgment and writ commanding the superintendent to issue the permit; and it maintained throughout that the ordinance, if construed to prevent the erection of the proposed building, is arbitrary and repugnant to the due process and equal protection clauses of the Fourteenth Amendment. That court held that the amended ordinance so construed is valid and dismissed the case. Its judgment was affirmed by the highest court of the state. 144 Wash. 74, 256 P. 781.
The trustee concedes that our recent decisions require that in its general scope the ordinance be held valid. Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016; Zahn v. Board of Public Works, 274 U. S. 325, 47 S. Ct. 594, 71 L. Ed. 1074; Gorieb v. Fox, 274 U. S. 603, 47 S. Ct. 675, 71 L. Ed. 1228, 53 A. L. R. 1210; Nectow v. Cambridge, 277 U. S. 183, 48 S. Ct. 447, 72 L. Ed. 842. Is the delegation of power to owners of adjoining land to make inoperative the permission, given by section 3(c) as amended, repugnant to the due process clause? Zoning measures must find their justification in the police power exerted in the interest of the public. Euclid v. Ambler Realty Co., supra, 387 of 272 U. S. (47 S. Ct. 118). 'The governmental power to interfere by zoning regulations with the general rights of the landowner by restricting the character of his use, is not unlimited and, other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare.' Nectow v. Cambridge, supra, page 188 of 277 U. S. (48 S. Ct. 448). Legislatures may not, under the guise of the police power impose restrictions that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities. Lawton v. Steele, 152 U. S. 133, 137, 14 S. Ct. 499, 38 L. Ed. 385; Adams v. Tanner, 244 U. S. 590, 594, 37 S. Ct. 662, 61 L. Ed. 1336, L. R. A. 1917F, 1163, Ann. Cas. 1917D, 973; Meyer v. Nebraska, 262 U. S. 390, 399, 400, 43 S. Ct. 625, 67 L. Ed. 1042, 29 A. L. R. 1446; Burns Baking Co. v. Bryan, 264 U. S. 504, 513, 44 S. Ct. 412, 68 L. Ed. 813, 32 A. L. R. 661; Norfolk Ry. v. Public Service Commission, 265 U. S. 70, 74, 44 S. Ct. 439, 68 L. Ed. 904; Pierce v. Society of Sisters, 268 U. S. 510, 534, 535, 45 S. Ct. 571, 69 L. Ed. 1070, 39 A. L. R. 468; Weaver v. Palmer Bros. Co., 270 U. S. 402, 412, 415, 46 S. Ct. 320, 70 L. Ed. 654; Tyson & Brother v. Banton, 273 U. S. 418, 442, 47 S. Ct. 426, 71 L. Ed. 718.
The right of the trustee to devote its land to any legitimate use is property within the protection of the Constitution. The facts disclosed by the record make it clear that the exclusion of the new home from the first district is not indispensable to the general zoning plan. And there is no legislative determination that the proposed building and use would be inconsistent with public health, safety, morals or general welfare. The enactment itself plainly implies the contrary. The grant of permission for such building and use, although purporting to be subject to such consents, shows that the legislative body found that the construction and maintenance of the new home was in harmony with the public interest and with the general scope and plan of the zoning ordinance. The section purports to give the owners of less than one-half the land within 400 feet of the proposed building authority-uncontrolled by any standard or rule prescribed by legislative action-to prevent the trustee from using its land for the proposed home. The superintendent is bound by the decision or inaction of such owners. There is no provision for review under the ordinance; their failure to give consent is final. They are not bound by any official duty, but are free to withhold consent for selfish reasons or arbitrarily and may subject the trustee to their will or caprice. Yick Wo v. Hopkins, 118 U. S. 356, 366, 368, 6 S. Ct. 1064, 30 L. Ed. 220. The delegation of power so attempted is repugnant to the due process clause of the Fourteenth Amendment. Eubank v. Richmond, 226 U. S. 137, 143, 33 S. Ct. 76, 57 L. Ed. 156, 42 L. R. A. (N. S.) 1123; Browning v. Hooper, 269 U. S. 396, 46 S. Ct. 141, 70 L. Ed. 330.
Cusack Co. v. City of Chicago, 242 U. S. 526, 37 S. Ct. 190, 61 L. Ed. 472, L. R. A. 1918A, 136, Ann. Cas. 1917C, 594, involved an ordinance prohibiting the putting up of any billboard in a residential district without the consent of owners of a majority of the frontage on both sides of the street in the block where the board was to be erected. The question was whether the clause requiring such consents was an unconstitutional delegation of power and operated to invalidate the prohibition. The case was held unlike Eubank v. Richmond, supra, and the ordinance was fully sustained. The facts found were sufficient to warrant the conclusion that such billboards would or were liable to endanger the safety and decency of such districts. Pages 529, 530 of 242 U. S. (37 S. Ct. 190). It is not suggested that the proposed new home for aged poor would be a nuisance. We find nothing in the record reasonably tending to show that its construction or maintenance is liable to work any injury, inconvenience or annoyance to the community, the district or any person. The facts shown clearly distinguish the proposed building and use from such billboards or other uses which by reason of their nature are liable to be offensive.
As the attempted delegation of power cannot be sustained, and the restriction thereby sought to be put upon the permission is arbitrary and repugnant to the due process clause, it is the duty of the superintendent to issue, and the trustee is entitled to have, the permit applied for.
We need not decide whether, consistently with the Fourteenth Amendment, it is within the power of the state or municipality by a general zoning law to exclude the proposed new home from a district defined as is the first district in the ordinance under consideration.