Laws Regulating Use of Streets and Public Buildings

Laws Regulating Use of Streets and Public Buildings

How the Fire Department Officials Are Affected by

The Law as to Sidewalks and Streets—Rights of the Property Owner— Legality of Laws Regulating Parking—Valid Restrictive Ordinances

OCCASIONS frequently arise which require municipal fire department officials to determine their legal rights with respect to uses of public streets and highways. In fact, several fire department officials recently have made inquiries whether they may without liability, for the purpose of reducing fire hazards or to facilitate extinguishing fires, cut trees, prohibit parking of automobiles, restrict uses of sidewalks and streets, restrict uses of buildings, and the like.

Legal Status of Sidewalk and Street

At the outset, it may be well to remember that a sidewalk of a street is a part of the highway to which the sidewalk is adjacent. It is also well settled that while ordinarily, for the purpose of affording greater convenience and safety to pedestrians a sidewalk is constructed, it is within the power of the proper municipal officials to depart from the usual custom, and either fail to provide for the construction of a sidewalk on a street or to abolish an existing sidewalk thereon.

Obviously, after a sidewalk is constructed the owner of abutting property has certain legal rights with respect thereto. In other words, he has an easement as to what use he may make of his sidewalk. The extent of such easement varies considerably and is dependent upon the particular circumstances. While a property owner usually may demand the right of ordinary use of his sidewalk, yet under certain conditions he may be prevented from using it or walking on it when, for instance, fire department officials may deem his presence an interference to extinguishment of a fire.

However, generally speaking, an abutting property owner on a public street has a special right of easement for access purposes. This is a property right of easement which cannot be damaged or taken from him without due compensation. On the other hand, such owner is not entitled, as against the public, to access to his property at all points in the boundary. If he has free and convenient access to his property, and his means of ingress and egress are not substantially interfered with, he has no cause of complaint.

Property Owner Not Entitled to Damages

Moreover, various Courts have held that a property owner may not recover damages or prevent a municipality from making ordinary uses of a sidewalk where it is shown that such use is beneficial to the general public.

Also, it would appear that the trend of judicial opinion is that a general dedication of a street or highway to public use ordinarily embraces, not only any and every use then known, practiced, or even conjectured either by the general public or by private individuals for the moving, carriage, locomotion, transportation, or conveyance of either persons or property of any kind, but as well includes any other or additional reasonable use either of a similar or of a dissimilar kind, nature, or character which thereafter may be discovered for the benefit or welfare of the traveling public.

The latest higher Court case involving this latter point of law is McCandless vs. City of Los Angeles, 296 Pac. 895.


Legal Status of Sidewalk and Street Property Owner Not Entitled to Damages Discriminatory Ordinance Held Void Validity of Parking Laws

Authority of Municipality to Enact Valid Restrictive Ordinances

Validity of Laws Which Delegate Authority to Officials

The facts of this case are that municipal officials had constructed on a sidewalk a tunnel through which pedestrians would walk. The owner of abutting property filed suit against the city to recover damages contending that appropriation by the city of the sidewalk in this manner constituted taking property without just compensation and in violation to the United States Constitution. However, it is interesting to observe that the higher Court held the property owner not entitled to recover damages, and said:

“We affirm that, when a public street in a city is dedicated to the general use of the public, it involves its use subject to municipal control and limitations for all the uses and purposes of the public as a street, including such methods for the transportation of passengers and freight as modern science and improvements may have rendered necessary, and that the application of these methods, and indeed of those yet to be discovered, must have been contemplated when the street was opened and the right of way obtained, whether by dedication, purchase, or condemnation proceedings, and hence that such a user imposes no new burden or servitude upon the owner of the abutting land. … The construction of a subway and tunnel in the street … without a formal taking of land In the streets, is not illegal on the ground that it would impose an additional servitude on lands previously taken tor streets, and thus deprive of their property, the owners of the fee of the streets.”

Discriminatory Ordinance Held Void

A city ordinance is valid which is intended to prohibit obstruction of the sidewalks, providing such law is not discriminatory. But an ordinance of this nature is void, if by its strict enforcement the apparent object of the law is not substantially accomplished.

For instance, in City of Xenia vs. Schmidt, 12 Ohio App. 359, it was disclosed that a city enacted an ordinance making it unlawful to deposit upon any street, alley, sidewalk, etc., “any wood, coal, box, barrel, crate, cask, keg, casting, lumber, goods, wares, furniture, merchandise or any other material or obstruction whatsoever unless for such reasonable time as may be actually necessary for receiving or discharging the same from store building or other place.” However, the ordinance did not prohibit certain permanent obstructions, such as permanent steps, or approaches to buildings, balconies, bay windows, and the like.

Therefore, since this ordinance was not uniform in its application, for the purpose of eliminating obstructions on the sidewalks, the higher Court held the law invalid, saying: “We are in thorough accord with the sentiment expressed by the city solicitor that a city can be beautified to a great extent by clearing its sidewalks of obstructions, and are prepared to assist the solicitor in this respect to the extent which we may be authorized by law: but, as above stated, from an examination of the authorities we are of opinion that this purpose must be accomplished by ordinances which are of uniform operation and which contain no unreasonable discriminations. … We are unable to see any good reason for prohibiting temporary obstructions and at the same time legalizing many obstructions of a permanent nature.”

Validity of Parking Laws

Generally speaking, any reasonable statute or ordinance, which regulates parking of vehicles, is valid and enforceable providing such law is non-discriminatory. For example, in Milbury vs. Turner Center System, 174 N. E. 471, it was disclosed that a city enacted an ordinance, as follows:

“No owner or operator of any vehicle or street ear shall stop or stand the same within the intersection of any street, nor within ten feet of a street corner.”

The owner of a truck parked it in violation to this ordinance. As a result of this violation a pedestrian, whose vision was obscured by the truck, was injured by another automobile. He sued the truck owner to recover damages and based the suit on violation of the above mentioned ordinance. The motor-truck owner attempted to avoid liability on the grounds that he was not negligent and, also, that the ordinance was invalid. However, it is important to know that the higher Court held the truck owner liable, and said:

“An action can be maintained only where there is shown to be, first, a misfeasance or negligence in some particular as to which there was a duty towards the party injured or the community generally; and, secondly, where it is apparent that the harm to the person or property of another which has actually ensued was reasonably likely to ensue from the act or omission complained of. A duty to the plaintiff (injured pedestrian) as one of the community was created by the ordinance.”

Authority of Municipality to Enact Valid Restrictive Ordinances

Generally speaking, it is within the implied power of municipalities to determine what ordinances are required to protect and secure the public health, comfort, and safety. However, a city may not, under the guise of such power, enact ordinances which are unreasonable, or discriminatory, or an invasion of constitutional rights. Just what is an invasion of constitutional rights depends upon the character of the ordinance and its purpose. Ordinarily, an ordinance is not deemed unreasonable or discriminatory if the same is actually intended to preserve the health, morals or safety of the general public.

For illustration, in the late case of McKelley vs. City of Murfreesboro, 36 S. W. (2d) 99, it was shown that a city passed an ordinance which prohibited the installation, construction or maintenance of gasoline filling stations, public garages, abattoirs, and the like, within a specified district. The ordinance also specified:

“Be it further ordained that the public health and the protection of said city from fire require the passage of this ordinance.”

Certain property owners filed suit and contested the validity of this ordinance on the grounds that zoning ordinances of this nature are invalid because neither the state Legislature nor the city charter specifically authorized the city to pass laws of this nature. However, it was disclosed that the city charter provided:

“That the city is hereby vested with the general powers and authority to enact and enforce all ordinances necessary for the protection of life, health, and property … and shall have all police powers necessary for its government, not in conflict with the general laws applicable to all cities of this state.”

Although the lower Court held the ordinance invalid, the higher Court reversed this verdict and in holding the ordinance valid and enforceable, said:

“It will be seen that the ordinance prohibits the location of oil or filling stations within the area described, upon the theory, as set forth in the ordinance, that this restriction is necessary for ‘the public health and the protection of said city from fire,’ and also for ‘the presentation of the public peace, health and safety.’ We are unable to escape the conclusion that the power to enact an ordinance for the purpose set forth comes within the grant, either express or Implied, of powers conferred by the charter of the municipality.”

On the other hand, it is well settled that the Courts are inclined to render verdicts favorable to property owners if the result of doing so is not injurious to the general public.

For instance, in the late case of Reed vs. Board of Standards and Appeals, 174 N. E. 301, it was shown that a municipal ordinance restricted the erection of certain buildings in residential sections. The ordinance, also, provided that a Board of Appeals may after giving public notice and hearing use their own discretion in varying the application of the ordinance in harmony with its general purpose and intent.

A property owner applied for a permit to erect a building on a corner. It was discovered that a portion of the proposed building, as designed, would extend 25 feet on one street and 19 feet on the other street in a district which, by provision of the ordinance, was restricted exclusively for residences.

Certain citizens objected to issuance of the building permit, but the board decided that the property owner was entitled to receive a permit for erection of the structure, notwithstanding the fact that a portion of the building would extend into a residential zone. The higher Court upheld the verdict of the Board, and said:

“Conditions deemed suitable by the board were adopted to safeguard and preserve the general character of the neighborhood and to minimize the inconvenience of having the building extend beyond the line of business use. … The board has a wide scope in the exercise of its discretion whenever the discretion to make variances is granted to it. … As matter of law, It cannot be said that the action of the board permitting the extension of the proposed building into the more restricted district is without evidence to support it.”

A city ordinance is void if by its terms the businesses affected are not clearly defined. Moreover, the same result is produced if the law is discriminatory or places unnecessary burdens upon those affected by it.

For example, in City of Shreveport vs. Schultz, 98 So. 411, a city ordinance was enacted which made it an offense to own or conduct a junk business or to possess any junk within a designated district, unless the junk be kept in a brick building.

In holding this law void because junk is not a fire hazard, the Court said:

”It is manifest from the language of the ordinance that it was enacted under pretense of lessening the fire hazard—that is, under pretense of exercising the police power to promote public safety. But the ordinance is not a proper exercise of the police power in that respect, because the discrimination against junk dealers is arbitrary. Their stock in trade is not more combustible or inflammable—in fact, it is much less so—than the merchandise of many other classes of merchants.”

Validity of Laws Which Delegate Authority to Officials

Certain kinds of state statutes and city ordinances have been held void where the issuance of licenses, and the enforcement or legal construction of such laws, have been held void where the issuance of such laws, have been delegated to one or more private individuals or public officials. However, it is well established that this legal ruling is not applicable to laws intended to reduce or eliminate fire hazards and which grant authority to officials, such as Fire Marshals or Commissions, to interpret and enforce the regulations.

For illustration, in Carter vs. Stevens, 295 Pac. 28, it was shown that on August 2, 1927, a state Legislature passed a law designed to reduce the fire hazards of the business of clothes cleaning establishments and provided for the enforcement thereof by the State Fire Marshal. In 1929 the Legislature amended the law, creating a division of industrial fire safety in the department of industrial relations, and transferring to this new division the administration and enforcement of the provisions of the law. In part the law provides:

“No change as to location, arrangement, or materials of construction, will be permitted in the execution of a design unless the same have been approved by the department of industrial relations.”

It was further provided that the permit or license shall he conspicuously posted in the building and shall be accessible to the representatives of the department of industrial relations, or the representatives of any city or county fire department within the state whenever request is made for its inspection.

The complete statute prescribes the dimensions, height, and location of a hazardous building and the distance it shall be from the boundary line of the lot upon which it is located and its distance from street lines. The location, construction, equipment, and maintenance of a “hazardous building” is explained in detail. In other words, the statute very carefully sets forth in detail the plans and specifications of hazardous buildings and so far as the buildings, material, equipment, and machinery is concerned little is left to the discretion of the department of industrial relations, except to determine, by reference to the provisions of the law and condition of the buildings, whether the law was being violated.

Certain persons, corporations and firms engaged in the business of operating and conducting dyeing and clothes cleaning plants united in a suit to enjoin the fire marshal of the state and his assistants and deputies from enforcing rules promulgated by him by virtue of the provisions of the 1927 law.

The lower Court upheld the constitutionality of the law, including that portion which delegated to the state fire marshal authority to determine the conditions upon which persons may engage in the business of conducting and operating clothes cleaning and dyeing establishments.

(Continued on page 429)

(Continued from page 418)

The owners ot the plants appealed to the higher Court on the contention that both the 1927 law and its amendment passed in 1929 were void. The higher Court promptly held the law valid and said:

“The Legislature has very properly placed the operation of clothes cleaning establishments, conducted in the manner described in said act, and in which the use of volatile and inflammable substances and heat, steam, and hot water play the principle part, in the list of ‘hazardous businesses.” … We are not now concerned with the extent of the State Fire Marshal’s power to promulgate said rules by authority of the provisions of the 1927 act, since so much of the substance of said rules as was deemed necessary to effectuate the objects of the act has been written into the amended statute, and it is not claimed that the department of industrial reinions, as successor of the state fire marshal, has made new or additional rules or that any attempt has been made by it to enforce the rules made by virtue of a superseded statute. It is not to be presumed that the department of industrial relations will exceed its authority in making such rules as may be necessary to administer its office.”

In another recent and leading case, Gaylord vs. City of Pasadena, 175 Cal. 433, the validity of an ordinance of a city, which delegated to the city electrician the power to determine whether electric wiring in buildings within the city was dangerous to life or property, was attacked. The ordinance did not provide what conditions the city official must find existing before he could determine that the installation was unsafe or dangerous. Mr. Justice Henshaw delivered a very able and comprehensive opinion, much of which may well be republished:

“Even a casual observer of governmental growth and development must have observed the ever-increasing multiplicity and complexity of administrative affairs — national, state, and municipal — and even the occasional reader of the law must have perceived that from necessity, if for no better grounded reason, it has become increasingly imperative that many quasi legislative and quasi judicial functions, which in smaller communities and under more primitive conditions were performed by the legislative or judicial branches of the government, are entrusted to departments, boards, commissions, and agents. No sound objection can longer be successfully advanced to this growing method of transacting public business. These things must be done in this way or they cannot be done at all, and their doing, in a very real sense, makes for the safety of the republic and is thus sane, tioned by the highest law. … The present problem narrows itself down to a determination whether or not in the method which they adopted they conferred upon a subordinate officer or agent unreasonable powers, and herein the controlling consideration is not that the power conferred may be unreasonably or oppressively exercised, for every presumption is that it will be honestly and reasonably exercised… The presumption is that municipal officers will not use these small powers villainously and for purposes of oppression and mischief. … It is concluded, therefore, that the ordinance here under consideration is not void as unwarrantedly conferring upon the city electrician judicial or legislative powers, nor yet void because its terms are either indefinite, arbitrary, or oppressive.”

Park Ridge, N. J., to Have Fire Alarm—Park Ridge, N. J., voted to install a Gantewell fire alarm system.

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