City and County of Denver v. Denver Buick, Inc.

347 P.2d 919, 141 Colo. 121

• Court: Supreme Court of Colorado
• Decided: January 11, 1960
• Docket: 18699
• Status: Published

Opinions

Mr. Justice Moore

delivered the opinion of the Court.

This cause is here on writ of error to review a judgment of the district court of the City and County of Denver entered in an action there filed to test the validity of certain portions of the zoning ordinance of the city. : ■

Plaintiffs in error were defendants, and the Denver Buick, Inc., Mollie Cohan, Lou Cohan, and Saleo Corporation were plaintiffs, in the trial court. Rainbo Bread Company, Weaver-Beatty Motor Company and Roy J. Weaver were permitted to intervene as additional parties plaintiff. In this opinion we will refer to defendants in error as plaintiffs or interveners or by their individual names, and plaintiffs in error will be referred to as defendants or by name. All parties plaintiff attacked the validity of Ordinance No. 392, Series of 1956, adopted by the City and County of 'Denver. They prayed for a judgment, declaring their rights thereunder, and for a decree restraining defendants from enforcing the ordinance.

Defendants filed a motion to dismiss the action on the ground that the complaints of plaintiffs and interveners failed to state a claim upon which relief could be granted. This'motion was overruled. Defendants thereupon filed an answer and the cause was tried to the court without the intervention of a jury.

Although the complaint of plaintiffs, which was adopted by interveners, contained seventeen different claims for relief, the trial court, with the consent of counsel for the parties, grouped all of said claims, except the fifteenth, under five main issues, as follows:

“(1) Is the ordinance unconstitutional because of its title under the Charter?

“(2) Was the ordinance passed in conformity with the Charter concerning notice to the property owners?

“(3) Was a public hearing held as contemplated under the Charter?

“(4) If the ordinance was passed as provided by the Charter, is that portion of the ordinance which restricts the owners of the district which is designated C on Defendants’ Exhibit No. 6 unconstitutional for any of the reasons set forth in the plaintiffs’ or interveners’ complaint?

“(5) Is the answer of the defendant City and County pertaining to the affirmative defense of resorting to administrative remedies a good defense?”

The fifteenth claim of plaintiffs, relating to nonconforming uses, was considered apart from the issues above stated.

Under the questioned ordinance as originally adopted all the property involved herein was located in a district classified as B-4. This classification was changed to B-6 by an amendment as appears from the first affirmative defense contained in the answer of defendants, as follows:

“On December 29, 1956, pursuant to Ordinance No. 451, Series of 1956, that land and that property alleged by plaintiffs to be theirs was classified, among other lands, as a B-6 District under the Zoning Ordinance of the City and County of Denver and was made subject to the restrictions and regulations established for that district by Ordinance No. 450, Series of 1956, effective December 29, 1956 (a copy of which Ordinance No. 450, marked Exhibit ‘A’ is attached hereto and by such reference is made a part hereof.) ”

Plaintiffs answered the above allegations in the following language:

“7. That the said B-6 Classification is meaningless, arbitrary, capricious, and void, and is an endeavor to circumvent the clearly discriminatory and abusive provisions of the B-4 District, while conferring none of the benefits of the B-5 District, all directly in violation of the rights of the Plaintiffs as set forth in their Ninth through Seventeenth Claims for Relief, each of which is incorporated herein and made specifically a part hereof, with specific reference to the said purported ordinances 450 and 451.”

A second affirmative defense contained in the answer of defendants alleges in substance that all the ordinances under attack provide for administrative relief from the provisions thereof, and that plaintiffs have not availed themselves of these remedies. Plaintiffs allege that these allegations state no defense for the reason that the ordinance is unconstitutional and void.

April 4, 1958, the trial court entered its findings and judgment. That portion of the decree to which defendants object and which is now before us for review reads as follows:

“WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED:

“1. That the B-6 District is a part in law and use of the B-5 District, and subject to the same regulations.

“2. That Article 614 of Ordinance 392 of the Series of 1956 as it relates to the so-called B-6 District requiring off-street parking violates the City Charter and particularly Chapter 219 B, in that the regulations are not uniform.

“3. That Article 614 of Ordinance 392, Series of 1956, is unconstitutional and violates Article II, Section 15, and Article II, Section 25 of the Colorado State Constitution.

“4. That Article 614 of Ordinance 392, Series of 1956, is unconstitutional in that it is oppressive, discriminatory and an invasion of the plaintiffs’ and interveners’ rights to use of their property.

“5. That off-street parking is a public and municipal function, and a property owner’s property cannot be taken for a public use without just compensation.

“6. That the properties of the plaintiffs and interveners are subject to the regulations pertaining to the so-called B-5 District and none other.

“7. That Councilman’s Bill 403, Ordinance 392, Series of 1956, repeals Ordinance 14, Series of 1925.

“8. That the operation of an apartment by the plaintiff Saleo Corporation is a conforming use under the Ordinance.”

Questions to be Determined.

First: Where a zoning ordinance of a municipality contains provisions which purport to require the installation of off-street parking facilities by the owner of land as a condition which must be fulfilled before such owner will be permitted to make use of his land for business purposes authorized in the district within which the land is located; are such provisions unconstitutional when tested by the due process clause of the state and federal constitutions and by Article II, Section 15, of the State Constitution which provides, inter alia, that “private property shall not be taken or damaged, for public or private use, without just compensation”?

We answer this question in the affirmative, and hold that such provisions are repugnant to each of said constitutional guarantees. We think it essential to again state some basic principles of constitutional law to which we are indebted as a nation of freedom loving people, and to which we must steadfastly adhere if individual freedoms and liberties are to survive.

In City and County of Denver v. Thrailkill, 125 , 244 P. (2d) 1074, this court held that the restraint upon the freedom of one who provides transportation for hire to make use of public streets was “completely out of harmony with the American constitutional concept of fundamental freedoms and liberties, under which the individual has the right to engage in a lawful business- which is harmless in itself and useful to the community, unhampered by unreasonable and arbitrary governmental interference or regulation.” Without reservation we are firm in our adherence to the principle that “the privilege of a citizen to use his property according to his will is not only a liberty but a property right, subject only to such restraints as the common welfare may require.” People v. Norvell, 368 Ill. 325, 13 N.E. (2d) 960. If a restriction upon the use of property is to be upheld as a valid exercise of the police power it must bear, “a fair relation to the public health, safety, morals, or welfare,” and have “a definite tendency to promote or protect the same.” In determining the validity of restraints upon freedom imposed by statute or ordinance, “The determination we are called upon to make is whether the ordinance has a real and substantial relation to the accomplishment of those objectives which form the basis of police regulation.” Denver v. Thrailkill, supra. (Emphasis supplied.) Bohn v. Board of Adjustment of Denver, 129 Colo. 539, 271 P. (2d) 1051.

In Buchanan v. Warley, 245 U. S. 60, 38 Sup. Ct. Rep. 16, the Supreme Court of the United States asserted that:

“Property is more than the mere thing which a person owns. It is elemental that it includes the right to acquire, use, and dispose of it. The constitution protects these essential attributes of property.” (Italics ours.)

As forcefully stated by the former Chief Justice of the Supreme Court of the United States, Charles Evans Hughes, at ceremonies commemorating the establishment of a government of free people:

“Wé protect the fundamental right of minorities in order to save democratic government from destroying itself by the excesses of its own power. The firmest ground for confidence in the future is that more than ever we realize that, while democracy must have its organization and controls, its vital breath is individual liberty.” (Emphasis supplied.)

It is the unquestioned duty and responsibility of the judicial branch of government, through the decision of controversies which come before it, to safeguard and maintain the constitutional provisions which guarantee the maximum free and unrestricted use of property by the citizen, and to strike down those enactments which unreasonably and unnecessarily fasten upon him new restraints upon freedom of action in the use and enjoyment thereof.

Any legislative action which takes away any of the essential attributes of property, or imposes unreasonable restrictions thereon, violates the due process clause of the Constitutions of the United States and the State of Colorado. In Bettey v. City of Sidney, 79 Mont. 314, 257 Pac. 1007, we find the following most significant language:

“The constitutional guaranty that no person shall be deprived of his property without due process of law may be violated without the physical taking of property for public or private use. Property may be destroyed, or its value may be annihilated; it is owned and kept for some useful purpose and it has no value unless it can be used. Its capability for enjoyment and adaptability to some use are essential characteristics and attributes without which property cannot be conceived; and hence any law which destroys it or its value, or takes away any of its essential attributes, deprives the owner of his property.”

In Chicago B. & Q. Ry. Co. v. Illinois, et al., 200 U. S. 561, 26 Sup. Ct. Rep. 341, we find the following:

“The constitutional requirement of due process of law, which embraces compensation for private property taken for public use, applies in every case of the exertion of governmental power. If, in the execution of any power, no matter what it is, the government, Federal or State, finds it necessary to take private property for public use, it must obey the constitutional injunction to make or secure just compensation to the owner.” (Emphasis supplied.)

At the common law the owner of property has a vested right to make the fullest legitimate use of such property. It follows, therefore, that express legislative prohibition within the perimeter of constitutional permission is necessary in order to place restrictions upon the legitimate use of property. The ordinance here in question, purporting to command a specific use of property as a condition precedent to the right to do business, is in derogation of the common law and must be strictly construed in favor of the person against whom its provisions are sought to be applied. Denver v. Thrailkill, supra; Hart v. Board of Examiners, 129 Conn. 128, 26 Atl. (2d) 780; National Exhibition Co. v. City of St. Louis, 235 Mo. App. 485, 136 S.W. (2d) 396.

This court has been careful to protect constitutional rights in construing the zoning ordinance of 1925, the provisions of which were far less drastic than those now before us. With reference to the 1925 Act this court said:

“In broad outline, but only so, we have held the zoning ordinance invoked by the building inspector to be constitutional.” Hedgcock v. People, ex rel. Arden Realty and Investment Company, 98 Colo. 522, 57 P. (2d) 891.

In Colby, et al. v. Board of Adjustment of Denver, et al., 81 Colo. 344, 255 Pac. 443, “in broad outline” the old ordinance was held constitutional but this court there said:

“This decision is not to be construed as passing upon or approving each and every provision of the Denver zoning ordinance, nor as fixing its application to every circumstance that may arise.”

In numerous instances this court has held that even the old, less drastic zoning ordinance operated to deny constitutional rights to persons adversely affected by its terms. People ex rel. Friedman v. Webber, Building Inspector, 110 Colo. 161, 132 P. (2d) 183, and cases there cited.

Section 614 of the Zoning Ordinance here in question deals with the subject of off-street parking as related to the several district classifications. In so far as District B-5 (the main down town area) is concerned, it is provided that “Off Street Parking Requirements shall be of no force and effect in this district.” But in District B-6 in which the property here involved is located, the ordinance classifies the off-street parking requirements into eight different trade categories, with different parking requirements for each. The utter unreasonableness of these off-street parking requirements is made crystal clear by a letter, introduced in evidence, which was written by defendant to the plaintiff Lou Cohan. The latter had applied for a building permit, which was denied. During the course of his frustrated effort to' put his property to use in lawful business enterprises, he received the following letter in explanation of the denial of his application to build:

“Plans submitted do not indicate the specific amount of floor area to be assigned to each of several classes of use. Nor is there indicated the precise area intended to be devoted to off-street parking. Our engineer, applying various techniques for estimating, has estimated that automobile sales (Parking Class 6) would occupy 3,000 square feet and thus require 1500 square feet of off-street parking; that office uses (Parking Class 2) would occupy 106,000 square feet, requiring 53,000 square feet of off-street parking; and that a restaurant (Parking Class 4) would occupy 5000 square feet, requiring 15,000 square feet of off-street parking — for a total of 69,500 square feet of off-street parking. Attachment A of your application for construction permit indicates that ‘a substantial portion’ of approximately 37,000 square feet of basement and sub-basement area would be used for parking purposes. From this it is evident that the off-street parking proposed to be provided does not meet the requirements of Article 614. Again, additional information would be required to determine the exact amount of the proposed excess.”

With reference to parking provisions of the ordinance the learned trial judge stated in his decree that:

“ * * * the off-street parking requirements in the B-6 District are confiscatory, oppressive, discriminatory, unreasonable and unconstitutional, and to enforce the provisions thereof would deprive the plaintiffs and intervenors of their property without due process of law.”

With this statement we agree.

In Bohn v. Board of Adjustment of Denver, 129 Colo. 539, 271 P. (2d) 1051, this court said:

“It is a fundamental principle recognized by all the authorities that any regulation or restriction upon the use of property which bears no relation to public safety, health, morals or general welfare, cannot be sustained as a proper exercise of the police power of the municipality.”

The legal effect of the argument of the City is that it has a problem of concentration of traffic in the streets and that accordingly there is a right, under the zoning ordinance, to appropriate for off-street parking substantial portions of property of citizens desiring to use that property for a legitimate purpose, and to prohibit the use of that property for any purpose until its owners devote a substantial portion thereof to parking; and this despite the fact that in District B-5 which is in all respects similar to B-6 in general usage, no such requirement exists! No such power exists in the city thus to take private property for a public purpose without compensation to the owner for the taking. It would be quite as proper to argue that the city had the right, under the guise of “zoning” to require dedication of private property for the street itself, if it were considered that a given street was generally inadequate to carry the traffic; and to prohibit the use of property for any legitimate purpose until such dedication was made. If it be true that a traffic problem exists, it cannot be legally solved by confiscation of private property without compensation, under a pretense of “zoning.”

The alert business man as a matter of voluntary action fully realizes the advantages which are to be gained by affording parking facilities to his customers. However, he cannot be compelled to do so under penalty of forfeiting the right to make a beneficial use of his property. The city has ample power to control the “congestion of traffic” by adoption of regulations adequate for the purpose, which are directly related to that problem. Compulsory, involuntary off-street parking maintained at the expense of a property owner as a price tag or tribute for the exercise of the constitutional right to do business, is “completely out of harmony with the American constitutional concept of fundamental freedoms and liberties.” It has no definite or substantial tendency to promote or protect those objectives which form the basis of police power.

We direct attention to the opinion of this court in Willison v. Cooke, 54 Colo. 320, 130 Pac. 828, from which we quote:

“One of the essential elements of property is the right to its unrestricted use and enjoyment; and as we have seen, that use cannot be interfered with beyond what is necessary to provide for the welfare and general security of the public. Enforcing the provisions of the ordinances in question does not deprive the petitioner of title to his lots. He would not be ousted of possession. He would still have the power to dispose of them; but, although there would be no actual or physical invasion of his possession, he would be deprived of the right to put them to a legitimate use, which does not injure the public, and this, without compensation or any provision therefor. This would clearly deprive him of his property without compensation, and without due process of law, which our federal and state constitutions not only inhibit, but which would be repugnant to justice, independent of constitutional provisions on the subject.”

In Hedgcock, Building Inspector v. People ex rel. Reed, 91 Colo. 155, 13 P. (2d) 264, this court recognized that where “public health and safety will be best conserved” reasonable restrictions may be imposed upon the use of property. However in that case we find the following apt language, “ * * * but not less fundamental is the inherent right of the owner [of property] to erect buildings covering such portions thereof as he may elect, and put his property to any legitimate use.” (Emphasis supplied.)

And finally upon this question we direct attention to pertinent language of Mr. Justice Holmes in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.C. 158, 67 L. Ed. 322:

“The protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation. * * *

“The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. * * * We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”

See also Arverne Bay Const. Co. v. Thatcher, 278 N.Y. 222, 15 N.E. (2d) 587.

Second. Where a zoning ordinance purports to restrict the use of property in a district which has flourished as a business and commercial district for more than fifty years; where such ordinance imposes onerous and unreasonable conditions and terms under which pre-existing lawful uses of property may be continued as nonconforming uses, and describes numerous events and means by which the former lawful use may be terminated; will such provision be upheld as a valid exercise of the police power of a municipality?

This question is answered in the negative. The ordinance in question forbids the building of any further or additional apartment houses in the B-6 District wherein is located the property of the plaintiffs and the intervenors. It defines the apartment house situated on the property of some of the plaintiffs as a nonconforming use, and declares the same no longer a “use by right.” It then provides that the owner “shall register such nonconforming use by filing with the Department of Zoning Administration a Registration Statement for such nonconforming use, and this statement:

• “ * * * May be in such form and require the furnishing of such information and representations as deemed appropriate by the Department. * * *

“ * * * and a copy of each original Registration Statement, of such other statement giving notice thereof as the Department shall deem appropriate, shall be recorded by the Department in the office of the Clerk and Recorder.”

Annually thereafter the department may require the filing of a questionnaire inquiring as to the operation, status and other details concerning the nonconforming use. If not returned completed within ninety days from date of mailing, the Department shall record in the office of the Clerk and Recorder a notice that the applicable nonconforming use is presumed to have been abandoned; that if thereafter it shall be established to the satisfaction of the Department that said use has not been abandoned, the Department shall record with the Clerk and Recorder a certificate withdrawing the notice. For other reasons the right to continue the uses of the property of plaintiffs and others similarly situated is in constant jeopardy, for the ordinance further provides a number of occurrences whereby such nonconforming use shall be terminated, many of which may occur through no fault of the owner.

The ordinance provides that the nonconforming use shall be terminated by any one or more of the following:

“Sec. 617. 1-4 (1)

“By Abandonment. Abandonment of nonconforming' use shall terminate immediately the right to operate-such use.

“Sec. 617. 1-4 (2)

“By Violation of Ordinance:

“Any one of the following violations of the ordinance shall terminate immediately the right to operate a nonconforming use:

“ (a) Changing a nonconforming use to another nonconforming use except as herein provided and authorized;

“(b) Failure to make, within the period herein provided, a nonconforming use comply with the Limitations on External Effects of Uses as established by this ordinance or subsequent amendment hereof;

“(c) Increasing either or both the land area or the floor areas occupied by a nonconforming use without the approval of the Board of Adjustment for such increase..

“Sec. 617. 1-4 (3)

“By Specific Acts of Termination.

“Any one of the following Specific Acts of Termination shall terminate immediately the right to operate a. nonconforming use; (Two of these provisions are omitted here as nongermane to our problem)

“ (c) Non-operation of a nonconforming use for a period of twelve or more successive calendar months;

“(d) Vacancy for a period of twelve or more successive calendar months of the structure or that part of a structure occupied by the nonconforming use. (Five year provision eliminated as not germane to the case at bar.) (Three year provision eliminated as not pertaining to the case at bar.)

“Sec. 617. 1-4 (5)

“By Destruction, Damage or Obsolescence of Structure:

“The right to operate and maintain any nonconforming use shall terminate and shall cease to exist whenever the structure or structures in which the nonconforming use is operated and maintained:

“(a) Is damaged or destroyed, from any cause whatsoever, and the cost of repairing such damage or destruction exceeds fifty per cent of the replacement cost of such structure on the date of such damage or destruction.

“(b) Becomes obsolete or sub-standard under any applicable ordinance of the municipality and the cost of placing such structure in lawful compliance with the applicable ordinance exceeds fifty per cent of the replacement cost of such structure on the date that the proper officials of the municipality determine such structure is obsolete or substandard.”

In the first place, the charter of the City and County of Denver, which was amended in 1923 to include therein Sec. 219-A authorizing the city council to pass zoning laws, confers none of the powers upon the city council which it purported to exercise with relation to nonconforming uses as set forth in section 617-1 of the ordinance. The charter provision, which certainly defines the limits of the council’s authority within that area not controlled by constitutional provision, reads as follows: “Section 1. Grant of Power. For the purpose of promoting health, safety, morals or the general welfare of the community, the Council of the City and County of Denver is hereby empowered to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population and the location and use of buildings, structures and land for trade, industry, residence, or other purposes.

“Section 2. Districts. For any or all of said purposes, the Council may divide the City and County of Denver into districts of such manner, shape and area as may be deemed best suited to carry out the purposes of this Amendment; and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings throughout each district, but the regulations in one district may differ from those in other districts.

“Section 3. Purposes in View. 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 promote health and the general welfare; to provide adequate light and air; to prevent overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provisions of transportation, water, sewerage, schools, parks and other public requirements. Such regulation shall be made with reasonable consideration, among other things, to 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 the City and County of Denver.”

Section 617 and the subdivisions thereof attempt to legislate many things not within the purview of the language of the enabling amendment to the charter. Certainly the people have never expressed any intention by implication or otherwise that the City Council should have power to impose the drastic regulations upon owners of property theretofore used for lawful purposes, requiring them to make reports, to submit to annual - questionnaires, to record certificates which garble and confuse their titles to real estate, to lose their rights to lawfully use real estate by short time vacancies or short time presumptive abandonment, or to lose such rights by reason of unfortunate disasters such as fire, wind, insurrection or inability to procure tenants for a period of one year, etc., all without regard to depressions, panics or other unforeseen causes over which the property owner has no control. Nor did the people of Denver in said charter amendment ever say by implication or otherwise that the City of Denver through its council could take unto themselves authority to arbitrarily regulate or prohibit minor alterations of structures or use of space which the owner might from time to time find proper or necessary to augment his income therefrom, or to make the same more comfortable or adaptable for the use of his tenants. All the authorities hereinabove cited are equally applicable to the instant question.

Third. Are the various provisions and restrictions set forth in Ordinance No. 392 Series of 1956 unlawfully and unreasonably discriminatory in that they impose certain obligations and restrictions upon the property in the B-6 District so as to work undue hardships within that District while favoring the B-5 District by not imposing those restrictions and obligations upon the property within the B-5 District, and thus creating a condition of subserviency by one district in favor of the other?

This question is answered in the affirmative. The trial court determined from knowledge common to any citizen, and from the language of the ordinance itself, that there is no appreciable or apparent difference in the characteristics of District B-6 and B-5 except that in the latter the uses authorized include operation of a pawnshop or music studio, while these privileges are denied in the B-6 District. Indeed, a reading of Sections 612.9-1 and 612-10 respectively lead to no other conclusion. With •reference to the B-6 District the ordinance reads:

“This district, at present, is a large area located immediately adjacent to the B-5 District, for which it acts as a service area * *

We know of nothing which justifies any such conclusion. The trial court took notice that within the District B-6 are a great many buildings and business enterprises which serve the entire city of Denver, the state, and large districts outside the state.

The regulations of the ordinance as to B-5 do not require off-street parking, but in the B-6 District the ordinance demands off-street parking facilities and sets up a maze of oppressive rules and regulations pertaining thereto. None of these requirements are made as to the B-5 District. Gross floor area provisions are set up in the B-6 District, none of which appears in the B-5 District. The city regulates private property in the B-6 District so as to require off-street parking based on nature and type of the trade or business, use of the building, size of the building to be erected, number of employees in excess of five, the religious belief of employees, the grade in school of children, furnishing services to the B-5 District, protecting an adjoining residential district, and serving as a shopping center for the adjoining residential districts; while no such regulations are required in the adjoining B-5 District although all types of business and buildings-permitted are the same in both districts, with the two exceptions above noted.

This is not to say, however, that the trial court was correct in that part of its decision wherein it finds that the property in the B-6 District is subject to the ordinance as set forth in the B-5 District. Such a result involves a legislative function beyond the power of the court, and we must overrule the judgment of the trial court in so far as it purports to place property in the B-6 District into that classified B-5.

Fourth. Where a zoning ordinance is adopted by a city council and becomes a law on a given date; will a provision thereof purporting to fix the effective date of the ordinance as of a time prior to its adoption be upheld?

The answer to this question is “No.” In the instant case the ordinance in question was enacted and became law on November 7, 1956. A provision therein purported to relate back the effective date of the ordinance to February 11, 1955. It is sufficient to say that the Constitution of Colorado provides that no law “retrospective in its operation” shall be passed by the General Assembly. What the legislature cannot do at the state level in this connection, the city council cannot do in municipal affairs.

It follows that any person who applied for a building permit prior to November 7, 1956, was entitled to have his application considered under the only zoning law in force at that time, and that law was the zoning ordinance of 1925, as amended.

Judgment of the trial court is affirmed in all respects except as to that part of the same which declares the property in the B-6 District to be subject to the ordinance as it pertains to the B-5 District.

Mr. Justice Frantz specially concurs.

Mr. Justice Sutton concurs in part and dissents in part.

Mr. Justice Day and Mr. Justice Doyle dissent.