Under a law authorizing an administrative board to regulate the
height, spacing, etc., of buildings thereafter erected in a city,
and
Page 268 U. S. 647
for such purposes to divide the city into districts and to
change the districts from time to time after notice and hearing, a
lot on which plaintiff had planned to build was transferred. to a
district of greater restrictions incompatible with the plan, and
permission was denied for that reason.
Held,
(1) That a judgment refusing relief by mandamus was not
reviewable by this Court upon he question whether the substantial
provisions of the regulations deprived the plaintiff of his
property in violation of the Fourteenth Amendment, the federal
question raised in the state court having been limited to the
constitutionality of the transfer from the district of lesser to
that of greater restriction. P.
268 U. S.
650.
(2) That the latter question was not open here, not having been
raised by assignments of error nor specified in the brief as
required by Rule 21, par. 2, cl.(2). P.
268 U. S.
651.
Writ of Error to 237 N.Y. 580; 206 App.Div. 712, 207
id. 828, dismissed.
Error to a judgment of the Supreme Court of New York entered on
affirmance and remittitur by the court of appeals, denying a
petition for a writ of mandamus.
MR. JUSTICE SANFORD delivered the opinion of the Court.
The Rosevale Realty Company, the relator herein, filed its
petition in the Supreme Court of New York for a peremptory mandamus
directing Kleinert, as Superintendent of the Bureau of Buildings,
to approve its plans
Page 268 U. S. 648
for an apartment house and grant it a permit to erect the same.
On final hearing, the Supreme Court entered an order denying this
petition. This was affirmed by the Appellate Division and by the
Court of Appeals. 206 App.Div. 712 and 207 App.Div. 828, 237 N.Y.
580. The record was remitted to the Supreme Court, to which this
writ of error was directed.
Hodges v. Snyder, 261 U.
S. 600,
261 U. S.
601.
By an Act amending the charter of Greater New York, the Board of
Estimate and Apportionment was given power to regulate the height
and bulk of buildings thereafter erected, the area of courts and
other open spaces, and the location of buildings designed for
specific uses; to divide the city into districts for such purposes,
and to change such districts from time to time, after public notice
and hearing. New York Laws, 1916, c. 497, p. 1320. In July, 1916,
the Board adopted a "Building Zone Resolution," or ordinance,
dividing the city into various classes of use, height, and area
districts. [
Footnote 1] In the
several classes of area districts, which were designated A, B, C,
etc., the required open spaces on each lot were progressively
increased and the available building space correspondingly
decreased. This resolution also provided that the Board might from
time to time change the districts, either on its own motion or on
petition.
In the Spring of 1922, the relator acquired a plot of ground in
the Borough of Brooklyn, then in a C area district. It was also in
a residential section known as Midwood Manor, in which, under
private restrictive covenants contained in the deeds, no buildings
except detached dwelling houses could be erected before January 1,
1923. Disregarding these restrictive covenants, the relator
procured plans for a 40-family apartment house, conforming as to
open spaces, etc., to the requirements of a C area
Page 268 U. S. 649
district. It filed these plans with the Superintendent of the
Bureau of Buildings on September 1, 1922, for the purpose of having
them approved and obtaining a building permit. [
Footnote 2] The Superintendent, on the same day,
issued a temporary permit for the necessary installation of
footings and foundations, but, on the next day, revoked this
temporary permit because of a petition that had been forwarded by
other owners of property in Midwood Manor to the Board of Estimate
and Apportionment, to place this locality within an E area
district. On October 20, 1922, the Board, after a public hearing,
amended the zoning resolution of 1916 by changing this locality,
including the relator's plot, from a C to an E area district. On
the following day, the Superintendent refused approval of the
relator's plans because the proposed building was contrary to the
regulations of the zoning resolution applicable to an E area
district.
On January 25, 1923, the relator filed the present petition for
peremptory mandamus against the Superintendent. [
Footnote 3] In this petition, the relator did
not challenge in any way the constitutionality of the substantive
provisions of the zoning resolution, either in reference to E area
districts or otherwise, but did allege, in general terms, that the
amendment of October 20, 1922, deprived it of its property in
violation of the due process and equal protection clauses of the
Fourteenth Amendment. In other
Page 268 U. S. 650
words, it merely challenged the constitutionality of the
transfer of its property from a C to an E area district, but did
not challenge the constitutionality of the provisions in reference
to E area districts in and of themselves.
The petition was denied by the Supreme Court on the ground that
the building for which the relator desired a permit would, if
constructed, be in violation of the zoning resolution as amended,
and would be unlawful. There was no reference in the opinion to any
constitutional question, and the order of the Supreme Court was
affirmed by the Appellate Division and the court of appeals without
opinions.
1. The relator, by its assignments of error, challenges the
constitutionality of the substantive provisions of the zoning
resolution, especially as to the restrictions in an E area district
made applicable to its plot by the amendment of October, 1922, and
earnestly contends, in an elaborate argument, that such
restrictions are not regulatory, but confiscatory, and have no such
relation to the public welfare as justifies the exercise of the
police power of the state. This, broadly outlined, is the
contention made both in the oral argument and the relator's
brief.
It is clear, however, that no question as to alleged
unconstitutionality of the substantive provisions of the zoning
resolution or of the particular provisions relating to E. area
districts was presented by the petition for mandamus, and no such
question appears to have been presented to any of the state courts,
or to have been considered or determined by them. It is well
settled that this Court is without jurisdiction to review the
judgment of a state court on a writ of error by reason of a federal
question which was not raised below or called to the attention of
or decided by the state court.
Cincinnati, etc., Ry. v.
Slade, 216 U. S. 78,
216 U. S. 83;
El Paso & Southwestern R. Co. v. Eichel, 226 U.
S. 590,
226 U. S. 597.
The writ of error in the present case therefore does not bring up
for our determination
Page 268 U. S. 651
the question as to the constitutionality of the substantive
provisions of the zoning resolution as to which it is sought to
invoke our decision.
2. While there is an incidental statement in the relator's brief
that the amendment of the zoning resolution has resulted in
restricting the principal use to which relator's property may be
put, and also in the illegal confiscation of the plans prepared to
conform to a C area district, no argument is made as to this
question. And we find that the assignments of error do not, in any
tangible or specific way, present any question as to the
constitutionality of such amendment, but that, reasonably
construed, they relate merely to the constitutionality of the
substantive provisions of the zoning resolution made applicable to
the relator's property by the amendment. In short, the assignments
challenge the constitutionality of the restrictive provisions
themselves, and not the transfer from one area district to another.
Nor is there in the relator's brief any specification of the errors
relied upon, as required by Rule 21 of this Court, par, 2, cl. 2,
setting up separately and particularly any error asserted in
reference to the constitutionality of the amendment itself. This
question is therefore not properly before us even if its
presentation was in fact intended.
As the only federal question properly presented by the
assignments of error, namely, the constitutionality of the
substantive provisions of the zoning resolution, is one which, for
the reasons already stated, is not brought within our jurisdiction
by the writ of error, we conclude that, without consideration of
the merits, the writ must be dismissed, and it is so ordered.
Writ of error dismissed.
[
Footnote 1]
Each parcel of ground was placed within one of each of these
three classes of districts.
[
Footnote 2]
By the Building Code of the city, the Superintendent was
required to approve or reject any application or plan "within a
reasonable time," and, if approved, to promptly issue a permit
therefor.
[
Footnote 3]
Meanwhile, in a suit by an owner of other property in Midwood
Manor, the relator had been enjoined from constructing the
apartment house in violation of the restrictive covenants prior to
January 1, 1923. And an earlier petition filed by the relator for a
peremptory mandamus against the Superintendent had been denied
because of the pendency of this injunction, but without prejudice
to an application to be made after its vacation or termination. 204
App.Div. 883; 236 N.Y. 605.