Motion Picture Herald (Apr-Jun 1931)

April 11, 1931 Motion Picture Herald 65 The Law of Theatre Construction failure to complete the building within the time specified in the contract, because he had failed to transact the business in writing with the architect pertaining to the alterations and the desired extension of time. The court held the contractor not liable for payment of liquidated damages for delay in completing the building, but held that he was entitled to payment for the extras, and said : "One may not by a course of conduct induce another to act upon the understanding that there is a waiver of strict performance, thereby obtain an advantage or benefit and repudiate liability for fair compensation by invoking the terms of the contract. To do so is inequitable." 11 Building Permits GENERALLY SPEAKING, a zoning ordinance is deemed valid and enforceable, unless the complaining party proves that its restrictions are unreasonable. For instance, in Quardt vs. Public (142 Atl. 435), it was shown that an owner of land engaged an architect to prepare plans and specifications for the erection of a building. These plans were submitted to and approved by the municipal board. The owner then applied to the building inspector for a permit to construct the building. The building inspector and Board of Adjustment refused to grant the permit in view of a city ordinance which precluded the erection of this kind of building in the zone known as "the small volume residential district." The owner carried the case to the higher court, but failed to prove that the ordinance was unreasonable. This court sustained the verdict previously rendered, saying: "There was no evidence offered in the present case before the Board of Adjustment to the effect that the provisions of the zoning ordinance were unreasonable. The presumption is that they are reasonable. This court will not disturb the action of a Board of Adjustment unless its action is shown by evidence to be wrong." Need for Caution IT IS WELL settled that theatre owners should exercise great care before beginning the construction of a theatre building, and be assured that the tribunal or person who has authority to issue a permit to construct the building has proper power and authority. For example, in Smith vs. Kearney Zoning Board of Appeals (143 Atl. 151), it was disclosed that the owner of land applied to the superintendent of buildings for a permit to erect a building. The permit was refused upon the contention that the land was located in a district restricted to one-family residences under a zoning ordinance. {Continued from page 34) On April 12th, the owner appealed this decision to the Zoning Board of Appeals. The men comprising this board, after reviewing the facts of the case, reversed the superintendent's decision and .granted a permit to the owner of the land to erect the building. After the permit had been issued and the owner had expended about $2,500 toward foundation work for the building, the controversy was taken to the higher court on another appeal on the contention that the Zoning Board of Appeals, that granted the building permit, had been automatically abolished by a statute enacted on April 3rd. The higher court held the permit issued by the Zoning Board of Appeals void, whereby the owner was prevented from completing the building. Also, in the leading case of Leech vs. Campbell & Duncan (142 Atl. 364), it was disclosed that a man owning a tract of land and desiring to erect a building thereon, submitted plans and specifications to the building commission of his city who approved the same and issued a permit. After the owner had entered into contracts with contractors and had begun the construction of the building, the township committee revoked the permit and referred the matter to the Board of Adjustment. The property owner appealed to the court contending that a permit once granted and acted upon cannot be revoked, particularly if the owner expends money in good faith relying upon the validity of the permit. However, the court refused to grant the permit. Yet, it is important to know that in London vs. Robinson (271 Pac. 921), after an owner of a lot had secured a building permit, adopted plans and specifications, and entered into a contract with a contractor for the erection of a building, the city then passed an ordinance which made it unlawful to construct the building in the selected location. Although the lower court ordered the owner not to complete the building, the higher court reversed this verdict and quoted the law on the subject, as follows: "Zoning regulations ordinarily have no retroactive effect unless the authorizing legislation specifically so states. By force of statute or ordinance zoning regulations may not have the effect of revoking permits for buildings granted prior to their adoption." Zoning Law Interpretation IT IS WELL established law that zone ordinances, which restrict the construction of theatre buildings in certain sections, are valid and enforceable. However, such laws will be construed reasonably to effect the intention of the framers of the law. For illustration, 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 theatre buildings in a residential section. 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 theatre building on a corner. It was discovered that a portion of the proposed theatre, 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 theatre building, notwithstanding the fact that a portion of the structure 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 theatre 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 theatre into the more restricted district is without evidence to support it." Ill Building Contracts IT IS WELL settled that if for any ordinary reason a theatre owner fails to fulfill his part of a building or repair contract, the contractor is legally entitled to discontinue further work and sue to recover the profit he may have earned had the theatre owner not breached the contract. For instance, in the late case of Hamilton vs. Stephens (215 N. W. 321), it was disclosed that a firm of contractors contracted to perform certain construction work. The contract provided that the owner of the property should pay the contractors' weekly pay roll as part payment on the contract price. The contractors had performed 50 per cent of the work when the owner refused to meet a weekly pay roll. The contractors immediately discontinued further work and sued the property owner for breach of the contract claiming anticipated profits. It is interesting to observe that the court held the owner liable, stating the following important law: "If he did not have just ground for terminating the contract, he may still terminate it, but, if he does terminate it under those conditions, then he is liable for any damages that result to the plaintiffs