Hilltop Realty, Inc. v. City of South Euclid

• Decision Date: 22 January 1960
• Citation: 164 N.E.2d 180,110 Ohio App. 535
• Parties: , 82 Ohio Law Abs. 417, 13 O.O.2d 348 HILLTOP REALTY, INC., et al., Plaintiffs Appellees, v. CITY OF SOUTH EUCLID et al., Defendants Appellants.
• Court: Ohio Court of Appeals

Page 535

110 Ohio App. 535

164 N.E.2d 180, 82 Ohio Law Abs. 417, 13 O.O.2d 348

HILLTOP REALTY, INC., et al., Plaintiffs Appellees, v. CITY OF SOUTH EUCLID et al., Defendants Appellants.

Court of Appeals of Ohio, Cuyahoga County.

Jan. 22, 1960.

E. A. Plazer, Cleveland, for plaintiffs appellees.

Chester Nikodym and Thomas M. Callaghan, Cleveland, for defendants appellants.

KOVACHY, Judge.

This is an appeal on questions of law from a judgment entered in the Court of Common Pleas of Cuyahoga County restraining and enjoining the County Board of Elections from preparing ballots for a 'referendum relating to Ordinance No. 15-58 of the City of South Euclid for an election to be held on November 3, 1959, or on any subsequent date.'

The facts were stipulated in the trial court. Only facts essential for our consideration here are stated.

On December 15, 1958, plaintiffs appellees acquired fee simple title to a parcel of vacant land in South Euclid, which property at the time was zoned in the single family use classification under a general and comprehensive zoning ordinance enacted some years before. On March 9, 1959, South Euclid City Council, upon the application of plaintiffs, rezoned the property to a multi-family use classification by amending the comprehensive zoning ordinance. Such amendment is designated Ordinance No. 15-58. All statutory requirements with respect thereto were fully met. This amendatory ordinance was vetoed by the Mayor, but was repassed over the veto by the Council. A referendum petition, proper in statutory form and containing the proper heading and the requisite number of valid signatures of electors of the city of South Euclid as required by statutes relating to initiative and referendum, was then filed with the city auditor. The auditor, as was his duty, certified the same to the County Board of Elections for placement upon the ballot for the general election to be held November 3, 1959, and plaintiffs filed their petition praying that the referendum be enjoined. The trial court rendered the judgment indicated above in favor of the plaintiffs, from which the defendants here appeal.

Defendants appellants claim that the trial court was in error in holding that the amendatory zoning ordinance was not amenable to referendum procedures.

The controlling question presented therefore is: Is a zoning ordinance passed by the Council of a municipal corporation that amends a comprehensive zoning ordinance subject to referendum?

Article VIII, Section 1 of the Charter of the city of South Euclid reads:

'Initiative, Referendum and Recall.

'Section 1. Initiative and Referendum.

'Ordinances and other measures may be proposed by initiative petition and adopted by election, and ordinances and other measures adopted by the Council shall be subject to referendum, to the extent and in the manner now or hereafter provided by the Constitution or the Laws of Ohio.' (Emphasis ours)

We must therefore look to the constitution and the laws of Ohio to determine to what 'extent' 'ordinances and other measures adopted by the Council' of South Euclid are subject to referendum.

Article II, Section 1f of the Constitution of the State of Ohio reads:

'The initiative and referendum powers are hereby reserved to the people of each municipality on all questions such municipalities may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law.'

The legislative authority of the city of South Euclid--Article II, Section 1, of the Charter--is vested 'in a Council of seven members elected at large'. Under Section 713.07 of the Revised Code, the legislative authority of a municipality is empowered to pass on legislation necessary to establish and carry out a comprehensive zoning plan for the municipal corporation and such legislative authority, under Section 713.10 of the Revised Code, is empowered to 'amend or change the number, shape, area, or regulations of or within any district * * *.' It seems plain to us that the Council of the city of South Euclid when passing this amendatory ordinance, changing plaintiffs' property from a single family use classification to a multi-family use classification, was concerned with a question authorized by law to be controlled by legislative action. If this be true, such legislative action comes within the purview of Article II, Section 1f of the constitution of the State of Ohio, and is therefore subject to a referendum.

Plaintiffs concede that a comprehensive zoning ordinance is subject to referendum but contend that a zoning ordinance of a city that amends an existing comprehensive zoning ordinance is not a legislative act but rather a matter of administration, since it merely serves to put into execution a previously enacted law, and as such is not amenable to the referendum procedures. They cite a case decided by the Supreme Court of Nebraska, Kelley v. John, 162 Neb. 319, 75 N.W.2d 713, in support of this contention. We have read this case. We are neither persuaded by its reasoning nor convinced that the applicable laws of Nebraska and Ohio are analagous, as claimed by the plaintiffs.

We cannot agree that an amendment to a comprehensive zoning ordinance by a legislative body under Ohio law is administrative in nature. The change of the classification of the parcel of land here from a single family use to multi-family use, in our view of the matter, was a legislative act of the same nature and character as was the enactment of the original ordinance because:

1. Council was specifically authorized by statutory law to act in the matter with respect to each ordinance;

2. Council was called upon to make and declare a rule of conduct in the use of this particular parcel of land with respect to each ordinance by the exercise of independent discretion and judgment;

3. Council had to determine in each case whether the use classification decided upon promoted the public safety, health, morals, convenience, prosperity and welfare of the city;

4. Council was required to follow the procedures provided by statutory law with respect to each ordinance and the procedures are alike in substance;

5. Each ordinance was subject to the veto by the Mayor.

The Supreme Court in State ex rel. Fairmount Center Co. v. Arnold, 138 Ohio St. 259, 34 N.E.2d 777, 778, 136 A.L.R. 840, states in syllabus two:

'2. A municipal council, acting under Sections 4366-7 to 4366-11, General...