164 N.E.2d 180 (Ohio App. 8 Dist. 1960), Hilltop Realty, Inc. v. City of South Euclid

Citation:164 N.E.2d 180, 110 Ohio App. 535
Opinion Judge:KOVACHY, J.
Party Name:HILLTOP REALTY, INC., et al., Plaintiffs Appellees, v. CITY OF SOUTH EUCLID et al., Defendants Appellants.
Attorney:E. A. Plazer, Cleveland, for plaintiffs appellees., Chester Nikodym and Thomas M. Callaghan, Cleveland, for defendants appellants. Mr. E. A. Plazer, for appellees. Mr. Chester Nikodyn and Mr. Thomas M. Callaghan, for appellants.
Judge Panel:HURD, P. J., and SKEEL, J., concur.
Case Date:January 22, 1960
Court:Court of Appeals of Ohio
 
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164 N.E.2d 180 (Ohio App. 8 Dist. 1960)

110 Ohio App. 535

HILLTOP REALTY, INC., et al., Plaintiffs Appellees,

v.

CITY OF SOUTH EUCLID et al., Defendants Appellants.

Court of Appeals of Ohio, Eighth District, Cuyahoga.

January 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 [110 Ohio App. 536] 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

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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.' [110 Ohio App. 537]

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...

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