Appeal of Clements
| Citation | 2 Ohio App.2d 201,207 N.E.2d 573 |
| Parties | , 31 O.O.2d 328 Appeal of CLEMENTS. |
| Decision Date | 20 May 1965 |
| Court | United States Court of Appeals (Ohio) |
Stanley G. Webster and Donald K. Barclay, Cleveland, for appellant-appellee Verona Clements.
Luikart & Luikart and Clarence C. Fowerbaugh, Cleveland, for appellant Stanley H. Johnston.
William T. Monroe, Director of Law, for appellee City of Euclid.
We have before us an appeal on questions of law from a judgment rendered in the Court of Common Pleas of Cuyahoga County. The action of In re Appeal of Verona Clements was an appeal to the court below from the passage of Ordinance No. 48-1963 by the Council of the city of Euclid on March 4, 1963, wherein certain real property owned by appellant Stanley H. Johnston in Euclid, Ohio, was rezoned from U2 to U4 classification, and also Ordinance No. 49-1963, passed on the same day, which granted a variance so that such real estate owned by Johnston could be used for purposes of erecting a funeral home.
The appeal of Verona Clements to the Court of Common Pleas, case No. 779,742 therein, was tried together with case No. 780,496, Benton Village One et al., v. City of Euclid et al., an action for declaratory judgment, injunction, and other relief. Even though the parties in the two cases were different, the issues were deemed similar enough to be tried together. All the evidence presented was to be considered in the determination of each of the two cases.
Separate journal entries were filed in the cases in the trial court and then separate appeals were taken to this court, the Benton Village case being numbered 27059. The appeals were heard together in this court and the briefs, documents and other papers, by agreement of counsel, are to be used interchangeably as far as the two appeals are concerned.
We are considering, in this opinion, only appeal No. 27058, the appeal in the case of Verona Clements.
Five of the six assignments of error relate to this appeal. They are as follows:
1. Error in failure to grant the defendant-appellant's motion to dismiss the appeal of Verona Clements on the basis that the court was without jurisdiction to hear the same, which motion was made at the beginning of the trial and repeated at its conclusion.
2. Error in the court's finding that it had jurisdiction to hear the appeal of Verona Clements.
4. That the decision, judgment and finding of the court in both cases are against the manifest weight of the evidence and are contrary to law.
5. That the evidence submitted in both cases is without sufficient proof to warrant the finding and judgment rendered by the court in each case.
6. Other errors manifest on the face of the record.
In connection with assignments of error one and two we will first consider Ordinance No. 48-1963 which rezoned the property in question from U2 to U4 classification. The ordinance reads as follows:
S/L 1, 2, 3, 4, 5 & 6 in Neitzel's
S. H. Johnson [sic]
'By--Mr. Erickson (by request)
'An ordinance to amend Section 1 of Ordinance No. 2812, as amended, and the map and map designations, which map and map designations, as amended, form a part of said Ordinance No. 2812, as relates to and designates U2 and U4 use districts relative to certain property.
'Whereas, public notice and hearings have been given in connection with the changing of the U2 and U4 use districts relative to the hereinafter described property, as is established by Ordinance No. 2812, passed by the Council of the village of Euclid on the 13th day of November, 1922, which ordinance has from time to time been amended, and
'Whereas, the amendment of said Ordinance No. 2812 which pertains to the hereinafter described property, by transferring said property from U2 use district to U4 use district, has been referred to the City Planning and Zoning Commission by this council, and
'Whereas, the City Planning and Zoning Commission has considered such amendment and proposed change, which will add to the present U4 use district by the inclusion of the property hereinafter described, and has filed its recommendation thereon, and
'Whereas, in the interest of the general welfare of the city of Euclid and in order to promote the general advantages of public peace, safety, morals, covenience and prosperity of the inhabitants of the city of Euclid, this council is of the opinion that the U4 use district should be extended so as to include the property hereinafter described:
'Now, therefore, be it ordained by the Council of the city of Euclid, state of Ohio:
'Situated in the city of Euclid, county of Cuyahoga and state of Ohio and known as being part of original Euclid Township Tract No. 19, bounded and described as follows:
'Beginning at a point in the southeasterly line of Lake Shore Boulevard, 80 feet wide, distant 419.12 feet northeasterly, measured along said southeasterly line, from the westerly line of land conveyed to Mary Ann Beck and Jacob G. Beck, by deed dated May 27, 1861 and recorded in volume 112, Page 34 of Cuyahoga County Records; thence southwesterly along the southeasterly line of Lake Shore Boulevard, 180.45 feet to the easterly line of East 232nd Street, proposed; thence southerly an included angle of 129~3'10"' with the last described line and along the easterly line of East 232nd Street 215.76 feet, thence easterly at right angles to the last described line 134.19 feet; thence northerly 329.58 feet to the place of beginning, and being further known as Sublots Nos. 1, 2, 3, 4, 5 and 6 in the Neitzel's Boulevard Allotment, proposed, dated October 21, 1929, made by I. T. Stewart, civil engineer, be the same more or less, but subject to all legal highways;
now designated by said Ordinance No. 2812, as amended, and by the map and map designations as now being included in the U2 use district, hereby is extended and added to, and is marked U4, so that said property shall be included in the U4 use district and shall be so marked upon the proper map and map designations of said Ordinance No. 2812, as amended; conditioned, however, upon (1) landscaping and screening in accordance with Ordinance No. 132-1961; (2) construction and maintenance of a twelve foot (12') buffer zone between the parking lot and adjoining property on the southerly line of said property; and (3) the owner of the above described property filing with this council his acceptance of the conditions set forth hereinabove within ten (10) days after the passage of this ordinance.
'Section 2: That so much of Section 1 of Ordinance No. 2812, as amended, as relates to the U4 use district shall be extended to include the territory described in Section 1 of this amending ordinance.
'Section 3: That the map as adopted November 13, 1922, and as thereafter amended, is hereby amended to conform with the change of the property described in Section 1 of this ordinance from U2 use district to U4 use district.
'Section 4: That so much of Ordinance No. 2812, as amended, and the map designations as placed the above described property in U2 use district is hereby repealed.
'Section 5: That this ordinance shall be in full force and effect from and after the earliest period allowed by law.
'Attest:
'________
________
Clerk of Council
President of Council
'Passed: 3-4-63
Approved:
________
'Mayor'
The action of the Council of the city of Euclid, the legislative body of this city, in adopting this ordinance was unquestionably a legislative act, and the Administrative Appeals Act (Chapter 2506, Revised Code) providing for appeals from actions of administrative officers, tribunals and commissions, does not permit appeals from acts of legislative bodies. See Remy v. Kimes, 175 Ohio St. 197, 191 N.E.2d 837 and Berg v. City of Struthers, 176 Ohio St. 146, 198 N.E.2d 48.
The court below found, as stated in its journal entry, 'that it has jurisdiction to hear this appeal from the action of the Euclid City Council, said council having approved the action of the Euclid Planning and Zoning Commission regarding said change in zoning.'
In our opinion, the trial court was in error in this respect and should have dismissed the appeal on motion of defendant Johnston as far as Ordinance No. 48-1963 was concerned.
We come now to a consideration of Ordinance No. 49-1963 which granted a variance to Johnston to enable him to construct an undertaking establishment on the property in question. Ordinance No. 49-1963 reads as follows:
'By--Mr. Erickson (by request)
'An ordinance establishing and permitting a variance in a U4 use district for a mortuary or undertaking establishment on property owned by Stanley H. Johnson [sic] and known as Sublots Nos. 1, 2, 3, 4, 5 and 6 in Neitzel's Boulevard Allotment, located at the southeast corner of East 232nd Street and Lake Shore Boulevard.
'Whereas, the owner of said property requested the City Planning and Zoning Commission to approve the construction of a mortuary or undertaking establishment thereon as a variance as set forth in Section 1591.01 of the Codified Ordinances of the city of Euclid, Ohio; and the proposals with respect to said mortuary or undertaking establishment were considered by the City Planning and Zoning Commission; and
'Whereas, the City Planning and Zoning Commission made a recommendation that the request for variance for the erection of a mortuary or undertaking establishment be granted.
'Now, Therefore, be it ordained by the Council of the city of Euclid, state of Ohio:
'Section 1: That this council, after public hearing, has determined that a variance be granted to Stanley H. Johnson [sic] to construct a mortuary or undertaking establishment on Sublots Nos. 1, 2, 3, 4, 5 and 6 in Neitzel's Boulevard Allotment, located at the southeast corner of East 232nd Street and Lake Shore Boulevard, subject to landscaping and screening as...
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