Ambler Realty Co. v. Village of Euclid, Ohio

• Decision Date: 14 January 1924
• Docket Number: 898.
• Parties: AMBLER REALTY CO. v. VILLAGE OF EUCLID, OHIO, et al.
• Court: U.S. District Court — Northern District of Ohio

297 F. 307

AMBLER REALTY CO. v. VILLAGE OF EUCLID, OHIO, et al.

No. 898.

United States District Court, N.D. Ohio, Eastern Division.

January 14, 1924

Baker Hostetler & Sidlo, of Cleveland, Ohio (N. D. Baker, of Cleveland, Ohio, of counsel), for plaintiff.

James Metzenbaum and W. C. Boyle, both of Cleveland, Ohio, and Alfred Bettman, of Cincinnati, Ohio, for defendants.

WESTENHAVER District Judge.

This suit is brought to have declared null and void and enforcement enjoined of Ordinance No. 2812, enacted by the municipal council of the village of Euclid, November 13 1922, and amended by Ordinances Nos. 3367 and 3368, enacted June 11, 1923. This ordinance is what is popularly called a 'zoning ordinance,' i.e., one imposing a variety of restrictions upon the use of land within the village limits. After issue joined, the evidence was taken and submitted in deposition form.

This case is obviously destined to go higher. On appeal in equity cases, a reviewing court weighs the evidence, and when taken in deposition form it can do so as well as the trial court hence it is unnecessary to make special findings of fact. Much of the evidence is immaterial; still more of it is without weight. Upon the facts the case really comes down to the provisions of the ordinance, certain physical facts characterizing the situation as it affects plaintiff's land, and the nature and extent of the impairment of its value by the ordinance restrictions. None of the important or controlling facts are in dispute, with the single exception of the extent of that damage; but even here there is no substantial denial that this damage is not only in excess of the jurisdictional amount but is substantial. As an instance of immaterial testimony may be noted the large volume relating to the inadequacy of the present water supply of the village of Euclid. Manifestly, the police power of the village to legislate in the interests of the public health or public safety cannot be enlarged by its failure or refusal to perform its fundamental duty of providing an adequate water supply. Upon the whole case, it is sufficient to say that the material and substantial allegations of plaintiff's bill are sufficiently proved.

The village of Euclid is a suburb of the city of Cleveland and a part of its great metropolitan and industrial area. It comprises approximately 16 square miles. If fully built up as a city, it will accommodate a population of several hundred thousand, but its present population is only a few thousand. It is traversed from east to west by the New York Central and Nickel Plate Railways, both being through interstate trunk lines. It is likewise traversed from east to west by three main thoroughfares: the Lake Shore Boulevard, near to its northerly boundary, parallel with the south shore of Lake Erie; St. Clair avenue, through its center; and Euclid avenue near its southern side. Plaintiff owns a tract of 68 acres of unimproved and unallotted land lying a short distance east of the easterly limits of the city of Cleveland. This tract is bounded on the north by the Nickel Plate Railway, and on the south by Euclid avenue. Industry and population have followed these railways and street highways eastwardly, and manufacturing plants have already been established within the village and beyond its limits along the line of the railways, and to a lesser extent along the line of St. Clair and Euclid avenues. From the Public Square in Cleveland throughout its entire length, including spots in and beyond Euclid village, Euclid avenue has become the great business and commercial street of the metropolitan area of Cleveland, and such, the evidence shows, is its natural, obvious, and ultimate use within and beyond the village of Euclid. Plaintiff's tract is rectangular in form, having a frontage on Euclid avenue and the Nickel Plate Railway of approximately 1,800 feet, and a depth of approximately 1,950 feet. Ordinance 2812, with its amendments, restricts the present and future use of this land. The frontage on Euclid avenue to a depth of 150 feet may be used only for a single-family dwelling. The next 470 feet in the rear thereof may be used only for two-family dwellings. The next 130 feet farther to the rear may be used only for apartment dwellings and not for any form of trade or industry. The remaining 1,200 feet north to the Nickel Plate Railway may be used for industrial and manufacturing purposes. Many additional restrictions are imposed as to the height of any and all kinds of buildings, as to the lot area which may be built on and which must be left free, and as to the set-back distances from street and lot lines. All industrial, manufacturing, trade, and commercial uses or occupations, including wholesale and retail stores, are forbidden upon the part of plaintiff's land restricted for single or double family dwellings and apartment houses. The entire area of the village, comprising nearly 16 square miles, and now largely farm land, is restricted in like manner to six different classes of uses. In the restrictive scheme, however, no provision is made, and none seems to be contemplated, for the opening of necessary highways or the preservation of land for that purpose. The evidence clearly shows that the normal and reasonably to be expected use and development of plaintiff's land along Euclid avenue is for general trade and commercial purposes, particularly retail stores and like mercantile establishments; and that the normal and reasonably to be expected use of the residue, including the restricted area, is for industrial and trade purposes. The evidence also clearly shows that the restrictive provisions of the ordinance in question impair the salability of this land and depress its present market value to the extent of several hundred thousand dollars. These restrictions, if sustained, the evidence further shows, will prevent the normal and reasonably to be expected increased value due to the availability of this land for trade, industrial, and commercial purposes.

1. No doubt exists upon the foregoing facts as to the jurisdiction of a court of equity to grant relief if the ordinance is in fact void. It was enacted under color of authority and is apparently valid. While it is outstanding, it creates a substantial cloud upon plaintiff's title, and the only adequate relief is a decree ascertaining and declaring its invalidity and canceling the cloud. See Kennington v. Palmer, 255 U.S. 100, 41 Sup.Ct. 303, 65 L.Ed. 528; United States v. Swartz, 255 U.S. 102, 41 Sup.Ct. 304, 65 L.Ed. 531; Willard v. Palmer, 255 U.S. 106, 41 Sup.Ct. 305, 65 L.Ed. 534; Adams v. Tanner, 244 U.S. 590, 37 Sup.Ct. 662, 61 L.Ed. 1336, L.R.A. 1917F, 1163, Ann. Cas. 1917D, 973; Truax v. Raich, 239 U.S. 33, 36 Sup.Ct. 7, 60 L.Ed. 131, L.R.A. 1916D, 545, Ann. Cas. 1917B, 283; Block v. Hirsh, 256 U.S. 135, 41 Sup.Ct. 458, 65 L.Ed. 865, 16 A.L.R. 165; Brown Holding Co. v. Feldman, 256 U.S. 170, 41 Sup.Ct. 465, 65 L.Ed. 877; Ex parte Young, 209 U.S. 123, 28 Sup.Ct. 441, 52 L.Ed. 714, 13 L.R.A.(N.S.) 932, 14 Ann.Cas. 764.

2. Nor, in my opinion, can it be doubted that the ordinance is void because its provisions are in violation of article 1, Sec. 1, Constitution of Ohio, which provides, 'All men * * * have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property,' and of article 1, Sec. 19, which provides, 'Private property shall ever be held inviolate,' and that, 'Where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money, and such compensation shall be assessed by a jury,' and also of section 1 of the Fourteenth Amendment to the Constitution of the United States, which provides, 'Nor shall any state deprive any person of life, liberty, or property, without due process of law. ' In reaching this conclusion, I assume that the village of Euclid, by virtue of article 18, Sec. 3, of the Constitution of Ohio, and section 4366-- 7 to 4366-- 12, inclusive, General Code of Ohio, possesses all the police power sought to be exercised which the Ohio Legislature might properly confer upon a municipality.

3. The constitutional validity of an ordinance of this nature under the Ohio Constitution has not been expressly passed on by the state Supreme Court. Euclid-Doan Co. v. Cunningham, 97 Ohio St. 130, 119 N.E. 361, L.R.A. 1918D, 700, involves merely building code restrictions of the kind usually enacted to prohibit fire risks and hazards and always and everywhere held to be within the state police power. Ohio Co. v Rendigs, 98 Ohio St. 257, 120 N.E. 836, involves merely the power to prohibit the maintenance in a residence district of a business which upon the facts as well as by common experience either is or may become a nuisance, and exercises only the well-known power to abate existing nuisances or to prevent the creation of nuisances in the future. In Pontiac Co. v. Commissioners, 104 Ohio St. 447, 135 N.E. 635, 23 A.L.R. 866, it was said that the imposition of restrictions by the exercise even of the power of eminent domain upon property contiguous to a public park, some of which restrictions were akin to those now in question, would be a taking of property not for public use, and would violate the provisions protecting the right of property, already cited, of the Ohio Constitution. However, these statements of the law in the opinion are not incorporated in the syllabi, and inasmuch as the syllabi are, by rule of court, to be prepared and approved as embodying the law of the case, and inasmuch as the decision of this question was not indispensable in disposing of the case, these statements may be regarded as dicta, no matter...