Alsenas v. City of Brecksville

• Decision Date: 23 March 1972
• Citation: 281 N.E.2d 21,29 Ohio App.2d 255
• Parties: , 58 O.O.2d 455 ALSENAS, Appellee, v. CITY OF BRECKSVILLE et al., Appellants.
• Court: Ohio Court of Appeals

Page 255

29 Ohio App.2d 255

281 N.E.2d 21, 58 O.O.2d 455

ALSENAS, Appellee, v. CITY OF BRECKSVILLE et al., Appellants.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

March 23, 1972.

Syllabus by the Court

1. When it is claimed that zoning ordinances are unconstitutional as applied to particular land, as resulting in a taking of the land without due process of law, it will be presumed that the ordinances are valid, until the contrary is clearly shown, and that, to this end, the local legislative authority acted reasonably in adopting them and in permitting them to remain in force.

2. In such a case, the burden of proof is upon the complainant, and it is necessary that he clearly establish that the value of the land, or of his interest therein if the claim is based on a right to less than fee simple ownership, including the value of all rights appurtenant thereto or inuring therefrom, is actually and substantially impaired by enforcement of the ordinance claimed to be invalid. However, hardship, as shown by diminution of value, is not of itself sufficient to establish that particular ordinances are unconstitutional as applied to specific land.

3. To prevail in such a case the complainant must also clearly establish that the ordinances he attacks do not bear a real and substantial relation to the public health, safety, morals or general welfare and are, in turn, unreasonable or arbitrary, that is, in substance, that the local legislative authority could not have reasonably believed or, in permitting such legislation to remain in force, cannot reasonably believe that the necessity of requlation in the public interest outweighs qualitatively, the impact imposed on the individual property owner.

Albert M. Heavilin and Donald P. Mull, Cleveland, for appellee.

Earl T. Longley, Law Director, Cleveland, for appellants.

SILBERT, Judge.

This is a declaratory judgment action seeking to have the zoning ordinances of the city of Brecksville declared unconstitutional as applied to certain parcels of land which plaintiff-appellee has options to buy, conditioned on the outcome of this litigation. The trial court granted the relief sought. The defendants have brought the case to this court on appeal.

The parties agree that the land in question is of extremely uneven topography. It is presently zoned 'Class A' with a minimum sublot restriction of 100 feet by 200 feet or 20,000 square foot area. The gravamen of appellee's case is, as stated in his petition, that

'* * * due to the unusual topography of said property, * * * the refusal of Defendant(s) to rezone said land to a Cless A-1 (Apartment-Residential Use) constitutes a confiscation of said property and subjects Plaintiff to irreparable injury * * * (and) * * * the present zoning of said land for Single-Family Residence Use (Class A) is not economically feasible, practical, or possible, when examined in the light of the topography of the land and zoning requirements.'

Upon the evidence presented, the trial court concluded:

'That the uncontradicted evidence shows that due to the extreme and irregular topography of (the) land it is physically impossible to develop said area as a standard size subdivision, having approximately 180 sublots, as prescribed in a Class A or First Residential District (and) 'That the uncontroverted evidence also disclosed that as a result of the topography of said land, only 70 sublots could be developed, or only 38% of the normal 180 sublots on 108-acre subdivision, under the existing platting and zoning regulations.' (Emphasis added.)

Further finding that suggested alternative used 'do * * * not indicate any relationship as to the public peace, health, or safety of the municipality,' the court held:

'That to require a property owner to utilize said land for single-family residences, where the land is characterized by an extreme and irregular topography, deprives said owner of the legal and rightful use of his property with no commensurate benefit to the municipality and is, therefore, unreasonable and contrary to law (and that)

'* * * where evidence presented as to a comprehensive plan of land use as applied to a particular parcel or parcels of land bears no relationship to the public peace, health, safety, and general welfare of the municipality, then said comprehensive plan as applied to that parcel or parcels of land is confiscatory and unconstitutional.'

I.

At the outset it should be clearly recognized that this case is not an appeal from an administrative decision denying a variance or similar relief but an attack on the validity of the zoning plan, as adopted by the proper municipal authorities and as applicable to specific land. If it had been otherwise, questions of hardship might properly be in issue in their own right. Since it is not, such issues arise only secondarily. 'Actual or potential (financial) loss does not of itself render * * * (a) zoning ordinance invalid' (Curtiss v. Cleveland (1957), 166 Ohio St. 509, 144 N.E.2d 177, emphasis added), and a zoning ordinance may nevertheless be a valid legislative enactment, '(e)ven though (it) * * * destroys the value of property which has been uned in what has theretofore been a lawful undertaking * * *' (Curtiss v. Cleveland (1959), 170 Ohio St. 127, 163 N.E.2d 682).

It is apparently the appellee's position that this case is to be decided solely on the basis of what he imagines is an injury to himself resulting from a refusal by the municipality to permit him to undertake what he thinks might be a more profitable use of the land in question-a refusal which he believes may be justified only by the most immediate benefit to the municipality. Throughout the course of this litigation, he has sought to limit the case to an abstract attack on a particular zoning of these specific parcels and to as narrow a consideration of that question as possible. Compare appellee's position in Cleveland Trust Co. v. Village of Brooklyn (Cuyahoga Co. 1952), 92 Ohio App. 351, 360, 110 N.E.2d 440, appeal dismissed, 158 Ohio St. 258, 108 N.E.2d 679. (No debatable constitutional question.)

The land in question was zoned after careful consideration by both city and regional officials. It was proposed and adopted by the Brecksville City Council as part of an overall zoning plan for the entire community, commonly referred to as a 'master plan.' Planning, of course, embraces more than zoning, per se. As well as setting out a zoning plan providing for the orderly development of the community, the master plan set out planning criteria, including, inter alia, criteria as to maximum safe land slopes on which construction might be reasonably and safely permitted, criteria which should be met if apartment houses are to be constructed, and criteria governing traffic considerations as they affect municipal planning and development.

There is no claim here that those criteria were not followed. There is no claim that this land was treated differently than comparable land similarly situated. Nor has the appellee shown or attempted to show that the question of appropriate zoning of this land is severable from the broader question of municipal zoning as a whole, i. e., that the land on which he holds his options may be treated as other than an integral part of the total community insofar as planning is concerned. Compare Cleveland Trust Co. v. Village of Brooklyn, supra, 92 Ohio App. 351, syllabus paragraph 5, and at 362-363, 110 N.E.2d 440; see, also, Morris v. Roseman (Court of Appeals, Cuyahoga Co., 1954), 118 N.E.2d 429, 432, and State ex rel. Cook v. Turgeon (Cuyahoga Co. 1947), 84 Ohio App. 287, syllabus, paragraph 2, 77 N.E.2d 283, compare, Urmston v. City of North College Hill (Hamilton Co. 1961), 114 Ohio App. 213, syllabus, paragraph 3, 175 N.E.2d 203, appeal dismissed, 172 Ohio St. 426, 178 N.E.2d 36. (No debatable constitutional question.)

II.

In setting out the law which governs this case, it is perhaps useful to recall that zoning laws, while restricting land use, are actually enacted to control the abuses of men. As Judge Allen indicated, in the landmark case of Pritz v. Messer (1925), 112 Ohio St. 628, 638, 149 N.E. 30, 33:

'* * * society may restrict the use of property without making compensation therefor, if the restriction be reasonably necessary for the preservation of the public health, morals, or safety. This is so, because all property within the state is held subject to the implied condition that it will be used as not to injure the equal rights of others to the use and benefit of their own property.' (Emphasis added.)

Stated in broader terms, property is not taken for the public good insofar as any deprivation of value is the incidental, albeit unavoidable consequence of a bona fide purpose to prevent unsocial conduct-that is, to prevent persons, through restrictions on land use, from so conducting themselves as to cause injury to others, most likely but not necessarily limited to persons using adjacent or neighboring land. Consequently, the power to legislate in the zoning field is limited in principle only as the power to legislate generally is limited. The City of Brecksville, as a charter municipality, may 'adopt and enforce * * * such...