Appeal of McDonald
| Decision Date | 11 January 1963 |
| Citation | 119 Ohio App. 15,196 N.E.2d 333,26 O.O.2d 100 |
| Parties | , 26 O.O.2d 100 Appeal of McDONALD. * |
| Court | Ohio Court of Appeals |
Henry & Hofstetter, Chardon, for appellee Chester Township trustees.
Appellant purchased four acres of ground in Chester Township, Geauga County, Ohio, in 1959. Subsequently, appellant applied for an authorization of a variance from the terms of the zoning resolution, which variance was refused by the Board of Zoning Appeals. Upon appeal, the Court of Common Pleas hearing the matter de novo concluded that the action of the Board of Zoning Appeals in refusing the variance was not arbitrary or erroneous, and constituted a reasonable exercise of the board's discretion.
The subject property lay in a residence zone. The variance sought was for a commercial use. It has been clearly held in Mentor Lagoons, Inc., v. Zoning Board of Appeals of Mentor Township, 168 Ohio St. 113, 151 N.E.2d 533, that the refusal of the Board of Zoning Appeals to grant a variance is reviewable on the question of the reasonableness of the decision. This review is of vast importance in the general scheme of zoning, since without it a property owner is without remedy in instances involving changing conditions which result in a continuation of a zoning restriction which is no longer in the public interest as to the proposed use of the specific property. This review for this purpose is specifically authorized by Section 519.14(B), Revised Code.
Zoning from its inception was recognized as a deprivation of individual property rights, valid only if such impairment of the full use of the property by the owner was justified by a law enacted pursuant to the police power and reasonably necessary for the preservation of the public health, safety and morals. Pritz v. Messer, 112 Ohio St., 628, 149 N.E. 30.
Thereafter, a comprehensive plan of zoning was held to validate a restrictive zoning law, and a long line of cases, cited and followed by the trial court in its opinion, held that this aspect of zoning was a legislative function and not subject to judicial review, if debatable. Shopping Centers of Greater Cincinnati, Inc., v. City of Cincinnati, 109 Ohio App. 189, 164 N.E.2d 593. It has been repeatedly held that there is a presumption that such legislation bears a direct relationship to the public welfare so as to require the property owner to show by a preponderance of the evidence that the classification causes serious damage and is not a necessary or reasonable exercise of the police power.
Recognizing that the original plan is valid as an exercise of legislative discretion unless arbitrary, and applying the original presumption that this discretion when exercised was in the public interest, we must observe that the public's interest in the use of various parcels or lots of property will change from time to time so that a comprehensive plan originally well designed on occasion becomes archaic and obsolete.
When this is so, the continuance of an obsolete plan is not in the public interest and the restrictions upon the individual's use of his property, originally valid, become an invalid and unconstitutional taking. Comprehensive rezoning is as difficult to actuate as is comprehensive zoning. There is a lethargy connected with rezoning that has an additional political significance. If an individual property owner is aggrieved by this lethargy in the presence of change, he...
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...power to do so to refuse to grant a variance." The court of common pleas decision is also in harmony with In re Appeal of McDonald (1963), 119 Ohio App. 15, 196 N.E.2d 333 , which holds that it is unlawful to "restrict the use of the [involved] property without a concomitant benefit to the ......
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