Cassell v. Lexington Tp. Bd. of Zoning Appeals, 34032

• Decision Date: 18 May 1955
• Docket Number: No. 34032,34032
• Citation: 163 Ohio St. 340,56 O.O. 313,127 N.E.2d 11
• Parties: , 56 O.O. 313 CASSELL, Appellant, v. LEXINGTON TOWNSHIP BOARD OF ZONING APPEALS, Appellee.
• Court: Ohio Supreme Court

Page 340

163 Ohio St. 340

127 N.E.2d 11, 56 O.O. 313

CASSELL, Appellant, v. LEXINGTON TOWNSHIP BOARD OF ZONING APPEALS, Appellee.

No. 34032.

Supreme Court of Ohio.

May 18, 1955.

Syllabus by the Court.

1. Section 3180-26, General Code, Section 519.02, Revised Code, which authorizes a board of trustees of any township to zone areas within such township, requires that such zoning regulations be in accordance with a comprehensive plan.

2. A township zoning regulation, which provides merely that a section of a township, one square mile in area, shall be zoned for farming, residential, commercial and recreational uses, and which does not specify therein which portions of said section may be used for any or all of such purposes or is not accompanied by a map designating such use areas, is not adopted in accordance with a comprehensive plan.

3. The refusal by a zoning commission or a board of zoning appeals to issue a building permit because of the cost and nature of a proposed dwelling, inadequate lot size and depressing of property values is arbitrary and unreasonable, where the zoning resolutions under which the commission or board purports to act do not specify any regulation as to such items.

Plaintiff, appellant herein, is the owner of five lots in the Lilly Place Allotment in Lexington Township, Stark County, Ohio, located in the southwest quarter of section 35 in said township. Appellant requested the building inspector of Lexington Township to issue to him five permits to erect residential homes to cost $10,000 to $11,000 each and to be located on Cornell Drive in said township. A hearing was had before the Lexington Township Zoning Commission on July 13, 1953, and on the following day said commission refused to issue the requested permits.

An appeal was taken to the Lexington Township Board of Zoning Appeals, appellee herein, which also refused to issue the building permits. Upon being ordered to so do by the Court of Common Pleas of Stark County, appellee made the following findings of fact and conclusions of law:

Findings of fact:

'1. The area in which application for permits to build were filed, is one of the finer residential areas adjacent to the city of Alliance and is occupied predominantly with homes in the $15,000 to $40,000 class, said homes for the most part being located on premises with frontages of 70 feet and upward.

'2. The area proposed to be used for the five dwellings for which permits were requested, being only 250 ft. frontage, is too small for five residence dwellings based upon the character of locality and the average size of residential lots already improved.

'3. The residence for which permits were requested are small five-room prefabricated dwellings without basement, which, as to size, design, finish and overall value are much lower in grade than the residences now occupying the area.

'4. In the opinion of this board, the building of the houses proposed under the application for permits by William K. Cassell would tend to materially decrease or depress property values in the immediate surrounding residential areas.

'Conclusions of law:

'Section 3180-26 of the General Code of Ohio provides that township areas may be zoned for the 'purpose of promoting public health, safety, morals, comfort or general welfare; to preserve and protect property and property values; to secure the most appropriate use of land * * *.'

'The zoning board of appeals was of the opinion that upon the basis of the declared purpose of zoning laws as contained in the Ohio statute set forth above, it is their proper function to deny or refuse permits in instances when it is felt that the property proposed to be built does not match the character of the improvements in the area in which the building is to be done and would have the effect of depressing property values on existing improvements.'

An appeal was taken by appellant from the order of appellee to the Court of Common Pleas of Stark County, which dismissed the appeal.

Appellant perfected an appeal to the Court of Appeals for Stark County, which modified the judgment of the Court of Common Pleas, 'so as to affirm the judgment of the Board of Zoning Appeals instead of dismissing the appeal * * * and the judgment of said board is hereby affirmed.'

The cause is now before this court upon the allowance of appellant's motion to certify the record.

Arthur M. Frutkin, Alliance, and Ian Bruce Hart, Canton, for appellant.

John Rossetti, Pros. Atty., Canton, John F. Gwin, Alliance, and William H. Allen, Canton, for appellee.

BELL, Judge.

The facts in this case are not complicated and the legal question involved may be easily stated: Does the zoning regulation adopted by the Board of Township Trustees of Lexington Township comply with the legislative authority found in Section 3180-26, General Code, Section 519.02, Revised Code? At the time of the adoption of the zoning regulation by the township trustees the enabling statute, Section 3180-26, General Code, effective September 25, 1947, read as follows:

'For the purpose of promoting public health, safety, morals, comfort or general welfare; to conserve and protect property and property values; to secure the most appropriate use of land; or to facilitate adequate but economical provision of public improvements, all in accordance with a comprehensive plan, the board of trustees of any township is hereby empowered to regulate by resolution the location, height, bulk, number of stories and size of buildings and other structures including tents, cabins and trailer coaches, percentages of lot areas which may be occupied, set back building lines, sizes of yards, courts and other open spaces, the density of population, the uses of buildings and other structures including tents, cabins and trailer coaches and the uses of land for trade, industry, residence, recreation or other purposes in the unincorporated...