City of Akron v. Chapman

• Decision Date: 23 December 1953
• Docket Number: No. 33534,33534
• Citation: 42 A.L.R.2d 1140,160 Ohio St. 382,116 N.E.2d 697
• Parties: , 42 A.L.R.2d 1140, 52 O.O. 242 CITY OF AKRON v. CHAPMAN.
• Court: Ohio Supreme Court

Page 382

160 Ohio St. 382

116 N.E.2d 697, 42 A.L.R.2d 1140, 52 O.O. 242

CITY OF AKRON v. CHAPMAN.

No. 33534.

Supreme Court of Ohio.

Dec. 23, 1953.

Syllabus by the Court.

1. A comprehensive zoning ordinance is a valid exercise of the police power, where such ordinance limits the future expansion of a lawful business conducted on property in a zoned area and which was in existence at the time of the passage of such zoning ordinance, or which ordinance limits the future addition, extension or substitution of buildings in which such business was being conducted at the time of the passage of such ordinance, and which ordinance has a substantial relationship to the public health, safety, morals or general welfare.

2. The right to continue to use one's property in a lawful business and in a manner which does not constitute a nuisance and which was lawful at the time such business was established is within the protection of Section 1, Article XIV. Amendments, United States Constitution, and Section 16, Article I of the Ohio Constitution, providing that no person shall be deprived of life, liberty or property without due process of law.

3. The provision of a comprehensive zoning ordinance is unconstitutional as taking property without due process of law and as being an unreasonable exercise of the police power, where it grants to the city council discretion to discontinue and remove a lawful nonconforming use of property in a zoned area, which use existed at the time of the passage of the zoning ordinance and continued thereafter without interruption and without material change, when in the council's opinion such nonconforming use has been permitted to continue for a reasonable time.

On August 15, 1922, council of the city of Akron, the plaintiff and appellee herein, enacted a comprehensive zoning ordinance. Certain property of the defendant, appellant herein, was included in a residential district under said ordinance. The defendant or his father, his predecessor in title, has operated a junk yard business on said property since 1916.

The zoning ordinance provides that a nonconforming use shall be discontinued when, in the opinion of the city council, such use has been permitted to exist or continue for a reasonable time.

In January 1950, the council passed another ordinance which describes the defendant's property by metes and bounds and names him as the owner thereof. In its provisions the council determined that as of January 1, 1951, the nonconforming use of said property would have existed for a reasonable period of time, and that it should then conform to the classification provided for in the zoning ordinance.

The defendant continued to use said property for the conduct of his junk yard business after January 1, 1951.

Thereafter the city of Akron instituted an action in the Common Pleas Court of Summit County, under the provision of Section 4366-12a, General Code, which grants municipalities the power to enforce zoning ordinances by injunction.

The case was submitted to the trial court on the pleadings and statements of counsel. The court denied the requested injunction and dismissed the petition. It found also that the 1950 ordinance is invalid because it shows on its face that it is directed against one individual, that it is not directed against all individuals in like situations, that it lacks the essential elements of equality, impartiality and uniformity, and that it is discriminatory.

An appeal on questions of law was taken by the city to the Court of Appeals which reversed the judgment of the trial court, entered final judgment in favor of the city, enjoined the defendant from using the property in the operation of his junk business and ordered him to remove all his materials from the property within 60 days.

The matter is now before this court on appeal from the judgment of the Court of Appeals.

Roy E. Browne, Director of Law, and Hollis P. Allan, Akron, for appellee.

Bixler & VanBerg, Akron, for appellant.

LAMNECK, Judge.

There is no claim of nuisance in this case. The sole issue is whether the city may terminate the lawful nonconforming use, which was in existence at the time of the passage of the zoning ordinance, after the use has been permitted to continue for an extended period.

The zoning ordinance passed in 1922 contains the following provision:

'A building, existing at the time of the passage of this ordinance, which does not conform to the regulations of the use district in which it is located may remain for a reasonable period and the existing use of such building may be continued or extended to any portion of such building which portion was arranged or designed for such use at the time of the passage of this ordinance, but a nonconforming use shall not be otherwise extended. A nonconforming use shall be discontinued and removed when, in the opinion of the council, such use has been permitted to exist or continue for a reasonable time.' (Emphasis ours.)

The defendant contends:

1. The council of a municipality is prohibited by the Fourteenth Amendment to the United States Constitution and by Section 2, Article I of the Constitution of this state, from enacting a zoning ordinance which outlaws an existing lawful business, unless compensation is paid therefor.

2. If a council has that power, the enactment of the ordinance passed in January 1950, directed to him individually, is discriminatory and in violation of the same constitutional provisions.

Section 1, Article XIV, Amendments, United States Constitution, and Section 16, Article I, Ohio Constitution, both provide that no person shall be deprived of life, liberty or property without due process of law.

Section 2, Article I of the Ohio Constitution, provides that government is instituted for the equal protection and benefit of all citizens.

It has been uniformly held that the enactment of a comprehensive zoning ordinance, which has a substantial relationship to the public health, safety, morals and the general welfare and which is not unreasonable or arbitrary, is a proper exercise of the police power. See Pritz v. Messer, 112 Ohio St. 628, 149 N.E. 30, and State ex rel. City Ice & Fuel Co. v. Stegner, Dir., 120 Ohio St. 418, 166 N.E. 226, 64 A.L.R. 916.

Comprehensive zoning ordinances generally contain regulations which are divided into two classes: First, those which regulate the size and type of construction of buildings within specified areas, and, second, those which prescribe the use to which buildings within certain specified districts may be put.

Most comprehensive zoning ordinances apply to prospective use only, and contain no provisions making them retroactive to cover an existing structure or to terminate an existing use.

This court has consistently approved the constitutionality of comprehensive zoning ordinances containing provisions regulating prospective use.

In the Stegner case, supra, it was held:

'The provision of a zoning ordinance, limiting the subsequent addition, extension, or substitution of business buildings, or the use thereof, existing in a...