City of Akron v. Klein

• Decision Date: 13 July 1960
• Docket Number: No. 36349,36349
• Citation: 168 N.E.2d 564,171 Ohio St. 207
• Parties: , 12 O.O.2d 331 CITY OF AKRON, Appellant, v. KLEIN, Appellee.
• Court: Ohio Supreme Court

Page 207

171 Ohio St. 207

168 N.E.2d 564, 12 O.O.2d 331

CITY OF AKRON, Appellant, v. KLEIN, Appellee.

No. 36349.

Supreme Court of Ohio.

July 13, 1960.

Syllabus by the Court

1. Section 715.44, Revised Code, must be interpreted as though the word 'public' appeared before the word 'nuisance.'

2. On an appeal on questions of law and fact, the Court of Appeals has the power and right to substitute its judgment on the facts for that of the Common Pleas Court.

3. The portion of an ordinance requiring a ten-foot setback line in the operation of a junk yard in a residential-use district cannot be enforced against one who was operating such a junk yard as a nonconforming use prior to the enactment of such ordinance. City of Akron v. Chapman, 160 Ohio St. 382, 116 N.E.2d 697, 42 A.L.R.2d 1140, followed.

4. The portion of an ordinance requiring a junk yard in a residential-use district to cease operations between 6 p. m. and the following 7 a. m. and all day on Sunday is valid and may be enforced against one who was operating such a junk yard as a nonconforming use prior to the enactment of such ordinance. City of Cincinnati v. Correll, 141 Ohio St. 535, 49 N.E.2d 412, distinguished.

5. Such portion of such ordinance does not conflict with Section 3773.24, Revised Code, and may be applied against one who conscientiously observes the seventh day of the week as the Sabbath and abstains thereon from doing things prohibited on Sunday.

6. Where a zoning ordinance provides that the lawful use of any land or premises existing at the time of its enactment may be continued as a nonconforming use, such ordinance continues the right to use land or premises in a residential-use district in a business of the same kind as, although it does not represent any continuation or part of, the particular business that was being conducted on such land or premises at the time of enactment of such zoning ordinance.

Harry N. Van Berg, director of law, and Rufus L. Thompson, Akron, for appellant.

Joseph E. Abdenour, Akron, for appellee.

This action was commenced in the Common Pleas Court of Summit County by the filing of a petition by the city of Akron alleging that defendant is the owner and operator of a junk yard at 333 Euclid Avenue, Akron, in an area zoned for residence only, that defendant's operation of that junk yard constitutes a nuisance, and that defendant is operating his junk yard in violation of ordinance 100-1956. The prayer of the petition is for the abatement of that nuisance and for an injunction against its continuance and against the operation of an illegal junk-yard business in a residential neighborhood, and for general equitable relief.

Defendant filed an answer denying that his operation constitutes a nuisance and alleging in effect that his operation of the junk yard constitutes a lawful nonconforming use. Defendant further filed a cross-petition alleging that the city had tried to prevent the defendant from lawfully operating his business and using his property by enacting ordinance 100-1956 and causing legal actions to be instituted against defendant and that that ordinance is unconstitutional and invalid, and praying that the city be permanently enjoined and restrained from interfering with defendant's occupancy and use of his property.

So far as pertinent, ordinance 100-1956 reads:

'In any residential use district as established by the zoning ordinance, any junk yard or wrecked motor-vehicle yard, or used building materials yard, shall maintain an open, unoccupied space 10 feet in width on each side of any lot or plat of ground used for the storage or handling of such materials. Unless within a fireproof building as provided for elsewhere in the code * * * on each such 10 foot setback side line a solid board fence * * * must be constructed. No junk, wrecked motor-vehicle, used building material or similar salvage material shall be stored in such an enclosure to a greater height than such fences.

'In any junk yard, wrecked motor-vehicle yard or used building materials yard, in any residential use district, any other provision of law notwithstanding, the rear yard and the front yard as established by the building line of any such junk yard, wrecked motorvehicle yard or used building material yard shall be that of the zoning ordinance provisions, but in no event less than 10 feet. Upon this rear yard line (10 feet or more inside of the rear property line) and upon the building line a solid board fence shall be built * * *.

'Any junk yard, wrecked motor-vehicle yard or used building materials yard in any residential use district shall cease operations between the hours of 6 p. m. and the following 7 a. m. and also all day on Sunday.'

Defendant owns two city lots (one with 37 3/8 and the other with 48 3/4 feet frontage and both 150 feet deep) upon one of which is located a house which he rents to a tenant. Defendant's junk yard, which is enclosed by a fence, occupies these two lots behind the front building line except for the portion occupied by the house and 30 or 40 square feet behind the house which is outside the fence. There are no buildings used in the operation of defendant's junk-yard business which is apparently a one-man operation. One Ben Chapman began the operation of a junk-yard business on these two lots in 1916. In 1922, Akron enacted a comprehensive zoning ordinance. These two lots were included in a residential-use district under that ordinance and have been so included since that time. They are now located in a closely built up residential district. Ben Chapman died in 1947 and his son thereafter continued operation of that business on those lots until he was forced to leave after foreclosure proceedings brought by the Dime Bank. Defendant purchased these two lots from the Dime Bank which had bought them at foreclosure sale. Thereafter, while Chapman's son was moving his junk-yard business out, defendant moved his junk-yard business into and has since conducted it on these two lots.

By its judgment the Common Pleas Court found that defendant's operation of his junk yard constitutes a nuisance and ordered that that nuisance be permanently abated.

On appeal from that judgment on questions of law and fact, the Court of Appeals determined that 'the petition of the city * * * should be * * * dismissed, * * * that that portion of * * * ordinance No. 100-1956 requiring * * * [defendant] to cease operations between 6 p. m. and * * * 7 a. m. is unconstitutional; that that portion * * * prohibiting the working on Sunday is invalid as applied to * * * [defendant]; that that portion * * * pertaining to setback lines and fence heights is unenforceable as applied to * * * [defendant];' and that court dismissed the city's petition and permanently enjoined the city 'from further interfering with the occupancy and use of defendant's property at 333 Euclid Avenue.'

The cause is now before this court on appeal from the judgment of the Court of Appeals as an appeal as of right and pursuant to the allowance of a motion to certify the record.

TAFT, Judge.

This case is a sequel to City of Akron v. Chapman, 160 Ohio St. 382, 116 N.E.2d 697, 698, 42 A.L.R.2d 1140, in which, as the opinion there points out, there was 'no claim of nuisance.' Although there is such a claim in the instant case, we are not confronted with and therefore express no opinion on the question whether a municipal ordinance can prohibit the operation of any junk yard in a residential neighborhood and thereby in effect make such operation in such a neighborhood a nuisance regardless of how well it is conducted.

The Court of Appeals, in the journal entry setting forth its judgment, gave no reason for dismissing the petition. However, in its opinion it stated (see paragraph four of syllabus of Andrews v. Board of Liquor Control, 164 Ohio St. 275, 131 N.E.2d 390) that 'the evidence * * * indicates that the maintenance and operation of the junk yard * * * by defendant is claimed to be distasteful, unsightly, and an annoyance, to the persons living close by said junk yard, but its effect, even as claimed by witnesses for plaintiff, does not attain the stature of a public unisance.' (Emphasis added.)

The city relies upon Section 715.44, Revised Code, as conferring upon it the right to maintain this action. That statute reads in part:

'A municipal corporation may:

'(A) Abate any nuisance and prosecute in any court of competent jurisdiction, any person who creates, continues, contributes to, or suffers such nuisance to exist * * *.'

The Court of Appeals in its opinion stated that 'the statute * * * must be interpreted as though' the word 'public' appeared before the word 'nuisance.' Although this court has never before had occasion to consider this problem, a similar interpretation was given to this statute many years ago in Whitcomb v. City of Springfield, 1888, 3 Ohio Cir.Ct.R. 244, 2 Ohio Cir.Dec. 138. Not only because of the reasons there advanced for that interpretation but also because of the many years of legislative acquiescence therein, we are inclined to give this statute the same interpretation.

Since the Court of Appeals heard the cause as an appeal on questions of law and fact, it had the power and right to substitute its judgment on the facts for that of the Common Pleas Court. The city did not request the Court of Appeals to make any findings of facts and neither the judgment nor the opinion of the Court of Appeals indicates what facts it found.

If the Court of Appeals was correct in its holding that ordinance 100-1956 cannot be enforced against defendant, then we cannot conclude that reasonable minds could not have found facts from the evidence in the record of this case that would support a valid legal conclusion that defendant's operation of his junk-yard business does not constitute a public nuisance; and therefore, since we do not weight evidence, we could not reverse the judgment of the Court of Appeals...