Gates Co. v. Housing Appeals Bd. of City of Columbus, 40474

• Decision Date: 05 April 1967
• Docket Number: No. 40474,40474
• Citation: 39 O.O.2d 42,225 N.E.2d 222,10 Ohio St.2d 48
• Parties: , 39 O.O.2d 42 The GATES CO., Appellant, v. HOUSING APPEALS BOARD OF the CITY OF COLUMBUS et al., Appellees.
• Court: Ohio Supreme Court

Page 48

10 Ohio St.2d 48

225 N.E.2d 222, 39 O.O.2d 42

The GATES CO., Appellant, v. HOUSING APPEALS BOARD OF the CITY OF COLUMBUS et al., Appellees.

No. 40474.

Supreme Court of Ohio.

April 5, 1967.

Syllabus by the Court

In the absence of a determination that the continued use of improved real property without conforming to building standards subsequently adopted would constitute a nuisance, improvements necessary to comply with the new standards may not constitutionally be compelled by a public agency against the private owner of such property.

The appellant is the owner of a brick tenement building containing 16 four- room dwelling units, located in Columbus, Ohio, and built years before that city required, as it does now by ordinance (hereinafter referred to as the Housing Code), that at least one bathroom facility ('flush water closet, lavatory basin, and bathtub or shower') be provided for at least every two dwelling units and for the exclusive use of no more than six persons, and that hot water be supplied to all such facilities.

In appellant's building all units have a cold-water sink but only four contain private toilet facilities. The other 12 units share six hall toilets. There are no bathtubs or showers in the building.

On August 3, 1964, appellee Superintendent of Housing Inspection, by letter, ordered the appellant to comply with the provisions of the Columbus Housing Code. There is considerable dispute concerning the number of bathroom units required and their total cost. However, for the purpose of this appeal, it has been conceded that the cost of compliance would be at least $10,000, and that the fair market value of the property without the improvements and unaffected by the order of compliance is $20,000.

On appeal, appellee Housing Appeals Board of Columbus refused to grant a variance from strict compliance with the Code. On further appeal to the Common Pleas Court of Franklin County, that court held the order appealed from to be unconstitutional. The Court of Appeals reversed that judgment.

Harold F. Adams and John M. Adams, Columbus, for appellant.

John C. Young, City Atty., Alba L. Whiteside and William J. Melvin, Columbus, for appellees.

SCHNEIDER, Judge.

More often than not, before the court can intelligently approach a controversy for what it actually is, it is necessary to determine what it is not. This is such a case.

First, there is nothing in the Columbus Housing Code from which an inference may be drawn that the failure of any building to conform to its requirements constitutes an imminent threat to the health, safety, morals or welfare of the public generally. It is relevant in this connection to note that the Code permits, among other things, one complete set of bathroom facilities to serve as many as ten unrelated persons residing within a rooming house. Furthermore, the Code provides that 'in any urban renewal area presently approved by city council the bathroom requirements shall become effective one year after the adoption of the Housing Code * * *. In any urban renewal area designated by council within the next three years the bathroom requirements shall become effective one year thereafter.' (Emphasis supplied.)

Neither is there an administrative finding, nor is it the basis of the city's claim to the right to enforce the Code against the property in question, that the failure of that property to conform thereto presently endangers the public health or the health of its occupants in particular. In short, neither the Code nor the order against this particular building pursuant thereto, constitute an attempt to eliminate a present nuisance. Therefore, we do not reach the problem which confronted us in, or the implications of, Solly v. City of Toledo, 7 Ohio St.2d 16, 218 N.E.2d 463; See, also, City of Akron v. Klein, 171 Ohio St. 207, 168 N.E.2d 564, and Benjamin v. City of Columbus, 167 Ohio St. 103, 146 N.E.2d 854. Except for certain roof repairs, the need for which is not questioned, the building is structurally sound and well-maintained. Nor does Columbus complain that the existing plumbing or its fixtures are not functioning acceptably.

Second, the city does not find it necessary, and a public purpose, to appropriate the property for the reason that its facilities do not measure up to minimum housing standards and to pay the owner the equivalent of its present fair market value. See State ex rel. Bruestle v. Rich, 159 Ohio St. 13, 110 N.E.2d 778. In this case, urban renewal is being attempted without expense to the city other than administrative costs.

Third, the city does not propose to proceed with the improvements upon the owner's failure, to assess the cost against the property and thus to lend its credit to the owner during the years in which assessment bonds...