Henle v. City of Euclid

• Citation: 97 Ohio App. 258,125 N.E.2d 355
• Parties: , 56 O.O. 39 HENLE, Appellee, v. CITY OF EUCLID et al., Appellants.
• Decision Date: 07 April 1954
• Court: United States Court of Appeals (Ohio)

Page 258

97 Ohio App. 258

125 N.E.2d 355, 56 O.O. 39

HENLE, Appellee, v. CITY OF EUCLID et al., Appellants.

Court of Appeals of Ohio, Cuyahoga County.

April 7, 1954.

Syllabus by the Court.

1. A property owner is empowered to test by action seeking a declaratory judgment the constitutionality of the restrictions placed upon his property by a zoning ordinance.

2. In passing a zoning ordinance, the city council should not be concerned with the question of whether or not the rule of supply and demand in the use to which the property owner desires to devote his property is amply served by others in like business in the community.

3. A city cannot 'freeze' property preventing the owner from improving it so that he may enjoy a beneficial use thereof only because the city may, in the future, need such property in constructing a freeway.

Paul H. Torbet, Cleveland, for appellant.

Hubert B. Fuller, Perry L. Graham, Cleveland, for appellee.

SKEEL, Judge.

This appeal comes to this court on questions of law and fact from a decree for the plaintiff entered by the Common Pleas Court of Cuyahoga County.

The action is one seeking a declaratory judgment, injunction and equitable relief. The plaintiff is the owner of a vacant lot at the northeast corner of Lakeland Boulevard and Babbitt Road in the city of Euclid. The defendants are the city of Euclid, the mayor of the city of Euclid, the building commissioner of the city of Euclid, and the Attorney General of the state of Ohio.

The petition alleges that Euclid is a city of approximately 50,000 inhabitants, and, in addition to a very large residential area, there are within its boundaries many large industrial plants in areas zoned for industrial use. It is alleged that Lakeland Boulevard (also known as state route No. 2, a main state through highway extending easterly and westerly from Cleveland) is a heavily travelled highway used by trucks, busses and passenger cars, and that much of the commercial traffic is interstate as well as intrastate in character. It is alleged also that Babbitt Road is a main thoroughfare, heavily travelled, with busses, trucks and passenger cars running from Euclid Avenue to Lake Shore Boulevard, much of which traffic is interstate.

The plaintiff says further that the city of Euclid passed a zoning ordinance, effective November 13, 1922, the city then being a village. By the terms of such ordinance, the village (now the city of Euclid) regulated and zoned the entire territory of the village under a comprehensive zoning plan, limiting the uses to which property in the several zones could be devoted, as designated by the zoning map; that since 1922, said ordinance has been amended from time to time, changing the use districts, as shown by the revised zoning maps; that such an amendment was passed December 30, 1950, changing and increasing the classifications as follows: U-1, parks and single-family residences; U-2, two-family residences; U-3, apartments, hotels, hospitals, etc.; U-4, local retail business, including banks, garages, and grocery stores; U-4A, retail gasoline stations; U-4B, undertaking establishments; U-4C, night clubs, hotels, etc.; U-5, commercial; U-6, industrial; U-7, prohibited uses.

It is alleged further that by the provisions of the zoning ordinances the city council has the right either upon its own motion or upon application after public notice and hearing to amend the regulations and districts after referring the proposed change to the city planning and zoning commission (Board of Zoning Appeals) for report; that the planning commission is authorized to recommend amendments provided such amended use in such location will not, in its judgment, substantially and permanently injure the appropriate use of neighboring property, and provided the petitioning applicant files with the application the written consent of 80 per cent of the owners of property within 200 feet of the applicant's property.

The plaintiff alleges that the Sun Oil Company has, by written contract, offered to buy her lot described in the petition for $15,000, provided it could be rezoned to permit the erection and operation of a gasoline filling and service station; that the Sun Oil Company made an application to the building commissioner for a permit, which was deferred until the property was reclassified from U-4 to U-4A; that a request was addressed to the city council of Euclid, seeking such reclassification, accompanied with the written consent of more than 80 percent of the property owners within 200 feet of such lot; and that several hearings were had on such application, the application at one time during the investigation being referred to the Board of Zoning Appeals. The Board of Zoning Appeals reported unfavorably on the application because the property would most likely be needed in the construction of the proposed Lakeland Freeway. The city council, subsequent to receiving the report of the zoning board, refused to rezone the property for the same reasons that influenced the Board of Zoning Appeals to file its report against such change.

With minor exceptions, there is no dispute about the foregoing allegations of fact. The plaintiff's petition alleges further that as to her property the zoning ordinance is unconstitutional and confiscatory, and that the action of the city council in refusing to rezone plaintiff's lot from a U-4 to a U-4A use, was arbitrary, unreasonable and constituted an abuse of discretion, and prays for an order holding the zoning ordinance unconstitutional as to plaintiff's property, and seeks a mandatory injunction requiring the necessary permits to build a filling station on her property at Babbitt Road and Lakeland Boulevard in such city.

The answer of the defendants admits the zoning ordinance as pleaded by the plaintiff and that there is no property now zoned in the city for U-4A use, except one parcel at the corner of Euclid Avenue and Richmond Road; admits that an application was made to rezone plaintiff's lot for filling station purposes; denies that plaintiff made the application or that it was made as claimed by plaintiff's petition: and admits that a public hearing was had before the board of zoning appeals and the city council, but not as alleged by plaintiff. The answer denies that plaintiff's property is valueless under the U-4 zoning restriction and alleges that a filling station would adversely affect the residential property in the territory to the north and the safety of the school and playground across the street to the west. It is alleged also that the city is well supplied with filling stations, that there is no necessity for constructing new ones, and that the plaintiff did not prove to the city council or the Zoning Board of Appeals that an additional filling station was necessary to promote the public convenience. The answer alleges further that there is to be constructed through the city of Euclid the Lakeland Freeway, the center line of which has been fixed by council, thereby determining the land needed in its construction; that plaintiff's property is within the right of way and needed for that purpose; that no building can or will be permitted to be constructed which will be detrimental to the freeway; and that...