Kessler v. Smith

• Decision Date: 17 April 1957
• Citation: 104 Ohio App. 213,142 N.E.2d 231
• Parties: , 77 Ohio Law Abs. 104, 4 O.O.2d 375 Louis F. KESSLER et al., Plaintiffs-Appellees, v. George SMITH, Sr., et al., Defendants-Appellants. George SMITH, Plaintiff-Appellant, v. VILLAGE OF GLENWILLOW, Defendant-Appellee.
• Court: Ohio Court of Appeals

Page 213

104 Ohio App. 213

142 N.E.2d 231, 77 Ohio Law Abs. 104, 4 O.O.2d 375

Louis F. KESSLER et al., Plaintiffs-Appellees, v. George SMITH, Sr., et al., Defendants-Appellants.

George SMITH, Plaintiff-Appellant, v. VILLAGE OF GLENWILLOW, Defendant-Appellee.

Court of Appeals of Ohio, Cuyahoga County.

April 17, 1957.

Woodle & Wachtel, Cleveland, for George Smith et al.

J. Harold Read, Cleveland, for Louis F. Kessler.

Ralph W. Bell, Richard G. Bell, and Robert R. Freda, Bedford, for Village of Glenwillow.

HURD, Judge.

These actions in equity have been appealed from the Court of Common Pleas to this court on questions of law and fact for trial de novo. Having two cases before us for consideration, for purposes of clarity and brevity, the parties herein are referred to as follows: Louis F. Kessler et al., as Kessler, George Smith et al., as Smith, and the Village of Glenwillow as the Village. Because the issues between the parties in the cases are substantially the same, both cases were ordered to be consolidated in the Court of Common Pleas for the purpose of trial. The trial resulted in a finding and judgment against Smith in each case, enjoining him from the use of his property for trailer park purposes.

The record shows that Smith had previously expended substantial sums of money and considerable time and effort in the purchase and development of the property for trailer park purposes and that the provisions of a zoning ordinance, as applied retrospectively, would restrict its use to residence purposes only. Further facts, briefly summarized, are as follows: In July of 1952 Smith became the owner of eight acres of land in the Village of Glenwillow fronting upon Richmond Road 265 feet in width and extending back to Tinkers Creek, a distance of approximately 2,275 feet. He purchased this land for the sole purpose of establishing and developing thereon a trailer park.

The Village of Glenwillow is a noncharter municipality operating under the general laws of the State of Onio located in the southeastern part of Cuyahoga County. It is over six square miles in area. Its population, according to the latest census, is 257 people. In 30 years, it has had an increase in population of only 42 persons and at the time of trial had a population of only 40 people per square mile.

At the time Smith purchased the property and commenced to build, the Village did not have either a building ordinance or a zoning law of any kind and there was no ordinance or law whereby a property owner within the Village was required to secure a building permit, all of which facts were ascertained by Smith before he purchased the land and commenced construction. Neither were there any restrictions by deed limiting the use of the land to any particular purpose, although the original petition of Kessler so alleged. The contract of purchase contained a provision specifically allowing the use of the property for trailer park purposes.

We find from the evidence that prior to any action of any kind by the Village looking to the enactment of a zoning ordinance, Smith, acting within his absolute rights, proceeded to construct and establish a trailer park upon the land in question. Accordingly, he secured a permit from the Department of Health of the State of Ohio approving detailed plans submitted by him for a proposed sewage treatment plant. After he purchased the land for which he expended the sum of $8,700, he employed a firm of architects to survey the land and to prepare a complete set of plans for the construction of the trailer park at a cost of $1,000. He also employed a contractor to help him and his son with the work of construction for which he paid $1,700. Before work could be commenced on the buildings to be erected, a well had to be dug and a roadway built over a ditch which ran across the property. For this purpose he purchased a well digger for $300 and 40 feet of 48-inch reinforced concrete sewer pipe for the sum of $438.78. The sewer pipe was laid in the ditch and covered with dirt. A bulldozer was then brought in to fill the rest of the ditch and to grade the land. For this work, he paid $2,000. He then had delivered to the premises concrete block for use in the construction of a utility building, a septic tank and a filter bed. The cost of this concrete block was $1,128.87. A utility building was completed prior to the passage of the zoning ordinance and the foundation had been constructed for the filter bed and the foundation and part of the walls of the septic tank had been built. Work had also been done on other structures. In addition to the foregoing, he expended $350 for gas and oil, $540 for labor, $700 for lumber, $150 for windows, and $94.55 for sand and gravel. He also purchased a dump truck for $1,000, a trencher for $1,750 and a chain for same which cost $70 and a jeep high-lift for $600 to be used in the preparation and construction of the trailer park. This recitation of cost does not include a complete listing of all sums expended and the cost of work performed does not take into consideration the time and labor expended by Smith himself. Suffice it to say that all of this work was completed before the effective date of the zoning ordinance at a total cost in excess of $20,500.

Plans for the trailer camp were designed to provide space for approximately 200 trailers although it was the intention of Smith to begin operation of the camp with space for only 28 trailers and space for trailers of that number had been laid out and approaches for the use had been completed with a road between 1,600 and 1,700 feet in length. The septic tank was designed to be a large one sufficient to accommodate the requirements of a large trailer park. The filter bed intended to be used in connection with the water supply of the trailer park was also designed to be a large one to accommodate the number of persons who might occupy a trailer park of that size.

The zoning ordinance of the Village became effective January 5, 1953. By its terms the Village was classified into three use districts. The property of Smith, together with neighboring properties, was zoned in a use district generally identified as residential. By the terms of the ordinance, land in residence districts was not permitted to be used for trailer park purposes. The ordinance further provided that no trailer camps or house trailers would be permitted to occupy any land in any part of the Village. We find as a fact that the practical operation and effect of the zoning ordinance of the Village as applied to Smith's land would restrict the use of the eight acres of land to the construction of one single residence.

The basic question presented is whether the zoning ordinance, as enacted retroactively, is valid and constitutional as applied to Smith and his land in view of the fact that he had expended such substantial sums in its purchase and development prior to the enactment of the ordinance.

The answer to this question involves a consideration of fundamental principles of law and equity in relation to zoning ordinances. All zoning laws and regulation must find their justification in some aspect of the police power asserted for the public welfare. Whether the power exists to forbid the development of property for a particular use is to be determined by considering its use not in the abstract but in connection with the circumstances and the locality. If the provisions of the zoning ordinance, when applied to particular premises, are found to be clearly arbitrary and unreasonable, having no substantial relationship to public health, morals or safety, the ordinance as to that particular property must fall. Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842; State ex rel. Synod of Ohio of United Lutheran Church in America v. Joseph, 139 Ohio St. 229, 39 N.E.2d 515, 138 A.L.R. 1274.

Considering the rural character of the Village, the comparatively undeveloped and sparsely settled portion of the county in which this property and the Village is situated, the eight acre area of the property, the expenditure of substantial sums for purchase and development thereof, the nature and extent of such expenditure prior to the passage of the zoning ordinance the provisions of the ordinance prohibiting Smith from the use of his property for a trailer camp and limiting its use to a single residence by retroactive legislation, cannot reasonably and truthfully be said to bear any substantial relationship to the public health, safety, welfare or morals.

It is fundamental that a zoning ordinance cannot, under the guise of police power, arbitrarily restrict the use of property to the extent of practical confiscation without just compensation.

In the case of State ex rel. Weber v. Vajner, 92 Ohio App. 233, 108 N.E.2d 569, appeal dismissed 158 Ohio St. 105, 106 N.E.2d 642, this court declared, per Skeel, J., as set forth by syllabus two and three:

'2. To be a valid exercise of the police power of the state by a zoning ordinance, the benefits accruing to the public by virtue of the restricted use to which the property may be put must overbalance the restraint or detriment suffered by the private interests of the owner.

'3. Such restraint cannot totally prevent the owner from making some reasonable use of his property in the absence of...