Lakewood Homes, Inc. v. Board of Adjustment of City of Lima

• Decision Date: 30 March 1970
• Docket Number: No. 53954,53954
• Parties: , 52 O.O.2d 213 LAKEWOOD HOMES, INC., Appellant, v. BOARD OF ADJUSTMENT OF the CITY OF LIMA, Kenneth L. Hughes, Floyd Wood and Erma Wood, Edward F. Rettig and Lavada N. Rettig, adjoining landowners, for themselves and others similarly situated, Appellees.
• Court: Ohio Court of Common Pleas

Page 211

23 Ohio Misc. 211

258 N.E.2d 470, 52 O.O.2d 213

LAKEWOOD HOMES, INC., Appellant, v. BOARD OF ADJUSTMENT OF the CITY OF LIMA, Kenneth L. Hughes, Floyd Wood and Erma Wood, Edward F. Rettig and Lavada N. Rettig, adjoining landowners, for themselves and others similarly situated, Appellees.

No. 53954.

Court of Common Pleas of Ohio, Allen County.

March 30, 1970.

[258 N.E.2d 475] Oren E. Dickason, Lima, for appellant.

John Evans, Director of Law, and Walter M. Lawson, Asst. Director of Law, Lima, for appellee Board of Adjustment.

Anthony Bowers, Lima, for appellees Kenneth L. Hughes et al.

OPINION

HITCHCOCK, Judge. (By Assignment from Paulding County).

If only Americans of color were able to acquire housing accommodations as easily as they can purchase Cadillacs the occasion for cases such as this would surely be rare.

This is an appeal from a decision of the Board of Adjustment (Board) of the City of Lima, Ohio, affirming action of Roy C. Coon, Building and Zoning Supervisor, denying a building permit to appellant (Lakewood) for the erection of a modern twelve building apartment complex, Northwood Homes, as follows:

1. 32-1 bedroom units to rent for $130.00 per month

2. 112-2 bedroom units to rent for $150.00 per month

3. 48-3 bedroom units to rent for $160.00 per month

4. 8-4 bedroom units to rent for $175.00 per month

The building of which is to be accomplished with funds provided under the Rent Supplement Act of 1965 and amendments thereto. ¹

For reasons hereinafter stated the action of the Board of Adjustment is reversed and remanded with instructions, and law applicable to this case is declared.

In 1968 when the writer accepted assignment to this case he had no knowledge of its nature and might well have begged off had he known. It having, nevertheless, fallen to his lot, he shall discharge his duty as bound by oath and conscience. At the conclusion of the evidence on February 25, 1969, the Court assured counsel that a thorough study of the issues presented would he made. It also asked that briefs be filed. By March 24th, all parties had filed briefs in support of their views. The Court now freely confesses that it did not then know what a task it had set for itself.

Ostensibly, this is a simple little case involving no more than a decision as to whether Section 1303.01 of the Codified Ordinances of Lima (C.O.L.) is constitutional or whether the Board in interpreting it has acted lawfully or not. It appears to the Court, however, to be far more than that. For if the matters here in controversy cannot be resolved so that the policy declared by Congress in the Housing Act of 1937 as amended, ² can be substantially realized as a practical matter, I perceive that millions of Americans of every hue who could be better housed are going to remain ill housed. We first consider

THE PARTIES AND THEIR VIEWS OF THE LEGAL ISSUES

Appellant corporation is wholly owned by its President, Ben C. Cogen. He is an established builder of new, modern homes, having built in the past 25 years approximately 700 houses in the vicinity. About half of these houses sold for $15,000 or less; about half at prices between $15,000 and $23,000, all prior to January 1, 1968. Franklin Realty Company (Franklin) owns a 13.601 acre vacant tract of land lying just south of Brower Road (an east-west street marking the northern boundary of the City of Lima) and just west of certain east facing properties fronting on North West Street (also known as State Route No. 65). See sketch, Appendix I filed with the opinion. Appellant has control of the development of this tract by reason of some arrangement with Franklin.

The action of the Board was determined at a second open meeting after public notice, both sessions being attended by counsel and some parties on August 7 and 14, 1968. The conclusatory minutes of the Board were reduced to writing and signed on or about August 28, 1968. See Appendix II. This appeal is from the Decision recorded in these minutes.

On September 5, 1968, Lakewood (at times also referred to herein as appellant and/or Cogen) filed with the Deputy Secretary of the Board its 'Notice of Appeal from Agency of a Political Subdivision' alleging error in sustaining denial of mentioned building permit for the reasons given by the Building and Zoning Supervisor, to-wit:

(1) That Lakewood's plans were not approved by the City Planning Commission and the City Council under Section 1303.01 C.O.L. (Codified Ordinances of Lima) (2) That if not, the Board acted unreasonably in light of the evidence before it in interpreting Section 1303.01 C.O.L. as specifically charged in six separate paragraphs. ³

On September 6, 1968, this Notice of Appeal and a transcript from the Board were filed in this court.

In its brief filed March 3, 1969, Lakewood alleges as issues made the following:

'1. Was the appeal by the Appellant from the Board of Adjustment to the Common Pleas Court timely filed?

'2. Is Section 1303.01 C.O.L. so vague, indefinite, lacking in standards and criteria that it is not capable of application?

'3. Does the lack of standards and criteria in Section 1303.01 C.O.L. constitute an improper delegation of legislative authority by Lima City Council to City Planning Commission and/or the Building and Zoning Supervisor to make it in violation of the XIV Amendment to the United States Constitution and to Sections 1 and 19 of Articles I of the Ohio Constitution? In other words, does Section 1303.01 C.O.L. deny the Appellant of the due process of law and constitute an unlawful taking of his property?

'4. Does the manner in which Section 1303.01 C.O.L. as interpreted and applied by City Planning Commission, Building and Zoning Supervisor and Board of Adjustment of the City of Lima and refusal to grant the variance result in the Appellant having been denied the equal protection of the law?'

In the brief submitted for the City in behalf of the Board and in that of the adjoining and nearby landowners (neighbors), both filed March 17, 1969, defense counsel agree that mentioned issues numbered 1, 2 and 3 are presented but contend that the facts do not truly raise the issue alleged by appellant under number 4.

The Court agrees with appellant that all four issues were properly raised and respectively finds; (1) that the appeal was timely filed and that the Court has full jurisdiction; (2) that Section 1303.01 C.O.L. is not unconstitutionally vague and indefinite; (2) that Section 1303.01 C.O.L. on its face is not violative of Amendment XIV, U.S. Constitution or of Sections 1 and 19, Article I, Ohio Constitution; and (4) that the action of the Board is illegal because based only upon superficially plausible reasons lacking the equity required by (1) general equitable principles and (2) the prohibition against deprivation of rights provided by Title 42, U.S.C.A. Section 1983 (R.S. § 1979, Act Apr. 20, 1871, C. 22, § 1, 17 Stat. 13) reading:

'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. (Emphasis supplied) Moreover, the words 'Constitution and Laws' in the foregoing paragraph embrace the words 'Private property shall ever be held inviolate, but subservient to the public welfare * * *' found in Section 19, Article I, Ohio Constitution, ⁴ as well as those of Sections 1981 and 1982, Title 42, U.S.C.A., Health and Welfare. ⁵

Section 2506.01 of the Revised Code providing for 'Appeal from decisions of any agency of any political subdivision', incorporates by reference, unless otherwise modified, the statutes governing appellate procedure generally in the courts, Sections 2505.01 to 2505.45 of the Revised Code, Section 2505.04 reads:

'An appeal is perfected when written notice of appeal is filed with the lower court, tribunal, officer, or commission. Where leave to appeal must be first obtained, notice of appeal shall also be filed in the appellate court. After being perfected, no appeal shall be dismissed with out notice to the appellant, and no step required to be taken subsequent to the perfection of the appeal is jurisdictional.'

Section 2505.07, Time for perfecting appeal, in pertinent part reads:

'After the journal entry of a final order, judgment, or decree has been approved by the court in writing and filed with the clerk for journalization, or after the entry of other matter for review, the period of time within which the appeal shall be perfected, unless otherwise provided by law, is as follows:

'(A) Appeals to the supreme court or to courts of appeals, or from the municipal courts and from probate courts to courts of common pleas, shall be perfected within twenty days. * * *

(Paragraph re new trials in courts omitted.)

'(B) All other appeals shall be perfected within ten days.

'(C) In case of the insanity or death of a party after judgment, the court may extend the time for filing the appeal, an additional twenty days.

'This section applies to any action or proceeding pending in the courts on the effective date of this section.' Effective 10-27-1953. Emphasis supplied.

By reason of the foregoing statutes it is very clear that until the minutes of the Board's meeting and final decision made on August 14, 1968, were reduced to writing and filed with the Deputy Secretary of the Board on August 27, 1968, there was no 'entry of * * * matter for review.' Clearly the 'Notice of Appeal' was in writing, was filed, and specifically indicated the matter and action appealed from. Moreover, it was filed with the Deputy Clerk of the Board on September 5, 1968, just 8 days after the 'matter for review' was entered on the Board's...