Leslie v. City of Toledo, 80-1176

• Decision Date: 24 June 1981
• Docket Number: No. 80-1176,80-1176
• Citation: 423 N.E.2d 123,20 O.O.3d 406,66 Ohio St.2d 488
• Parties: , 20 O.O.3d 406 LESLIE, Appellee, v. CITY OF TOLEDO et al., Appellants.
• Court: Ohio Supreme Court

Page 488

66 Ohio St.2d 488

423 N.E.2d 123, 20 O.O.3d 406

LESLIE, Appellee, v. CITY OF TOLEDO et al., Appellants.

No. 80-1176.

Supreme Court of Ohio.

June 24, 1981.

Farrar & Lackey and Richard G. Farrar, Toledo, for appellee.

John A. DeVictor, Jr., Asst. Director of Law, Cline, Bischoff & Cook Co., L.P.A., and Wolfgang Drescher, Toledo, for appellants.

PER CURIAM.

Appellants contend, in essence, that (1) the city council's retention of the residential classification of the subject property is reasonable, non-arbitrary, substantially related to the public health, safety, morals or general welfare of the community and, therefore, constitutional, and (2) there was no legal justification for the Court of Appeals to order the subject property rezoned to a C-2 classification, with the aforementioned modifications.

We agree with appellants' first contention, and consequently reverse the Court of Appeals. In light of our disposition upholding the constitutionality of the Toledo ordinance, we find it unnecessary to address the propriety of court-ordered rezoning of property subsequent to a determination of the unconstitutionality of a zoning ordinance. See Union Oil Co. v. Worthington (1980), 62 Ohio St.2d 263, 405 N.E.2d 277; Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St.2d 23, 309 N.E.2d 900.

Preliminarily, we note that our decision in this case is controlled by the fundamental principle of Ohio zoning law that appellee, the party challenging a zoning ordinance, has the burden of demonstrating the unconstitutionality of such an ordinance. Brown v. Cleveland (1981), 66 Ohio St.2d 93, 95, 420 N.E.2d 103; Hilton v. Toledo (1980), 62 Ohio St.2d 394, 396, 405 N.E.2d 1047. See, generally, Willott v. Beachwood (1964), 175 Ohio St. 557, 197 N.E.2d 201. Zoning ordinances enacted pursuant to a municipality's police powers, are presumed valid until the contrary is clearly shown by the party attacking the ordinance. Brown v. Cleveland, supra, 66 Ohio St.2d at page 95, 420 N.E.2d 103; State v. Renalist, Inc. (1978), 56 Ohio St.2d 276, 278-279, 383 N.E.2d 892. See, generally, Garcia v. Siffrin (1980), 63 Ohio St.2d 259, 407 N.E.2d 1369; Village of Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. For the reasons that follow, we find that appellee has failed to overcome the presumptive validity of the challenged ordinance.

The primary reason that the city council's refusal to grant appellee's rezoning request is reasonable, non-arbitrary and constitutional is simply because the subject property is located in a residential area. We have carefully reviewed the entire record in this case, including the location map provided by plaintiff, and conclude that the Court of Appeals failed to distinguish between changes that have taken place on Central Avenue, on the one hand, and changes in the neighborhood proper, on the other. The subject property is located in a neighborhood (south of Central Avenue) that has maintained its residential integrity. Indeed, as Judge Wiley observed in his dissenting opinion below, considering the five blocks of which the property involved herein is in the very center, the entire area is zoned residential with the exception of the lots east of the nearby fire station house, which are zoned C-2. As such, "(t)he mere existence of some adjacent property devoted to other uses does not destroy the character of restricted property for residential purposes or render the restrictions arbitrary." Wilkins v. San Bernardino (1946), 29 Cal.2d 332, 344, 175 P.2d 542. See, generally, Urmstron v. North College Hill (1961), 114 Ohio App. 213, 175 N.E.2d 203. Thus, while there are shopping centers, gasoline service stations and other commercial establishments within the general vicinity of the subject property, the residents of those portions of Middlesex, Barrington and Meadowwood Drives and Drummond and Goddard Roads, which intersect Central Avenue and lie to its south, live in an exclusively residential area.

Since the subject property is situated in such a residential setting, we do not find that the refusal of the city council, the duly-elected representatives of the people of Toledo, to rezone these four lots pursuant to appellee's request, is illegal, arbitrary confiscatory, unconstitutional or substantially unrelated to the public health, safety, morals or general welfare of the community. The city council's decision not to alter the subject property's status from residential to commercial, with the concomitant change in the neighborhood's traffic patterns, is rationally related to several hazards which the city may lawfully regulate pursuant to its police powers: protection of pedestrians and drivers, regulation of traffic congestion and on-street parking, and reduction of air and noise pollution. See, generally, State, ex rel. Assoc. Land & Investment Corp., v. Lyndhurst (1958), 168 Ohio St. 289, 154 N.E.2d 435; Annotation, 74 A.L.R.2d 418. As this court ruled in Willott v. Beachwood, supra, 175 Ohio St. at 559-60, 197 N.E.2d 201:

" * * * It must be assumed that each councilman considered the matter independently and was aware of public opinion and formulated his own opinion of what the public welfare of his municipality demanded.

"The power of the court in such matters as this is extremely limited, and the court can not usurp the legislative function by substituting its judgment for that of the council. Municipal governing bodies are better qualified, because of their knowledge of the situation, to act upon these matters than are the courts."

In viewing the record as a whole, we conclude that the city council's retention of the residential zoning classification of the subject property is neither illegal, arbitrary, confiscatory, unconstitutional, nor substantially unrelated to the public health, safety, morals, or general welfare of the community. When a court determines, in a declaratory judgment action, that a zoning ordinance is unconstitutional, then that court may grant such relief as it deems appropriate, consistent with the guidelines set forth in Union Oil Co. v. Worthington, supra. When, however, as in the case sub judice, where the challenging party does not demonstrate the unconstitutionality of the ordinance and the issue is "fairly debatable," Willott v. Beachwood, supra, 175 Ohio St. at 560, 197 N.E.2d 201, the court may not substitute its judgment for that of the legislative body which passed or applied the ordinance. This is yet another one of those cases where the public health, safety and general welfare must prevail over a private developer's profit. See also, Brown v. Cleveland, supra.

Causes such as this compel us to make one final observation. As an appellate court, it is our duty to interpret, not rewrite, the law, as it is embodied in a city's zoning code. No appellate court, under the guise of judicial review, should nullify the zoning code, which has been written and adopted by the members of a city council, the duly-elected representatives of the people. It is better to leave the formulation and implementation of zoning policy to the city council, or other legislative body, which has not only the expertise and staff, but also, the constitutional responsibility to police this area effectively. Toledo's or, for that matter, any city's zoning code should not be judicially amended simply because the judges of this court, or any court, would have made a different decision if they had been members of the city council. It is our firm conviction that, absent clear constitutional, statutory or procedural error, a reviewing court is not free to impose its judgment on the city council.

As Justice (later Chief Justice) O'Neill pursuasively stated in Willott v. Beachwood, supra, 175 Ohio St. at page 560, 197 N.E.2d 201:

"The determination of the question of whether regulations prescribed by a zoning ordinance have a real or substantial relation to the public health, safety, morals or general welfare is committed, in the first instance, to the judgment and discretion of the legislative body. Where such a judgment deals with the control of traffic, volume of traffic, burden of traffic, effect upon valuation of property, the municipal revenue to be produced for the city, expense of the improvement, land use consistent with the general welfare and development of the community as a...