Pritz v. Messer

• Decision Date: 19 May 1925
• Docket Number: 18750
• Parties: Pritz v. Messer Et Al.
• Court: Ohio Supreme Court

149 N.E. 30

112 Ohio St. 628

Pritz v. Messer Et Al.

No. 18750

Supreme Court of Ohio

May 19, 1925

Constitutional law - Exercise of police power - Private property not taken without compensation or due process, when - Municipal zoning ordinance - Abutting owner may enjoin erection of building violating ordinance, when.

1. Laws enacted in the proper exercise of the police power, which are reasonably necessary for the preservation of the public health, safety and morals, even though they result in the impairment of the full use of property by the owner thereof do not constitute a "taking of private property" within the meaning of the constitutional requirements as to making compensation for the taking of property for public use and as to the deprivation of property without due process of law.

2. An ordinance enacted by a municipality under Article XVIII Section 3, of the Ohio Constitution, and under Sections 4366-1 to 4366-12, General Code, dividing the whole territory of the municipality into districts according to a comprehensive plan which, in the interest of the public health, public safety and public morals, regulates the uses and the location of buildings and other structures and of premises to be used for trade, industry, residence, or other specific uses, the height, bulk, or location of buildings and other structures thereafter to be erected or altered including the percentage of lot occupancy, setback building lines, and the area of yards, courts and other spaces, and for such purpose divides the city into zones or districts of such number, shape, and area as are suited to carry out such purposes, and provides a method of administration therefor and prescribes penalties for the violation of such provisions, is a valid and constitutional enactment.

3. A property owner, residing in a municipality in which a valid zoning ordinance is in full force and effect, has legal capacity to apply for an injunction against the erection of an apartment building upon a lot contiguous to her real

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Constitutional Law, 12 C. J. §§440, 894; Eminent Domain, 20 C. J. §6;

Municipal Corporations, 28 Cyc. p. 737 (1926 Anno).

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property, upon the ground that the proposed structure will violate the zoning ordinance.

The plaintiff in error is the owner of property adjacent to property belonging to the defendant in error Frank Messer, situated at the intersection of Mitchell avenue and Reading road, in the city of Cincinnati. The record discloses the following facts:

Upon March 29, 1924, Messer applied to the building commissioner of the city of Cincinnati for a building permit, which was issued to Messer upon March 31, 1924. The permit was dated April 1, 1924, because of the fact that it was issued upon March 31, 1924, after the books of the building commissioner's office had been closed for the day.

Upon April 1, 1924, the council of the city of Cincinnati enacted a zoning ordinance which became effective upon May 4, 1924. This ordinance established eight classes of districts in the city of Cincinnati, namely: Residence A, B and C, business A and B, and industrial A, B, and C districts. The property in question in this case is situated in residence C district. Under the ordinance certain uses of land and buildings are permitted and certain uses of land and buildings are prohibited within the various districts; the purpose of the prohibitions being to protect ordinary business from the undesirable features of manufacturing and to protect residence districts from the undesirable features of business and industry. The industrial C zones include certain ample areas which are entirely unrestricted for all kinds of manufacturing and industrial operations.

The ordinance also provides for the set-back of building lines from the street and for certain limitations upon the height of buildings. These limitations upon height and upon the set-back of building lines vary according to the nature of the zones. The ordinance also regulates the area of buildings in rear yards, side yards, and courts.

It is conceded that under this ordinance, if the ordinance is valid, the structure in question, which was to be 11 stories high and to contain 400 rooms, could not be erected in this particular district, unless the fact that a permit was issued for the erection thereof upon March 31, 1924, prior to the enactment of the ordinance, takes this particular building out of the operation of the ordinance.

The defendant Messer proceeded to excavate the lot in question for the purpose of building an apartment house, plans of which had been submitted to the building commissioner upon the application for the permit issued upon March 31, 1924. The excavation necessary for the structure had been completed, when, upon June 4, 1924, the plaintiff filed a petition in the superior court of Cincinnati, praying that the building permit issued by the building commissioner of Cincinnati upon March 31, 1924, be declared void and canceled, and that the defendants Messer and Warm (who is associated with Messer in the building business), and the Belvidere Building Company, be perpetually enjoined from proceeding to complete the apartment building, upon the ground that the apartment building in its plans did not comply with the provisions of the zoning ordinance of the city of Cincinnati regulating apartment buildings in residence C districts.

The answer of Messer and Warm, in substance, set up the issuance of the permit to Messer prior to the enactment of the ordinance, claiming that the plans and specifications filed upon application for the permit complied with the ordinances of Cincinnati in force at the time of filing the application, and that the zoning ordinance itself established an exception in such cases, and further attacked the constitutionality of the zoning ordinance upon the ground that it violates Article I, Section 1, of the Constitution of Ohio, Article I, Section 19, of the Constitution of Ohio, and Article XIV, Section 1, of the Amendments to the Constitution of the United States.

The answer of George R. Hauser, commissioner of buildings, admitted that an application for a building permit was filed with him upon March 29, 1924, and that the permit was issued upon March 31, 1924, and specifically denied that the application for the permit, and the plans and specifications filed therewith, did not in every respect comply with all the laws and ordinances in force at the time the application for the permit was filed.

The superior court found the permit to be void, and enjoined the erection of the building. The case was heard on appeal in the Court of Appeals upon the pleadings, the evidence, and the exhibits, and the court, after consideration thereof, found upon the issues joined for the defendants and dismissed the plaintiff's petition.

The case comes into this court upon allowance of motion to certify the record and also upon petition in error filed as a matter of right, a constitutional question being involved.

Mr. John M. McCaslin, Mr. Henry B. Street, and Mr. Robert P. Goldman, for plaintiff in error.

Mr. Frank K. Bowman, city solicitor; Mr. Landon L. Forchheimer; Mr. Oliver M. Dock; Messrs. Heintz & Heintz, and Mr. Saul Zielonka, for defendants in error.

Mr. Alfred Bettman; Mr. Newton D. Baker and Mr. Robert M. Morgan, amici curiae.

ALLEN J.

The defendants in error challenge the plaintiff's capacity to bring this action, and cite Jaeger v. Topper, 103 Ohio St. 350, 133 N. E., 82, as authority for their contention. That was a case arising under the Housing Code in the city of Columbus, Ohio, and in a per curiam opinion the court held that the plaintiff, who was an abutting property owner, could not sue to restrain the defendant from altering his residence, so as to make it a tenement house of four apartments, contrary to the provisions of the Housing Code, on the ground that the purpose of the Code was to make provision concerning the erection of tenement houses for the benefit of those who occupy them, and not arbitrarily to confer rights upon adjoining property owners.

We see a marked distinction between the Jaeger case, supra, and the instant action. We have here an application for injunction under a zoning ordinance which zones the entire city for the benefit of the community. The benefit to be derived from the observance of these zoning regulations accrues, not only to the municipality, but to the abutting property owner. The plaintiff, therefore, as to her capacity to bring this suit, is in a position analogous to that of one for whose benefit a contract has been made by another party. Having a substantial interest in the enforcement of the zoning restrictions, she is a proper party to enforce their observance by a suit for injunction.

A case directly in point from a court of last resort is that of Holzbauer et al. v. Ritter et al., 184 Wis. 35, 198 N. W., 852. In this case it was contended that an action for injunction could not be brought by adjacent property owners upon the ground that the zoning ordinance provided its own penalty for its violation. The Supreme Court of Wisconsin, however, held in the first paragraph of the syllabus:

"Where erection of a storebuilding in violation of a zoning ordinance might cause special damage to property of plaintiffs not suffered by general public, they could sue to enjoin such erection in order to prevent irreparable injury."

The contention of the defendants in error as to the plaintiff's capacity to bring the action is therefore overruled. The application for injunction is based upon the proposition that the contemplated apartment house, if erected in accordance with the plans and specifications, will violate the several provisions of the...