Proffett v. Valley View Village

• Decision Date: 16 November 1953
• Docket Number: Civ. No. 29974.
• Parties: PROFFETT et al. v. VALLEY VIEW VILLAGE, Inc. et al.
• Court: U.S. District Court — Northern District of Ohio

123 F. Supp. 339

PROFFETT et al. v. VALLEY VIEW VILLAGE, Inc. et al.

Civ. No. 29974.

United States District Court, N. D. Ohio, E. D.

November 16, 1953.

Irwin Greene, Cleveland, Ohio, for plaintiff.

Horan & Bell, Cleveland, Ohio, for defendants Valley View Village and William Rosser.

David J. Miller, Cleveland, Ohio, for defendant Schmidt Bros. Sand & Supply Co.

McNAMEE, District Judge.

Plaintiff will be referred to herein as Proffett, defendants, the Village of Valley View and its Building Inspector as the Village, and the Schmidt Sand & Gravel Company as Schmidt.

Proffett is the owner of 44 acres of land situated in Valley View Village, with a frontage of about one thousand feet on Tinkers Creek Road. The land rises over 100 feet from a point near the roadway to a plateau upon which there is located about thirty acres of level land. These thirty acres are a part of a tableland which includes many acres of other properties extending in three directions for a considerable distance from plaintiff's property. There are no houses located upon the tableland. The Village of Valley View lies about eight miles southeasterly of the City of Cleveland. It is small in area and sparsely populated. Its population in 1930 was slightly over 500 and in 1950 was 998. It is entirely without the customary municipal facilities of water and sewers and has no sidewalks. Septic tanks are the only means of disposing of sewage, and water is obtained from wells. The Cuyahoga River and the Ohio Canal flow through the westerly portion of the village. Railroads are located near both its easterly and westerly boundaries. As its name implies, the Village is located in a valley, but a considerable part of the property within the village consists of elevated lands lying on top of the hills that surround the valley. In the year 1932 the village adopted zoning ordinance No. 131. The ordinance provided for the immediate establishment of but one use district. All the property in the village was restricted to the principal and accessory uses permitted by the U-1 or single residence classification. Provision was made for the granting of permits and variances by the Building Inspector and the Zoning Board of Appeals, and violations of the ordinance were subject to punishment as misdemeanors. The evidence discloses that with its mineral content the thirty acres of plaintiff's land has a value of $1,500 per acre, while its value as undeveloped land for residential purposes is less than one-fifth of that amount.

In 1950 Proffett entered into a combination lease and contract with Schmidt by the terms of which the latter was granted the right to extract sand and gravel from Proffett's property for a period of five years with an option for a renewal for a like period in consideration of the payment of a royalty of ten cents per ton, with provision for a minimum payment of $2,000 annually. Later in the year Proffett was granted an oral permit for a two-year period to remove sand and gravel from the thirty-acre portion of his property. Upon expiration of the two-year period excavation was continued by Proffett until he was ordered to cease operations by the village officials. Thereafter an application for another permit was made and denied. In January, 1953 Proffett together with Schmidt again made application to the Building Inspector for a permit, and this application was also denied. Proffett then appealed to the Zoning Board of Appeals, which upheld the action of the Building Inspector. Shortly thereafter this action was commenced.

Plaintiff seeks an order restraining the Village from interfering with his removal of sand and gravel from the property. An application for a temporary restraining order was denied by this court, and plaintiff sought, unsuccessfully, in the Court of Appeals and in the United States Supreme Court to enjoin the Village from interfering with his removal of the mineral deposits pending the determination of the case on the merits. However, in May, 1953 Proffett again resumed removal of sand and gravel from his property. Thereafter, on application of the Village, this court issued an order restraining plaintiff from making further excavations pending final determination of this case.

The foregoing events occurred during the period that ordinance No. 131 was in force. On June 2, 1953 the Village adopted zoning ordinance No. 53-5-1. This ordinance repealed ordinance No. 131. However, it is agreed that plaintiff's rights are controlled and governed by ordinance No. 131. Plaintiff alleges that the ordinance is void and unconstitutional as being in violation of Section 10 of Article I of the United States Constitution and the Fifth and Fourteenth Amendments thereto and Article 1, § 19, of the Ohio Constitution. Plaintiff assails the validity and constitutionality of the ordinance on several grounds but levels his main attack upon the alleged failure of the Village to comply with the provisions of the enabling statutes of Ohio. The claims that the purpose of the ordinance is not clearly expressed in its title and that there was no publication of the ordinance after its adoption, are without merit. Nothing developed at the trial that warrants any change in the opinions expressed by the court on these two points in overruling plaintiff's application for a preliminary injunction. Nor is there any basis for the claim that the Planning Commission of the Village failed to certify the plan of zoning to the village council as required by law. The fact that the Planning Commission made findings and submitted recommendations to the council is recited in the preamble to ordinance No. 131 and no evidence has been offered to refute the verity of this recitation.

Plaintiff contends that the ordinance is void because of the failure of the council to divide the municipality into zones or districts as required by Section 4366-7 et seq. of the General Code of Ohio. Inasmuch as the Village is not governed by a municipal charter, a determination of the validity of this claim requires an examination of the ordinance and the controlling statutes of Ohio. Section 2-(a) of the ordinance provides:

"Section 2-(a) Districts. For the purpose of this ordinance there is hereby created in the Village of Valley View five classes of Use Districts and three classes of Area Districts. Nothing herein contained, however, shall require the immediate designation of all of the above districts upon the zone map, it being the intention to provide for said districts and to permit from time to time the creation and designation of said districts as the needs of the community may require. Said districts, however, when established by proper legislation and designation upon the zoning map shall conform to all provisions with reference to said districts hereinafter described." (Emphasis supplied.)

Section 3 of the ordinance provides for five use classifications and three area classifications and specifies the regulations applicable in each. Although the U-2, U-3, U-4 and U-5 districts and the three Area districts are defined and the restrictions and regulations appertaining thereto are set forth in detail, the ordinance does not divide the municipality into districts or zones. Pursuant to the purpose expressed in Par. 2-(a) of the ordinance the entire village was placed in the U-1 district. The establishment of the other use and area districts was deferred until such time "as the needs of the community may require." Section 2-(b) incorporates the zoning map as a part of the ordinance. However, the original zoning map contained no delineation of districts or zones. It is merely a map of the village described by the defendant as one "which by white legend classified the entire village as a U-1 district." While thus conceding that the ordinance established but one district comprising the entire village, defendant contends that this was a compliance with the statutes governing zoning. It is urged that the ordinance was designed to preserve the residential and agricultural character of the village "while at the same time providing for future growth and development." Defendant argues that "There was no need, demand or call for other purposes and therefore no basis upon which to establish other types of districts." However, the State enabling act in express terms provides for the division of the municipality into zones or districts. Section 4366-7 G.C., which defines the powers of a city planning commission and confers like powers upon the planning commission of a village, provides in part as follows:

"The * * * planning commission * * * shall have the power to frame and adopt a plan or plans for dividing the municipality or any portion thereof into zones or districts, representing the recommendations of the commission, in the interest of the public health, safety, convenience, comfort, prosperity or general welfare, for the limitation and regulation of the height * * area", etc. "and the uses of buildings and other structures and of premises in such zones or districts." (Emphasis supplied.)

Section 4366-8 G.C., which governs the location of buildings and structures, provides inter alia:

"Whenever the * * * planning commission * * * certifies to the council * * * any such plan for the districting or zoning of the municipality * * * then said council * * * may regulate and restrict the location of buildings", etc. "* * * and for said purposes divide the municipality into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this section." (Emphasis supplied.)

Section 4366-9 G.C., which applies to regulations relating to the height of buildings and structures, contains identical language with respect to the certification by the planning commission of a plan for the districting and zoning of the municipality.

Section 4366-10 G.C. also contains provisions identical with or similar to those to be found in Sections 4366-8, 4366-9.

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