Schiff v. City of Columbus

• Decision Date: 18 January 1967
• Docket Number: No. 40179,40179
• Citation: 223 N.E.2d 54,9 Ohio St.2d 31,38 O.O.2d 94
• Parties: , 38 O.O.2d 94 SCHIFF et al., Appellees, v. CITY OF COLUMBUS et al., Appellants.
• Court: Ohio Supreme Court

Page 31

9 Ohio St.2d 31

223 N.E.2d 54, 38 O.O.2d 94

SCHIFF et al., Appellees, v. CITY OF COLUMBUS et al., Appellants.

No. 40179.

Supreme Court of Ohio.

Jan. 18, 1967.

Syllabus by the Court

1. Both Section 727.01, Revised Code, and Section 164 of the Columbus City Charter authorize special assessments not only upon land abutting, adjacent and contiguous to a public improvement but also upon other land specially benefited by such improvement.

2. Where lots of the same depth are so located that they are likely to receive comparable benefits from an improvement, apportionment of assessments in proportion to benefits will usually result in assessments also being in proportion to the front feet of such lots; and the mere fact that they are does not indicate that assessments were made on a front-foot basis instead of in proportion to benefits.

3. Where a party seeks, in equity, to enjoin the commection of an assessment on the ground that certain legal requirements were not complied with in making the assessment, such party has the burden of alleging and proving that such requirements were not complied with. (Paragraph three of the syllabus of Bolton v. City of Cleveland, 35 Ohio St. 319; paragraph five of the syllabus of Chesbrough v. Commissioners, 37 Ohio St. 508; and paragraph one of the syllabus of Spangler v. City of Cleveland, 43 Ohio St. 526, 3 N.E. 365, approved and followed. Chamberlain v. City of Cleveland, 34 Ohio St. 551, distinguished.)

4. The enhancement in the value of property that results from a public improvement is the special benefit that will support an assessment against that property to pay for the improvement. Such enhancement in value of such property is a benefit to its owner that accrues to him and not to the public or to the rest of the community.

5. In order to be entitled to an injunction against any part of an assessment for the cost of a public improvement against a lot, the owner thereof has the burden of proving that the lot was not enhanced in value as a result of the improvement in an amount equal to the amount of the assessment.

6. The omission of benefited property from the area, that encompasses property assessed for an improvement, does not deprive the owner of property, that is assessed, of due process of law or of the equal protection of laws, if there is no showing that the omission was arbitrarily or fraudulently made.

This action was instituted on May 10, 1961, in the Common Pleas Court of Franklin County by the filing of a petition praying for a permanent injunction against the collection of $20,542.43 of the $229,925.89 special assessments levied by the city of Columbus to pay part of the cost of the $597,213 improvement of Livingston Avenue from James Road to Hamilton Road, a distance of over two miles.

The assessments sought to be enjoined were levied upon 66 lots owned by plaintiffs and those whom they represent. These lots are located between Elderwood Avenue and Hamilton Avenue, a distance of about three-quarters of a mile. Their situation, the situation of the 115 other lots and parcels assessed, and the nature of the improvements are described in part, as follows, in the findings of fact by the Court of Appeals:

'1. Livingston Avenue is a major artery and through street in Columbus, Ohio. In 1961, the project area contained both newly developed residential subdivisions and undeveloped land. Livingston Avenue was formerly a county road having 22-foot pavement with a ditch drainage. The original right of way was 60 feet in width.

'2. The properties assessed fall into two categories: (a) The majority, at least in frontage, abut upon the original 60-foot right of way. The improvement in front of these properties consisted of constructing a 52-foot pavement with curbs and storm sewers. There also was provided a number of individual improvements such as driveways, sidewalks, house drains, sanitary sewer connections, etc. The charges for these were either separately assessed or separately computed. We are concerned only with the assessment attributable to the road improvement itself. (b) The second group of properties, those of * * * (plaintiffs) consists of the first tier of lots in several major subdivisions stretching approximately three blocks along Livingston Avenue. These lots do not abut on the original 60-foot right of way, but rather face upon a dedicated way of up to 170 feet in width. The stipulations and testimony show that the City Planning Commission, acting under its subdivision regulatory power, required each subdivision developer to dedicate 55 feet of land frontage on Livingston Avenue, and to construct within it a residential 'service road.' This street serves the first tier of lots in the subdivision. Thus these lots abut directly on a fully paved residential street 25 feet in width. In front of that street was a grass strip about 30 feet in width, which, in turn, was adjacent to the 22-foot pavement and ditch on Livingston Avenue proper.

'3. The improvement in the area of these properties facing on the service road did not, of course, include any driveways, house drains, etc. The original 22-foot pavement was replaced with the 52-foot pavement, curbs and storm sewers (which sewers provide drainage for Livingston Avenue proper but not for the adjacent properties). The intervening 'planting strip' was reduced to about 20 feet in width * * *

'4. There is not direct access from the lots to the through traffic portion of Livingston Avenue. Both before and after the improvement, the intervening strip was a physical and legal barrier between the 'service' street and the through street. Indirect access to the throughway protion is available at the end of each block, i. e., at the intersection of the service street and one of the side streets which intersects with Livingston Avenue. The lots average about 65 feet in width, and the blocks are between 14 and 18 lots long. The owner of lot 332, Pinecrest No. 2 Subdivision, would apparently travel the maximum distance, i. e., about 900 feet on the service road to the intersection of Yearling Road and then on (sic) Livingston Avenue proper.'

The assessments involved range from slightly under $300 to as high as slightly under $375 per lot.

The Common Pleas Court denied the injunction and dismissed the petition.

Plaintiffs appealed to the Court of Appeals on questions of law and fact.

The judgment of the Court of Appeals (See opinion at 4 Ohio App.2d 234) found for plaintiffs and permanently enjoined collection of the assessments on plaintiffs' lots.

The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of a motion to certify the record.

Frick & Voltolini and Bruno E. Voltolini, Columbus, for appellees.

John C. Young, City Atty., Alba L. Whiteside and Georgena Howell, Columbus, for appellants.

TAFT, Chief, Justice.

Plaintiffs contend and the Court of Appeals found that plaintiffs' lots were not 'bounding and abutting upon the improvement' of Livingston Avenue. In our opinion, it is not necessary to consider whether they were or were not. The contention, that they were not so bounding and abutting, was apparently made because both Section 727.01(C), Revised Code, and Section 165 of the Columbus Charter limit use of the front-foot method of assessment to property 'bounding and abutting upon the improvement.' However, all the evidence, including the resolution declaring the necessity of and the ordinance determining to proceed with the improvement, indicates that the assessments were to be made in proportion to the special benefits resulting from the improvement; and both Section 727.01, Revised Code, and Section 164 of the Columbus City Charter authorize 'special assessments' not only 'upon the abutting, adjacent and contiguous' but also upon 'other specially benefited' land. See Chamberlain v. City of Cleveland (1878), 34 Ohio St. 551 (paragraph four of syllabus); City of Cincinnati v. Batsche (1895), 52 Ohio St. 324, 341, 40 N.E. 21, 27 L.R.A. 536.

The only evidence as to the amounts of assessments on individual lots was an exhibit identified only as a 'schedule of assessments.'

Because the amount of the assessments on plaintiffs' lots usually equaled about $5 a front foot, and because the amount of the assessments on other lands, admittedly bounding and abutting on Livingston Avenue, usually equaled about $10 a front foot, the Court of Appeals concluded that the front-foot method of assessment had been used. However, no one testified that it had. Further, no records were offered tending to show that that method had been used.

From the resolution, ordinance and the testimony of the city's Chief Engineer, it is established without dispute that $10 represents what the resolution and ordinance refer to as the 'rate * * * per assessable unit.' The facts, that the number of assessable units assigned to a lot bounding and abutting on Livingston Avenue usually equals about the front feet of that lot and that the number of such units assigned to a lot of plaintiffs' bounding and abutting only on a service road (with four exceptions) usually equals about one-half of the front feet of that lot, do not indicate that assessments were not made in proportion to benefits. The four exceptions demonstrated this. For example, the number of such units assigned to lot 173 in Thunderbird Acres, which bounds and abuts only on a service road, equals only one-fourth of the frontage of that lot. An examination of the 'schedule of assessments' indicates the reason for this, i. e., the depth of lot 173 is only 70 feet instead of the usual 120-foot depth of the lots bounding and abutting on a service road.

Where lots of the same depth are so located that they are likely to receive comparable benefits from an improvement, apportionment of assessments in proportion to benefits will usually result in assessments also being in proportion to the front...