Schlagheck v. Winterfeld

• Decision Date: 29 December 1958
• Citation: 108 Ohio App. 299,161 N.E.2d 498
• Parties: , 9 O.O.2d 277 SCHLAGHECK et al., Appellants, v. WINTERFELD et al., Trustees of Adams Township, Appellees.
• Court: Ohio Court of Appeals

Page 299

108 Ohio App. 299

161 N.E.2d 498, 9 O.O.2d 277

SCHLAGHECK et al., Appellants, v. WINTERFELD et al., Trustees of Adams Township, Appellees.

Court of Appeals of Ohio, Lucas County.

Dec. 29, 1958.

Syllabus by the Court.

1. Although Section 1.20, Revised Code, applies only in specific terms to the amendment or repeal of a statute, the principle therein set forth is to be regarded as declaratory of the policy of the law of Ohio which forbids giving to a statute retroactive effect, although remedial in character, unless such statute contains an express provision to that effect.

2. An application seeking to amend a township zoning ordinance filed with the township zoning commission on June 7, 1957, and after further proceedings adopted by the board of township trustees on October 1, 1957, was a pending proceeding upon the effective date of Chapter 2506 of the Revised Code, September 16, 1957, and an appeal taken from the action of such board proceeds under the provisions of Section 519.12, Revised Code, effective July 6, 1956, and not under the provisions of Chapter 2506 of the Revised Code.

3. The term, 'public hearing,' as used in Section 519.12, Revised Code, connotes affording interested persons the opportunity to appear and express their views pro and con regarding proposed zoning legislation.

4. In adopting or amending a township zoning ordinance, the board of township trustees exercises a legislative function and under the provisions of Section 519.12, Revised Code (effective July 6, 1956), such board is not required to take testimony at its public hearing held pursuant to the provisions of such section.

5. In adopting or amending a zoning ordinance, the board of township trustees exercises a legislative function which will not be interferred with by the courts unless such power be exercised in an arbitrary, confiscatory, unreasonable and unlawful manner.

6. Failure of the board of township trustees to include in the published notice of a public hearing to be held upon a proposed change of zoning a statement of the place and time at which the text and maps of the proposed zoning resolution might be examined as provided by Section 519.06, Revised Code, is not such a defect in procedure as will invalidate the proceedings.

7. In reviewing the validity of amendments to township zoning ordinances courts do not pass upon the wisdom thereof but are limited to determining whether the proceedings are in compliance with statutory requirements are unreasonable or unlawful, and have a reasonable relationship to the exercise of the police power delegated to the board of township trustees by statute.

8. A court will not substitute its judgment for that of a board of township trustees charged with the duty of determining the necessity and character of zoning regulations, and if the validity of such legislative classification for zoning purposes is fairly debatable, the legislative judgment controls unless there is a clear abuse of legislative power or the ordinance is unreasonable or unlawful.

Boggs, Boggs & Boggs, Theodore F. Jasin and Reams, Bretherton & Neipp, Toledo, for appellants.

Harry Friberg, Prosecuting Attorney, Ben Neidlinger and James D. Nestroff, Toledo, for appellees.

FESS, Judge.

This is an appeal on questions of law from a judgment of the Common Pleas Court by plaintiffs from the action of the defendant Board of Trustees of Adams Township, Lucas County, Ohio, rezoning a fortyacre tract of land from suburban residential to general commercial, such court finding the action of such board to be reasonable and lawful and no error apparent on the record in said pleadings [sic] and no decision prejudicial to the appellants, denying the appeal and affirming the aforesaid action of said board.

Although not disclosed in the record, it is conceded that Adams Township previously adopted a comprehensive zoning ordinance pursuant to the provisions of Chapter 519 of the Revised Code. It is to be noted that the record upon the appeal to the Common Pleas Court comprises a number of miscellaneous papers from the files of the defendant board, the township zoning commission and the Lucas County Planning Commission, but fails to include a certified transcript of all the proceedings before the board and the adoption of the resolution from which the appeal is taken. Neither party to the appeal in the Common Pleas Court or in this court has raised any objection with regard to this deficiency in the record and no application for diminution of the record was made in the Common Pleas Court.

From the papers filed upon the appeal it appears that on June 7, 1957, the owner of record of the tract in question made application to the Adams Township Zoning Commission for a change in classification from R-A Suburban Residential to C-2 General Commercial in order to provide a shopping center thereon. Apparently notice of a public hearing to be held by the zoning commission on July 29, 1957, was given by such commission. At this hearing it was voted to continue the matter for a further hearing on August 12, 1957. On August 9, 1957, the Lucas County Planning Commission transmitted to the zoning commission its recommendation approving the change of zoning, accompanied by the minutes of the proceedings before the planning commission and sketches showing the proposed plat with additional requirements established by such planning commission. On August 13, 1957, the zoning commission notified the applicant that at its meeting held on August 12, 1957, the request for change of zoning had been disapproved and that the action of the zoning commission would be referred to the board of trustees for a like hearing on the proposal. Notice of a public hearing by the board of trustees to be held on September 17, 1957, was published.

From the minutes of this public hearing held September 17th it appears that 'after more long discussions for and against the shopping center the trustees decided to take this matter under consideration and announce their decision at a later date.' Thereafter, on October 1, 1957, without further hearing, the board of trustees unanimously voted to override the recommendation of the zoning commission and grant the change subject to certain stipulations and conditions similar to those imposed by the planning commission.

Upon the appeal to the Common Pleas Court, nine assignments of error on the part of the defendant were made, to which reference will be made later on in this opinion. Eight assignments of error on the part of the Common Pleas Court are presented upon this appeal. The first four assignments upon the appeal to this court relate to the refusal of the Common Pleas Court to hear and determine the appeal under the provisions of Chapter 2506 of the Revised Code.

Chapter 2506 was enacted without the saving clause (Section 1.20, Revised Code), effective September 16, 1957. Section 519.12 and 519.121, Revised Code, were previously amended without the saving clause, effective July 6, 1956. (126 Ohio Laws, Pt. II, 22, or 127 Ohio Laws 1262, 1264.) Section 519.12 as amended in 1956 retained the provision for appeal by any person adversely affected by an order of the township trustees relating to zoning. Section 519.12 was again amended as of September 17, 1957, eliminating the provision for the appeal. 127 Ohio Laws, 363, 371. Appellants vigorously assert that Chapter 2506 is a new law effective prior to the action taken by the defendant board and long before the appeal was taken to the Common Pleas Court; that the appeal therein provided 'is in addition to any other remedy of appeal provided by law'; that, therefore, Chapter 2506 is not an amendment or repeal within the contemplation of the provisions of Section 1.20, Revised Code; and that Woodward v. Eberly, 167 Ohio St. 177, 147 N.E.2d 255, is not to be applied to such a new law.

The contention of the appellants is not without some support. In Wheeling & Lake Erie R. Co. v. Toledo Ry. & Terminal Co., 72 Ohio St. 368, 74 N.E. 209, 106 Am.St.Rep. 622, the Supreme Court held that an act to provide for one steam railroad crossing another steam railroad, effective from and after its passage, was original legislation and not an amendment of a statute which under Section 79, Revised Statutes, did not exempt pending actions or proceedings from its operation. In State ex rel. Village of Oak Hill v. Brown, 125 Ohio St. 171, at page 177, 180 N.E. 707, the court pointed out that in State ex rel. City of Toledo v. Weiler, 113 Ohio St. 443, 149 N.E. 326, it was held that an amendment reducing the allowable indebtedness of a municipality from two and one-half to one per cent of the total value of listed property made a direct change in the law governing the issuance of bonds and therefore did not apply to pending proceedings for the issuance of bonds. Since the Brown case involved a change of law which only indirectly affected proceedings for the issuance of notes and their validity by shrinking the duplicate, Section 26, General Code, was not applicable and such enactment was held enforcible. In Gulf Refining Co. v. Evatt, 148 Ohio St. 228, 74 N.E.2d 351, 356, it is held that a valid tax exemption statute, which becomes effective during the pendency of an appeal by a taxpayer to the Board of Tax Appeals and which alters or removes the assessment being appealed, must be applied by that agency and that Section 26, General Code, does not apply to such statute for the obvious reason that no 'statute is repealed or amended' by such statute. The court follows Wheeling & Lake Erie R. Co. v. Toledo Ry. & Terminal Co., supra, 72 Ohio St. 368, 74 N.E. 209, and distinguishes State ex rel. Board of Education of City School Dist. of City of Cincinnati v. Ach, 113 Ohio St. 482, 149 N.E. 405, saying that the statute involved in the latter case made material changes in the essential steps required to be taken preliminary to the issuance of bonds. ¹

On the other...