Shaker Coventry Corp. v. Shaker Heights Bd. of Zoning Appeals

• Decision Date: 08 February 1962
• Citation: 180 N.E.2d 27,21 O.O.2d 114,115 Ohio App. 472
• Parties: , 21 O.O.2d 114 SHAKER COVENTRY CORPORATION, Appellant-Appellee, v. SHAKER HEIGHTS BOARD OF ZONING APPEALS and W. E. Arnold, Building Commissioner of The City of Shaker Heights, Appellees-Appellants.
• Court: Ohio Court of Appeals

Page 472

115 Ohio App. 472

180 N.E.2d 27, 21 O.O.2d 114

SHAKER COVENTRY CORPORATION, Appellant-Appellee, v. SHAKER HEIGHTS BOARD OF ZONING APPEALS and W. E. Arnold, Building Commissioner of The City of Shaker Heights, Appellees-Appellants.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Feb. 8, 1962.

Van Aken, Whiting, Arnold, Bond & Nash, DuLaurence & DuLaurence, Cleveland, for appellant-appellee.

Walter C. Kelley, Jr., Director of Law, Cleveland, for appellees-appellants.

HURD, Justice.

This appeal comes to this court on questions of law from a judgment entered on appeal to the Court of Common Pleas of Cuyahoga County from a final order of the Zoning Board of Appeals of the City of Shaker Heights.

The appellee in this court, The Shaker Coventry Corporation, is the owner of a plot of vacant land located at the southwest corner of Shaker Boulevard and Coventry Road in the City of Shaker Heights.

The subject property was originally allotted in 1910 and consists of the easterly partof sublot No. 124 and all of sublot No. 125 immediately adjoining the Cleveland boundary line. The property immediately adjacent to the west is completely developed with high rise apartments on both sides of the street. The Shaker Heights property has been lying vacant since it was originally allotted in 1910 and has been variously zoned. At one time in 1932, it was zoned for apartment house use. In 1947, The Van Sweringen Company, the original allotter, by duly recorded waiver, released the restrictions as to sublot No. 125 so as to permit its use for apartment house purposes. It is undisputed that The Van Sweringen Company developed Shaker Heights and was noted for its zeal in preserving its overall plan for an orderly development of the city.

The appellee proposes to build a five story apartment house described as the 'finest type' now existing in the City of Shaker Heights on the above property.

The trial judge had before him a transcript of the record of the Zoning Board of Appeals and its findings and additional evidence consisting of maps, photographs, title reports, and zoning ordinances. In addition thereto, the court heard the testimony of many witnesses, including the Mayor of Shaker Heights, and seven expert witnesses presented by the appellee. The burden of the testimony of the expert witnesses was to the effect that the present zoning for single family or duplex use had no connection with the health, welfare, morals or safety of the community.

The trial judge, after a lengthy trial, rendered an extended opinion, in addition to conclusions of fact and law. The pertinent finding and judgment of the trial judge, in reversing the Zoning Board of Appeals, was that the existing zoning ordinance as it applies to the subject property is arbitrary, unreasonable and beyond the zoning power of the city. The trial court then directed the Building Department of the City of Shaker Heights to issue a building permit pursuant to the application of the appellee, subject, however, to all other applicable provisions of the zoning ordinances and building code of the City of Shaker Heights and to do all other things necessary and proper to carry into effect the finding and order of the court.

The foregoing facts and many others are not in dispute. We are confronted only with questions of law.

The assignments of error of the appellants, Shaker Heights Zoning Board of Appeals and the Building Commissioner, are as follows:

'1. The Court of Common Pleas erred in denying the motion of appellees-appellants to dismiss the petition on the grounds that the Court of Common Pleas had no jurisdiction to hear or determine the merits of the appeal.

'2. The Court of Common Pleas erred in assuming jurisdiction of the subject-matter and granting relief to appellant-appellee when the Board of Zoning Appeals of the City of Shaker Heights, from which this appeal was taken, had no authority to amend the zoning plan of the City of Shaker Heights, to approve a variance from the zoning plan or to approve or issue a building permit.

'3. The Court of Common Pleas erred in finding that the zoning of appellant-appellee's property for single family or duplex purpose is improper, invalid, unreasonable and arbitrary and in ordering the issuance of a building permit for an apartment building on appellant-appellee's property.

'4. The Court of Common Pleas erred in that its judgment is not sustained by sufficient evidenc and is against the weight of the evidence and its judgment is contrary to law.

'5. The Court of Common Pleas erred in other respects apparent in the record and prejudicial to the rights and interests of the appellees-appellants, to which exceptions were duly made.'

Insofar as the assignment of error involving the question of the weight of the evidence is concerned, it is our opinion that the finding of the trial court that the zoning ordinance as applied to appellee's property was arbitrary, unreasonable, unenforceable, and violative of the constitutional rights of the appellee, is supported by reliable and probative evidence as shown by the record.

The principal ground of error upon which the appellant relies is that the Court of Common Pleas was without jurisdiction to hear and determine the merits of the appeal. The case was appealed to the Court of Common Pleas as provided in Sections 2506.01 to 2506.04, inclusive, of the Revised Code. The appellee filed a motion to dismiss the appeal on the ground of lack of jurisdiction of the subject matter by both the Shaker Heights Board of Zoning Appeals and the Court of Common Pleas, which motion was overruled by the judge...