Shopping Centers of Greater Cincinnati, Inc. v. City of Cincinnati

• Decision Date: 27 April 1959
• Citation: 164 N.E.2d 593,109 Ohio App. 189
• Parties: , 10 O.O.2d 400 SHOPPING CENTERS OF GREATER CINCINNATI, INC., Appellee, v. CITY OF CINCINNATI, Appellant. *
• Court: Ohio Court of Appeals

Page 189

109 Ohio App. 189

164 N.E.2d 593, 10 O.O.2d 400

SHOPPING CENTERS OF GREATER CINCINNATI, INC., Appellee, v. CITY OF CINCINNATI, Appellant. ^*

Court of Appeals of Ohio, Hamilton County.

April 27, 1959.

Syllabus by the Court

1. Where, after the enactment of a zoning ordinance which, inter alia, restricts the use of plaintiff's property to 'residence B' uses, the municipality has, for years, generally liberalized the provisions of the ordinance so as to permit other uses of property in the vicinity while refusing to permit other uses of plaintiff's property, such ordinance is unconstitutional and void in its application to plaintiff's property.

2. Where, in a declaratory judgment action by a property owner to determine the constitutionality of a zoning ordinance based on the restriction it places on the use of his property, it appears during the trial that plaintiff had made various futile attempts to get the municipal authorities to permit other uses but offered no formal proof that he had exhausted his administrative remedies, it is within the sound discretion of the trial court, after judgment has been entered, to set aside the judgment so as to permit such proof.

3. An action for a declaratory judgment is a comprehensive remedy, specifically authorized by statute to determine a property owner's status under a zoning ordinance, and its availability as a remedy is not dependent on the absence of any other remedy.

C. R. Beirne and Jerome Goldman, Cincinnati, for appellee.

James W. Farrell, Jr., City Solicitor, and William A. McClain, Cincinnati, for appellant.

PER CURIAM.

This is an action seeking to have the court declare a certain municipal ordinance of the city of Cincinnati, zoning the plaintiff's real estate in 'residence B' zone, with the restrictions thereby imposed, to be unreasonable, arbitrary, confiscatory, unconstitutional, and void. The defendant denied the allegations upon which the plaintiff based the foregoing conclusions.

After a trial extending over several days, the trial court rendered judgment declaring the zoning ordinance, so far as it restricts the use of plaintiff's property to 'residence B' uses, to be in violation of the provisions of the Constitutions of Ohio and of the United States, U.S.Const. Amend. 14; Const. art. 1, § 16, and invalid. The restrictions there declared invalid originally limited the use of the plaintiff's property to residential buildings of single-, tow-, and four-family occupancy. These restrictions continued from 1924 until about 1950, when the restrictions were relaxed to permit 'garden type' residences, but the other restrictions have been continued to this day, thereby excluding all other types of residences and completely excluding all commercial use as well as all industrial and manufacturing use.

Since 1924, the tendency has been to expand the use of property in the vicinity, and the municipality has recognized that fact by liberalizing the zoning ordinance so as to permit such use, but has refused requests to so amend the zoning ordinance applicable to the plaintiff's property.

It seems to have been conceded during the trial that the plaintiff had made various attempts to get the municipal authorities to permit other than 'residence B' uses, and it developed that formal proof that plaintiff had exhausted its administrative remedies had not been made. At any rate, after judgment had been entered the plaintiff moved the court to set aside...