Smith v. Juillerat

• Decision Date: 19 May 1954
• Docket Number: No. 33337,33337
• Citation: 119 N.E.2d 611,161 Ohio St. 424
• Parties: , 53 O.O. 340 SMITH et al. v. JUILLERAT et al.
• Court: Ohio Supreme Court

Page 424

161 Ohio St. 424

119 N.E.2d 611, 53 O.O. 340

SMITH et al. v. JUILLERAT et al.

No. 33337.

Supreme Court of Ohio.

May 19, 1954.

Syllabus by the Court.

1. In the absence of evidence to the contrary, it is presumed that the procedure necessary to the legal adoption of legislation by a public legislative body has been followed.

2. The purpose of a zoning ordinance is to limit the use of land in the interest of the public welfare.

3. Where a zoning ordinance is general in its application, the classifications as to uses to which the property may be devoted are reasonable, and pre-existing vested rights are recognized and protected, the ordinance is a valid exercise of the police power.

4. Where no substantial nonconforming use is made of property, even though such use is contemplated and money is expended in preliminary work to that end, a property owner acquires no vested right to such use and is deprived of none by the operation of a valid zoning ordinance denying the right to proceed with his intended use of the property.

This is an appeal to this court from a judgment of the Court of Appeals for Mahoning county affirming a judgment of the Common Pleas Court of that county in an action wherein the defendant The Lake Erie Coal & Supply Company was enjoined from strip-mining coal from the lands of the defendants, Juillerat and Marrie, in Poland township, Mahoning county.

The plaintiffs own residential properties which abut or are adjacent to the lands of the defendants, all of which are in a rural residential area less than one mile from the limits of the village of Poland, Mahoning county.

There existed certain leases between the coal company and the defendant property owners for strip-mining coal. These leases were entered into prior to the enactment of a zoning ordinance adopted by the trustees of Poland township.

On October 21, 1949, the coal company applied for a license to strip-mine coal, which license was issued on November 2, 1949, and on that date the company posted a bond covering five acres of the land under lease.

The petition filed by the plaintiffs on October 21, 1949, alleges that the proposed strip-mining operations of the coal company would constitute a nuisance, and that a township zoning law which made stripmining in that area unlawful was awaiting submission to the electorate of the township. A temporary restraining order was granted upon the filing of the petition. On November 4, 1949, the defendants filed a motion to dissolve the temporary restraining order.

At an election held November 8, 1949, a majority of the electors of the unincorporated area of Poland township adopted a zoning ordinance for that area, which included the lands in question, became effective November 13, 1949, and prohibited the strip-mining of coal.

At the hearing on November 9, 1949, the plaintiffs filed and served upon the defendants a supplemental petition alleging the passage of the zoning ordinance and claiming that its passage constituted an additional groung for granting a permanent injunction as prayed for. The coal company filed an answer to the original and supplemental petitions, and defendants Juillerat and Marrie filed an answer to the petition.

At the time plaintiffs' action was commenced, defendants had drilled a hole for testing purposes on the Juillerat property but had removed no coal from either property before the zoning ordinance became effective.

The trial court granted a permanent injunction against strip-mining operations, by the coal company, on the properties in question, on the ground 'that the operations proposed by defendants are illegal by reason of the duly adopted and constitutional zone legislation.' The court found 'that plaintiffs are not barred from seeking equitable relief upon any principle of laches or estoppel.' The court did not determine whether the proposed operations would amount to a common-law nuisance.

Upon appeal to the Court of Appeals, that court affirmed the judgment of the Common Pleas Court, and the cause is now in this court by reason of the allowance of a motion to certify the record.

Theodore T. Macejko and David C. Haynes, Youngstown, for appellants.

Manchester, Bennett, Powers & Uiiman, Youngstown, for appellees.

HART, Judge.

Defendants, under their first claim of error, contend that the zoning ordinance in question is void because in its adoption the trustees and the zoning commission of Poland township and the planning commission of Mahoning county failed to follow the mandator requirements of Sections 3180-30, 3180-31, 3180-32, 3180-34 and 3180-35, General Code, in that the zoning commission failed to hold a public hearing on its recommendantions to zone the area, a notice by publication at least 30 days before the hearing being required; in that the zoning resolution with maps was not submitted to the county planning commission for its approval; and in that the township trustees before their adoption of the zoning resolution failed to hold a public hearing on the resolution after proper notice. It is the claim of the defendants that the requirements of Sections 3180-30 to 3180-35, General Code, are mandatory and that no showing of compliance was made in the trial of this cause.

The answers of the defendants do not set out as a defense any claimed illegality of the legislation adopted by the zoning commission or the township trustees, but allege estoppel, that the zoning ordinance does not apply to the defendants, and that it is unconstitutional, discriminatory and arbitrary as to them.

During the trial of the case, plaintiffs introduced a copy of the zoning ordinance but did not offer in evidence all teh steps taken preliminary to the adoption thereof.

From the record, these questions do not seem to have been raised in the trial of the case, but only by briefs submitted to the court by the defendants. In fact, the record indicates that evidence of this ordinance was received under formal objection, without any claim being made as to its invalidity. In the course of the trial, when this evidence was being presented, the trial court made inquiry of counsel for the defendants anf received an answer as follows:

'Court: I am asking you whether you will admit this portion of the procedure, that is, this purports to be a copy of a document wherein the trustees of Poland township certify to the Mahoning county deputy supervisors of elections that the zoning commission of Poland township adopted a zoning plan which was accepted by the attesting trustees and that the trustees request the board, that is, the Mahoning county deputy etc. to submit the following to be voted upon at the general election on November 8 for adoption or rejection by the electors of Poland township, this question to be on the ballot: Shall the zoning plan adopted by the zoning commission and accepted by the trustees of Poland township be adopted and approved? Are you willing to stipulate that the trustees of Poland township took that procedure?

'Mr. Haynes: Yes, that is all right.'

In fact, there is affirmative and uncontradicted evidence in the record, through the testimony of a member of the Poland township zoning commission, that the commission held two public hearings attended by many persons interested in the matter, and that the zoning plan was submitted to the township trustees, after which the trustees voted upon and approved the plan.

The introduction of public records makes a prima facie case as to the validity of matters contained in them. In the absence of evidence to the contrary, it is presumed that the procedure necessary to the legal adoption of legislation by a public legislative body has been followed. In the case of City of Youngstown v. Aiello, 156 Ohio St. 32, 37, 100 N.E.2d 62, 65, this court,...