State, Ex Rel. City Ice & Fuel Co., v. Stegner
| Decision Date | 17 April 1929 |
| Docket Number | 21502 |
| Citation | 120 Ohio St. 418,166 N.E. 226 |
| Parties | The State, Ex Rel. The City Ice & Fuel Co., v. Stegner, Dir. Of Bldgs., Et Al. |
| Court | Ohio Supreme Court |
Constitutional law - Municipal zoning ordinance - Limiting subsequent addition, extension or substitution of business buildings valid, when.
The provision of a zoning ordinance, limiting the subsequent addition, extension or substitution of business buildings or the use thereof, existing in a residence district at the time of the enactment of such ordinance, where it does not appear that such restrictions have no real or substantial relation to the public health, safety, morals or general welfare, is a valid exercise of the police power and is not violative of either the state or federal constitution.
IN MANDAMUS.
The facts are stated in the opinion.
Messrs Mallon & Vordenberg, for relator.
Mr John D. Ellis, city solicitor, and Mr. Milton H. Schmidt, for defendants.
This is an action in mandamus, and was instituted in this court by the relator to procure a writ compelling the director of buildings of the city of Cincinnati to issue a permit for the erection of an addition to the relator's building, heretofore used as an ice storage plant, and the installation of machinery and equipment necessary to manufacture ice for commercial use. The facts essential to a consideration of the legal questions presented may be very concisely stated.
The building now on relator's premises was erected in 1923 since which time said building has been used by the relator for the exclusive purpose of storing ice. With the exception of said plant the buildings in the vicinity were residential in character, but when the zoning ordinance was adopted the premises in question were designated as a business "A" district. In 1927 the zoning was changed, and the district classified as a residence "B" district. The application of the relator here in question was filed November 2, 1928. This application was for a permit to make extensive additions to the building and equipment thereof, so as to make of it a commercial ice-manufacturing plant. The application for a permit was refused by the director of buildings, and after hearing upon appeal the zoning board of appeals affirmed the decision of the director of buildings, and refused the permit upon the grounds that the present building of the relator is a non-conforming use in that it is a business building in a residence district, and the application and plans filed by the relator provide for an extension of and also a substitution for an existing non-conforming use, in that they contemplate the installation of machinery and equipment in the present and the pro- posed new building for the manufacture of ice, whereas the present building has heretofore been devoted solely to the purpose of storing ice. The board found that the application of the provisions of the Building Code will not result in undue hardship to the relator, and that the modification of the Building Code requested would not be in harmony with the purpose and intent of the provisions of the zoning ordinance, and further found that the use applied for would impair the public health, safety, convenience, prosperity, and general welfare.
The provisions of the zoning ordinance do not in any wise prohibit or restrict any building or structure or use existing at the time of the enactment of the ordinance. On the contrary, the ordinance expressly provides that the same may continue, even though such building structure or use does not conform with the provisions of the ordinance for the district in which it is located. The ordinance further provides that such existing non-conforming use may be hereafter extended throughout any parts of a building which are manifestly arranged or designed for such use at the time of the enactment of said ordinance, but that no building or premises containing a non-conforming use shall be extended unless such extension conforms with the provisions of the ordinance for the district in which it is located. The ordinance authorizes the board of appeals to permit "a substitution for or an extension to nonconforming uses existing at the time of enactment of this ordinance, but not both a substitution and extension, except that in any residence district no change shall be permitted to any use prohibited in any business district, and in any business district no change shall be permitted to any use prohibited in any industrial `A' or `B' district." The ordinance further provides for "the extension of a non-conforming use or buildings upon the lot occupied by such use or buildings at the time of enactment of this ordinance * * * and where such extension is a necessary incident to the existing use, and provided that such extension or extensions shall * * * in any case be undertaken within five years of the enactment of this ordinance."
The relator contends that his application contemplates and provides only for the extension of the building and of the business therein conducted, and not for a substitution of either building or business, the only difference being that instead of a refrigeration equipment to keep blocks of ice therein stored in a...
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