State ex rel. Davis Inv. Co. v. City of Columbus

• Decision Date: 18 December 1963
• Docket Number: No. 36687,36687
• Citation: 194 N.E.2d 859,175 Ohio St. 337,25 O.O.2d 244
• Parties: , 25 O.O.2d 244 The STATE ex rel. DAVIS INVESTMENT CO. v. CITY OF COLUMBUS et al.
• Court: Ohio Supreme Court

Page 337

175 Ohio St. 337

194 N.E.2d 859, 25 O.O.2d 244

The STATE ex rel. DAVIS INVESTMENT CO. v. CITY OF COLUMBUS et al.

No. 36687.

Supreme Court of Ohio.

Dec. 18, 1963.

Syllabus by the Court

The legislative body of a municipality, which municipality has adopted a comprehensive charter pursuant to the provisions of Section 7, Article XVIII of the Constitution of Ohio, may enact an emergency ordinance which by its terms will operate effectively to prevent the municipal Board of Zoning Adjustment from granting a variance which would permit the construction of a shopping center in municipal territory zoned as a suburban residential district.

In this action in mandamus, brought originally in this court, the Davis Investmemt Company, an Ohio corporation, is the relator, and the city of Columbus and Raymond D. Goller, Superintendent of Building Regulations of that city, are the respondents.

Before the court are the petition, the answer (a demurrer to which was overruled without written opinion), the reply and an agreed statement of facts which was submitted at the time the court had before it for disposition the demurrer to the answer.

The controversy revolves around the westerly 7.3 acres of a 17-acre tract of land owned by the relator, designated as the Berwick Manor Shoppers Mart Tract and situated in the easterly section of the city of Columbus, along the south side of East Livingston Avenue.

Relator acquired the entire 17 acres for the purpose of constructing a shopping center with accessory facilities. By city zoning ordinances passed in 1956 and 1957, the easterly 10 acres of relator's land was classified as C-4 (a commercial district), and the westerly 7 acres plus was classified as SR (a suburban residential district).

In November of 1959, relator applied for and was granted a building permit for the construction of units of the proposed shopping center on its easterly 10 acres. In March of 1960, application was made for of Building Regulations on the ground that shopping center on the westerly 7.3 acres, which was refused by the Superintendent of Building Regulations on the ground that the SR classification of that acreage precluded the granting of the permit. An appeal from such refusal was taken to the Board of Zoning Adjustment, and at the same time and pursuant to Section 3309.06 (b) of the Columbus City Codes, then in effect, relator asked for a variance in the SR classification of the 7.3 acres to permit construction of units of the shopping center. The appeal and the application for the variance came on for hearing before the board upon evidence pro and con and upon exhibits. No decision was made, and the matter was continued until May 20, 1960, for further consideration upon additional information and evidence.

On May 16, 1960, the Columbus City Council adopted as an emergency measure without notice Ordinance No. 618-60, designed to amend Section 3309.06 of the Columbus City Codes.

On May 20, 1960, relator's appeal and application for variance were considered further by the board upon the additional information and evidence requested. Against opposition and despite emergency Ordinace No. 618-60, the board on May 20, 1960, granted the appeal and allowed the requested variance in the zoning classification for relator's westerly 7.3 acres.

Thereupon, relator applied to respondent Goller for the issuance of a building permit to construct shopping-center units and appurtenances on the 7.3-acre tract, which was refused in writing 'because of the City Attorney's opinion that Ordinance No. 618-60 precludes the Board of Zoning Adjustment from making the order issued by them on May 20, 1960.'

Thereafter, two persons filed appeals from the May 20, 1960, order of the Board of Zoning Adjustment to the Court of Common Pleas of Franklin County. Those appeals were dismissed. On appeal, the Court of Appeals affirmed the judgment of the court below, and this court overruled the motion to require the Court of Appeals to certify the record.

Lucas, Prendergast, Albright & Warren, Columbus, for relator.

Russell Leach, City Atty., Jack C. Young and Alba L. Whiteside, Columbus, for respondents.

ZIMMERMAN, Judge.

The controlling issue in this case is whether emergency Ordinance No. 618-60 is a valid enactment and, if so whether it is operative to prevent the Board of Zoning Adjustment from granting relator the relief it asks.

Relator, in claiming the right to a writ of mandamus, makes the following contentions:

1. Ordinance No. 618-60 may not be used retroactively to destroy the vested property right relator had under Section 3309.06(b) and which section it invoked prior to passage of Ordinance No. 618-60.

2. Ordinance No. 618-60 was not adopted in accordance with the requirements of the Columbus City Charter and ordinances.

3. The variance granted by the Board of Zoning Adjustment was valid notwithstanding Ordinance No. 618-60 which purported to amend Section 3309.06.

4. The appellate jurisdiction of the Board of Zoning Adjustment was not removed in the respect here involved by Ordinance No. 618-60 when considered in connection with other ordinances, and, when the board properly granted the variance, the Superintendent of Building Regulations was required to issue the building permit demanded by relator.

Section 3309.06 of the Columbus City Codes, prior to amendment, relates to variances which may be granted by the Board of Zoning Adjustment upon prescribed conditions, and under subdivision (b) of such section the board is permitted to allow a variance 'in a residential or an apartment residential district the location on any lot having an area of not less than five acres or bounded on at least three sides by streets not less than fifty feet in width, of any use authorized in a commercial district, provided such use in such lication is so conditioned as to adequately safeguard the appropriate use of neighboring property.'

Ordinance No. 618-60 is as follows:

'To amend Section 3309.06 of the Columbus City Codes 1959; to amend said existing section; and to declare an emergency.

'Whereas, an emergency exists in the usual daily operation of the Board of Zoning Adjustment in that it is immediately necessary to delimit the powers of the board so as to prevent conflicts in the application of the zoning code and provide for the immediate preservation of the public peace, health, safety and welfare; now, therefore,

'Be it ordained by the Council of the City of Columbus:

'Section 1. That Section 3309.06 of the Columbus City Codes, 1959, be and the same is hereby amended to read as follows:

"3309.06 Variances and Exceptions.

"The Board of Zoning Adjustment shall have power:

"(a) To authorize, upon appeal, variances from the zoning code where there are special physical conditions which: (1) are due to exceptional narrowness, shallowness, shape, topographic condition or other extraordinary situation peculiar to the premises itself, and (2) differentiate the premises from other premises in the district and general area, and (3) prevent a reasonable return in service, use income as compared to other conforming premises in the same district. Any such variance must be necessary to preserve a substantial property right, the hindrance of which resulted from the zoning code, must be in harmony with the public interest, and must be consistent with the purposes and objectives of the zoning code.

"Nothing herein shall be construed as authorizing the board to effect changes in the zoning map, or to add to the uses permitted in any district

"* * * .'

'Section 2. That existing Section 3309.06 of the Columbus City Codes, 1959, be and the same is hereby repealed.

'Section 3. That for the reasons stated in the preamble hereto, which is hereby made a part hereof, this ordinance is hereby declared to be an emergency measure and shall take effect and be in force from and after its passage and approval by the Mayor and shall affect all pending and subsequent proceedings of the Board of Zoning Adjustment.' (Emphasis added.)

The city of Columbus is a charter city, having adopted a comprehensive charter for its government by authorization of Section 7, Article XVIII of the Constitution of Ohio.

Section 3 of the charter vests the legislative powers in a city council, and Section 18 provides that 'the action of council shall be by ordinance or resolution.' Sections 18 through 25 of the charter detail the procedure to be followed in the adoption of ordinances. Section 22 provides for emergency measures 'for the immediate preservation of the public peace, property, health or safety.'

Unless otherwise provided by the charter itself, a municipality which has adopted a comprehensive charter is governed by the terms of the charter, and statutory provisions relating to subjects covered by the charter are inapplicable. Sections 701.05 and 713.14, Revised Code. See Bauman v. State, ex rel. Underwood, Director of Law, 122 Ohio St. 269, 171 N.E. 336. Compare State, ex rel. Fairmount Center Co., v. Arnold, Dir., 138 Ohio St. 259, 34 N.E.2d 777, 136 A.L.R. 840. The Columbus City Charter prescribes legislative procedure and speaks in detail on the subject of zoning.

It can hardly be said that relator with respect to its 7.3-acre tract had any vested property rights in the procedure governing the Board of Zoning Adjustment as contained in Section 3309.06 enacted in 1959. Those 7.3 acres were in a zone designated as SR (a suburban residential district), and until the board authorizedly granted a variance relator had no right to use its 7.3 acres in any other way than as an SR development.

Ordinance No. 618-60 relates to the remedy of a variance from the established zoning code and by its terms changes that remedy. Section 3 thereof expressly states that it 'shall affect all pending and subsequent proceedings of the Board of Zoning Adjustment.' And the ordinance went into effect as an emergency measure before the board acted...