State ex rel. Fairmount Center Co. v. Arnold

• Court: Ohio Supreme Court
• Writing for the Court: TURNER, Judge.
• Citation: State ex rel. Fairmount Center Co. v. Arnold, 138 Ohio St. 259, 34 N.E.2d 777 (Ohio 1941)
• Decision Date: 21 May 1941
• Docket Number: 28445.
• Parties: STATE ex rel. FAIRMOUNT CENTER CO. v. ARNOLD, Director of Service and Inspector of Buildings.

34 N.E.2d 777

138 Ohio St. 259

STATE ex rel. FAIRMOUNT CENTER CO. v. ARNOLD, Director of Service and Inspector of Buildings.

No. 28445.

Supreme Court of Ohio

May 21, 1941

Syllabus by the Court.

1. A municipal council may not, by the enactment of an emergency ordinance, give retroactive effect to a pending zoning ordinance thus depriving a property owner of his right to a building permit in accordance with a zoning ordinance in effect at the time of the application for such permit.

2. A municipal council, acting under Sections 4366-7 to 4366-11 General Code, may not amend or change the number, shape, area or regulations of, or within, any zoning district without following the procedure provided in Section 4366-11, General Code.

Appeal from Court of Appeals, Cuyahoga County.

This was an action in mandamus, filed originally in the Court of Appeals of Cuyahoga county, seeking to compel appellee, as inspector of buildings of Shaker Heights, to issue a permit for the construction of a business block on land owned by appellant.

Appellant is the owner of a parcel of land in the Fairmount Circle in Shaker Heights, Ohio. In 1927, Shaker Heights adopted a zoning ordinance, No. 3128, in which all of the parcels (6 in number) on this circle in Shaker Heights were zoned for business. In 1932, all of these parcels except the one subject of this litigation were rezoned out of business into multiple-family residence use.

Appellant acquired its parcel in 1938, and in December of that year secured a building permit for a business building, which permit expired at the end of a year and before any building had been commenced.

On February 12, 1940, there was introduced in the Shaker Heights council Ordinance No. 4708 to eliminate the remaining business area of the circle by transferring appellant's parcel to multiple-family residence use.

At the same meeting at which the zoning ordinance amendment was introduced, the council passed emergency Ordinance No. 4709 the material provisions of which are as follows:

'Section 306-A. Permits to be denied during pendency of legislation.

'No permit shall be issued under authority of emergency Ordinance No. 4626, nor any amendment thereto, while any ordinance or other measure is pending before the council or city planning commission, nor while any such ordinance or other measure is subject to referendum or referendum thereon is pending, under which ordinance or measure, if adopted, any work, use, construction, alteration, installation or repair covered by said permit would be forbidden. Provided, however, that no permit shall be withheld for a total period of more than ninety days after application therefor, by reason of the pendency of any one or more of such ordinances or measures, unless such ordinance or measure has been subjected to referendum, in which case the permit shall be withheld until the referendum election has been held and its result certified to the proper officers of the city.'

On February 20, 1940, after the passage of emergency Ordinance No. 4709, and while the zoning amendment, Ordinance No. 4708, was pending, appellant applied for a second permit for the construction of the same building for which the first permit had expired in December 1939.

The record shows that appellant's plans and specifications were in proper order, and that it would have been entitled to a permit except for the provision of emergency Ordinance No. 4709, forbidding the issue of a permit while the zoning amendment was under consideration. The building inspector refused the permit. Appellant thereupon brought its action in mandamus in the Court of Appeals before the enactment of the zoning amendment Ordinance No. 4708, which was adopted by council on April 15, 1940.

A peremptory writ was sought to compel the building inspector, appellee herein, to issue the permit. The Court of Appeals refused the writ and dismissed appellant's petition.

Friebolin & Byers, of Cleveland, for appellant.

Ralph W. Jones, of Cleveland, Director of Law, for appellee.

TURNER Judge.

Appellant challenges the validity of both the rezoning Ordinance No. 4708 and the 'interim' or 'stop-gap' Ordinance No. 4709.

That Ordinance No. 4708 was aimed solely at appellant's property is obvious. There was no other property to be affected. It is undisputed that in the absence of the stop-gap Ordinance No. 4709, a clear legal duty rested upon appellee to issue the building permit. The real question here is: Did the city have the right, by stop-gap ordinance, to hold off appellant until it could put into effect an ordinance rezoning appellant's property?

Appellee's brief contains the following statement: 'The pleading do not show, but it is shown by stipulation included in the transcript of testimony that relator's plans and specifications were in proper order and it would have been entitled to a permit, except for the provisions of the interim ordinance, forbidding the issue of the permit while the zoning amendment was under consideration. The building inspector refused the permit.'

So far as the federal Constitution is concerned, it is clear that an Ohio municipality has the right to adopt a comprehensive zoning ordinance. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 5j A.L.R. 1016 .

Section 19 of Article I of the Constitution of Ohio provides, in part: 'Private property shall ever be held inviolate but subservient to the public welfare.' Section 3 of Article XVIII of the Constitution of Ohio provides: 'Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.'

By Section 4366-7 to 4366-11, General Code, the Legislature has provided by general laws for the zoning of municipalities. However, Section 4366-12, General Code, provides, in part, as follows: 'Nothing contained in the foregoing Sections 4366-7 to 4366-11 inclusive shall be deemed to repeal, reduce or modify any power granted by law or charter to any municipality, countil or other legislative body of a municipality nor to impair or restrict the power of any municipality under Article XVIII of the Constitution of Ohio.'

In the case of Bauman v. State ex rel. Underwood, Director of Law, 122 Ohio St. 269, 171 N.E. 336, this court held that Section 4366-12, General Code, yields unrestricted powers to municipalities in respect of zoning, if such powers are granted by the municipal charter. It was further held in that case that a charter city may, by majority of all the members of the council, amend a zoning ordinance, notwithstanding the fact that the city planning commission has failed and refused to approve such amendment, and the further fact that the zoning ordinance itself provides that it can only be amended by a three-fourths vote when the proposed amendment has not been approved and concurred in by the city planning commission.

The record shows that on July 28, 1931, Shaker Heights adopted a charter pursuant to Article XVIII of the Constitution of Ohio, which charter provides, inter alia:

'There are hereby reserved to the city of Shaker Heights all powers, general or special, governmental or proprietary, which may now or hereafter lawfully be possessed or exercised by any municipal corporation of Ohio. No enumeration herein of specific powers shall be held to be exclusive.

'The powers of this city may be exercised in the manner preseribed in this charter, or, to the extent that the manner is not prescribed herein, in such manner as the council may prescribe. The powers of the city may also be exercised, except as a contrary intent appears in this charter or in the enactments of the council conformably thereto, in such manner as may now or hereafter be provided by the general law of Ohio.' (Italics ours.)

The record shows that: 'Ordinance No. 4709 was enacted by the council of the city of Shaker Heights...