State ex rel. Gulf Refining Co. v. De France

• Decision Date: 08 May 1950
• Citation: 100 N.E.2d 689,89 Ohio App. 1
• Parties: , 45 O.O. 315 STATE ex rel. GULF REFINING CO. v. DE FRANCE et al.
• Court: Ohio Court of Appeals

Page 1

89 Ohio App. 1

100 N.E.2d 689, 45 O.O. 315

STATE ex rel. GULF REFINING CO. v. DE FRANCE et al.

Court of Appeals of Ohio, Lucas County.

May 8, 1950.

Syllabus by the Court.

1. A charter adopted by the people of a municipality pursuant to the Constitution and subject to such limitations as may be provided therein governs, controls, and limits council very much the same as the Constitution governs, controls, and limits the General Assembly.

2. In the absence of a specifically enumerated power in its charter a municipality may exercise an unenumerated or reserve power directly under Section 3 of Article XVIII of the Constitution, subject however, with respect to the adoption and enforcement within its limits of local police, sanitary, and other similar regulations, to the limitiation that the same shall not be in conflict with general laws.

3. The powers of a municipality must be exercised in the manner prescribed by the Constitution, by its charter or by applicable general laws, and in the absence thereof may be exercised in the manner prescribed by ordinance.

4. In the absence of an enumerated power in its charter to enact zoning regulations such regulations may be adopted by the council of a charter city pursuant to general law.

5. A so-called spot-zoning ordinance adopted pursuant to the power conferred by Sections 4366-7 to 4366-11, General Code, without complying with the provisions of the statute, is invalid.

6. Ordinances which restrain the exercise of an owner of the use of his premises, or impose restrictions upon the use of private property, are to be strictly construed, and the scope of such ordinances can not be extended to include limitations not therein clearly prescribed.

7. The phrase 'frontage of lots on any street between two intersecting streets' includes the street upon which a lot fronts breadthwise but does not include a street upon which such lot abuts lengthwise.

Zachman, Boxell & Torbet, Toledo, for relator.

John J. McCarthy, Director of Law, and Robert B. Konwin, Toledo, for respondents.

FESS, Judge.

This is an action in mandamus, originating in this court, seeking to require the respondents to issue a building permit to relator for the construction of a gasoline service station at the corner of Central avenue and Goddard road in the city of Toledo.

The demurrer to the petition having been overruled, 101 N.E.2d 782, respondents filed their answer herein, to which the relator filed a reply and then moved for judgment on the pleadings.

The salient facts admitted by the pleadings are as follows:

Relator purchased the premises in question on July 9, 1947, but because of deed restrictions which did not expire until December 31, 1949, did not commence construction of the contemplated service station. Prior to January 30, 1950, the territory in which the lots were situated was beyond the limits of the city of Toledo, but on January 30, 1950, by ordinance of council, the territory was annexed to the city.

On January 30, 1950, pursuant to Sections 4366-8 and 4366-10, General Code, the Toledo council adopted ordinance No. 33-50 as an emergency measure to regulate the location of trades and industries, to regulate and determine setback building lines and to prescribe penalties for the violation of its provisions within the territories newly annexed to the city of Toledo. No hearing or notice thereof, as provided by Section 4366-11, General Code, was had prior to the passage of the ordinance.

On the same day, the council passed resolution No. 27-50, submitting to the city planning commission a proposed change in zoning maps by including thereon classification of property annexed, and also resolution No. 28-50 authorizing notice by publication of a public hearing to be held March 8, 1950, on a proposed ordinance to change the zoning maps.

In its petition relator alleges in substance that its plans and specifications were in proper order and in compliance with all lawful rules and regulations and that its application for a building permit filed March 7, 1950, was rejected by the respondents upon the sole ground that the zoning ordinance, originally enacted in 1923, as amended did not cover relator's premises and that pending the enactment of a zoning ordinance, covering the premises in question, respondents 'did not wish to take the responsibility of granting said permit.' Respondents' answer does not admit this allegation, but it is conceded that the granting of the permit was refused, and that no objection was made to the plans and specifications.

The petition alleges further that ordinance No. 33-50 was passed without hearing and notice as required by Section 4366-11, General Code; that the ordinance constitutes spot zoning in violation of the Constitution of the United States and the Constitution of Ohio; that the ordinance was passed as an emergency or stopgap measure pending the adoption of a valid zoning ordinance; that it is without reasonable application to the present valid use of property covered thereby; and that it has no uniform application and no reasonable relation to the health, safety, and general welfare of the public and is void.

So far as the federal and state Constitutions are concerned, it is clear that an Ohio city has the right to adopt a comprehensive zoning ordinance. Village of Euclid v. Ambler Realty Co., 1926, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016; Pritz v. Messer, 1925, 112 Ohio St. 628, 149 N.E. 30. In the latter case a majority of the court were of the opinion that a municipality is doubly empowered to enact zoning legislation, having been given such authority both by the Legislature and the Constitution.

In our opinion overruling the demurrer, we stated that authority for the enactment of zoning ordinances may be derived from the city charter adopted pursuant to Article XVIII of the Constitution, or that such ordinances may be enacted pursuant to the provisions of Sections 4366-7 to 4366-12, General Code. A more exhaustive examination of the authorities, however, reveals that this conclusion may not be altogether accurate. Under Section 3 of Article XVIII of the Constitution all municipalities, whether charter or non-charter, have authority to exercise all powers of local self-government and also to adopt and enforce within their limits such local police, sanitary, and other similar regulations as are not in conflict with general laws. Under Section 7 of Article XVIII, any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of Section 3, exercise thereunder all powers of local self-government. Authority to exercise such powers of local self-government is derived directly from the Constitution. Village of Perrysburg v. Ridgway, a Taxpayer, 108 Ohio St. 245, 140 N.E. 595; Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519; Wilson v. City of Zanesville, 130 Ohio St. 286, 199 N.E. 187; City of Cleveland v. Terrill, 149 Ohio St. 532, 80 N.E.2d 115.

The powers granted by the Constitution may be exercised by a municipality without a charter. A charter is adopted by the people of a municipality pursuant to the Constitution, and, subject to such limitations as may be provided granted to municipalities under the Constitution that certain powers--police, etc.--shall not be exercised in conflict with general laws, the charter limits, governs, and controls the council very much the same as the Constitution limits, governs, and controls the General Assembly. Bauman v. State ex rel. Underwood, Dir. of Law, 122 Ohio St. 269, 171 N.E. 336. It would seem that upon the adoption of a charter, the power granted to municipalitieis under the Constitution should be then exercised under the provisions of the charter rather than directly under Section 3 of Article XVIII of the Constitution; and that a charter city thus becomes an imperium in imperio. Nevertheless, it appears that the council of a charter city, in the absence of an enumerated power in the charter, may exercise an unenumerated power directly under Section 3. A distinction is to be drawn, however, between the powers of a municipality under the Constitution and the manner of the exercise of such powers. All proper powers are derived from the Constitution either with or without a charter. But such powers are to be exercised in the manner prescribed by the Constitution, by the charter, by general laws, or by ordinance.

In Bauman v. State ex rel. Underwood, supra, the issue was whether the Akron council, by a majority vote, could amend a zoning ordinance, notwithstanding the fact that the planning commission refused to approve such amendment, and the further fact that the original zoning ordinance provided that it could be amended only by a three-fourths vote when the amendment had not been approved by the planning commission. The court held that the council could not divest itself of the power conferred upon it by charter to enact legislation by a majority vote.

The court in the Bauman case held also that Section 4366-12, General Code, yields unrestricted powers to municipalities in respect to zoning, if such powers are granted by the municipal charter, and that the Akron charter conferred upon its council full and complete power to enact and amend any zoning ordinance by a majority vote.

In State ex rel. Fairmount Center Co. v. Arnold, Dir. of Service, 1941, 138 Ohio St. 259, 34 N.E.2d 777, 779, 136 A.L.R. 840, the Supreme Court held that 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 for in Section 4366-11, General Code. The charter in this case was quite different from the Akron charter. It provided, inter alia:

'There are hereby reserved to the city of Shaker Heights all powers, general or special, governmental or proprietary, which...