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

• Decision Date: 03 April 1950
• Citation: 89 Ohio App. 334,101 N.E.2d 782
• Parties: , 46 O.O. 104 STATE ex rel. GULF REFINING CO. v. DE FRANCE et al.
• Court: Ohio Court of Appeals

Page 334

89 Ohio App. 334

101 N.E.2d 782, 46 O.O. 104

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

Court of Appeals of Ohio, Lucas County.

April 3, 1950.

Syllabus by the Court.

1. In the absence of a provision in a municipal charter authorizing the enactment of zoning regulations, authority to enact such regulation is derived from Sections 4366-7 to 4366-12, General Code, and such regulations must be enacted in accordance with such statutes.

2. A so-called 'stopgap' zoning ordinance passed without notice and hearing contrary to the requirement of Section 4366-11, General Code, is invalid.

3. A peremptory writ of mandamus should issue under Section 12288, General Code, in the first instance, only when material facts are admitted which disclose that the relator is entitled to relief as a matter of fact as well as of law.

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 petition sets forth that relator purchased the premises in question on July 9, 1947, but because of deed restrictions which did not terminate until December 31, 1949, relator did not commence construction of the contemplated station. Prior to January 30, 1950, the lots were situated beyond the limits of the city of Toledo. On January 30, 1950, the Toledo council adopted an ordinance annexing eight different areas of property, among which was included relator's premises. On the same day, pursuant to Sections 4366-8 and 4366-10, General Code, the council enacted ordinance No. 33-50 as an emergency measure to regulate the location of trades and industries, and to regulate and determine setback building lines in the territories newly annexed to the city of Toledo. The ordinance also prescribes penalties for the violation of its provisions. No hearing or notice thereof, as provided by Section 4366-11, General Code, was had prior to the passage of the ordinance.

Section 2 of the ordinance provides: 'Section 2. Use Regulations. Whenever four-fifths (4/5) of the frontage of lots on any street between two intersecting streets contain, at the time of the passage of this Ordinance, structures exclusively residential, no structure shall be built or altered for business or factory purposes therein unless there are on file at the office of the Commissioner of Inspection the written consents of the owners of three-fourths (3/4) of the entire frontage at the time of the issue of the permit.'

Relator alleges that its premises front 117 feet on Central avenue and abut (but not front) 140 feet on Goddard road; and that there are no residential structures on Central avenue between Goddard road and Cheltenham road.

Relator alleges further, in substance, that its plans and specifications were in proper order and in compliance with all lawful rules and regulations, and that its application 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.'

Relator alleges further that the ordinance 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.

Authority for the enactment of zoning ordinances may be derived from a city charter adopted pursuant to Article XVIII of the Constitution, or such ordinances may be enacted pursuant to the provisions of Sections 4366-7 to 4366-12, General Code. The Toledo...