Union Oil Co. of California v. City of Worthington

• Decision Date: 04 June 1980
• Docket Number: No. 79-868,79-868
• Citation: Union Oil Co. of California v. City of Worthington, 62 Ohio St.2d 263, 405 N.E.2d 277, 16 O.O.3d 315 (Ohio 1980)
• Parties: , 16 O.O.3d 315 UNION OIL COMPANY OF CALIFORNIA, Appellant, v. CITY OF WORTHINGTON, Appellee.
• Court: Ohio Supreme Court

Page 263

62 Ohio St.2d 263

405 N.E.2d 277, 16 O.O.3d 315

UNION OIL COMPANY OF CALIFORNIA, Appellant, v.CITY OF WORTHINGTON, Appellee.

No. 79-868.

Supreme Court of Ohio.

June 4, 1980.

Smith & Tobin and Harrison W. Smith, Jr., Columbus, for appellant.

Gingher & Christensen, Michael E. Minister and Bradley Hummel, Columbus, for appellee.

PER CURIAM.

At issue in this cause is the future use of an undeveloped parcel of real property acquired by Union Oil in December 1966.The property is zoned "R-10, Low Density Residence," which, under the Worthington zoning system, limits the use of the property, in general, to single-family residential use.Union Oil desires to use its property as the site of a combination gasoline service station and car wash.In Worthington such a use is restricted to property zoned "C-4, Highway and Automotive Services."

Preliminarily, we address the city's argument that this cause has been rendered moot by the April 9, 1979, adoption of an ordinance rezoning Union Oil's property from the R-10 classification to the "C-3, Institutions and Offices" classification.

In Ohio, zoning legislation enacted subsequent to the filing of an application for a building permit does not affect the property owner's right to receive the permit Gibson v. Oberlin(1960), 171 Ohio St. 1, 167 N.E.2d 651.The parties agree that, on March 5, 1979, prior to adoption of the rezoning ordinance, Union Oil filed an application for a building permit to construct a combination service station-car wash facility on its property.On that date the instanct cause was pending in the Court of Appeals.In light of Gibson v. Oberlin, supra, we believe it is inappropriate to conclude that the subsequently adopted rezoning ordinance necessarily would determine Union Oil's right to receive the permit for which it applied.We believe that a justiciable controversy remains in existence between these parties which is properly susceptible to resolution in the form of a declaratory judgment.

In 1966, the city adopted a "Comprehensive Plan" as a generalized guide for future development in Worthington.The city council, however, as the legislative zoning authority, never rezoned the city as a whole to accord with the zoning suggestions of the plan.Council deferred consideration of rezoning until it had opportunity to act upon individual rezoning applications sought by property owners in connection with specific proposed uses of their parcels of property.

In an attempt to procure the zoning necessary to construct a gasoline service station-car wash, Union Oil applied to the Worthington City Council in 1967, 1968, 1971 and 1975 for rezoning of its property to the C-4 classification.Its applications were never approved.Thus, regardless of the fact that the character of the neighborhood changed significantly since its acquisition by Union Oil 1966, becoming increasingly more commercial in nature, the property retained its R-10 classification.

This court has acknowledged that a property owner may bring a declaratory judgment action to challenge the constitutionality of existing zoning legislation as it applies to a specific parcel of property to proscribe the property owner's proposed use of the property.Driscoll v. Austintown Associates(1975), 42 Ohio St.2d 263, 328 N.E.2d 395.In such an action the trial court has the power to grant affirmative or negative relief to terminate the controversy between the property owner and the zoning authority.R. C. 2721.02; 2721.03; 2721.06.This cause presents questions as to the nature of relief, if any, that a court may properly order in connection with a determination of unconstitutionality in such a declaratory judgment action.

Union Oil argues that by declaring existing zoning unconstitutional the court fulfills its responsibilities and should go no further and that, pending adoption of new zoning legislation, the property technically is "unzoned."The property owner thereafter presumably would be entitled to use the property for any legal purpose.

In Ed Zaagman, Inc., v. Kentwood(1979), 406 Mich. 137, 277 N.W.2d 475, the Supreme Court of Michigan noted in connection with such a line of reasoning, at page 168, 277 N.W.2d at page 484, that:

"* * * Although a technically logical position, * * * restricting the...