Urmston v. City of North College Hill

• Decision Date: 29 May 1961
• Citation: 114 Ohio App. 213,175 N.E.2d 203
• Parties: , 17 O.O.2d 372 Benjamin D. URMSTON, Plaintiff-Appellee, v. CITY OF NORTH COLLEGE HILL, Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 213

114 Ohio App. 213

175 N.E.2d 203, 17 O.O.2d 372

Benjamin D. URMSTON, Plaintiff-Appellee, v.CITY OF NORTH COLLEGE HILL, Defendant-Appellant.

Court of Appeals of Ohio, First District, Hamilton County.

May 29, 1961.

Donald H. Swain, Cincinnati, for plaintiff-appellee.

Harry T. Klusmeier, Cincinnati, for defendant-appellant.

O'CONNELL, Judge.

The defendant-appellant in this case is a municipal corporation.The plaintiff-appellee is the owner of certain real property on Hamilton Avenue in the said municipal corporation (North College Hill, Ohio).

In 1929, the said municipal corporation passed a general zoning ordinance in which all real property was classified either as business or as residential property.The said property of the plaintiff-appellee was classified as residential property.There have been several amendments made to the said zoning ordinance; but none of them have affected the plaintiff-appellee's property, so it still remains as residential property.And there is a residence said to be seventy-five years old on the said plaintiff-appellee's property.

The property immediately south of the said plaintiff-appellee's property is in a business zone, and the property immediately to the north (in the City of Mt. Healthy), although classed as residence property, does have a non-conforming business user.Other adjacent residential users are to the east of plaintiff-appellee's property and on the west side of Hamilton Avenue.

The plaintiff-appellee filed with the North College Hill Council an application for a change of zoning from residential to business.The North College Hill Council refused this request on two different occasions.The plaintiff-appellee then appealed his case to the Court of Common Pleas of Hamilton County, Ohio from this decision of the North College Hill Council.

In his amended petition, the plaintiff-appellee alleged that 'the action of the City Council of the City of North College Hill placing the (his) * * * premises in a residential zone was unreasonable and arbitrary, and constituted a gross abuse of discretion and likewise the refusal of defendant-appellant through its legislative and administrative branches to permit plaintiff to put said land to reasonable use; (to-wit, use for business purposes), was unreasonable and constituted a gross abuse of discretion.'

The prayer of the plaintiff-appellee's petition was that 'the Court enter a Declaratory Judgment, declaring that the aforesaid zoning ordinances, insofar as they purport to restrict plaintiff's use of the aforesaid property to exclude uses other than residential purposes as therein contained are invalid, and cannot lawfully be enforced against plaintiff.'

The defendant-appellant denied 'that the original zoning of the Plaintiff-(appellee's) property was unreasonable, arbitrary or an abuse of discretion', and alleged that 'the original zoning of the subject real estate and the enforcement of said ordinance' was 'a valid exercise of the police power of the City of North College Hill.'The defendant-appellant further denied 'that refusal of permission to use said property for business purposes was unreasonable or an abuse of discretion.'

The Common Pleas Court found that 'the zoning ordinance of the City of North College Hill as amended, as it applies to plaintiff-(appellee's) property, bears no reasonable relation to the health, safety, morals, or general welfare of the City of North College Hill, and that the refusal of the Council of the City of North College Hill to rezone plaintiff-(appellee's) parcel of property as 'Business' property is arbitrary and unreasonable.'Judgment, finding that 'the plaintiff-appellee has a right to use his property as business property' was then awarded to the plaintiff-appellee.

The case is in this Court on an appeal from this decision of the Court of Common Pleas.

In a recent case, State ex rel. Martin Land Development Co. v. Clepper et al., 174 N.E.2d 271, 273, this Court laid down some general principles governing the zoning laws and the rights of the legislative authority with regard to them as follows:

'It is quite superfluous to quote any cases on the right of the political subdivision to zone or to rezone; the law in Ohio is well settled that there is such power.Of course, the action of the agency must not be capricious or arbitrary or unreasonable.Only under such circumstances may an applicant lay his cause before the Court as a necessary substitute arbiter.'

And (quoting from58 Amer.Jur. 956): '* * * it is considered sufficient if the legislative body could reasonably have had considerations of public health, safety, morals, or general welfare in mind.The matter is largely within the discretion of the legislative authority, which is presumed to have investigated and found conditions such that the legislation which it enacted was appropriate, so that if the facts do not clearly show that the bounds of that discretion have been exceeded, the courts must hold that the action of the legislative body is valid.In this respect, it has been declared that the municipal governing bodies are better qualified because of their knowledge of the situation to act upon those matters than are the courts, which will not substitute their judgment for that of the legislative body.'

And (quoting fromOhio Jurisprudence Vol. 42, p. 815): 'If the validity of the legislative classification for zoning purposes is fairly debatable, the legislative judgment must be allowed to control, unless there is a clear abuse of legislative power * * *.'

And again, from the Law of Zoning, Vol. 1, by James Mitzenbaum, 1955(quotingCriterion Service, Inc. v. City of East Cleveland, Ohio App.1949, 88 N.E. 300), there is the following: 'It is for the legislative authority of a city and not the courts to determine the text of regulations to be embodied...