Valley View Village v. Proffett, 12179.

• Citation: 221 F.2d 412
• Decision Date: 23 April 1955
• Docket Number: No. 12179.,12179.
• Parties: VALLEY VIEW VILLAGE, Inc., and William Rosser, Inspector of Buildings, Appellants, v. Henry A. PROFFETT, Grace Proffett, and The Schmidt Bros. Sand & Supply Company, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

221 F.2d 412 (1955)

VALLEY VIEW VILLAGE, Inc., and William Rosser, Inspector of Buildings, Appellants, v. Henry A. PROFFETT, Grace Proffett, and The Schmidt Bros. Sand & Supply Company, Appellees.

No. 12179.

United States Court of Appeals Sixth Circuit.

April 23, 1955.

Richard S. Horan, Cleveland, Ohio, Richard G. Bell, Bedford, Ohio, and Ralph W. Bell, Cleveland, Ohio, on brief, for appellants.

Sidney D. L. Jackson, Jr., Cleveland, Ohio, Irwin Greene and Walter L. Greene, Cleveland, Ohio, on brief, for Henry A. Proffett and Grace Proffett.

Irwin Greene, Cleveland, Ohio, for Schmidt Bros. Sand & Supply Co.

Sidney D. L. Jackson, Jr., James P. Garner, Baker, Hostetler & Patterson, Cleveland, Ohio, on brief, for appellees.

Before MARTIN, McALLISTER and STEWART, Circuit Judges.

STEWART, Circuit Judge.

The question presented on this appeal is a novel one. Can a noncharter municipality in the State of Ohio validly adopt a zoning ordinance which puts the entire area of the municipality into a single use district? The trial court answered this question in the negative and enjoined the appellant municipality from enforcing such an ordinance so as to prohibit appellees' sand and gravel operations, D.C., 123 F.Supp. 339.

Appellant Valley View, Ohio, is a sparsely settled residential and agricultural village, situated about eight miles southeast of Cleveland. Approximately six miles long and three miles wide, the village was inhabited by some five hundred people in 1930 and by about a thousand in 1950. It is without most of the customary urban services and conveniences, such as sewers, waterworks, and sidewalks.

In 1932 the village council adopted Zoning Ordinance No. 131, together with a zoning map incorporated as part of the ordinance. Reciting that the village planning commission had made plans and submitted recommendations to the council, the ordinance established five classes of use districts and three classes of area districts. The ordinance further provided: "Nothing herein contained, however, shall require the immediate designation of all of the above districts upon the zone map, it being the intention to provide for said districts and to permit from time to time the creation and designation of said districts as the needs of the community may require. Said districts, however, when established by proper legislation and designation upon the zoning map shall conform to all provisions with reference to said districts hereinafter described."

The zoning map bore a marginal legend indicating that all areas shown in white constituted a "U-1" district. The legend showed various colors for the other four use districts, "U-2," "U-3," "U-4" and "U-5," but the entire area of the village was shown in white on the map, so that the entire village was in fact designated as a "U-1" district.

In the U-1 district property was restricted to the use of single dwelling houses, churches, schools, and social, recreational and welfare uses. Permissible accessory uses included offices of professional persons, home occupations for gain, farms, truck gardens, and nurseries.

The ordinance permitted the continuation of existing nonconforming uses of property, and provided for the granting of permits and variances by the village building inspector, and its zoning board of appeals.¹

In 1947 appellees Grace and Henry Proffett acquired a tract of land of about forty-four acres in Valley View. In 1950 the Proffetts entered into "a combination lease and contract" with appellee The Schmidt Bros. Sand & Supply Company, by the terms of which the latter was granted the right to extract sand and gravel from the Proffett property for a period of five years, with an option for a renewal for a like period, in consideration of payment of a royalty of ten cents per ton, with provision for a minimum payment of $2,000 annually. Later in the year the Proffetts were granted an oral permit by the village for a two-year period to remove sand and gravel from their property. Thereupon The Schmidt Bros. Sand & Supply Company began building a road into the property, and about a year later commenced the excavation and removal of sand and gravel.

Upon expiration of the two-year period, these operations were continued without a permit until the excavation was stopped in 1952 by the village officials. Subsequently, applications were made for another permit, but these were denied by the building inspector, and his action was upheld on appeal by the zoning board of appeals.

Thereupon the Proffetts brought the present action in the district court, seeking to enjoin the village and its building inspector from preventing the removal of sand and gravel from the Proffetts' property, contending that the zoning ordinance was void, illegal, and violative of the Federal and Ohio Constitutions.

After certain preliminary proceedings, the district court granted a permanent injunction against the enforcement of the ordinance by the village or its officers, concluding "That the Village Ordinance No. 131 of October, 1932, having zoned the entire area of the Village into a single use district, thereby failed to comply with the requirements of the State Enabling Act (Ohio General Code, Sections 4366-7, 4366-8, 4366-9 and 4366-10) and therefore had no substantial relation to the public health, safety, convenience, comfort, prosperity or general welfare, and the said ordinance, together with all amendments thereto, is therefore null and void." The court filed an opinion which it adopted as its findings of fact and conclusions of law.

The appellees also attacked the ordinance in the trial court upon the grounds that the subject of the ordinance had not been clearly expressed in its title and that it had not been published, as required by the law of Ohio. The trial court found these contentions without merit, and the appellees have renewed these attacks on this appeal. The record clearly supports the findings and conclusions of the district court on these questions, and we do not consider them further.

The appellees also argued to the district court that since the ordinance did not expressly prohibit the excavation of sand and gravel, these activities should be permitted even if the ordinance were held to be valid. This argument too is repeated upon this appeal. The trial court's conclusion was that "It would seem that notwithstanding the absence of an express prohibition against removal of sand and gravel, the exclusion of such use from those specifically authorized would, if the ordinance were otherwise valid, be effective to prevent the plaintiff from using his property for this purpose." We agree with that conclusion. Town of Lexington v. Menotomy Trust Company, 1939, 304 Mass. 283, 23 N.E.2d 559; Town of Seekonk v. John J. McHale & Sons, Inc., 1950, 325 Mass. 271, 90 N.E.2d 325.

This brings us to the central question on this appeal, stated at the outset of this opinion. The trial court held that the ordinance was void because the village council, in failing to divide the village into more than one use district, had thereby failed to comply with the requirements of the Ohio enabling statutes. At the time of the enactment of Ordinance No. 131 the statutory provisions covering the zoning powers of Ohio municipalities were contained in Sections 4366-7 to 4366-10 of the Ohio General Code.²

For the purpose of the question in issue we need consider only the first two of these four sections. Section 4366-7 empowered a village to create a planning commission and empowered such a planning commission "to frame and adopt a plan or plans for dividing the municipality or any portion thereof into zones or districts, representing the recommendations of the commission, in the interest of the public health, safety, convenience, comfort, prosperity or general welfare, for the limitations and regulation of * * * the uses of buildings and other structures and of premises in such zones or districts." Section 4366-8 provided, "Whenever * * * the planning commission of any village appointed under the provisions of section 4366-7, certifies to the council or other legislative body of the municipality any such plan for the districting or zoning of the municipality according to the uses of buildings and other structures and of premises, then said council or other legislative body, in the interest of the promotion of the public health, safety, convenience, comfort, prosperity or general welfare, may regulate and restrict the location of buildings and other structures and of premises to be used for trade, industry, residence or other specified uses, and for said purposes divide the municipality into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this section."

The district court interpreted this language as requiring the village council to establish more than one zone in order validly to exercise its power to regulate the use of property within its boundaries. We do not so read the statutory language. Although any plan adopted by the planning commission under Section 4366-7 must apparently provide for the division of the municipality into more than one zone or district, there is no obligation upon the village council under Section 4366-8 to adopt the plan as submitted. Upon certification of a plan to the council by the planning commission Section 4366-8 gives the council power, in the interest of the promotion of the public health, safety, convenience, comfort, prosperity or general welfare to "regulate and restrict the location of buildings and other structures and of premises to be used for trade, industry, residence or other specified uses * * *." It further gives the council power to "divide the municipality into districts" in order to accomplish said purposes. Section 4366-8 is...