Village of Hudson v. Albrecht, Inc.

• Decision Date: 25 January 1984
• Docket Number: No. 83-142,83-142
• Citation: 458 N.E.2d 852,9 Ohio St.3d 69,9 OBR 273
• Parties: , 9 O.B.R. 273 VILLAGE OF HUDSON, Appellee, v. ALBRECHT, INC. et al., Appellants.
• Court: Ohio Supreme Court

Page 69

9 Ohio St.3d 69

458 N.E.2d 852, 9 O.B.R. 273

VILLAGE OF HUDSON, Appellee, v. ALBRECHT, INC. et al., Appellants.

No. 83-142.

Supreme Court of Ohio.

Jan. 25, 1984.

Syllabus by the Court

1. There is a legitimate governmental interest in maintaining the aesthetics of the community and, as such, aesthetic considerations may be taken into account by the legislative body in enacting zoning legislation.

2. The monetary interests of protecting real estate from impairment and destruction of value are includable under the general welfare aspect of the municipal police power and may therefore justify its reasonable exercise.

Appellant Albrecht, Inc. ("Albrecht"), is the lessee with option to purchase of a shopping center known as Hudson Plaza. The center is located within the village of Hudson, appellee herein.

In March 1978, Albrecht submitted building plans to the village relating to the proposed expansion of Acme Store Number 4, a property located within the shopping center. The plans detailed work to be performed on the south, west and east sides of the building but did not indicate any alterations to the north side, which is that side which fronts the public street. Appellant Krumroy Construction Company was hired by Albrecht to complete the work.

The plans were reviewed and approved by James R. Cox, Superintendent of Service and Superintendent of Building Inspection for the village. They were then approved by the village's Architectural and Historic Board of Review ("board"), and a certificate of occupancy and a building permit were issued. No additional or modified plans concerning the store were submitted to the village although, at appellants' request, Cox reapproved the original plans in May 1980, prior to the commencement of construction.

Thereafter, on the morning of March 4, 1981, Cox observed alterations being done to the north side of Acme Store Number 4. Workmen were removing a long row of large plate glass windows from the building and replacing them with solid stone aggregate panels. Due to the fact that this alteration had not been included in the approved plans, Cox issued a verbal stop work order and later that day issued a written stop work order. Both orders were ignored by appellants and the replacement panels were completely in place on the following day.

On May 15, 1981, the village filed an amended complaint in the court of common pleas seeking, inter alia, to enjoin appellants from performing any further work on the store or from occupying or using it until a permit for the disputed work was obtained. Appellee further sought an order commanding appellants to remove the new panels from the building.

Appellants filed an amended counterclaim asserting, among other things, that portions of appellee's zoning ordinances were unconstitutional.

The trial court upheld the validity of the village ordinances and ordered appellants to submit their plans for the disputed alterations in accordance with the ordinances. The counterclaim was dismissed and final judgment was entered for the village. Upon appeal, the court of appeals affirmed.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Charles E. Merchant and K.J. Montgomery, Cleveland, for appellee.

Brouse & McDowell, Joseph M. Holden and John W. Solomon, Akron, for appellants.

JAMES P. CELEBREZZE, Justice.

The planning and zoning code for the village of Hudson is contained in Part Twelve of the village's Codified Ordinances. The specific portion of Part Twelve which concerns the instant appeal is Chapter 1204.

Section 1204.03 of that chapter creates an Architectural and Historic Board of Review. The function of that body is set forth in Section 1204.01:

"(a) Generally. The Architectural and Historic Board of Review hereinafter created shall serve to protect and preserve the value, appearance and use of property on which buildings are constructed or altered, to maintain a high character of community development, to protect the public health, safety, convenience and welfare and to protect real estate within the Municipality from impairment or destruction of value. Such purposes shall be accomplished by the Board by regulating, according to accepted and recognized architectural principles, the design, use of materials, finished grade lines, dimensions, orientation and location of all main and accessory buildings to be created, moved, altered, remodeled or repaired, subject to the provisions of Zoning and Building Codes and other applicable ordinances of the Municipality. In reviewing, regulating and approving building plans, the Board shall consider and take cognizance of the development of adjacent, contiguous and neighboring buildings and properties for the purpose of achieving safe, harmonious and integrated development of related properties." (Emphasis added.)

In advancement of this section, the board has authority under Section 1204.06 to review all applications for building permits following their approval by the building inspector. Section 1204.08 provides that no building permit shall be issued unless the applicant submits drawings and specifications and establishes the following:

" * * * [a](2) The exterior architectural character and functional plan of the proposed structure, when erected, will not be at such variance with existing structures, or structures currently being built, in the immediate neighborhood or zoning district as to cause substantial depreciation in the property values of such existing structures or structures currently being built;

"(3) The site utilization and orientation of the proposed structure is reasonably integrated with existing roads, drives, vehicular traffic patterns and pedestrian walkways abutting the property upon which the proposed structure is to be built; and

"(4) The proposed structure does not violate the 'look-alike' provisions of subsection (b) hereof.

"(b) No building permit shall be issued in a Residence District for an application to erect, construct, alter or remodel any building or structure which shall be like or substantially like any neighboring structure, hereinbefore defined, then in existence or for which a building permit has been issued. The Board shall approve such application unless the applicant fails to establish that no more than two of the following exist with respect to any such neighboring structure:

"(1) The roof style of the proposed structure is similar to the structure it resembles;

"(2) The roof pitch of the proposed structure is less than three vertical units in twelve from the structure it resembles;

"(3) More than half of the exterior surface materials of the proposed structure are the same as the structure it resembles;

"(4) The relative location of an attached garage, porch, portico, breezeway, gable or other major design feature attached to the proposed structure is similar to the structure it resembles; or

"(5) The relative location of entry doors, windows, shutters or chimneys in the proposed construction is similar to the structure it resembles."

In this appeal, appellants assert that the Hudson regulations are unconstitutional as they are concerned solely with aesthetics.

We begin our discussion of this issue by noting that a strong presumption exists in favor of the validity of the ordinance. Downing v. Cook (1982), 69 Ohio St.2d 149, 151, 431 N.E.2d 995 ; Brown v. Cleveland (1981), 66 Ohio St.2d 93, 95, 420 N.E.2d 103 . It is firmly established that the party challenging a legislative enactment bears the burden of demonstrating its unconstitutionality. Mayfield-Dorsch, Inc. v. South Euclid (1981), 68 Ohio St.2d 156, 157, 429 N.E.2d 159 ; Hilton v. Toledo (1980), 62 Ohio St.2d 394, 396, 405 N.E.2d 1047 . As long as the validity of the legislation is "fairly debatable," the legislative judgment in enacting it is permitted to control. Brown v. Cleveland, supra, 66 Ohio St.2d at 98, 420 N.E.2d 103; Willott v. Beachwood (1964), 175 Ohio St. 557, 560, 197 N.E.2d 201 ; Curtiss v. Cleveland (1959), 170 Ohio St. 127, 163 N.E.2d 682 , paragraph three of the syllabus. See, generally, Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. The basis for this presumption is that the local legislative body is familiar with local conditions and is therefore better able than the courts to determine the character and degree of regulation required. Wilson v. Cincinnati (1976), 46 Ohio St.2d 138, 142, 346 N.E.2d 666 ; Allion v. Toledo (1919), 99 Ohio St. 416, 124 N.E. 237, paragraph one of the syllabus.

We further note that the right of the individual to use and enjoy his private property is not unbridled but is subject to the legitimate exercise of the local police power. See Section 3, Article XVIII of the Ohio Constitution. This power includes the authority to impose zoning regulations, although such regulations must conform to certain standards. Since the object of the police power is the public health, safety and general welfare, its exercise in order to be valid must bear a substantial relationship to that object and must not be unreasonable or arbitrary. Cincinnati v. Correll (1943), 141 Ohio St. 535, 49 N.E.2d 412 , paragraph one of the syllabus.

Some Ohio cases pertaining to the issue of aesthetics have stated that such consideration alone does not justify the exercise of the police power. State ex rel. Killeen Realty Co., v. East Cleveland (1959), 169 Ohio St. 375, 383, 160 N.E.2d 1 ; Wondrak v. Kelley (1935), 129 Ohio St. 268, 195 N.E. 65 , paragraph three of the syllabus; Youngstown v. Kahn Bros. Building Co. (1925), 112 Ohio St. 654, 661, 148 N.E. 842; Pritz v. Messer (1925), 112 Ohio St. 628, 638, 149 N.E. 30. These decisions rest upon the idea that aesthetic tastes vary greatly among different people and are therefore too impractical and inconsistent a basis to be used in restricting property. State, ex rel. Killeen Realty Co., v. East Cleveland, supra, 169...