Village of University Heights v. Cleveland Jewish O. Home
| Decision Date | 29 July 1927 |
| Docket Number | No. 4724.,4724. |
| Citation | 20 F.2d 743 |
| Parties | VILLAGE OF UNIVERSITY HEIGHTS et al. v. CLEVELAND JEWISH ORPHANS' HOME. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Snyder, Henry, Thomsen, Ford & Seagrave and Robert E. Roehm, Village Sol., all of Cleveland, Ohio (Alonzo M. Snyder, of Cleveland, Ohio, on the brief), for appellants.
Newton D. Baker, Baker, Hostetler & Sidlo, and Fackler & Morgan, all of Cleveland, Ohio, for appellee.
Before DENISON and MOORMAN, Circuit Judges, and DAWSON, District Judge.
This case involves the constitutionality of a general zoning ordinance of the village of University Heights, a suburb of the city of Cleveland. The question is here on appeal from a judgment of the District Court enjoining the village from enforcing the ordinance, so far as it operates to prevent the Cleveland Jewish Orphans' Home from using some land which it owns in the village for an orphanage. There are 30 acres in the tract, 5 of which are within the adjoining village of Shaker Heights. The proposed orphanage is to be built upon the cottage plan, with a central heating and power plant, each cottage to accommodate about 25 persons.
The preamble of the ordinance recites, among other things, that the village of University Heights is a residential suburb, having no steam railroads or industrial establishments within its limits; that the streets, sewers, and water improvements therein were designed and constructed to take care of residential uses and would prove inadequate for others; that none of the land in the village need be devoted to industrial or commercial purposes, as there is adequate land for such uses easily accessible from the village; and that it is the desire of the council of the village to preserve its residential character, which is in the interest of the health, safety, convenience, comfort, and prosperity of the citizens of the village. Six classes of uses within the village are provided for, as indicated on a zone map which was made a part of the ordinance. Owners of the land, desiring to build thereon, are required to apply for and receive permits to erect the buildings and to comply with the requirement of the ordinance in the erection and use of such buildings.
The ordinance creates a planning and zoning commission, which is given discretion to relax restrictions in certain instances. The land which appellee proposes to use is within a class U-1 district, in which an orphanage may not be constructed unless it is placed, as provided in section 4 of the ordinance: (1) On a lot already devoted to such use; (2) on a lot fronting any portion of a street between two intersecting streets, in which portion there exists such a building; (3) on a lot immediately adjacent to or across the street from a public park or a public playground; (4) on a lot immediately adjoining or immediately opposite on the other side of the street from a class U-2 or U-3 district; or (5) on a lot determined by the village planning and zoning commission, after public notice and hearing, to be so located that such building, in the judgment of the commission, will substantially serve the public convenience and welfare, and will not substantially and permanently injure the appropriate use of neighboring property.
The land which appellee owns does not come within any of the first four descriptions. Application to use it for an orphanage, with a plan of buildings, was filed with the planning and zoning commission under subsection 5 of section 4 of the ordinance. The application was denied, after which this suit was filed. It was not found by the commission that the proposed buildings violated any regulation in respect to height, area, construction, or set-back lines, but it was found that the public convenience and welfare would not be served by the intended use.
In Village of Euclid v. Ambler Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. ___, an ordinance similar to the one involved here was upheld in its general exclusion from certain districts of "apartment houses, business houses, retail stores and shops, and other like establishments"; but it was pointed out that, when the provisions of such an...
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Carter v. Bluefield
...37 F. 2d 336; Nectow v. City of Cambridge, 211 U. S. 183, 48 S. Ct. 447, 72 L. ed. 842; Village of University Heights v. Cleveland Jewish Orphans' Home (CCA. 6th) 20 F. 2d 743, 54 A. L. R. 1008; Women's Kansas City St. Andrew Society v. Kansas City, Missouri (CCA. 8th) 58 F. 2d 593; Smith v......
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