Youngstown v. Kahn Bldg. Co.

• Decision Date: 19 May 1925
• Docket Number: 18727
• Citation: 148 N.E. 842,112 Ohio St. 654
• Parties: City Of Youngstown Et Al. v. Kahn Bros. Building Co.
• Court: Ohio Supreme Court

148 N.E. 842

112 Ohio St. 654

City Of Youngstown Et Al. v. Kahn Bros. Building Co.

No. 18727

Supreme Court of Ohio

May 19, 1925

Constitutional law - Municipal corporations - Block ordinances - Apartment houses prohibited in fraction only of city - Taking property without due process and without compensation.

A provision in an ordinance establishing a fraction only of the territory of a municipality into a district, and providing that no building which is intended to be used as a dwelling shall be erected within the district except as a single or two family dwelling, in a case where the record shows that the district is a most healthful part of the municipality in which to erect an apartment house and that the public health morals and safety of the district and of the entire municipality will not be impaired by the erection of such an apartment house, constitutes a taking of property without due process of law and a taking of private property for public use without compensation, and is invalid.

Upon January 29, 1923, the city council of Youngstown, Ohio passed an ordinance establishing "The Wick and Crandall parks residence district "in Youngstown. This district embodies about 1.22 square miles of territory, being but a small fraction of the area of the entire city.

The ordinance provided, among other things, that no building should be erected within the dis- trict to a height in excess of 2 1/2 stories, or in excess of 35 feet with the exception of churches, schools, and library buildings. It regulated side lines, back-set lines, and the area. and bulk of buildings, and also provided that no building intended to be used as a residence should be erected within the district other than a single or two-family dwelling.

The defendant in error is seeking to build within the limits of this district the apartment house in question, which is designed to contain 30 apartments.

The ordinance created an exception in favor of buildings wherefor a permit had been issued prior to the passage of the ordinance, and "the construction of which shall have been diligently prosecuted within thirty (30) days from the date of such permit."

A permit was issued to the defendant in error upon January 19 1923, by the building inspector of the city of Youngstown, for the erection of a three-story apartment house. Upon January 26, 1923, contracts were let for the work and surveys were made. The ordinance was passed upon January 29, 1923. Between January 26 and February 19 sketches were made of the land for use in plans. Upon February 19, 1923, which was a Monday, the land was staked out for the building, and some trees and brush were cut and stones were moved. Thereafter the defendant in error proceeded to work upon the land and to make excavations upon the lot the 30-day limitation provided for by the ordinance expired upon February 18, which was a Sunday.

Subsequent to the making of excavations upon the lot, a warrant was issued for the arrest of M.H. Parrish, who was in charge of the construction, charging Parrish with proceeding to construct a building without having first secured a permit from the building inspector. A criminal trial was held upon this charge in the municipal court of the city of Youngstown, and the defendant was found guilty. Later the building company, defendant in error here, applied to the court of common pleas of Mahoning county, Ohio, for a temporary order restraining the city of Youngstown, plaintiff in error here, from interfering in any way with the construction of the said apartment house, upon the ground that the construction was carried on under a valid permit and was authorized in the ordinance, and upon the further ground that the ordinance itself was constitutional. The temporary order was granted, but, upon hearing, the injunction was refused and the petition dismissed. Upon appeal to the Court of Appeals of Mahoning county a perpetual injunction was issued by the Court of Appeals enjoining the city of Youngstown from interfering in any way with the plaintiff or its contractors in proceeding with the excavation, foundation, and construction of the building.

The Court of Appeals found on the issues joined for the building company except as to the validity of the building permit referred to in the pleadings, which was not determined, and granted the relief prayed for.

The case comes into this court upon allowance of a motion to certify the record, and also upon peti- tion in error filed as a matter of right; a constitutional question being involved.

Mr. C. W. Osborne, city solicitor; Mr. U. C. DeFord, and Mr. J. H. Leighninger, for plaintiffs in error.

Mr. W. F. Guthrie, and Messrs. Moore, Barnum & Hammond, for defendant in error.

ALLEN J.

The plaintiff in error contends that the building contemplated by the defendants in error violates the so-called zoning ordinance of the city of Youngstown, and that the Court of Appeals therefore erred in making the injunction perpetual.

The defendant in error contends that the ordinance is unconstitutional, in that it contravenes provisions of both the federal and state Constitutions, namely, the Fourteenth Amendment of the Constitution of the United States, which provides, "Nor shall any state deprive any person of life, liberty or property, without due process of law," and Article I, Section 19, of the Constitution of Ohio, which provides, "Private property shall ever be held inviolate, but subservient to the public welfare. * * * where private property shall be taken for public use, a compensation therefor shall first be made in money * * *."

It is conceded that the state under the police power has the right to limit the use of private property for the purpose of preserving the public health, safety and morals, and that the state delegate its police power to a municipality; that where, by virtue of such a delegation, or by virtue of specific constitutional authority, the municipality exercises such power, it is to be presumed that such power has been legitimately exercised; and that where such power has been legitimately exercised there is no taking of private property without compensation merely because some legitimate use of the property has been restricted.

It is conceded, also, that the police power is not unlimited and must not be arbitrarily exercised, that the police power cannot be invoked for purely aesthetic considerations, nor to promote merely private comfort or private welfare, and that while a statute or ordinance is presumed to be valid a mere declaration therein that it is enacted to protect public safety, health or morals will not render the statute valid as being within the police power unless there is some reasonable relation between such purpose and the regulation prescribed.

There is no difficulty in stating these principles. The difficulty arises in fitting these conceded principles to the facts before us.

The building contemplated, contravenes that provision of the ordinance which requires that none but single or two-family houses be built within this district, as it will contain 30 apartments. The main legal question arising in this case is whether a specific use restriction, which prohibits apartment houses from being built within a purely residence section, is constitutional.

Sections 4366-1 to 4366-5, General Code (106 O. L. 455), and Sections 4366-7 to 4366-12 (108 0. L. pt. 2, 1175), supplemental thereto, embody the act "providing for a city planning commission in municipalities," and provide that such city planning commission in any municipality may make plans for zoning the municipality into districts and for regulating the structure and location of buildings and the use of buildings and land within such districts.

Section 4366-8 provides that after the city planning commission has certified to the council a plan for the zoning of a municipality, then the council in the interest of the promotion of the public health, safety, convenience, comfort prosperity, or the general welfare, may regulate the location of buildings and other structures, and of premises to be used for trade, industry, residence, or other specific uses, and for said purpose may divide the municipality into districts of such number, shape, find area as may be deemed best suited to carry out the purpose of this section. For each of such districts, regulations may be...