Summary
holding that “evidence, largely consisting of opinions, is conclusory in nature or irrelevant, and does not rebut the presumption that an ordinance is [constitutional]”
Summary of this case from State ex rel. Phillips Supply Co. v. City of CincinnatiOpinion
No. 81-535
Decided February 10, 1982.
Municipal corporations — Ordinance — Housing of dogs in residential area — Constitutionality.
APPEAL from the Court of Appeals for Cuyahoga County.
Plaintiff-appellant, Mariann H. Downing, brought suit in the Court of Common Pleas seeking an order declaring Section 905.04(H)(1) of the Codified Ordinances of the city of Berea unconstitutional and restraining the Berea Chief of Police, defendant-appellee John Cook, from enforcing it.
Section 905.04(H) of the Codified Ordinances of the city of Berea provides, in part:
"No person shall * * *
"(1) Own, keep or harbor more than three (3) dogs, excepting puppies under three (3) months old, in or on the premises of any dwelling unit within the City, unless the zoning lot upon which dogs are kept have a minimum area of 4,000 square feet for each dog kept on such zoning lot regardless of the number of persons keeping or harboring dogs on such lot."
Violation of Section 905.04(H)(1) is a minor misdemeanor and constitutes a nuisance subject to abatement in the manner provided by the Revised Code or Chapter 949 of the Berea Codified Ordinances. Section 905.04(I).
By stipulation the case was submitted to the trial court on the basis of the pleadings, appellant's motion for summary judgment, the trial briefs and certain evidentiary material proffered by the appellant. Among that material is an affidavit executed by the appellant which asserts that she is co-owner of an 80 foot by 101 foot parcel of property located in the city of Berea upon which she resides; that she owns two Irish Setters and a mixed-breed dog which she keeps on the premises; that she displays one of her Irish Setters at dog show competitions; and that she desires to breed one of her Irish Setters and keep a puppy for show purposes.
Appellant also submitted the affidavit of Donald J. Kwiatkowski, who is president of an organization known as Purebred Dog Breeders and Fanciers Association Inc. of Northern Ohio, and is a member of the American Kennel Club, Cuyahoga County Animal Control Advisory Board, and the Ohio Dog Owners Association. His affidavit stated that both the Ohio Dog Owners Association and the Purebred Dog Breeders and Fanciers Association objected to Section 905.04(H)(1). In the opinion of Kwiatkowski, the ordinance constitutes an impermissible interference with the rights of property owners and will not solve problems of barking dogs, free-roaming dogs, or dog bites. The plaintiff also submitted a photograph of a well-groomed Irish Setter and a copy of the deed to her property.
The Court of Common Pleas granted judgment for the defendant, holding that "§ 905.04(H)(1) is a valid ordinance and enforceable by the police authority of the City of Berea."
The Court of Appeals affirmed.
The cause is before this court pursuant to allowance of a motion to certify the record.
Mr. Eugene S. Bayer and Mr. Anthony O. Calabrese, Jr., for appellant.
Mr. James N. Walters, III, director of law, and Ms. K. Bigenho, for appellee.
The sole issue in this case is whether the enactment of Section 905.04(H)(1) was a valid exercise of the police power of the city of Berea.
Section 3 of Article XVIII of the Ohio Constitution confers upon municipalities, such as Berea, the "authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."
A legislative body may enact legislation declaring that previously lawful activity will thereafter be deemed a nuisance. Such legislation will be upheld against constitutional challenge if it comes within the police power, i.e., if it has a real and substantial relation to the public health, safety, morals or general welfare of the public and is neither unreasonable nor arbitrary. Wilson v. Cincinnati (1976), 46 Ohio St.2d 138; West Jefferson v. Robinson (1965), 1 Ohio St.2d 113; Porter v. Oberlin (1965), 1 Ohio St.2d 143, Ghaster Properties, Inc., v. Preston (1964), 176 Ohio St. 425; Benjamin v. Columbus (1957), 167 Ohio St. 103.
Section 905.04(H)(1) is the result of a legislative determination that the housing of more than three fully-grown dogs in residential lots of comparatively small size is detrimental to the general welfare. The regulation of dogs does not exceed the legitimate range of police power. It cannot be disputed that too many dogs in too small a space may produce noise, odor and other conditions adverse to the best interests of the community as a whole.
In determining whether the Berea ordinance is unreasonable or arbitrary we are mindful that the ordinance benefits from a presumption of validity. When legislation is enacted pursuant to the police power, a party opposing such action must demonstrate a clear and palpable abuse of that power in order for a reviewing court to substitute its own judgment for legislative discretion. State v. Renalist, Inc. (1978), 56 Ohio St.2d 276, 278. Local authorities are presumed to be familiar with local conditions and to know the needs of the community. Allion v. Toledo (1919), 99 Ohio St. 416, paragraph one of the syllabus; Wilson v. Cincinnati, supra, at page 142.
Here the appellant has not shown the enactment of Section 905.04(H)(1) to be a clear and palpable abuse of power. Her evidence, largely consisting of opinions, is conclusory in nature or irrelevant, and does not rebut the presumption that the ordinance is valid.
While Section 905.04(H)(1) may limit appellant in the enjoyment and use of her property, appellant has failed to demonstrate that Section 905.04(H)(1) is not reasonably adapted to the legitimate purpose of avoiding the problems associated with a concentration of dogs in a small area in residential environs.
Section 905.04(H)(1) is not invalidated by the fact that appellant could conceivably keep four dogs on her premises without creating undue noise, odor, filth, danger or other conditions traditionally characterized as nuisance conditions. Nor is appellant precluded by the ordinance from engaging in her hobby of breeding and showing dogs, but only from keeping more than three adult dogs in her home.
Because appellant failed to prove that Section 905.04(H)(1) is unreasonable, arbitrary or unrelated to the public health, safety, morals or general welfare of the public, the judgment of the Court of Appeals upholding the ordinance is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.