Opinion
No. A-88994.
1946-05-24
MURDOCK v. CITY OF NORWOOD.
Sanford A. Headley and Charles P. Taft, II, both of Cincinnati, for plaintiff. James E. Kimpel, of Cincinnati, for defendant.
Suit for injunction by Clarence E. Murdock against the City of Norwood.
Petition dismissed.Sanford A. Headley and Charles P. Taft, II, both of Cincinnati, for plaintiff. James E. Kimpel, of Cincinnati, for defendant.
MECK, Judge.
Reduced to its final analysis, plaintiff's amended petition seeks, by injunction, a declaration that his real estate in Norwood, zoned under Section 7 of the zoning ordinances of said city as being in ‘Business A’ zone, should be classed as under Section 9 of said ordinances as being ‘Industrial Property. ‘It is argued that he is unconstitutionally deprived of property rights for the reason that the city's classification is unreasonable, in that, it is not essential for public health, safety, morals and general welfare.
Not only is the contrary urged on behalf of defendant, but it is strenuously insisted that plaintiff's application to the Zoning Board was defective in not stating any proposed industrial use of such property.
Before considering the evidence it is essential to refer to the adjudications which must guide this Court in the exercise of power to override the action of the city council of Norwood which is the ultimate resort in the enactment and change of zones under its admitted power to ‘frame and adopt a plan or plans for dividing a 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.’ G.C., Sec. 4366-7.
Plaintiff's application to the Zoning Board requested, ‘a permit for a substitution of the zone of this property, granting the right to use it for any purpose permitted in ‘Industrial A’ district as covered by Section 9 of the ordinances.' See Exhibit 11. Upon the objection that such application was defective in not stating the particular industrial use intended, the case of Central Trust Co. v. City of Cincinnati, 62 Ohio App. 139, 23 N.E.2d 450, is relied upon.
In the opinion of this Court the language of Judge Ross at page 146 of 62 Ohio App., at page 453 of 23 N.E.2d, does not warrant the conclusion urged but it seems to this Court that Judge Ross was regretting that there was no ‘rule requiring a positive declaration of the proposed use, binding upon the applicant, which the reviewing authority may consider in connection with the general location of the property in its setting.’
It seems to this Court that if an applicant is entitled to have his real estate classified as in a different zone than that to which it is allotted, the public interests are preserved by such applicant merely asking for such classification without stating the use he intends to make of such real estate. And this ought to be true whether he intends his land for sale as available real estate in such desired zone or intends to use it for some designated purpose permitted in a zone of the desired classification.
Coming to the principles of law applicable to the power of this Court to set aside the zoning of the real estate in question, the following is well established: ‘Courts have, therefore, consistently refused to interfere with the sound discretion of those upon whom rest the responsibility of fixing boundaries of zones unless the exercise of this function indicates a wholly capricious, arbitrary, and unreasonable action, entirely foreign to any consideration involving the safety, health, morals, or welfare of the public.’ Ross, J., Central Trust Co. v. City of Cincinnati, 62 Ohio App. at page 143, 23 N.E.2d at page 452.
Cases arising under the Constitution of the United States with reference to the protection of property rights applying the foregoing rule are: Village of Euclid v. Amblic Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016;Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842.
Cases arising under the Constitution of Ohio with reference to the protection of property rights applying such rule are: Mehl v. Stegner, 38 Ohio App. 416, 175 N.E. 712;Central Trust Co. v. City of Cincinnati, 62 Ohio App. 139, 23 N.E.2d 450;State ex rel. Clifton-Highland Co. v. City of Lakewood, 41 Ohio App. 9, 179 N.E. 198, affirmed State ex rel. Clifton-Highland Co. v. City of Lakewood, 124 Ohio St. 399, 178 N.E. 837;Pritz v. Messer, 112 Ohio St. 628, 149 N.E. 30;State ex rel. Synod of Ohio of United Lutheran Church in America v. Joseph, 139 Ohio St. 229, 39 N.E.2d 515, 138 A.L.R. 1274.
Another guide in determining the matter involved herein is this: Overriding the deliberate action of the council's power to establish zones requires the exercise of this Court's equitable jurisdiction in extraordinary matters and as in like matters, the evidence to justify such should be clear and satisfactory. State ex rel. Morris v. East Cleveland, 22 N.P.,N.S., 549, 556.
While the zoning ordinance of Cincinnati establishes four residence, three business and three industrial zones, Norwood establishes only three residential, two business and one industrial zone. Neither of such ordinances defines the expressions residential, business or industrial, and we are, therefore, required to define those expressions.
As to residence, clearly that expression means dwellings or structures wherein people live.
As to business, this expression means largely the barter, sale, or exchange of things of value. Wills v. National Mineral Co., 176 Okl. 193, at page 197, 55 P.2d 449.
Industrial enterprises include all kinds of manufacturing. Louisville & N. Railroad Co. v. Fulgham, 91 Ala. 555, at page 558, 8 So. 803. Manufacturing has been defined as ‘the production of articles for use from raw or prepared materials by giving these materials new forms, qualities, properties or combinations, whether by hand labor or machine.’ American Sumatra Tobacco Corporation v. Tone, 127 Conn. 132, at page 138, 15 A.2d 80, 82; 26 Words and Phrases, Perm.Ed., p. 416; Lawrence v. Allan et al., 7 How. 785, at page 794, 12 L.Ed. 914;Cains Coffee Co. v. City of Muskogee, 171 Okl. 635, 44 P.2d 50;Tide-Water Oil Co. v. United States, 171 U.S. 210, at page 216, 18 S.Ct. 837, 43 L.Ed. 139;Red Hook Cold Storage Co. v. State Department of Labor, 268 App.Div. 11, at page 13, 48 N.Y.S.2d 395.
Section 15 of the Zoning Ordinance of Norwood provides: ‘In their interpretation and application, the provisions of this ordinance shall be held to be the minimum requirements, adopted for the promotion of the public health, safety, morals, comfort, prosperity and general welfare.’
At the request of parties the Court viewed premises in question. Such view confirms the following conclusions which the Court has reached from the evidence.
Plaintiff acquired the real estate in question in 1931. It was a ravine or swamp extending northwardly to part of the City of Cincinnati. To make it usable it has been somewhat filled and has been used by plaintiff in his business as contractor for storage of things necessary for such business. At the north end is an open sewer, emptying into a small pool at the south end of part of Cincinnati. On the west side is the Norfolk and Western Railway track, high above plaintiff's land, and having a high spur track extending into plaintiff's land. Access to this real estate is through West Street which is only 30 feet wide, and having a down-grade toward plaintiff's property.
At a height of 30 to 35 feet above plaintiff's real estate is McNeil Street, running in a northerly direction and having, on both sides of it, houses in good state of repair, occupied mostly by people of modest means and many of which occupants have children; there being about one hundred such children residing on said street.
On behalf of plaintiff, realtors testified that the property is not fit for business but only for industrial uses. On behalf of defendant, testimony was to the effect that to zone this property for industrial purposes would depreciate the value of property in the quite extensive residential zone lying to the east of the property.
It is undisputed that plaintiff took the necessary steps to have the property in question changed from ‘Business A’ to ‘Industrial’ zone and that the same was recommended by the Appeal Board but that the City Council of Norwood after a public hearing declined to follow such recommendation.
Norwood covers about three and a half square miles and has six sets of zones, and its industrial zones are mostly confined to few areas.
Finally, one should not overlook the fact that the ‘Business A’ zone of plaintiff's real estate was established by ordinance in 1929. Plaintiff with full knowledge thereof purchased his land in 1931. Since then he has used it for such business purposes as a contractor. Surely he is not harmed if there is a denial of his effort to change such zone into ‘Industrial A’.
We have not overlooked the decision of the Supreme Court of Illinois in Forbes v. Hubbard, 348 Ill. 166, 180 N.E. 767. There the court at pages 175 and 176 of 348 Ill., at pages 770 and 771 of 180 N.E., ruled that there was no estoppel against a purchaser's right to attack the validity of a zoning ordinance. It recognized the rule that the classification which existed at the time of purchase, presumably, would not be changed as long as the basis of public welfare remained the same, but concluded that this rule did not prevent the purchaser from attempting to remove a restriction believed to be invalid.
After full consideration of all the foregoing principles of law and the evidence in this cause, this Court is firmly of opinion that plaintiff has not been deprived of any property rights by a denial of his effort to change the existing zone of his real estate. Upon the contrary this Court is of opinion that not only has plaintiff failed to present essential evidence in support of his petition but that the zoning of his real estate otherwise than as ‘Industrial’ property by the City Council of Norwood was and is essential for the public health, safety, morals and general welfare of its citizens.
Let the injunction be denied and the petition be dismissed at the cost of plaintiff.