Summary
In Yorkavitz v. Bd. of Trustees of Columbia Twp. (1957), 166 Ohio St. 349, 2 O.O. 2d 255, 142 N.E.2d 655, this court clearly stated that whatever authority townships possess to enact local police power regulations is limited to that which is specifically conferred by statute.
Summary of this case from Bd. of Bainbridge Twp. Trustees v. Funtime, Inc.Opinion
No. 34936
Decided May 8, 1957.
Zoning — Power of township trustees a delegated police power — Zoning regulation invalid, when — Prohibiting airports throughout unincorporated territory of township — Declaring airports nuisances per se.
1. The zoning power of township trustees, described in Chapter 519, Revised Code, is solely a police power delegated to township trustees by the General Assembly.
2. Where the General Assembly delegates to township trustees police power to adopt zoning regulations for the unincorporated territory in their respective townships, and where the General Assembly, by the enactment of general laws prior to such delegation, declares a policy of promoting aviation and the establishment of airports, it is outside such police power delegated to the township trustees to enact zoning regulations prohibiting airports throughout the unincorporated territory of their respective townships by declaring that airports are nuisances per se, and such regulations are invalid.
APPEAL from the Court of Appeals for Lorain County.
Plaintiffs instituted this action in the Court of Common Pleas of Lorain County, praying for a declaratory judgment as to their rights, and that the township trustees of Columbia Township be enjoined from enforcing a certain provision of a zoning resolution adopted by the trustees pursuant to the authorization thereof found in Chapter 519, Revised Code.
The provision of the zoning resolution in question (subdivision 14, section five) is as follows:
"The following uses shall be deemed to constitute a nuisance and shall not be permitted in any 'R,' 'B,' or 'I' districts [the unincorporated territory of the entire township is divided into "R" (residential), "B" (business), or "I" (industrial) districts for the purposes of the zoning resolution]:
"* * *
"14. Aviation fields, landing fields, either for private or public use, runways, airplane hangars, proving or instruction grounds."
Plaintiffs allege that this provision of the resolution is invalid, and that they have the right to establish a commercial aviation field within the township.
Defendants answer that such aviation field will constitute a nuisance and will be a violation of the zoning resolution.
The Court of Common Pleas found this provision to be unconstitutional and enjoined the township trustees from enforcing it.
On appeal on questions of law and fact, the Court of Appeals for Lorain County found the provision in question to be constitutional and prohibited the plaintiffs from "in any wise conducting an airport of any kind within the limits of Columbia Township."
The cause is before this court on an appeal as of right and pursuant to the allowance of a motion to certify the record.
Mrs. Geraldine Larkin, for appellants.
Mr. Frank E. Stevens, for appellees.
The sole issue presented by this appeal is whether a provision of a zoning resolution adopted by a Board of Township Trustees is valid, where it prohibits as a nuisance the establishment, throughout the unincorporated territory of the township, of "aviation fields, landing fields, either for private or public use, runways, airplane hangars, proving or instruction grounds." This issue is determinable by a consideration of whether such a zoning regulation is within the scope of the police power delegated to township trustees by Chapter 519, Revised Code, entitled "Township Zoning."
Subdivision 14, section five of the zoning resolution, adopted by the Board of Township Trustees of Columbia Township, Lorain County, reads as follows:
"The following uses shall be deemed to constitute a nuisance and shall not be permitted in any 'R,' 'B,' or 'I' districts:
"* * *
"14. Aviation fields, landing fields, either for private or public use, runways, airplane hangars, proving or instruction grounds."
It is apparent from the language used in this subdivision of the zoning resolution that the township trustees of Columbia Township have declared, or "deemed," airports to be public nuisances per se and for that reason alone have banned them from the unincorporated territory of Columbia Township. Whether such action was within the scope of their delegated power concerns solely a matter of law, i.e., whether the provision of the zoning resolution here under consideration is valid on its face, and an almost summary investigation of the statutes affords a solution to the problem.
At the outset it must be noted that the townships of Ohio have no inherent or constitutionally granted police power, the power upon which zoning legislation is based. Whatever police or zoning power townships of Ohio have is that delegated by the General Assembly, and it follows that such power is limited to that which is expressly delegated to them by statute.
The statutes in question (now Sections 519.01 through 519.99, and especially Section 519.02, Revised Code), enacted by the General Assembly in 1947, expressly give township trustees the power to regulate by resolution certain incidents of activity in the unincorporated territory of their respective townships, including the "uses of land for trade, industry, residence, recreation, or other purposes."
There are many related questions into which the court might delve at this point, but which are irrelevant in the face of the inescapable conclusion that the General Assembly can not be held to have delegated to township officials the authority to adopt zoning resolutions which are in contravention of general laws previously enacted by the General Assembly.
The General Assembly, in 1945, defined "aviation" as "transportation by aircraft; operation of aircraft; the establishment, operation, maintenance, repair, and improvement of airports, landing fields, and other air navigation facilities; and all other activities connected therewith or incidental thereto." See subdivision (A) of Section 4561.01, Revised Code, and its history.
At that time, the General Assembly also described, as follows, the purpose of the "Ohio Aviation Board":
"The Ohio Aviation Board shall encourage the development of aviation and the promotion of aviation education within this state as, in its judgment, may best serve the public interest." (Emphasis added.) See Section 4561.06, Revised Code, and its history.
Section 4561.13, Revised Code, provides:
"Every state, county, and municipal officer charged with the enforcement of state or municipal laws shall aid the Ohio Aviation Board in the enforcement of Sections 4561.01 to 4561.16, inclusive, of the Revised Code."
It is apparent from a reading of the above that the General Assembly definitely does not consider airports as being nuisances per se, but, to the contrary, that it does consider airports, which are necessary incidents to "aviation" as defined, as objects worthy of promotion and encouragement under the auspices of an "Ohio Aviation Board" expressly created for those purposes.
The view that airports are not nuisances per se is also supported by the great weight of authority. See Barrier v. Troutman, 231 N.C. 47, 55 S.E.2d 923; Batcheller v. Commonwealth, ex rel., 176 Va. 109, 10 S.E.2d 529; Brandes v. Mitterling, 67 Ariz. 349, 196 P.2d 464; Warren Township School Dist. v. City of Detroit, 308 Mich. 460, 14 N.W.2d 134; Kuntz v. Werner Flying Service, Inc., 257 Wis. 405, 43 N.W.2d 476; and Crew v. Gallagher, 358 Pa. 541, 58 A.2d 179.
See, also, 2 Yokley, Zoning Law and Practice, 50, Section 203; 2 Corpus Juris Secundum, 909, Section 29; and 2 Metzenbaum, Law of Zoning, 1554.
Since, then, the General Assembly has indicated in its general laws that airports are beneficial to the public of Ohio and are to be promoted and encouraged, it follows that in delegating to township trustees the power to zone it did not include in that delegation the power to circumvent the general law by completely prohibiting airports, throughout the unincorporated territory of a township, as being nuisances per se. It is our conclusion that subdivision 14 of section five of the zoning resolution adopted by the Board of Township Trustees of Columbia Township is an unlawful extension of the power delegated to township trustees by Chapter 519, Revised Code, "Township Zoning," and that it is, therefore, invalid and unenforceable.
It is apparent that the relief prayed for by the plaintiffs should have been granted by the Court of Appeals upon the trial de novo. The judgment of that court is hereby reversed and the cause remanded to the Common Pleas Court for execution in accordance herewith.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, BELL, TAFT and HERBERT, JJ., concur.