Opinion
No. 70-602
Decided July 7, 1971.
Zoning — Municipal zoning ordinance — Effect on land annexed to municipality — "Presently annexed land," construed — Means land annexed at time of ordinance adoption.
APPEAL from the Court of Appeals for Cuyahoga County.
Plaintiff-appellee, Laderman Weiss Realty Company, on June 5, 1968, filed an application with the building inspector of the city of Beachwood for a building permit for the construction of a 15-story apartment building in the city of Beachwood. The building inspector refused the application. Upon appeal, the Board of Zoning Appeals made the following order:
"Appeal denied on the ground that the annexed land in issue was zoned Single Family Use District, and has been in this category since February 17, 1965."
Plaintiff thereupon appealed to the Court of Common Pleas. That court reversed the decision of the Board of Zoning Appeals and ordered the issuance of the building permit.
The Court of Appeals affirmed.
The land in question was annexed to the city of Beachwood by Ordinance No. 1964-126, which was passed by city council on January 18, 1965. Section 2 of that ordinance provides:
"That this ordinance shall take effect and be enforced from and after the earliest period allowed by law."
At the same council meeting on January 18, 1965, city council passed Ordinance No. 1964-143, an amendment to its zoning ordinance, adding thereto the following section:
"Section 29: Zoning Status of Annexed Land.
"That when any land shall be annexed hereinafter to the city of Beachwood, it shall be classified as a class U-1 use district (Single Family House) and so designated on the zone map. Said zoning classification shall become effective simultaneously with the adoption of said annexation ordinance and shall so remain until changed by the council."
Section 3 of Ordinance No. 1964-143 provided:
"That this ordinance shall take effect and be in force from and after the earliest period allowed by law."
Both of the above-described ordinances were approved by the Mayor on January 18, 1965.
On February 15, 1965, city council enacted a second amendment to its zoning ordinance. This second amendment, Ordinance No. 1965-27, contained the identical language as Ordinance No. 1964-143, as quoted above, and repealed Ordinance No. 1964-143. Ordinance No. 1965-27, however, was enacted as an emergency measure and became effective on February 15, 1965.
In reversing the decision of the Board of Zoning Appeals, the Court of Common Pleas stated:
"* * * The court being fully advised in the premises finds that Ordinance No. 1964-126 annexing the subject land and more land to the city of Beachwood was passed by the council of the city of Beachwood on January 18, 1965, was signed by the Mayor of the city of Beachwood on January 18, 1965, and became effective under the provisions of then Revised Code Section 709.10 on January 18, 1965; that Ordinance No. 1964-143, amending the zoning ordinance of the city of Beachwood to provide for a zoning classification of land to be annexed to the city of Beachwood, was passed by the council of the city of Beachwood on January 18, 1965 (prior to the passage of Ordinance No. 1964-126), was signed by the Mayor of the city of Beachwood on January 18, 1965, and became effective on February 17, 1965 under the provisions of the Beachwood Charter, Article III, Section 6; that the subject land was not affected by said Ordinance No. 1964-143, and that, by reason thereof, the subject parcels are not now subject to any use classification under the existing zoning ordinance of the city of Beachwood * * *."
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Sanford W. Likover, for appellee.
Mr. Albert M. Heavilin, for appellants.
The question to be determined in this appeal is whether the zoning ordinance of the city of Beachwood, providing for single-family residence uses for annexed land, applies to plaintiff's land.
It is clear that the Beachwood City Council, when it enacted the annexation ordinance (Ordinance No. 1964-126) and the zoning amendment (Ordinance No. 1964-143) at the same session on January 18, 1965, intended that the zoning regulation restricting uses in annexed territory to single-family residences should apply to the land annexed on that date. This conclusion is supported by the fact that both ordinances were to go into effect at the same time — "after the earliest period allowed by law."
Ordinance No. 1964-143, the zoning ordinance, was repealed by council prior to its effective date and was replaced by Ordinance No. 1965-27, which contained the same restrictions set forth in Ordinance No. 1964-143. Ordinance No. 1965-27, an emergency measure, became effective on the date of its passage, February 15, 1965.
It is plaintiff's position, and the trial court so held, that under R.C. 709.10 the annexation ordinance went into immediate effect upon its adoption by the legislative authority of the municipal corporation and that, therefore, the zoning ordinance does not apply to plaintiff's land.
Plaintiff argues that the zoning ordinance cannot be applied retroactively. For this proposition it cites Gibson v. Oberlin, 171 Ohio St. 1, wherein paragraph two of the syllabus reads:
"In the enactment of a zoning ordinance, a municipal council may not give retroactive effect to such ordinance so that a property owner is deprived of his right to a building permit in accordance with a zoning ordinance in effect at the time of the application for such permit. ( State, ex rel. Fairmount Center Co., v. Arnold, Dir. and Inspr., 138 Ohio St. 259, Hauser, Commr. of Bldgs., v. State, ex rel. Erdman, 113 Ohio St. 662, approved and followed.)"
It must be pointed out that it is the time of the application for the permit which is crucial in determining whether a zoning change is retroactive. As noted in the Gibson case, at page 4, "* * * the law in effect at the time appellant filed his application for the permit is the law which must control his rights * * *."
At the time the application was made here, Ordinance No. 1965-27 was in effect. Hence, if by its terms it applies to plaintiff's land then the ordinance would not violate the rule prohibiting retroactive application of zoning ordinances.
Ordinance No. 1965-27 provides "that when any land shall be annexed hereinafter * * * it shall be classified as a Class U-1 Use District (Single Family House) * * *."
Section 4 of Ordinance No. 1965-27 reads:
"This resolution is hereby declared to be an emergency measure immediately necessary for the preservation of the public peace, health and safety. Such necessity exists by reason of the fact that in order that the presently annexed land be immediately placed in a single family use district it is necessary to have this ordinance become effective at once. Wherefore this resolution shall take effect and be in force from and after its passage and upon the signature of the mayor." (Emphasis added.)
Although the use of the word "hereinafter" indicates an intention on the part of city council that the ordinance should apply only to annexations occurring after its enactment, the above-emphasized language of Section 4 of the ordinance makes the terms of the ordinance ambiguous. We are of the opinion, however, that the language of Section 4, that the ordinance is to be put into immediate effect in order to place "presently annexed land" in a single family use district, must govern. That language unequivocally demonstrates that city council intended the ordinance to apply to plaintiff's land, which was in the "presently annexed" category at the time of adoption of the ordinance.
We see no reason not to give effect to the clearly expressed intention of city council, as evidenced by the circumstances under which the ordinance was passed and the language of the ordinance itself.
Therefore, the judgment of the Court of Appeals is reversed.
Judgment reversed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ. concur.