Summary
building permit was improperly denied based on municipal ordinance reserving land for street where municipality did not bother to enact ordinance establishing street
Summary of this case from Davis v. BrownOpinion
No. 34385
Decided November 16, 1955.
Municipal corporations — Building permits — Who may make application for — Prospective purchaser of proposed building site — Appropriation of property for street or highway — Statutory procedure to be strictly followed — Appropriation of property for undetermined future use not authorized.
1. Although the building code of a municipality provides that a building permit shall be issued to the owner of the site of the proposed building for which the permit is sought, a person having a contract of purchase of such site from the owner thereof may, with the approval and participation of such owner, lawfully make application for such building permit.
2. Although municipal corporations, including charter cities, are permitted to appropriate private property for public purposes, they must, in doing so, follow strictly the modes of procedure prescribed by statute, where there is no ordinance or charter provision therefor.
3. As a prerequisite to the power of a municipal corporation to appropriate private property for the use of a public street or highway, such corporation must comply with the provisions of Section 723.02, Revised Code, and provide for such highway improvement by ordinance which shall at least briefly and in general terms describe the property to be appropriated for such purpose, in the manner provided for by Sections 719.01 to 719.21, inclusive, Revised Code.
4. A municipal corporation has no power or authority to appropriate lands for some contemplated but undetermined future use.
APPEAL from the Court of Appeals for Cuyahoga County.
This is an appeal by the city of Euclid, its mayor and its building commissioner, hereinafter designated as respondents, from an order of the Court of Appeals for Cuyahoga County in a mandamus action against the respondents directing them to issue a building permit to the relator, Sun Oil Company, appellee herein and hereinafter designated as Sun, for the construction of a retail gasoline filling station upon a certain tract of land located at the northeast corner of Babbitt Road and Lake-Land Boulevard in the city of Euclid, which land Sun is under contract to purchase from Pearl H. Henle, the fee simple owner, under date of July 12, 1950, for the sum of $15,000, on condition that Sun is able to procure from the city of Euclid a permit to construct and operate a retail gasoline filling station thereon.
Under the zoning ordinance of the city of Euclid, the property in question is zoned for retail store use. In an earlier declaratory judgment action, instituted by Pearl H. Henle, owner in fee simple of the property in question, in which the respondents in this action were defendants, both the Common Pleas Court and on appeal the Court of Appeals for Cuyahoga County by unanimous decision held that such zoning ordinance, to the extent that it prohibits the use of the premises in question for a retail gasoline filling station, is unreasonable and confiscatory and, therefore, unconstitutional; that the action of city council in refusing to rezone the premises was arbitrary, capricious, unlawful and void; and that the owner of the legal title to such premises and her successors in title were entitled to a building permit for the construction of such buildings for such use upon such premises.
The Court of Appeals in that case ordered the respondents to permit the plaintiff or Sun to file an application for a permit for the construction and operation of a retail gasoline filling station. The opinion of the Court of Appeals in that case is reported in 97 Ohio App. 258, 118 N.E.2d 682. On appeal in that case, this court, on October 20, 1954, dismissed the appeal of the respondents and overruled their motion to certify the record. See 162 Ohio St. 280, 122 N.E.2d 792.
Upon the refusal of this court to review the judgment of the Court of Appeals in that case, copies of the order of that court were served on November 1, 1954, by the sheriff of Cuyahoga County, personally upon the mayor and building commissioner of the city. A few hours later on the same day, the council of the city of Euclid adopted a resolution declaring it necessary to appropriate the fee simple estate in the specific premises hereinbefore described, for highway purposes, to wit, for Lakeland Freeway.
By stipulation it is disclosed that, with the aid and financial assistance of the federal government, the state of Ohio made a study of the feasibility of a limited access highway, to be known as Lakeland Freeway, from downtown Cleveland to a point of intersection with U.S. Route No. 20, one and three-tenths miles east of Painesville, surveyed a proposed center line therefor and determined the construction of such highway on such surveyed center line to be feasible. Lakeland Freeway is now a completed limited access highway from downtown Cleveland to East 140th Street in that city. The portion which has been completed was constructed by the joint financial contributions of the city of Cleveland, county of Cuyahoga, state of Ohio, and the federal government. Some lands in the surveyed course of such center line have been acquired by the city of Euclid, and it is agreed that such surveyed center line passes through the center of the premises in question. However, no co-operation agreement of any kind in connection with the portion of the proposed Lakeland Freeway within the city of Euclid has been entered into by that city with the state of Ohio, the federal government or the county of Cuyahoga, nor has the city of Euclid adopted any legislation to provide on its own behalf for the establishment and construction of such highway through that city.
Pursuant to such resolution, however, the council of Euclid, on December 20, 1954, passed an ordinance, as an emergency measure, declaring that, the premises in question having been "appropriated" for the Lakeland Freeway, the director of law was authorized to apply to a court of competent jurisdiction to have a jury impaneled to assess the compensation to be paid for such property, pursuant to the provisions of Section 719.06 et seq., Revised Code. No other resolutions or ordinances have been adopted by the city of Euclid concerning the appropriation or acquisition of the premises described in the petition or any other property within such city. Subsequent to January 3, 1955, the city of Euclid filed in the Common Pleas Court of Cuyahoga County an application to assess compensation for the property described in the petition herein, pursuant to the resolution and ordinance of its council as hereinbefore described, and a hearing was set in the Common Pleas Court for January 27, 1955, for the impaneling of a jury to make inquiry into and assess the compensation to be paid by the city of Euclid to the owner of the premises in question, but this action did not proceed further.
As a result of the judgment of the Court of Appeals in the Henle case, Pearl H. Henle, as owner, and Sun, as purchaser, on November 3, 1954, filed with the building commissioner of Euclid an application for a permit for the construction on the above-mentioned Henle premises of a gasoline filling station, together with plans and specifications therefor, which complied with the building code of the city of Euclid. On November 9, 1954, the permit was refused by the building commissioner on the ground that, since the premises in question had been ordered to be appropriated by the city of Euclid, he could not lawfully issue the permit. On November 22, 1954, this action for mandamus was instituted in the Court of Appeals for Cuyahoga County by Sun, in which it seeks an order to require respondents to issue it a permit for the construction of a gasoline filling station upon the premises in question, pursuant to its application hereinbefore described. On the same day, the court issued an alternative writ of mandamus, returnable November 29, 1954, to the respondents to show cause why such permit should not be issued. On November 26, 1954, a joint answer of respondents city of Euclid and its building commissioner and a demurrer by the mayor to the petition were filed. The case was submitted on the pleadings and a stipulation of facts.
On February 14, 1955, the Court of Appeals rendered judgment as follows:
"It is therefore ordered, adjudged and decreed that a peremptory writ of mandamus issue against the defendants, the city of Euclid, Kenneth J. Sims, as Mayor of the City of Euclid, and Clyde R. Woodmansee, as Building Commissioner of the City of Euclid, enjoining such respondents to forthwith issue and cause to be issued to relator, Sun Oil Company, a building permit for the construction of a gasoline filling station upon the premises described in the petition and in the application for such permit now on file with the respondent city, in accordance with the application, plans and specifications so filed with the respondent building commissioner; and that such permit be delivered to relator * * *."
A motion for new trial was filed by respondents and the same was overruled.
The cause is now in this court on appeal as a matter of right.
Mr. Hubert B. Fuller and Mr. Perry L. Graham, for appellee.
Mr. Paul H. Torbet, director of law, for appellants.
The first claim of the respondents is that Sun's right to a writ of mandamus for a building permit is not clear because Sun is not the owner of the property, as it holds only an option to purchase the same, whereas the Euclid building code authorizes the issuance of a building permit to only the owner of the premises.
It will be noted that the application for the permit, set out in the record herein, was made and signed by both the owner, Pearl H. Henle, and Sun. The relationship between the owner and Sun under this contract of sale and purchase was fully set out in the record and considered by the Court of Appeals as an issue in the Henle case. In that case the Court of Appeals, in its conclusions of law, found that "the zoning ordinance of the city of Euclid, as it now exists and as it existed at the time of such request is void, unconstitutional and of no effect in so far as it purports to restrict or prevent the use of the premises described in the petition either by plaintiff or her successors in title for the erection and operation thereon of a retail gasoline filling station," and, in its opinion, said:
"It is also the right of plaintiff under the declaratory judgment act to prosecute this action. (Section 2721.03, Revised Code.) Nor is the fact that the application for a permit to build a filling station was filed by the Sun Oil Company instead of plaintiff, detrimental to plaintiff's case. It is enough that an application was made for a permit to use this property for a filling station, by one having a contingent interest in using the property for that purpose, that the city council was petitioned for relief from the zoning classification, that the Board of Zoning Appeals did act on such application at the request of the city council, and that the consent of more than 80 per cent of the property owners within 200 feet of the property was obtained, each of the procedural steps having been taken at the direction of the officials of the city, so that if there were any defects in administrative procedure, it should not be permitted to prejudice plaintiff's rights under the admitted circumstances of this case."
The contract of sale and purchase between Henle and Sun was a purchase on condition that the permit be granted and not a mere option to purchase, as claimed by the respondents, and this question of the right of Sun to make the application for the permit was determined by the finality of the order of the Court of Appeals in the Henle case. See, also, State, ex rel. Waltz Pimco, Inc., v. Village of Independence, 69 Ohio Law Abs., 445, 125 N.E.2d 911 (a similar action with a similar finding by the same Court of Appeals); and Carson v. Board of Appeals of Lexington, 321 Mass. 649, 75 N.E.2d 116. Furthermore, it was stipulated in the instant case that the application for the permit was accompanied by duplicate plans and specifications for such construction, and that "such plans and specifications showed that the proposed retail filling station when constructed would conform to and comply with the building code requirements of the city of Euclid."
The respondents present, as follows, their second question:
"Can the respondents be coerced by peremptory writ of mandamus to issue a building permit for construction of a gasoline station on land appropriated to a public use prior to the application for a permit?"
The Constitution and statutes of Ohio grant to municipal corporations the power to establish streets and highways within their corporate limits and prescribe the procedure by which such power shall be exercised. The city of Euclid is a charter city, and its home-rule power, as granted in Sections 3 and 7 of Article XVIII of the Constitution, includes the power of eminent domain. However, its charter has no specific procedural provisions by which it may exercise that power. In the instant case, it undertook to appropriate the specific property in question by passing a resolution of intent, as authorized by Section 719.04, Revised Code.
The establishment of a street is a prerequisite to the maintenance of a proceeding to appropriate private property therefor. Again there is no specific procedure provided in the Chapter of the City of Euclid for the establishment of streets or highways. This basic legislation is provided by Section 723.02, Revised Code, the pertinent part of which is as follows:
"The legislative authority of a municipal corporation may open, * * * alter, divert * * * or widen any street * * * or public highway within the limits of the municipal corporation. The legislative authority shall provide for such improvement by ordinance, which shall briefly and in general terms describe * * * the property to be appropriated for such purpose. The proceeding for such appropriation shall be as provided by Sections 719.01 to 719.21 of the Revised Code." (Italics supplied.)
No such ordinance establishing a highway to be known as Lakeland Freeway within the city of Euclid has been adopted by the city council. Stipulation No. 15 states in part that, except for exhibit I (resolution declaring it necessary to appropriate and use for highway purposes this specific tract of land) and exhibit Ia (ordinance determining to proceed with the appropriation of this specific tract of land), "no other resolutions or ordinances have been adopted by the city of Euclid concerning the appropriation or acquisition of the premises described in the petition."
By Sections 717.04 and 5535.03, Revised Code, municipal corporations are granted power to establish and construct limited access highways or freeways. However, in each of those sections it is provided that such a highway may be established in the same manner in which a municipal corporation may lay out and establish a street or public highway.
This court on several occasions has held that, although municipalities are permitted to appropriate private property for public purposes, they must, in doing so, follow strictly the modes of procedure prescribed by statute. See Emery v. City of Toledo, 121 Ohio St. 257, 263, 167 N.E. 889; Parkside Cemetery Assn. v. Cleveland, Bedford Geauga Lake Traction Co., 93 Ohio St. 161, 112 N.E. 596; Pontiac Improvement Co. v. Board of Commissioners of Cleveland Metropolitan Park District, 104 Ohio St. 447, 135 N.E. 635, 23 A.L.R., 866.
It is clear from the record not only that the city of Euclid has not established Lakeland Freeway through its corporate limits, but that the freeway is still in a visionary stage awaiting a co-operation agreement with the county, state or federal government or some of them to establish it; and that the so-called appropriation was only an abortive attempt to acquire title to this property for possible future highway purposes. The municipality has no power or authority to appropriate lands for some contemplated future use. City of Cincinnati v. Vester, 281 U.S. 439, 448, 74 L. Ed., 950, 50 S. Ct., 360.
The Court of Appeals in the course of its opinion in the Henle case said:
"The claim that the city has the right to `freeze' plaintiff's property, preventing her from its beneficial use until the city gets around to appropriating it for public purposes as a part of the Lakeland Freeway, is without foundation. If the city needs the property in that development, then an immediate proceeding in eminent domain would end this lawsuit. All that has been done so far toward building the Lakeland Freeway is tentative in character. The proceeding looking to the construction of the freeway has not reached a stage compelling the city to appropriate the property, nor is the plaintiff compelled to stand by, paying taxes without benefit, until the development reaches a stage, if it ever does, where her property must be taken for freeway purposes. Section 713.14, Revised Code."
With this statement of the law we concur, and it is equally applicable to the facts and issues in this case.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, STEWART and BELL, JJ., concur.
TAFT, J., concurs in paragraphs one and four of the syllabus and in the judgment.