Summary
In Davis v. Miller, supra (163 Ohio St. 91), the appellant owned property on both sides of U.S. Highway 33 in Perry Township, Franklin County, and had leased the land lying west of the highway for quarrying stone.
Summary of this case from Curtiss v. ClevelandOpinion
No. 34050
Decided April 13, 1955.
Zoning legislation — Construction — Deprivation of certain uses by owners of property — Owner's land bisected by highway — Separate and distinct parcels — Nonconforming use of one parcel before zoning — Similar use of other parcel after zoning, prohibited.
1. Zoning legislation constitutes a deprivation for the public good of certain uses by the owners of property to which their property might otherwise be put, and such legislation should be given a fair and reasonable construction with due regard for the conflicting interests involved.
2. Where it is found that land owned by a person and bisected by a public highway comprises two separate and distinct parcels, one of which was used for the quarrying and crushing of stone before the enactment of a county zoning resolution prohibiting such activity, a determination that the other parcel, after the enactment of such zoning resolution, may not be devoted to such prohibited use is justified and proper.
APPEAL from the Court of Appeals for Franklin County.
This case deals with the subject of zoning and the right of a person to devote a part of his real property to a use prohibited by a county zoning resolution.
Plaintiff, Marion W. Davis, died during the pendency of the appeal in this action in the Court of Appeals. Upon motion the cause was revived in the names of Rodney B. Baldwin, executor, and Byron W. Davis, Charles M. Davis and Jean F. Davis, devisees. However, the decedent shall be referred to hereinafter as appellant and as though he were living.
Appellant is the owner of 46.5 acres of land in Perry Township, Franklin County, Ohio, bisected by U.S. Highway 33 (former State Highway 31) and located approximately one mile south of the intersection of U.S. Highway 33 with State Highway 161. Appellant's land lying west of U.S. Highway 33 and under lease to J. L. Snouffer, Inc., had, for many years, been used for quarrying stone. By an instrument dated July 25, 1947, appellant leased 16.8 acres east of U.S. Highway 33 to J. L. Snouffer, Inc., for the purpose of "the quarrying and crushing of stone."
On November 12, 1948, a county zoning resolution, adopted by a vote of the people at a general election, became operative in Perry Township and affected all appellant's land there located.
Thereafter appellant, as owner, and J. L. Snouffer, Inc., as lessee, pursuant to the provisions of such zoning resolution, filed with the Franklin County Zoning Building Department a nonconforming use registration covering lands of the appellant on both sides of U.S. Highway 33. This was rejected. Appellant was also unsuccessful in his appeal to the Franklin County Board of Zoning Appeals.
The matter was then taken to the Court of Common Pleas of Franklin County on appeal, where, upon consideration of the evidence, including a number of exhibits, the order of the Board of Zoning Appeals was affirmed.
A further appeal on questions of law was perfected to the Court of Appeals, with the result that the judgment of the trial court was affirmed.
The cause is presently in this court for determination on its merits pursuant to the allowance of a motion to require the Court of Appeals to certify its record.
Messrs. Power, Griffith Jones and Mr. Clifford E. Rader, Jr., for appellant.
Mr. Frank H. Kearns, prosecuting attorney, and Mr. Earl W. Allison, for appellees.
The general power of governmental authorities to enact and enforce zoning legislation relating to structural and use restrictions on the owner of real estate within prescribed districts or zones is no longer an open question. Such legislation constitutes a deprivation for the public good of certain uses by owners of property to which their property might otherwise be put and should be given a fair and reasonable construction with due regard for the conflicting interests involved. An important question in all zoning cases is, does a zoning measure in its operative effect constitute a reasonable regulation of the use of property in the public interest, or does it constitute an unreasonable and arbitrary interference with the rights of private ownership?
Section 3180-18, General Code (Section 303.19, Revised Code), in the chapter entitled "County Rural Zoning," provides in part that the lawful use of any land as existing and lawful at the time of the enactment of a zoning resolution may be continued, although such use does not conform with the provisions of such resolution.
Section XXI of the Franklin County zoning resolution contains a similar provision to the effect that use of any "lot" for a purpose not in conformity with the terms of such resolution at the time of its enactment may be continued. Such resolution also defines "lot" as a parcel of land which may include parts or a combination of lots when adjacent to one another, provided all such land is used for one improvement.
Briefly stated, appellant's principal contention is that, under the evidence, all the 46.5 acres of land he owns in Perry Township must be treated as a unit — as one lot or parcel — and that, since preceding the enactment of the county zoning resolution certain of the land was being used in the quarrying and crushing of stone, under neither the statutes nor the zoning resolution itself can such continuing use be restricted or denied as to any part of the land.
However, the trial court found, which finding was approved by the Court of Appeals, that as a matter of fact, evidenced by appellant's own conduct over the years, his 46.5 acres comprise two distinct parcels of land, separated by U.S. Highway 33; that appellant had failed to establish a pre-existing use for quarrying purposes of the land lying east of U.S. Highway 33 before the enactment of the zoning resolution; and that appellant's use of his land west of U.S. Highway 33 prior to the enactment of the zoning resolution did not entitle him to extend or expand such use for quarrying activities to his land east of that highway.
This court is not required to and does not weigh evidence in a case of the kind presently before us. We have examined the bill of exceptions and are of the opinion that it contains evidence sufficient to support the findings and conclusions of the two lower courts.
Although this court has not decided the precise question presented in the instant case, a number of recent cases from other jurisdictions are authority for the proposition that the owner of property who is lawfully using it in nonconformity with a zoning ordinance or resolution may not extend or expand such use in violation of the ordinance or resolution to a separate even though adjoining parcel of land. Chayt v. Board of Zoning Appeals, 177 Md. 426, 9 A.2d 747; Town of Burlington v. Dunn, 318 Mass. 216, 61 N.E.2d 243, 168 A.L.R., 1181, certiorari denied, 326 U.S. 739, 90 L. Ed., 441, 66 S. Ct., 51; Midland Park Coal Lumber Co., Inc., v. Terhune, Bldg. Inspr., 136 N.J. Law, 442, 56 A.2d 717, affirmed 137 N.J. Law, 603, 61 A.2d 76; Struyk, Bldg. Inspr., v. Samuel Braen's Sons, 17 N.J. Sup., 1, 85 A.2d 279, affirmed, 9 N.J. 294, 88 A.2d 201.
We find no reversible error in the judgment of the Court of Appeals, and such judgment is, therefore, affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, STEWART and BELL, JJ., concur.
I concur in paragraph two of the syllabus and in the judgment.
Section 3180-18, General Code (Section 303.19, Revised Code), provides in part:
"The lawful use * * * of any land or premises as existing and lawful at the time of enactment of a zoning resolution * * * may be continued although such use does not conform with the provisions of such resolution * * *."
In State, ex rel. Moore Oil Co., v. Dauben, Bldg. Inspector, 99 Ohio St. 406, 124 N.E. 232, paragraph one of the syllabus reads:
"Statutes or ordinances * * * which impose restrictions upon the use * * * of private property, will be strictly construed and their scope cannot be extended to include limitations not therein clearly prescribed; exemptions from such restrictive provisions are for like reasons liberally construed."
See also State, ex rel. Ice Fuel Co., v. Kreuzweiser, Inspector, 120 Ohio St. 352, 356, 166 N.E. 228.
It may fairly be argued, therefore, that, standing alone, the words "land or premises," as found in the above-quoted portion of Section 3180-18, General Code, could include appellant's land, both on the east side and on the west side of route 33.
Appellant relies upon Cheswick Borough v. Bechman, 352 Pa. 79, 42 A.2d 60, as indicating that an existing use under such a zoning provision may be expanded throughout such "land or premises." However, as stated in the opinion in that case, the ordinance there involved imposed "no restraint upon broadening the scope of the existing use." On the other hand, the statute involved in the instant case by its words does contemplate that there may be limitations on the extension of existing nonconforming uses. Thus, Section 3180-18, General Code, further provides in part:
"The Board of County Commissioners shall provide in any zoning resolution for the * * * extension of nonconforming uses upon such reasonable terms as may be set forth in the zoning resolution."
The validity in zoning legislation of limitations on the extension of existing nonconforming uses was recently recognized by this court. City of Akron v. Chapman, 160 Ohio St. 382 (paragraph one of syllabus), 116 N.E.2d 697.
In providing "for the * * * extension * * * of nonconforming uses," the Franklin County zoning resolution provides in part:
"If, at the time of enactment of this zoning resolution, any lot * * * was being used in a character or manner or for a purpose which does not conform * * * such character or manner of use or purpose may be continued." (Emphasis added.)
It is fairly arguable that, standing alone, the word "lot" in the foregoing-quoted part of this resolution might be interpreted as having the same meaning as the words "land or premises" in Section 3180-18, General Code. However, other provisions of the resolution clearly express an intention to give the word "lot" a more restricted meaning. Thus, the resolution, in defining the word "lot," provides:
"Lot: A parcel of land occupied or to be occupied by one building and accessory buildings and uses, and including the open space required under this resolution. A lot may be land so recorded on a plat of record or considered as a unit of property and described by metes and bounds, but it may include, parts of, or a combination of such lots when adjacent to one another, provided such ground is used for one improvement. All lots shall front on and have ingress and egress by means of a public right of way." (Emphasis added.)
It is apparent that appellant's land can come within the definition of a "lot" only because it has a "front on" route 33. Since the part of appellant's land on the east side of route 33 has a "front on" the opposite side of that "public right of way" from the part on the west side, it is difficult to contemplate how the trier of the facts in the instant case could have concluded that, within the meaning of the zoning resolution, appellant's land could constitute less than two separate lots.
In my opinion, this limitation on the extension of existing uses of "land or premises" to their extension throughout a "lot," as that term is defined in the Franklin County zoning resolution, is, within the meaning of the words of Section 3180-18, General Code, a provision for "an extension * * * of nonconforming uses upon * * * reasonable terms." See State, ex rel. Jack, v. Russell, Bldg. Commr., 162 Ohio St. 281, 123 N.E.2d 261.