Opinion
No. 834145
Decided August 23, 1967.
Zoning — Ordinance presumed neither unreasonable nor arbitrary — Presumption of reasonableness fails, when — Refusal to permit less restrictive use unreasonable, when.
1. Absent evidence to the contrary, courts will presume a zoning ordinance bears a positive relationship to the municipal health, safety and general welfare and is neither unreasonable nor arbitrary.
2. This presumption of reasonableness will fail in the face of evidence showing that a specific limitation of land use does injury to the owner's rights and is not balanced by any demonstrated public benefit.
3. Where no economic use can be made of property subject to a particular zoning use classification, the refusal of municipal authorities to permit a less restrictive use is arbitrary and unreasonable, absent evidence establishing that the refusal promotes the safety, health or general welfare of the community.
Mr. Paul H. Torbet, for appellants.
Mr. William T. Monroe, for City of Euclid.
This is an appeal from the refusal of the City of Euclid Building Commissioner to grant a building permit for the construction of an addition to appellant Beachland Glass Company's building. Appellants Penkala own and lease the parcel upon which the building stands, having a depth of 435 feet on the Westerly side of East 222nd Street. Frontage to a depth of 150 feet on both sides of the street is zoned "U-2" (two-family residence). The remainder of this parcel is zoned "U-4" (local retail or wholesale store).
Appellants contend the refusal of the building commissioner, affirmed by order of the Euclid Planning and Zoning Commission, should be reversed because the imposition of the "U-2" use restriction is, as to this parcel, unreasonable and arbitrary.
No principle of law is more axiomatic than that the property owner has the right to use his land in whatever way he chooses, subject only to the corollary right of the municipality within which it lies to impose reasonable restrictions on this use for the promotion of the health, safety and general welfare of the community.
Absent evidence to the contrary, courts will presume a zoning ordinance bears a real relationship to this area of a municipality's rightful concern and is neither unreasonable nor arbitrary. Curtiss v. City of Cleveland, 170 Ohio St. 127.
While this presumption is recognized it does not operate in the abstract. It must be considered in the light of the peculiar facts of each case and must fail, as all such rebuttable presumptions do, when facts inimical to it appear, i. e., facts showing that a specific limitation of land use does injury to the owner's rights and is not balanced by any demonstrated public benefit. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 71 L. Ed. 303, 47 S. Ct. 114, 54 A. L. R. 1016; Krom v. City of Elmhurst, 8 Ill.2d 104, 133 N.E.2d 1.
All the evidence bearing on the use to which plaintiffs' land may be put is uncontradicted. It is not suitable for the permitted uses of its zone.
This is not a question of the permitted uses of the "U-2" class failing to provide the highest and most profitable use to the owner. No city is obliged to adjust use restrictions on any parcel solely to realize the most profitable use of it for the owner.
In this case the land simply cannot be used in the manner required by its district because of its land-locked location, behind a commercial structure; not economically (testimony of witness Everson), and not legally. (City Ordinance Section 1581.07 which requires an access easement of at least 20 feet wide for a rear dwelling, over an unoccupied strip of land. Such strip of land is not available here.)
An evaluation of the evidence to this point prompts a statement of this principle:
Where no economic use can be made of property subject to a particular zoning use classification, the refusal of municipal authorities to permit a less restrictive use is arbitrary and unreasonable, absent evidence establishing that the refusal promotes the safety, health or general welfare of the community. State, ex rel. Killeen Realty Co. v. City of East Cleveland, 169 Ohio St. 375; State, ex rel. Euverard v. Miller, 98 Ohio App. 283; State, ex rel. Prentke, v. Village of Brookpark, 107 Ohio App. 325; Krom v. City of Elmhurst, supra.
What evidence has the city offered to justify the economic injury its present use restriction does appellants, evidence relating the restriction to some promotion of the community good? None! Conversely, there is no evidence that the approval of this requested use will have any detrimental effect.
The city argues that its strip zone feature has stood inviolate since 1922 and that "piers of incongruity" should not be ordained. While the language of this argument is euphemistic its force is blunted by fact and reason.
Fact says that the strip boundary has already been altered on either side of this parcel, for church property to the south and for a Standard Oil gas station to the north.
Reason says that there is nothing either sacred or immutable about zoning classifications, and that a classification imposed 45 years ago to a rigidly measured strip of land must, occasionally, yield to changing conditions and needs. Village of Euclid v. Ambler Realty Company, supra.
After consideration of all the evidence and applicable law, this court finds that the U-2 use restriction upon the rear of appellants' parcel is not necessary to promote the health, safety and general welfare of the residents of the community. As applied, but expressly limited to, the subject property it is invalid, unreasonable and arbitrary.
There can be no sound fear, as counsel for the city envisions, that this decision will loose a general onslaught against the strip barrier. Each case must be considered on its own values. If then the barrier is penetrated elsewhere on its length, it will not be in consequence of this decision, but rather because the city is unable to justify its enforcement in the particular instance.
Counsel for appellants shall prepare a journal entry directing the Building Commissioner of the City of Euclid to issue a building permit for construction of the proposed addition, subject to all applicable provisions of the zoning ordinance and building code of the city. The entry shall save the city its exceptions and be submitted to opposing counsel and the court for approval.
Judgment accordingly.