Opinion
No. 37787
Decided February 5, 1964.
County rural zoning — County commissioners' intent and purpose in adopting resolution — What considered in determining — Section 303.05 et seq., Revised Code — Amendments or supplements to zoning plan adopted by commissioners — Section 303.121, Revised Code, a curative measure.
1. Under the provisions of Section 3180-4 et seq., General Code (Section 303.05 et seq., Revised Code), both the text of a resolution adopted by a Board of County Commissioners as to the zoning of a territory and the map prepared incident thereto at the board's direction and purporting to reflect the action taken are to be considered together to ascertain the intent and purpose of the board in adopting the resolution and to determine what was actually accomplished thereby.
2. Section 303.121, Revised Code, enacted in 1956, is a curative measure which operates to ratify and validate amendments or supplements to a rural zoning plan adopted by a Board of County Commissioners prior to the effective date of such statute.
APPEAL from the Court of Appeals for Franklin County.
This action originated in the Court of Common Pleas of Franklin County when, proceeding under the provisions of Section 303.24, Revised Code, Franklin W. Martin and Pauline F. Martin, his wife, filed a petition for an injunction against the Marble Cliff Quarries Company, an Ohio corporation, to prevent it from conducting quarrying operations on its property at a location near plaintiffs' residence in claimed violation of a zoning resolution adopted in 1948 by the Board of County Commissioners of Franklin County respecting the use to which property covered by the resolution might be put. Both plaintiffs' and defendant's properties are situated in Franklin Township, Franklin County, Ohio. Plaintiffs, appellees herein, acquired their property on the west side of El Paso Drive in August 1954, and defendant, appellant herein, acquired its property in controversy on the other side of the road prior to that date.
It is alleged in the petition that the 1948 zoning resolution referred to and embracing plaintiffs' and defendant's properties created a district designated as agricultural and residential and restricted the kind of structures which might be built thereon to single-family dwelling houses, churches, schools, libraries and the like.
The petition recites further that defendant's quarrying operations will not only violate the 1948 zoning resolution but will be detrimental to plaintiffs and their property as well as to other persons and their property in the vicinity.
The answer, after certain formal admissions, denies for want of knowledge plaintiffs' claimed ownership of their property as set out in the petition and denies generally the remaining allegations of the petition.
There was a hearing in the Court of Common Pleas on the pleadings, evidence and certain exhibits. That court found that the zoning resolution of 1948, adopted in compliance with what are now Sections 303.05, 303.06 and 303.07, Revised Code, and including both text and maps, shows that defendant's property in issue was originally zoned for residence and agriculture purposes. In its opinion, the court points out that thereafter certain proposed zoning changes in Franklin Township were presented to and considered by the County Rural Zoning Commission, and that on February 13, 1950, these proposed changes, after approval by the County Planning Commission, were duly presented to the Board of County Commissioners for hearing and adoption. After an advertised public hearing, such proposed changes were adopted as recommended and were embraced in a descriptive text and a zoning map of Franklin Township. The court found that the text and the map combined, as fully explained by an employee of the Franklin Township Planning Commission familiar with the proceedings, placed the property of the defendant here involved in a heavy manufacturing district, which would permit quarrying operations. It is noted that at the public hearing no objections were registered to the proposed changes.
Upon such determinations, the trial court at the conclusion of plaintiffs' case sustained defendant's motion to dismiss the action, and judgment was rendered accordingly.
On an appeal on questions of law to the Court of Appeals, that court reversed the judgment below and remanded the cause to the trial court for further proceedings. The principal reasons given for such disposition were that the territory in dispute was validly zoned under the original zoning plan of November 12, 1948, as a residential and farming district, and that the claimed rezoning of such territory for heavy manufacturing was not effective because the text of the zoning resolution failed to denote adequately the particular area to be rezoned.
The cause is now in this court for review and determination by reason of the allowance of a motion to require the Court of Appeals to certify the record.
Messrs. Applegate, Bolon, Boyd Alban, for appellees.
Messrs. Vorys, Sater, Seymour Pease, Mr. John M. Rankin and Messrs. Dresbach, Crabbe, Newlon, Collopy Bilger, for appellant.
In asking for a reversal of the judgment of the Court of Appeals and an affirmance of the judgment of the Court of Common Pleas, the defendant advances the following propositions:
1. There was a failure of proof on the part of plaintiffs that they or their property would be damaged by defendant's quarrying operations, in the event such operations were pursued.
2. No proof was presented that the 1948 zoning resolution was effective to establish zoning of the territory here in issue, but, if it was, it was apparent from the evidence, including the testimony of plaintiffs' witnesses, that in 1950 the territory was in fact rezoned for heavy manufacturing.
3. Under the express provisions of Section 3180-4 et seq., General Code (Section 303.05 et seq., Revised Code), both the text and the maps with reference to a zoning plan must be taken and considered together to ascertain the intention of the agencies in control of zoning, and when this is done it is clearly indicated that the territory in issue was by the 1950 resolution made a heavy manufacturing area.
It is emphasized that there was no misunderstanding as to the effect of the 1950 resolution or any challenge to the preliminary steps leading to its adoption, and that the official zoning map, on which reliance is placed by the public, clearly reflects the action taken. Plaintiffs, who did not acquire their property until 1954, evidently accepted as a fact that there had been a rezoning, for prior to bringing the present action they joined in an attempt to have the territory returned to an agricultural and residential area. Defendant also asserts that there is no statutory requirement that the map purporting to show the actual situation with respect to zoning be incorporated by reference in the text of a zoning resolution.
Emphasis is also placed on the importance of Section 303.121, Revised Code, enacted in 1956, which ratified and validated amendments or supplements to a rural zoning plan adopted by the Board of County Commissioners prior to the effective date of such statute.
Upon a consideration of the entire record, we are convinced that the purpose and intent of the 1950 resolution of the Board of County Commissioners, though poorly and ineptly expressed in such resolution, predicated upon the recommendations of the County Rural Zoning Commission, and as ultimately reflected in the zoning map, was to place the disputed territory in a heavy manufacturing district; that this was accomplished; and that any defects existing in the proceedings therefor were cured by the provisions of Section 303.121, Revised Code, enacted to accomplish such result.
We are of the opinion that the Court of Common Pleas made a correct analysis of a somewhat confusing problem and disposed of the controversy correctly. Therefore, the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
TAFT, C.J., MATTHIAS, O'NEILL, GRIFFITH, DEEDS and GIBSON, JJ., concur.
DEEDS, J., of the Sixth Appellate District, sitting by designation in the place and stead of HERBERT, J.