Opinion
Nos. 34537 and 34541
Decided May 23, 1956.
Zoning ordinances — Legislative authority not delegated, when — Abuse of discretion not shown — Zoning commission — Authorized to interpret application of use district regulations — To permit use in general keeping with authorized uses.
APPEALS from the Court of Appeals for Cuyahoga County.
This is an action for injunctive relief, brought against defendant Woodmansee, Building Commissioner of the City of Euclid, to restrain him from issuing a building permit to defendant Herrick, and against Herrick, to restrain him from proceeding to construct a building or a parking lot on certain premises located on the south side of Lake Shore Boulevard in the city of Euclid, opposite the residence premises of plaintiff located on the north side of the boulevard which is a main artery of traffic running through the city of Euclid and designated a state highway.
The property on either side of the boulevard in the area herein involved is, for 150 feet back from the street line, zoned for U3 use which includes apartment buildings and hospitals. Herrick petitioned for authority to erect a one-story physicians' office building, together with a parking lot sufficient to accommodate 14 automobiles and extending 50 feet into the U1 district to the rear of the proposed building.
On the north side of the boulevard, the improvements are mostly large homes located 350 feet or more back from the street. An apartment house is located within the 150-foot strip in front of one of such homes. On the south side of the street, the improvements are mostly small residences.
The Planning and Zoning Commission of the City of Euclid, after proper notice and hearing, recommended the granting of the application and referred its action to city council which, by resolution, confirmed the recommendation.
The Court of Common Pleas found that the allowance of the medical building as being related to uses permitted in U3 districts was not arbitrary or unreasonable, and that there was no abuse of discretion in granting the application, and dismissed the petition and entered judgment for defendants.
The Court of Appeals, on appeal on questions of law and fact, held that the proposed physicians' building is not a hospital within the purview of the zoning ordinance permitting the erection of a hospital in the U3 zone, that the commission was without power to grant the application, and that the granting of the application constituted spot zoning and an abuse of discretion, and granted the injunction as prayed for.
The two defendants filed separate motions to certify the record, the allowance of which brings the cause to this court for review.
Messrs. Clyne, Kane, Ray Talty, for appellee.
Mr. Paul H. Torbet, director of law, for appellant in case No. 34537.
Messrs. Squire, Sanders Dempsey, Mr. Thomas J. Quigley and Mr. Charles M. Driggs, for appellant in case No. 34541.
Section 3 of the zoning ordinance, titled "Classification of Uses," provides for class U1 uses, single-family dwellings; class U2 uses, two-family dwellings; and class U3 uses, apartment houses, community center building, hotel, church, library, hospital or sanitarium, etc.
Section 6 provides: "In a class U3 district, no building or premises shall be used and no building shall be erected which is arranged, intended or designed to be used except for class U1, U2 or U3 use."
Section 7, titled "Accessory Uses in Residence Districts," provides in part: "An accessory use customarily incident to a class U1, U2, or U3 use shall also be permitted in respectively, a class U1, U2 or U3 district, provided such accessory use is located upon the same lot with the building or use to which it is accessory. * * * A store, trade or business shall not be permitted as an accessory use except that the office of a physician, surgeon, dentist or musician, may be located in the dwelling or apartment used by such physician * * * as his private residence * * *."
Section 11, titled "Use District Exceptions," provides in part:
"(1) The City Planning and Zoning Commission may in the event of property being allotted which is undeveloped, and in other specific cases, after public notice and hearing and subject to such conditions and safeguards as the City Planning and Zoning Commission may establish, determine and interpret the application of the use district regulations herein established, which permission shall be confirmed by resolution of the council before becoming effective as follows:
"(a) Permit the extension of a building or use into a more restricted district immediately adjacent thereto but not more than fifty (50) feet beyond the boundary line of the district in which such building or use is authorized.
"* * *
"(c) Permit in a use district any use deemed by the City Planning and Zoning Commission in general keeping with the uses authorized in such district."
Plaintiff contends that the type of use contemplated by Herrick is not permitted under the ordinance, and that the allowance of such use would be without authority and a gross abuse of discretion on the part of the Planning and Zoning Commission.
Defendants contend that the contemplated use is included under the term, "hospital," as used in section 3 of the ordinance, or is permitted under paragraph (c) of section 11, above quoted.
It is not necessary to determine whether the term, "hospital," as used in the ordinance, includes a physicians' office or medical building. Under section 11 of the ordinance the commission is given authority to "establish, determine and interpret the application of the use district regulations herein established" to permit in a use district any use deemed to be "in general keeping with the uses authorized in such district," subject to confirmation by resolution of city council. This delegation of power by the municipality is authorized by Section 713.11, Revised Code, and is not a delegation of legislative authority. L. M. Investment Co. v. Cutler, 125 Ohio St. 12, 180 N.E. 379, 86 A.L.R., 707.
Since a single office of a physician, with certain restrictions, and a hospital are permitted in a U3 zone, the commission did not abuse its discretion in determining that a physicians' office building is a use "in general keeping with the uses authorized in such district." The discretion of an administrative agency, in the absence of an abuse thereof, will not be interfered with by the courts. State, ex rel. Shafer, v. Ohio Turnpike Commission, 159 Ohio St. 581, 113 N.E.2d 14.
It is contended further that the permitting of a parking lot for 14 automobiles to extend 50 feet into the U1 zone is contrary to the ordinance. This extension of a use into the adjoining zone may be permitted pursuant to paragraph (1) (a) of section 11, above quoted. This parking space for use of patients of physicians having offices in the building is merely an incidental or accessory use, is permitted by the ordinance, and is not a commercial parking lot.
For the reasons above stated, the judgment of the Court of Appeals is reversed, and final judgment is rendered for the defendants.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.