Opinion
No. 821570
Decided December 5, 1966.
Buildings — Housing code — Dwellings — Floor space per occupant — Minimum requirement — Constitutional law — "Non-conforming rights" — Requisites — Due process — Police power — Basis for exercise — Overcrowding — Evidence of effects — Computation of area — Exclusion of food preparation area — Reasonable — Exclusion of all third floors — Lack of evidence to establish need — Hardship — Variance from standards — Discretionary.
1. A property owner does not possess a right to continue a use of his property which violates valid legislative restrictions, unless such use existed at the time of their enactment and has continued without interruption or substantial change.
2. In order to constitute a valid exercise of the police power, legislation must directly promote the general health, safety, welfare or morals and must be reasonable, the means adopted to accomplish the legislative purpose must be suitable to the end in view, must be impartial in operation, must have a real and substantial relation to such purpose and must not interfere with private rights beyond the necessities of the situation.
3. The purposes of a housing code — fire safety, sanitation, health, crime prevention, maintenance of property, neighborhood and community — are matters of public welfare and within the scope of the police power.
4. An ordinance which requires that every dwelling unit must contain a minimum square footage of habitable floor area per occupant is a suitable means to the end of preventing overcrowded living conditions, has a definite relation to the health and welfare of the community and is thus a reasonable basis for classification.
5. In an ordinance requiring every dwelling unit to have a minimum habitable floor area, the exclusion of the food preparation area of the kitchen from the computation is a reasonable legislative determination and should not be interfered with upon review.
6. Exclusion of all third-floor areas of two-family dwellings from the calculation of a minimum habitable floor area for each dwelling unit, in the absence of evidence to establish the reasonableness of such a standard, would not be held justifiable.
7. It is not an abuse of discretion to deny an application for a variance from the requirement of an ordinance for a minimum habitable floor area for each dwelling unit, especially when the applicant owner may adjust the division of floor area among the dwelling units to bring the building into compliance.
Mr. Myron C. Hoff, for appellants.
Messrs. Webster Barclay, for appellees.
This case came on for a hearing as an appeal on questions of law from a final order and decision of the East Cleveland Board of Building Code Appeals, which was affirmed by the East Cleveland City Commission.
By agreement of the parties, the court was asked to consider in open court, evidence in addition to the transcript of the proceedings before the aforementioned governmental agencies. Additional evidence was submitted by each party.
Insofar as the court was able to determine, the case at bar is one of first impression in the state of Ohio. The court appreciates the concerted and diligent effort put forth both by appellants' counsel, Myron C. Hoff, and by counsel for the appellees, Messrs. Webster and Barclay.
The appellee herein is a charter municipality, having adopted a charter pursuant to Article XVIII, Section 7, of the Ohio Constitution. In March, 1961, the appellee municipality, in accord with provisions of its charter, adopted a housing code, the purpose of which was to establish and enforce minimum standards necessary to make and maintain all dwelling structures as safe, sanitary structures, free from fire and health hazards, fit for human habitation and beneficial to the general welfare.
The provisions pertinent to the within cause are:
Subsection (D) of Section 5-2 of the Code, Requirements for Habitable Rooms and Habitable Floor Area.
Every dwelling unit shall contain at least one hundred and fifty (150) square feet of habitable floor area for the first occupant thereof and at least one hundred (100) additional square feet of habitable floor area for every additional occupant thereof, but in no case shall any dwelling unit contain less than two hundred and fifty (250) square feet of habitable floor area.
Section 3-8 defines what is meant by a habitable room:
"A Habitable Room" is a room or enclosed floor space used or intended to be used for living, sleeping or eating purposes, excluding bathrooms, toilet rooms, laundries, pantries, dressing rooms, storage spaces, foyers, hallways, utility rooms, heater rooms, boiler rooms, basement recreation rooms, and areas used for kitchen purposes. Wherever living, sleeping or eating space is included in a room or area also used for kitchen purposes, the Building Inspector shall determine the portion of the floor area used for kitchen purposes and such portion, so determined, shall not constitute habitable floor area in determining the habitable floor area of a dwelling unit.
From time to time the appellee municipality has amended its housing code, and on November 17, 1964, it added the following provision, referred to as Subsection (E) of Section 5-2:
No part of the third floor area of a double house or of a two-family dwelling or of a multi-family dwelling consisting of side by side dwelling units, sometimes known as row housing, shall be used to compute compliance with the requirements for minimum habitable floor area for a family occupying a dwelling unit in such double house, two-family dwelling or multi-family dwelling.
In June, 1965, Ross Nolden and Carolyn Nolden, husband and wife, and the appellants herein, purchased the property located at 13512-14 Beaumont Avenue, in East Cleveland. The house upon said property is a two-family home (having been lawfully converted to such in 1957 as a non-conforming use), with a third floor that may be reached through the second floor. Since that time, to the present, the appellants, together with their seven children, have lived on the second floor and have also used the third floor for living and sleeping purposes. The appellants receive rental income from the leasing out of the first floor.
On September 7, 1965, the deputy housing inspector of the appellee municipality inspected the property and cited the appellants for violating Subsection (D) of Section 5-2, noting that the second floor suite was overcrowded. The appellants appealed this finding to the Board of Building Code Appeals on the basis of hardship. The board found that there was an overcrowded condition, but allowed the occupancy to continue until the end of the school year 1966. An appeal was taken to the East Cleveland City Commission, which affirmed the board's action by a 5-0 vote. It is from this ruling that the instant appeal is taken.
Appellants contend that they have acquired "non-conforming rights" to the use of the property and that the 1964 Amendment may not be applied to them. Without consideration of what these "rights" might be, it is safe to say that the appellants did not possess them. In the case of Akron v. Chapman (1953), 160 Ohio St. 382, at page 387, the court points out that in order to claim a "non-conforming use," that use must have been in existence at the time of the passage of the ordinance and that it must have continued "without expansion or interruption ever since." While there was testimony given to support the fact that the third floor had been used for living and sleeping purposes during cerain periods prior to the summer of 1964, there was no evidence presented to the court to show that the third floor was being used for living and sleeping purposes on November 17, 1964, when this provision became effective. (The items found on the third floor during an inspection of the home by a subsequent owner, in March, 1965, are not sufficient by themselves to show that the third floor was being used for living and/or sleeping purposes.) In addition, there is undisputed testimony to show that for a number of months prior to the date appellants purchased the home from one W. Rankin Lewis, the second and third floors had been without occupants. Thus the prior "non-conforming use," if it existed at all, had not continued to the time of the appellants' purchase without interruption.
The appellants did not purchase the property until seven months after Section 5-2(E) had become effective. They must be charged with knowledge of the status of the law when they purchased the property. If the questioned code sections are found to be constitutional, then the appellants have acquired no right to deviate from its provisions.
This court next considered the constitutional questions posed by the appellants. Appellants first contend that the provisions of the code previously cited serve to deny to them the "inalienable rights" guaranteed them by Article I, Section 1, of the Ohio Constitution. This contention is entirely without merit. To hold a properly enacted law unconstitutional merely because it limits and restricts the uses that one may make of his property would in effect be a holding that every enacted statute and ordinance in Ohio was invalid, for all laws have the effect of limiting our freedoms in some way.
The remaining constitutional questions presented by appellants concern whether or not certain of the provisions of the housing code, particularly those provisions cited above, are unreasonable, arbitrary and capricious and thus deprive the appellants of their due process under Article XIV, Section 1, of the Constitution of the United States and Article I, Section 16, of the Ohio Constitution, and whether or not the enforcement of these housing provisions constitutes a taking of property without compensation, contrary to Article I, Section 19, of the Ohio Constitution.
In Teegardin v. Foley (1957), 166 Ohio St. 449, the court, following and approving the earlier holding of Froelich v. City of Cleveland (1919), 99 Ohio St. 376, stated: (Paragraph one of the syllabus)
"In order to constitute a valid exercise of the police power, legislation must directly promote the general health, safety, welfare or morals and must be reasonable, the means adopted to accomplish the legislative purpose must be suitable to the end in view, must be impartial in operation, must have a real and substantial relation to such purpose and must not interfere with private rights beyond the necessities of the situation."
The provisions before the court have been examined in respect of the above cited cases.
There is no question that the purposes of the housing code; fire safety, sanitation, health, crime prevention, maintenance of property, neighborhood, and community, are matters of public welfare, and are today well within the scope of the police power. In the recent case of Reid v. Cleveland Heights (1963), 119 Ohio App. 67, the Court of Appeals for Cuyahoga County, held that the desire to maintain a "high character of community development" is in the public interest and contributes to the general welfare.
Next to be considered is the reasonableness of each of the previously cited provisions of the housing code; Sections 3-8, 5-2(D), and 5-2(E).
The purpose of subsection (D) of section 5-2 seems quite apparent. Simply put, it is to prevent the overcrowding of dwelling houses in the community.
To testify to the relationship between overcrowding and the public health and welfare, the appellees called as a witness, Dr. John Turner, a social worker and an expert in community organization and planning.
After qualifying Dr. Turner as an expert in his field, counsel for the appellee addressed the witness, at page 112 of the transcript:
Mr. Barclay: "What would be the relationship between overcrowding and the public health, safety and morals?"
After briefly discussing the types of studies that have been made of this relationship, the witness then answered:
Dr. Turner: "The clearest kind of evidence relates to health, certainly, where there is overcrowding and by that I now am referring to the American Public Health Association definition of overcrowding. There tends to be the probability that infectious diseases will be passed along with greater frequency.
"For example, overcrowding puts a stress and overtaxes the use of plumbing, washroom facilities, bathing facilities, and in so doing, if there is an infectious disease, respiratory, for example, there is the increased opportunity for passing along this disease. It is true with things like tuberculosis.
"This is also true of skin diseases and certain diseases of the digestive system as well.
"In addition to the health problems overcrowding has been known to correlate with a high frequency in home accidents, the arrangement of kitchen, stairs and the frequent use of these by people increases their hazard, the accident hazard.
"In addition to the health area, there are certain consequences that are thought to stem from overcrowding that relate to social development and social relationship among the occupants."
The witness went on to similarly discuss the psychological, physiological, and sociological injuries that result from the condition of overcrowded living quarters.
At page 118 of the transcript:
Mr. Barclay: "Are there any problems of appearance which are related to overcrowding?"
Dr. Turner: "Well, in general, the finding is that if there is overcrowding, meaning if there are excessive numbers of people who must interact with each other constantly without any relief from this, this is a stress on people in terms of their ability to cope with each other, and they tend to become — not all people do — but many people tend to become more irritable because they are constantly having to adopt to the wishes and needs of the other person without any relief from them.
"This, again, can be — I suppose some people find this desirable, while others, over a sustained period of time would tend to become involved in more frequent inter-personal conflicts, or it may push one marital partner to leave the home to seek relief from this, outside of the home."
From the evidence before this court, it would appear that classification by square footage per person is a suitable means to the end in view, has a definite relation to the health and welfare of the community and is thus a reasonable basis for classification. There has been no deprivation of the appellants' constitutional "due process" under Section 5-2(D) of the housing code.
Section 3-8 of the housing code excludes bathrooms and areas used for "kitchen purposes" from consideration as "habitable floor areas." The provision does not exclude that portion of the kitchen area that is used for eating and living purposes, but only that area where the food is prepared. Since bathrooms and kitchen areas are usually taken up with the facilities and appliances appropriate to such areas, the determination that these areas are not used for general living purposes and are not capable of being "inhabited," is a reasonable one and this court will not interfere in the commission's determination.
This court then turned its attention to Section 5-2(E) which excludes third-floor areas of two-family dwellings from the calculation of "habitable floor area." The provision makes no exceptions.
Nowhere in the record is there any reasonable evidence to show that third floors are "not habitable" per se, which is what the ordinance is in effect saying. There is evidence to show the harmful effects of overcrowding and there is evidence to show the probability of a fire hazard existing under some circumstances. However the record is void of evidence showing that third floors are "not habitable" simply because they are third floors. To require certain standards to be met before a third floor can be counted as "habitable floor area" would seem reasonable, providing the standards were reasonably related to the police power and its objectives. This is just what has been done in the remainder of Chapter 5, Basic Standard for Residential Occupancy, and particularly those sections dealing with the habitability of homes and rooms. There is no reason why these same or similar standards cannot be held applicable to third floors. If the required standards for habitable third floors are met, there would seem to be no justifiable reason to exclude them in the calculation of habitable floor area. The fact that some, many, or even most third floors are not habitable is not sufficient reasoning to declare all third floors "uninhabitable" for living purposes.
However, the instant case does not require a finding on the constitutionality of this provision. In the case presently before this court, the Board of Building Code Appeals did not rely solely on the requirements of Section 5-2(E) in reaching its decision. Under Section 5-2(D), a minimum of 950 sq. feet of "habitable floor area" would be required in order to lawfully house the appellant, his wife and their seven children, who range in age from two to sixteen years. The appellee calculates the "habitable floor area" of the second floor as follows:
Living Room 152.12 sq. ft. Dining Room 123.00 " " Middle Bedroom 73.85 " " Rear Bedroom 141.79 " " Area of Kitchen found to be habitable as living area 60.00 " " Total habitable floor area 550.76 sq. ft.
With the exception of the kitchen area that was found habitable, the appellants do not dispute the measurements of the appellee. They contend however that in addition to the 550.76 sq. ft. allowed by the appellee, the 242 sq. ft. of floor area on the third floor must be included in the calculations, along with the remaining kitchen and bathroom footage. If the third-floor area is included in the calculations, it would bring the total "habitable floor area" to 792.76 sq. ft., still 147.24 sq. ft. short of the requirement for nine persons.
The appellants seek to overcome this deficiency by asking that this court grant a variance on the basis of hardship, a variance of 16% from the minimum required "habitable floor area." In his brief to this court, counsel for the appellants argues that it would not be an abuse of discretion to grant a variance and allow a family to remain intact. This court agrees with appellants' counsel but it also considers the converse of appellants' argument to be valid; that it would not be an abuse of discretion to deny the variance and to require that the appellants seek additional quarters, particularly when they have these additional quarters so readily available to them. The court finds that the board and the commissioners did not abuse the discretion vested in them when they denied the application for a hardship variance. This court will not, in the absence of such a showing of an abuse of discretion, substitute its own judgment for that of the board and the commissioners.
The order of the Board of Building Code Appeals and the East Cleveland Commission is affirmed.
Order affirmed.