Opinion
No. 33893
Decided December 8, 1954.
Zoning ordinances — Not violative of Constitution, when — Reasonable, comprehensive and relative to public health, morals and safety — Enforcement of — Not taking of private property without compensation or due process — Not judicial function to determine wisdom of zoning ordinance.
1. Zoning ordinances which are not purely fanciful or esthetic but which are reasonable and comprehensive in their application and have a relation to the public health, morals and safety do not violate Sections 1, 16 and 19, Article I of the Ohio Constitution, or Section 1, Article XIV of the Amendments to the Constitution of the United States.
2. It is not within the judicial function for courts to pass upon the wisdom of a zoning ordinance; they may only determine whether such an ordinance is reasonably comprehensive in its application and has a reasonable relation to the preservation of the public health, safety and morals; and, where such an ordinance is so qualified, its enforcement does not constitute a taking of private property without compensation or the taking of property without due process of law, within the meaning of constitutional requirements.
APPEAL from the Court of Appeals for Jefferson County.
On June 13, 1952, the relators, Marshall Jack and Mary Jack, appellants herein, filed an amended petition in mandamus against respondent, Robert Russell as Building Commissioner of Steubenville.
In their amended petition relators aver that they are the owners of certain real estate in the city of Steubenville; that they reside in a residence located on such parcel of real estate; that on February 29, 1952, they made an application to the respondent for a building permit to construct a two-car garage, with an apartment above; that the geographical area in which relators' real estate is located has been zoned by the city of Steubenville as "residential"; that relators' application was in all respects completed in conformity to law; that the garage-apartment conformed in all respects to the requirements in the building code and zoning ordinance of the city; that, if respondent is not compelled to issue to relators the building permit applied for, relators will be irreparably damaged and without adequate remedy at law; that the city of Steubenville did adopt ordinance No. 7956, styled "an emergency ordinance * * * during the period of preparation of a comprehensive zoning ordinance," which ordinance is a zoning ordinance providing, in part, in section 8 thereof that no dwelling shall be erected on a lot unless the lot abuts a public street having a right-of-way width of 30 feet or more; and that such section is unconstitutional upon its face and in its application to relators' parcel of real estate.
Relators in their petition pray for a peremptory writ of mandamus, directing respondent to issue to them the building permit applied for, and for such other relief to which they may be entitled.
Respondent filed an amended answer to the amended petition, admitting that on February 29, 1952, relators made an application to him for a building permit to construct a two-car garage, size 40 feet by 45 feet, with an apartment above, to be heated by gas or coal, and with a brick-lined flue, and at the time tendered the regular application fees for such permit. Respondent then denies generally all other allegations of relators' amended petition.
The cause was submitted to the trial court upon a stipulation of facts which are substantially as follows:
Relators are the owners of and reside in a residence numbered 703 Jeannette Avenue, Steubenville, which residence is located on premises fronting 40 feet on Jeannette Avenue and running between parallel lines to a depth of 120 feet and known as lot No. 306. Their residence is set back approximately 25 feet from the street and they have been residing therein continuously since prior to the adoption of any zoning ordinance by the city of Steubenville.
After the adoption of the zoning ordinance by the city, relators purchased an area of real estate 80 feet by 75 feet in two separate tracts, each 40 feet by 75 feet. One tract immediately adjoins at the rear of the premises on which relators' residence is located and the other tract, 40 feet by 75 feet, joins the first tract to the north thereof.
The proposed garage-apartment would be located on the later acquired tracts, straddling the center line thereof.
The area of the newly acquired tracts is almost level and at the same elevation as Jeannette Avenue, but at the rear or west side of them the ground drops sharply into a deep, heavily wooded ravine, the amount of descent being approximately 45 feet, and the ravine being approximately 150 feet deep. There are no roads or structures in the ravine and it has no practical use for building purposes or the construction of roads or highways.
Jeannette Avenue has all public utilities, including a fire hydrant within 10 feet of the front of the relators' premises, and has been accepted by the city as a duly dedicated public street, 40 feet wide.
On February 29, 1952, after the passage of the zoning ordinance, relators made an application to respondent for a building permit for the proposed garage-apartment to be constructed on the tracts acquired by relators after the passage of the ordinance.
The application was in due and proper form except that the entire area owned by relators was included in one description, although the relators had acquired the real estate by three different deeds, one before the passage of the city zoning ordinance, and the other two thereafter.
Respondent refused the application for the permit.
The tract upon which is located relators' home is an area zoned for residential purposes only, and the only means of ingress and egress to and from the two tracts of real estate acquired by relators after the passage of the zoning ordinance is a driveway from Jeannette Avenue, over relators' lot No. 306 upon which their home is located.
The Court of Common Pleas found in favor of respondent, denied the petition for a writ of mandamus, dismissed the same, and overruled relators' motions for judgment notwithstanding the finding of the court and for a new trial.
Upon appeal to the Court of Appeals on questions of law, that court affirmed the judgment of the Court of Common Pleas.
The cause is before this court upon the allowance of a motion to certify the record.
Mr. N. Hart Cohen, for appellants.
Mr. James H. McHugh, city solicitor, for appellee.
The respondent refused to issue a building permit for the construction of a garage-apartment for the reason that such construction would violate section 8 of the temporary zoning ordinance of Steubenville, which reads as follows:
"Lot Area and Lot Frontage for Dwellings. Every dwelling hereafter erected or moved shall be on a lot that (a) abuts onto a public street the right of way of which is not less than 30 feet, (b) has a lot width at the street line or at the building line of not less than 40 feet and a total lot area of not less than 4,000 square feet; provided, however, that any lot which has less width or less area than here specified but which was a lot of a recorded subdivision or was in separate ownership from adjoining lots on the effective date of this ordinance, may be used for a one-family dwelling."
Relators' dwelling entirely conforms to the requirement of the above section. Lot No. 306 is more than 4,000 square feet in area, does front 40 feet on Jeannette Avenue, and such avenue is a public street with a 40-foot right of way.
The two after-acquired tracts of relators contain an area of 6,000 square feet, but of themselves do not front on any street. However, relators make two claims. The first is that their entire real estate is one large lot of more than 10,000 square feet in area, which fronts 40 feet on Jeannette Avenue, and that section 8 of the zoning ordinance does not prohibit the construction of more than one dwelling on such lot. They contend that the provision, "every dwelling hereafter erected or moved shall be on a lot that (a) abuts onto a public street," does not mean the same thing as a provision, "there shall be only one dwelling on each lot."
We agree with the Court of Common Pleas when in its opinion it said, "this would seem to the court a distinction without a difference, `every dwelling being hereafter erected shall be on a lot,' means the same thing as `there shall be only one dwelling on a lot.'"
Under section 8 of the zoning ordinance it was necessary for the relators to meet all three requirements of the section, namely, the apartment dwelling shall abut on a public street, the lot must have the required width at the street line, and must have the required area. The proposed garage-apartment lacks one of these essential elements in that it does not have a 40-foot frontage on a street, for the newly acquired tracts do not abut on any street.
The second and principle claim of relators, in fact the only one relied upon in their brief in this court, is stated in their brief as follows:
"If a zoning law requires the owner of land to perform an act which he has no power or authority to perform, then is not the zoning law unconstitutional?"
The relators contend that section 8 of the temporary zoning ordinance is unconstitutional. They assert that, since it would be impossible for them and impracticable for the city to construct a public street next to their newly acquired lots, because of the ravine adjoining them, a refusal to allow them to construct an apartment upon such premises denies to them the protection of their property guaranteed by Sections 1, 16 and 19, Article I of the Ohio Constitution, and that section 8 of the zoning ordinance is confiscatory in that it practically prohibits the relators from the utilization of the rear area of their property.
It is now firmly established that zoning ordinances which are not purely fanciful and esthetic but which are reasonable and comprehensive in their application and have reasonable relation to the public health, morals and safety do not violate either the sections of the Ohio Constitution, above referred to, or Section 1, Article XIV of the Amendments to the Constitution of the United States.
In the case of Pritz v. Messer, 112 Ohio St. 628, 149 N.E. 30, the first two paragraphs of the syllabus read as follows:
"Laws enacted in the proper exercise of the police power, which are reasonably necessary for the preservation of the public health, safety and morals, even though they result in the impairment of the full use of property by the owner thereof, do not constitute a `taking of private property' within the meaning of the constitutional requirements as to making compensation for the taking of property for public use and as to the deprivation of property without due process of law.
"An ordinance enacted by a municipality under Article XVIII, Section 3, of the Ohio Constitution, and under Sections 4366-1 to 4366-12, General Code, dividing the whole territory of the municipality into districts according to a comprehensive plan which, in the interest of the public health, public safety and public morals, regulates the uses and the location of buildings and other structures and of premises to be used for trade, industry, residence, or other specific uses, the height, bulk, or location of buildings and other structures thereafter to be erected or altered, including the percentage of lot occupancy, setback building lines, and the area of yards, courts and other spaces, and for such purpose divides the city into zones or districts of such number, shape, and area as are suited to carry out such purposes, and provides a method of administration therefor, and prescribes penalties for the violation of such provisions, is a valid and constitutional enactment."
If the Steubenville ordinance has any relation to the public health, safety and morals of the community and is comprehensively applicable to the entire city, it is unquestionably a constitutional enactment.
We are of the opinion that it does have such relation and applicability.
If the contention of relators were valid they might well acquire the entire property adjoining the ravine in the rear of their lot No. 306 and build several houses thereon which would have no access from a street save a driveway across relators' lot. It could scarcely be argued that such a situation would not create a dangerous fire hazard and thus be detrimental to public safety.
In fact, a similar situation was involved in the case of Howland v. Acting Superintendent of Buildings, 328 Mass. 155, 102 N.E.2d 423, decided by the Supreme Judicial Court of Massachusetts. In that case Howland owned a lot having a frontage of 60 feet on a street and a depth of 100 feet and on which were three dwelling houses and a three-car garage. He desired to sell the property and could sell it more advantageously if each house could be sold separately. proposed to subdivide his lot into three parcels, of which lot "A" would include one house and the garage, having a frontage of less than 39 feet on the street, and a depth of 73 feet. Lot "C" would have a house thereon and would have a frontage of less than 22 feet on the street and a depth of 73 feet. Lot "B" would have a house in the rear of the other two and would be 60 feet by 27 feet in size. This lot would have no frontage on the street and would be reached therefrom only by a proposed private right of way along the boundary between the other two lots. No visible change would result from the proposed subdivision, and the only consequence would be that the ownership would be held by three persons instead of one, and one of the lots would be subject to an easement or right of way for the benefit of the owner of the lot in the rear of the two houses on the street.
Howland had owned all this property prior to the adoption of a zoning ordinance by the city of Cambridge, which provided that in a residence C-1 district, in which Howland's property was located, "the minimum lot area, lot width," should be "5,000 sq. feet and 50 ft. frontage."
The ordinance provided further that no buildings should be erected on a lot which did not have frontage on a street at least 20 feet in width, and that no lot should be changed in size or shape so that the height, area or yard requirements in the ordinance were no longer satisfied.
The Cambridge ordinance also provided for nonconforming uses, which provision would be applicable to Howland's property.
Howland brought his action to compel the granting of his request for permission to subdivide his property as above outlined. He claimed that the proposed subdivision would in no way change the physical condition of the property, which had existed before any zoning ordinance was enacted, and that he was entitled to dispose of his property as he saw fit, free from the limitations of the zoning ordinance. The court held, however, that the proposed division of Howland's property would change the use of his land to one different from the previously existing one; that the division of the land would result in a dwelling owned by a person located on a small separate lot in the rear and having no frontage on the street and no access to it except by means of a right of way over land of others; that the rear dwelling would be isolated; that fire hazards might be increased; and that some, at least, of the consequences might follow, which were intended to be prevented by the requirement of a prescribed area and frontage for lots having buildings.
In answer to Howland's claim that the zoning ordinance was unconstitutional as applied to him, the court said:
"But the record fails to disclose that the application of the ordinance to the plaintiff is unreasonable, arbitrary, or oppressive. All that appears is that the plaintiff could sell his property more advantageously (how much more does not appear) if he could divide it. A large proportion of the owners of land and buildings affected by zoning ordinances could say with equal truth that their lands would be more saleable if there were no such zoning ordinances." See, also, Clemons v. City of Los Angeles, 36 Cal.2d 95, 103, 104; 222 P.2d 439.
Courts can not pass upon the wisdom of zoning ordinances. The only judicial function is to determine whether such an ordinance is reasonably comprehensive in its application and has a reasonable relation to the preservation of the public health, safety and morals, and, where the ordinance is so qualified, its enforcement does not constitute a taking of private property without compensation or the taking of property without due process of law, within the meaning of constitutional requirements.
Since relators acquired the property, upon which they propose to construct a garage-apartment, after the passage of the zoning ordinance, and since that ordinance does have a relation to the public safety, we are constrained to hold that it is a valid and constitutional enactment.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MIDDLETON, TAFT, HART, ZIMMERMAN and LAMNECK, JJ., concur.