Curtiss v. City of Cleveland

146 N.E.2d 323, 110 Ohio App. 139, 77 Ohio Law. Abs. 72

• Court: Ohio Court of Appeals
• Decided: December 11, 1957
• Docket: 23398
• Status: Published

Opinions

OPINION

Per CURIAM:

This appeal comes to this court for rehearing as directed by the mandate of the Supreme Court of Ohio where the judgment of this court, previously entered, was affirmed in part and set aside in part and the cause remanded for further consideration to the extent necessary to conform to the Supreme Court’s directions. (See 166 Oh St 509, 144 N. E. 2d 177.)

As indicated by our opinion (74 Abs 499, 130 N. E. 2d 342,) and by the findings of fact and conclusions of law which this court returned upon request and filed with the papers in the case, with particular reference to the description of the physical surroundings (paragraphs 10, 25, 26 and 27 of the findings of fact which are here re-adopted), the value of the business property affected by the ordinances here being considered was clearly shown by the record to have been greatly depreciated. The property, zoned for residence purposes, to the north and south of Lake Shore Boulevard, had been completely improved prior to the adoption of the ordinances here involved except for a very few remaining vacant lots, and eighty per cent or more of the frontage on Lake Shore Boulevard (the Lake Shore Boulevard frontage being the only property affected by these ordinances) had been improved for retail business (see findings of fact paragraphs 25 and 26). The effect of the amended zoning ordinances was to make all such business property, as improved by the individual owners, nonconforming uses without right of substitution or change except by permission and at the discretion of the zoning board of appeals.

As shown by the findings of fact, a substantial part of the value of the improved business properties on the Boulevard would be destroyed by the amendatory ordinances in making such property subject to the limitations of a nonconforming use, and that such change was not, in fact, based on or in the interest of the public health, safety, morals or general welfare. Matters of traffic and sanitation claimed by the City as some of the considerations for the change in zoning, did not, in fact, beneficially affect such matters, which are otherwise subject to the control of the City in the exercise of its police power.

Because this territory, including that zoned for residence purposes, was almost completely developed, the zoning change being limited to just the property fronting on Lake Shore Boulevard, which includes only a few vacant lots comprising less than twenty per cent of the Boulevard frontage west of Neff Road, the part affected by this decree, the change bore no relationship to the public health, morals, safety or the general welfare of the people in and about such territory. The provisions of the amendatory ordinances, reclassifying the vacant land, are here sustained.

This court, in its first decree, did not intend to found its judgment on a supposed “contract” theory or right to continue a use once lawfully permitted where substantial sums had been expended upon the improvements within the then zoning limitations. It was the purpose of this court’s decree to protect each established retail business property here affected from loss in value almost to the extent of confiscation because of its reclassification by these zoning ordinances into the category of a nonconforming use, the amendatory ordinances bearing no relation to the public health, morals, safety or the general welfare, particularly where all the property affected comprised an almost completely developed retail business territory surrounded by a completely built residential area. This court, in its judgment, intended to afford the same protection to properties, here becoming nonconforming uses, against destruction in value by reason of these zoning amendments as is now provided for as to properties coming into a like situation by the provisions of §713.15 R. C., effective 8/27/57, which reads as follows:

“The lawful use of any dwelling, building, or structure and of any land or premises, as existing and lawful at the time of enacting a zoning ordinance or amendment thereto, may be continued, although such use does not conform with the provisions of such ordinance or amendment, but if any such nonconforming use is voluntarily discontinued for two years or more, any future use of such land shall be in conformity with §713.01 to §713.15, inclusive, R. C. The legislative authority of a municipal corporation shall provide in any zoning ordinance for the completion, restoration, reconstruction, extension, or substitution of nonconforming uses upon such reasonable terms as are set forth in the zoning ordinance.” (Emphasis added.)

It is further considered that the ordinances which are the subject of this action, with regard to the provisions for nonconforming uses of the properties here affected, are now in direct conflict with the general law as enacted by the legislature in the foregoing section and are, there fore, now inoperative as to these properties. This action being in equity, the authority of this section, enacted by the legislature before entering .this judgment, may here be considered and is controlling.

. We, therefore, now hold that as to the properties specifically designated in our first decree (set forth in finding of fact No. 27), the prayer of the plaintiff and cross-petitioning defendants for injunctive relief is granted. This court holds that as to such properties, the rezoning thereof is confiscatory and, therefore, unconstitutional for the reason that the record shows that such ordinances bear no substantial relation by reason of the state of the improvement of the property involved and the surrounding territory and circumstances as shown by the record at the time the amendatory ordinances were passed to the public health, safety, morals or general welfare of the people.

SKEEL, FJ, KOVACHY, J, concur. HURD, J, dissents.