Negin v. Board of Building & Zoning Appeals of the City of Mentor

433 N.E.2d 165, 69 Ohio St. 2d 492, 23 Ohio Op. 3d 423, 1982 Ohio LEXIS 605

• Court: Ohio Supreme Court
• Decided: February 26, 1982
• Docket: No. 81-180
• Status: Published

Opinions

Per Curiam.

This case originated as an appeal from an administrative decision brought pursuant to R. C. Chapter 2506. The question presented by such an appeal challenging the constitutionality of a zoning ordinance as applied is “whether the ordinance, in proscribing a landowner’s proposed use of his land, has any reasonable relationship to the legitimate exercise of the police power by the municipality.” Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St. 2d 23.

It is virtually axiomatic that the enactment of zoning laws by a municipality is an exercise of the police power to provide for the public health, safety, morals, or general welfare. Garcia v. Siffrin (1980), 63 Ohio St. 2d 259. In order for such laws to avoid conflict with due process principles, Euclid v. Ambler Realty (1926), 272 U. S. 365, a zoning ordinance must be general in its application, the classification as to which the property may be devoted must be reasonable, and the preexisting vested rights must be recognized and protected. Smith v. Juillerat (1954), 161 Ohio St. 424. This power to classify property will not be interfered with by the courts unless such power is exercised in “such an arbitrary, confiscatory or unreasonable manner as to be in violation of constitutional guarantees.” Willott v. Beechwood (1964), 175 Ohio St. 557, paragraph three of the syllabus.

In an appeal brought pursuant to R. C. Chapter 2506, from the denial of an application for a variance by a zoning board of appeals, there is a presumption that the board’s determination is valid, and the burden of showing invalidity of the board’s determination rests on the party contesting that determination. C. Miller Chevrolet v. Willoughby Hills (1974), 38 Ohio St. 2d 298. In order to overcome this presumption, appellee argued below, inter alia, that appellant’s determination amounted to confiscation of Sublot 728.³ In support of this contention, appellee points to evidence adduced at the Court of Common Pleas appeal that Sublot 728 was rendered useless by-denial of the variance.

In particular, in appellee’s favor is the testimony of Alvin E. Beasley, Planning Director of the city of Mentor, Ohio, that the only other uses for Sublot 728 were to “£j]oin it with another parcel and use it * * * ,” or for a “[c]hurch or school, this kind of thing * * * .” Additionally, appellee cites the testimony of Roger D. Ritley, real estate appraiser and consultant, who was employed by the city of Mentor to appraise the Twelfth Salida Subdivision, in which Sublot 728 is located, that the other purposes to which Sublot 728 could be used, other than as a single family residence, were: “[o]nly as acreage residence land for property to adjoin either side, if one is considering buying it — assemblage potential to people on the rear and persons south and parties to the north. Also, it may eventually have some purpose for recreation use by a community or neighborhood association. Those are alternative types of use.”

Appellants give no other uses for Sublot 728 if the variance is denied and cite the testimony of Ritley on this point. We find that these suggested uses are so illusory and unlikely as to render Sublot 728 effectively useless. The likelihood that a church or school will be built upon a lot which the board has denied previously a variance to build a single family house is highly speculative at best. Likewise, the potential purchase of the lot by a homeowner’s association, which the record does not indicate to exist, is equally speculative. The net effect is that appellee is “totally restricted” in the use of his property in violation of constitutional guarantees. Superior Uptown v. Cleveland (1974), 39 Ohio St. 2d 36, 39.

It is uncontroverted that appellee’s lot was platted and has been held in single and separated ownership since before the enactment of the subject zoning ordinance. As such, a nonconforming use as to minimum area and frontage requirements for home construction is established and may be continued. Curtiss v. Cleveland (1959), 170 Ohio St. 127. See, also, Morris v. Los Angeles (1953), 116 Cal. App. 2d 856, 254 P. 2d 935; Hyndiuk v. Chicago (1973), 14 Ill. App. 3d 1057, 304 N.E. 2d 6; Robyns v. Dearborn (1954), 341 Mich. 495, 67 N.W. 2d 718. The requirement of a municipal ordinance that a landowner purchase additional property before he is permitted to improve a substandard lot, which was platted and held in single and separate ownership prior to the enactment of the ordinance, renders that lot useless for any practical purpose. This would also be the case if the only use of the lot is for sale to an adjacent landowner. The rendering of such a lot useless for any practical purpose goes beyond mere limitation of use and becomes a confiscation. State, ex rel. Killeen Realty, v. E. Cleveland (1959), 169 Ohio St. 375; Long Island Land Research Bureau v. Young (1957), 159 N.Y. Supp. 2d 414, 7 Misc. 2d 469; Graves v. Bloomfield Planning Bd. (1967), 97 N.J. Super. 306, 235 A. 2d 51; 2 Rathkopf, The Law of Zoning and Planning, Sections 32.02, 32.09 [1]; 6 Rohan, Zoning and Land Use Controls, Section 42.03 [1] [a]; 2 Anderson, American Law of Zoning (2 Ed.), Section 9.62.

For the aforementioned reasons, we hold that Section 150.176 of the Mentor Code of Ordinances as applied to appellee has no reasonable relationship to the legitimate exercise of the police power by the city of Mentor. Accordingly, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

W. Brown, Sweeney and C. Brown, JJ., concur. Celebrezze, C. J., concurs in the judgment. Locher, Holmes and Krupansky, JJ., dissent.

3 Appellee also argues that appellant’s denial of his application for a variance and a building permit constituted a denial of equal protection and an abuse of discretion. Given our determination of the confiscation issue, we need not address the equal protection and abuse of discretion issues.