Village of Hudson v. Albrecht, Inc.

458 N.E.2d 852, 9 Ohio St. 3d 69, 9 Ohio B. 273, 1984 Ohio LEXIS 1007
CourtOhio Supreme Court
DecidedJanuary 25, 1984
DocketNo. 83-142
StatusPublished
Cited by80 cases

This text of 458 N.E.2d 852 (Village of Hudson v. Albrecht, Inc.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Village of Hudson v. Albrecht, Inc., 458 N.E.2d 852, 9 Ohio St. 3d 69, 9 Ohio B. 273, 1984 Ohio LEXIS 1007 (Ohio 1984).

Opinions

J. P. Celebrezze, J.

The planning and zoning code for the village of Hudson is contained in Part Twelve of the village’s Codified Ordinances. The specific portion of Part Twelve which concerns the instant appeal is Chapter 1204.

Section 1204.03 of that chapter creates an Architectural and Historic Board of Review. The function of that body is set forth in Section 1204.01:

“(a) Generally. The Architectural and Historic Board of Review hereinafter created shall serve to protect and preserve the value, appearance and use of property on which buildings are constructed or altered, to maintain a high character of community development, to protect the public health, safety, convenience and welfare and to protect real estate within the Municipality from impairment or destruction of value. Such purposes shall be accomplished by the Board by regulating, according to accepted and recognized architectural principles, the design, use of materials, finished grade lines, dimensions, orientation and location of all main and accessory buildings to be created, moved, altered, remodeled or repaired, subject to the provisions of Zoning and Building Codes and other applicable ordinances of the Municipality. In reviewing, regulating and approving building plans, the Board shall consider and take cognizance of the development of adjacent, contiguous and neighboring buildings and properties for the purpose of achieving safe, harmonious and integrated development of related properties.” (Emphasis added.)

In advancement of this section, the board has authority under Section 1204.06 to review all applications for building permits following their approval by the building inspector. Section 1204.08 provides that no building permit shall be issued unless the applicant submits drawings and specifications and establishes the following:

“* * *[a](2) The exterior architectural character and functional plan of the proposed structure, when erected, will not be at such variance with existing structures, or structures currently being built, in the immediate [71]*71neighborhood or zoning district as to cause substantial depreciation in the property values of such existing structures or structures currently being built;

“(3) The site utilization and orientation of the proposed structure is reasonably integrated with existing roads, drives, vehicular traffic patterns and pedestrian walkways abutting the property upon which the proposed structure is to be built; and

“(4) The proposed structure does not violate the ‘look-alike’ provisions of subsection (b) hereof.

“(b) No building permit shall be issued in a Residence District for an application to erect, construct, alter or remodel any building or structure which shall be like or substantially like any neighboring structure, hereinbefore defined, then in existence or for which a building permit has been issued. The Board shall approve such application unless the applicant fails to establish that no more than two of the following exist with respect to any such neighboring structure:

“(1) The roof style of the proposed structure is similar to the structure it resembles;

“(2) The roof pitch of the proposed structure is less than three vertical units in twelve from the structure it resembles;

“(3) More than half of the exterior surface materials of the proposed structure are the same as the structure it resembles;

“(4) The relative location of an attached garage, porch, portico, breezeway, gable or other major design feature attached to the proposed structure is similar to the structure it resembles; or

“(5) The relative location of entry doors, windows, shutters or chimneys in the proposed construction is similar to the structure it resembles.”

In this appeal, appellants assert that the Hudson regulations are unconstitutional as they are concerned solely with aesthetics.

We begin our discussion of this issue by noting that a strong presumption exists in favor of the validity of the ordinance. Downing v. Cook (1982), 69 Ohio St. 2d 149, 151 [23 O.O.3d 186]; Brown v. Cleveland (1981), 66 Ohio St. 2d 93, 95 [20 O.O.3d 88]. It is firmly established that the party challenging a legislative enactment bears the burden of demonstrating its unconstitutionality. Mayfield-Dorsch, Inc. v. South Euclid (1981), 68 Ohio St. 2d 156, 157 [22 O.O.3d 388]; Hilton v. Toledo (1980), 62 Ohio St. 2d 394, 396 [16 O.O.3d 430]. As long as the validity of the legislation is “fairly debatable,” the legislative judgment in enacting it is permitted to control. Brown v. Cleveland, supra, at 98; Willott v. Beachwood (1964), 175 Ohio St. 557, 560 [26 O.O.2d 249]; Curtiss v. Cleveland (1959), 170 Ohio St. 127 [10 O.O.2d 85], paragraph three of the syllabus. See, generally, Euclid v. Ambler Realty Co. (1926), 272 U.S. 365. The basis for this presumption is that the local legislative body is familiar with local conditions and is therefore better able than the courts to determine the character and degree of regulation required. [72]*72Wilson v. Cincinnati (1976), 46 Ohio St. 2d 138, 142 [75 O.O.2d 190]; Allion v. Toledo (1919), 99 Ohio St. 416, paragraph one of the syllabus.

We further note that the right of the individual to use and enjoy his private property is not unbridled but is subject to the legitimate exercise of the local police power. See Section 3, Article XVIII of the Ohio Constitution. This power includes the authority to impose zoning regulations, although such regulations must conform to certain standards. Since the object of the police power is the public health, safety and general welfare, its exercise in order to be valid must bear a substantial relationship to that object and must not be unreasonable or arbitrary. Cincinnati v. Correll (1943), 141 Ohio St. 535 [26 O.O. 116], paragraph one of the syllabus.

Some Ohio cases pertaining to the issue of aesthetics have stated that such consideration alone does not justify the exercise of the police power. State, ex rel. Killeen Realty Co., v. East Cleveland (1959), 169 Ohio St. 375, 383 [8 O.O.2d 409]; Wondrak v. Kelley (1935), 129 Ohio St. 268 [2 O.O. 159], paragraph three of the syllabus; Youngstown v. Kahn Bros. Building Co. (1925), 112 Ohio St. 654, 661; Pritz v. Messer (1925), 112 Ohio St. 628, 638. These decisions rest upon the idea that aesthetic tastes vary greatly among different people and are therefore too impractical and inconsistent a basis to be used in restricting property. State, ex rel. Killeen Realty Co., v. East Cleveland, supra, at 383; Youngstown v. Kahn Bros. Building Co., supra, at 661. The cases also reflect the thought that aesthetics is not a concern of the public health, safety or general welfare, but is, at most, an incidental or secondary reason for enacting legislation.

It is noteworthy, however, that the nature of the police power is elastic, as it must be able to expand or contract in response to changing conditions and needs. See Euclid v. Ambler Realty Co., supra, at 387; Cincinnati v. Correll, supra, at 540.

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Bluebook (online)
458 N.E.2d 852, 9 Ohio St. 3d 69, 9 Ohio B. 273, 1984 Ohio LEXIS 1007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/village-of-hudson-v-albrecht-inc-ohio-1984.