Village of Wintersville v. Argo Sales Co.

299 N.E.2d 269, 35 Ohio St. 2d 148, 64 Ohio Op. 2d 88, 1973 Ohio LEXIS 324

• Court: Ohio Supreme Court
• Decided: July 11, 1973
• Docket: No. 72-645
• Status: Published

Opinions

Corrigan, J.

Ordinance No. 186, as presented to the village council by the Planning Commission, provided a comprehensive zoning plan for the village of Wintersville, by dividing the village into various districts and prescribing standards for each of the districts, providing supplementary standards, and providing a method of administration and enforcement of the ordinance.

It was introduced in the village council at a special meeting on November 26, 1957, and read for the first time. According to the minutes of that meeting, a hearing was set for December 27, 1957, and the c]erk wps oj-4ere4 to post potices.

On December 5, 1957, at a regular meeting of the council, Ordinance No. 186 was read for the second time..

On December 27,1957, at a special meeting of the council, Ordinance No. 186 was read for the third time. The minutes of that meeting indicated that no member of the public was present to object to the passing of this ordinance and it was passed by a vote of 5-0. The ordinance was then entered in the record of ordinances book kept by the clerk. There was no certification by the clerk showing publication or posting of the ordinance.

In conjunction with the consideration of Ordinance No. 186, a comprehensive zoning map of the village of Winters-ville was prepared and kept on file in the village hall during the reading of the ordinance and after the passage thereof.

The legislation was declared to be an emergency ordinance, and took effect and was in full force immediately upon its passage.

The above facts are stipulated by the village of Wintersville and the defendants. In addition, at the trial further evidence was offered by intervening plaintiffs.

In his testimony at the trial, Raymond E. Wilson, clerk of the village council in 1957 and 1958, testified upon cross-examination, in connection with the posting of Ordinance No. 186, as follows:

“Q. Now this map that you are talking about was not posted with the ordinance [Ordinance No. 186] in the five places?

“A. The map wasn’t, no.

“Q.. Do you recall the date that you posted this [Ordinance No. 186] ? Was that after the first reading?

“A. I didn’t post them until they were passed and signed by the mayor and signed by the clerk; then they were posted.”

Appellees argue that the provisions of R. G. 731.25, relative to the type of public notice to be given a proposed zoning ordinance, are mandatory; that when the council chooses to post the proposed ordinance in five public places, both the te?t of the ordinance and the map to which it applies mast be posted in each of the five public places; and that posting the map at a single location is not compliance with the statute.

Appellants contend that since this ordinance was passed as an emergency ordinance it went into immediate effect under E. C. 731.30, notwithstanding the provisions of E. C. 731.23 requiring its publication, and that a subsequent failure to publish in approved form could not affect its validity. The case of Tirpack v. Maro (1967), 9 Ohio App. 2d 76, relied on by appellees, is distinguished because in that case the ordinance was not enacted as an emergency measure.

The advantage at this point seems to lie with appellants and their position that Ordinance No. 186 went into immediate effect on December 27, 1957, regardless of any defect in notice and posting required by E. C. 731.25. However, since the validity of the ordinance is the issue, it is necessary for this court to give consideration to the compliance or noncompliance, by the village council and the clerk of the council, to the provisions of E. C. 713.12.¹

Section 3 of Article XVIII of the Ohio Constitution, which confers home rule power, does not in and of itself empower an Ohio noncharter municipality to enact an emergency zoning ordinance; and such municipality, in the enactment of a zoning ordinance, must comply with R. C. 713.12, which requires a public hearing on the proposed ordinance, preceded by a 30-day notice of the time and place of such hearing.

The G-eneral Assembly, in adopting a statutory plan for the government of municipalities generally, as required by the Constitution, has specified the procedure to be followed with respect to the adoption of zoning ordinances. This procedure is designed to safeguard property rights and to give property owners a fair opportunity to enter a protest against an ordinance which may materially interfere with the use of their property or decrease its value.

Since the noncharter village of Wintersville was subject to the statutory enactments with respect to the procedure to be followed in the adoption of zoning ordinances, it was mandatory to adhere to the provisions of R. C. 713.12, which necessitate a public hearing, preceded by a 30-day notice of the time and place of such public hearing. Morris v. Roseman (1954), 162 Ohio St. 447,

Paragraph numbered “1” of the agreed statement of facts reads:

* According to the minutes of that meeting, a hearing was set for December 27, 1957 and the clerk was ordered to post notices.”

There is nothing in the record tending to establish that the village council of Wintersville gave 30 days ’ notice of the time and place of the hearing as required by B.' C. 713.12.

On the contrary, the clerk of the village council, as a witness for the intervening plaintiffs, testified, as follows:

“Q. What—Did you have any duty in connection with that ordinance?

“A. Yes, I was to post these ordinances.

6 i # *

“A. I was to post these ordinances at five different places in the village of Wintersville after signed by the mayor and the clerk.

“Q. And do you recall of your own knowledge whether you did so with this ordinance?

“A. I posted all of them.”

Obviously, the witness was testifying about posting the ordinance in compliance with the provisions of E. C. 731.25², which refers to adoption of ordinances and resolutions of a general nature. However, in this case we are eoncerned with a zoning ordinance, which is specifically covered by R. C. 713.12. And, as pointed out above, the provisions of R. C. 713.12 must be followed in the enactment of zoning legislation by a noncharter village. If those provisions are not followed, then the zoning ordinance adopted is ineffective and invalid. The record clearly demonstrates that a 30-day notice of the time and place of a public hearing on Ordinance No. 186 was not published by the clerk of the council

Accordingly, only and exclusively for the reasons hereinbefore stated, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Celebrezze, W. Brown and P. Brown, JJ., concur. O’Neill, C. J., Herbert and Stern, JJ., dissent.

R. C. 713.12 reads as follows:

1 “Before any ordinance, measure, regulation, or amendments thereto, authorized by Sections 713.07 to 713.11, inclusive, of the Revised Code, may be passed the legislative authority of the municipal corporation shall hold a public hearing thereon, and shall give at least thirty days’ notice of the time and place thereof in a newspaper of general circulation in the municipal corporation. If the ordinance, measure, or regulation intends to re-zone or re-district ten or less parcels of land, as listed on the tax duplicate, written notice of the hearing shall be mailed by the clerk of the legislative authority, by first class mail, at least twenty days before the date of the public hearing to the owners of property within and contiguous to and directly across the street from such parcel or parcels, to the addresses of such owners appearing on the county auditor’s current tax list or the treasurer’s mailing list and to such other list or lists that may be specified by the legislative authority The failure of delivery of such notice shall not invalidate any such ordinance, measure, or regulation. During such thirty days the text or copy of the text of such ordinance, measure, or regulation, together with the maps or plans, or copies thereof, forming part of or referred to in such ordinance, measure, or regulation and the maps, plans, and reports submitted by the planning commission, board, or officer shall be on file, for public examination, in the office of the clerk of the legislative authority or in such other office as is designated by the legislative authority. No such ordinance, measure, or regulation which violates, differs from, or departs from the plan or report submitted by the commission, board, or officer shall take effect unless passed or approved by not less than three fourths of the membership of the legislative authority. No ordinance, measure, or regulation which is in accordance with the recommendations, plan, or report submitted by the commission, board, or officer shall be deemed to pass or take effect without the concurrence of at least a majority of the members elected to the legislative authority.”

R. C. 733.25 reads as follows:

2 “In municipal corporations in which no newspaper is printed as defined in Section 7.12 of the Revised Code, publication of ordinances, resolutions, statements, orders, proclamations, notices, and reports, required by law or ordinance to be published, shall be published in either of the following methods, to be determined by the legislative authority:

“(A) By posting copies thereof in not less than five of the most public places in the municipal corporation, to be determined by the legislative authority, for a period of not less than fifteen days prior to the taking effect thereof;

“(B) By publication thereof in any newspaper printed in this state and of general circulation in such municipal corporation.

“Notices to bidders for the construction of public improvements and notices of the sale of bond's shall be published in not more than two newspapers, printed in this state and of general circulation in such municipal corporation, for the time prescribed in Section 731.22 of the Revised Code.

“Where such publication is by posting, the clerk shall make a certificate as to such posting, and as to the times when and the places where such posting is done, in the manner provided in Section 731.24 of the Revised Code, and such certificate shall be prima-facie evidence that the copies were posted as required.”