
    AMBLER REALTY CO. v. EUCLID (Vil.) Ohio, et al
    U. S. District Court, N. D. Ohio, E. D.
    No. 898.
    Decided Jan. 14, 1924
    693. INJUNCTION — Court of equity may enjoin enforcement of void municipal ordinance, but which, while in force, is a cloud on title and would depreciate market value of property.
    291. CONSTITUTIONAL LAW —Zoning ordinance which would prevent sale of claimants’s considerable tract of land, and use of a large part of it, heldl invalid as depriving owners of property without due process of law.
    Ordinance held not sustainable on theory of indirect benefits or of average reciprocity or advantages.
    EMINENT DOMAIN — “Property” includes the right to acquire, use and dispose of it, and is protected from confiscatory exercise of police power.
   WESTENHAVER, D. J.

Epitomized Opinion

This was an action to enjoin1 the enforcement of a zoning ordiace, No. 2812, of the Village of Euclid. Plaintiff was the owner of 68 acres of unimproved and unallotted land lying in the village. This tract was bounded on the north by the Nickel Plate Railway and on the south by Euclid avenue. The ordinance in question restricted the use of this land. The frontage on Euclid avenue to the depth of 150 feet maybe used only for.a single family dwelling. The next 470 feet in the rear thereof may be used only for two-family dwelling. The next 130 feet farther to the rear may be used only for" apartment dwelling and not for any form of trade, or industry. The remaining 1,200 feet north to the Nickel Plate Railway may be used for industry and manufacturing purposes.

Many additional restrictions are imposed as to -height, set-back distances, 'etqt, of the various buildings. The evidence showed that the normal and reasonable use to be expected of plaintiff’s land along Euclid avenue was for general trade and commercial purposes, and that the restrictive provisions of the ordinance in question impair the salability of this land. In granting the relief prayed for, the United States District Court at Cleveland held:

Attorneys — Baker, Hostetler & Sidlo, for Realty Company; James Metzenbaum and W. C. Boyle, for Euclid et al; all of Cleveland.

1. A court of equity has jurisdiction to enjoin enforcement of a municipal ordinance which is void but which, while in force, constitutes a substantial cloud on the title- to pioperty and depreciates its market value.

2. A village zoning ordinance restricting the class of buildings which may be built within certain distances from designated streets, and which as affecting complainant’s property, consisting of a considerable tract of unimproved land, would prevent the sale and use of a large part of it for legitimate purposes, to which it would normally, because of its location, be devoted, with consequent substantial depreciation of its market value, held void as depriving complainant of its property without due process of law, in violation of the Fourteenth Amendment, as well as in violation of provisions of the state constitution of Ohio.

3. Property is more than the mere thing which a person owns, and includes the right to acquire, use, and dispose of it, and the constitution protects an owner, not only against a taking without compensation under power of eminent domain, but also against an exercise of thé police power which,, while leaving him title and possession, deprives him of the normal and legitimate use of his property.

4. An ordinance which deprives an owner of the right to make normal and legitimate use of his property cannot be sustained on the theory that he would be compensated indirectly by benefits accruing from the effect of the 'same restrictions on other property, especially where the facts and probabilities do not support such theory.  