
    No. 678
    BEHM v. WOLFERT et al
    Ohio Appeals, 6th Dist., Lucas County
    No. 1402.
    Decided March 31, 1924
    187. BUILDINGS — 1. Zoning ordinance enacted after permit to erect apartment building granted and construction started, held unreasonable.
    2. One who merely occupies adjacent property cannot bring an action for an infraction of a zoning ordinance.
    Attorneys — Hackett & Lynch, for Behm; D. J. O’Rourke and Lawton & Saalfield, Denman, Wilson, Kirkbride & MoCabe, for Wolfert et al; all of Toledo.
   RICHARD'S. J.

Epitomized Opinion

Published Only In Ohio Law Abstract

Pending in Supreme Court on Motion to Certify. 2 Abs. 630

Behm brought an action for a permanent injunction preventing the defendants from completing the construction of a building in the city of Toledo claimed to be in violation of the interim zoning ordinance. The defendant’s answer denied certain allegations of the petition and setting up the alleged invalidity of the ordinance. Thereafter the relator . filed a supplemental petition in which he alleged that in ' 1923 a zoning ordinance was enacted in lieu of the original interim ordinance which was repealed. The defendants demurred to this supplemental petition. The defendants owned a lot in Toledo, for which they had procured a building permit to erect an apartment house. The interim zoning ordinance was adopted in 1922 and was .repealed October 8, 1923. The general zoning ordinance now in force does, by its terms, apply to the lot owned by the defendants, and if its provisions are enforced they prevent the erection of the building which was in the process of construction. This prohibition arises out of the fact that the ordinance contains provisions for a set-back line and for open spaces and areas and other requirements which cannot be complied with in erecting the building which is proposed to be erected on the lot owned by the defendants. In refusing to grant the relief prayed for the Court of Appeals held:

1. As the zoning ordinance was unreasonable as applied to the facts of this case, it will not be enforced as against the defendants.

2. As the petition and stipulation in the case only recites that plaintiff “occupied” adjoining property and does not state that he was the owner thereof, he is not entitled to maintain an action to enjoin an adjacent builder from the infraction of a patent.  