
    Hageman et al. v. Board of Trustees of Wayne Township et al.
    [Cite as Hageman v. Bd. of Trustees of Wayne Township (1968), 23 Ohio Misc. 93.]
    
      (No. 129551
    Decided September 18, 1968.)
    Common Pleas Court of Montgomery County.
    
      Mr. Mason Douglass, for plaintiffs.
    
      Mr. Lee C. Falke, prosecuting attorney, and Mrs. Lillian M. Kern, for defendants.
    Before: Honorable Carl D. Kessler, Honorable Robert L. McBride, and Honorable Eugene R. McNeill of Van Wert County, by assignment.
   McNeill, J.

This is an action for declaratory judgment brought by residents of a portion of Wayne Township, Montgomery County, Ohio, to test the legality and constitutionality of the Wright-Patterson Air Force Base (WPAFB) Zoning Regulations.

The action was filed after the enactment of Section 4563.01 et seq., Revised Code, but while pending, the Legislature amended the act in Section 4563.031, Revised Code. By agreement of counsel, the amended statute and the regulations adopted thereunder will be considered, as well as the original regulations. These regulations are long and complicated and are not set forth in this decision. This action concerns only that part of the territory of the Regional Board which lies within Montgomery County.

Plaintiffs devote a major portion of their brief to a claim that Wayne Township was dezoned by the act of the Legislature. A township has only such power as is given to it by the General Assembly. It is an instrumentality of the Legislature. The fact that additional powers are given another group in no way dezones Wayne Township. A person building in Wayne Township is not relieved from compliance with township zoning regulations.

A parallel situation exists in this county. The Montgomery County Commissioners, along -with other county commissioners, have rights over streams. However, the Miami Conservancy District was established and is an additional agency exercising authority. The legality of the Miami Conservancy District has been approved. The same principle would appear to control the issue as to the status of the township zoning regulations.

The setting of height restrictions may be a proper legislative function. This has not been questioned by the petitioners. The testimony is that the Wayne Township zoning regulations have more severe height restrictions than those provided by the WPAFB Zoning Regulations. Limitations on height have been generally held proper by the courts. Of course, in an individual case, the height regulation could be a taking of a particular parcel of ground. However, that would affect one case and not the constitutionality of the act.

The resolution by WPAFB Regional Board as to height is not zoning. It is similar to legislative regulation for traffic on the highways. The owner of land has air rights but does not have property rights unlimited to the heavens; otherwise, any space vehicle would violate such right. Regulation of air space is a legislative function.

An examination of the purpose clause of the proposed regulations shows: (1) It is to prevent hazards to the airport; (2) Although public safety and general welfare are mentioned, the gist of this clause is that hazards to the airport be reduced to avoid the impairment of its use and to protect the general public’s investment therein; (3) To protect the people within the zone by limiting their number to two residences per acre.

There is no question that from the general public viewpoint such restrictions are desirable. It is also desirable for those who earn their livelihood at the air base and for the surrounding communities which enjoy the benefits arising from the payroll at the air base.

Under the resolution the adjoining owners would be benefitted only by the reduction of the chance of injury through misadventure and accident. These are worthy and humane considerations, well within the power of the government, but they must be carried out within the constitutional powers that have been delegated by the people for that purpose.

The zoning regulations place the entire burden upon a small group of owners whose land is northwest of WPAFB. If similar regulations had existed with the original establishment of WPAFB, the growth of the northeastern part of Montgomery County, all of Fairborn, and portions of the city of Dayton would have been seriously restricted and remained relatively undeveloped.

Most of the proposed restrictions affect only one side of the WPAFB, the north. A community has developed on the other side of the runway and on the eastern side the state of Ohio has established a large university and, independent of the Air Force, plans exist for a new museum which will attract an estimated two million persons a year. The existing museum near the runway currently enjoys a good attendance.

A serious question is presented by the attempt to severely limit land use for the benefit of others not affected by the regulations. The defendants spent a considerable portion of their brief in citing Ambler v. Euclid, 272 U. S. 359, which is the landmark case in zoning law. However, it must be pointed out that what has been attempted here by the WPAFB board is not zoning.

As generally conceived and approved, zoning is an exercise of police power for the benefit of an entire community. Each tract must accept its share of reasonable restrictions as they relate to the mutual benefit of all. However, in this case all the regulations are solely for the benefit of WPAFB, which is the only land not controlled by the proposed zoning regulations. WTAFB is federally owned. The zoning board has no control over it. Mutuality is not present. WTiile adjoining owners are sought to be restricted, WPAFB has increased its use of the air and its ground concentration of people and buildings.

The books are filled with cases pointing out when a regulation is a valid use of police power and when it is arbitrary or confiscatory in nature. Federal and state decisions setting aside zoning attempts to control adjoining land for the benefit of an airport appear in the plaintiffs’ brief.

In State v. Columbus, 3 Ohio St. 2d 154, the Supreme Court of Ohio held:

“There exists a ‘taking’ in a constitutional sense of private property for public use under Section 19, Article I of the Ohio Constitution, whenever air flights are so low and so frequent as to be a direct and immediate interference with enjoyment and use of the land.” Citing United States v. Causby, 328 U. S. 256, 90 L. Ed. 1206; Griggs v. Allegheny County, 369 U. S. 84, 7 L. Ed. 2d 585.

Other cases to a similar effect include Yara v. Newark, 40 Atl. 559; Indiana Toll Road v. Jankovich, 193 N. E. 2d 237; Roark v. Caldwell, 394 P. 2d 641.

The exercise of police power may be expressed either in zoning or in appropriation. But it is a fundamental principle that all police regulations must be constitutional and reasonable, and not arbitrary and oppressive. Constitutionally guaranteed rights may not be infringed. Neither the state of Ohio, nor municipalities or other subdivisions may enact unreasonable regulations. 10 Ohio Jurisprudence 2d 446. If a regulation restricting the use of private property goes too far, it will be recognized as a “taking” for which compensation must be made under the constitutional provision requiring compensation to be made for property taken for a public use. Penn. Coal Company v. Mahon, 67 L. Ed. 322.

Since the WPAFB Regulation is not proper zoning, what is it? It is an attempt to restrict the population in this portion of Wayne Township so that planes from WPAFB may facilitate their flights in and out of Wright-Patterson Field and provide safety for pilots and the public in case of emergency landings. It is an attempt by the state of Ohio through a regional zoning board to protect the United States in event of damages caused by misadventure by the Air Force.

The constitutional restriction on appropriation presupposes that the property or the interest therein is needed for public use. It provides that it shall not be taken for such use without compensation. Hariston v. Danville & W. R. Co., 208 U. S. 598, 52 L. Ed. 637.

The police power of the state cannot be used to justify a disregard for the constitutional protection of private property. As observed by Justice McReynolds in Panhandle Eastern Pipe Line Company v. State Highway Commission, 69 L. Ed. 1090,

“We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”

If the Army installed an artillery range, bnt only purchased the firing and target areas, and then sought to restrict the use of the land in between as being hazardous for the people living there, in case shells fell short, there would be no doubt that this would be an unconstitutional taking of the land. Similarly, if a county erected a court house in a growing section of the community that was zoned for commercial purposes, but was not fully utilized, and to protect the beauty of the site attempted to limit the number using the area, this would be illegal.

In the instant case, the only beneficiary and the object of the zoning attempt by the local regional board, pursuant to a state statute, is the United States of America. The attempt by state and local authorities goes too far. It must be recognized for what it is: a partial taking for public use for which compensation must be made under the Constitution. Any taking, even if the majority of the use and interest is left to the landowner, is a taking of private property to that extent.

The state of fundamental law may be unfortunate for those who wish to promote WPAFB and similar projects, but if expediency or the protection of public investment becomes the basis of deciding constitutional questions or individual rights, the Constitution has ceased to operate.

The Constitution gives limited rights to the government. It reserves the other rights to the people. Its purpose is to protect the people against the government itself. The manner and mode by which the state and federal governments may take property is expressly restricted.

As for the restrictions themselves, the less said about the original regulations the better, as no standards were established. Patently unconstitutional provisions were included. This is practically conceded by defendants.

The proposed regulations eliminate some of these unconstitutional provisions. However, regulations as to ground lighting are ineffective, as no standards are set. They give a broad power to the board to eliminate anything that the board might now or in the future consider a hazard to aviation. This could be a farm light, the lights of a shopping center, or even a house light. Regulations as to height of certain rights and restrictions as to duplication of the colors used by the markers of the air base may be proper if uniform standards are provided by legislation, much the same as the standards for the lighting and control of automobile traffic.

The land use regulations, if they were constitutional, show the same unreasonable pattern. After the air approach zones are set up, geometric transition zones are established. Zones 5, 7 and 9 are transitional zones to the north; Zones 6, 8 and 10 are to the south. The future land use to the south is not severely restricted. The use to the north is. Again no standards are set to guide the Appeals Board. It is left purely to the whim or discretion of the zoning appeal board as it considers each case. The regulations do not set up an office where permits may be obtained. An attempt was made to use inspectors hired by other subdivisions; however, such persons never became employees of the board.

The retention of WPAFB at its present location, with the investment of over a billion dollars, is a benefit shared by the community, by the state and by the nation. These benefits are shared by all citizens and to a greater degree are shared by the industries and employees related to the project. This is the reason why its welfare is within the police power of the United States and why land in the area is subject to appropriation. Such noble purposes do not create a different benefit to owners of land in the area such as could possibly justify taking any part of their bundle of legal rights without compensation for the enjoyment of other citizens who contribute nothing and lose nothing to gain such objectives.

As applied to zoning, public welfare and public safety do not include hazards created by strangers to the regulated area even if that third party be the United States of America and even though the action taken is in the interest of national defense. The cost of such hazards and the cost of national defense must be shared equally by the people of the United States. They cannot be imposed upon one community.

The United States of America is not without a remedy. If one examines the history of dams, one finds that some agencies appropriated high water easements. This simply means that at floodtide water to a certain height could remain on the owner’s land, and that at all other times the owner was free to use it. Similarly, air rights have been appropriated for elevated travel. Such easements were bought and paid for. Land may also be acquired and re-sold subject to restrictions. The proposed restrictions on land use can all be imposed by the exercise of eminent domain. This does not mean a purchase of the land; only taking an easement for the necessary use.

The attempt in this case by local authorities to do indirectly, through zoning, what only the United States can do directly recognizes a failure familiar to the aviation industry and its planners. More than anyone else, they have known flight requirements many years before their operation. The industry develops aircraft and knows the land and air requirements. Years are devoted to this type of development; however, no consideration is given to the planning, development and acquisition of land and, more particularly, to air rights essential for the operation of the new air craft. There are alternatives, both legal and constitutional, that would match the necessity for land and air rights to the requirements of flight. There is a legal and constitutional way of acquiring air rights or of imposing restrictions on land use.

This decision is restricted by the facts to the WPAFB Zoning Regulations.

The WPAFB Zoning Regulations are confiscatory, unreasonable, unconstitutional and void.

Judgment accordingly.

Kessler and McBride, JJ., concur,  