
    The Ottawa Hills Co. v. Village of Ottawa Hills.
    (Decided June 22, 1931.)
    
      Messrs. Marshall, Melhorn, Marlar & Martin, for plaintiff.
    
      Mr. H. T. Towe, village solicitor, Messrs. Doyle & Lewis and Mr. Harold W, Fraser, for defendant.
   Williams, J.

This case is in this court on appeal, and the relief sought is an injunction against the enforcement of a zoning ordinance in Ottawa Hills as to certain property of plaintiff, the Ottawa Hills Company. The court below granted the relief prayed for by the plaintiff, and perpetually enjoined the Village of Ottawa Hills, its officers, agents and employees, from prohibiting or attempting to prohibit the improvement, development and use of a certain piece of real estate owned by plaintiff, commonly known as Tea House point, in the village of Ottawa Hills, by enforcing, or attempting to enforce, the zoning ordinance, or otherwise, except by the power of eminent- domain.

The briefs, testimony and exhibits contain many hundreds of pages, and it is therefore impracticable to attempt to undertake to narrate all the facts involved. We shall merely endeavor to give such facts and state such reasons as will make our position plain.

Ottawa Hills is a village in Lucas county, adjacent and contiguous to the city of Toledo, with a population of about 1200, and constitutes one of the finest residence sections to be found in Toledo and vicinity. In 1913 John N. Willys induced the E. H. Close Company to purchase a large tract of land for a private estate, and as a result about 1,200 acres were acquired. Afterwards it was decided to subdivide the tract, or part of it at least, and put the lots upon the market, and about one-third of this original tract constitutes the village of Ottawa Hills. The Ottawa Hills Company was organized to develop the Ottawa Hills subdivision, acquired the property, sold many of the lots, and still owns those that are unsold. In the Toledo Sunday Times of .August 1, 1915, appeared a large advertisement which shows a proposed civic center at and immediately adjacent to Tea House point, with proposed entrance to Ottawa Hills. The printed matter therein indicated that Ottawa Hills would have a business community of its own, to be known as a civic center, and that located there would be stores, garages, fire department, water tower, public hall, schools, churches, and other community conveniences. The cut showing the proposed entrance and civic center does not disclose any .business houses on Tea House point, but does disclose thereon an imposing building with tower, apparently a public hall. As property was reserved for business purposes across from Tea House point on both Indian road and Bancroft street, it- is assumed that it was the original intention to place business houses there, and buildings appropriate for such purpose are depicted on Indian road opposite Tea House point.

Two or three years ago, or perhaps a little more, plans were changed and the property originally intended for business purposes opposite Tea House point on both Indian road and Bancroft street was allotted and sold as high-class residence property, so that at the time of the bringing of this injunction suit in the court of common pleas all of the portion of Ottawa Hills surrounding Tea House point had been sold and fine residences had been erected. Tea House point is a triangular piece of property located at the intersection of Bancroft street and Indian road, with Secor road running practically at right angles to Bancroft street just beyond, so that the three streets form five points. Most of the people residing in Ottawa Hills do business in Toledo, and it is estimated that at least 75 per cent, of the traffic from Ottawa Hills to Toledo, and vice versa, passes through the entrance in front of Tea House point. All of the property so platted is what may be called highly restricted, and the dwelling houses constructed thereon are expensive in character.

When the land reserved for business property on Bancroft street opposite Tea House point was allotted and sold, two of the properties were, acquired by Harry Wilds, one in 1919 and the other in 1920, and at the time of purchase it was represented to him by Mr. E. IT. Close, president of the' Ottawa Hills Company, that the original plan of putting up business buildings had been abandoned, and that no commercial business would be placed on Tea House point, but that it might be used for a town hall or something of that character. Had the purchasers of lots on Bancroft street and Indian road, immediately adjacent to Tea House point, known that it was to be used for business purposes, it would have been extremely difficult to have sold those lots for high-class, highly restricted residence property.

In 1924 the village passed an ordinance declaring all land within the village should be. used for residence purposes. This ordinance remained in force until July 20, 1926, when it was repealed and an ordinance enacted which provided that all property in the village should be used for residential purposes except Tea House point, and providing that Tea House point could be used for business buildings. This ordinance remained in force until it was repealed in August, 1928, about two months before the passage of the zoning ordinance. April 14,1928, an advertisement was published in the Toledo Blade by the Reuben Realty Company, which became the sales agent of the Ottawa Hills Company. This advertisement was headed “Permanence. What happened to X Street will never happen to Ottawa Hills,” and above it appeared a beantifnl residence section, unmarred by business blocks, with an inset which shows a fine residence property with a business block of some kind on one side and a grocery and gasoline station on the other. Apparently the inset is X street, and the illustration proper Ottawa Hills. In reason it is inferable that many persons bought lots and built magnificent and expensive homes in the immediate vicinity of Tea House point with the expectation that it would never be used for business purposes.

There is located on Tea House point an old residence building, with wings added thereto, which from about 1920 until December, 1924, was used as a tea house, where special dinners and meals were served at noon and in the evening for special parties. Its use in this respect was encouraged to attract prospective real estate buyers to this section in order to sell lots to them. From the fall of 1925 up to the fall of 1930, this tea house was used as a village school, and during a large part of the time since that date it has been used for worship by the Hope Lutheran Church.

It is thus apparent that many who bought home sites in Ottawa Hills were led to believe that Tea House point would not be used as a site for business blocks.

October 2,1928, the village council of Ottawa Hills passed the zoning ordinance in question. This zoning ordinance is comprehensive in character, covering the whole village and dividing it into three districts, a residence district, a multiple dwelling district, and a commercial district. Among other provisions, it contains the following:

“In the Residence District no bnilding or premises shall be used and no building shall be hereafter erected or structurally altered, unless otherwise provided in this ordinance, except one or two of the following uses:
“1. Private Dwellings.
“2. Public Park, Playgrounds, Libraries, Community Centers, owned and operated by the municipality.
“3. Churches.
“4. Public or Private Schools.
“5. Accessory buildings, including one private garage when located not less than sixty (60) feet from the front lot line, nor less than fifteen (15) feet from any other street line or a private garage constructed as a part of a main building. A residence is an accessory building only if located in rear of the main building already erected and only for persons employed on the premises and their immediate families.
“6. Real estate signs aggregating not over five (5) square feet in area advertising only the sale, rental or lease of the building or premises on which they are maintained, or bulletin boards for churches. No bill-board or advertising sign of any other character shall be permitted in any residence district.”

The property involved in this action, Tea House point, is zoned as residence property, and is surrounded by property zoned in the same way. The plaintiff proposes to run a street across Tea House point from Bancroft street to Indian road and some distance from the point of entrance to Ottawa Hills, and to construct beautiful buildings of Old English style fronting upon the new street so constructed, with storerooms upon the ground floor. These proposed buildings are exceedingly sightly and beautiful, as shown by plans and designs offered in evidence. There are to be no entrances on Bancroft street nor on Indian road, and the yards behind are inclosed with walls artistic in outward appearance.

At a public hearing conducted prior to the enactment of the zoning ordinance, Mr. Paul Harsch, who is prominently identified with the management of the Ottawa Hills Company, and heavily interested therein financially, made the statement that he was not certain that Tea House point should be given over to business purposes.

The zoning ordinance as passed does not prevent the continued use of.the buildings on Tea House point for the business purposes to the extent they have heretofore been used, nor does it prevent the use of the buildings for school or church purposes. Under the rule laid down in State, ex rel. City Ice & Fuel Co., v. Stegner, Dir. of Bldgs., 120 Ohio St., 418, 166 N. E., 226, 64 A. L. R., 916, a zoning ordinance, in so far as it prevents the erection of the new proposed buildings, is a valid exercise of police power, where it does not appear that restrictions preventing the erection of such buildings have no real or substantial relation to public health, safety, morals or general welfare.

Testimony was offered through experts to the effect that the construction of these business buildings would have a direct bearing upon the public health and safety. In our judgment, the inference may be drawn from the evidence adduced that the construction of business blocks on Tea House point has a real and substantial relation to the public health, safety and general welfare.

We find that the zoning ordinance is comprehensive, is a valid exercise of the police power, and is not unconstitutional in so far as it prevents the erection of buildings designed for business purposes on Tea House point.

The petition will therefore be dismissed.

Petition dismissed.

Lloyd and Richards, JJ., concur.  