
    City of Englewood v. Bornhorst et al.
    [Cite as Englewood v. Bornhorst (1973), 37 Ohio Misc. 37.]
    (No. 72-644
    Decided October 3, 1973.)
    Common Pleas Court of Montgomery County.
    
      Mr. William D. Dorfmeier, for plaintiff.
    
      Mr. Charles W. Slicer, for defendant Stumps Enterprises, Inc.
    
      Mr. Hugh E. Wall, for defendants H. B. Bornhorst and Patricia Bornhorst.
   McBride, J.

In this case, the defendants are building a substantial addition to the existing property on their lot. Since the filing was made over a year ago, it is assumed that the construction is completed. The complaint states that this addition will permit more business on the premises and will increase traffic flow; that others on the street have increased their buildings resulting in more traffic and such others have dedicated or agreed to deed without compensation portions of their property for the widening of the street and related services, when, as, and if the public improvements become possible, in the opinion of the city.

Relying upon a local building regulation, the municipality seeks an order requiring the defendants to donate or agree to contribute in the future sufficient land for the desired improvements when construction is carried out. In the alternative, plaintiff prays that the defendants be enjoined from using their land and the newly constructed buildings. It is not alleged, but it is apparent that a permit was issued contrary to the dedication requirements of the city ordinance. Were this not the situation, this action would have been presented as one in mandamus for a building permit.

We recognize as a fact, if not from the road map attached to the pleading, that South Main Street is state Route 48 leading to Dayton and it is joined for a distance with the former National Road, old Route 40, that was replaced by Interstate 70. The suburban area serviced by these roads has grown considerably in all directions except to the east. The conservancy lands and the Englewood Dam on the east channel the north-south and east-west traffic on the two state routes onto Route 48 for some distance. Despite the decrease in interstate traffic, the volume of travel has increased for reasons which cannot be attributed to new construction in one city block.

The municipal ordinance in question is set forth in the complaint. Briefly, it requires persons who desire to plat areas, to subdivide real estate or to build additions on land already subdivided (as here) to deed and to improve land for streets or a portion of such streets. The ordinance defines subdividing land as the construction of a second building, other than a garage or outbuilding, on land previously subdivided, intending thereby to impose on all parcels and all owners regardless of rights or benefits the same burdens required of those who develop plats and subdivisions which create new streets and new access ways. Defining subdividing land as construction is like calling an apple an orange, a fiction which pervades the application of the ordinance for the purpose intended in this case.

The right to require streets to be created and dedicated in a new plat where land is subdivided is not questioned. What is questioned is the right to demand land and public improvements from a single owner for widening an existing and busy street in an old section of town as a condition to permitting any new construction other than a garage or outbuilding, whatever the latter may be.

Even if this be the law, no street would be widened under this selective process until the last and final owner in the block found it necessary to construct something more than a garage or outbuilding. The point made by the defendant is that freezing construction unless private land is given up is an unreasonable burden upon an individual owner. It does not guarantee that a widening will be carried out unless some property is finally taken by the lawful process of appropriation. This is a scheme to acquire as much public land as possible for public use without compensation. It cannot operate uniformly as all adjoining owners may never commence such construction.

The problem is one of some complexity as is demonstrated where there is vacant land about to be subdivided and platted. Assume a plat requires a thirty foot right of way to service an area. The municipality demands fifty feet for a thoroughfare plan. Then the state announces that this road is to be a state route and it demands one hundred feet. If this road be changed into an interstate highway of several hundred feet, could each separate increase or take from the owner be accomplished under the guise of a plat or a building regulation! The absurdity of the argument points out that the benefit intended and sought by the authorities in this case is one for which the public and not the individual owner should pay.

Platting and the dedication essential to creating new streets are well established. An owner who creates parcels requiring access must provide reasonable aecess for the area and resulting use or dedication, as well as lawful conditions attached to a subdivision of land. An owner who subdivides his land into parcels for sale receives a direct benefit not shared by others. However, this is not present in this case. No second parcel was created and no benefit could be received that was not shared by the public.

The allegations indicate that the requirement for a plat and the defining of a subdivision as something other than a subdivision serves no purpose other than as a vehicle by which to appropriate land without compensation.

It is too apparent to require citations that neither statutes nor ordinances escape the prohibitions of the fundamental law of the land.

Precedents on acquisition of use of private property by master thoroughfare and other regulatory plans are not fully developed. Many avenues and circumstances are constantly suggested. Each must be explored and tested by constitutional standards.

There is a reasonable and lawful distinction between the legitimate objective of a specific welfare regulation and legislation which, in effect, goes one step beyond normal public welfare by exercising exclusive public management and control. Both operate, as indeed they must, in the interest of the public. The specific objective of the first illustration guarantees private rights to be exercised and controlled by private owners under public supervision. The second example eliminates private rights and denies private control. The first is a lawful regulation; the second is a prohibition, not a regulation, and constitutes a confiscation or an appropriation of private property for public use.

The development of roadways is typical of the right to travel that crystalized over the years into a necessity for absolute public use and public control of vehicles on highways to the exclusion of private or other uses. Many roads developed by adverse possession as a necessity and their boundaries are located with difficulty. After sufficient public use private ownership was lost, but the fact that some land was lost does not insure further individual sacrifice, if and when it becomes necessary in the public interest to acquire more land to widen the road. Appropriation is the lawful and constitutional method for such an acquisition for public use.

There has been debate in recent years over the existence of a public right or balance of public rights over private rights. It has been argued that the increased use of vehicles justifies an arbitrary right by public authorities to grab or otherwise acquire private rights for public use without compensation if such a condition is imposed upon some regulatory power other than appropriation. The demands for public conveniences are aided and abetted by planners who by one regulation or another, directly or indirectly, seek to acquire without compensation whatever private property rights they decide the public needs.

This is apparent in the instant case in which the city of Englewood filed an affidavit asserting its inability to finance acquisition and construction of a street widening program. It states that the city is unable to finance the twenty-five percent it is required to contribute to pay for the widening of a state route through the municipality. What its ability or inability to finance construction has to do with taking another’s property, for which it says it cannot pay, is a mystery. Poverty does not justify private or public larceny or extortion. It is apparent that what is intended by the city is not only a grab of private property for public use but also the imposition upon existing private lot owners of a portion of the city’s share of the cost of improving state Route 48.

No, one questions the right of authorized sovereign-ties to appropriate. No one questions the decision of such authorities for the necessity of appropriating for highway improvements. And no one questions the constitutional right of private owners to just compensation for what is taken from them for public improvements.

The question posed by the demand in the ordinance that existing lot owners give a portion of their land without compensation may arise under many varied circumstances; however, this is the first attempt to assess the cost of public construction for widening a state route upon individual lot owners,

This court previously held in 1970, in the unreported case of Makarius v. City of Kettering, No. 133288, that:

1. A municipal ordinance which requires a small, single parcel of land that is not being divided to be platted and a portion dedicated to the public without compensation for a master thoroughfare plan before a building permit will be issued is unconstitutional.

2. The use of planning, platting and building permits for the purpose of taking a strip of private land for public use without compensation is a confiscation.

The case was not appealed. No attempt was made to assess the cost of the improvement of the public thoroughfare upon the adjoining lot owners.

In another case, a request for a zoning change was applied as pressure by public officials to grab land for a thoroughfare plan.

In the unreported case of State v. Valiquette, No. 2550, the Court of Appeals for Montgomery County decided that land for an additional right of way, required under a county official thoroughfare plan, cannot be required to be dedicated as a condition to the approval of a zoning change. The court of appeals gave several reasons including, among others, the constitutions of the United States and the state of Ohio. This is the better and the judicial way of saying that any form of extortion is intolerable.

In other words, neither zoning nor planning can be used indirectly to deprive an owner of any part of his property without just compensation. In State, ex rel. Mumma, v. Stansberry, 5 Ohio App. 2d 191 and State, ex rel. Dille Laboratories Corp., v. Woditsch, 106 Ohio App. 541, urban renewal was the vehicle used and this included the widening of an existing street. Mandamus was granted to obtain building permits.

It is important to note that there is a difference between zoning and planning, and the general and ancient subject of platting. A plat is a map which divides a single tract of land into two or more separate parcels. The land in question in the instant case was not and still is not divided into separate parcels.

There is a distinction between a large developer, who establishes new streets or a shopping center complex, and an owner who merely enlarges his building or opens access for a second house. As between the two — both of whom must create a use or an opening for access — may a municipality impose an additional requirement that the owner provide for free a portion of his land and the cost of improvements to enlarge an existing thoroughfare to meet an otherwise urgent public need? The benefits differ substantially, the latter example having no relationship to the insignificant use of a single opening for one additional residence or building. Or, what is the position of an owner of a corner tract where his use of a single parcel is destroyed or seriously damaged by a thoroughfare plan that takes land from two sides of his property?

Laws and regulations may be entirely proper and constitutional in themselves, but arbitrary, unreasonable, and unconstitutional in part, or in their application in individual situations. The latter is precisely what the court finds here.

In the Makarius case, supra, the court had occasion to examine decisions from other states, which we do not find in the briefs. The variety of results and the variety of circumstances alleged are striking and would only prolong this decision.

It is sufficient to point out that platting, zoning, traffic thoroughfare plans, building permits and urban renewal have specific and well defined purposes. These special purpose regulations cannot be enlarged into an assessment or an appropriation by artful definitions. A regulation cannot be used as a tool to destroy or to take from an owner that which is his so that it may be used by all. Each regulation must be fairly designed and executed to meet its special purpose and uniformly applied according to clear standards that operate equally under the law.

The ordinance is construed to require not only a conveyance of land, but also to impose the cost of the public improvements as a condition for a building permit. The land must be conveyed or agreed to be conveyed for future use whether or not it is used or ever required for a public purpose. Acquisitions for future use are not permitted by way of appropriation. Acquisitions for possible future use are full of risks of obsolescence before commencement of a project. Here, for instance, traffic in four directions is channeled into one two lane road for a distance south of town. This may change if an alternate way is found or a westerly by-pass is devised.

The plaintiff’s reply brief concedes the wisdom of constitutional restrictions, but argues that present constitutional provisions are not adequate for “a world rapidly moving to the twenty-first century. ” The city contends that existing law on platting should be “extended” to require the gift or dedication of land by owners of existing lots where such owners separately improve their property for business purposes. The city would apply this erosion of personal rights where, in its judgment, a sufficient number of contiguous owners had exercised their right to improve their property. Applying this desired extension of law and violation of the constitution to built up urban areas, the front portions of buildings could be required to be demolished and the cleared land improved and presented to the city with no compensation to the owner. As this court suggested in the Makarius ease, this is extortion. The world may well be “rapidly moving” into another century, but it may not be worth staying aboard if individual rights are so flagrantly ignored and property rights so carelessly abandoned.

The problems presented by pressure for public improvements to widen streets in existing neighborhoods as well as by public authorities to grab land for public purposes each time an owner elects to enjoy or improve his property has been a nagging issue that is surfacing reluctantly in the courts. These decisions will ultimately reach a court of last resort and the serious and expensive consequences to society of this form of land grabbing will be resolved with more finality than can be attributed to this decision.

The motion to dismiss is sustained at plaintiff’s costs. The request that the defendants give land to the city or in the alternative that the defendant be enjoined from the use of their land is denied.

Motion to dismiss granted.  