
    Blackburn et al. v. Norman Estates, Inc., et al.
    (No. 130615
    Decided November 24, 1967.)
    
      Common Pleas Court of Montgomery County.
    
      Messrs. CooUdge, Wall & Wood, for plaintiffs.
    
      Messrs. Young, Pryor, Lynn, Strickland & Falke, for defendants.
   Biíenton, J.

Plaintiffs are owners and occupiers of single family residences located adjacent to or within two city blocks of the proposed construction of a multi-family apartment complex by the defendant, Norman Estates, Inc., in the city of Miamisburg, Ohio.

Plaintiffs, by virtue of Section 713.13, Revised Code, seek to enjoin said defendant from proceeding wdth such construction on the sole ground that Miamisburg Zoning Ordinance 1503 is invalid for vagueness and indefiniteness, having abandoned all other grounds set forth in their amended petition.

Plaintiffs predicate their argument on the proposition that the notice of the public hearing on Ordinance 1503 was wanting in information sufficient to apprise an ordinary layman of the effects of the proposed legislation.

Before this court may grant the relief sought by the plaintiffs it must be affirmatively shown that:

1. Plaintiffs will he especially damaged by violation of Miamisburg Ordinance 1482.
2. That Miamisburg Ordinance 1503 is invalid and of no force and effect.

Ordinance 1503 did not become effective unless it was enacted under the procedure outlined in Section 713.12, Revised Code.

The requisites for compliance are:

1. Notice of a public hearing given in a newspaper of general circulation in Miamisburg relative to the proposed adoption of Ordinance 1503, prior to its adoption.
2. Hold a public hearing on said proposed ordinance after thirty days notice of the time and place of a hearing.
3. During such thirty days the text or copy of the text of the ordinance, together with the maps or plans or copies thereof forming part of or referred to in such ordi-nanee and the maps, plans and reports submitted by the planning commission, board or officers shall be on file, for public examination, in the office designated.

Plaintiffs ’ Exhibit A is prima facie indicative of compliance with requisite number 1.

It apparently has been conceded by counsel that there was compliance with requisite number 2.

As to requisite number 3, the record is silent as to any evidence thereon. Plaintiffs’ brief alludes to non-compliance, however, all such allusions are based on assumptions of fact not in the record.

The court must therefore conclude that the legislative authority complied with requisite number 3 until the contrary is affirmatively shown.

Notice and opportunity for hearing to interested parties is a prerequisite to validity of an ordinance amending Miamisburg Zoning Regulations. Thereby the question as put in issue by the plaintiffs is presented.

Embarking upon a course of following the path presented and .guidelines prescribed by the plaintiffs would be tantamount to construing Ordinance 1503 invalid on its face. This is so because the notice given contained a verbatim copy of the ordinance. This court will not judicially declare the legislation null and void on the ground that English composition employed by the drafters is so uncertain and indefinite as not to indicate the matters or things to which it relates or the purpose to be served.

The city of Miamisburg derives its authority from Chapter 713, Revised Code, with respect to enacting zoning legislation. Section 713.12, Revised Code, provides for notice and hearing which reads in part as follows:

“Before an ordinance, measure, regulation or amendments thereto, authorized by Sections 713.09 and 711.11, inclusive, Revised Code, may be passed the legislative authority of the municipal corporation shall hold a public hearing thereon, and shall give at least thirty days notice of the time and place thereof in a newspaper of general circulation in the municipal corporation.”

No form of the notice is specified. It is significant to note that the legislature in enacting the enabling legislation for municipal zoning did not require that the published notice set forth a summary of the proposed amendment as is found under the provisions for county rural zoning, Section S03.12, Revised Code. It would appear then that the legislature intended to require only the publication of a notice which reasonably apprises the public of the essence of the amendment to be adopted.

It undoubtedly is a universal rule of law that a statutory notice is not binding unless given as the law directs or allows.

Notice has a variety of meanings. It may mean to one person “To pay attention to or become aware of,” to another “announcement; information; warning,” and to another “to notify by written or printed communication publicly displayed.”

It has been said that actual notice exists when knowledge is actually brought home to the party to be affected by it. And this is exactly why the plaintiffs are now complaining, that is, because the published notice did not specify the name of the builders and the location of the land to be affected. No such narrow interpretation of actual notice must be given to the statutory requirement in question. Such would be tantamount to personal service of notice.

This court divides actual knowledge into two classes, express and implied; the former includes all knowledge of a degree above that which depends upon collateral inference, or which imposes upon the party the further duty of inquiry; the latter imputes knowledge to the party because he is shown to be conscious of having the means of knowledge, though he does not use them, choosing to remain ignorant of the fact, or is negligent in not following up the inquiry which the known facts suggest.

Exhibit A, which is the published notice in question is entitled “Notice of Public Hearing on Proposed Zoning Regulations.” Following the formal announcement the Ordinance to amend Ordinance 1482, which is now Ordinance 1503, is set forth verbatim. Contained therein is reference to Resolution number 1098, Exhibit C, reference to the recommendation of the amendment by the Planning Board, reference that various builders have executed the contract contained in Resolution 1098, Exhibit C, and further reference that certain plats, subdivisions and/or sections thereof were to be exempted from the rules, restrictions and regulations of Ordinance 1482. It is also noted that Resolution 1098, Exhibit C, was published in the same newspaper on June 14 and 21, 1967, that contained the publication of the aforesaid notice.

Any member of the public entitled to notice, reading the same, must of necessity believe it to be true. Accordingly information which a prudent man believes to be true, and which, if followed by inquiry, must lead to knowledge, is equivalent to knowledge.

This court holds that the plaintiffs, together with all the citizens of the City of Miamisburg, had knowledge because upon the record made an inquiry at the office of the Auditor of the city of Miamisburg and an examination of the filings with the proposed ordinance would have disclosed any and all affectations.

Therefore the published notice was in accordance with law.

The court is also of the opinion that the proof offered on the proposition of the especial damage to the plaintiffs was insufficient to meet the test required by Section 713.13, Revised Code, and as expressed in the case of McVey v. Reichley, 105 Ohio App. 319.

For the reasons herein expressed the injunctive relief prayed for by the plaintiffs is denied.

Counsel for defendant, Norman Estates, Inc., shall prepare and submit the appropriate judgment entry.  