
    No. 652
    BEHM v. WOLFERT et al
    No. 18557.
    Supreme Court
    ON MOTION TO CERTIFY
    Lucas Appeals.
    Docketed May 5, 1924
    2 Abs. 339
    801. MUNICIPAL LAW — Toledo Zoning ordinance.
    Attorneys — Hackett & Lynch, for Behm; D. J. O’Rourke and Lawton & Saalfield and Den-man, Wilson, Kirkbride & McCake, for Wol-fert et al; all of Toledo.
   This case comes before the Supreme Court upon a petition in error. Behm brought an action for a permanent injunction preventing the defendants from completing the cons-truc-tino of a building in Toledo claimed to be in violation of the Interim Zoning Ordinance. The defendant’s answer denied certain allegations of the petition, and setting u-p 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in which he alleged that in 1923 a zoning ordinance was enacted in lieu of the riginal interim ordinance which was repealed. The defendants demurred to this supplementol 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The Interim Zoning Ordinance was adopted in 1922 and was repealed October 8, 1923.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 geeral zoning ordinance of the city of Toledo 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 by the defendants.

In refusing1 to grant the relief prayed for, the Court of Appeals held that, as the- zoning ordinance was unreasonable as applied to the facts of this case, it will not be enforced as against the defendants, and, as the petition and stipulation in the case only recites that plointiff “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. The plaintiff prosecuted error to the Supreme Court. The principal questions for the Supreme Court's decision are:

1. Is the zoning ordinance of the city of Toledo of September 10, 1922, constitutional and valid ?

2. Is the Zoning Ordinance unreasonable as applied to the facts of this case?

3. Can a party who occupies adjacent property maintain an action for an infraction of a zoning ordinance without alleging that he is an adjacent property owner?  