
    The State, ex rel. The Clifton Highland Co., et al., v. City of Lakewood et al.
    (Decided April 27, 1931.)
    
      Messrs. Hawley £ Gilson, Mr. M. W. Viclcery and Mr. J. W. McCarron, for plaintiffs.
    
      Mr. R. G. Curren, for defendants.
   Lemert, J.

This is an action for a writ of mandamus to require the building commissioner of the city of Lakewood to issue to the relators a permit for the construction of a business structure at the southwest corner of Clifton boulevard and Highland avenue in the city of Lakewood.

The city of Lakewood is a municipal corporation with a city charter, which was amended November 5,1929. The law in Ohio relating to giving authority to zoning ordinances, such as we have in the instant case, is governed by Sections 4366-1 to 4366-12, General Code, authorizing the adoption by municipal councils of zoning ordinances. Section 4366-10 of the General Code reads as follows: ‘ Whenever any such planning commission, board or officer certifies to such council or other legislative body any such plan for the districting or zoning of the municipality according to the bulk and location of buildings and other structures (including percentage of lot occupancy, set back building lines, and area of yards, courts and other open spaces), then such council or other legislative body may, in the interest of the promotion of the public health, safety, convenience, comfort, prosperity or general welfare, regulate the bulk and location of buildings and other structures thereafter erected or altered, the percentage of lot occupancy, set back building lines and the area of yards, courts and other open spaces and for said purposes may divide the municipality into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this section. Any such regulation imposing a less percentage of lot occupancy, wider or larger courts, deeper yards or other more strict limitations than those provided by state statute shall within the district for which it is imposed, prevail over the said limitations provided by state statute.”

Section 4366-11 is as follows: “The districting or zoning of any municipality or part thereof may be based upon any combination of two or more of the purposes described in the foregoing three sections. In the determination and establishment of districts as above provided, buildings and other structures may be classified on tbe basis of the nature or character of trade, industry, profession or other activity conducted or to be conducted therein, the number of persons, families or other group units to reside in or use them, the public,, quasi-public or private nature of the use thereof, or upon any other basis or bases relevant to the promotion of the public safety, health, morals, convenience, prosperity or welfare. The council or other legislative body may, from time to time, amend or change the number, shape, area or regulations of or within any district or districts; but no such amendment or change shall become effective unless the ordinance proposing such amendment or change shall first be submitted to the planning commission, board or officer for approval, disapproval or suggestions and the planning commission, board or officer shall have been allowed a reasonable time, not less than thirty days, for consideration and report. The council or other legislative body may create an administrative board to administer the details of the application of the regulations and may delegate to such board, in accordance with general rules and regulations to be set forth in the districting ordinances and regulations, the power to hear and determine appeals from refusal of building permits by building commissioners or other officers, to permit exceptions to and variations from the district regulations in the classes of cases or situations specified in the regulations and to administer the regulations as specified therein; or these administrative powers and functions may be delegated by the council or other legislative body to the planning commission or board. Before any ordinance, measure or regulation authorized by this and the three foregoing sections may be passed, the council or other legislative body shall hold a public hearing thereon, and shall give thirty days’ notice of the time and place thereof in a newspaper of general circulation in the municipality; and during said thirty days the text or copy of the text of such ordinance, measure or regulation, together with the maps or plans or copies thereof forming part of or referred to in said ordinance, measure or regulation and the maps, plans, and reports submitted by the planning commission, board or officer shall be on file, for public examination, in the office of the clerk of the council or other legislative body or in such other office as may be designated by the council or other legislative body. No such ordinance, measure or regulation which violates, differs from or departs from the plan or report submitted by the planning commission, board or officer shall take effect unless passed or approved by not less than three-fourths of the full membership of the council or other legislative body.”

This eause is submitted to us upon an agreed stipulation of facts supplemented by additional oral testimony, the arguments of counsel and voluminous briefs. The agreed statement of facts is quite lengthy and will not 'be incorporated in full herein, but only so much of the same as may be necessary for a proper solution of the question presented to us. Among the stipulations made and facts agreed upon we quote the following:

“Section 24 of the Zoning Ordinance provided for a method of amending the Ordinance by action of Council and specifically provided that whenever the owners having fifty (50%) percent, of the land in any area shall present a petition for amended regulations prescribed for such area, that it became the duty of the Council to vote on the amendment within ninety (90) days.
“That on or about the 5th day of November, 1929, there was adopted by the City of Lakewood amendments to the charter of Lakewood, providing amongst other things in Article 16 thereof for a planning commission, giving to the planning commission the authority to recommend to Council changing or modifying the Zoning Ordinance. This planning commission, by the amendments to the charter, being substituted for the city platting commissioner, previously existing under the old ordinance, a copy of which amendments is attached hereto marked ‘Relators’ Exhibit B.’
. “4. On the 29th day of November, 1929, there was filed by the owners of this property, and also by the owners of all the property situated within the block within which the property described in the petition is situated, a petition with the Council of the City of Lakewood, as provided for in the Zoning Ordinance, requesting a change in classification in the property described in Relators’ Petition under the Zoning Ordinance from the apartment and dwelling house classification to the classification of stores, shops and offices to be-used for business purposes. Said petition was referred by that council to the Planning Commission provided for under the amendments to the Lakewood charter, as shown in ‘Relators’ Exhibit B’ attached hereto. The City Planning Commission thereupon on the 17th day of February, 1930, reported to the council adversely to said change and the council thereupon by vote refused said application.
“5. That B. R. Kimberly is the building commissioner. of the City of Lakewood. On the 26th day of February, 1931, an application was made by The Clifton Highland Company, on its behalf and on behalf of the other Relators, to the building commissioner of Lakewood for a permit to build a storeroom and office building on the property described in Relators’ petition, according to the plans and specifications attached hereto and marked ‘Relators’ Exhibits C and C-l,’ a copy of which application and certification thereof by the building commissioner is attached hereto marked ‘Relators’ Exhibit C-2’; that the plans and specifications so submitted to said building commissioner complied with all the building ordinances and requirements of the City of Lakewood other than Zoning Ordinance No. 1786, and that the said The Clifton Highland Company at the time of the formation of their plans and specifications and their application for a permit, signified their desire and willingness to comply with all the provisions of the building code and ordinance of the City of Lakewood, other than the Zoning Ordinance No. 1786; that on the 26th day of February, 1931, the application of The Clifton Highland Company was refused by the building commissioner of the City of Lakewood; said refusal being in the form of a letter which is hereto attached and marked ‘Relators’ Exhibit D.’ That immediately upon said refusal The Clifton Highland Company signified its intention to appeal to the Board of Zoning Appeals, letter hereto attached and marked ‘Relators’ Exhibit D-1.’ On March 6th, 1931, a letter from the Secretary of the Board of Zoning Appeals was received and is marked here as ‘Relators’ Exhibit D-2.’ The Board of Zoning Appeals took action on the appeal on April 16, 1931, refusing the same, the letter indicating their action being attached hereto marked ‘Relators’ Exhibit D-3.’ ”

The act authorizing such municipal zoning ordinance, or what might be termed the zoning enabling act, hereinbefore cited, was adopted by the Legislature and leaves no doubt as to the intention of the Legislature as to authority to be conferred upon municipalities to enact such legislation. We note that one of the first cases to be given attention by the courts of this state was the case State, ex rel. Morris, v. Osborn, City Manager, 22 N. P. (N. S.), 549. This was an effort to compel the building commissioner to issue a permit for the erection of an apartment house in a district from which apartment houses were excluded by the East Cleveland comprehensive zoning ordinance. The court refused the writ against the inspector of buildings, and discussed at some length the question of zoning ordinances and the police power to enact such ordinances.

Keeping in mind the agreed statement of facts submitted to us, we note a very helpful case, Pritz v. Messer, 112 Ohio St., 628, 149 N. E., 30, which had to do with a zoning ordinance of the city of Cincinnati. A building permit had been issued for the construction of an apartment house in violation of the provisions of the Cincinnati zoning ordinance relating to the height, dimensions, area and bulk of the buildings within the residence district. The plaintiff in that action being an adjoining owner prayed for a restraining order, and predicated her right thereto upon the Cincinnati zoning ordinance; the question being raised in that case, perhaps for the first time, whether Ohio municipal authorities may definitely divide and zone a city — 'planning its development and regulating area, bulk, height and use of buildings differently in different districts. The Supreme Court in this case squarely met the issue presented, and held in the syllabus as follows: “Laws enacted in the proper exercise of the police power, which are reasonably necessary for the preservation of the public health, safety and morals, even though they result in the impairment of the full use of property by the owner thereof, do not constitute a ‘taking of private property’ within the meaning of the constitutional requirements as to making compensation for the taking of property for public use and as to the deprivation of property without due process of law. ’ ’

They further held that an ordinance enacted by a municipality under Article XVIII, Section 3, of the Ohio Constitution, and under Sections 4366-1 to 4366-12, General Code of Ohio, dividing the whole territory of the municipality into districts according to a comprehensive plan, which in the interest of public health, safety and morals regulates the uses for trade, industry, residence or other specific uses, the height, bulk or location of buildings and other structures thereafter to be erected or altered, including the percentage of occupancy, setback building lines and the area of yards, courts and other spaces, and for such purpose divides the city into zones or districts of such number, shape and area as are suited to carry out such purposes, and provides a method of administration therefor, and prescribes penalties for the violation of such provisions, is a valid and constitutional enactment.

The provision of a zoning ordinance limiting the subsequent addition, extension or substitution of business buildings, or the use thereof, existing in a residential district at the time of the enactment of such ordinance, where it does not appear that such restrictions have no real or substantial relation to the public health, safety, morals or general welfare, is a valid exercise of the police power and is not violative of either the state or federal Constitution. Stale, ex rel. City Ice & Fuel Co., v. Stegner, Dir. of Bldgs., 120 Ohio St., 418, 166 N. E., 226, 64 A. L. R., 916.

Another very helpful case is to be found in 37 F. (2d), 336, (C. C. A.), this being the case of Koch v. City of Toledo, wherein it was held that a zoning ordinance creating residential district and excluding apartment houses therefrom was not, in view of facts that construction of’ apartment houses would impair value of residential property and render it less desirable, arbitrary and unreasonable, in violation of the Fourteenth Amendment of the United States Constitution and of Article I, Section 19, of the Constitution of Ohio-.

The agreed statement of facts submitted to us shows that the premises described in the petition are now used for apartment house purposes; and that other property on Clifton boulevard in the city of Lakewood is restricted by zoning ordinance to use for apartment house purposes; also that certain property in the same vicinity in Lakewood is used for business purposes, and part of this use existed prior to the adoption of the zoning ordinance and has continued ever since.

Highland avenue-West 117th street is the dividing line between the city of Lakewood and the city of Cleveland. The city of Lakewood has no jurisdiction over the property of the city of Cleveland on this street. The property thereon is covered by the zoning ordinance adopted by the city of Cleveland in 1929. The zoning ordinance for the city of Lakewood applies to property within the city of Lakewood.

If business buildings are to be ..permitted on the premises described in the petition, it then becomes a question as to what portion of Clifton boulevard shall be classified for business and retail store purposes.

From the authorities submitted to us by way of brief, and from the examination of additional authorities, we are convinced that the introduction of business places in a residential district changes the character of the use of the real estate in such a way as to affect the public health, safety and general welfare.

The relators in the prayer of their petition ask that the said zoning ordinance, in so far as it prohibits the use of the premises of these relators for the erection and construction of said proposed building, or any other building conforming to the requirements of the building regulations and code of said city, containing business stores and business shops and offices for the transaction of business, as hereinbefore set forth, may be declared unconstitutional and void; and that a writ of mandamus issue against respondents requiring them to issue to these relators a building permit for the erection of said proposed building containing stores, shops and offices to be used for business purposes.

This being an action in mandamus the facts submitted and proof produced must be plain, clear and convincing before a court is justified in using the strong arm of the law by way of granting a writ in mandamus. We believe from a thorough and complete examination of this case that the Lakewood zoning ordinance covering the property described in the petition is a reasonable regulation within the police power of the municipality.

It therefore follows that a decree will be rendered for the defendants, with costs of suit adjudged against plaintiffs.

Decree for defendants.

Sherick, P. J., and Montgomery, J., concur.

Judges of the Fifth Appellate District, sitting by designation in the Eighth Appellate District.  