Summary
In Cassell, we expressed concern over leaving the administration of zoning to the "unwarranted whim or caprice" of enforcement officials.
Summary of this case from Apple Grp., Ltd. v. Granger Twp. Bd. of Zoning AppealsOpinion
No. 34032
Decided May 18, 1955.
Township zoning — Authority of board of township trustees — Regulations to be in accordance with comprehensive plan — Not in accordance with such plan, when — Refusal to issue building permit arbitrary and unreasonable, when — Reasons for refusal not specified in regulations.
1. Section 3180-26, General Code (Section 519.02, Revised Code), which authorizes a board of trustees of any township to zone areas within such township, requires that such zoning regulations be in accordance with a comprehensive plan.
2. A township zoning regulation, which provides merely that a section of a township, one square mile in area, shall be zoned for farming, residential, commercial and recreational uses, and which does not specify therein which portions of said section may be used for any or all of such purposes or is not accompanied by a map designating such use areas, is not adopted in accordance with a comprehensive plan.
3. The refusal by a zoning commission or a board of zoning appeals to issue a building permit because of the cost and nature of a proposed dwelling, inadequate lot size and depressing of property values is arbitrary and unreasonable, where the zoning resolutions under which the commission or board purports to act do not specify any regulation as to such items.
APPEAL from the Court of Appeals for Stark County.
Plaintiff, appellant herein, is the owner of five lots in the Lilly Place Allotment in Lexington Township, Stark County, Ohio, located in the southwest quarter of section 35 in said township. Appellant requested the building inspector of Lexington Township to issue to him five permits to erect residential homes to cost $10,000 to $11,000 each and to be located on Cornell Drive in said township. A hearing was had before the Lexington Township Zoning Commission on July 13, 1953, and on the following day said commission refused to issue the requested permits.
An appeal was taken to the Lexington Township Board of Zoning Appeals, appellee herein, which also refused to issue the building permits. Upon being ordered to so do by the Court of Common Pleas of Stark County, appellee made the following findings of fact and conclusions of law:
"Findings of fact:
"1. The area in which application for permits to build were filed, is one of the finer residential areas adjacent to the city of Alliance and is occupied predominantly with homes in the $15,000 to $40,000 class, said homes for the most part being located on premises with frontages of 70 feet and upward.
"2. The area proposed to be used for the five dwellings for which permits were requested, being only 250 ft. frontage, is too small for five residence dwellings, based upon the character of locality and the average size of residential lots already improved.
"3. The residence for which permits were requested are small five-room prefabricated dwellings without busement, which, as to size, design, finish and overall value are much lower in grade that the residences now occupying the area.
"4. In the opinion of this board, the building of the houses proposed under the application for permits by William K. Cassell would tend to materially decrease or depress property values in the immediate surrounding residential areas.
"Conclusions of law:
"Section 3180-26 of the General Code of Ohio provides that township areas may be zoned for the `purpose of promoting public health, safety, morals, comfort or general welfare; to preserve and protect property and property values; to secure the most appropriate use of land * * *.'
"The zoning board of appeals was of the opinion that upon the basis of the declared purpose of zoning laws as contained in the Ohio statute set forth above, it is their proper function to deny or refuse permits in instances when it is felt that the property proposed to be built does not match the character of the improvements in the area in which the building is to be done and would have the effect of depressing property values on existing improvements."
An appeal was taken by appellant from the order of appellee to the Court of Common Pleas of Stark County, which dismissed the appeal.
Appellant perfected an appeal to the Court of Appeals for Stark County, which modified the judgment of the Court of Common Pleas, "so as to affirm the judgment of the Board of Zoning Appeals instead of dismissing the appeal * * * and the judgment of said board is hereby affirmed."
The cause is now before this court upon the allowance of appellant's motion to certify the record.
Mr. Arthur M. Frutkin and Mr. Ian Bruce Hart, for appellant.
Mr. John Rossetti, prosecuting attorney, Mr. John F. Gwin and Mr. William H. Allen, for appellee.
The facts in this case are not complicated and the legal question involved may be easily stated: Does the zoning regulation adopted by the Board of Township Trustees of Lexington Township comply with the legislative authority found in Section 3180-26, General Code (Section 519.02, Revised Code)? At the time of the adoption of the zoning regulation by the township trustees the enabling statute, Section 3180-26, General Code, effective September 25, 1947, read as follows:
"For the purpose of promoting public health, safety, morals, comfort or general welfare; to conserve and protect property and property values; to secure the most appropriate use of land; or to facilitate adequate but economical provision of public improvements, all in accordance with a comprehensive plan, the board of trustees of any township is hereby empowered to regulate by resolution the location, height, bulk, number of stories and size of buildings and other structures, including tents, cabins and trailer coaches, percentages of lot areas which may be occupied, set back building lines, sizes of yards, courts and other open spaces, the density of population, the uses of buildings and other structures including tents, cabins and trailer coaches and the uses of land for trade, industry, residence, recreation or other purposes in the inincorporated territory of such township and for said purposes may divide all or any part of the unincorporated territory of the township into districts or zones of such number, shape and area as said township trustees may determine. All such regulations shall be uniform for each class or kind of building or other structure or use throughout any district or zone but the regulations in one district or zone may differ from those in other districts or zones." (Emphasis added.)
The zoning regulation in question, so far as pertinent hereto, reads as follows:
"Lexington Township shall be divided into 36 sections. Zone numbers shall correspond to section numbers on the official map. Incorporated areas in the city of Alliance and the village of Limaville, shall not be included in the zoning regulations of Lexington Township.
"* * *
"Section 35. Zoning shall include all unincorporated area of this section. Farming, residential, commercial, recreational."
The zoning regulation then sets forth four resolutions apparently adopted by the board of trustees.
Resolution I sets forth, as follows, the purposes sought to be accomplished by zoning:
"First — To work for raising the sanitary standards and improve housing to meet fair minimum requirements as are necessary to health, safety, and welfare of our township in an effort to increase the valuation of our properties and reduce our fire insurance rates which are unnecessarily high.
"Second — To accomplish this with the full co-operation of each and every citizen of this township.
"Final results being a better place to live, better homes, better health and a township that we can be proud of."
Resolution II provides for the submission to and filing with the township zoning commission and the township trustees plans for any structure involving housing, commerce, manufacturing, storage, trailers, etc., or any construction to be used as a permanent structure. The resolution then provides for the issuance of permits "with the approval of the Lexington Township Zoning Commission and the Lexington township trustees."
Resolutions III and IV relate to the wrecking and dismantling of motor vehicles and the dumping and burning of rubbish, neither of which are involved herein.
It is obvious from this zoning regulation that the only portion thereof concerning section 35, which covers one square mile of area, is that it shall be used for farming, residential, commercial and recreational purposes. No designation is made in the regulation as to what portions of section 35 shall be used for each or any of those uses, and the record fails to reveal any map of the section designating such areas of use.
It is difficult to see how anyone interested in purchasing property in section 35 for a particular use could determine in advance to what use that property could be put. And, in the absence of any designation in the plan of the uses to which a particular area could be put, it is equally difficult for this court to see how there could be any uniform administration of the regulation within the section as required by Section 3180-26, General Code. Although we make no imputation of such action in this instance, a zoning regulation such as that involved herein could easily leave the administration thereof solely within the unwarranted whim or caprice of the officials charged with its enforcement.
All zoning laws and regulations find their justification in the police power and it is well settled that the power to enact zoning regulations can not be exercised in an arbitrary or unreasonable manner. City of Youngstown v. Kahn Bros. Building Co., 112 Ohio St. 654, 148 N.E. 842, 43 A.L.R., 662, and State, ex rel. Synod of Ohio, v. Joseph et al., Village Comm., 139 Ohio St. 229, 39 N.E.2d 515, 138 A.L.R., 1274.
The absence of any comprehensive plan in the regulation involved herein certainly opens the door to an arbitrary and unreasonable administration of the regulation.
The reasons given by the appellee for denying the requested permits are based on the cost of other homes in the area and on the fact that the lots on which the houses are proposed to be built are too small, that the houses would be prefabricated dwellings and that they would tend to decrease or depress property values in the immediate surrounding areas. Yet the regulation which purports to zone this area makes no provision for lot sizes, setback building lines, sizes of yards, courts and other open spaces or any other of the items permitted to be regulated by Section 3180-26, General Code.
There being no yardstick in the regulation by which the zoning commission could possibly be guided, we can come to no conclusion other than that the commission in this instance acted arbitrarily and unreasonably in refusing to issue the permits.
A motion was made herein by appellee to strike from the record submitted herein exhibits numbered one through four, for the reason that the courts below had not considered these exhibits because they had not been properly admitted into evidence. The record, however, reveals that on August 13, 1953, there was filed in the Common Pleas Court of Stark County a transcript of board records containing the exhibits now sought to be stricken. The transcript of docket and journal entries and the journal entry of the Court of Appeals both reveal that these exhibits were considered by that court. Appellee's motion is, therefore, overruled.
For the reasons above stated, the judgment of the Court of Appeals is reversed, and final judgment is rendered for the appellant.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, STEWART and TAFT, JJ., concur.
HART, J., not participating.