320 N.E.2d 685 | Ohio Ct. App. | 1974
These are companion cases. Because parties are interwoven and the issues in both cases are identical, we shall treat them as one case for the purpose of this opinion. Hereafter, the Hausmann Johnson, Dibenedetto/Visconsi group, who were jointly involved as plaintiffs *433 in the proceedings below, will be called the "appellees"1, and the City of Berea and its officials, who were defendants in the court below and appellants in this court, will be called collectively the "appellants". Case No. 32590 was appealed to the Court of Common Pleas after running the course of administrative procedure in the City of Berea, including an appeal to the Board of Zoning and Building Code Appeals, resulting in the denial of a permit application sought for the construction of a McDonald's restaurant. The second case, No. 32591, reached Common Pleas Court by way of a complaint for declaratory judgment and equitable relief. The appellees were successful in the court below. The court ordered the issuance of a building permit in accordance with the appellees' application and found for them in the declaratory judgment action.
In the trial court in Case No. 902,329 the parties stipulated an "Agreed Statement of Facts." This stipulation together with the pleadings and attachments provided the record for the Common Pleas Court's review of the appeal from the Board of Zoning and Building Code Appeals. An identical stipulation of facts, the pleadings and attachments were the basis for the court's decision on the complaint for declaratory judgment in Case No. 902,330.
The two cases are now before this court to review the *434 trial court's actions on the administrative appeal and on the motion for declaratory judgment.2
Assignment of Error No. 1:
"The Court in Finding for the Plaintiff on the Declaratory Judgment Action Based on the Stipulation of Facts, Erred Said Ruling by the Court Being Contrary to Law [sic]."
Assignment of Error No. 2:
"The Court Erred as a Matter of Law in Reversing the Decision of the Building Commissioner et al and Ordering Permit to be Issued."
Behind these assignments of error lies one issue, and that is, whether a rezoning ordinance can be limited constitutionally by an agreement providing that any petition for a rezoning must be accompanied by the petitioner's consent to the proposition that if the property is not used within twelve months in the manner the rezoning allows, it immediately reverts to its former more restrictive use category. The source of the claimed reversionary "agreement" *435 in the present case is another ordinance3 in force for more than twenty years before the4 rezoning now in issue took place (see Agreed Statement of Facts).
"Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."
and from the statutes, Pritz v. Messer, id. 637. Statutory implementation of zoning authority in non-charter cities is delineated in Ohio Revised Code, Sections
Berea, Ohio, is a charter city. Its charter does set the procedures for enacting zoning ordinances (Berea Charter, Section X) and the council has legislated extensive zoning, including the reversionary ordinance (see footnote 3,supra)7 so crucial in this case. Because the parties make no point of the lack of a specific agreement nor raise any issue about a council minute recording one, as the reversionary ordinance requires, we pass this point and treat the ordinance as though it effected an agreement and reach the more vital issue in the case, i. e., whether such agreements are valid.
The appellants contend that the reversionary clause in Ordinance No. 627, Section XXV, is a matter of substantive law well within the constitutional zoning power of municipal corporations. They purport to find one instructive analogy in the concept of the "conditional permit variance" and another in the variance with conditions.9 Appellee rejects these arguments contending that conditional rezoning authorizes automatic repeal of the rezoning ordinance and reenactment of the status quo ante in disregard of procedure required by law.
In some cases it is said that a reversionary contract between a city and landowners involves an abuse of zoning power rendering the contract ultra vires, illegal, and void and all proceedings to enforce it are coram non judice. This conclusion rests on the theory that a contract controlling the exercise of municipal legislative power is against public policy. Contracts "have no place in a zoning plan" and agreements "between a municipal authority and a property owner" should not be a factor either "in the enactment or enforcement of zoning regulations",Houston Petroleum Co. v. Automotive Product C. Assn. (S. Ct., New Jersey, 1952),
Authorities which reach identical conclusions are not always uniform in their reasons for holding invalid a rezoning conditioned upon the property owner fulfilling an agreement between the municipality and him.14 A variety of explanations are conveniently catalogued in Cederberg v. Cityof Rockford (Ill.App., 1972, rehearing denied 1973),
". . . While no single basis for the rule against such zoning practices emerges from the cases cited, among the courts' reasons are that by entering into agreement with the property owner, the zoning authority might use the zoning power to further private interests in violation of public policy; that such rezoning is a deviation from a basic zoning plan resulting in nonuniform application of the zoning law and inconsistencies within a zoning classification; that when the actual zoning requirements in force are determined by reference to evidence extrinsic to the zoning ordinances, the zoning law is rendered vague."
Granting that the legislative decision of a governing authority has a presumption of validity, the reasons listed are persuasive ones for overcoming the presumption and finding the restrictions and reversion which the appellants attempted to enforce in this case invalid. Accordingly, we affirm the judgment of the trial court.
The parties here have made no point of either the presence or absence of a specific reversionary agreement between Appellant Berea and the appellees. We do not assay the legal consequences, if any, of the absence of such a contract. We have assumed a reversionary agreement was effected here by operation of law. Our disposition embraces the broad proposition that reversionary agreements attempting to condition zoning by contract, however derived, are invalid.
Judgment affirmed.
CORRIGAN and MANOS, JJ., concur.
This case does not involve "unconditional" zoning accompanied by, but ostensibly not involving, a side contract with conditions for improvements to be made by the property owner.
"Sections