161 N.E.2d 498 | Ohio Ct. App. | 1958
This is an appeal on questions of law from a judgment of the Common Pleas Court by plaintiffs from the action of the defendant Board of Trustees of Adams Township, Lucas County, Ohio, rezoning a forty-acre tract of land from suburban residential to general commercial, such court finding the action of such board to be reasonable and lawful and no error apparent on the record in said pleadings [sic] and no decision prejudicial to the appellants, denying the appeal and affirming the aforesaid action of said board.
Although not disclosed in the record, it is conceded that Adams Township previously adopted a comprehensive zoning ordinance pursuant to the provisions of Chapter 519 of the Revised Code. It is to be noted that the record upon the appeal to the Common Pleas Court comprises a number of miscellaneous papers from the files of the defendant board, the township zoning commission and the Lucas County Planning Commission, but fails to include a certified transcript of all the proceedings before the board and the adoption of the resolution from which the appeal is taken. Neither party to the appeal in the Common Pleas Court or in this court has raised any objection with regard to this deficiency in the record and no application for diminution of the record was made in the Common Pleas Court. *301
From the papers filed upon the appeal it appears that on June 7, 1957, the owner of record of the tract in question made application to the Adams Township Zoning Commission for a change in classification from R-A Suburban Residential to C-2 General Commercial in order to provide a shopping center thereon. Apparently notice of a public hearing to be held by the zoning commission on July 29, 1957, was given by such commission. At this hearing it was voted to continue the matter for a further hearing on August 12, 1957. On August 9, 1957, the Lucas County Planning Commission transmitted to the zoning commission its recommendation approving the change of zoning, accompanied by the minutes of the proceedings before the planning commission and sketches showing the proposed plat with additional requirements established by such planning commission. On August 13, 1957, the zoning commission notified the applicant that at its meeting held on August 12, 1957, the request for change of zoning had been disapproved and that the action of the zoning commission would be referred to the board of trustees for a like hearing on the proposal. Notice of a public hearing by the board of trustees to be held on September 17, 1957, was published.
From the minutes of this public hearing held September 17th it appears that "after more long discussions for and against the shopping center the trustees decided to take this matter under consideration and announce their decision at a later date." Thereafter, on October 1, 1957, without further hearing, the board of trustees unanimously voted to override the recommendation of the zoning commission and grant the change subject to certain stipulations and conditions similar to those imposed by the planning commission.
Upon the appeal to the Common Pleas Court, nine assignments of error on the part of the defendant were made, to which reference will be made later on in this opinion. Eight assignments of error on the part of the Common Pleas Court are presented upon this appeal. The first four assignments upon the appeal to this court relate to the refusal of the Common Pleas Court to hear and determine the appeal under the provisions of Chapter 2506 of the Revised Code.
Chapter 2506 was enacted without the saving clause (Section *302
The contention of the appellants is not without some support. In Wheeling Lake Erie Rd. Co. v. Toledo Ry. Terminal Co.,
On the other hand, in Cincinnati, Hamilton Dayton Rd. Co.
v. Hedges,
"It is true that Section 79, Revised Statutes [Section 26, General Code, Section
And in the later case of State, ex rel., v. Ach, supra
(
"Where a legislative enactment materially changes the procedure required to be followed by any governmental agency by requiring certain steps to be taken which were not theretofore necessary, such legislation amounts to an amendment of the laws theretofore existing, and is therefore subject to the rule of interpretation provided by Section 26 of the General Code."
In Buckeye Churn Co. v. Abbott,
"`Constitutions as well as statutes are construed to operate prospectively only, unless, on the face of the instrument or enactment, the contrary intention is manifest beyond reasonable question.'" (Citing numerous authorities.)2
The application for change of zoning was initially filed on June 7, 1957, and came before the trustees for official action on August 9, 1957. It was therefore a pending proceeding upon the effective dates of the enactment of Chapter 2506 and the 1957 amendment to Section
In the Common Pleas Court, appellants assigned as error the failure of the zoning commission to notify property owners in the area by certified [sic] mail prior to its hearing. Although such provision is found in the third paragraph of the 1957 amendment of Section
Error is assigned also to the failure of the board to take testimony and to make and file conclusions of fact supporting its order and decision, and that its decision was unreasonable and arbitrary in that it was not supported by any competent or substantial evidence received by such board.
Paragraph six of Section
That the board is engaged in a legislative function is further evidenced by the provision for a referendum election.
The term, "public hearing," to be held by a legislative body connotes the opportunity for interested persons to appear and express their views pro and con regarding proposed legislative action. Although a legislative body may take testimony, in the absence of statutory requirement, it is not obliged to do so. Occasionally a finding of necessity for a proposed enactment is provided in a preamble or in the body of the legislation itself, *307
but there is ordinarily no requirement for incorporating conclusions of fact in such legislation or making same prior to its adoption. No provisions requiring the trustees to take testimony or make conclusions of fact are to be found in Section
Under the last paragraph of Section
Except for the failure to state in the published notice of the public hearing the place and time at which the text and maps of the zoning resolution might be examined as provided *308
by Section
Under Section
Courts have consistently refused to interfere with the sound discretion of those upon whom rests the responsibility of fixing boundaries of zones unless the exercise of this function indicates a wholly capricious, arbitrary, and unreasonable action, entirely foreign to any consideration involving the safety, health, morals or welfare of the public. Central TrustCo. v. City of Cincinnati,
The Supreme Court has held that in reviewing the validity of zoning ordinances, courts do not pass upon the wisdom of such ordinances, but may only determine whether such an ordinance has a reasonable relationship to the preservation of public health, safety and morals. State, ex rel. Jack, v. Russell, Bldg.Commr.,
It is observed that cases holding particular zoning regulations unreasonable arise in actions for injunction, mandamus or declaratory judgments, in the trial of which evidence is received tending to disclose the invalidity of such regulations, in contrast with the statutory appeal in the instant case wherein the facts (except as may be disclosed by the proceedings of the zoning and planning commissions) underlying the action taken, unfortunately for the appellants, are not presented in the record for review.8
The contention of the appellants that they purchased their several properties contiguous to the area rezoned with the expectation that such area would remain residential does not afford a basis for declaring the amendment unconstitutional, unless such ordinance is found to be unreasonable and discriminatory and without relation to the public health, safety, morals or general welfare. Curtiss v. City of Cleveland,supra, sustaining a change from "retail business" to "multi-family" use, exempting pre-existing conforming uses. *311
The fact that the zoning commission disapproved the application on the ground that there was no need for more commercial zoning and that its members did not consider the request to be in the best interest of the community may be considered by the court upon the review, but such action is not binding upon the township trustees. Cf. Johnson v. Griffiths,supra (74 Ohio Law Abs., 482). The statute itself provides that the trustees may deny or modify the recommendation of the zoning commission by a unanimous vote. Likewise, upon review, the court may consider the fact that the trustees had before them for consideration the recommendation of the planning commission approving the zoning change.
We therefore conclude that upon the record presented for review in the Common Pleas Court, appellants failed to show that the defendant board failed to comply with the law in adopting the zoning amendment or that such amendment is unreasonable or unlawful.
With regard to the assignments of error upon the appeal to this court, Nos. 1 to 3 relate to the refusal of the Common Pleas Court to hear the appeal pursuant to Chapter 2506. No. 4 relates to the refusal of the court to apply the provisions of Section
Without further adding to this voluminous opinion, we find and conclude that the assignments of error presented upon this appeal are not well made and are overruled.
The judgment of the Common Pleas Court is affirmed and the cause is remanded thereto for execution for costs.
Judgment affirmed.
DEEDS, P. J., and SMITH, J., concur.
"Amendments or supplements to the zoning resolution may be initiated by the passage of a resolution therefor by the board of township trustees or by the filing of an application therefor by one or more of the owners or lessees of property within the area proposed to be changed or affected by the proposed amendment or supplement with the township zoning commission. The board of township trustees shall upon the passage of such resolution certify it to the township zoning commission.
"Upon the certification of such resolution or the filing of such application the township zoning commission shall set a date for a public hearing thereon, which date shall not be less than thirty-five days from the date of the certification of such resolution or the date of the filing of such application. Notice of such hearing shall be given by the township zoning commission by one publication in one or more newspapers of general circulation in the township at least thirty days before the date of such hearing.
"Within ten days after the certification of such resolution or the filing of such application the township zoning commission shall transmit a copy thereof together with text and map pertaining thereto to the county or regional planning commission, if there is such a commission.
"The county or regional planning commission shall recommend the approval or denial of the proposed amendment or supplement or the approval of some modification thereof and shall, within twenty-five days after the receipt of such resolution or application, submit such recommendation to the township zoning commission. Such recommendation shall be considered at the public hearing held by the township zoning commission on such proposed amendment or supplement.
"The township zoning commission shall, after such hearing, recommend the approval or denial of the proposed amendment or supplement, or the approval of some modification thereof and submit such recommendation together with such application or resolution, the text and map pertaining thereto and the recommendation of the county or regional planning commission thereon to the board of township trustees.
"The board of township trustees shall, upon receipt of such recommendation, set a time for a public hearing on such proposed amendment or supplement, which date shall not be less than thirty days from the date of the receipt of such recommendation from the township zoning commission. Notice of such public hearing shall be given by the board by one publication in one or more newspapers of general circulation in the township, at least thirty days before the date of such hearing. Within twenty days after such public hearing the board shall either adopt or deny the proposed amendment or supplement or adopt some modification thereof. In the event the board denies or modifies the recommendation of the township zoning commission the unanimous vote of the board shall be required.
"Such amendment or supplement adopted by the board shall become effective in thirty days after the date of such adoption unless within thirty days after the adoption of the amendment or supplement there is presented to the board of township trustees a petition, signed by a number of qualified voters residing in the unincorporated area of the township or part thereof included in the zoning plan and affected by the amendment or supplement equal to not less than eight percent of the total vote cast for all candidates for governor in such area at the last preceding general election at which a governor was elected, requesting the board of county commissioners to submit the amendment or supplement to the electors of such area for approval or rejection at the next primary or general election.
"No amendment or supplement for which such referendum vote has been requested shall be put into effect unless a majority of the vote cast on the issue is in favor of the amendment. Upon certification by the board of elections that the amendment has been approved by the voters it shall take immediate effect.
"Any person adversely affected by an order of the board of township trustees adopting, amending, or rescinding a regulation may appeal to the Court of Common Pleas of the county in which such township is located on the ground that such board of township trustees failed to comply with the law in adopting, amending, rescinding, publishing, or distributing such regulation, or that the regulation as adopted or amended by the board of township trustees is unreasonable or unlawful, or that the revision of the regulation was unreasonable or unlawful."
In State, ex rel. Anshe Chesed Congregation, v.Bruggemeier,
For cases holding zoning regulations unreasonable or unlawful, see City of Youngstown v. Kahn Bros. Bldg. Co.,