Cahn v. Guion, Bldg. Commr. , 27 Ohio App. 141 ( 1927 )

I am unable to agree with the majority of the court for the following reasons:

It appears that the plaintiff is the holder of five permits to erect buildings on Lake avenue and Clifton boulevard, in the city of Cleveland. One of those permits was issued to him on November 19, 1926, three on December 9, 1926, and the other on the 23d of December, 1926. There is a clear showing in the record that, in reliance upon these permits, the plaintiff had arranged his finances, had executed mortgages and entered into contracts, and was about to begin the construction of his buildings, commencing January 2, 1927. On the 30th day of December, 1926, the defendant wrote five letters to the plaintiff, in which he revoked these permits, giving as his sole reason for so doing the provisions of Ordinance No. 76158, which is the so-called "stop-gap" ordinance, which is set forth in full in defendant's answer. If the stop-gap ordinance has not as yet become effective, because suspended by the filing of referendum petitions, then it follows that it furnishes no excuse to the defendant for the intended revocation of the plaintiff's permits.

In the case of State ex rel. v. Dauben, Bldg. Inspector,99 Ohio St. 406, 124 N.E. 232, the first paragraph of the syllabus is:

"Statutes or ordinances of a penal nature, or which restrain the exercise of any trade or occupation or the conduct of any lawful business, or which impose restrictions upon the use, management, control or alienation of private property, will be strictly construed and their scope cannot be extended to include limitations not therein clearly prescribed; exemptions from such restrictive provisions are for like reasons liberally construed."

The defendant claims that the so-called "stop-gap" ordinance became effective on December 26, 1926. Of course, that cannot be held to be a correct statement, because the operation of the ordinance was undoubtedly suspended by the filing of a referendum petition, but, conceding that the statement is correct, it still appears that the ordinance did not become effective until three days after the issuance of the last permit issued to the plaintiff. The stop-gap ordinance does not contain any provision authorizing the defendant to revoke permits previously granted. A stop-gap ordinance, if valid, must be construed to have a prospective effect, but never a retroactive effect. It cannot affect permits already issued under the old ordinance.

Ample authority is cited on the point that a municipal building permit or license cannot arbitrarily be revoked, particularly where, on the faith of it, the owner has incurred material expense. Dainese v. Cooke, 91 U.S. 580, 23 L. Ed., 251; Dobbins v. Los Angeles, 195 U.S. 223, 25 S. Ct., 18, 49 L. Ed., 169;Pratt v. City of Denver, 72 Colo. 51, 209 P. 508; Williams v.Smith, 76 Colo. 151, 230 P. 395; Rehmann v. City of Des Moines,200 Iowa 286, 204 N.W. 267; Gallagher v. Flury, 99 Md. 181,57 A. 672; City of Lowell v. Archambault, 189 Mass. 70,75 N.E. 65, 1 L.R.A. (N.S.), 458; General Baking Co. v. Street Comrs. ofBoston, 242 Mass. 194, 136 N.E. 245; City of Buffalo v.Chadeayne, 134 N.Y. 163, 31 N.E. 443.

Where, after the defendant had obtained a permit for a garage and broken ground therefor, the city amended its zoning ordinance, leaving it apparently to some extent to the judgment of the neighboring property owners to say whether or not a garage should be built, it was held that the subsequent amendment could not affect the defendant's right to erect a building. Wasilewski v. Biedrzycki, 180 Wis. 633, 192 N.W. 989.

The defendant relies on the case of State ex rel. Ohio HairProducts Co. v. Rendigs, Bldg. Comr., 98 Ohio St. 251, 120 N.E. 836. In my opinion, the Hair Productscase can easily be differentiated from the case at bar, because in that case the council of the city of Youngstown directed the building commissioner to revoke the permits for the reason that the buildings proposed to be erected by the plaintiff constituted a nuisance per se. No such claim is made in the case at bar.

Were we to find that the answer of the defendant presents a defense and that the statement assigned in his letter for the revocation of the permits, namely, the adoption of the stop-gap zoning ordinance, constitutes a basis in fact, and were we to hold the stop-gap ordinance was in effect and operation and is applicable to the determination of the question presented in this case, I am constrained to hold that the stop-gap ordinance is not a valid exercise of the police power, for the reason that it is unreasonable and arbitrary in its operation. The evidence presented clearly shows the great confusion which would result from its operation. It is not a scientific structure, but may be denominated the "hit or miss ordinance."

There is no doubt that municipalities are empowered to pass zoning ordinances, but such power is limited by these essential principles, namely:

(a) That the ordinance must not be arbitrary and unreasonable.

(b) That it must be uniform in its operation.

The right to acquire, own, and enjoy property carries with it the right to use it for proper purposes. As to what is a proper purpose, there can be no question. If the use does not injuriously affect individuals or the public at large, it is considered a proper purpose. The attempt of a municipality under the guise of legislation to interfere with such use, when such interference is not necessary for the public good, is a usurpation of the police power. This so-called "stop-gap" ordinance seeks to delegate to the Board of Appeals legislative authority. Under its provisions the erection of a building forbidden by the stop-gap ordinance may, by order of the Board of Appeals, be held proper to be erected. There is no certainty in the ordinance itself. After dividing the city into zoning districts and prescribing the use of the territory in each district, it still makes it possible to appeal from the refusal of the building inspector to issue a permit to erect a certain building forbidden by the stop-gap ordinance, and it empowers the Board of Appeals, without reference to the ordinance and its provisions, to permit or to refuse to permit the erection of a forbidden building. This, to my mind, presents a serious defect in the ordinance. Even if this ordinance were held to be a proper and legitimate exercise of the police power, which I emphatically dispute, it destroyed its own validity by enabling the so-called Board of Appeals to undo the provisions of the ordinance itself. Penal laws must be definite and certain, and not conditional or made to depend upon contingencies. The ordinance must be so drawn as to enable a member of the public, by reading its provisions, to determine what is proper under the ordinance, and what would constitute a violation of its provisions. If this ordinance were finally held valid, an anomalous situation would result: One person erecting a building in violation of the provisions of the ordinance would be held subject to arrest, conviction, and punishment. Another person erecting a building in violation of the provisions of the ordinance would be considered within his legal rights, notwithstanding the violation of the ordinance, because the Board of Appeals decrees that he may do so notwithstanding the ordinance. What would be considered a crime on the part of one person would be regarded as entirely legal and proper on the part of another person, merely because a board has so decreed. In my opinion, penal ordinances cannot be so framed.

For the reasons above stated, I dissent from the opinion of the majority of the court, and hold to the view that the plaintiff is entitled to the relief prayed for.