Willott v. Beachwood Village ( 1963 )

This appeal comes to this court on questions of law from a judgment entered for the defendants in the Court of Common Pleas of Cuyahoga County after trial of the issues to the court. The action is one seeking "injunction, declaratory judgment, attorney fees and equitable relief."

The principal relief which the plaintiffs seek is a declaratory judgment holding that an amendment to the zoning ordinance of the village of Beachwood passed by the village council effective June 6, 1960, whereby the zoning restrictions on a single tract of eighty acres situated between the eastbound roadway of Shaker Boulevard and South Woodland Road and running from the east side of Richmond Road to the easterly border of the village were changed from U-1 (wide lot single-family residence district) to U-4B (for shopping center purposes) was void and of no legal effect.

The development of Shaker Heights and the municipalities to the east of Shaker Heights, beginning at Shaker Square and extending east for the most part between Fairmount Boulevard on the north and South Woodland Road on the south (and in some places to the north and south of these two east and west-bound principal highways) to the Chagrin River valley, was a real estate development of the Van Sweringen Company. It was and is the largest residential real estate development in the community. The record discloses that the developers, in planning this very extensive real estate project, attempted, by restrictive covenants and other contractual agreements with purchasers, to protect purchasers of lots and homeowners from any use of the property sold for residence purposes from uses other than residential and for uses within the class of residence property as originally planned by the Van Sweringen Company. The evidence shows that the property along Shaker Boulevard and South Woodland Road is in the approximate middle of this high class, large-lot residential development, and that in support of the restrictions of record, the municipal corporations, Shaker Heights, Beachwood, Pepper Pike and Hunting Valley, by the enactment of zoning ordinances, gave complete support to the restrictive covenants imposed by the Van Sweringen Company. As the property now stands, there have been no deviations from the large-lot, single-residence uses, as originally planned by the developer, from Shaker Square to Chagrin River, some six or seven miles, with one or two exceptions. These exceptions are primarily due to existing nonconforming uses on Warrensville Center Road near South Woodland Road, existing over the intervening forty years or more from the beginning of this development. The Shaker Heights zoning ordinance, which was first passed about December 6, 1927, was revised on a number of occasions up to and including April 1, 1949, as shown by plaintiffs' exhibit 22, and the zoning restrictions, with the exceptions of the nonconforming uses, some two-family houses on Warrensville Center Road near South Woodland Road, and changes at the intersection of Fairmount Road and Warrensville and Fairmount and Green Roads at the northerly limits of the city of Shaker Heights, have not been altered in any way during this long period of time. Some of the witnesses described this part of the Van Sweringen development, and that to the east of the city of Shaker Heights, as the highest type and most desirable single-family residence community in the county.

The extension of this first class, large-lot, single-residence district, through the village of Beachwood, with like deed restrictions, received protection for the designated restrictive uses of such property by a zoning ordinance passed by the village council of Beachwood June 9, 1925. This ordinance, in part, provides:

"Whereas, the village of Beachwood is a residential suburb of the city of Cleveland, having no steam railroad and no industrial centers; and

"Whereas, the territory adjoining the village has to a very large extent either been zoned or restricted in such manner as to make such territory largely residential, and

"Whereas the territory of Beachwood is undeveloped and its best and most valuable use is for residential purposes; and

"Whereas it is the desire of the citizens of the village and the council thereof to preserve the character of the village as a residential district; * * *."

This ordinance further provided:

"Section 21: Interpretation. Purpose. (Ordinance No. 70 — Passed 6/9/25)

"In interpreting and applying the provisions of this ordinance, they shall be held to be the minimum requirements adopted for the promotion of public health, safety, comfort, convenience and general welfare. The lot or yard area required by this ordinance for a particular building shall not be diminished and shall not be included as part of the required yard or lot area of any other building. This ordinance shall not repeal, abrogate, or annul, or in any way impair or interfere with any existing provisions of law or ordinances, or any rules or regulations previously adopted or which shall be adopted pursuant to law relating to the use of buildings or premises; nor shall this ordinance interfere with or abrogate or annul any easements, covenants, or other agreements between parties; provided, however, that where this ordinance imposes a greater restriction upon the use of buildings or premises or requires larger yards than are imposed or required by such existing provisions of law or ordinance, or by such rules or regulations or by such easements, covenants or agreements, the provisions of this ordinance shall control."

The importance of the preamble and Section 21 of the Beachwood zoning ordinance, just quoted, found in the original zoning ordinance of 1925, which has been in force without change by any of the amendments to the date of trial, is that, during the intervening years as the property along Shaker Boulevard and South Woodland Road and to the south of Fairmount Boulevard within the village developed, its declared purpose has been complied with in all respects and without deviation, that is until the amendment here being considered was passed effective June 6, 1960. There is not the slightest suggestion in the record that the high zoning requirements imposed upon property in this district have ever been departed from, and that through this period of time, since the adoption of the zoning ordinance, high class, single-family homes, ranging in value from forty to seventy-five thousand dollars on the current market, have been built until at this time there are very few vacant lots available except where such development in Beachwood has been curtailed by the failure of the proper public authorities to provide sanitary sewers. The absence of sanitary sewers is the basic reason why more than one half of the building lots in Beachwood are still unimproved, it being stated that building permits have been refused for that reason. The vacant land on the west side of Richmond Road in the vicinity of the property zoned under the amendment for a shopping center has been subject to this difficulty, as is shown by the record, it being suggested that this condition is now being or has just been corrected. The mayor of the village testified:

"Up until this time there has been no place to put the sewage after you collected it in the village and there never has been a trunk down to a treatment plant, but now the Cedar-Richmond trunk sewer is soon to be upon us. To the best of my understanding it will be there this next spring. The trunk sewers across Richmond Road and across, roughly, the easterly village line will then open up this presently undeveloped land to sanitary sewers and we have been — council, I say, believe for what happened over the years with the people that owned this land, that at such time the sanitary sewers are avilable, they will seek to subdivide their large parcels and open it up for development."

The zoning ordinance of Beachwood was amended in 1956, by which amendment a use classification of U-4B (shopping center) was, for the first time, provided.

The amended ordinance sets out the conditions to be imposed in building a shopping center. Section 32.01 provides:

"This zone is established in order to provide regulations for area requiring large amounts of land and involving uses generating large volumes of traffic and serving the shopping needs of a large area. General retail business, shops and offices providing services will be permitted in this area except for those uses which are prohibited and designated as Class U-6 Uses in this ordinance." (Class U-6 defines prohibited uses.)

Section 32.02 provides:

"Area Yard and Height Regulations"

"1. A shopping center in this district shall be designed and developed as a unified and well organized arrangement of buildings and services. Vehicular traffic shall be separated from the principal pedestrian movements other than to and from parking areas. Delivery facilities shall be located so as not to interfere with the movements of pedestrians and vehicles.

"2. The ground area occupied by buildings shall not exceed 20% of the total area of the lot. At least 15% of the total area of the lot shall be developed as planted area.

"3. All buildings shall be set back from any public street or highway at least 300 ft. except that the yard may be developed for parking facilities to within a minimum of 30 ft. of a street line.

"4. Side or rear yards where adjoining a residential district * * * shall be at least 300 ft. except that such yards may be developed for parking * * * to within 50 ft. of a residential district line. Screening or planting for the protection of adjacent properties as determined by the Planning and Zoning Commission shall be required along property, residence district and street lines."

Paragraph 5 deals with the heights of buildings which are not to be more than two stories high except that not more than 30% of the ground floor area of the shopping center may have a height not exceeding 35 feet.

The Planning and Zoning Commission is authorized to grant exceptions to any of the foregoing requirements so long as the "spirit and intent of the ordinance is not violated." These requirements fall far short of the mall type shopping center depicted in the defendants' brochure of "Beachwood Park" used to induce the village council to reduce the zoning classification of the eighty-acre tract.

After the amendment of the zoning ordinance of Beachwood, passed in 1956 to provide for a U-4B (shopping center) use, a ninety-seven acre parcel under the same proprietorship as the eighty-acre parcel was zoned for U-4B uses. There were no deed restrictions of record on this land, it was completely vacant and the territory about it for the most part was sparsely settled, its location being at the intersection of Richmond Road and Cedar Road in the extreme northeast corner of the village. The Acacia Country Club is located at the northeast corner of this intersection. This ninety-seven acre parcel is located just one and six tenths miles north of the eighty acre parcel, as is disclosed by the record, and is much closer to the place of residence of the great majority of the people of Beachwood than is the eighty-acre parcel, and, as a regional shopping center, will serve the same territory outside the village.

Prior to the amendment of the zoning ordinance, whereby the eighty-acre parcel between Shaker Boulevard and South Woodland Road on the east side of Richmond Road was zoned U-4B (for shopping center purposes), the proprietors thereof published and presented to the Planning Commission and councilmen of the village a brochure depicting in detail what is called "Beachwood Park," said to be a mall-type regional shopping center.

The request to change the zoning of this tract of land from high-class, large-lot residence purposes to shopping center purposes was presented to the Planning and Zoning Commission on March 31, 1960. The minutes of this meeting are, in part, as follows:

"Mr. Dominic Visconsi [one of the proprietors of the eighty-acre tract] appeared to discuss the proposal for a shopping center at the intersection of State Routes 87 and 175. Printed brochures describing the proposals for the development were furnished the members of the commission as had been previously requested. The basic request of the proposal is for the rezoning of the property (the 80-acre parcel) from Class A-1 single family residential use to Class U-4B district shopping center use. After his presentation a general discussion was held among the commission, the public and Mr. Visconsi on the proposed rezoning request."

After the discussion, the law director was directed to present proper legislation to rezone the eighty-acre parcel. Whereupon, on April 28, 1960, the commission recommended passage of the proposed ordinance and on April 28, 1960, the village council passed the amendment, the ordinance, in part, providing:

"Whereas, the council deems that the aforesaid zoning change in the hereinafter described property should be made and the same is conducive to the public health, safety, convenience, prosperity and the general welfare of the community."

The ordinance then declares that such single parcel, describing it, shall be zoned U-4B use district (shopping center).

From the judgment of the court, entered for the defendants and dismissing plaintiffs' petition, the plaintiffs claim that the amendment to zoning ordinance 70, rezoning the eighty-acre parcel located on the east side of Richmond Road extending between Shaker Boulevard on the north and South Woodland Road on the south to the eastern border of the village from single-residence, private family residence, to a regional shopping center constituted an abuse of discretion on the part of the village council and that, therefore, such ordinance is illegal and void.

There are other claims of error but they come within the framework of the claim of error as thus stated, except perhaps that amending the zoning ordinance of a single parcel of eighty acres situated in the very heart of an extended area zoned and used exclusively and without change as a highly restricted, large-lot single-family residence area to be used for a regional shopping center, constitutes spot zoning.

The evidence, as has been indicated, is not in dispute that there has been no change or departure from the original residential character of all the territory surrounding the eighty-acre parcel between South Woodland Road and Fairmount Boulevard and to the east and west thereof. The plan of providing so-called screening for the high-class restricted residential property, as it was originally developed, was accomplished by zoning the surrounding property for single residences to be constructed on lots more moderately restricted and of smaller size, followed by two-family uses, multi-family and apartment house uses, and finally providing for retail and commercial uses along the north and south perimeters of the city of Shaker Heights and villages of Beachwood and Pepper Pike, which plan has been followed without exception. However, as indicated, the highest class, single-family, large-lot residential area, as described, continues without change with Shaker Boulevard running east and west as the approximate center of such residential area through the city of Shaker Heights, the village of Beachwood, and the village of Pepper Pike for a distance of more than eight miles, except that in Pepper Pike the smallest building lot must consist of at least an acre of ground. The evidence discloses that the development of this large lot, single-family residence area was improved by the many owners in reliance, in part, on zoning restrictions enacted by the council of the village of Beachwood and as sanitary sewers were provided, the building of high-class residences has continued in the area to the date of the filing of this record.

The record shows, as indicated, that six or perhaps seven shopping centers have been developed in the appropriate zoned areas, that they are within reasonable distance of all the inhabitants of the village, and that regional shopping centers, in which one or more sizable department stores are located, are also located nearby, one within three miles of the intersection of Richmond Road and Shaker Boulevard. It is also undisputed that the ninety-seven-acre parcel at the corner of Richmond Road and Cedar Road (zoned for shopping center purposes) is closer to more of the residents of Beachwood than the eighty-acre parcel. The defendants' shopping center expert testified:

"The two centers cover in general the same general trade area but the one at Shaker Boulevard is the one the stores designated for this center (meaning department stores) will take because it has better accessibility and it will draw from the very heart of the high income group."

This witness said that the accessibility to the eighty-acre tract would require extensive road improvements. He also stated, in a report of his survey of the Cedar Road property made for the owners, the following:

"Our market survey of your Beachwood Mall Shopping Center site at Cedar and Richmond Roads in the Cleveland metropolitan area shows that it will draw customers from a trade area with 148,000 families in October, 1960, of which 108,000 families live in the ten minute driving time zone in Cuyahoga County and in Lake County. The families in the entire trade area have an aggregate income of $1,341,000,000, or over $9,000 per family.

"This trade area is growing with exceptional rapidity, the population of the close-in trade area having jumped from 280,000 in 1950 to 380,000 in 1955, and is expected to increase to 472,000 by 1960, and to 577,000 by 1965.

"We estimate that the Beachwood Mall Shopping Center will have aggregate sales of $50,600,000 in 1960, including sales of $20,000,000 at department stores, $12,000,000 in apparel and variety stores, $10,000,000 in super markets and $1,500,000 in drugstore sales."

The evidence shows that the estimated income for the eighty acres, if improved as a shopping center, would parallel that of the Cedar Road-Richmond Road parcel. So far as retail sales are concerned, there would be no advantage of one over the other. The figures make it abundantly clear that this proposed regional shopping center at the intersection of Shaker Boulevard and Richmond Road is in no way concerned with the health, welfare and safety of the people of the village of Beachwood but is a business venture attempting to attract thousands of customers from a part of two counties which will be necessary to support its operation.

The defendants' witnesses are in agreement that the already overtaxed highways at the peak hours of traffic on Richmond Road, Shaker Boulevard and South Woodland Road, which are the highways providing ingress and egress to the proposed regional shopping center, will be even more congested and overtaxed when the shopping center is open for business. The traffic count in 1958 at the intersection of Shaker Boulevard and Richmond Road between 7 A. M. to 7 P. M. was 25,000 automobiles and at Richmond Road and South Woodland Road, the traffic count was 19,000 automobiles during the same period. This count must be considered as indicating there has been a sizable increase in traffic during the intervening years. The defendants' evidence foresees that 10,000 families will be attracted to this shopping center and that by 1970, 14,000 automobiles will come to the center each day. It is said that parking spaces will be provided for 4,300 automobiles. Both the shopping center expert and the representatives of the Regional Planning Commission testified that it would be absolutely necessary to improve the highways upon which the shopping center faces to accommodate the additional traffic before the shopping center could be successfully operated. The improvement suggested would require a rebuilding of the bridge on Richmond Road over the Shaker Rapid Transit right of way, estimated to cost $350,000, the rebuilding of the vehicular part of the right of way of Richmond Road from the existing 16-foot pavement to a four-lane highway, and the building of a new roadway along a proposed extension of the Rapid Transit tracks. It was also proposed by one of the defendants' witnesses that some type of entrance and exit facility could be built to the new North-South Freeway which skirts the southeast corner of the eighty-acre parcel, a suggestion which borders on the realm of fantasy. The only exits provided by the freeway are at Mayfield Road and Cedar Road and Chagrin Boulevard. The direct use of the freeway was a basic fact assumed by two of defendants' experts in supporting their conclusions that the eighty-acre parcel is suited for regional shopping center purposes. On this general subject defendants' witness from the Regional Planning Commission testified as follows:

"Q. Well, how many people per day would be required to support a center like that? A. The word required is the problem. See, I am not necessarily a market analyst in terms of telling the people in this shopping center how many customers they need to succeed in business. My aspect is to determine whether this shopping facility can be a compatible use for this piece of land in relationship to the general community, whether it can be economically supported in a general way, so it doesn't turn into a problem for this community, so that if it cannot be rented the village is not faced with changes of use and whether the highway system is adequate or can be made adequate to bring people in and out of the shopping center.

"Q. Then, you would say, Mr. Roebuck, that if this proposed shopping center would face such complication, so it could not be entirely rented, it would create problems for the community? A. Yes.

"Q. It would tend towards a general depreciation, would it not? A. It might very well.

"Q. Now, how many cars per day would be using this shopping center, if it were put into operation? A. That I can answer. We estimated by 1970 there would be 14,000 cars.

"Q. 14,000 cars per day? A. Yes.

"Q. And before —

"The Court: 14,000 using the facility every day or what?

"Mr. Eshner: Yes, that is what I understood.

"The Witness: Yes, cars."

If an improvement of the highways, as suggested, is an absolute necessity to the use of the eighty acres as a regional shopping center, such improvements could not be accomplished by the village. It has neither the financial ability nor legal right to do the things said to be absolutely necessary. Richmond Road is a county road and the improvements suggested would have to extend beyond the boundary of the village. Direct access from private property to the freeway is impossible, the closest interchanges being at Cedar Road about two miles north and east and Chagrin Road over a mile south and east.

Without attempting to stress beyond the sphere of its importance the effect which a reduction of the use classification of the eighty-acre parcel might have on the traffic problems in that neighborhood (State, ex rel. KilleenRealty Co., v. City of East Cleveland, 169 Ohio St. 375), yet where the defendants' witnesses testify that the enterprise (regional shopping center) for which the property may then be used cannot be successfully operated for such purpose unless and until public expenditures of a considerable amount have been made to make the new use practical, such fact is certainly one to be considered in determining whether or not the legislative authority has abused its discretion in reducing such zoning classification as was accomplished by the amendment.

The testimony of defendants' witness, together with other evidence received, clearly establishes that as of the present time the community of Beachwood is adequately covered with local shopping centers. The planning expert testified as follows:

"A. In terms of local shopping needs, we indicate Cedar-Green Shopping area will serve this portion of Beachwood (indicating).

"The northerly portion of Beachwood, Fairmount Boulevard. That doesn't mean after 1970. You see — I will go back.

"Ultimately the village of Beachwood will have 5,000 families, if all the lots which are now zoned for residences are developed with residences. We project this to say that by 1970, possibly, 3,500 of these lots will be developed; so you realize I am dealing with 3,500 and not 5,000, and this is true of communities to the east, which will develop much slower. So the local facilities at Cedar-Green and if local shopping were to be developed on Chagrin Boulevard, as it is now zoned, it has not been developed, plus Woodmere, we would say this was adequately covering local shopping.

"May I say the Woodmere Shopping Center is something over which we have no control and we would much prefer that shopping center not to be located over there for many reasons, but it is there and that is a fact we have to deal with it, but for local shopping it would satisfy.

"Now, local shopping is a general term. It means the place you go to for supermarkets and shopping where you may buy small items of apparel, where you will go to a chain variety, but you would not go to local shopping for furniture, never buy a suit of clothes and more than likely women would not buy dresses.

"Perhaps the best way of showing the difference is that in a local shopping center you would have one store of each type, so you would not be able to compare items, but in a larger center, as you go up the grade towards the largest one, which is regional, that is a comparison center. You would have many stores where you could compare items, shoes, furniture, appliances. A department store would not appear until you reach the regional level.

"So you have to be sure of the sizes you are talking about. Regional shopping centers, normally, start at about 400,000 square feet store area. Local centers rarely go beyond 120,000 or 130,000 square feet area."

At the time this testimony was given the Severance Regional Shopping Center was not, as it is now, a reality. Such shopping center, one of the largest in the community, is less than five miles away from the eighty-acre tract.

The mayor of the village testified:

"I for one feel that a high quality shopping center would have the same influence on Beachwood Village and surrounding neighbors as Shaker Square has had on its immediate area. I feel that a high quality shopping center would have a stabilizing influence. It would give the people in the neighborhood an outlet for satisfying all their material needs and they would be more inclined to stay put and rather than have a transient population, we would have an established population.

"The area served, by where the land is located, in my opinion, is ideally suited for a high quality shopping center due to the axis roads, Shaker Boulevard coming both from the heart of Shaker Heights with a high economic population, the north and south roads, the State Route 175 and State Route 1, the proposed North-South Freeway, will, I feel —

"* * *

"A. I feel, as I said before, there is a real need for the immediate residents of the village of Beachwood and for the immediate neighbors of Beachwood for a place where the people,who desire to buy some of the finer things of life, can purchasethem without having to go to downtown Cleveland or to New York orChicago or other cities. They will have the stores of supply convenient.

"The road pattern, in my opinion, is the most convenient location in the village to locate this type of center.

"Now, as far as that is, my opinion as to the need of a shopping center as it concerns the residents, as it concerns the village administration, I feel the revenue to be generated by ashopping center at this location would do much to solve ourfinancial problems, both in the municipal end, which supplies the everyday housekeeping services and —

"* * *

"A. — and also on behalf of the Board of Education, which gets its real money from the real estate duplicate. ``The factthat a shopping center on this site would increase the duplicatewithout generating one school child is of great concern. The school costs are increasing steadily. A single family residence can be assumed, in my opinion, at least usually produces — .'" (Emphasis added.)

The claim that one of the dominant motivating factors in seeking the zoning change of the single eighty-acre tract to a shopping center use was the effect that a regional shopping center, if built, would have on the financial structure of the village is clearly supported by the evidence. The mayor testified that the present duplicate of the village is $30,090,000, that the center would add five million dollars to the duplicate of the village, and that this would increase the amount received from real property tax of about $160,000 for the schools and $20,000 for the village. This witness went into the financial plight of the municipality, calling attention to the instances where new equipment was needed, and stated the fact to be that when the village assumes its status as a city, a notice of which had already been received from the state, some duties now performed by the county would become the obligation of the municipal corporation as a city. Other witnesses for the defendant stressed the advantage to be experienced by the increase of the tax duplicate resulting from the building of a regional shopping center. Under the facts of this case, no consideration should have been given to the effect that the building of a shopping center would have on the financial status of the village. Zoning classifications must be based on the protection of the health, safety and welfare of the people and not as a means of financing village activities. It is an exercise of the police power of the state. Such power cannot be used to give economic advantage to the village and to the owner of a single parcel of land over that of the surrending landowners except when the public safety, health or morals require it.

It is claimed that the introduction of a commercial enterprise into the heart of a highly restricted residential area will cause damage to and reduce the value of the surrounding properties. The evidence in the record on this question is in some conflict. Some of the village officials whose properties were one half mile or more away from the eighty-acre parcel testified only as to the effect the zoning change would have as to their properties. Such evidence was of no probative value as to the property surrounding that of the eighty-acre parcel subject to the change in zoning. The subject of value is generally considered as to the effect of the refusal to reduce the classification of property in an existing zoning ordinance or including property in a class higher than that for which it is said to be best suited. However, the defendants' expert witness on city planning, in describing the availability of the eighty-acre tract for a shopping center, said:

"* * * As you can see by examining it, it is bounded by four roadways, the projected State Route 1 on the east, on the north is Shaker Boulevard, which is a divided roadway, on the west is Richmond Road, State Route 175, which has, I am sure, 100 foot of right-of-way, which means it can be widened sufficiently to take care of future traffic, and on the south is South Woodland, which is a very wide roadway, too. These are all roadways which are county-wide. They connect with a county-wide system. None of these are local streets, which would be the kind of street which certainly would be a poor street to serve a large shopping facility.

"Also from the pattern of development, it was fairly well isolated from other land uses and particularly Beachwood is essentially a residential community, which would be opposed to bringing in a land use. This is one of the words we planners fill out, the land use.

"May I backtrack a little? At some point the planning commission had considered rezoning further north and at that point we were opposed to it for the very reason we thought it would upset the residential pattern of Beachwood and we were very anxious for it to go at the present location, knowing the land use. There is very little residential development immediately next to it. In fact, you have very little development. You havethe buffer there and to the south there is no development at themoment, the south side of South Woodland and there is very little on the east or west of Richmond Road." (Emphasis added.)

The "buffer" is land zoned for high class, large lot, single-family residence purposes suitable and desirable for the purpose zoned. One of the basic circumstances which justifies the exercise of the police power in passing zoning ordinances is the necessity of separating industrial and commercial uses from areas zoned for residence purposes. Such separation of uses is in the interest of the safety, health, morals and the well being of the people. The rezoning of a single parcel for shopping center purposes in the center of a neighborhood which has been classified for high-class residence purposes for a long period of time without change and has been thus substantially developed would add tremendously to the value of the rezoned parcel. Consequently, the property surrounding it, still bound by the high restrictions, would be considerably diminished in value. The witness's testimony, just quoted, to the effect that the vacant land to the west is a buffer zone, must have been intended to contradict the plaintiffs' contention that their properties would decrease in value should the shopping center be built. But the land said to constitute the buffer zone, clearly by this evidence admitted to be damaged, is also entitled to the protection of the law. It is clearly shown by the record that once a commercial zone is created in a residential area, it tends to expand because the surrounding land is no longer available or desirable for residence uses. The legislative power of a municipality has no legal right to grant an economic privilege to one landowner over and to the detriment of his neighbors without basic facts to justify the granting of such privilege beyond that generated by the request of such landowner seeking such advantage and the financial advantage ensuing to the village. Where a general and comprehensive zoning ordinance has been in force for many years and no change has occurred in the subsequent development of the property under the clearly stated classifications, unless the original classification was incompatible with the surrounding circumstances when passed or unless changed conditions require reclassification in the interest of the public good. morals, safety and well being of the people, the legislative authority is without power to arbitrarily downgrade a single parcel in a zoning classification to the disadvantage of the surrounding proprietors as to whose surrounding property the zoning classification remains unchanged.

In the case of Clifton Hills Realty Co. v. City ofCincinnati, 60 Ohio App. 443, the court said in the third paragraph of the syllabus:

"3. A municipal corporation may repeal or amend an existing zoning ordinance, but in doing so it must stay within constitutional limitations which exclude arbitrary and unreasonable action as lacking due process of law."

This case also holds that the declaration in a zoning ordinance amendment, to the effect that the change made in the amendment is in the interest of the people's morals, safety and well being, does not necessarily make it so. Such assertion must be shown by evidence when challenged. The police power exercised by the legislative branch of the village in passing an original zoning ordinance must have been based on the safety, morals and well being of the people. So that unless conditions have changed so as to require an amendment based on the well being of the people, such assertion in the amendment would be in conflict with the original ordinance.

The appellees rely strongly on the case of Cleveland TrustCo. v. Village of Brooklyn, 92 Ohio App. 351. That case is clearly distinguishable on the facts and the declarations of law as set out in the opinion which gave a brief history of zoning cases in Ohio. The court said in the opinion on page 358:

"All zoning laws and regulations must find their justification in some aspect of the police power asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delineation. The power to limit industrial establishments to localities separate from residential sections is not to be denied upon the ground that its exercise will divert a flow of industrial development from the course which it would naturally follow and will thereby injure complaining landowners."

The facts of this case were that the plaintiff as representative owner held title to a vacant tract of land (three parcels) in part abutting the railroad right of way of two railroads and also adjacent to property in the city of Cleveland where the land is zoned for industrial use. The zoning ordinance of the village of Brooklyn, passed in 1940, zoned plaintiff's property, together with other property in the neighborhood, to a Class A or residential use. Upon trial, the Court of Common Pleas held that, as to plaintiff's property, the zoning ordinance was confiscatory, illegal and void and ordered the property classified for industrial uses (Class C). The Court of Appeals, in reversing the judgment of the trial court and entering final judgment for the defendant, said:

"Furthermore, the effect of reclassifying plaintiff's property to industrial use would be highly detrimental to, if not destructive of the valuation of other Tiedeman Road property owners who purchased property and built homes relying on the residential character and development of the thoroughfare."

This statement must have meant the depreciation of a neighborhood as a residential area by the intrusion of industrial activities, thereby challenging the safety and health of the people. The rezoning of the eighty-acre tract here being considered would have the same effect as here asserted.

The facts in the Brooklyn case were that the plaintiff's land was vacant, as was true of other land nearby. The neighborhood, however, had been developed and was being developed as residential. The Court of Appeals said, in entering final judgment for the defendant:

"* * * Up to the present time there have been no changes in the conditions and circumstances surrounding plaintiff's property which would justify judicial interference with the legislative process. * * *"

The Brooklyn case, therefore, is just the reverse of the instant case. In that action, the plaintiff sought court interference with the legislative process in declaring an existing zoning ordinance unconstitutional as to plaintiff's property because of the ability of the owner to make a more profitable use of the property as an industrial site and his inability to use it for the purposes for which it was zoned. At a later date, in the case of Partain v. City of Brooklyn,101 Ohio App. 279, dealing with the same land which had been rezoned for industrial use, upon action of a resident to enjoin the application of the amended ordinance, the prayer of the plaintiff's petition was refused. The refusal was grounded on the situation of the land in that particular case. It is, therefore, clear that the zoning of the property in theBrooklyn case was a matter of continuing concern because of its situation. In the instant case, forty years after passing a comprehensive zoning ordinance, the village council has attempted to do what the court was asked to do in the firstBrooklyn case, that is to rezone a single parcel for commercial purposes in the heart of an extensive territory that the council had zoned for high class residential use and where, during the intervening years, the territory has developed as planned without a single change or deviation whatever, the undeveloped land being, in part, due to the failure of the village and other governmental agencies to do their part in providing sanitary sewers.

There is no evidence of changed conditions around or near the property rezoned by the amendment for a regional shopping center, and clear proof is presented by the defendants' experts that the property rezoned is unavailable for such use until large sums of money are expended for necessary road improvements, and it is also clearly established that the property is available for use as zoned before the amendment. Therefore, it is our conclusion that upon the undisputed facts, the village council of Beachwood abused its discretion in amending the zoning ordinance of the village (1960-70), whereby the eighty-acre tract of land on the east side of Richmond Road between the south roadway of Shaker Boulevard and South Woodland Road was changed from U-1 classification (large-lot, single residence purposes) to U-4B classification (regional shopping center purposes), and for that reason said amendment is null and void and without legal effect.

The second claim of error is also well taken. The act of rezoning a single parcel of land for a single retail purpose, which is situated in the very heart of and surrounded entirely by property zoned for high class, single residences, there being no change or deviation from the zoned classification since the passing of the original zoning ordinance in 1926, and the rezoned property being clearly available (as originally zoned) for use as residence property, constitutes spot zoning.

In 8 McQuillin, Municipal Corporations (3rd Ed. Revised), 187, Section 25.83, is found the following statement:

"* * * A singling out of one lot or a small area for different treatment from that accorded to similar surrounding land indistinguishable from it in character for the economic benefit of the owner of that lot or to his economic detriment, is invalid ``spot' zoning. * * *"

In the case of Page v. City of Portland, 178 Ore., 632,165 P.2d 280, the Supreme Court of Oregon had for consideration facts almost identical with those here being considered. The city of Portland passed a comprehensive zoning ordinance in 1924. On January 28, 1943, a petition of the property owner, seeking a change of zoning for the lots of the petitioner located in the heart of a single family residence zone from Class I (single residence purposes) to Class III (business district) was granted by the council. The lots comprising a tract of land 100 feet square were as is recited in the opinion: "* * * approximately in the center of an exclusive residential district about one mile in width and two miles in length." The owner proposed to sell the lots to the Safeway Stores, Inc., for retail business purposes. At the same intersection, there were three retail business establishments, all of which were nonconforming uses existing prior to the enactment of the comprehensive zoning ordinance. The Supreme Court of Oregon said that an amendatory zoning ordinance which singled out vacant lots in the heart of an exclusive residential district to permit the use of such lots for business purposes was invalid as having no substantial relation to the public welfare and an arbitrary exercise of police power. On page 641 of 178 Oregon Reports the court said:

"Here, the council have singled-out these lots in the heart of an exclusive residential district in its prime. The lots — excluding the non-conforming uses above mentioned — are entirely surrounded by the homes of people who desired to get away from the environment of business and industry. If this single intrusion of business is sustained, it will be merely the opening wedge for other commercial interests. It will result in a ``commercial island' established in the center of one of the best residential districts in the city of Portland. We fail to see wherein the change has any substantial relation to the public welfare and therefore it is an arbitrary and unreasonable exercise of the police power. To sustain this amendatory ordinance would frustrate and destroy the purpose and plan of the original comprehensive zoning ordinance enacted in 1924, and under whose protection this district has developed."

In the case of Mathis v. Hannan (Kentucky Court of Appeals),306 S.W.2d 278, the question of the validity of an amendatory zoning ordinance which changed the zoning classification of a parcel of land from R-1 (high type residential) to B-1 (neighborhood business) purposes was considered. The court held that where the property owners' land had been singled out of a comprehensive plan for zoning in order to permit property owners to construct a shopping center, such amendment conferred special benefits which were not related to the general welfare of the entire community and was detrimental to adjoining landowners who resided around the rezoned area and, therefore, the amendment was invalid. In that case a comprehensive zoning plan had been adopted by the city of Paducah as provided by the state law of Kentucky. The opinion sets out the various zones and describes the land in question as follows:

"* * * West of the railroad the city is devoted almost entirely to residential uses which are designated as one or two-family dwellings. Immediately west of that is the R-1 area, the highest type of residential restriction wherein the 13 acre tract belonging to appellees Hannan is situated. A reference to the map will disclose that the entire Hannan tract is surrounded by property devoted to high type residential purposes. * * *"

In holding the amendatory rezoning ordinance, changing the zoning of the thirteen-acre tract zoned for high class residence property to use for a shopping center invalid, the court said on pages 280 and 281:

"We find nothing in the record indicating that the ground belonging to the Hannans was unsuitable for R-1 residential purposes. There is abundance of proof to the contrary. Its terrain and general characteristics seem to differ little from the adjoining territory which has been rather fully developed by the establishment of high type residences.

"We are well aware of the fact that the legislative action of the governing board must be given great weight so long as it acts within the bounds of the legislative field but this ordinance, like other ordinances, must not be arbitrary or discriminatory. We think the issue in this case, therefore, narrows down to the determination of whether the legislative body arbitrarily spot zoned the Hannan property."

See, also, Cassel v. Mayor and City Council of Baltimore,195 Md. 348, 73 A.2d 486; Borough of Cresskill v. Borough ofDumont, 15 N.J. 238, 104 A.2d 441; and Hermann v. City ofDes Moines, 250 Iowa 1281, 97 N.W.2d 893. The facts of theHermann case are that the city of Des Moines passed a comprehensive zoning ordinance on July 9, 1953. All the property in the block, which included the tract in controversy, was zoned for one and two-family residences. In 1958, the city council rezoned all of lot 10 except the west 200 feet (situated within "the block" just referred to) for multi-residence purposes. The action was to declare the ordinance void for the reason that it constituted spot zoning. The paragraph of the syllabus therein provides:

"4. An amendment to a city zoning ordinance which rezoned a part of a lot located in Zone R-2 restricted to one and two family dwellings to place it in Zone R-3, a multiple residence district, is invalid where the tract rezoned is similar in use, character and adaptability to the surrounding property, was suitable for use as a one family dwelling and there is no showing such rezoning will promote the public health, morals, safety or general welfare, or that there has been any change in the general situation or difference in the uses of the surrounding property since the enactment of the general ordinance."

And on page 1288, the court's opinion stated:

"The rules laid down in the Keller case are sufficient to require us to hold the amendatory ordinance, No. 5926, is void as being an illegal act beyond the powers of the Des Moines City Council. The same question has arisen in many other jurisdictions, and has had the attention of the text writers, with the uniform holding that zoning authorities may not single out one ``spot' or tract and remove some or all of the restrictions upon it unless some reason appears for the discrimination and the action bears some relation to the public welfare. See Yokley on Zoning Law and Practice, Volume 1, section 93; 3 McQuillin, Municipal Corporations (Rev.), section 1048."

From the facts of the case at bar, as above set out, it is clear that the eighty-acre parcel, as was all of the property surrounding it, was originally zoned and is still zoned for high class (single) residential purposes; that no change or violation of the zoning restrictions has occurred at any place in the village in the territory of this classification; that the territory has continued to develop for the purposes for which it is zoned insofar as it has been possible, limited only by the failure of the proper public authority to provide sanitary sewers; that the property is (when sewers are available) available (this fact is now a reality) and desirable for the purposes for which it is zoned; that the zoning ordinance, as shown by the overall comprehensive plan, provides areas reasonably accessible within the village, which are zoned for retail business; that there is now adequate shopping close at hand for the citizens of the village; and that the rezoning of the eighty acres was induced by the proprietors, for the express purpose of building a "regional" shopping center which will, if built, bring great numbers of people into the village for retail shopping purposes in the very heart of its highest class residential area where its streets are now inadequate to provide access to such regional shopping center in safety. (See Section 32.01 of the amendatory ordinance hereafter quoted.) Under these undisputed facts, the act of the village council in rezoning the eighty-acre tract from the highest class, single-family residence purposes, down below all the residence classes, to that permitting a shopping center, constituted spot zoning.

One other fact should receive brief consideration. Zoning ordinances generally are for the purposes of barring undesirable uses from residential areas. Such ordinances "generally operate ``down' rather than ``up,' that is they most often prohibit uses of premises which are less desirable than the use for which the area in which the premises are located is zoned but do not prohibit more desirable uses in such area." (38 A. L. R. (2d), 1141) The zoning ordinance of the village of Beachwood, and the particular amendment here being considered, does not prohibit the use of the property zoned for shopping centers from uses above that of shopping centers. The question must have been considered by council because in Section 6, "Local Business" it is provided, in part:

"In Class U-4 or general business districts, no building shall be erected, used or maintained for any uses herein prohibited in Class U-6 use or for any residential use except single family dwelling use unless on special permit issued by the village zoning and planning commission after public hearing and confirmation by the council. * * *"

Section 32, Class U-4B, District Shopping Center Uses, in part, provides:

"32.01 Intent and Permitted Uses.

"This zone is established in order to provide regulations for area requiring large amounts of land and involving uses generating large volumes of traffic and serving the shopping needs of a large area. General retail business, shops and offices providing services will be permitted in this area except for those uses which are prohibited and designated as Class U-6 uses in this ordinance."

No limitation of higher uses is suggested.

It must, therefore, follow that should a shopping center not be built, the proprietors could proceed to develop two-family houses or multi-family dwellings or even apartment houses within the eighty-acre tract so long as the regulations for such development are followed.

For the reasons set out in this opinion, the judgment is reversed, and this court, proceeding to enter the judgment which should have been entered by the trial court, enters a decree for the plaintiff holding the amended ordinance, rezoning the eighty-acre parcel at Shaker Boulevard and Richmond Road in the village, void and of no legal effect. The cause is remanded with instructions to give consideration to the question of attorney fees.

Judgment reversed.

KOVACHY, J., concurs.