DocketNumber： No 1150
Citation Numbers： 16 Ohio Law. Abs. 328
Judges： Barnes, Hornbeck, Kunkle
Filed Date： 7/6/1933
Status： Precedential
Modified Date： 7/20/2022
Under, all the evidence presented in the case, we think the plaintiffs as well as others constructing residences on the street were warranted in fixing the setbacks on the basis of a 60 foot street. If the residence properties had been constructed with the setback on the basis of a 70 foot street then there might be a very serious question if any other lot owner’ would attempt to construct his residence with the setback on the basis of a 60 foot street Uniformity is what is desired and since so many have construed the setback basis this will be' controlling and will preclude any question at this late date.
On the basis of a 60 foot street it is our conclusion that it is a substantial compliance. The variance is not such as to detract from the general plan of a residence district.
In any event defendant can not justify his violation of the restrictive provisions and be permitted to construct a gasoline station by reason of the fact that plaintiff and others have been guilty of slight violations of setback provisions. 13 Ohio Jurisprudence (Deeds §176, Notes 17, 18 and 19). Also see cases cited thereunder.
Evidence also was presented to the effect that! the city has “zoned” the territory in question for business purposes.
It should need no authority to arrive at the conclusion that this act of the city could not affect the property rights within the McKnight Plat. Evidence was also presented that the defendant had procured the consent of a very large per cent of the lot owners owning property within the McKnight Plat consenting to the construction of a gasoline station. The fact that he did not procure the consent of the plaintiff is complete answer to this character, of evidence.
It is also urged that the character of the territory has changed and that a gasoline station is located immediately across the street from defendant’s lot. Under the undisputed evidence it appears that this Purol Station across the street is outside of the McKnight Plat and, of course, can not be controlled by the reservations common to all lots within the plat.
Whether or not the construction of the gasoline station by defendant will be injurious or damaging to plaintiff’s properties are beside the question. The only way to retain McKnight Plat as a residence district is to prevent business constructions on any part thereof. Whenever any business construction is permitted others will quickly follow and any objections thereto will be met with the claim that the territory has lost its character as a restricted residential district, •
The law is so well defined on rights and remedies under restriction provisions of plats and conveyances that it is unnecessary to cite the various decisions of the Ohio courts. At the present day varying' facts call for the application of the fixed legal principles. Under the facts in the instant case the plaintiff is entitled to injunction and an entry may be drawn accordingly. Exceptions will be allowed to the defendant. Costs will be taxed against the defendant.