Willott v. Beachwood

It should be clearly stated and emphasized that the property here involved is essentially and peculiarly adapted for a shopping center because it is an expansive tract of eighty acres of undeveloped land bounded by four main highways which effectively divide it from surrounding property.

This eighty-acre tract is bounded by Ohio State Route No. 1, a four hundred foot highway on the east; by Shaker Boulevard, a divided highway occupied by two sixty foot road highways and a four hundred foot center strip, on the north; by Richmond Road, or as it is sometimes known, State Highway Route No. 175, one hundred foot in width, on the west; and by South Woodland Road, a one hundred foot-in-width roadway on the south; all of which highways are a part of and connected with the highway system of Cuyahoga County and the state of Ohio.

This land is entirely vacant and has never been occupied by buildings of any kind. There are no residences near or abutting on this tract. At the corner of Fairmont and Richmond Road there is a substation of the Cleveland Electric Illuminating Company and the Town Hall of the village (now a city) with accessory buildings, and on Richmond Road, not far from Kinsman Road, there is a telephone substation.

Prior to its enactment, the proposed amendment to the zoning ordinance was submitted to and approved by the Regional Planning Commission of Cuyahoga County. The regional planning commission is in effect a county organization. Its representation is composed of citizen members and the three county commissioners, the county engineer, county administrator and representatives of the various municipalities. There are sixty-one municipalities in the county, four of which are townships by reason of which they may not be members of the commission. At the time of trial, fifty of the fifty-seven municipalities belonged to the regional planning commission which had executive and regular meetings.

The regional planning commission is formed pursuant to state law permitting regional or county planning commissions. According to state law, Section 713.21, Revised Code, the only parties that can belong to the regional planning commission are municipalities that have a planning commission of their own. They, in turn, can send representatives to the commission. In order to join, they must pay so much per capita. At the time the record in this case was taken, the per capita charge was five cents, a minimum of $100 and a maximum of $500.

The regional planning commission has a staff, one member of which is a director, staff members who are professional planners, whose background varies in the planning field of economics and sociology, and a secretarial complement. At the time of the hearing, this staff consisted of twenty members. The record also shows that the village (now a city) of Beachwood is a member of this regional planning commission. Melvin Roebuck, who testified on behalf of the village of Beachwood, is a member of the American Institute of Planners, the American Society of Planning Officials, and prior to his employment with the regional planning commission, he was employed in the state of New York by two different agencies, one of which was for private consultants and the other was for the city of New York in the Department of City Planning. Mr. Roebuck has been with the regional planning commission here in Cleveland almost eight years. For three years before the time of trial, he had been the representative from the commission to the village of Beachwood.

The Regional Planning Commission made a very careful study of the proposed shopping center and took into consideration the other shopping centers in the areas outside the village of Beachwood and recommended the eighty acres as a desirable location for a shopping center for the city of Beachwood. In addition, the Planning and Zoning Commission of Beachwood made a study of the proposed shopping center and unanimously recommended adoption thereof by the council. The record shows that the members of the Planning and Zoning Commission of Beachwood are appointed from various sections of the city as provided by Article VII, Section 2 of the Charter of Beachwood. The record also shows that the two members of council who live in the neighborhood of the eighty-acre tract voted, after due and careful deliberation, with the remaining members of council, to change this tract to a shopping center use. These two council members, along with Councilman Hopwood, a former acting mayor of Beachwood, testified that in their opinion the shopping center was needed for the welfare of the village and also would increase the value of their property.

While the original zoning ordinance was first adopted as an emergency measure, the amendatory ordinance in question was enacted without an emergency provision, thereby permitting any persons feeling aggrieved to conduct a referendum. However, the two appellants were not interested enough to promote a referendum. Neither was a referendum attempted by anyone else, and the legislation stands unchallenged except by the present appellants in this suit.

While this is an appeal on questions of law, there are no assignments of error but merely arguments against the proposed legislation on the ground that the trial court abused its discretion. The trial court found in favor of the legislation in a very able opinion, Willott v. Village of Beachwood, 87 Ohio Law Abs., 143, which is hereby adopted as part of this dissenting opinion. It is not claimed that the judgment is contrary to the manifest weight of the evidence or that the trial judge committed any error prejudicial to plaintiffs in the course of the trial.

The following, which appears as part of the trial court's opinion, is an apt and objective description of the use to be made of this property:

"In `Beachwood Park,' as the project is called, proponents propose to establish a large, beautiful, mall-type, integral, high-class, regional shopping center with a variety and quality of merchandise not now available. This is not just another shopping center. As plaintiffs' own exhibit (No. 8) shows, it is: `* * * designed to be a handsome addition to the community, its appearance suggesting a campus or park rather than a conventional shopping center. To achieve this appearance, the following factors have been incorporated in the design — factors which make Beachwood Park uniquely attractive to the high-grade community which it will serve:

"`1. A planting belt of at least sixty feet total depth separates Beachwood Park from all surrounding roads, and islands of large existing trees are preserved and beautified as green shady areas throughout the project.

"`2. Signs at the entrances to Beachwood Park are small and dignified, park-like in design. The usual flashing neon signs are not considered as part of the visible exterior views of this development. They will be replaced by coordinated-design vertical markers at each pedestrian entrance to the mall.

"`3. Buildings, set back at a great distance from all roads, are designed to be low and harmonious with the residential architecture of the neighborhood, being of red brick and white trim, of small size and domestic scale, and surrounded by green terraces, lawns, and planting.'"

It must be observed that in the ordinary sense of the term this is not just an ordinary shopping center but one designed and well-fitted for this particular territory.

There is substantial evidence in the record, including expert testimony, that the shopping center would not depreciate the market value of any residential property surrounding this area; that there is a fall of between forty to sixty feet in the topography of the eighty acres extending east from Richmond Road to the eastern boundary line of the eighty-acre tract; that due to this fall and a high north and south elevation of land about eight hundred to one thousand feet to the west of the eighty acres, running for a distance to the central portion of the village, the properties to the west of the ridge would be screened from any view of the shopping center. Moreover, the wide north and south roads of Shaker Boulevard and its center strip, the one-hundred-foot width of South Woodland Road and the four-hundred-foot width of the freeway to the east abutting the eighty acres, would isolate the shopping center from the surrounding residential properties so as to afford a benefit rather than a detriment.

Applying the law to the facts of the instant case, I citeCleveland Trust Co. v. Village of Brooklyn, 92 Ohio App. 351 (motion to certify overruled, and appeal dismissed in 158 Ohio St. 258), paragraphs one, two and five of the syllabus providing as follows:

"1. All zoning laws and regulations must find their justification in some aspect of the police power asserted for the public welfare. Such laws and regulations must be considered as a valid exercise of police power if substantially related to public health, safety, morals or welfare.

"2. The power of a municipality to establish zones and to classify property accordingly, is purely a legislative function which will not be interfered with by the courts, unless such power is exercised in an arbitrary, confiscatory and unreasonable manner in violation of constitutional guarantees."

"5. Since the value of all property in zoned areas must be considered in relation to public health, safety, morals or welfare, the fact that a portion of an area zoned for residential uses would be more valuable if zoned for industrial uses does not in and of itself render the zoning regulation unconstitutional or invalid."

In Partain v. City of Brooklyn, 101 Ohio App. 279, decided March 22, 1956, where council of the village of Brooklyn amended the zoning ordinance to permit a manufacturing plant to be built on the property which was involved in the case of ClevelandTrust Co. v. Brooklyn, supra, this court, in sustaining the Court of Common Pleas (Blythin, J.), held, as appears from paragraphs one, two and three of the syllabus, as follows:

"1. The legislative function of a municipality in establishing zones and classifying property accordingly will not be interfered with by the courts unless such power is exercised in an arbitrary, confiscatory and unreasonable manner in violation of constitutional guarantees.

"2. Facts necessary to justify judicial interference with the sound discretion of a legislative body in enacting a municipal zoning ordinance must clearly appear from the evidence and, if debatable, the legislation will be upheld.

"3. Where a parcel of real estate comprising 61 acres of land in the city of Brooklyn (immediately contiguous to a 31-acre parcel of land within the city of Cleveland which is now zoned and has always been zoned for industrial uses), the Brooklyn property being located north of the New York Central Belt Line Railroad and abutting on the west side of Tiedeman Road, is rezoned from dwelling house to industrial use, held such rezoning is not an arbitrary use of police power unrelated to the protection of public health, morals, safety and general welfare of the people, and, therefore, this court is without authority to nullify such legislation by judicial decree."

In the case of Curtiss v. City of Cleveland, 166 Ohio St. 509, the Supreme Court, reversing this court, stated, in the concluding paragraph of its opinion, at page 529, as follows:

"Since, however, the Court of Appeals as shown herein found as a matter of law that those, who had expended capital in acquiring and substantially improving lands for `retail business' in reliance upon and in conformity with the zoning ordinance in effect prior to these amendatory ordinances, were, because of the circumstances and conditions created at the affected locations by reason of such improvements, entitled to rely upon the continuance of such prior ordinance without amendments materially increasing restrictions upon the use of their property, and entered its judgment accordingly, the judgment is reversed and the cause remanded for further proceedings in accordance with this opinion."

The facts of that case are obviously applicable to the instant case where there is a statement in the majority opinion to the effect that the rezoning of the tract here involved is such a departure from present zoning that it cannot be sustained. Paragraph two of the syllabus of the Curtiss case reads:

"2. Actual or potential loss in value resulting from the rezoning of substantially improved lands does not of itself render an amendatory zoning ordinance invalid; and owners of such lands have no constitutional right to rely upon the provisions of an original comprehensive municipal zoning ordinance so as to permanently impair or prevent the adoption of a subsequent amendatory ordinance. However, if when applied to the owners of such lands such ordinance is found to be unreasonable and discriminatory and without relation to the public health, safety, morals or general welfare, injunctive relief will lie."

Considering those cases and applying them to the facts of the instant case, the council, on recommendation of the Regional Planning Commission of Cuyahoga County and the planning and zoning commission of the village, voted unanimously for the change in zoning. In view of the facts of those cases and the facts in the instant case, I can only conclude that the zoning change was a lawful exercise of authority and that such action did not constitute an arbitrary use of the police power unrelated to the public health, morals, safety and general welfare of the people of Beachwood.

I have examined the cases cited in the majority opinion and find none applicable to the facts of the case at bar.

For instance, in the case of Hermann v. City of Des Moines,250 Iowa 1281, 97 N.W.2d 893, there was involved a portion of a lot 87 × 200 feet, which was in effect an island in a sea of higher uses. The court in that case rightly held that the amendment concerning this could not stand; that the ordinance was void as an illegal act in the absence of a showing that the rezoning would in any way promote the public health, morals, safety and general welfare. The size of the lot will show readily that that case does not have any application to the instant case.

In Page v. City of Portland, 178 Ore., 632, 165 P.2d 280, relied upon in the majority opinion, there was involved a tract of land one hundred feet square which was rezoned from a single residence to a business district. Such rezoning of this small tract of land was set aside as having no substantial relation to the public health, welfare and morals. Obviously that case has no application to the instant case.

In Cassell v. Mayor and City Council of Baltimore,195 Md. 348, 73 A.2d 486, there was involved again a single lot in a residence district. The court held that this was invalid as spot zoning.

In Mathis v. Hannan (Kentucky Court of Appeals),306 S.W.2d 278, a thirteen-acre tract was involved. This was held to be spot zoning, inasmuch as the tract was in a high-type residential district devoted entirely to residential purposes, the court saying "We cannot arbitrarily say that a 50 foot lot is small and a 13 or 14 acre tract is not small. Each must be related to its surroundings." It was there held that where property owners' land had been singled out of comprehensive plan for zoning, in order to permit property owners to construct shopping center, amendment to the ordinance conferred special benefits which were not related to general welfare of entire community, and was detrimental to adjoining landowners who resided around rezoned area, and therefore, the amendment was invalid. The difference between that case and the instant case is obvious, as eighty acres are here involved separated effectively from surrounding areas by the highways hereinbefore described.

In Borough of Cresskill v. Borough of Dumont, 15 N.J. 238,104 A.2d 441, an attempt was made to change one block from a residential zone to a business district. The block was 787 feet in length and 195 feet in width. The contiguous area was residential except for some nonconforming uses. In that case there were also several small business districts nearby and one shopping center one-half mile away. It was held that the proposed change did not promote any of the statutory purposes relating to zoning, and the amendment which granted a zoning change was set aside.

In Clifton Hills Realty Co. v. City of Cincinnati, 60 Ohio App. 443, decided March 28, 1938, cited in the majority opinion as being analogous to the instant case, we have a forty-acre area involved. It was proposed to erect on that forty acres immediately adjacent to a strictly residential area ninety-two apartment houses of the unit type, each unit to be constructed so as to accommodate eight or more families, and, in addition, to erect thereon a two-story public garage to house 280 automobiles where automobiles of the tenants or other persons (not tenants) would be washed, serviced or provided with fuel and oil. In that case, the plaintiff and defendant acquired the property, consisting of thirty and forty acres respectively, in 1937, and at the time both properties were zoned as "Residence B" properties. Thereafter, while both properties were still zoned as "Residence B" properties, the plaintiff subdivided its land into approximately sixty-five lots, laid out and built streets and sold many lots under a general plan, restricting their use to single family residences. The plaintiff and its grantees had expended more than one million dollars in developing the property. The plan of the defendant to develop the forty acres immediately adjacent with the type of construction heretofore described obviously would be an infringement upon the rights of the plaintiff in connection with the residential development of the property, consequently, the facts of that case are not here applicable.

The majority opinion cites 8 McQuillin on Municipal Corporations, Section 25.83, from a paragraph entitled "Island," "spot," and haphazard zoning, as follows:

"* * * 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."

Involved in this quotation is one lot or a small area which is singled out for different treatment from that given surrounding property. Obviously this quotation has no application to the instant case.

This concludes an analysis of the cases cited in the majority opinion.

The following case and text authorities are more directly in point.

In Pecora v. Zoning Commission of Town of Trumbull,145 Conn. 435, 144 A.2d 48, a rezoning from residential to commercial use of 60-acre tract fronting on major highway to permit development as regional shopping center was valid.

In 8 McQuillin on Municipal Corporations, Section 25.281, commencing at page 694, the following text is clearly applicable to the facts of the instant case:

"In cases of doubtful or debatable reasonableness orvalidity, courts will and must sustain zoning ordinances andadministrative action thereunder. This compulsion of the courts thus to treat zoning as valid although its validity may appear doubtful can be based on, or is closely related to, various fundamental legal rules and principles, including the following: Under constitutional separation of powers courts must strictly restrain themselves from substituting their judgment for that of zoning authorities as to the necessity, extent and propriety of zoning; the validity of ordinances is favored and presumed, this being true of zoning ordinances; ordinances will if possible be construed as valid; and the burden of proof is on one who asserts the invalidity of an ordinance, this rule likewise being applicable to zoning ordinances. Accordingly, where the relationship of zoning to the public health, safety, morals, welfare, or other object of the police power is fairly debatable, ordinarily the courts will not interfere therewith. That is to say, if reasonable minds differ as to whether a zoning restriction has a substantial relation to one of these fundamental purposes of the police power and of zoning, the restriction must stand as a valid exercise of the police power." (Emphasis added.)

Cited in support of the text are the Ohio cases of Miesz v.Village of Mayfield Heights, 92 Ohio App. 471, and ClevelandTrust Co. v. Village of Brooklyn, supra. The cases cited generally include decisions of the United States Supreme Court and of state courts from Alabama to Texas.

Also, in 8 McQuillin on Municipal Corporations, Section 23.282, we find the following:

"It is repeatedly said by the courts that the reasonableness and validity of each zoning case must be determined upon its own facts and circumstances."

In the instant case, the trial judge had the benefit of hearing the witnesses at first hand and, after a very careful and well reasoned opinion, came to the conclusion that the zoning of the instant property for business purposes was valid in all respects. The court considered at great length the claims of appellants concerning restrictions and correctly held against appellants' claims. In Willott v. Village of Beachwood, supra, at page 153 of 87 Ohio Law Abstract, the court stated:

"In a factional zoning fight, the court's power is extremely limited. There is a popular misconception about it. Irked citizens often think that a court can upset council's action merely because there are good talking points against it. Nothing is farther from the truth. The court cannot usurp. The functions of court and council are distinct and mutually exclusive. Just because a court is a court does not give it the power to deenact any more than to enact a zoning ordinance. Council represents the people. When it speaks, presumably it is the will of the people. * * *

"The only and limited question that the court can determine is whether the reasonableness of council's action is fairlydebatable. If it is fairly debatable, then it is valid and acourt cannot interfere. If it is not fairly debatable, then a court will declare it invalid. 3 Metzenbaum, 1826-42, reviews many cases, but the essence is distilled at page 1826:

"`Courts will not measure their judgment over against that of the legislative branch, as to expediency, advisability or wisdom of "Police Power" legislation, unless there is plainly and palpably no relation between the legislation — on the one hand — and the public welfare, on the other hand. The illegality must be plain, apparent and beyond debate, before courts are justified in declaring "police power" legislation to be invalid or unconstitutional.'" (Emphasis added.)

For the reasons stated, the judgment of the trial court should be affirmed.