Opinion
Decided July 7, 1930.
Municipal corporations — Zoning ordinance — Land included in residential district, and business building inhibited — Mandamus granted to compel issuance of business building permit — Constitutional law.
The inclusion of private land in a residential district under a zoning ordinance, with resulting inhibition of its use for business and industrial buildings to the serious damage of the owner, violates the Fourteenth Amendment of the United States Constitution, if the health, safety, convenience or general welfare of the part of the city affected will not be promoted thereby.
IN MANDAMUS.
Messrs. Zielonka Kuertz, for plaintiff.
Mr. John D. Ellis, city solicitor, and Mr. Edward F. Alexander, for defendants.
On April 1, 1924, council of the city of Cincinnati passed the following ordinance:
"An ordinance No. 71-1924. To regulate and restrict and limit, in the interest of the public health, safety, convenience, comfort, prosperity and general welfare, the uses and the location of buildings and other structures and of premises to be used for trade, industry, residence or other specified uses, the height, bulk and location of buildings and other structures hereafter erected or altered, including the percentage of lot occupancy, setback building lines and the area of yards, courts and other open spaces; and for said purposes to divide the city into zones or districts of such number, shape and area as are deemed best suited to carry out the said purposes; and to provide a method of administration and to prescribe penalties for the violation of the within provisions, by ordaining supplementary Sections 452-5 to 452-96, inclusive, and by repealing Sections 452, 452-1, 452-2, 452-3, 452-4 and 530 of the Code of Ordinances of the City of Cincinnati."
The plaintiff's property is a corner lot, fronting seventy-five feet on the east side of Reading road and one hundred and eighteen and 57/100 feet on the south side of Lexington avenue. All of the square to the south of plaintiff's lot on Reading road, under the zoning provisions of the city, was included in business A district, and all of the square on Lexington avenue to the east of plaintiff's lot was included in residence B district. The plaintiff's lot was included in residence C district, which crossed Lexington avenue, and extended northwardly along Reading road. The property opposite plaintiff's property on Reading road was also included in business A district.
The plaintiff's lot was, therefore, bounded on the south and west by business A district, on the north by Lexington avenue and the remaining portion of residence C district, and on the east by residence B district.
Plaintiff applied for a permit to erect a building, the lower floor to be stores and the two upper floors to be apartments, which was refused by the director of the department of buildings. She appealed to the zoning board of appeals for special mitigation of the strictness of the zoning law in view of her situation. The board refused to interfere, and she brings this action to compel the director of buildings to issue her a permit, and to enjoin the defendants from interfering with her in the use of the premises as business property. Plaintiff also prays that, in so far as the zoning ordinances of the city interfere with the plaintiff in the erection of the proposed combination store and apartment building, they be held unconstitutional and void.
There is evidence that the plaintiff's property is of less value as residence than when used for business purposes.
If street boundaries were to influence the metes and bounds of zones, it would be natural that the limits of business A district should include the entire square north on Reading road to Lexington avenue, especially as directly north of plaintiff's property, across Reading road, is business A district.
It is manifest also in this connection that, if plaintiff's property is to be continued in a residential district, there being no street intervening between this property on the south and business A district, its proximity and contiguity to such business district will have a detrimental effect upon plaintiff's property for residence purposes, and this in spite of the fact that to the east directly and adjacent to her property is residence B district. The business district fringe along Reading road is marked and natural.
Many arguments have been presented pro and con why the plaintiff's property should be included in a residential district, but the controlling criterion has been definitely set out in the case of Nectow v. City of Cambridge, 277 U.S. 183, 48 S. Ct., 447, 72 L. Ed., 842:
"The inclusion of private land in a residential district under a zoning ordinance, with resulting inhibition of its use for business and industrial buildings to the serious damage of the owner, violates the Fourteenth Amendment if the health, safety, convenience or general welfare of the part of the city affected will not be promoted thereby."
A review of the evidence fails to show where the health, safety, convenience, or general welfare of the part of the city affected will in any way be promoted by arbitrarily and unnaturally including the plaintiff's property in a residence district across Lexington avenue.
The defendants, not having interposed any defense to the granting of the permit other than that predicated upon the application of the zoning ordinances, we hold that the permit must be granted, for the reason that while such ordinances constitute a proper exercise of police power vested in the city their application to the particular property involved is not warranted by the existence of any of the factors hereinbefore set forth as required. Judgment may be entered accordingly.
Writ allowed.
CUSHING and HAMILTON, JJ., concur.