Opinion
No. 34028
Decided December 22, 1954.
Municipal corporations — Noncharter municipalities — Power to enact emergency zoning ordinances — Public hearing and notice thereof — Compliance with statutory requirements necessary — Section 4366-11, General Code — Procedure for passage of legislation — Statutory requirements must be followed.
1. Section 3, Article XVIII of the Constitution of Ohio, conferring "home rule" power, does not in and of itself empower an Ohio noncharter municipality to enact an emergency zoning ordinance effective immediately; and such noncharter municipality, in the enactment of a zoning ordinance, must comply with the provisions of Section 4366-11, General Code (Section 713.12, Revised Code), which requires the holding of a public hearing on such ordinance preceded by a 30-day notice of the time and place of such hearing.
2. An Ohio municipality which has not adopted a charter for its government, as authorized by Section 7, Article XVIII of the Constitution of Ohio, must, in the passage of its legislation, follow the procedure prescribed by the statutes enacted pursuant to the mandate of Section 2, Article XVIII of the Constitution.
APPEAL from the Court of Appeals for Cuyahoga County.
The question involved in this case, an injunction suit, is whether a noncharter municipality, under the "home rule" provisions of Section 3, Article XVIII of the Constitution of Ohio, possesses the power to adopt an emergency zoning ordinance effective immediately, or whether such municipality in adopting a zoning ordinance is governed by Section 4366-11, General Code (Section 713.12, Revised Code), which requires the holding of a public hearing and the giving of a 30-day notice of the time and place of such hearing.
The Court of Common Pleas of Cuyahoga County held that the statutory enactment applies and that a noncharter municipality lacks the authority to effectively adopt an emergency zoning ordinance, whereas the Court of Appeals on an appeal on questions of law and fact reached an opposite conclusion.
An appeal as of right and the allowance of a motion to require the Court of Appeals to certify its record place the problem before this court for decision.
As disclosed by the record, the facts in the controversy are these:
Rose Roseman, defendant and an appellant herein, owns a 73-acre tract of land in what is now the village of Oakwood, Cuyahoga County, which village was formerly a part of Bedford Township. Plaintiffs, appellees herein, are the owners of and live in residence properties near the Roseman land.
On November 2, 1948, Bedford Township adopted a zoning resolution whereby the Roseman land was restricted in its use to single-residence dwellings. At the election held May 1, 1951, the incorporation of the village of Oakwood was approved, and on the day following the election the construction of a foundry building was started on the Roseman land in close proximity to plaintiffs' homes. Thereupon the defendants Zoltan Roseman and Rose Roseman were served with a citation for violation of the Bedford Township zoning resolution, and work on the foundry building was halted.
A legal action prevented the recording of the articles of incorporation of the village of Oakwood until October 19, 1951, on which date they were recorded and the requisite certificate was obtained from the Secretary of State.
By virtue of Section 3180-42, General Code (Section 519.18, Revised Code), the regulations and ordinances of Bedford Township then ceased to apply to the village of Oakwood.
However, on October 19, 1951, shortly after the certificate had been issued by the Secretary of State, the council of the village of Oakwood met and adopted an emergency zoning ordinance effective immediately, which ordinance is the basis of this suit.
By the terms of such emergency zoning ordinance, the use of the Roseman land was restricted to single-residence dwellings.
Based on such emergency ordinance plaintiffs then instituted this injunction suit in the Court of Common Pleas to prevent the Rosemans from continuing the construction of the foundry building on their land, in which suit they were unsuccessful in the trial court but successful in the Court of Appeals.
Messrs. Horan Bell, for appellees.
Mr. Sidney A. Thorman and Mr. Jacob I. Rosenbaum, for appellants.
We now revert to the question of whether a noncharter municipality such as the village of Oakwood, under the "home rule" powers accorded it by Section 3, Article XVIII of the Constitution of Ohio, possesses the power to effectively adopt an emergency zoning ordinance such as the one in controversy or whether such municipality is governed by the provisions of Section 4366-11, General Code (Section 713.12, Revised Code), which in effect forbid such procedure.
Section 3, Article XVIII of the Constitution, confers upon municipalities the "authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."
In the case of Village of Perrysburg v. Ridgway, a Taxpayer, 108 Ohio St. 245, 140 N.E. 595, it was held that such section is self-executing, and that the power of local self-government is inherent in all municipalities regardless of enabling legislation and the existence of municipal charters.
It has also been held that under such powers of local self-government a municipality may enact ordinances relating to the subject of zoning. Pritz v. Messer, 112 Ohio St. 628, 149 N.E. 30.
But how and in what manner is such power to be exercised?
The Constitution of Ohio provides two ways. By Section 2, Article XVIII, a mandatory duty is placed upon the General Assembly to enact laws for the incorporation and government of cities and villages, and Section 7, Article XVIII, grants a municipality the option of determining its own plan of local self-government by framing and adopting a charter. If a municipality adopts a charter it thereby and thereunder has the power to enact and enforce ordinances relating to local affairs, but, if it does not, its organization and operation are regulated by the statutory provisions covering the subject.
In other words, by Sections 3 and 7 of Article XVIII of the Constitution, a municipality has the power to govern itself locally in certain respects. The statutes in no way inhibit such power but merely prescribe an orderly method for the exercise of such power where the municipality has not adopted a charter and set up its own governmental machinery thereunder.
The General Assembly in adopting a statutory plan for the government of municipalities generally, as required by the Constitution, has specified the procedure to be followed with respect to the adoption of zoning ordinances. This procedure is designed to safeguard property rights and to give property owners a fair opportunity to enter a protest against an ordinance or regulation which may materially interfere with the use of their property or decrease its value. But the plaintiffs contend that the General Assembly by the language employed in Sections 4366-12 and 4366-12 a, General Code (Sections 713.14 and 713.13, Revised Code), recognized the import and significance of Section 3, Article XVIII of the Constitution, and specifically exempted noncharter municipalities from the operation of the zoning statutes. The pertinent statutory language is as follows:
"Nothing contained in the foregoing Sections 4366-7 to 4366-11 inclusive shall be deemed to repeal, reduce or modify any power granted by law or charter to any municipality, council or other legislative body of a municipality nor to impair or restrict the power of any municipality under Article XVIII of the Constitution of Ohio."
"It shall be unlawful to erect, construct, alter, repair, or maintain any building or structure or to use any land in violation of any zoning ordinance or regulation enacted or adopted under and pursuant to Sections 4366-7 to 4366-11, inclusive, of the General Code, or Section 3 of Article XVIII of the Ohio Constitution."
It would appear to us that the quoted language has reference to those municipalities which have adopted charters and which have incorporated provisions in such charters with respect to enacting ordinances pertaining to the subject of zoning and does not embrace any inherent powers of noncharter municipalities to pass zoning ordinances, otherwise than prescribed by statute.
Since the noncharter village of Oakwood was subject to the statutory enactments with respect to the procedure to be followed in the adoption of zoning ordinances, it was required to follow the provisions of Section 4366-11, General Code (Section 713.12, Revised Code), which necessitated a public hearing preceded by a 30-day notice thereof, and the emergency ordinance it attempted to adopt in a manner contrary to such statute was wholly unauthorized and ineffective.
We believe the position we have taken finds support, in principle at least, in the case of State, ex rel. Fairmount Center Co., v. Arnold, Dir., 138 Ohio St. 259, 34 N.E.2d 777, 136 A.L.R., 840.
Therefore, the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
MIDDLETON, TAFT, HART and STEWART, JJ., concur.
WEYGANDT, C.J., dissents on authority of Village of Perrysburg v. Ridgway, a Taxpayer, 108 Ohio St. 245, 140 N.E. 595.
MATTHIAS, J., not participating.