Opinion
No. 96752.
1946-04-10
WILLIAMS et al. v. VILLAGE OF DEER PARK.
Lester B. Butterworth and Burke & Cooney, all of Cincinnati, for plaintiffs. J. Louis Warm, of Cincinnati, for solicitor, Village of Deer Park.
Action by Gilbert L. Williams and others against the Village of Deer Park. On defendant's motion for judgment on the pleadings.
Motion overruled, and plaintiffs awarded the relief prayed.
Reversed in App., 69 N.E.2d 536.Lester B. Butterworth and Burke & Cooney, all of Cincinnati, for plaintiffs. J. Louis Warm, of Cincinnati, for solicitor, Village of Deer Park.
STRUBLE, Judge.
This case is before the court on the motion of the defendant, the village of Deer Park, for a judgment in its favor on the pleadings.
In a decision on the motion the court must determine the merits of the case, which the court may do on the pleadings for the parties are in agreement on the essential facts of the case.
It appears that on the fifth day of September 1945, that the plaintiffs purchased Lot 145, located in the Concord Parks subdivision, situated in Sycamore township, Hamilton county, outside of but adjacent to the village of Deer Park.
The plaintiffs purchased this lot for the erection thereon of a two purpose building-residence and business. They engaged an architect and prepared plans and specifications for a two-story building, the first for a storeroom and the second for two apartments. They let the contract for the construction of this building and the basement for this building has been excavated and the footing completed, and building materials have been ordered and some materials are on the ground.
On January 21, 1946, the plaintiffs filed with the building inspector for Hamilton county, an application for a building permit for the construction of said building, and on January 24, 1946, the building inspector for Hamilton county, issued plaintiffs building permit No. 4059, authorizing them to proceed with the construction of this building.
In August 1945, freeholders within the Concord Parks Subdivision filed with the Hamilton County Commissioners, a petition for annexation of said subdivision to the village of Deer Park; and one of the plaintiffs, Gilbert L. Williams, signed this petition.
On November 21, 1945, the Hamilton County Commissioners acted favorably on this annexation petition.
On the 25th day of January 1946, the council of the village of Deer Park, passed an ordinance annexing said subdivision to the village of Deer Park, and on the same date the village council enacted a Stop-Gap Zoning ordinance, placing the annexed territory temporarily in ‘a residence zone.’ On the 25th day of January, the marshal of Deer Park acting under authority of said Stop-Gap Zoning ordinance, ordered a cessation of work on said structure, and threatened the workmen thereon with arrest, if they did not desist which they did in response to the orders of the mershal of Deer Park.
The village of Deer Park has an ordinance requiring that a building permit be obtained for any structure within the village, and the plaintiffs have not obtained from the village a building permit for the construction of this building. It appears further that the village of Deer Park has a Planning Commission, duly organized under authority of Section 4366-1, General Code.
As to zoning Section 4366-11, General Code, is as follows:
‘Changes within districts; when effective. The council or other legislative body may, from time to time, amend or change the number, shape, area or regulations of or within any district or districts; but no such amendment or change shall become effective unless the ordinance proposing such amendment or change shall first be submitted to the planning commission, board or officer for approval, disapproval or suggestions and the plaintiff commission, board or officer shall have been allowed a reasonable time, not less than thirty days, for consideration and report. * * *
‘Publication of notice and public hearing before passing ordinance. Before any ordinance, measure or regulation authorized by this and the three foregoing sections may be passed, the council or other legislative body shall hold a public hearing thereon, and shall give thirty days' notice of the time and place thereof in a newspaper of general circulation in the municipality; * * *
‘No such ordinance, measure or regulation which violates, differs from or departs from the plan or report submitted by the planning commission, board or officer shall take effect unless passed or approved by not less than three-fourths of the full membership of the council or other legislative body.’
On February 22, 1946, the planning commission of the village filed with the village council recommendations to the effect that the annexed territory be placed in a residential zone.
An ordinance incorporation the recommendations of the planning commission was in due time introduced in council and that a public hearing on said ordinance was called for March 29, 1946.
The parties concede that the building commissioner of Hamilton county is charged with the responsibilities and duties of issuing building permits for structures within the county outside the municipalities, and it is not claimed that the permit issued the plaintiffs for the construction of this building is invalid as to form or substance; hence, this building permit must be held to be valid, and that being so, the fact that it antedates the annexation of this territory to the village of Deer Park is conclusive of plaintiffs' right to proceed with the construction of this building without interference from village authorities. From what is alleged in the pleadings it is quite apparent that the parties were engaged in a race, each to forestall the other,-the plaintiffs to obtain this permit and get going with their building before the village council annexed this territory, and placed the same in a residential zone, thus excluding business structures such as the plaintiffs. The parties each knew of the purpose of the other and it was all right for each to try to out-distance the other, but the village lost out in this race and that is why it must lose out in this case.
The Stop-Gap Zoning ordinance is wholly invalid, and ineffective to hold up the construction of this building, pending the passage of a legal ordinance, placing this subdivision in a residential zone. The Stop-Gap Zoning ordinance was not based upon any recommendations of the village planning commission. The village council knows that under the law, that it must act upon the recommendations of the planning commission as to zoning. The ordinance now pending before village council is based upon recommendations of the planning commission, and if it has been passed, it has not as yet gone into effect unless they passed it as an emergency ordinance, and that could hardly be done with good grace.
The validity of these Stop-Gap ordinances was before the court in the recent case of State ex rel. v. Arnold, 138 Ohio St. 259, 34 N.E.2d 777, 136 A.L.R. 840. In the first paragraph of this case the court says:
‘A municipal council may not, by the enactment of an emergency ordinance, give retroactive effect to a pending zoning ordinance thus depriving a property owner with a zoning ordinance in effect at the time of the application for such permit.’
The court in this case was considering a Stop-Gap Zoning ordinance enacted by the village of Shaker Heights, and in the body of its opinion says:
‘We are of the further opinion that the council of the city of Shaker Heights was without power to adopt Ordinance No. 4709 by the procedure disclosed in the record. Such procedure clearly was not authorized by the statutes under which the city was attempting to enact its zoning legislation, to wit, Sections 4366-7 to 4366-11, General Code.’
I might say that even if the plaintiffs had not obtained a building permit from Hamilton county or that the one they had obtained proved to be illegal, nevertheless, all the time and until the village zoning ordinance is passed and becomes effective, the plaintiffs have had the right to apply to the village for a permit to build this structure, and if their application was in proper form, the village would have had to issue the same. People must conform to the laws as they are, and there is no way to compel them to await some anticipated change in the law.
The case of the State ex rel. v. Kreuzweiser reported in 120 Ohio St. 352, 166 N.E. 228, 229, is a case in point. The building inspector of the city of Youngstown had refused to issue a building permit upon a proper application for the same. The building inspector was acting in accordance with the Stop-Gap ordinance.
The court said in this opinion:
‘The permit applied for was denied only upon the ground that the city planning commission had proposed a zoning plan with which the proposed building ‘may conflict because of its character, but not because of the violation of the State or City Building Codes.’'
The court said further:
‘An inspector of buildings may not arbitrarily refuse the issuance of a building permit.’
And the court said further 120 Ohio St. at page 356, 166 N.E. at page 230:
‘Certainly no effect can be given to the restrictive provisions of an ordinance which it is contemplated by the building inspector may be enacted at some time in the future.’
The motion of the village of Deer Park is overruled, and the court finds in favor of the plaintiffs and awards them the relief prayed for.