Citation. 22 Ill.297 F. 307 (N.D. Ohio 1924)
Brief Fact Summary. Amber Realty Company (Appellee) challenged the enforcement of a zoning ordinance on the ground that the enforcement would constitute an unconstitutional taking by devaluing his land.
Synopsis of Rule of Law. The ordinance must find its justification in some aspect of the police power, which is asserted for the public welfare. The court used the doctrine of nuisance to determine whether the zoning exclusions were proper.
The BZA is given the power to interpret the ordinance in connection with its general purpose and intent, so that the public health, safety, and general welfare may be secure and substantial justice done. Appellee contests the ordinance on the grounds that it violates the Fourteenth Amendment to the United States Constitution as being a deprivation of liberty and property without due process of law, it denies it the equal protection of the laws, and it violates certain provisions of the Ohio Constitution. The complaint prays for an injunction restraining the enforcement of the zoning ordinance. The lower court held that the ordinance is unconstitutional and void. The Appellants appealed.
Issue. Is the ordinance constitutional?
Held. Yes. The decision of the lower court is reversed.
The ordinance must find its justification in some aspect of the police power, asserted for the public welfare. The line, which separates the legitimate from the illegitimate exercise of power is not capable of precise demarcation. The court will use the doctrine of nuisance to determine if the zoning ordinance is legitimate.
Although Appellant is a suburb of Cleveland, Ohio, and is concerned with expanding industrial development, Appellant is nonetheless, a separate political entity and has the right to govern itself as it sees fit, so long as it does so within the strictures of the United States Constitution. Thus, as long as the zones of exclusion excluded a nuisance from the other zones, the ordinance was proper. The court had no difficulty in sustaining the zoning ordinance as a legitimate exercise of police power by the Appellant. The main question, which was one of first impression, is whether the exclusion from residential districts of apartment houses, retail stores and shops was valid.
Since the apartment houses are parasitic in nature, the Appellant was within its rights to exclude them from residential, single-family homes. The desirability of a neighborhood is, in the court’s opinion, greatly diminished by apartment houses.
Discussion. In zone one, only single-family residences are allowed. In order for the zoning ordinance to be valid, the apartment house must be a nuisance, which the Appellant is attempting to exclude from zone one. This court found that apartment houses were a nuisance to single-family houses, and thus, the zoning ordinance was proper.