Leslie v. City of Toledo

Paul W. Brown, J.,

dissenting. Obsolescence in comprehensive zoning schemes is a constant problem. As such changes occur, the necessary connection between zoning limitation on private property and the police power erodes. To say there is an observable lag between the rapid changes which occurred in the post World War II period which gave rise to the problem here addressed and voluntary legislative rezoning, reacting and adjusting to such changes, is to understate the problem. This lag is dramatic when one considers that in spite of population shifts occasioned by construction of intrastate highway systems, including municipal inner *494 belts and outer belts (federally schemed and funded and now substantially complete), and, further, in spite of changes occasioned by the much commented upon residential “flight to the suburbs,” little or no voluntary comprehensive legislative rezoning has occurred.

As a result, property owners with undeniably creditable claims of hardship resulting from such total obsolescence of overall comprehensive zoning, having no way of forcing comprehensive rezoning of the areas in which their properties lie, are required to rely upon individual applications addressed to administrative or legislative discretion and documented by evidence of hardship arising out of restrictions of use bearing so harshly upon a particular parcel that the loss of value is no longer justified by a sufficiently demonstrable connection with the police power. This is to say that the need for the restricted use and the public benefit are so out of balance as to raise constitutional doubts.

The usual method of attacking this problem is by applying to the proper administrative body for a variance and appealing that body’s decision under R. C. Chapter 2506 to the common pleas court if the application proves unsuccessful. State, ex rel. Sibarco Corp., v. Berea (1966), 7 Ohio St. 2d 85 . In such cases the evidentiary test of sufficiency relates to the reasonableness of the requested use or the unreasonableness of the agency’s refusal. Dudukovich v. Housing Authority (1979), 58 Ohio St. 2d 202, 207 .

Under more and more municipal schemes, however, administrative pressures or ordinances enacted pursuant to city charters require that after negotiation between the property owner and a zoning advisory commission, a conditional rezoning is legislatively enacted approving a specific upgraded use. See Stefanik, The Status of Conditional Rezoning in Illinois —An Argument to Sustain a Flexible Zoning Tool, 63 Ill. Bar J. 132.

From the record it would appear that some variant of such a scheme was followed by the applicant herein, and after approval by the zoning administrative body it was rejected by the city council.

Often, municipal schemes specify that a city council so acting is sitting in its administrative capacity and thus a R. C. *495 2506 administrative appeal is available. Where, as here, there is no claim that the applicant had failed to exhaust his administrative remedies, it becomes equally clear that the right to appeal both the reasonableness of the refusal or the sufficiency of the connection between the restriction and the police power is by way of an application for a declaratory judgment in the common pleas court. Driscoll v. Austintown Associates (1975), 42 Ohio St. 2d 263 ; Gates Mills Investment Co. v. Pepper Pike (1975), 44 Ohio St. 2d 73 .

This was done here and it is my view that the resulting trial is generally, and was here specifically, identical in all but form with a R. C. Chapter 2506 appeal, and the test of the reasonableness of the refusal and the sufficiency of present connection with the police power should apply. This is because an individual is being put to the test largely because an obsolescent comprehensive zoning plan has become unconstitutional as to its application to his property.

Applying this test, I conclude that the Court of Appeals properly reversed the trial court and fashioned a noteworthy and restrained order so as to not leave the parcel in question unzoned.

The majority, however, applies the test contained in Willott v. Beachwood (1964), 175 Ohio St. 557 , asserting that legislative action can be successfully challenged only if it is arbitrary, confiscatory, unconstitutional or substantially unrelated to public health, safety, morals or general welfare of the community. Willott v. Beachwood concerned an 80-acre shopping center designation. The rights challenged were not those of the individual property owner but those of adjacent and remote residents in the surrounding community who challenged the impact of the shopping center upon their properties. Clearly, the rule applicable to deciding where large shopping centers may be placed to provide the most convenient access with the least avoidable hardship is inappropriate to cases which concern only hardship resulting from obsolescent comprehensive zoning schemes.

City councils cannot be given so broad a power in such cases that their decisions are substantially unreviewable, for then their decisions may be based solely upon a hand count of those present objecting to the change. Thus, constitutional *496 questions historically ultimately justiciable become less so. To apply Willott to hardship cases concerning individual parcels is to say that variant uses unreasonably denied cannot be judicially reviewed if debatable merely because the change sought must be legislatively approved under a local ordinance, while in all other cases courts are empowered to review and grant such applications if the restriction has become unreasonable by changes occasioned by the passage of years. The line drawn is not a fine one, but if it were, there should still be no such line.

I would affirm the order of the Court of Appeals.

W. Brown, J., concurs in the foregoing dissenting opinion.