Village of Hudson v. Albrecht, Inc.

Clifford F. Brown, J.,

dissenting. The decision of the court in this case effectively eliminates the need for local governmental bodies to enact zoning regulations which bear a rational relationship to legitimate police powers, under Section 3, Article XVIII of the Ohio Constitution. While the court cites Cincinnati v. Cornell (1943), 141 Ohio St. 535 [ 26 O.O. 116 ], it then discounts paragraph one of the syllabus which requires a “substantial relationship” between the objective of a statute and the public health, safety and general welfare.

Zoning ordinances which look to aesthetics for their basis have also caused difficulties in jurisdictions other than Ohio. To overcome the ancient philosophical debate over the basis for aesthetic judgments, one expert in this area, Professor Michelman, has suggested legal systems look to the impact that various land uses have on neighboring property values. 2 This tie to prop *75 erty values seems to be accepted by the court in its opinion as a rational relation to the enunciated police powers found in the Ohio Constitution. However, Michelman goes on to explain that only when an activity causes a decline of property values of neighboring parcels is there evidence that the activity is “* * * by a social consensus deemed intrinsically ugly, negatively suggestive, or destructive of prior existing beauty.” 3

In the present case the actions of appellants in no way impacted on the surrounding property values. Acme Store Number 4 is located in a shopping center. The changing of glass panels to aggregate panels does not affect the surrounding neighborhood. 4 Under the test enunciated by Michelman such action is not deemed to intrude on the aesthetics of the area.

One of the most commonly articulated reasons courts have given for being reluctant to sanction purely aesthetic regulations, even when those regulations are superficially tied to interests such as property value, is that aesthetics is a question of personal taste. What is aesthetically pleasing to one individual is an affront to the senses of another. This does not mean one individual is right and the other is wrong; rather, it merely means their tastes differ and governmental bodies should be very cautious about imposing the personal taste of one individual on another. Zoning as endorsed by Village of Euclid v. Ambler Realty Co. (1926), 272 U.S. 365 , was never meant to be a vehicle to enforce the personal taste of one on another. The purpose was to allow for the controlled and orderly growth of cities. There are many legitimate interests which should be protected by zoning. Aesthetics alone is not one of these.

The village of Hudson concedes, and this court agrees, that aesthetic considerations alone will not justify zoning restrictions. State v. Buckley (1968), 16 Ohio St. 2d 128, 132-133 [ 45 O.O.2d 469 ]; Youngstown v. Kahn Bros. Building Co. (1925), 112 Ohio St. 654 . However, this court improperly accepts the contention of the village that the zoning ordinance does not rest solely upon aesthetic considerations because Section 1204.01 “also reflects a concern for the monetary interests of protecting real estate from impairment and destruction of value.” This quoted portion of the court’s opinion is predicated upon the following vague, unstable zoning ordinance language, namely:

“1204.01 purposes.

“(a) Generally. The Architectural and Historic Board of Review hereinafter created shall serve * * * to protect real estate within a Municipality from impairment or destruction of value. * * *”

This is just a goal. Nowhere in the record in this case is there any evidence that the prohibited act of the defendant, namely, replacing a long row of plate glass windows from a store building with solid stone aggregate *76 panels, causes an “impairment or destruction” of value of real estate within the municipality.

The ordinance provision utilized to prohibit the stone panels is based upon aesthetic considerations alone and is unconstitutional. The statutes in Ghaster Properties, Inc. v. Preston (1964), 176 Ohio St. 425 [ 27 O.O.2d 388 ], cited by this court in its opinion, did not rest upon aesthetics alone but validly prohibited large billboards along interstate highways in order to promote public safety as well.

This zoning case has now placed us in the era of Orwell’s “1984” where Big Brother tells us what to do and think in a realm that is protected by the constitutional right of privacy under the First Amendment to the United States Constitution. Roe v. Wade (1973), 410 U.S. 113, 152 ; Stanley v. Georgia (1969), 394 U.S. 557 ; Griswold v. Connecticut (1965), 381 U.S. 479 ; see Williams, Subjectivity, Expression and Privacy: Problems of Aesthetic Regulation (1977), 62 Minn. L. Rev.; Note, Architecture, Aesthetic Zoning, and the First Amendment (1975), 28 Stan. L. Rev. 179 , 184.

If a zoning code regulation or restriction devoted solely to aesthetic considerations, as in this case, can be bootstrapped to the status of lawfulness by merely adding a provision somewhere in the zoning code that the purpose of the zoning regulation is to protect real estate “from impairment or destruction of value,” then any zoning code provision, no matter how absurd, unreasonable or confiscatory can be given the aura of lawfulness.

One constraint on zoning regulations which the majority summarily dismisses is that such regulations must not be arbitrary or vague. Cincinnati v. Cornell, supra, at paragraph one of the syllabus, requires that zoning regulations, “* * * must not be arbitrary, discriminatory, capricious or unreasonable * *

A New Jersey court when faced with an ordinance similar to the one involved in this case invalidated that portion of the ordinance concerned with architectural standards. The court in Morristown Assoc. v. Mayor of Bernardsville (1978), 163 N.J. Super. 58 , 394 A. 2d 157 , reasoned that:

“* * * The basic criterion for design review under the ordinance is harmony with existing structures and terrain. The standard does not adequately circumscribe the process of administrative decision nor does it provide an understandable criterion for judicial review. It vests the design review committee, as well as the planning board, with too broad a discretion, and permits determinations based upon whim, caprice or subjective considerations. Harmony of design and appearance is conceptual. A proposal which is considered harmonious and appropriate by one person may be deemed displeasing by another. A standard which permits such evaluations does not meet the test of certainty and definiteness required of zoning regulations. * * * This deficiency likewise precludes the measurement of the reasonableness of a design approval or disapproval, thereby preventing a reviewing court from effectively determining when a decision has been arbitrary or capricious. The portions of the subject ordinance which dictates [sic] standards for architec *77 tural design must therefore be invalidated as impermissibly vague and indefinite.” Id. at 67-68 .

A close examination of the village of Hudson ordinance which sets forth the standards of review, Section 1204.01(a), reveals that it is based on vague standards which are beyond any real definition or interpretation. 5 The allowance of such standards of review vests in the board of review absolute power to impose its will on the private property interests of citizens of the village of Hudson, without any meaningful criterion of review existing for the courts which may be called on to examine the board’s findings. Such power is beyond the Constitution of the state of Ohio, as well as the United States Constitution.

The opinion of the court has set the stage in Ohio for local governments to enact any restriction on private land usage they desire. This court has made it perfectly clear that it does not require those restrictions to meet the rational relationship test. The court does not even require such restrictions to meet constitutional standards of review for vagueness. Under such a system,bribery will become the only way landowners of the future will be able to effect any reasonable and proper change with regard to the use of their properties.

It is for these reasons that I dissent from the majority and would reverse the decision of the court of appeals.

Michelman, Toward a Practical Standard for Aesthetic Regulation (Feb. 1969), 15 Prac. Law No. 2, 36.

Id. at 36, 37.

See dissent in Consolidated Management, Inc. v. Cleveland (1983), 6 Ohio St. 3d 238, 243 .

Section 1204.01(a) of the village of Hudson Zoning ordinance reads in pertinent part:

“* * * In reviewing, regulating and approving building plans, the Board shall consider and take cognizance of the development of adjacent, contiguous and neighboring buildings and properties for the purpose of achieving safe, harmonious and integrated development of related properties.”