Petition — City of Euclid v. Fitzthum

IN THE MICHAEL RODAK, JR., CLERK

(Se ee ee ee

Peo OA 8 a’

* . Bs ae

SUPREME COURT of the UNITED STATES

October Term, 1976

No. "6-779 §

CITY OF EUCLID, OHIO,

Petitioner,

vs.

JAMES FITZTHUM, et al, and

CHARLES REES,

Respondents.

—oEEESEEEEEEESE———ESE——E— Se

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of Ohio

ed

PATRICK R, ROCCO

Director of Law,

City of Euclid

HENRY B. FISCHER

Asst. Director of Law,

City of Euclid

585 East 222nd Street

Euclid, Ohio 44123

Phone: (216) 731-6000

Attorneys for Petitioner

i

TABLE OF CONTENTS

Citations to Opinions Below . «++ +s+e+e«e-s 2

ae i ee ae ee ee

Questions Presented for Review , . ; eee een

Constitutional and City Ordinance

Provision Involved ....+++e+eee8 4

Statement of the Case. ...s++eeeeereee 4

Reasons for Granting the Writ ....++++++ 7

Il. To Clarify the Standard of Review

Applicable to Individual Provisions

of a Comprehensive Zoning Ordinance

Under the “Due Process" and “Equal

Protection" Clauses of the Fourteenth

Amendment where no "Suspect Classi-

fication" or “Fundamental Interest”

Pertains; Especially Provisions for

the Control of Truck, Trailer, Recre-

ational Vehicle, and Camper Storage

on Residentially Zoned Property. .... 7

Il. To Resolve Conflicts Among State

Courts Concerning the Standard of

Review of the “Due Process" and

"Equal Protection" Clauses of the

Fourteenth Amendment Applicable to

Individual Provisions of a Comprehensive

Zoning Ordinance; Especially Provisions

for the Control of Truck, Trailer, Recre-

ational Vehicle, and Camper Storage on

Residentially Zoned Property. ..... 13

il

EN SE eNO Lee ee ese

Proof of Service >. . . . > . . . . . . . > . . . >. 15

APPENDIX:

Orders of Supreme Court of Ohio Dismissing

Appeal. .cceres

. *. . . . se . l

Orders of Supreme Court of Ohio Overruling

Motion to Certify Record. .......A2

Journal Entry and Opinion of the Court

GCEAp~ORIB. ccc cecevcccececccee A

Journal Entry - Rees case. .......+..4A3

Opinion ~ Fitzhum, etal, case,...... A4

Opinion of the Euclid Municipal Court . . .Al4

iil

TABLE OF AUTHORITIES

Cases

Borman v, Parka, 348 U.S. 26. ..4+6+++6-58 ll

Carlton v. Riddell (App.) 58 Ohio Op. 380,

dismissed for want of debatable question

ll

164 Ohio St. 322 . . *. . * * > - . * * *

City of Euclid v. Paul (1974), Ct. of App., 8th

Dist., Case No. 33024, cert. denied

June 17, 1974, Ohio Supreme Court

Gase Mo. 74-819. sec ccc cecescee

Connor v. West Bloomfield T.P. (1953, 6th Cir.)

207 £f 2d 428 . . . . * . . . . . . . . . . 14

Criterion Service, Inc. v. East Cleveland p.)

55 Ohio L. Abs. 90, 88 N.E. 2d 300,

dismissed for want of debatable question

152 Ohio St. 416 . . *. . . . = = * . . 12

Cusack Co, v. City of Chicago (1917), 242 U.S.

12

526 . . . . . . . . . . . . . . . . . . . . .

Davis v. McPherson (1955, App.), 58 Ohio Op.

253, 72 Ohio L. Abs. 232, 132 N.E. 2d 626,

appeal dismissed 164 Ohio St. 376. cece be

Euclid v. Ambler Realty 2s ., 272 U.S. 365

ns ob se 6 6 eee

F. S. Royster Guano Co. vs. Virginia (1920),

253 U.S. 412. . . . *. . . . * . . . *e . . . g

iv

Griswold v. Connecticut (1965), 381 U.S.

S78, 44 Lhe. 26 BO ce tee a ee 10

Lindsley v, National Carbonic Gas Co. (1911)

tf * | ae er 9

McDonald v. Board of Election Commrs. (1969)

hk ree Ae 9

McGowan v. Maryland, (1961), 366 U.S. 479,

6 i -F 2d 303, . . . _ . . . . . . . . . . 8

AACP v. Alabama (1958), 357 U.S. 449 .....8

Neithamer v, Hayer, 39 Ohio App. 532..... 10

P.&S. Investment Co. v. Brown (OhioApp. 1874)

40 ORiO Ape. 34596. .cccrcreccececdl

Pace v. Walton Hills, 15 Ohio St. 2d 51, ....11

Peebles v. State (App.) 25 Ohio L. Abs. 545,

dismissed for want of debatable question

133 Ohio St. 130 . . . . . . . . . , . . . . .10

Pekeray v. Township Committee of Gloucester

Tp. (1962) , 37 N.J. 232, 181A. 2d 129, cert,

den, and appeal dismissed 371 U.S. 233, , dl

Pritz v. Messer, 112 Ohio St. 628 .,.,.... 10

Shapiro v. Thompson (1969), 394 U.S. 618 ,.. 8

State ex rel. City Ice and Fuel Co. v. Stegner,

120 Ohio St. 418, . . . . * . . . . . . * * .10

State ex rel. Clifton-Highland Co, v. Lakewood,

41 Ohio App. 9, aff'd 124 Ohio St. 399,

cert. den. 285 J.8.549 .....eececee 10

Vv

State ex rel. Morris v. Osborn, 22 Ohio N.P. (n.s.)

$46, DO.D.W.P. Wi cceoceseeeeem ; IN THE

: SUPREME COURT GCF THE UNITED STATES

State v. Huffman, 20 OhioApp. 2d 263 ,.,.,11 OCTCBER TERM, 1976

‘ No.

In Re Suddell v, Zoning Board of Appeals

of Larchmont (N.Y. 1975), 327 N.E.

36 WU, coc seecveueee eee ee CITY CF EUCLID, OHIO,

Village of Belle Terre v. Boraas, 416 U.S.

S| arr —

Petitioner,

vs.

Village of Glenview v. VanDyke (Ill. 1968),

240 NE. 24384... cee vecvvsvecece iA JAMES FITZHUM, et al. and

CHARLES E. REES,

Williamson v. Lee Optical Co. (1955) 348

U.S. 483. . . . . *. . . . . om . * . . . . . i)

Respondents

Yick Wo v, Hopkins (1886), 118 U.S. 356 ....9

Constitution, Statute and Ordinance PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of Ohio

Constitution of the United States, Fourteenth

Aemenamem. «ccscecvcsseeee Shee

Petitioner, the City of Euclid, Ohio, prays

Title 28, U.S.C., Section 1257 (3). .....2e.«- 2 that a Writ of Certiorari issue to review the judg-

ments of the Chio Supreme Court entered on

City of Euclid Ordinance-Codified Ordinance September 10, 1976 and October 8, 1976, dismiss-

Section 1977.06 ~ccececvevseevnee mee ing the appeals and overruling Appellant-Petitioner's

Motions to Certify the Record to review the

decisions of the Court of Appeals of Cuyahoga

County, Ohio, Eighth Appellate District, filed on

February 26, 1976 and May 19, 1976, reversing the

decision of the Euclid Municipal Court, filed

December 31, 1974.

2

CITATIONS TO OPINIONS BELOW

The Journal Entries of the Ohio Supreme

Court are reported at 48 Ohio State Bar Associa-

tion Report, 1221 (September 20, 1976) and 1416

(October 18, 1976) and are set forth in the Appendix,

infra, at page Al. The Journal Entry in the Rees case

and the opinion in the Fitzhum, et al. cases of the

Court of Appeals for Cuyahoga County, Eighth

Appellate District are unreported and set forth in

the Appendix, infra, at page A3. The consolidated

Journal Entry for these cases of the Municipal

Court of Euclid, Ohio is unreported and is set forth

in the Appendix, infra, at page A 14.

JURISDICTION

The Judgments of the Ohio Supreme Court

were rendered and filed on September 10, 1976 and

October 8, 1976. The jurisdiction of the Court

is invoked pursuant to Title 28, U.S.C. Section

1257(3).

QUESTIONS PRESENTED FOR REVIEW

1. Where all persons, similarly circumstanced

as owners of residentially zoned property, are

treated alike by a zoning ordinance provision

requiring their trucks, house trailers, and recrea-

tional vehicles to be stored in garages, but not

regulating the storage of their boats, does the

failure to regulate storage of boats and other

recreational equipment violate the “Equal Protection

clause of the Fourteenth Amendment"... nor

shall any State . . . deny to any person within

its jurisdiction the equal protection of the laws"?

3

2. Where all persons, similarly circumstanced

as owners of residentially zoned property, are treated

. alike by a zoning ordinance provision requiring their

trucks and recreational vehicles to be stored in

garages, but not regulating the storage of their

boats, and such ordinance is found to be a constitu-

tional enactment in the furtherance of the public

health, safety, morals and general welfare, may a

state Court of Appeals declare such ordinance unconsti-

tutional and violative of the "due process" and “equal

protection" clauses of the Fourteenth Amendment of

the U.S. Constitution as applied, for the following

reasons, individually or combined, to-wit:

1) the storage of boats or other recreational

equipment is not regulated by such provision;

or

2) wherve there is testimony that the fire and

health hazard is greater where sanitary

waste and propane gas leaks occur from

improperly maintained equipment in a closed

garage as compared to the open air from

such recreational vehicles (no accident

history was evident),

and overturn the conviction of a defendant under such

ordinance provision for parking a recreational vehicle

(too large in height, width, and length to fit into a

garage) in front of or to the side of the garage so as

to reduce the open spaces in a residential district?

May such state Court of Appeals make a similar

finding with respect to a truck used to haul paper trash?

4

CONSTITUTIONAL AND CITY ORDINANCE

PROVISIONS INVOLVED

U.S. Const. Amend. XIV. Sec. 1

- « - } nor shall any State deprive any person

of life, liberty or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

City of Euclid Codified Ordinances, Sec. 1377.06

No person shall park or store any type

of truck, trailer, auto trailer or trailer coach in

a Ul, U2, or U3 USE DISTRICT either on public

or private property (including the public streets

or highways), excepting to make pickups or

deliveries, unless such truck, trailer, house

trailer, auto trailer or trailer coach is parked

or stored in a completely enclosed structure.

STATEMENT OF THE CASE

Section 1377.06 of the City of Euclid's

Codified Ordinances, a Zoning Code provision, was

found to be constitutional under the Fourteenth Amend-

ment in the case of City of Euclid vs. Paul (1974),

Court of Appeals for Cuyahoga County, Ohio, Eighth

Appellate District Case No. 33024, cert. denied

June 17, 1974, Ohio Supreme Court Case No. 74-319.

All of the prope~ties of the defendants-

respondents are located .n residential districts zoned

for single or two-family dwelling structures (Ul or U2).

The garages of defendants Fitzhum, Payne,

Peattie, Smith and Wisniewski were too small to contain

their recreational vehicles. The garages have a 7 foot

high opening.

The trucks, trailers or recreational vehicles

of all defendants were stored in their rear yards.

Defendant Rees corner lot rear yard is adjacent to

and exposed to the street.

All of the recreational vehicles of Defendants

Fitzhum, Payne, Peattie,Smith and Wisniewski have

the following facilities: toilet and storage tank,

running water, stove, refrigerator, and heater

operated by propane fuel or electric (battery or

gasoline generator). For storage, the propane gas

supply should be shut off and the sanitary storage

tank should be dumped at an approved dumping ground

and disinfectant added.

Defendant Fitzhum's camper trailer (18 i/2

feet long, 8 1/2 feet high and 8 feet wide) was stored

beside his detached garage about 45 feet from his

house on his lot 40 feet wide and 140 feet deep.

Defendant Payne's camper trailer (21 feet

long, 9 feet high and 8 1/2 feet wide) was stored

in front of the garage some 50 feet from his house

on a lot 60 feet wide and 325 feet deep.

Defendant Peattie's camper trailer (22 feet

long, 8 feet high and 8 feet wide) was stored on

blocks and jacks on planks 3 feet from his house

on a lot 45 feet wide and 112 feet deep.

Defendant Smith's mobile camper (self-

propelled)(24 feet long, 10 feet high and 7 1/2

feet wide) was parked or stored in front of his

garage about 4 feet from his house on a lot 45

feet wide and 125 feet deep.

6

Defendant Rees's truck, used for storing

and hauling scrap paper could fit into his garage,

but he already had another truck stored there.

Defendant Rees's truck is actually a commercial

type of vehicle.

The defendants were found guilty of parking

or storing their trucks or recreational vehicles on

residential property other than in a completely

enclosed structure, i.e., in a garage, in violation

of Section 1377.06 of the Euclid Codified Ordinances.

Upon appeal by the defendants, the Court

of Appeals declared the ordinance provision in

violation of the “due process" and “equal protection"

clauses of the Fourteenth Amendment as applied

to the recreational vehicle owners-defendants on

February 26, 1976, and discharged such defendants.

Thereafter, the Court of Appeals discharged defendant

Rees, as well, on May 19, 1976, holding that the

“ordinance upon which his conviction was based

was declared unconstitutional in companion cases."

The Ohio Supreme Court denied jurisdiction upon

appeal of the first matter on September 10, 1976,

and in the second matter on October 8, 1976.

7

REASONS FOR GRANTING THE WRIT

I. To Clarify the Standard of Review Applicable

to Individual Provisions of a Comprehensive

Zoning Ordinance Under the "Due Process"

and “Equal Protection" Clauses of the

Fourteenth Amendment Where no "Suspect

Classification" or "Fundamental Interest"

Pertains; Especially Provisions for the

Control of Truck, Trailer, Recreational

Vehicle, and Camper Storage on Residentially

Zoned Property.

The storage of a truck or van used as a recre-

tional vehicle is clearly not an accessory use in a

residential district incidental and customary thereto.

The indiscriminate storage of such vehicles on

residential property has to be prohibited to prevent

the very evils that zoning districts and ordinances

are created to prevent, e.g., substantial reduction

of open spaces; instant trailer camps; instant creation

of an additional dwelling unit where zoning prohibits

an additional dwelling unit; potential overcrowding;

the display of signs on trucks, accessory to commer-

cial uses; intrusion of moving vans, cement mixers

and other construction trucks, etc.; conversion of

residential property to commercial property; etc.

Recreational vehicles, although increasingly

popular, are indistinguishable from trucks for the

most part, e.g.: What is the difference between a

"Winnebago" van and a moving van? If a moving

van (probably safer than a recreational vehicle) is

allowed, why not storage of a cement mixer? The

fact that the Court of Appeals set aside the Rees case

conviction for open storage of a commercial vehicle

upon authority of the Fitzhum et al. case where the

vehicle involved is a commercial type truck,

fully illustrates how judicial reasoning actually

expanded in these matters.

The Euclid ordinance prohibits such storage,

but allows an exception if: (1) These vehicles are

small enough to fit in the garages that are

permitted in residential districts, and (2) The

vehicles are in fact stored in such garages. The

limitation is much analogous to the "defined"

accessory use of “home occupations". An attempt

is made by the legislators to be as liberal as

possible to home owners without permitting

intrusions that defeat the general zoning purposes.

For example: A recreational vehicle in 4 garage

is less likely to be used as an extra dwelling

unit; the sign on a van in a garage is not displayed

in a residential district, thus preventing the opening

for all to display signs on their houses; the size

and place of the vehicles is limited to permitted

sized garages, preventing an opening for moving

vans and cement mixers and the like.

The Court of Appeals recognized that it was

not dealing with a right so fundamental so that the

category is suspect and that the City need not

show a compelling state interest to justify classifi-

cation. See NAACP v. Alabama (1958), 357 U.S. 449,

Griswold v. Connecticut (1965), 381 U.S. 479, L.Ed.

2d 510; Shapiro v. Thompson (1969), 394 U.S. 618.

They found that equal protection considerations are

satisfied "if any state of facts reasonably may be

conceived to justify" them. See McGowan v.

Maryland (1961), 366 U.S. 420.

Here, all persons similarly circumstanced,

i.e., owners of residentially zoned property, are

9

treated alike: their campers, trucks and recreational

vehicles must be stored in a garage while they are

not regulated regarding the storage of their boats

and certain other recreational equipment. l

v. Natural Carbonic Gas Co, (1911), 220 U.S. 61;

F.S. Royster Guano Co, v. Virginia, 253 U.S. 412

(1920). The legislature is invested with discretion

and does not have to try to deal with an evil or

class of evils all within the scope of one enactment,

but may approach the remedy piecemeal, learn

from experience, and may ameliorate harmful résults

differently. McDonald v. Board of Elections Commrs.

394 U.S. 802 (1969); Williamson v. Lee Optical Co,

348 U.S. 483 (1955). The enforcement standards

are present and no invidious discrimination was even

alleged in the instant situation. The case of Yick Wo

v. Hopkins, 118 U.S. 356 (1886), where a board of

supervisors had arbitrary authority to consent to

permit laundry business and such board denied virtually

all Chinese such consent, has no application here.

The power to establish districts limited to

residential district uses and their accessories is a

fundamental component of the power to zone. The

principal concern is to protect the residential

environment from the intrusion of commercial, indus-

trial, and other uses incompatible with the public

health, safety, morals and general welfare. A

comprehensive plan, such as is found in the City

of Euclid, regulates the uses, the height, and the

location of buildings and other structures. It may

prescribe setbacks, yard, and percentage of lot

occupancy. It has been held that zoning ordinances

which exclude commercial and industrial uses from

residential districts are substantially related to the

10

health and safety of the community and serves the

general welfare by prohibiting intrusions which

change the character of such neighborhoods. See

Euclid v. Ambler Realty Co., 272 U.S. 365; Pritz

v. Messer, ll2 Ohio St. 628; State ex rel, City

Ice and Fuel Co, v. Stegner, 120 Ohio St. 418;

State ex rel Clifton-Highland Co, v. Lakewood,

4l Ohio App. 9, aff'd 124 Ohio St. 399, cert. den.

285 U. S. 549; Peebles v. State (App.), 25 Ohio

L. Abs. 545, dismissed for want of debatable

question 133 Ohio St. 130; Neithamer v. Hayer,

39 Ohio App. 532.

Zoning ordinances commonly establish two

or more classes of residential districts, e.g., 4

single family district, a single and two family

district, and multiple dwelling or apartment districts.

It has been urged that these distinctions are based

solely upon_aesthetic purposes. But the courts

have upheld the exclusion of apartments from

residential districts. While an apartment is not a

nuisance, the erection of an apartment in a single

family residential neighborhood injures the environ-

ment of the detached dwellings, reduces open space,

light and air, causes overcrowding, and tends to

reduce property values of the single family properties.

See Euclid v. Ambler Realty Co., supra; State ex

rel Morris v. Osborn, 22 Ohio N.P. (n.s.) 549,

31 0.D.N.P. 197; Village of Belle Terre v. Boraas,

416 U.S. 1.

Key to the protection of residential districts

is to forbid uses accessory to uses permitted in

another use district. The intrusion of a single

family district with uses akin or accessory to 4

1}

multi-family or commercial district destroys the

character and integrity of the single family district,

makes it impossible to determine the actual prime

use of residentially zoned properties, creates

an atmosphere indistinguishable from the other use

districts, makes enforcement of use districts

impossible, and thereby tends to utterly frustrate

the legitimate and constitutional ends to be accom-

plished by comprehensive zoning.

In the City of Euclid trailer parks are

prohibited and it has been held that such a prohi-

bition is not violative of any constitutional |

provision, i.e., a city does not have to provide

a district for every conceivable use. See Carlton

v. Riddell (App.), 58 Ohio Op. 380, 72 Ohio L.

Abs. 254, 132 N.E. 2d 772, dismissed for want of

debatable question 164 Ohio St. 322, 58 Chio Op.

103, 130 N.E. 2d 704; State v. Huffman, 20 Ohio

App. 2d 263, 49 Ohio Op. 2d 357, 253 N.E. 2d

812; Davis v. McPherson (1955, App.), 58 Ohio

Op. 253, 72 Ohio L. Abs. 232, 132 N.E. 2d 626,

appeal dismissed 164 Ohio St. 375, 58 Ohio Op.

157, 130 N.E. 2d 794; Perkeray v. Township

Committee of Gloucester Tp. (1962), 37 N.J. 232,

181A. 2d 129, cert. den. and appeal dismissed 371

U.S. 233, 9 L.Ed. 2d 495, 83 S. Ct. 326.

Signs and billboards,although not a direct

health hazard, may be prohibited in residential dis-

tricts, since the erection thereof is not accessory,

incidental or customary to such use. See Pace v.

Walton Hills, 15 Ohio St. 2d 51, wherein such an

ordinance was held unconstitutional only to the

extent that political signs were prohibited. It has

12

been held that signs and billboards may be displayed

only as an accessory use to the lawful business

conducted on the premises. See Criterion Service,

Inc. v. East Cleveland (App.) 55 Ohio L. Abs. 90,

88 N.E. 2d 300, dismissed for want of debatable

question 152 Ohio St. 416. See also Cusack Co,

v. City of Chicago, 242 U.S. 526 (1917).

Accessory use regulations must be regarded

as corollary to fundamental zoning principles and

their validity must be so premised. Such regulations

cannot be taken in a vacuum, such as provisions

in a building code establishing the number of

electrical outlets in a room, the type of ventilation

required for a furnace or bathroom, the number of

toilets in a rooming house, all of which individually

bear directly upon health and safety. Zoning law

provisions bear directly upon health, safety, morals

and welfare in a comprehensive way.

If the validity of the legislative classification

for zoning purposes is fairly debatable, the legis-

lative judgment must be allowed to control, The

evils of overcrowding people, offensive trades, indus-

tries, and structures might create nuisances to

residential sections and such must, therefore, be

controlled. It is a legitimate end to keep areas free

of disturbing noises, increased traffic, the hazard

of moving and parked automobiles, depriving children

of the privilege of quiet open spaces for play.

Miserable and disreputable housing conditions may

do more than spread disease and crime and immorality.

They may also be an ugly sore; a blight on the

community which robs it of charm and makes it a

place from which men turn. These are the considerations

that must be made in judging the constitutionality

13

of provisions in a comprehensive zoning ordinance.

See Euclid v. Ambler Realty Co., supra; Village

of Belle Terre v. Boraas, supra; Berman v. Parker,

348 U.S. 26.

It would appear that the legislative discretion

of the Euclid Council should prevail, especially

since there was a lack of any history of accidents

caused by storing recreational vehicles in garages

and the defendants were certainly not prejudiced

by the lack of regulation of boats and other recre-

ational equipment.

Il. To Resolve Conflicts Among State Courts

Concerning the Standard or Review of the

“Due Process" and “Equal Protection"

lauses of the rteenth Amendment

Applicable to Individual Provisions of

rehensive Zoning Ordinance;

cs ecially Provisions for the Control

of Truck, Trailer, Recreational Vehicle,

and Camper Storage on Residentially

Zoned Property.

On the same facts it has been held that the

mere fact that boat owners are not regulated by

a comparable ordinance does not make the restriction

with respect to recreational vehicles unreasonable

or arbitrary. As the New York Court of Appeals

asserted in InRe Suddell v. Zoning Board of Appeals

of Larchmont, 327 N.E. 2d 809 (1975):

"Nor do we think that the ordinance is made

unreasonable merely because outside storage

of boats . . . is not subject to the same

permit requirements...

We nate that what authorities there are in

other jurisdictions are in accord." 327 N.E. 2d 8ll.

See also Village of Glenview v. Van Dyke, 240 N.E.

2d 354 (Ill. Ct. App. 1968); Connor v. West Bloom- .

field T.P. 207 F. 2d 428 (6th Cir. 1953); P, & S.

Investment Co. v. Brown , 40 Ohio App. 2d 535

(Ohio App. 1974).

14 |

Certainly, the same “Fourteenth Amendment"

of the U.S. Constitution applies to every state and

the same interpretation thereof should everywhere

pertain.

CONCLUSION

The within case is of great importance with

respect to constitutional law issues and of great

public interest. The State Court of Appeals has

denied constitutional support to a provision of

a comprehensive zoning code prohibiting the storage

of trucks and vans in residential districts, except

in permitted garages. This decision erodes and

renders meaningless the creation’of residentially

zoned districts, i.e., what good is the authority

to create residential districts as authorized by

Euclid v, Ambler Realty Co., supra, if commercial

accessory uses therein cannot be prohibited or

limited ?

Today, is not the time to turn-our backs on

Euclid v, Ambler Realty, supra. The environment

and integrity of residential districts needs more

protection, if anything, in this day and age where

it is questionable as to whether motor vehicles work

for people or vice versa.

15

For the reasons set forth above, it is

respectfully prayed that a writ of certiorari

be issued as petitioned herein.

en sub Bebo

ma R. R

Director of nek, City of Euclid

Henry B. Fischer

Assistant Director of Law

City of Euclid

585 East 222 Street

Euclid, Ohio 44123

Attorneys for Petitioner

PROOF OF SERVICE

The undersigned attorney for the Petitioner

hereby certifies that the foregoing Petition for a

Writ of Certiorari was served upon all parties by

mail (three copies apiece, deposited in a United

States Post Office mail box, First Class Postage

pre-paid) to Richard R. Hollington, Jr. and Thomas

E. Seger of Baker, Hostetler and Patterson, 1956

Union Commerce Building, Cleveland, Ohio 44115,

Attorneys for Respondents, Fitzhum, et al., and to

Charles E. Rees, 21000 Crystal Avenue, Euclid, Ohio,

Respondent, this 7th day of December, 1976.

Henry B. Fisgher

Attorney for Petitioner

Al

APPENDIX

* ORDER OF SUPREME COURT OF OHIO

DISMISSING APPEAL

(Dated September 10, 1976)

No. 76-474

THE SUPREME COURT OF OHIO

The State of Ohio, City of Columbus

CITY OF EUCLID,

Appellant

vs.

JAMES FITZHUM, et al.

Appellees

APPEAL FROM THE COURT OF APPEALS

FOR CUYAHOGA COUNTY

This cause, here on appeal as of right from the

Court of Appeals for Cuyahoga County, was heard in

the manner prescribed by law, and, no motion to

dismiss such appeal having been filed, the Court

sua sponte dismisses the appeal for the reason that

no substantial constitutional question exists herein.

* The orcer in Ohio Supreme Court Case No. 76-760,

City of Eu .id, Appellant v. Charles E. Rees, dated

October 8, 1976, is identical, except for case number,

parties and date.

A2

* ORDER OF SUPREME COURT OF CHIO

OVERRULING MOTION TO CERTIFY

RECORD

(Dated September 10, 1976)

No. 76-474

THE SUPREME COURT OF THE STATE OF OHIO

The State of Ohio, City of Columbus

CITY OF EUCLID,

Appellant

vs.

JAMES FITZHUM, et al.

Appellees.

MOTION FOR AN ORDER DIRECTING THE

COURT OF APPEALS FOR CUYAHOGA

COUNTY TO CERTIFY ITS RECORD

It is ordered by the Court that this motion

is overruled.

* The Order in Ohio Supreme Court Case No. 76-760,

City of Euclid, Appellant v. Charles E. Rees, dated

October 8, 1976, is identical, except for case

number, parties and date.

A3

IN THE COURT OF APPEALS OF OHIO

CUYAHOGA COUNTY

NO. 34380

CITY OF EUCLID,

Plaintiff-Appellee

vs.

CHARLES E. REES,

Defendant-Appellant

(Dated May 19, 1976)

Motion by appellee for reconsideration

overruled. The appellant's conviction was reversed

because the ordinance upon which his conviction

was based was declared unconstitutional in compan-

ion cases which were separately appealed. Under

the circumstances, appellant's failure to serve

the appellee with a copy of his amended brief, if

taken as true, is harmless error. Exc.

Day, P.J., Corrigan, J. concur

/s/ Jack G. Day

Presiding Judge

EIGHTH DISTRICT

ee

A4

IN THE COURT OF APPEALS OF OHIO

CUYAHOGA COUNTY EIGHTH DISTRICT

NO. 34380

CITY OF EUCLID,

Plaintiff-Appellee

vs.

JAMES FITZHUM, ET AL.,

Defendants-Appellants

(Dated February 26, 1976)

SYLLABUS

l. Where an ordinance requires specified

vehicles and boats to be stored in completely

enclosed structures for ostensible health, safety,

and public welfare objectives, but the evidence is

indisputable that enclosures will not achieve the

regulatory aims but tend to compound the ills

sought to be corrected, the ordinance violates Due

Process of Law.

2. When the sole criterion for the application

of an ordinance requiring the enclosure of specified

vehicles and boats stored on private or public

property is whether or not the vehicles and

boats are mounted on trailers, the

AS

classification is arbitrary and unreasonable and the regu-

lation denies Equal Protection of the Law.

Day, J.,

These cases were consolidated for trial. Each of these

defendants was found guilty of violating a Euclid ordi-

nance proscribing the parking or storage of trailers unless

parked or stored in enclosed structures. The defendants

appeal under a single number and each raises the identical

issues on appeal. There are four assignments of error:

“ASSIGNMENT OF ERROR NO. 1:

“The Trial Court erred in finding the defendants

guilty because Section 1377.06, as applied to each of

the defendants herein, bears no substantial relation

to the promotion of the health, safety, morals, and

welfare of the citizens of the City of Euclid and, there-

fore, is unconstitutional as applied.”

“ASSIGNMENT OF ERROR NO. 2:

“The Trial Court erred in finding the defendants

guilty because Section 1377.06 has been applied by

City officials in an arbitrary, unreasonable, and dis-

criminatory manner to defendants and in an unequal

and discriminatory manner as between defendants and

the owners of other campers, trucks, boats, and other

vehicles which fall within the purview of the Section.”

“ASSIGNMENT OF ERROR NO. 3:

“The Trial Court committed prejudicial error by

directing defendants’ expert witnesses to remove them-

selves from the court room upon defendants’ motion

for separation of public official witnesses.”

AG

“ASSIGNMENT OF ERROR NO. 4:

“The Trial Court committed prejudicial error by

denying the defendants the right to cross-examine ad-

verse public official witnesses and by permitting the

prosecution to examine these witnesses as on cross-

examination.”

For reasons assessed below the judgments against the

defendants in this appeal must be reversed.

I,

Assignments Nos. 1 and 2 raise the same generic issue

—whether Section 1377.06' of the codified ordinances of

Euclid is constitutional as applied to these defendants. The

constitutional claim has two parts. One contention is that

the ordinance as applied here has no substantial relation-

ship to health, safety, morals and welfare. The other as-

serts that the ordinance has been applied to these defen-

dants in an arbitrary, unreasonable and discriminatory man-

ner.

We have had occasion to uphold this same ordinance

against a claim of unconstitutionality on its face, City of

Euclid v. Paul (1974, Ct. of App., 8th Dist., Case No. 33024,

Mot. Cert. Den. 1974). However, Assignments of Error Nos.

1 and 2 demonstrate that the current challenge is based on

different grounds.

1. Section 1377.06:

“No person shall park or store any type of truck, trailer, auto

trailer or trailer coach in a U1, U2, or U3 use district either on

public or private property (including the public street or high-

way), except to make pickups or deliveries, unless such truck,

trailer, house trailer, auto trailer or trailer coach is parked or

stored in a completely enclosed structure.” (Emphasis supplied)

A7

II.

Five decades ago the Supreme Court of the United

States testing another Euclid ordinance set down the gen-

eral principles for measuring municipal enactments by

Federal Due Process Standards:

“ . . before the ordinance can be declared unconsti-

tutional . . . such provisions [must be] clearly arbi-

trary and unreasonable, having no substantial relation

to the public health, safety, morals, or general wel-

fare ....’" (Brackets supplied)

Approximately six months earlier the Ohio Supreme

Court had expressed the same Due Process sentiments in

upholding a zoning ordinance against federal and state

constitutional attack:

“. . If the ordinance discloses no purpose to prevent

some public evil or to fill some public need, and has

no real or substantial relation to public health, morals,

and safety, it must be held void. When, however, leg-

islation does have a real and substantial relation to the

prevention of conditions detrimental to the public

health, morals, or safety, no matter how unwise the

measure itself seems to individual judges, it is not for

the judicial tribunals to nullify it upon constitutional

grounds.” (citations omitted)"

2. Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 395, 71

L. Ed. 303, 314.

3. Printz v. Messer (1925), 112 Ohio St. 628, 639.

AB

III.

It is enough to justify legislative intervention that

there is an evil for which legislation may rationally supply

a correction.‘

However, despite wind signs and even some cases to

the contrary in other jurisdictions, Westfield Motor Sales

Co, v. Town of Westfield (1974), 324 A. 2d 113, 119; Peo-

ple v. Goodman (1972), 31 N.Y. 2d 262, 266-267, it is still

the Ohio rule that zoning restrictions for purely esthetic

reasons are unconstitutional.’ However, it seems both clear

and logical that an otherwise valid exercise of the police

power need not be a constitutional failure because it inci-

dentally beautifies. Cf. Lionshead Lake, Inc. v. Wayne Tp.

(1952), 10 N.J. 165, 172, and concurring opinion at 176-77

App. Dism. (1952), 344 U.S. 919, 97 L.Ed. 708.

In determining whether a statute or ordinance satis-

fies constitutional requisites it is common to find Equal

Protection considerations commingled with Due Process

issues. Frequently, if not always, police power regulation

involves classification. If the process of classifying is un-

reasonable, there are obvious overlapping considerations

of Due Process and Equal Protection. Because the concepts

tend to run into each other, they are discussed together.

As a preliminary to that discussion we note that in

this case we are not considering a classification involving

a right so fundamental that the category is suspect.’ There-

4. Williamson v. Lee Optical of Oklahoma (1955), 348 U.S.

483, 438, 99 L. Ed. 563, 572. ’ ,

5. Youngstown v. Kahn Bldg. Co. (1925), 112 Ohio St. 654,

657-658. 7 '

6. Cf. NAACP v. Alabama (1958), 357 U.S. 449, 460.462, 2

1,.Ed. 2d 1448, 1498-1499 (right to association): Loving v. Virginia

(1967), 388 U.S. 1, 11-12, 18 L.Ed. 2d 1010, 1017-1018; and Gris-

wold v. Connecticut (109), 381 U.S. 479, 485-487, 14 L.Ed. 2d

510, 515-516 (right to family privacy).

Ag

fore, the City need not show a compelling state interest

to justify the classification.’ Equal Protection considera-

tions are satisfied “if any state of facts reasonably may be

conceived to justify” them." Of course, Equal Protection

requires that regulatory legislation regulate impartially,

Yick Wo v. Hopkins, (1886), 118 U.S. 356, 363-374, 30 L.Ed.

220, 227.

IV.

The vice of the present ordinance is that the record

will support neither an application of the ordinance which

bears a substantial, and therefore reasonable, relationship

to public health, safety, morals or welfare nor the impo-

sition of a taxonomic scheme based on any state of facts

that may reasonably justify it. Part of the lack of rea-

sonableness is exposed by evidence of an uneven regula-

tory application which contravenes the imperatives of the

Yick Wo case.

A short review of the facts will illustrate the consti-

tutional inadequacies of the ordinance.

The operative element in the enactment is the require-

ment that trucks, trailers, house trailers, auto trailers, or

trailer coaches not be parked in the proscribed zones un-

less parked or stored in a “completely enclosed structure”.®

The evidence indicates that whatever factors detrimental

to public health, safety, morals or welfare inhere in park-

ing the designated vehicles in the open, these factors are

not bettered, and may be worsened, by enclosing them.

7. Shapiro v. Thompson (1969), 394 U.S. 618, 634, 638, 22

L.Ed. 2d 600, 615, 617.

8 Cf. McGowan v. Maryland (1961), 366 U.S. 420, 425-426,

6 L.Ed. 2d 393, 399.

9. All the defendants in these appeals owned cainper trailers

(Tr. mm A claimed truck violation was the subject of a sepa-

rate appeal.

Alo

There was testimony in support of the regulation that

a trailer parked in a driveway would interfere with access

for fire fighting equipment (Tr. 119, 148, 250, 311), that

it would serve as a conduit for fire (Tr. 88, 147, cf. 324),

that a trailer was more difficult to move than a car (Tr.

96, 312, 318), that trailers parked in residential areas

lowered property values (Tr. 263-264, 275) and, if parked

in driveways with attached garages, would extend over

the property lines of the houses and create safety hazards

by obstructing the view of street traffic (Tr. 306). There

was also a rather consistent incidental theme of esthetic

detriment running through the testimony of a number of

witnesses for the City (see, ie, Tr. 41, 87, 111, 241, 267,

282).

This evidence standing alone would seem to warrant

upholding the ordinal regulation. And, in the light of

credibility and fact-finding functions of the trier of the

facts (in this case the court) it is no rebuttal of this con-

clusion to point to conflicting testimony.”® The responsi-

bility of the judge to determine credibility also disposes of

conflicting testimony ing esthetic considerations (cf.

Tr. 242).

Where, then, are Process and Equal Protection

vices of the ordinancé? They lie in the indisputable fact

that enclosing vehicles classified as trailers does not change

the fire hazard propensites; does not enlarge health safe-

guards. Indeed, it is clear beyond peradventure that en-

closure may diminish health and safety factors by trapping

sewage spillage from portable sanitary facilities (Tr. 335,

349, 350) and collecting highly flammable escaping propane

10. The evidence was that automobiles could be conduits for

five (Tr. 90), may be just as difficult to move as trailers if locked

(Tr. 250), may impede fire fighting (Tr. 250), cause fire hazards

(Tr. 308, 324), and be unsightly when stored outside (Tr. 242).

All

gas which would otherwise be dissipated in the air (Tr.

333, 348). These are factors too obvious to be resolved on

mere credibility determinations. They point up the arbi-

trariness and unreasonableness of the attempt to regulate.

Uncontrovertible evidence also supports the Equal Protec-

tion violation in requiring vehicles in the trailer classifica-

tion to be enclosed. This evidence is to be found in

omission of boats from the proscription unless parked on

trailers—despite the obvious fact that non-trailer boat

parking so decreases mobility that a boat so stationed is

a greater safety hazard than one capable of movement on

wheels.

This posture of the evidence leads us to conclude that

the ordinance as applied contravenes both Due Process

and Equal Protection and is void. Assignments of Error

Nos. 1 and 2 have merit. Accordingly, the convictions of

these defendants are invalid.

V.

Assignment of Error No. 3 travels on the assumption

that it is prejudicial error for a trial court to subject ex-

pert witnesses to the banishment consequent upon the

granting of a motion for a separation of a particular cate-

gory of witness. In this instance, the defendants’ motion to

separate all public official witnesses resulted in an order

directing all witnesses other than the complaining wit-

nesses and the defendants “to remove themselves and re-

main out of the hearing of the court until such time as you

are called to testify” (Tr. 105-107.)"" The defense argues

but does not demonstrate how this deprivation of the coun-

11. The defense motion was renewed at least twice (Tr. 212-

213, 259-260).

Al2

sel of its experts, if there was a deprivation,’ prejudiced

it.

The separation of witnesses during trial is a matter

within the discretion of the trial court, see Piening v. Titus,

Inc. (1960), 113 Ohio App. 532, 537. We see no occasion for

a different rule for expert witness, cf. Meyer v. Renner Co.

(App. 1951). 63 Ohio L. Abs. 356, 360, absent a showing

which would render the exclusion an abuse of discretion.

There is no such demonstration of abuse in this record.

The third assignment of error is without merit.

VL

Assignment of Error No. 4 is based on the trial court's

refusal to allow the defendants to cross-examine public

officials responding to defense subpoenas.

No case has been cited or found applying Chio Revised

Code, §2317.07 (as armended) to a criminal prosecution. In

any event, the defendants’ praecipe did not specify that the

witnesses under order were to appear for cross-examina-

tion (cf. also Tr. 98).

Of course, the defendants were free to examine the

subpoenaed officials as on cross had they shown themselves

entitled to the advantages of one of the exceptions to the

rule that a party may not cross-examine his own witness."

They did not.

The fourth assignment of error is without merit.

12. There is no showing that out of court counseling was

unavailable or, if available, was limited in its usefulness by the

experts’ inability to actually hear the City's witnesses.

13. Eg., hostitlity, surprise, State ». Gaines (1974), 40 Ohio

App. 2d 224, 229-230 or bias or unwillingness to testify on the part

of the public officials, 3 Wigmore §774 (Chadbourn Rev., 1970).

Al4

Al3

EUCLID MUNICIPAL COURT

The judgments below are reversed and the defendants CUYAHOGA COUNTY, OHIC

in this appeal discharged.

CITY OF EUCLID )

Krenzler, C.J., Jackson, J., concur )

vs. ) OPINION OF THE COURT

(See Krenzler, C.J.'s, Concurring Opinion) )

JAMES FITZHUM ) Case no. 117714

Krenzler, C.J., concurs. LYNDALE PAYNE ) Case No. 117724

WILLIAM PEATTIE ) Case No, 117725

I concur in the judgment of reversal based on the WILLIAM SMITH ) Case No. 117730

particular ordinance involved and the evidence ROBERT WISNIEWSKI ) Case No. 117734

presented. This does not mean that a municipality CHARLES REES ) Case No. 118870

does not have the right under its police powers to

regulate storage of vehicles other than automobiles (Filed December 31, 1974)

in residential areas. However, the legislative

enactment must be based on health, safety, morals, These cases came on for trial on December

or public welfare objectives. Further, the government 26, 28 and 30, 1974, the City of Euclid beinc

agency has the burden of proving a violation of represented by the Prosecutor and City Law Depart-

the ordinance by competent evidence. ment, defendants Fitzhum, Payne, Peattie, Smith

and Wisniewski being represented by counsel and

defendant Rees representing himself. The cases

arose from Complaints and Warrants sworn to the

Zoning Commissioner of the City of Euclid alleging

violations of Euclid Codified Ordinance 1377.06

regarding the illegal] parking of trailers and trucks

in residential zones.

All defendants are the owners and/or occupiers

of premises situated in residential zones within the

City of Euclid wherein said violations occurred. Defendants

Al5

Fitzthum, Payne, Peattie, Smith, and Wisniewski were

the owners of camping trailers and/or a mobile home, de-

fendant Rees the owner of a pickup truck.

The Court finds that by virtue of the case of City of

Euclid vs. Robert M. Paul, 8th District Court of Appeals,

Case No. 33024 (unreported) (February 25, 1974) (Motion

to Certify Record overruled by Ohio Supreme Court, June

17, 1974) the Codified Ordinance of the City of Euclid No.

1377.06 is constitutional on its face.

The Court further finds that there is a relation be-

tween said ordinance and public safety, to wit: For fire

' fighting and safety purposes the Fire Chief of the Euclid

Fire Department indicates that he needs at least eleven

feet (11 ft.) alongside a structure to maneuver fire ladders

and that nothing should be parked alongside, near, or

within eleven feet (11 ft.) of any structure, otherwise

would limit firefighting ability. Also, the Euclid Police

Department has indicated that camping trailers parked to

the front of the premises can block the view and create a

safety hazard. Defendants in the within cases all had

their trailers parked less than eleven feet (11 ft.) from an

adjoining structure.

The Court further finds that there is a relationship

between ordinances and the general welfare by virtue of

testimony which indicated that the parking of a trailer

or truck in a person’s yard can adversely affect the sale-

ability of surrounding real estate.

The Court further finds a relationship between said

ordinance and esthetic considerations considering that the

parking of a trailer and or truck on urban lots is unsightly

to neighbors and the public in general.

Al6

The Court further finds as to defendant Rees spe-

cifically by virtue of the case of Euclid vs. Ambler Realty

Company at 272 U.S. 365 that a municipality has a con-

stitutional right to enact zoning regulations. The City

of Euclid has, therefore, properly divided the City into

zones for residential, commercial, and industry. A truck

is a commercial vehicle intended primarily for commercial

use. The rationale follows that if cities have a right to

zone use areas they likewise have a right to limit the use

of commercial equipment in residential areas. Therefore,

the limit of the use of the truck in residential areas to

loading or unloading or being otherwise completely en-

closed is a proper exercise of the police power.

All defendants have failed to comply with the pro-

visions of said ordinance.

Campers are good people, they are not criminals.

A person assisting the Boy Scouts of America is like-

wise performing a worthy cause. However, ordinances

of the City of Euclid are to be complied with and the de-

fendants have failed to comply with the provisions of said

ordinance.

This Court as a matter of dictum sincerely hopes that

the City Council will reevaluate the campers’ plight and

perhaps give some further consideration to a modification

of Euclid Codified Ordinance 1377.06.

Therefore, as all defendants have beyond a reason-

able doubt failed to comply with the terms and provisions

of said ordinance, they should each be found guilty of the

violation of said ordinance as charged.