I agree with the statement in the fourth paragraph of the syllabus that if plaintiffs' proposed division of a parcel of land without plat is not contrary to applicable subdivision, platting and zoning ordinance of the city where the land is situated, and not contrary to any state statutes, it is then mandatory for the planning commission, acting pursuant to Sections 711.09 and 711.131, Revised Code, to find the proposed division of land reasonable and proper and to approve such proposed division of land.
However, as stated in the majority opinion, Subdivision Ordinance No. 8-1959, Section 5 (parts 1 [C] and 2), pertaining to the approval without plat of subdivisions, requires the disapproval thereof, "if it does not meet the minimum requirements of the ordinance and the appropriate zoning ordinance or is in conflict with the official plan." Likewise Section 711.131, Revised Code, requires disapproval of a proposed subdivision which is contrary to applicable platting, subdividing or zoning regulations.
I agree that if we cannot reach a conclusion as a matter of law we must remand the cause to the Common Pleas Court for a new trial, by reason of the errors mentioned in the majority opinion. *Page 39
The following sketch drawn to an approximate scale shows Lot 6 owned by plaintiffs, appellants herein, with the requested subdivision sketched thereon. It also shows the location of River Road and the approximate locations of Manitou Drive, the Maumee River, the Ohio Turnpike and the corporation line.
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Does the proposed subdivision without plat meet minimum requirements of the subdivision ordinance, appropriate zoning ordinance and official plan as a matter of law, or, under Subdivision Ordinance No. 8-1959, Section 5 (2), and Section711.131, Revised Code, must such proposed subdivision be disapproved because it does not meet the minimum requirements of the ordinance and of the appropriate zoning ordinance or is in conflict with the official plan as a matter of law? The property in question is located in an R-1 residence district.
The pertinent parts of Section 14, paragraph 1, of Zoning Ordinance No. 29-1958, read as follows (emphasis added):
"Any building hereafter erected, enlarged, relocated or rebuilt in any of the following districts shall have minimum yard dimensions and shall be built on a lot having minimum width atthe building line as required by the following schedule:
Minimum Yard Dimensions "Use District Lot Width Front Side Rear "R-1 Residence 80 35 10%11 40"
In this portion of the ordinance, my colleagues have chosen to emphasize "minimum yard dimensions" and "minimum width at the building line." I agree that there are two parts to the paragraph, but I understand them to be:
1. "minimum yard dimensions" and
2. "* * * on a lot having minimum width at the building lineas required by the following schedule." (Emphasis added.)
From the ordinance, it is clear that the minimum lot width is 80 feet. If this requires a uniform minimum width of 80 feet there can be no question that the proposed lot which has a width of only 24.62 feet for a distance of 170 feet from River Road is in conflict with the ordinance as a matter of law.
If a uniform minimum width of 80 feet is not required, at what point must the lot be 80 feet wide to have a minimum widthas required by the schedule?
The ordinance provides that the lot must have a minimum width of 80 feet at the building line as required and it seems clear to me that the only line as required is that determined *Page 41 by the minimum set-back requirement of 35 feet from River Road. Any building line at a point farther back would be permissive but not required. I agree that this interpretation would require a minimum width only at the building line as required by the 35 foot set-back and would permit a lot of less than 80 feet minimum width at other points, but this is clearly contemplated by the ordinance, and the majority opinion which would require a minimum width of 80 feet only at the chosen building line which is a permitted location but not required is untenable, for such an interpretation is in conflict with the very provisions of the section being construed for reasons hereinafter pointed out.
Paragraph five of the syllabus prepared in accordance with the majority opinion reads in part:
"`Building line' in such zoning ordinance is not synonymous with set-back line or minimum yard dimensions, but is a line parallel to the front lot line, established by the building proposed to be erected; and if, at this building line, the lot has the minimum width, or more, prescribed by the zoning ordinance, compliance therewith exists."
If this is the line at which the minimum width must be 80 feet, then, 10 per cent of 80 being 8, a minimum side yard of 8 feet would always be required and the provision of the ordinance requiring 10 per cent but in no case less than 5 feet, has been repealed by legislative action of the court. Because of this provision in the ordinance, I cannot concur in the statement made in the majority opinion that "the city council clearly intended that buildings could be built only on lots which were 80 or more feet in width at the location of the construction."
From the provisions of the ordinance, it seems clear that at the location of construction a lot width of less than 80 feet and a side yard of less than 8 feet are permissible, provided the lot has a minimum width of 80 feet at the building line asrequired, which required line is synonymous with the set-back line.
Paragraph five of the syllabus further provides in part:
"A zoning ordinance which specifies minimum front, side and rear dimensions for `any building hereafter erected' is not violated by a mere proposed division of land without plat, submitted *Page 42 to a planning commission for approval, which makes no reference whatever to any building of any kind proposed to be erected."
It is my opinion that in the absence of indication in the application that the proposed subdivision is to be used for a limited purpose, the planning commission need not so construe it. However, there is a residence on the larger of the lots, which now meets all requirements of the ordinances and plans and does not exist as a nonconforming use. If the proposed subdivision is approved, the existing house would hereafter stand on a lot not in compliance and will be rendered a nonconforming use under conditions not existent prior to enactment of the ordinance. Conditions of nonconformance must have existed prior to enactment of the ordinance in order to be permitted to continue. I fail to see how it makes any difference whether noncompliance be brought about by change in the building or change in the lot upon which it stands.
Zoning Ordinance No. 29-1958, as amended by Ordinance No. 60-1964, further provides:
"Section 5
"When forty (40) per cent or more of the frontage on one side of the street between two intersecting streets is improved with buildings that have a front yard that is greater or less than the required front yard in the district, no new or reconstructed building shall project beyond the average front yard so established."
The purpose of that section is to establish an alternate requirement when the average set-back so determined is more or less than the 35 feet set-back otherwise required. In the instant case, such average set-back if the turnpike were an intersecting street would be 178 feet, and the depth of the two smaller lots as proposed is only 170 feet. As stated in the majority opinion:
"It is true that, if this set-back section of the zoning ordinance is applicable to the plaintiffs, the two smaller lots in the plaintiffs' proposed subdivision could not have any buildings erected thereon unless those buildings would project beyond the average front yard set-back line so established, and, therefore, there would be a violation of this section of the zoning ordinance." *Page 43
The section, however, was found not to be applicable, for failure to qualify as frontage between two intersecting streets based upon a determination that the Ohio Turnpike is a crossover at River Road but not an intersecting street within the meaning of the ordinance.
Whether the width of the lot as required is a uniform minimum width of 80 feet, or a requirement either at the 35 foot required set-back line or the 178 foot set-back line, the proposed subdivision is in conflict, and, as provided by Subdivision Ordinance No. 8-1959, Section 5 (2), supra, and Sections 711.131 and 711.09, Revised Code, such proposed subdivision must be disapproved. The regulation is reasonable and lawful, as was the refusal of the planning commission to approve. The proposed subdivision is contrary to applicable subdivision and zoning regulations as a matter of law.
Had the owners in their application requested that the strip 24.62 feet wide by 170 feet long be approved under the ordinance as a private place and then asked that the parcel to the rear, being 184.62 feet wide, be considered as having its principal frontage upon an approved place, they would have given rise to another issue as to which I have made no determination, since there was never any request to approve the 24.62 foot-wide strip as a place.
The judgment of the Common Pleas Court and decision of the planning commission ought to be affirmed.
GUERNSEY, J., of the Third Appellate District, and RUTHERFORD, J., of the Fifth Appellate District, sitting by designation in the Sixth Appellate District.
11 "Side yard distance shall be computed by applying the above percentage to the lot width at the point in question, but in no case shall the same be less than five (5) feet." *Page 44