Reid v. Architectural Board of Review

Kovachy, P. J. This is an appeal on questions of law from a judgment rendered by the Court of Common Pleas in favor of the defendant-appellee, The Architectural Board of the City Cleveland Heights, Ohio. Donna S. Reid, plaintiff-appellant, hereinafter designated applicant, applied to the Building Commissioners of the City of Cleveland Heights for a permit to build a residence on a lot owned by her and her husband on North Park Boulevard in Cleveland Heights. As required by ordinance, the plans and specifications were referred to the Architectural Board of Review, which Board, after due consideration, made the following order: “This plan is for a single-story building and is submitted for a site in a multi-story residential neighborhood. The Board disapproves this project for the reason that it does not maintain the high character of community development in that it does not conform to the character of the houses in the area.” Upon appeal to the Court of Common Pleas, that court rendered a judgment in favor of the Board, holding (1) that the Codified Ordinances were constitutional enactments under the police power of the City; (2) that the Board had the power and authority to render the decision appealed from; (3) that *273 the Board did not abuse its discretion; and (4) that due process was accorded applicant. The Board is composed of three architects registered and authorized to practice architecture under Ohio laws with ten years of general practice as such. Section 137.05 of the Codified Ordinances of the City of Cleveland Heights, titled ‘ ‘ Purpose ’ ’ reads as follows: “The purposes of the Architectural Board of Review are to protect property on which buildings are constructed or altered, to maintain the high character of community development, and to protect real estate within this City from impairment or destruction of value, by regulating according to proper architectural principles the design, use of materials, finished grade lines and orientation of all new buildings, hereafter erected, and the moving, alteration, improvement, repair, adding to or razing in whole or in part of all existing buildings, and said Board shall exercise its powers and perform its duties for the accomplishment of said purposes only.” This ordinance is intended to: 1. protect property, 2. maintain high character of community development, 3. protect real estate from impairment or destruction of value, and the Board’s powers are restricted “for the accomplishment of said purposes only.” These objectives are sought to be accomplished by regulating: 1. design, 2. use of material, 3. finished grade lines, 4. orientation (new buildings). The Supreme Court of Ohio in paragraph six of the syllabus in the case of Benjamin v. City of Columbus, 167 Ohio St., 103, 146 N. E. (2d), 854, states: “Whether an exercise of the police power does bear a real and substantial relation to the public health, safety, morals or general welfare of the public and whether it is unreasonable or arbitrary are questions which are committed in the first instance to the judgment and discretion of the legislative body, and, unless the decisions of such legislative body on those ques *274 tions appear to be clearly erroneous, tbe courts will not invalidate them.” The City of Cleveland Heights is a suburb of the City of Cleveland and was organized to provide suitable and comfortable home surroundings for residents employed in Cleveland and its environs. It has no industry or railroads within its confines and is a well-regulated and carefully groomed community, primarily residential in character. An ordinance designed to protect values and to maintain “a high character of community development” is in the public interest and contributes to the general welfare. Moreover, the employment of highly trained personages such as architects for the purpose of applying their knowledge and experience in helping to maintain the high standards of the community is laudable and salutary and serves the public good. We determine and hold that Ordinance 137.05 is a constitutional exercise of the police power by the City Council and is, therefore, valid. State, ex rel. Saveland Park Holding Corp. v. Wieland, 269 Wis., 262, 69 N. W. (2d), 217; Froelich v. City of Cleveland, 99 Ohio St., 376, 124 N. E., 212; City of Cincinnati v. Correll, 141 Ohio St., 535, 49 N. E. (2d), 412; 10 Ohio Jurisprudence (2d), 227, 403, 442, Constitutional Law, Sections 152, 325, 366. Section 137.05, as outlined above, sets out criteria and standards for the Board to follow in passing upon an application for the building of a new home which are definite as to the objective to be attained — to protect property, to maintain high character of community development, to protect real estate from impairment and destruction of value; specific as to matters to be considered and regulated — design, use of material, finished grade lines, orientation; instructive as to the method by which the matters specified are to be adjudged — “proper architectural principles” and informative as to the bounds within which it is to exercise these powers — “for the accomplishment of said purposes only.” When borne in mind that the members of the Board are highly trained experts in the field of architecture, the instruction that they resolve these questions on “proper architectural principles” is profoundly reasonable since such expression has *275 reference to the basic knowledge on which their profession is founded. It is our view, therefore, that Section 137.05 contains all the criteria and standards reasonably necessary for the Board to carry on the duties conferred upon it. In 1 Ohio Jurisprudence (2d), 431, Administrative Law and Procedure, Section 28, it is stated that: “The discretion conferred on administrative agencies must not be unconfined and vagrant but must be canalized within banks that keep it from overflowing.” We have read the bill of exceptions filed in this case carefully. It discloses that North Park Boulevard is in a district zoned for Class 1A residences not to exceed thirty-five feet in height or two and one-half stories, whichever is lesser, and which are required to cover not less than fifteen thousand square feet of lot space. This district extends through a park area with buildings on the north side and trees, ravines, and bushes hundreds of feet wide on its south side. The buildings on this Boulevard are, in the main, dignified, stately and conventional structures, two and one-half stories high. The house designed for the applicant, as described by applicant, is a flat-roofed complex of twenty modules, each of which is ten feet high, twelve feet square and arranged in a loosely formed “U” which winds its way through a grove of trees. About sixty per cent of the wall area of the house is glass and opens on an enclosed garden; the rest of the walls are of cement panels. A garage of the same modular construction stands off from the house, and these two structures, with their associated garden walls, trellises and courts, form a series of interior and exterior spaces, all under a canopy of trees and baffled from the street by a garden wall. A wall ten feet high is part of the front structure of the house and garage and extends all around the garden area. It has no windows. Since the wall is of the same height as the structure of the house, no part of the house can be seen from the street. From all appearances, it is just a high wall with no indication of what is behind it. Not only does the house fail to conform in any manner with the other buildings but presents no identification that it is a structure for people to live in. The Board, as well as the architect for the applicant, con *276 cede that this structure would be a very interesting home placed in a different environment. It is obvious that placed on North Park Boulevard, it would not only be out of keeping with and a radical departure from the structures now standing but would be most detrimental to the further development of the area since there are two vacant lots immediately to the west and a third vacant lot on the street bordering the westernmost lot. Esthetics was a consideration that played a part in the ruling of the Board, but there were many other factors that influenced its decision. The structure designed is a single-story home in a multi-story neighborhood; it does not conform to general character of other houses; it would affect adjacent homes and three vacant lots; it is of such a radical concept that any design not conforming to the general character of the neighborhood would have to be thereafter approved; when viewed from the street, it could indicate a commercial building; it does not conform to standards of the neighborhood; it does not preserve high character of neighborhood; it does not preserve property values; it would be detrimental to neighborhood on the lot where proposed and it would be detrimental to the future development of the neighborhood. 16 Corpus Juris Secundum, 939, Constitutional Law, Section 195, Esthetic Conditions, states: “The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, esthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. Nevertheless, it is held that esthetic conditions alone are insufficient to support the invocation of the police power, although if a regulation finds a reasonable justification in serving a generally recognized ground for the exercise of that power, the fact that esthetic considerations play a part in its adoption does not affect its validity.” It is our determination and we hold that the record in this case discloses ample evidence to support the judgment of the trial court that the Board did not abuse its discretion in its decision in this matter. We conclude, therefore, that no error prejudicial to the *277 substantial rights of the applicant intervened in the trial of this cause and, consequently, overrule applicant’s assignments of error and affirm the judgment. Judgment affirmed. Exceptions. Order see journal. Silbert, J., concurs. Corrigan, J., dissents.