Cite as: 29 Ohio St.2d 39, 278 N.E.2d 658
SUPREME COURT OF OHIO
VILLAGE OF WILLOUGHBY HILLS et al., Appellees,
CORRIGAN et al., Appellants
Feb. 2, 1972
SYLLABUS BY THE COURT:
1. Airport zoning regulations, adopted in accordance with the provisions of R.C. Chapter 4563 and designed to reduce 'airport hazards,' may constitutionally be adopted as an exercise of the 'police power' of this state, if such regulations are reasonably necessary to insure the safety of aircraft in landing and taking off and the safety of persons occupying or using the area and the security of property thereon.
2. When it is shown that the enforcement of any airport zoning regulation as to specific property will result in an unconstitutional 'taking' of such property, a court may enjoin the operation of the airport zoning regulation as to such property, or may, whichever is more appropriate under the circumstances, direct the institution of eminent domain proceedings for the purpose of compensating the property owner for such 'taking.'
3. The provisions of R.C. Chapter 4563, to the extent that they authorize the adoption and enforcement of airport zoning regulations within the territory of a municipal corporation, are not unconstitutional as conflicting with the 'home rule' powers of that municipal corporation under Section 3, Article XVIII of the Ohio Constitution.
Cuyahoga County owns and operates the Cuyahoga County Airport, a portion of which extends into the village (now city) of Willoughby Hills in Lake County.
In April 1963, the Boards of County Commissioners of Cuyahoga and Lake counties, acting as 'the airport zoning board' pursuant to the provisions of R.C. s 4563.03(B), [FN 1] adopted certain airport zoning regulations for the 'airport hazard area.' [FN 2]
[FN 2] Defined by R.C. s 4563.01(C) as follows:
"Airport hazard area' means any area of land adjacent to an airport which has been declared to be an 'airport hazard area' by the Division of Aviation in connection with any airport approach plan recommended by such division.'
[FN 4] The zones were designated as (1) Runway Landing Areas, (2) Approach Zones, (3) Transitional Zones, (4) Horizontal Zone, and (5) Conical Zone.
[FN 5] The use restrictions herein specifically prohibited such uses as would result in electrical interferences with radio communication and lighting which would impair visability or make it difficult to distinguish airport lights, and generally prohibited any use which would 'otherwise endanger the landing, taking-off, or maneuvering of aircraft * * *.'
Defendants wrongfully contend that the real property of the individual plaintiffs is subject to the jurisdiction and regulations of Cuyahoga County Airport Zoning Board, and said plaintiffs have been caused by such contention of the defendants to suffer a diminution in the value of their said real property.
As to the plaintiff Willoughby Hills, the trial court found 'that there is no evidence of interference with the right of the village of Willoughby Hills under Article XVIII, 3 Ohio Constitution, to control development of the lands and to adopt zoning regulations within its jurisdiction.'
The trial court found further that R.C. Chapter 4563 'is a constitutional exercise of state legislative authority and does not violate the Ohio, or the United States Constitution'; that R.C. Chapter 4563 'and the Cuyahoga County Airport Zoning Regulations enacted pursuant thereto, provide for regulations for the operation of public airports and for the safety and welfare of persons, both above and on the ground, and are, therefore, legitimate matters for state legislation and regulations adopted pursuant thereto'; and that the regulations 'complement without nullifying the Village of Willoughby Hills Municipal Zoning Regulations operating within the perimeter of the Airport Hazard Area, and are constitutionally enacted and in compliance with the statutes of Ohio.'
The trial court entered judgment in favor of defendants.
The Court of Appeals reversed, finding 'that the owners of property located in the 'Airport Hazard Area' in the airspace directly above their property through which airplanes approach and leave the Cuyahoga County Airport, own at least as much space above their property as they can occupy and use'; that R.C. s 4563.03, 'which creates the power of an Airport Zoning Board to regulate and restrict land uses and the height of structures and natural growth, constitutes a taking of property interest without due process of law and the Cuyahoga County Airport Zoning Regulations issued pursuant thereto, are unconstitutional, being a violation of the due process clauses of the constitutions of the United States and Ohio'; and that the regulations, 'enacted under the authority of Section 4563.03 of the Revised Code of Ohio, are not zoning regulations under the exercise of police power, but constitute the taking of private property without compensation * * *.'
The cause is now before this court pursuant to the allowance of a motion to certify the record and as an appeal as of right involving a substantial constitutional question.
Barry M. Byron, Director of Law, Painesville, and Baker, Byron & Hackenberg, Painesville, for appellees.
John T. Corrigan, Pros. Atty., A. M. Braun, Thomas P. Cyrus and Richard A. Goulder, Cleveland, for appellants.
The basic question presented by this appeal is whether R. C. Chapter 4563 is unconstitutional on its face.
In essence, such was the conclusion of the Court of Appeals. Such conclusion apparently is based upon the rationale that all 'airport zoning regulations' adopted pursuant to the authority of R.C. 4563.03 necessarily result in an unconstitutional 'taking' of private property without compensation, and that such would be true even in those cases where such 'taking' resulted in no diminution of property value, and where, so far as airspace is concerned, there is no showing as to the particular property that there is any actual interference with any use which might be considered reasonably necessary for the full use and enjoyment of the land.
The trial court found, as a matter of fact, that the evidence did not show 'an impairment of use or diminution in value' of the property of the plaintiffs Chongris. From an examination of the record, it appears that such finding of fact was in accordance with the evidence. The Chongris' property is located in a 'Transitional Zone' (contiguous to an 'Approach Zone') and, based on the height restriction of the zoning regulation for a 'Transitional Zone' (one foot in elevation for each seven feet in horizontal distance), the evidence indicated that such property had an allowable height of 70 feet. The height restrictions of the Willoughby Hills zoning ordinances are 35 feet in a residential single family district. The claim by the Chongris' that the airport zoning regulations preclude them from erecting a TV 'tower' or antenna (to receive more distant stations) is negated by the fact that their expressed desire was to erect such to a height of only 45 feet.
The Court of Appeals apparently did not dispute the actual findings of fact of the trial court, but instead took the approach that the 'purpose' [FN 7] sought to be served by such 'airport zoning regulations' could not be done in the exercise of the 'police power' but only by the application of 'eminent domain principles.'
[FN 9] R.C. s 4563.07 reads:
'All airport zoning regulations adopted under Sections 4563.01 to 4563.21, inclusive, of the Revised Code shall be reasonable, and none shall impose any requirement or restriction which is not reasonably necessary to insure the safety of aircraft in landing and taking off and the safety of persons occupying or using the area and the security of property thereon. In determining what regulations are necessary, each political subdivision or airport zoning board shall consider, among other things, the character of the flying operations expected to be conducted at the airport, the per cent of slope or grade customarily used in descent or ascent of the aircraft expected to use the airport with reference to their size, speed, and type, the nature of the terrain within the airport hazard area, the character of the neighborhood, and the uses to which the property to be zoned is put or is adaptable.'
No attempt will be made herein to discuss in detail the many cases from other jurisdictions wherein comparable questions have been presented. Most have been digested in annotations in 90 L.Ed. 1218, and 77 A.L.R.2d 1355 (and A.L.R. supplement thereto). We will, however, outline the basic considerations which lead to our conclusions, as heretofore stated.
It is asserted by appellee that, although designated by statute as airport 'zoning' regulation, such 'are not in any recognized sense of the word, zoning.' Such argument is predicated principally upon a comparison of the purposes sought to be achieved by community zoning and those sought to be achieved by airport zoning regulations. While the purposes may be different, such difference does not impel a conclusion that 'airport zoning regulations' may not be adopted as a part of the 'police power.' In our opinion, the power, or lack of power, to adopt such regulations under the 'police power' of the state may not be determined by its nomenclature. Instead, the test is whether such regulations are 'clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.' Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303.
In considering the constitutionality of any 'zoning' regulations restricting to any degree the uses to which land may be put, there would appear to be a certain degree of 'taking.' The question of whether there be an unconstitutional 'taking,' however, involves consideration of the extent or degree to which the landowner's use of his land is limited, and, to an extent, a judicial balancing of the loss of use against the benefits to society thus obtained.
In our opinion, the principles stated by the United States Supreme Court in Euclid are equally applicable here. [FN 10]
In this case, there was no claim of frequent low flights over plaintiff's land as was involved in United States v. Causby (1946), 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206, and Griggs v. Allegheny County (1962), 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585. In those cases, the United States Supreme Court held that frequent low flights over private property may constitute a 'taking' if the utility of the land is limited and a consequent diminution in value is suffered. The cases are premised upon the actual invasion of the air space above the land by frequent low flights. The same situation existed in the case of State ex rel. Royal v. Columbus (1965), 3 Ohio St.2d 154, 209 N.E.2d 405. The syllabus in that case reads:
Plaintiffs assert that the 'zoning' cases have no application; that, regardless of whether a landowner has been 'damaged,' the public may not take 'air rights' from the landowner and convert such 'air rights' to 'its own use.' This assertion is premised principally upon language employed by the Supreme Court of Washington in Ackerman v. Port of Seattle (1960), 55 Wash.2d 400, 408, 348 P.2d 664, 77 A.L.R.2d 1344: 'When private property rights are actually destroyed through the governmental action, then police power rules are usually applicable. * * * But, when private property rights are taken from the individual and are conferred upon the public for public use, eminent domain principles are applicable.'
That language from Ackerman was approved in Hageman v. Bd. of Trustees (1969), 20 Ohio App.2d 12, 251 N.E.2d 507, [FN 11] the case principally relied upon by the Court of Appeals herein.
From an examination of the Hinman case, we conclude that the words 'can occupy or use' in connection with the land, employed in Causby, were not intended to imply that, without proof of any actual loss of use, a landowner may prohibit any use of the airspace above his land up to a point where it would be physically possible to use such, but where the probabilities of such a use would be remote. In Hinman, the court stated, 84 F.2d at page 758:
Even if we were to assume a depreciation of the value of the Chongris' property such as to constitute a 'taking' of property without the requisite payment of compensation, such would not necessarily result in an injunction against the enforcement of any airport zoning regulations as to their property as to permit the erection of structures without any regard to the safety of aircraft. Instead, under certain situations, a judicial solution to such problem would result in legal compulsion directed to the proper appropriating authority to compensate the landowner for such 'taking.'
In State ex rel. Royal v. Columbus, supra, 3 Ohio St.2d 154, 209 N.E.2d 405, we did not enjoin 'taking'; we there ordered proceedings for appropriation. Causby, Griggs and Ackerman involved payment for the 'taking'; not injunction to prevent the taking. [FN 13]
The Constitution does not preclude state action on matters of state concern, and we agree with the holding of the trial court that the safety and welfare of persons above and on the ground in the vicinity of modern day airports is a matter of state concern. Moreover, from an evidentiary standpoint, there was no showing that any of the airport zoning regulations in question would have the effect of nullifying any of the zoning ordinances of Willoughby Hills.
For the reasons heretofore stated, the judgment of the Court of Appeals is reversed.
C. WILLIAM O'NEILL, C. J., and SCHNEIDER, HERBERT, HOLMES, CORRIGAN and STERN, JJ., concur.
HOLMES, J., of the Tenth Appellate District, sitting for DUNCAN, J. Judge HOLMES of the Court of Appeals was, pursuant to Section 2 of Article IV of the Constitution of Ohio, duly directed by the Chief Justice 'to sit with the justice of the supreme court in the place and stead of' Justice DUNCAN and Judge HOLMES did so and heard and considered this cause prior to the resignation of Justice DUNCAN on November 28, 1971.