Boice v. Ottawa Hills, 2007 Ohio 4471 (Ohio App. 8/31/2007), Court of Appeals No. L-06-1208.
Decision Date | 31 August 2007 |
Docket Number | Court of Appeals No. L-06-1208.,Trial Court No. CI 2004-5482. |
Citation | 2007 Ohio 4471 |
Parties | Willis Boice, et al., Appellants, v. Village of Ottawa Hills, et al., Appellees. |
Court | Ohio Court of Appeals |
Marvin A. Robon and Gregory R. Elder, for appellants.
Sarah A. McHugh, for appellees.
DECISION AND JUDGMENT ENTRY
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas which affirmed a decision of appellee the Village of Ottawa Hills Zoning Commission and thereby determined that plaintiffs-appellants, Willis and Annette Boice, had not suffered an unconstitutional taking of their property by the denial of a variance request and enforcement of a zoning ordinance. Appellants now challenge that judgment through the following "issues for review," which we construe as assignments of error:
{¶ 2} "1. Whether the trial court erred as a matter of law by finding that there can be no regulatory taking as a result of a retroactive application of a new zoning statute that causes a substantial diminution in fair market value but not a total diminution in fair market value to the effected property.
{¶ 3}
{¶ 4} The facts of this case are undisputed. In 1974, appellants purchased two adjoining lots in the village of Ottawa Hills. Parcel 1, located at 2570 Westchester Road, included a home that was built in 1941. Parcel 2, located at 2550 Westchester Road, was vacant. The home on Parcel 1, however, extended slightly onto Parcel 2. In approximately 1926, Parcel 1 and Parcel 2 were platted as two separate lots and the plat was filed and accepted by the village of Ottawa Hills. In 1973, Robert and Kate Foster, who then owned both properties, reconfigured the lots by detaching a portion of Parcel 2 and adding it to Parcel 1 so that the house no longer sat across the lot line. Appellees the village of Ottawa Hills and its Zoning Commission approved the reconfiguration of the lot line. As a result of this reconfiguration, the square footage of Parcel 2 was reduced to approximately 32,000 square feet. When the parcels were reconfigured, and the following year when appellants purchased them, they were located in an A-4 zoning district. At that time, the minimum lot area requirement to build a single family residence in an A-4 district was 15,000 square feet. As such, when the lots were reconfigured and when appellants purchased them, Parcel 2 was a buildable lot.
{¶ 5} On May 15, 1978, the Council of the Village of Ottawa Hills ("council") passed Ordinance 78-5, amending its zoning code. Under Article VII, Section 7.1 of Ordinance 78-5, the minimum lot area requirement to build a single family residence in an A-4 district was increased to 35,000 square feet. Subsequently, in 2002, the council again amended its zoning code. Through this amendment, Zoning Code Ordinance 20020-8, the council, in part, adopted a new district map which placed the two parcels at issue in a newly created A-12 zoning district. The minimum lot area requirement to build a single family residence in that district, however, remained 35,000 square feet.
{¶ 6} In 2004, appellants inquired of and were informed by the Ottawa Hills Village Manager that they could no longer build on Parcel 2 because the size of the lot did not meet the 35,000 square foot requirement. Appellants appealed that decision to the Zoning Commission of Ottawa Hills ("zoning commission"). They also requested a variance from the 35,000 square foot requirement or, if the variance was denied, a lot split which would reconfigure the line between Parcels 1 and 2 so as to increase the size of Parcel 2 to greater than 35,000 square feet. The zoning commission held a public meeting on August 19, 2004, at which they considered appellants' requests. A number of Ottawa Hills residents expressed their opposition to the variance request for a number of reasons, including fear that it would set a precedent, housing density, and the general aesthetics of the area. Appellants' son, on behalf of appellants, responded that the original 1926 plat of the area showed two separate lots, that there was no evidence that the original developers of the plat intended to restrict the lot size to 35,000 square feet, that it had consistently been their understanding that Parcel 2 was a buildable parcel, and that they had paid taxes on the property as if it were a buildable parcel for many years. Upon consideration, the commission voted unanimously to deny the variance request.
{¶ 7} The commission then proceeded to consider the request for a lot split that would increase the size of Parcel 2. Again, the request was opposed by a number of residents and again the request was denied. Members of the commission stated that the denial was based on the lot size, green space, lot frontage and the effect on the neighborhood. In particular, one commission member stated that the surrounding parcels on Westchester Road were substantially larger than the proposed parcel.
{¶ 8} On October 24, 2004, appellants filed a notice of administrative appeal with the Lucas County Court of Common Pleas to challenge the decisions of Ottawa Hills and its zoning commission. Appellants filed the appeal pursuant to R.C. 2505.01 et seq. and R.C. 2506.01 et seq. In their notice of appeal, appellants asserted that the decision of the zoning commission was erroneous, an abuse of discretion, procedurally defective, illegal, void, arbitrary, capricious, unreasonable, and/or unsupported by the preponderance of any substantial, reliable, or probative evidence. Appellants also asserted that the decision constituted an unconstitutional confiscation and taking of real property without just compensation and that the 1978 zoning amendment was unconstitutional and unenforceable due to lack of proper notice. Appellants prayed in relevant part for an order reversing the decision of the Ottawa Hills Zoning Commission, declaring that Parcel 2 is a buildable lot, and declaring that the decision of the Ottawa Hills Zoning Commission was unconstitutional, capricious, unreasonable and/or unsupported by a preponderance of substantial, reliable and probative evidence, and constituted an unlawful confiscation and taking of property.
{¶ 9} In their brief filed before the lower court, appellants argued that the retroactive application of the zoning amendment to their property was a regulatory taking without just compensation in violation of both the Ohio and United States Constitutions. As a remedy, appellants sought a finding by the lower court that the zoning amendment was unconstitutional and void as applied to appellants' property and that Parcel 2 is a buildable lot in the same manner it was prior to the application of the zoning code amendment. They did not seek compensation for the alleged taking. As an additional basis for reversal, appellants argued that the retroactive application of the zoning amendment to Parcel 2 violated the public purpose in that it was arbitrary, capricious, unreasonable, or unsupported by a preponderance of substantial, reliable and probative evidence.
{¶ 10} Appellants also filed in the court below a motion pursuant to R.C. 2506.03 to submit additional evidence in support of their appeal. Specifically, appellants sought to submit an appraisal and supporting affidavit from a local professional appraiser regarding the value of Parcel 2 and the affidavit of Peter Boice, appellants' son, attesting to the facts that were raised at the hearing by him but which were not stated under oath. Ultimately, the lower court denied appellants' motion to submit the affidavit of Peter Boice, finding that the court's determination of the non-constitutional issues would be confined to the record of the administrative proceedings. The court did, however, determine that evidence regarding the value of the Parcel 2 was essential to a determination of the taking issue. The court, therefore, in an opinion and judgment entry of February 14, 2006, granted in part appellants' motion to submit additional evidence and determined that both parties could submit additional evidence relevant to the constitutionality of the ordinance as applied to Parcel 2. In that same entry, the court found, pursuant to R.C. 2506.04 and upon a review of the transcript of the administrative proceedings, that the decision of the Ottawa Hills Zoning Commission was not illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence.
{¶ 11} The lower court subsequently held a hearing on the taking issue at which appellees orally moved for a judgment on the pleadings. The court took the matter under advisement and granted the parties leave to brief the issues. On June 9, 2006, the lower court issued a decision and order affirming the decision of the zoning commission. The court held that Zoning Code Ordinance 2002-08 is not unconstitutional as applied to Parcel 2 and held that the application of Zoning Code Ordinance 2002-08 to Parcel 2 does not constitute a taking of real property. Appellants now challenge that judgment on appeal.
{¶ 12} Initially, we must address the issue raised by appellees both before the lower court and this court, as to whether appellants could properly challenge the constitutionality of the zoning ordinance through an administrative appeal. Appellees assert that the lower court was restricted to reviewing the matter as an administrative appeal under R.C. Chapter 2506 because appellants did not seek to challenge the zoning ordinance through a declaratory judgment or mandamus action. The lower court determined that while a declaratory judgment action was a proper method of challenging...
To continue reading
Request your trial