Central Motors Corp. v. City of Pepper Pike

• Decision Date: 16 February 1979
• Citation: 409 N.E.2d 258,63 Ohio App.2d 34,13 O.O.3d 347
• Parties: , 13 O.O.3d 347, 17 O.O.3d 240 CENTRAL MOTORS CORPORATION, Appellant, v. CITY OF PEPPER PIKE et al., Appellees. *
• Court: Ohio Court of Appeals

Page 34

63 Ohio App.2d 34

409 N.E.2d 258, 13 O.O.3d 347, 17 O.O.3d 240

CENTRAL MOTORS CORPORATION, Appellant, v. CITY OF PEPPER PIKE et al., Appellees. ^*

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Feb. 16, 1979.

Syllabus by the Court

1. When, in a case tried to the court, a motion to dismiss is filed under Civ.R. 41(B)(2), the court, as trier of the facts, may weigh the evidence and render judgment against the plaintiff if he has not shown a right to relief by the requisite degree of proof.

2. When a party files a declaratory judgment action seeking a determination of unconstitutionality of a zoning ordinance, he has the burden of proving the ordinance unconstitutional by taking the matter of the validity of the ordinance clearly beyond the reach of fair debate. If the validity of the legislative classifications for zoning purposes is fairly debatable, the legislative judgment must be allowed to control.

3. The issues presented in a declaratory judgment action under R.C. Chapter 2721 attacking the constitutionality of a zoning ordinance as applied are determined from the allegations of the complaint, the prayer for relief, and the evidence presented, and may be as broad or as narrow as the plaintiff desires. The issues to be determined in a declaratory judgment action attacking constitutionality of a zoning ordinance may include an objective determination as to whether the ordinance is unreasonable, arbitrary and confiscatory and not based on the public health, safety, morals and general welfare, and thus whether or not it is unconstitutional. Further, the prayer for relief may include a request for a determination of a reasonable use or uses of the property if the zoning ordinance is declared unconstitutional.

In the alternative, the issue may be framed more narrowly such as in an R.C. Chapter 2506 appeal, as to whether the prohibition against a specific proposed use is constitutional.

4. A declaration of unconstitutionality of a zoning ordinance and a determination of a reasonable use or uses in a declaratory judgment action have the same legal effect as a successful R.C. Chapter 2506 appeal. Where a property owner is successful in an attack on constitutionality under R.C. Chapter 2506, the court has determined that the prohibition against a proposed use is unconstitutional. When, in a declaratory judgment action, a court determines unconstitutionality of a zoning ordinance as applied to a particular parcel of property and a reasonable use or uses for the property, any action taken to prevent or deny development of the property for that reasonable use will also be considered an unconstitutional act. Thus, any prohibition against the reasonable use found by the court is unconstitutional.

5. When in a declaratory judgment action a court makes a determination of unconstitutionality of a zoning ordinance and a finding of a reasonable use, it has continuing authority under R.C. 2721.09 and its general equity powers to fashion any remedy necessary to assure enforcement of its decree.

6. A building permit may not be issued by a municipality unless there is a zoning ordinance with appropriate regulations as to use, height, area, density, setbacks, parking and other zoning requirements.

7. Because Ohio law does not require a municipality to adopt a comprehensive zoning plan as a condition precedent to the enactment of zoning legislation, a municipality has the discretion as to whether it will adopt a comprehensive zoning plan. Failure to have a zoning plan which is separate and distinct from a zoning ordinance does not render a zoning ordinance unconstitutional. A challenge to the constitutionality of a zoning ordinance must be on the basis that the ordinance is arbitrary, unreasonable, confiscatory, and not based on the public health, safety, morals, and general welfare.

8. Constitutionality of a zoning ordinance and validity of deed restrictions are independent matters and should be decided in two separate proceedings. The presence of deed restrictions has no effect on zoning; thus the fact that deed restrictions limit certain property to single family use does not prevent a municipality's legislative body from rezoning that property to a different use. Enforcement of deed restrictions upon property must be pursued by those who have standing to attack violations of these restrictions. The fact that property has single family deed restrictions and is zoned for single family use when acquired does not prevent a party from later attacking the deed restrictions as invalid and the zoning ordinance as unconstitutional.

9. Failure to zone property for its highest and best use does not make the zoning ordinance unconstitutional as a matter of law. Diminution of value taken alone is insufficient to invalidate existing zoning ordinances. Also, if a property owner would suffer economic loss in developing his property for its present zoning use, it is not considered an unconstitutional taking of property without due process of law that would invalidate the existing zoning ordinance. While such evidence is relevant, it is not determinative of unconstitutionality. Proof of diminution in value and, or, actual economic loss is considered in determining whether an ordinance is arbitrary, unreasonable and confiscatory, and whether it bears a substantial relationship to the health, safety, morals and welfare of the municipality.

10. When a court finds the present zoning of a parcel of property unconstitutional in a declaratory judgment action, it is not required to accept the property owner's proposed use as a reasonable use. The court will determine a reasonable use upon the evidence of the general character of the immediate area surrounding the subject property and the general character of the municipality at large. A reasonable use is one that is in harmony with and consistent with zoning and, or, uses of surrounding property.

If a municipality does not have a zoning category for the reasonable use found by the court, the municipality will, in its discretion, determine the detailed regulations when enacting a zoning ordinance for the reasonable use found by the trial court.

Thompson, Hine & Flory, William D. Ginn and David L. Parham, Cleveland, for appellant.

Calfee, Halter & Griswold, Richard J. Cusick, Jr., Frederick W. Assini, Walter, Haverfield, Buescher & Chockley and Robert L. Musser, Cleveland, for appellees.

KRENZLER, Presiding Judge.

On January 28, 1974, plaintiff-appellant Central Motors Corp., an Ohio corporation, hereinafter referred to as Central, filed a declaratory judgment action pursuant to R.C. Chapter 2721 for the purpose of establishing the unconstitutionality of certain zoning ordinances of the city of Pepper Pike, and for a declaration of its rights. The defendant-appellees include the city of Pepper Pike, its mayor and council, who shall be collectively referred to as the City.

In its complaint Central alleged that in 1959 it purchased certain real estate located partly in Pepper Pike and partly in the city of Beachwood. Subsequent to Central's purchase, the state of Ohio constructed Interstate 271, a six-lane divided highway, including a Chagrin Boulevard Exit immediately adjacent to Central's property at its southwest corner.

Central alleged that its property is bounded on the west by the interstate; on the north by South Woodland Road; on the east by Brainard Road; and on the south by the boundary line between Pepper Pike and the village of Woodmere. Further, it was alleged that since the inception and construction of Interstate 271, the area immediately adjacent to Central's property along its southern border in the village of Woodmere and the neighboring areas in Orange Village and the city of Beachwood have been subjected to congested and intensive retail, commercial, apartment and shopping center development, which includes such diverse uses as automobile sales agencies, multi-story motels, gasoline service stations, theaters, party centers, restaurants, bars, strip shopping centers, office buildings and apartments.

It was also asserted that prior to the construction of Interstate 271, and the attendant commercial development in the Chagrin exit area, Central's property and substantially all of the property in Pepper Pike was zoned for single family dwellings and minimum one acre lots.

Central also contended that it recognized the changing character of the adjacent and neighboring uses and the adverse effect of the interstate highway upon one acre single family residential use, and in 1966 it commenced a process of planning, study and analysis of how its property might feasibly and practically be developed so as to take into account the circumstances unique to its property and still enable reasonable use for essentially residential purposes. Central employed planners and architects and requested a zoning change to allow a planned unit development. This request was presented to the council of Pepper Pike and was unanimously rejected.

Central further alleged that Pepper Pike's minimum one acre lot for single family dwelling use is unreasonable and confiscatory when applied to its property which is unique and severable in character from the remainder of Pepper Pike.

Central also alleged that enforcement of the one acre single family zoning on its property would result in great economic hardship and render the land unusable for its highest and best use; that the zoning is unreasonable, discriminatory and confiscatory; that it bears no real and substantial relationship to the promotion of community needs or the protection of the public health, safety, morals or general welfare; and that it is motivated solely by a private desire to maintain exclusive and exclusionary neighborhoods deemed esthetically pleasing to their historical occupants.

Central further alleged that Pepper Pike does not have a comprehensive zoning plan; does not make provision for...