City of Seven Hills, Ohio v. City of Parma

• Decision Date: 20 October 1994
• Docket Number: 67011,94-LW-0236
• Parties: CITY OF SEVEN HILLS, OHIO,, Plaintiff-Appellant v. CITY OF PARMA, ET AL., Defendants-Appellees
• Court: Ohio Court of Appeals

CITY OF SEVEN HILLS, OHIO Plaintiff-Appellant v. CITY OF PARMA, ET AL., Defendants-Appellees

No. 67011.

94-LW-0236 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

October 20, 1994

Civil appeal from Common Pleas Court Case No. 253732.

For plaintiff-appellant: Allen A. Kacenjar, Law Director, City of Seven Hills, Suite 400 Broadview Centre, 5241 Broadview Road Cleveland, Ohio 44134.

For defendants-appellees: William D. Mason, Law Director, City of Parma, 6611 Ridge Road, Parma, Ohio 44129.

OPINION

NAHRA C.J.

Plaintiff-appellant the City of Seven Hills appeals from the trial court order which denied appellant's complaint for a restraining order against defendant-appellee the City of Parma. By filing its complaint, appellant sought to prevent appellee from constructing a cul-de-sac on Old Rockside Road at the border of the two cities. The trial court's order in effect permits appellee to proceed with the construction. Other pertinent facts concerning this appeal follow.

Appellee is an unchartered municipal corporation. On July 20, 1992, appellee's city council passed an ordinance to rezone a parcel of property "located on the southeast corner of Old Rockside Road and Broadview Road" from "office building district to retail district." The rezoning was "contingent upon the installation of a cul-de-sac on the eastern most [sic] portion of . . . Old Rockside Road . . . which borders upon the subject parcel . . . so as to prohibit any through motor vehicle traffic between Broadview and Rockside Roads along that portion of Old Rockside Road located within the City of Parma" The rezoning was "further conditioned upon the developer contributing up to $15,000.00 for the cost of installing the cul-de-sac."

As justification for the action taken thereunder, Ordinance No. 100-92 stated:

[t]he installation of the cul-de-sac is necessary to prevent any increase in traffic along Old Rockside Road, which currently abuts residential properties within the City of Parma, and which increase can be reasonably anticipated as a result of the above-mentioned rezoning.

This ordinance was approved by appellee on July 28, 1992.

Thereafter, on May 17, 1993, appellee's city council passed Ordinance No. 110-93 respecting the above-mentioned plan for Old Rockside Road, which stated as follows:

AN ORDINANCE TO CREATE A CUL-DE-SAC ON OLD ROCKSIDE ROAD AT THE CITY LINE, TO RETAIN THE SERVICES OF AN INDEPENDENT PROFESSIONAL ENGINEER, AND TO SECURE PERMANENT EASEMENTS ON THE AFFECTED PARCELS

BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PARMA, STATE OF OHIO:

Section 1. That the Mayor and Director of Public Service are hereby authorized and directed to create a cul-se-sac on Old Rockside Road at the City line, in accordance with the City of Parma's Engineering Department's specifications, to retain the services of an independent professional engineer, if necessary, and to secure permanent easements on the affected parcels.

Section 2. That in accordance with Ordinance No. 100-92, passed July 20, 1992, the City of Parma shall be reimbursed for costs from the developer of permanent parcel 445-16-001to The of Old Rockside Road shall be assessed for the difference between the costs of the cul-de-sac and the contribution of the developer pursuant to law.

Section 3. That this Ordinance is hereby declared to be an emergency measure necessary for the immediate preservation of the public health, safety and welfare of the City of Parma, and for the further reason that this measure is necessary at the earlier time possible due to many serious accidents occurring in this area, and this Ordinance shall become immediately effective upon receiving the affirmative vote of two-thirds of all members elected to Council and approval of the Mayor, otherwise from and after the earliest period allowed by law.

The ordinance was approved on May 26, 1993.

On June 16, 1993, appellant filed its complaint(fn1) against appellee and its officers in the Cuyahoga County Court of Common Pleas.(fn2) Therein, appellant prayed for an injunction and "other equitable relief" seeking to prevent appellee's construction of the cul-de-sac which would thus close Old Rockside Road at the border of the two cities.

In its complaint, appellant averred that the closing of Old Rockside Road would "cause its residents and the general public at large undue hardship, inconvenience, and will affect the health, safety and welfare of the residents of the City of Seven Hills,

and will further deny them rightful access to the use of the subject street . . . ." Appellant also averred appellee had "exceeded the powers granted to it by the State of Ohio" and had "not taken necessary steps" before determining Old Rockside Road should be closed. Appellant stated appellee had by its actions violated the constitutional rights of the citizens of Seven Hills,

and, further, that the closure of Old Rockside Road would "cause irreparable injury and harm" to its citizens and the community at large.

Appellee answered the complaint with denials of the pertinent allegations and several affirmative defenses. Discovery thereupon

commenced. Appellant thereafter filed several deposition transcripts in the trial court.

Trial on the matter commenced on February 1, 1994. The trial court heard the testimony of both appellant's and appellee's witnesses. Moreover, the trial court also had the trial briefs filed by appellant and appellee for its consideration.

The trial court ultimately found in favor of appellee. In its order of judgment the trial court stated appellant "did not prove that [the city of Parma's] decision to construct a cul-de-sac on Old Rockside [sic] was clearly unreasonable, or the decision was

arbitrary, carpricious [sic] or in bad faith as set forth in City of Cleveland v. Shaker Hts. (1987), 30 OH St.3d 49 [sic]."

Appellant has filed a timely appeal from the order of the trial court and assigns as error the following:

THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF'S AMENDED COMPLAINT FOR TEMPORARY RESTRAINING ORDERS, PRELIMINARY AND PERMANENT RESTRAINING ORDERS AND OTHER EQUITABLE RELIEF IN HOLDING THAT THE PLAINTIFF DID NOT MEET ITS BURDEN OF PROOF IN THE TRIAL' ON THE ACTION OF THE DEFENDANT, CITY OF PARMA'S DECISION TO CONSTRUCT A CUL-DE-SAC ON OLD ROCKSIDE ROAD AT THE BORDER OF SEVEN HILLS AND PARMA AND HOLDING THAT THE DECISION OF THE CITY OF PARMA WAS NOT UNREASONABLE, ARBITRARY, CAPRICIOUS OR MADE IN BAD FAITH AS THE TRIAL COURT'S FINDING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

In this lengthy assignment of error, appellant essentially argues the trial court's judgment was against the manifest weight of the evidence. Appellant contends appellee's action was "arbitrary, capricious and pursued in bad faith" because the evidence adduced at trial proved the following: 1) appellee did not base its decision to close Old Rockside Road on either a traffic study or any "extensive expert advice" and, further, failed to consider how its decision would impact on appellant or its citizens; and 2) appellee's "underlying" motive for closing Old Rockside Road was to financially assist the developer of the rezoned parcel of property located on that thoroughfare. A review of the record, however, leads to the conclusion the trial court's decision in this case was proper.

It is fundamental that a judgment which is supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279; Seasons Coal Co.

v. Cleveland (1984), 10 Ohio St.3d 77.

Although R.C. 723.01 requires municipalities to keep their streets "open," this requirement does not preclude reasonable regulations of vehicular traffic and traffic patterns by a municipality. Cleveland v. Shaker Heights (1987), 30 Ohio St.3d 49, at syllabus 1. Furthermore, R.C. 723.05 provides in pertinent part:

When, in the opinion of the legislative authority; there is good cause for vacating or narrowing a street or alley, or any part thereof, and that such vacation or narrowing will not be detrimental to the general interest, it may, by ordinance and without petition therefor, vacate or narrow such street or alley or any part thereof.

(Emphasis added.)

In Smith v. Village of Wintersville (1962), 26 Ohio Ops.2d 40, the court held that a municipal authority has discretion to

determine when a street shall be "vacated"...