City of Wooster v. Entertainment One, Inc., 2004 Ohio 3846 (OH 7/21/2004)
| Decision Date | 21 July 2004 |
| Docket Number | C.A. No. 03CA0043. |
| Citation | 2004 Ohio 3846 |
| Parties | City of Wooster, Appellee, v. Entertainment One, Inc., et al., Appellants. |
| Court | Ohio Supreme Court |
Appeal from Judgment entered in the Court of Common Pleas County of Wayne, Ohio, Case No. 02-CV-0495.
H. Louis Sirkin and Jennifer M. Kinsley, Attorneys at Law, 105 West Fourth Street, Suite 920, Cincinnati, Ohio 45202, for Appellants.
Mark W. Baserman, Sr., Attorney at Law, 45 South Monroe Street, Millersburg, Ohio 44654, for Appellee.
Richard R. Benson, Jr., Attorney at Law, 538 North Market Street, Wooster, Ohio 44691, for Appellee.
David R. Langdon, Attorney at Law, 11175 Reading Road, Suite 103, Cincinnati, Ohio 45241-1997, for Appellee.
DECISION AND JOURNAL ENTRY
{¶1} Appellants, Eric Boron, Entertainment One of Pennsylvania, Inc., and E.V.B., Inc. (collectively, "Erotica"), appeal from the decision of the Wayne County Court of Common Pleas. We affirm.
{¶2} The instant matter involves the city of Wooster's ("Wooster") enactment of amendments to its zoning code regarding the zoning regulation of sexually oriented businesses. The change in the zoning ordinances affected Mr. Boron's use of certain real property that he owned, and resulted in the underlying action and present appeal.
{¶3} On May 20, 2002, Mr. Boron, as the agent of E.V.B., Inc., entered into a contract for the purchase of certain real property located on E. Liberty Street in Wooster, Ohio, in Wayne County. This real property is located in a zoning district labeled as "C-4," or the central business district in Wooster. Additionally, the real property is located within 1,000 feet of a church, and within 1,000 feet of a residential district as defined by Wooster's zoning ordinance. Mr. Boron asserts that his intention was to open an adult book and video store called "Erotica" on the premises.
{¶4} At a public hearing held on June 26, 2002, the Wooster City Council voted unanimously to recommend the adoption of Ordinance No. 2002-49, to amend Title Five, Zoning Code of the Wooster Codified Ordinances to include new sections regulating the establishment of sexually oriented businesses within Wooster. Specifically, the proposed sections assign such businesses to specific zoning districts and required that they be at least 1,000 feet from residential neighborhoods, churches, schools, public parks, libraries, and other sexually oriented businesses within Wooster. The zoning ordinance was placed on the agenda for the city council meeting to be held on August 19, 2002.
{¶5} On August 5, 2002, Mr. Boron, acting on behalf of E.V.B., Inc., applied for building and zoning permits to remodel the existing store area on the premises. Wooster granted the request for the zoning permit on August 9, 2002.
{¶6} On August 19, 2002, the city council enacted the zoning ordinance. The zoning ordinance became effective on September 19, 2002. The parties have stipulated to the fact that Erotica "was not open or operating as a sexually oriented business" as of September 19, 2002.
{¶7} On August 26, 2002, Wooster issued Mr. Boron a 30-day conditional commercial building permit and certificate, which did not authorize Mr. Boron to perform any electrical, plumbing, or HVAC work at the premises. Mr. Boron began to expend funds for the renovation and remodeling of the premises. Mr. Boron paid the purchase price for the property on September 3, 2002.
{¶8} In a letter dated October 4, 2002, Wooster's zoning and planning manager, acting upon the newly passed Ordinance, informed Mr. Boron that his zoning permit had been revoked. The manager stated, The letter further explained that because Mr. Boron's premises is in a C-4 district and since it was also within 1,000 feet of a church, his sexually oriented business would be in violation of Wooster's zoning code.1
{¶9} On October 4, 2002, Wooster filed a complaint against Entertainment One, Inc.,2 dba Erotica Books and News, seeking a declaratory judgment pursuant to R.C. 2721.01, et seq., and statutory injunctive relief pursuant to R.C. 713.13, for operating an adult bookstore in an improper zoning district.3 Specifically, Wooster sought a declaration that the ordinance was valid and constitutional, and sought to permanently enjoin Erotica from using the premises for a sexually oriented business.
{¶10} On October 10, 2002, the building standards division of the development department issued an adjudication order, this time noting that various construction work performed did not conform to the approved plans and the rules of the Board of Building Standards. On October 24, 2002, Wooster's development department issued an adjudication order that disapproved the floor plans for the new building, noting violations of the Ohio Basic Building Code.
{¶11} On October 15, 2002, Mr. Boron was issued an exterior sign permit for the store. The same day, city officials inspected the premises, requiring Mr. Boron to alter some of the remodeling plans. On October 24, 2002, the officials again inspected the property and determined further reconfiguration was required. On October 29, 2002, Wooster issued Mr. Boron a Certificate of Occupancy for the building alteration.
{¶12} On October 31, 2002, Wooster filed a motion for a temporary restraining order, pursuant to Civ.R. 65 and R.C. 2727.02, to enjoin and restrain Erotica from directly and indirectly making use of the premises for the purpose of a sexually oriented business. The trial court granted the temporary restraining order.4
{¶13} On November 27, 2002, Erotica filed an answer and counterclaim. As an affirmative defense, Erotica asserted that the operation of the business was a valid, nonconforming use based upon substantial expenditures by Erotica, and that Wooster's issuance of building and zoning permits to Erotica estopped Wooster from asserting that Erotica was either not properly operating the business or that the business was not properly located. Erotica's counterclaim sought, inter alia, declaratory judgment that Wooster's revocation of Erotica's zoning permit constitutes a taking of private property without just compensation; that the operation of the store constitutes a valid nonconforming use not subject to the ordinance amendments; and that Wooster's actions constitute a violation of federal civil rights statutes. Erotica also asserted a breach of contract claim.
{¶14} On December 23, 2002, the trial court held a hearing on the injunction, at which the parties entered into a stipulation of facts. Thereafter, Erotica moved to amend its answer and counterclaim to add an affirmative defense that Wooster was barred from obtaining equitable remedies in court by the doctrines of laches and unclean hands. On April 15, 2003, the trial court granted Erotica leave to file an amended answer to include any affirmative defenses not included in the original answer, which included the unconstitutionality of the ordinances and the doctrine of unclean hands. The matter was scheduled for an evidentiary hearing, which was held on June 6, 2003.
{¶15} On June 27, 2003, the court issued an agreed order. This order specified, inter alia, that the remaining claims between the parties consisted of Wooster's declaratory judgment action regarding the zoning ordinance, Wooster's claim for a statutory injunction, and Erotica's counterclaims for a declaratory judgment, injunction, and attorney's fees relating to the zoning ordinance. The court also noted that it would decide these claims on the parties' briefs, as well as the stipulated facts and exhibits entered into the record at the December 23, 2002 hearing.
{¶16} On July 17, 2003, the trial court issued findings of fact and conclusions of law. The same day, the court issued a decision finding that the zoning ordinance was constitutional; that Erotica's nonconforming use argument failed because the use did not exist prior to the change in the zoning ordinance; that Erotica's affirmative defenses failed; and that Wooster was entitled to an injunction. On July 25, 2003, the trial court issued an order that granted Wooster's statutory injunction claim, enjoined Erotica from operating and maintaining a sexually oriented business on the premises, and dismissed Erotica's counterclaims with prejudice. This appeal followed.
{¶17} Erotica timely appealed, asserting three assignment of error for review.
"The trial court erred in upholding ordinance No. 2002-49 as a constitutional regulation on the location of adult businesses absent specific, pre-enactment evidence of negative secondary effects."
{¶18} In its first assignment of error, Erotica asserts that the trial court erred in upholding Zoning Ordinance No. 2002-49 as constitutional. We disagree.
{¶19} Initially, we note the appropriate standard of review. When an appellate court reviews constitutional challenges involving the First Amendment, it is required to conduct an independent review of the record. New York Times Co. v. Sullivan (1964), 376 U.S. 254, 285, 11 L.Ed.2d 686, citing Edwards v. South Carolina (1963), 372 U.S. 229, 235, 9 L.Ed.2d 697; State ex rel. Pizza v. Strope (1990), 54 Ohio St.3d 41, 45; Urbana ex rel. Newlin v. Downing (1989), 43 Ohio St.3d 109, paragraph five of the syllabus, following Bose Corp. v. Consumers Union of the United States, Inc. (1984), 466 U.S. 485, 80 L.Ed.2d 502. A strong presumption exists in favor of the validity of a zoning ordinance. Goldberg Cos., Inc. v. Richmond Hts. City Council (1998), 81 Ohio St.3d 207, 214. The basis for the presumption of the validity of a zoning ordinance is that a local legislative body, because of its...
To continue reading
Request your trial