Clarke v. Warren

• Decision Date: 04 November 2002
• Docket Number: No. CA2001-12-110.,CA2001-12-110.
• Citation: 150 Ohio App.3d 14,2002 Ohio 6006,778 N.E.2d 1116
• Parties: CLARKE et al., Appellees, v. WARREN COUNTY BOARD OF COMMISSIONERS, Appellant.
• Court: Ohio Court of Appeals

778 N.E.2d 1116

150 Ohio App.3d 14

2002 Ohio 6006

CLARKE et al., Appellees, v. WARREN COUNTY BOARD OF COMMISSIONERS, Appellant.

No. CA2001-12-110.

Court of Appeals of Ohio, Twelfth District, Warren County.

Decided November 4, 2002.

COPYRIGHT MATERIAL OMITTED

Barrett & Weber, C. Francis Barrett and M. Michele Fleming, Cincinnati, for appellees Richard M. Clarke, trustee, and Browning-Ferris Industries of Ohio, Inc.

Coolidge, Wall, Womsley & Lombard, John C. Chambers, Richard A. Talda, Dayton, and W. Kelly Lundrigan, for appellant.

Manley Burke, Timothy M. Burke, Cincinnati, for amicus curiae Little Miami, Inc.

Phillips Law Firm, Inc., and John H. Phillips, Cincinnati, for amici curiae Little Miami School District, Morrow Area Chamber of Commerce, Morrow Environmental Preservation Association, and William Brausch.

WALSH, Presiding Judge.

{¶ 1} Defendant-appellant Board of Commissioners of Warren County, Ohio, appeals from a judgment of the Warren County Court of Common Pleas granting the request of plaintiffs-appellees, Richard Clarke and Browning-Ferris Industries, for declaratory judgment. For the reasons that follow, we affirm the judgment of the trial court.

{¶ 2} Clarke is the owner of an 81-acre parcel of land in Union Township, Warren County, Ohio. The parcel is zoned R1, rural residence.¹ Since he purchased the land in 1985, Clarke has leased this parcel for agricultural use. Browning-Ferris Industries ("BFI"), owns an adjacent 51-acre parcel of land, which lies to the west of the Clarke parcel. The BFI parcel is situated between the Clarke parcel and the Bigfoot Run I sanitary landfill, owned by BFI. Bigfoot Run I was closed in 1999. It is now in monitoring status and is being developed as a wildlife area by BFI. In closing the landfill, BFI removed large amounts of soil from its adjoining parcel to cap Bigfoot Run 1. As well, the BFI parcel contains service and haul roads, storage areas, fences, and monitoring wells, all necessary to the operation of Bigfoot Run I as a wildlife area.

{¶ 3} The Bigfoot Run I landfill remains zoned SD, solid waste district. The parcels to the west IA Bigfoot Run I are zoned B2, general business zone, M2, heavy industry zone, and ME, mineral extraction zone. Both the BFI and Clarke properties are bounded to the south by the Little Miami River, and to the north and east sides by roadways. The land along these roads, except for the parcels to the west of Bigfoot I, is zoned R1, rural residence, just as the Clarke and BFI parcels.

{¶ 4} Upon the closure of Bigfoot Run I, BFI sought to purchase Clarke's parcel of land and, together with its adjoining parcel, develop the Bigfoot Run II sanitary landfill. BFI filed an application to rezone the parcels from R1 to SD so that the Bigfoot Run II landfill could be developed. The Board of Commissioners of Warren County ("board of commissioners") rejected the application.

{¶ 5} Appellees subsequently filed a complaint, seeking a declaration that the R1 zoning designation is unconstitutional as applied to the properties and that the proposed solid waste disposal facility constitutes a reasonable use of the property. Appellees also sought injunctive relief and damages. In response, the board of commissioners filed a motion for partial summary judgment. The parties subsequently agreed to bifurcate the proceeding, allowing the trial court first to determine appellees' requests for declaratory judgment. An agreed entry provided that a hearing on the remaining issues of injunctive relief and damages would be held at a later time, if needed. The motion for partial summary judgment was held in abeyance pending the trial court's decision on the request for declaratory judgment.

{¶ 6} A hearing was held on the matter, and in a decision issued November 13, 2001, the trial court granted appellee's request for declaratory judgment. The trial court determined that the R1 zoning designation deprived Clarke and BFI of any economically viable use for the parcels of property, and declared that the classification was therefore unreasonable, arbitrary, and unconstitutional. The trial court further declared that a solid waste disposal facility would constitute a reasonable use of the property. The board of commissioners appeals, raising two assignments of error for our review.

Assignment of Error No. 1

{¶ 7} "The trial court erred in failing to grant appellant's motion to dismiss pursuant to Ohio Rule of Civil Procedure 41(B)(2)."

Assignment of Error No. 2

{¶ 8} "The trial court's judgment is against the manifest weight of the evidence."

{¶ 9} As an initial matter, appellees urge us to adopt the rule of law espoused in Sylvania Say. Bank Co. v. Sunburst Car Care Centers, Inc. (1983), 12 Ohio App.3d 97, 100, 12 OBR 403, 467 N.E.2d 263, which prohibits a defendant from appealing the denial of a motion to dismiss made pursuant to Civ.R. 41(B)(2) if the defendant proceeds with its defense upon denial of the motion. The Sylvania decision has been criticized for its reliance on cases which predate the adoption of the Civil Rules as authority for its conclusion. See Ohio Edison Co. v. Hwy. Carrier Corp. (Jan. 21, 1994), Clark App. No. 3047, 1994 WL 12468. Further, the authority cited in Sylvania has been overruled by the Ohio Supreme Court, which found that the case applied an outdated waiver doctrine and was illogical. See Helmick v. Republic-Franklin Ins. Co. (1988), 39 Ohio St.3d 71, 529 N.E.2d 464, overruling Halkias v. Wilkoff Co. (1943), 141 Ohio St. 139, 25 O.O. 257, 47 N.E.2d 199. In similar cases, this court has not applied the waiver doctrine, see Holiday Homes, Inc. v. Miami Twp. Bd. of Trustees (Oct. 19, 1992), Clermont App. Nos. CA91-11-096 and CA91-01-097, 1992 WL 308307, and we decline to adopt such an ill-advised rule at this juncture.

{¶ 10} A motion for dismissal of a plaintiff's case under Civ.R. 41(B)(2) requires the trial court to weigh the evidence, resolve any conflicts therein, and render judgment for the defendant if the plaintiff has shown no right to relief. Civ.R. 41(B)(2); Bank One, Dayton, N.A. v. Doughman (1988), 59 Ohio App.3d 60, 63, 571 N.E.2d 442. The dismissal will be set aside only if erroneous as a matter of law or against the manifest weight of the evidence. Id.

{¶ 11} The board of commissioners' second assignment of error alleges that the trial court's judgment is against the manifest weight of the evidence. As we analyze both of the board of commissioners' assignments of error under identical standards of review, we will discuss the alleged errors concurrently.

{¶ 12} At the request of the parties, the trial court considered only appellee's request for declaratory judgment. Other issues, including whether injunctive relief would be appropriate, whether the zoning constituted a taking, and whether damages should be awarded, were bifurcated, and not considered by the trial court. Accordingly, the only issues decided by the trial court were (1) whether "the Warren County zoning code is unconstitutional in so far as it restricts the subject parcels to R-1 uses[,]" and (2) whether "the S-D use would be an appropriate and reasonable permitted use for the subject parcels." The trial court answered both queries in the affirmative, and ordered the board of commissioners to rezone the parcels to another appropriate use classification.

{¶ 13} In reviewing the trial court's judgment, it is well established that every reasonable presumption must be made in favor of the judgment and findings of fact. Shemo v. Mayfield Hts. (2000), 88 Ohio St.3d 7, 10, 722 N.E.2d 1018, citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 10 OBR 408, 461 N.E.2d 1273. Thus, judgments supported by competent, credible evidence going to the material elements of the case will not be disturbed as being against the manifest weight of the evidence. Id., citing C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578, at syllabus.

{¶ 14} We begin with the premise that all zoning ordinances are presumed constitutional. Id., citing Cent. Motors Corp. v. Pepper Pike (1995), 73 Ohio St.3d 581, 583-584, 653 N.E.2d 639. However, a zoning ordinance will be struck down if a property owner challenging the ordinance proves, beyond fair debate, that the ordinance is "`clearly arbitrary and unreasonable and without substantial relation to the public health, safety, morals, or general welfare'" of the community. Goldberg Cos., Inc. v. Richmond Hts. City Council (1998), 81 Ohio St.3d 207, 213, 690 N.E.2d 510, quoting Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 395, 47 S.Ct. 114, 71 L.Ed. 303. The party challenging the constitutionality of a zoning classification bears the burden of proof and must prove unconstitutionality beyond fair debate. Goldberg at paragraph two of the syllabus. The standard of "beyond fair debate" in zoning litigation is analogous to the standard of "beyond a reasonable doubt" in criminal law. Cent. Motors. Corp., 73 Ohio St.3d at 584, 653 N.E.2d 639.

{¶ 15} A landowner can challenge the constitutionality of a zoning ordinance in two ways. First, a landowner can allege that a zoning ordinance is unconstitutional as applied to a particular parcel of land. Goldberg, 81 Ohio St.3d at 213, 690 N.E.2d 510. Second, a landowner may allege that a zoning ordinance as applied to property constitutes a "taking" in violation of the Fifth Amendment to the United States Constitution, entitling the owner to compensation. Id. Appellees' complaint challenged the constitutionality of the properties' zoning classification on both grounds. However, because the proceeding was bifurcated, the trial court did not consider appellees' allegation that the zoning constituted a taking requiring just compensation.

{¶ 16} The board of commissioners argued that the zoning designation advances several legitimate governmental health, safety, and welfare concerns, including "protecting current and future...