Columbia Oldsmobile, Inc. v. City of Montgomery

• Decision Date: 12 December 1990
• Docket Number: No. 89-1132,89-1132
• Citation: 56 Ohio St.3d 60,564 N.E.2d 455
• Parties: COLUMBIA OLDSMOBILE, INC., Appellee, v. CITY OF MONTGOMERY, Appellant.
• Court: Ohio Supreme Court

Page 60

56 Ohio St.3d 60

564 N.E.2d 455

COLUMBIA OLDSMOBILE, INC., Appellee, v. CITY OF MONTGOMERY, Appellant.

No. 89-1132.

Supreme Court of Ohio.

Submitted Sept. 25, 1990.

Decided Dec. 12, 1990.

In 1967, the city of Montgomery annexed an 11.5-acre parcel of land that borders Perin Road to the north, the village of Indian Hill to the east, Governor's Watch, a residential development, to the south, and commercial land bordering Montgomery Road to the west. When it was annexed, this property was the site for a drive-in theater. The annexed site was automatically zoned in the "A" residential classification, pursuant to former Montgomery Ordinance No. 475. This classification permits single-family residence uses and certain other mostly non-commercial uses. The drive-in thus became a prior non-conforming use upon its annexation.

After 1975, the property was no longer used as a drive-in. The record indicates that in 1975, Columbia Oldsmobile, Inc. ("Columbia") purchased this property. In 1976, the zoning ordinance that was in effect upon annexation was repealed and a new zoning ordinance was adopted, which again zoned the property as "A" residential. In 1982, Columbia began to lease this property to Montgomery for the storage of highway equipment and related materials.

Some time later, Columbia bought an adjacent 5.1-acre parcel that abuts Montgomery Road to the west. That parcel was zoned "E" retail business upon purchase and is squarely situated in Montgomery's commercial corridor that borders Montgomery Road on both sides.

In 1985, Columbia did not renew its lease with Montgomery on the 11.5-acre parcel. At about that time, Columbia also submitted an application to Montgomery to have both the 11.5-acre parcel and the 5.1-acre parcel rezoned to the classification "PD Planned Development."

When that application was denied, Columbia commenced a declaratory judgment action to resolve whether the "A" residential zoning classification was unconstitutional as applied to the 11.5-acre parcel. That action constitutes the subject matter of this case.

At the request of the parties, the trial court specified that "[t]he sole issue to be decided in this case is the constitutionality of the Residence 'A' zoning as applied to the rear 11.5 acres of plaintiff's property." After a trial on the merits, the court made extensive findings of fact and conclusions of law. In its judgment entry, the court found that Columbia had " * * * failed to establish beyond fair debate that * * * [Montgomery's] zoning ordinance as applied to the subject property lacks a rational relationship to the legitimate ends of the police power."

The trial court further found that the subject zoning is consistent with Montgomery's goals of maintaining its residential character and of containing commercial activity, is compatible with surrounding land uses, promotes traffic safety and serves to stabilize the delicate balance between residential land use and limited commercial use. Thus, the court held that Columbia had failed to sufficiently establish that the ordinance as applied is unreasonable, arbitrary, or confiscatory.

The Court of Appeals for Hamilton County reversed the decision of the trial court on two principal grounds. First, the court found that "the trial court relied on [three] improper considerations in upholding the constitutionality of the zoning ordinance as applied to Columbia's property. * * * " These considerations included Montgomery's lack of "need" for additional businesses, the comprehensiveness of Montgomery's community plan, ¹ and the likelihood of an increase in area traffic if the subject property were to be rezoned.

Second, the court of appeals found that Columbia had proved beyond fair debate that it was not economically feasible to develop the subject property for residential purposes under the current zoning ordinance. Thus, the court held that it was against the manifest weight of the evidence for the trial court to uphold the zoning ordinance as it was applied to the subject property.

This cause is before the court upon the allowance of a motion to certify the record.

Keating, Muething & Klekamp, Joseph Trauth, Jr. and Richard Creighton, Jr., Cincinnati, Porter, Wright, Morris & Arthur, Ronald W. Gabriel, Columbus, and Robert A. Meyer, Jr., Toledo, for appellee.

Richard B. Dusterberg, Director of Law, Schwartz, Manes & Ruby Co., L.P.A., William B. Singer, Cincinnati, Calfee, Halter & Griswold, John Gotherman, Mark I. Wallach and Joseph A. Castrodale, Cleveland, for appellant.

Thompson, Hine & Flory, Jack F. Fuchs and Richard B. Tranter, Cincinnati, urging affirmance, for amicus curiae, Ohio Home Builders Ass'n.

Judkins & Hayes and Robert J. Judkins, Greenfield, urging affirmance, for amici curiae, American Planning Ass'n and Ohio Planning Conference.

Baker & Hostetler, Michael E. Minister and Jane S. Arata, Columbus, urging reversal, for amicus curiae, Ohio Mun. League.

PER CURIAM.

This case presents the question of whether a trial court must uphold a municipal zoning ordinance when there is competent, credible evidence that the ordinance allows the landowners to retain an economically viable use of their land and that the ordinance substantially advances a legitimate governmental interest in the health, safety or welfare of the community. We answer this question in the affirmative. Thus, we must reverse the judgment of the court of appeals and reinstate the decision of the trial court.

" * * * In order to invalidate a zoning regulation on constitutional grounds, the parties attacking it must demonstrate, beyond fair debate, that the zoning classification denies them the economically viable use of their land without substantially advancing a legitimate interest in the health, safety, or welfare of the community. * * * " Ketchel v. Bainbridge Twp. (1990), 52 Ohio St.3d 239, 243, 557 N.E.2d 779, 783, citing Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 19, 526 N.E.2d 1350, 1357. See Mayfield-Dorsh, Inc. v. South Euclid (1981), 68 Ohio St.2d 156, 22 O.O.3d 388, 429 N.E.2d 159; Brown v. Cleveland (1981), 66 Ohio St.2d 93, 20 O.O.3d 88, 420 N.E.2d 103; Superior Uptown, Inc. v. Cleveland (1974), 39 Ohio St.2d 36, 68 O.O.2d 21, 313 N.E.2d 820; see, also, Penn Central Transp. Co. v. New York City (1978), 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631; Goldblatt v. Hempstead (1962), 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130; Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. Thus, we must employ a two-part analysis to pass on the constitutional validity of a zoning ordinance. We will first determine whether the zoning ordinance allowed the landowner, Columbia Oldsmobile, an economically feasible utilization of its 11.5-acre parcel. We must next determine whether the ordinance permissibly advanced a legitimate interest of the city of Montgomery. Mayfield-Dorsh, Inc., supra.

I

We turn first to our discussion of economic feasibility. Ordinarily, a zoning ordinance is not confiscatory so long as the owner is not deprived of the reasonable use of his property. Valley Auto Lease of Chagrin Falls, Inc. v. Auburn Twp. Bd. of Zoning Appeals (1988), 38 Ohio St.3d 184, 527 N.E.2d 825, syllabus. However, a zoning ordinance that deprives an owner of all uses except those which are highly improbable or practically impossible under the circumstances is impermissibly restrictive. Id. at 186, 527 N.E.2d at 827; Negin v. Mentor Bd. of Bldg. & Zoning Appeals (1982), 69 Ohio St.2d 492, 23 O.O.3d 423, 433 N.E.2d 165; Superior Uptown, Inc. v. Cleveland, supra.

Among the trial court's findings of fact and conclusions of law is the specific finding that "[p]laintiff can obtain a fair and reasonable profit if the subject property is developed in accordance with existing zoning." Based upon the evidence, the court went on to note that " * * * [a] viable, marketable and profitable single family residence subdivision can be developed on the rear 11.5 acres of the subject property, consistent with its surrounding land uses. A viable, marketable, and profitable 30,000 square foot retail shopping center can be developed on the [5.1-acre] Retail 'E' frontage of the subject property."

The court of appeals reversed these findings, based upon four factors. First, the court believed that Columbia's 11.5-acre parcel is located within the Montgomery Road commercial corridor, a heavily developed and concentrated business area. Second, the court noted that Columbia's adjoining 5.1-acre parcel is already zoned "E" retail. Third, the court averred that the city in 1982 passed an ordinance to allow the planned development of the property directly north of Columbia's property and in 1985 approved a resolution to allow for the commercial use of the property directly across Montgomery Road from Columbia's 5.1-acre parcel. Fourth, the court acknowledged the previous uses of the site as a drive-in theater and storage site for highway equipment. The court stated that these factors combined to make Columbia's 11.5-acre parcel unsuitable for the residential development required to comply with the parcel's "A" residential zoning classification.

At trial, Jerry Devitt, a professional real estate broker and appraiser and former president and director-treasurer of the Cincinnati Board of Realtors, testified that the 11.5-acre rear parcel is worth $135,000, or approximately $11,700 per acre when undeveloped and zoned as "A" residential. He further stated that the 5.1-acre retail frontage parcel is worth $1,750,000, or approximately $350,000 per acre when undeveloped and zoned "E" retail. Devitt noted that the major portion of the value of commercial properties is found in the frontage. David N. Tipton, a commercial real estate developer, opined that the entire 16.6 acres, if undeveloped and zoned as retail, would be worth $3,154,000, or approximately $190,000 per acre.

However, the majority of the trial court's attention was...