Gaetana R. Ketchel v. Bainbridge Township
| Decision Date | 03 March 1989 |
| Docket Number | 89-LW-0706,1330 |
| Parties | Gaetana R. KETCHEL, et al., Plaintiffs-Appellants, v. BAINBRIDGE TOWNSHIP, et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Civil appeal from Geauga County Common Pleas Court Case No. 85 M 480.
Edwin J. Ketchel, Chagrin Falls, Ohio, Stephen G. Thomas, Chagrin Falls, for plaintiffs-appellants.
David P. Joyce, Prosecutor, Forrest W. Burt, Assistant Prosecutor Chardon, for defendants-appellees.
Before CHRISTLEY, P.J., and FORD and EDWARD A. COX, JJ., Seventh Appellate District Sitting by assignment.
OPINION UPON RECONSIDERATION
This action is presently before this court for reconsideration of the judgment entered on May 6, 1988 as to the first assignment of error only.
Appellants are owners of approximately two hundred fifty-six acres of real property located in Bainbridge Township, Geauga County, Ohio. The property has been designated R-3A under a comprehensive plan, Guide Plan 2000, which was adopted by the township. As zoned, appellants' land is limited to the following uses: agriculture, single family dwellings on lots of a minimum of three acres with a width of at least 200 feet, places of worship, public and private schools, public parks or other public recreation facilities, governmental buildings and cemeteries. The property is divided and owned or titled to several persons and entities.
Appellants joined in filing an amendment to the zoning resolution in order to rezone the residential property into multi-use property. This would allow commercial development which, in turn, would increase the value of the land to appellants. The proposed amendment, pursuant to R.C. 519.12, was referred to the Geauga Planning Commission which recommended that the township adopt it, with modifications. The township did not adopt the amendment.
Appellants filed a complaint in the Common Pleas Court of Geauga County, Ohio, requesting that the court find the present zoning restriction of their property to be unreasonable and thus void and unenforceable. Appellants further requested that the court order a directive to the trustees of Bainbridge Township that they rezone appellants' property according to their request for a multi-use designation within sixty days. Failure to do so would allow appellants to use their land in accordance with the use recommended by the Geauga Planning Commission.
The case was heard on June 16, 1986. The court found in favor of the appellees. Appellants filed a timely notice of appeal with the following assignments of error:
I.The Court of Common Pleas erred to the prejudice of plaintiffs-appellants in granting judgment for the defendants on the basis that legislative enactments are presumed valid and if reasonably debatable on the facts may not be judicially stricken or modified when the court found as a fact that it would not be economically feasible to develop the property for the primary purpose permitted by the zoning resolution and there was substantial uncontroverted evidence in the record to show that the zoning resolution was not related to the public health, safety or morals.
II.The trial court erred in not holding, as a matter of law, that the Bainbridge Township Zoning Resolution, was arbitrary and unreasonable as applied to plaintiffs' property for the reason that it is not in accordance with the Township's Comprehensive Plan, Guide Plan 2000.
III.The Court of Common Pleas erred to the prejudice of plaintiffs-appellants in not holding, as a matter of law, that a Township Zoning Resolution prescribing minimum lot sizes of three acres in order to preserve the natural quality of the landscape is void and unenforceable.
IV.The Court of Common Pleas erred to the prejudice of plaintiffs-appellants in not holding, as a matter of law, that the provision of the Bainbridge Township Zoning Resolution requiring a minimum lot size of three acres is void and unenforceable.
V.The Court of Common Pleas erred to the prejudice of plaintiffs-appellants in not holding, as a matter of law, that Township-Trustees may not enact a zoning resolution for the purpose of preventing pollution of land and the underlying aquifers or to protect aquifer recharge areas.
VI.The Court of Common Pleas erred to the prejudice of the taxpayers plaintiffs-appellants in dismissing the fifth cause of action set forth in the complaint upon finding that plaintiffs' evidence has not shown any right to relief as to the taxpayer's action claim (R. 532).
Appellants' first assignment of error is not well taken.
In challenging the constitutionality of a zoning ordinance, the party making the challenge is faced with a heavy burden in any attempt to invalidate an existing zoning classification. Zoning ordinances enacted pursuant to the police powers of a governmental entity are presumed to be valid until the contrary is clearly shown by the party attacking the ordinance. Brown v. Cleveland (1981), 66 Ohio St.2d 93; Mayfield-Dorsh, Inc. v. South Euclid (1981), 68 Ohio St.2d 156, 157. The burden of demonstrating the unconstitutionality or unreasonableness of a zoning restriction, at all stages of litigation, rests with the property owner making the challenge. Leslie v. Toledo (1981), 66 Ohio St.2d 488, 489; Brown v. Cleveland, supra, at 95.
In order for a property holder to prevail, it must be demonstrated to the court that the zoning provision is clearly arbitrary and unreasonable and has no substantial relation to the public health, safety, morals, or general welfare. Village of Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 395. The evidence must be sufficient to take the matter beyond the reach of fair debate. Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St.2d 23. When the validity of the zoning ordinance is found to be fairly debatable, the court will not substitute its judgment for that of the legislature or the people. Willott v. Beachwood (1964), 175 Ohio St. 557, 560. The validity of a zoning restriction as applied to particular property is fairly debatable if reasonable minds may differ. Central Motors Corp. v. Pepper Pike (1979), 63 Ohio App.2d 34, 51. The fairly debatable rule must concern itself with basic physical facts pertinent to the issue of the validity of the zoning ordinance and not with mere words or differing opinions. Id.
Upon reviewing the transcript and exhibits in the instant case, the lower court ruled that appellants failed to meet their burden of proving that the zoning of their property was beyond the reach of fair debate.
For example, much of the trial testimony focused on the availability of water to the area. Appellants' experts relied primarily on studies which were not "site specific" in terms of well water availability. There was also testimony that some of these studies were not reliable in terms of how much well production could be anticipated. It was also clear that assumptions had been made by appellants that water service could be contracted for with neighboring municipalities when no such agreements were contemplated or in existence.
There was also much made of the presence of CEI power transmission lines on part of the property. However, no specific evidence was presented as to their exact effect on either the property as presently zoned or as proposed. There was testimony solicited that there were other developments which had apparently been able to utilize residential lots bordering by CEI lines.
Appellants' experts, when pinned down, could not state with certainty that the character of the area was currently changing. When they were questioned about specific current nonresidential uses, it became apparent that almost all of those uses were either preexisting uses or allowable under the present R-3, such as the seasonal farm market.
Therefore, there is nothing in the record to persuade this court to reverse the lower court's decision as being against the manifest weight of evidence.
As a further issue in the first assignment, appellants allege two specific faults with the zoning resolution as it relates to their property, to-wit: that the resolution does not promote or protect the public health, safety, or morals.
In support of their contention, appellants cite Mayfield-Dorsh, supra. Although this case cited does relate to facts similar to those in the present case, there are facts that distinguish the two cases.
In Mayfield-Dorsh, the property owners sought to have their property rezoned from single-family to multi-family development in order to build condominiums. The court in Mayfield-Dorsh, supra, found that the proposal for the development of condominiums was harmonious with the surrounding property since testimony from the Mayor of South Euclid was to the effect that the area surrounding the 3.45 acre tract had not maintained an essentially residential character. That relevant portion of the mayor's testimony was provided and reads as follows:
"Q.Now, you stated that it is not reasonable.
A.It might be unreasonable to have this single-family usage, right, or single-facility lots on Mayfield Road, considering the change and character of Mayfield Road over the years. * * * " Mayfield-Dorsh, supra, at 158, fn. 2 (Emphasis in original.)
In the present case, the record demonstrated that the area surrounding appellants' property has not substantially changed since the original zoning ordinance was adopted. As presently situated, appellants' property is bounded to the north by a residential development, to the west by a residential district which includes a rental company (a nonconforming use) which was in existence prior to the zoning ordinance, to the south is Knowles Industrial Park in a...
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