James D. Mckenzie v. Robert C. Dorn

• Decision Date: 24 October 1988
• Docket Number: CA88-04-009,88-LW-3676
• Parties: James D. McKENZIE, et al., Plaintiffs-Appellants, v. Robert C. DORN, et al., Defendants-Appellees.
• Court: United States Court of Appeals (Ohio)

James D. McKENZIE, et al., Plaintiffs-Appellants,
v.
Robert C. DORN, et al., Defendants-Appellees.

No. CA88-04-009.

88-LW-3676 (12th)

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

October 24, 1988

Kemp, Schaeffer & Rose Co., L.P.A., Michael N. Schaeffer, Columbus, for plaintiffs-appellants.

R. David Picken, Prosecuting Attorney, and Stephen J. Pronai, Assistant Prosecuting Attorney, London, for defendants-appellees.

MEMORANDUM DECISION AND JUDGMENT ENTRY

PER CURIAM.

This cause came on to be heard upon an appeal, transcript of the docket, journal entries and original papers from the Madison County Court of Common Pleas, transcript of proceedings, and the briefs of counsel, oral argument having been waived.

Now, therefore, the assignments of error having been fully considered are passed upon in conformity with App.R. 12(A) as follows:

This is an appeal from a declaratory judgment action challenging the constitutionality of the one hundred foot set-back requirement set forth in Article IV, Section 5 of the Amended Madison County Zoning Resolution.®1¯

Plaintiffs-appellants, James D. McKenzie and Phyllis McKenzie, own a parcel of real estate located along State Route 142 near the village of West Jefferson. The lot measures five hundred twenty feet long by ninety-three feet wide, and is bounded on the south by Conrail railroad tracks and on the north by the right-of-way of State Route 142. Appellants purchased the lot in January 1968. At that time, a house was situated on the northern edge of the lot with no set-back from the state road right-of-way. This zero set-back was allowed as a non-conforming use because the house was constructed prior to the enactment of the zoning resolution in 1963.

In April 1982, the house was destroyed by fire. Thereafter, appellants caused the lot to be rezoned from an "A-1" classification (agricultural) to a "B-1" classification (local business) in order to build a bait store and carryout. Appellants obtained an eighty-two foot variance from the set-back requirement and commenced construction in June 1983. However, after an on-site inspection, defendant-appellee, Robert Dorn, the Madison County Zoning Inspector, ordered appellants to halt construction because footers for the new building had been placed next to the highway right-of-way instead of eighteen feet from the right-of-way as required by the variance.

After maintaining a quiet title action to determine the boundaries of the right-of-way, appellants applied for a one hundred foot variance and argued that they should be allowed to build the bait store and carryout on the former house site without any set-back. The Madison County Board of Zoning Appeals denied the request for a variance on November 5, 1984. Appellants filed an appeal to the Madison County Court of Common Pleas pursuant to R.C. Chapter 2506, but the court found that the decision of the board was supported by substantial, reliable and probative evidence. Appellants' motion for a new trial was denied and the judgment was affirmed by this court in In re McKenzie (Feb. 17, 1987), Madison App. No. CA86-08-018, unreported.

Appellants filed the instant declaratory judgment action on March 24, 1986 and claimed that application of the one hundred foot set-back requirement to their property constituted a taking without just compensation or due process. The trial court rejected appellants' claims and found the set-back requirement to be constitutional. Appellants then perfected the instant appeal and assigned error as follows:

ASSIGNMENT OF ERROR NO. 1:

"THE TRIAL COURT ERRED IN FINDING THE DECISION BY THE MADISON COUNTY BOARD OF ZONING APPEALS NOT TO GRANT A VARIANCE WAS NOT UNREASONABLE, ARBITRARY, OR CONFISCATORY."

ASSIGNMENT OF ERROR NO. 2:

"THE TRIAL COURT ERRED IN FINDING THAT THE SETBACK REQUIREMENT OF ARTICLE IV, SECTION 5 OF THE ZONING RESOLUTION BORE A REASONABLE AND SUBSTANTIAL RELATIONSHIP TO PUBLIC HEALTH AND SAFETY, AS THE SETBACK REQUIREMENT AS APPLIED TO THESE SPECIFIC APPELLANTS IS UNCONSTITUTIONAL."

ASSIGNMENT OF ERROR NO. 3:

"THE TRIAL COURT ERRED IN FINDING THAT THE ISSUE OF "PRACTICAL DIFFICULTIES' IN FAILING TO GRANT THE VARIANCE INCLUSIVELY WAS RES JUDICATA."

ASSIGNMENT OF ERROR NO. 4:

"THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANTS COULD HAVE CONSTRUCTED THE CARRY-OUT WHOLLY ON APPELLANTS' LAND WITH AN 18 FOOT SET BACK, AND CONSEQUENTLY COULD HAVE BUILT THE DRIVE-THRU UNDER THE AUTHORITY OF THE VARIANCE THAT THEY OBTAINED."

ASSIGNMENT OF ERROR NO. 5:

"THE COURT COMMITTED PREJUDICIAL ERROR CONSIDERING MATTERS NOT IN EVIDENCE IN RENDERING ITS DECISION."

Appellants' first assignment of error focuses on the decision of the Madison County Board of Zoning Appeals to deny appellants a one hundred foot variance. We find this assignment to be misplaced. A declaratory judgment action attacking the constitutionality of a zoning restriction does not call into issue the denial of a variance. Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 16; Driscoll v. Austintown (1975), 42 Ohio St.2d 263, 271. The action is independent from the...