Joseph L. Nemes v. City of Akron, 83-LW-1081

• Decision Date: 12 January 1983
• Docket Number: 10584,83-LW-1081
• Parties: JOSEPH L. NEMES Plaintiff-Appellant v. CITY OF AKRON Defendant-Appellee C.A.
• Court: United States Court of Appeals (Ohio)

JOSEPH L. NEMES Plaintiff-Appellant v. CITY OF AKRON Defendant-Appellee

No. 10584.

83-LW-1081 (9th)

Court of Appeals of Ohio, Ninth District Summit

January 12, 1983

APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF SUMMIT, OHIO CASE NO. CV 79 5 1188.

PAUL E WEIMER, Attorney at Law, 411 Wolf Ledges Pkwy., Akron, OH 44311 for Plaintiff.

ROBERT D. PRITT, Director of Law, 304 Municipal Bldg., Akron, OH 44308 for Defendant.

DECISION AND JOURNAL ENTRY

PER CURIAM

This cause was heard July 12, 1982, upon the record in the trial court, including the transcript of proceedings, and the briefs. Oral argument was waived by counsel for the parties and the matter was submitted to the court. We have reviewed each assignment of error and make the following disposition:

Plaintiff owns two adjoining parcels of property in Akron one of which fronts on South Main Street and one of which fronts on Dresden Avenue. Until recently both parcels were zoned for commercial use and plaintiff has used the South Main Street parcel as a trailer park and in connection with plaintiff's greenhouse/nursery business. The Dresden parcel was below the surrounding grade level when plaintiff purchased the property in 1949, and as a result was swampy and unstable. Since then plaintiff has gradually radually filed and graded the Dresden parcel so that it now is on grade with the surrounding property.

In January, 1979, the Akron City Council changed the zoning of the 1.286 acre Dresden Avenue parcel from commercial to residential. Through the years plaintiff had used part of this property as access to the South Main Street parcel, part of the property for parking vehicles used in his business and part of the property to grow and store plants used for the nursery. Plaintiff testified that he had planned to construct a building to hold supplies (peat moss, fertilizer, etc.), a sales area for trees and shrubs, and a parking lot for his customers. These uses are not permitted under the new zoning classification, and plaintiff brought this declaratory judgment action to challenge the constitutionality of the ordinance which rezoned his property. The court below determined that the rezoning was not unconstitutional, and plaintiff appeals.

ASSIGNMENT OF ERROR I

"The trial judge erred in finding for defendant-appellee, City of Akron, in that the decision was against the manifest weight of the evidence."

Plaintiff frames the issue for this assignment of error as follows:

"The plaintiff appellant is entitled to a finding in its favor on the ground that the manifest weight of the evidence clearly indicates that the existing zoning of commercial U4, H2, A3 is more appropriate than a residential U1, H1, A2 district."

We disagree with this statement of the issue. Plaintiff filed a complaint seeking to declare the ordinance rezoning his property unconstitutional. Legislative enactments are afforded a strong presumption of validity, and a successful attack on itsconstitutionality requires the satisfaction of a substantial burden. State v. Renalist, Inc. (1978), 56 Ohio St. 2d 276. In the case of zoning ordinances it is insufficient to show that one use is more appropriate than another, as plaintiff suggests. For a zoning ordinance to be unconstitutional it must arbitrarily restrict the owner's use of the land for no permissible purpose or amount to an uncompensated taking of the property. A zoning regulation will amount to such a taking if the only permitted uses are totally unsuitable to the land in question. Fuller v. Joreski (April 9, 1980), Medina App. No. 910, unreported.

In the instant case there is some indication that it would be expensive to install the sanitary sewer necessary for the residential development of plaintiff's property. It does not appear that construction of such a sewer is impossible or that the parcel of property is now unsuited to residential use. On the contrary, it appears that plaintiff's efforts to fill and grade the property have improved the topography to the extent that residential use is feasable. Plaintiff would prefer to use the parcel commercially, but his desire to use the property in this fashion has no bearing on whether the property is totally unsuited to the permitted uses.

Where the constitutionality of an ordinance is debatable, the classification must be upheld. State, ex rel. Thomas v. Ludewig (1962), 116 Ohio App. 329. The trial court did not find that rezoning amounted to an uncompensated taking, and in digging through the record we have unearthed support for this position. C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279.

ASSIGNMENT OF ERROR II

"Although a presumption of validity attaches to zoning ordinances, the trial judge failed to recognize the passage of the ordinance was an abuse of the City of Akron's police power that rendered the rezoning unconstitutional."

The evidence shows that the property in question is on a border between commercial and residential zones. In 1978, the City of Akron adopted a comprehensive Land Use and Development Guide Plan. The parcel at issue was rezoned to stabalize the surrounding residential area and thereby effectuate the comprehensive zoning scheme. The implementation of such a comprehensive...