Karches v. City of Cincinnati

• Decision Date: 20 July 1988
• Docket Number: No. 87-830,87-830
• Citation: 526 N.E.2d 1350,38 Ohio St.3d 12
• Parties: KARCHES et al., Appellants, v. CITY OF CINCINNATI, Appellee.
• Court: Ohio Supreme Court

Page 12

38 Ohio St.3d 12

526 N.E.2d 1350

KARCHES et al., Appellants, v. CITY OF CINCINNATI, Appellee.

No. 87-830.

Supreme Court of Ohio.

Submitted Feb. 16, 1988.

Decided July 20, 1988.

Syllabus by the Court

1. The constitutionality of a zoning ordinance may be attacked in two ways. An appeal from an administrative zoning decision can be taken pursuant to R.C. Chapter 2506. In addition, or in

the alternative, a declaratory judgment action pursuant to R.C. Chapter 2721 can be pursued. (Driscoll v. Austintown Associates [1975], 42 Ohio St.2d 263, 71 O.O.2d 247, 328 N.E.2d 395, approved, followed and explained.)

2. A prerequisite to a determination that an actual controversy exists in a declaratory judgment action is a final decision concerning the application of the zoning regulation to the specific property in question.

The case before us presents questions regarding the constitutionality of a zoning ordinance as applied to appellants' properties.

The Properties

Appellants William and Margarete Karches (hereinafter "Karches") own approximately fifteen acres located in the eastern section of the city of Cincinnati, in an area known as the "California area." The property borders the Ohio River, has approximately seven hundred twenty feet of river frontage and is in the floodplain. The Coney Island Amusement Park (hereinafter "Old Coney") abuts the property.

Appellants Richard L. and Freda Flerlage (hereinafter "Flerlage") own approximately twenty-seven acres located in the California area. The property borders the Ohio River, is in the floodplain and has approximately twelve hundred feet of river frontage. Both the Flerlage and Karches properties have flooded in the past. The map found in the Appendix shows the two properties and the surrounding area.

In 1957, Karches leased their property from the then owner. The property was zoned Business "B" and allowed commercial use. The lease term was for the life of the owner and contained an option allowing Karches to purchase the property upon the owner's death. Karches made significant improvements while the property was commercially zoned. Taft Broadcasting Company (hereinafter "Taft"), owner of Old Coney, purchased this property subject to the Karches option. On September 7, 1965, Karches exercised the option to purchase.

Flerlage purchased their property in 1958 at which time it was zoned for commercial use (Business "B").

Zoning History

In 1963, the city planning commission approved a city-wide zoning proposal which changed the classification of the Karches and Flerlage properties from Business "B" (industrial) to RF-1 Riverfront. Neither Karches nor Flerlage received written notice of the change, of which they did not learn until 1966 and 1968, respectively.

Notification of the city-wide zoning proposal and its subsequent adoption was given via several newspaper articles published in 1962 and 1963. These articles were accompanied by maps of the affected areas. Together, the publications indicated that the whole of the California area, including Old Coney, would be reclassified to the more restrictive RF-1 category. Old Coney, however, was designated as RF-2, which was less restrictive and permitted commercial use. Old Coney retained its RF-2 designation from 1963 until September 25, 1979, when Taft voluntarily relinquished that zoning, apparently in exchange for a change by the city in zoning use definitions which allowed Old Coney its amusement park use in the RF-1 classification.

Upon learning (in 1966) of the 1963 zoning change, Karches contacted an attorney and discovered that the statute of limitations had run on an appeal from the rezoning.

In 1969, Karches explored the possibility of having the property rezoned from RF-1 to RF-2 because the Fenton Rigging Company wanted to lease it for use as a river terminal. The negotiations for the lease were terminated, however, and no further action was taken on the rezoning.

In 1977, Karches petitioned city council for a change in zoning to RF-2 to allow operation of an aggregate storage terminal. Public hearings were held. The city denied the change.

After unsuccessfully attempting to use their land for a basin marina in the early 1970s, ¹ Flerlage discussed zoning changes with the city numerous times over the next several years in an attempt to make use of their land. Flerlage also relied upon the 1977 Karches petition for a zoning change.

In the 1970s, the city conducted a study of the riverfront area, including the California area, which culminated in the California Land Development Use Plan in 1978. In 1981, the Riverfront Advisory Council (hereinafter "RAC") conducted yet another study. This one, as it applied to the California area, was modeled after the 1978 plan. The RAC Study was undertaken to encourage land uses which would promote economic development by increasing industrial use of land and enhance the livability of the city by increasing recreational use.

On November 12, 1980, appellants filed suit against the city in the court of common pleas alleging that the RF-1 zoning ordinance was unconstitutional as applied to their property and was a taking of their property requiring just compensation. Appellants also continued their conversations with city personnel concerning rezoning until Flerlage were told by the city manager in 1983 that the city would take no action until the litigation was resolved.

Appellants dismissed the 1980 lawsuit without prejudice when the city assured them that their problems would be settled by revisions to the RF-1 ordinance in 1983 based upon the recommendations of the RAC Study.

The Present Case

Appellants were not helped by the 1983 revisions and filed a second suit against the city ² which is the subject of the instant appeal.

Appellants alleged in Count I of their complaint that the RF-1 zoning precluded them from developing their properties in an economical manner; that the highest and best use of the properties was commercial/industrial; that the previous zoning allowed commercial/industrial use; and that as a result of the restrictive zoning, the properties had no market value other than one for speculative purposes. They further alleged that the RF-1 zoning, as applied to their specific properties, had no reasonable relation to the public health, safety and welfare; was arbitrary, discriminatory and unreasonable; and, therefore, deprived them of their properties without due process of law in contravention of the Fifth and Fourteenth Amendments to the Constitution of the United States and Section 16, Article I of the Ohio Constitution. Plaintiffs sought declaratory relief pursuant to R.C. Chapter 2721 and permanent injunctive and other relief.

In Count II, appellants alleged a cause of action under Section 1983, Title 42, U.S.Code, in that the zoning, as applied to their properties, so devalued them as to constitute a taking without due process or just compensation, for which appellants requested damages.

Following a bench trial, the court found that the existing RF-1 zoning, as applied to appellants' properties, was unreasonable, arbitrary and confiscatory; had no substantial relationship to the public health, safety or general welfare; substantially interfered with appellants' right to use their properties in an economically feasible manner; and, therefore, was unconstitutional. The court ordered the city to rezone the properties within sixty days. The court order further provided that the properties would be rezoned to the next less restrictive use by operation of Cincinnati Municipal Code Section 102.3, in the event that the city failed to rezone the properties. The court did not award damages to appellants for an unconstitutional taking. The city took an appeal from the trial court's order but neither Karches nor Flerlage took an appeal from the denial of their claims for damages.

The court of appeals reversed the order of the trial court on the ground that the issue of constitutionality was not ripe for judicial determination.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Waite, Schneider, Bayless & Chesley Co., L.P.A., Stanley M. Chesley and Phillip B. Allen, Cincinnati, for appellants.

Richard A. Castellini, City Sol., Ely M.T. Ryder and Jerry F. Luttenegger, Cincinnati, for appellee.

HERBERT R. BROWN, Justice.

The appellants have challenged the constitutionality of the zoning of their properties by the city of Cincinnati. We must decide, first, whether the challenge is ripe for determination. If the answer is in the affirmative, we may consider the merits of the constitutional attack.

I

The court of appeals held that the issue of the constitutionality of the RF-1 zoning as applied to the properties of appellants was not ripe for judicial review " * * * because the City had not reached a final decision regarding the application of the zoning regulations to the two tracts." The court relied upon the two-step process of determining ripeness set forth in Williamson Cty. Regional Planning Comm. v. Hamilton Bank of Johnson City (1985), 473 U.S. 172, 193, 105 S.Ct. 3108, 3120, 87 L.Ed.2d 126.

The first step is a requirement of finality. That is met when " * * * the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury." The second step requires an injured party to exhaust any available administrative remedies prior to instituting a suit for judicial relief. The Williamson Cty. test for ripeness was approved in MacDonald, Sommer & Frates v. County of Yolo (1986), 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285. We accept the holdings in Williamson Cty. and County of Yolo, but disagree with the determination by the court of appeals that no definitive position had been taken by Cincinnati.

A

The court of appeals ruled that the city had not reached a final definitive position because appellants did not, on the basis of a specific...