Martin R. Walter v. Stephen Greiner Zoning Inspector of Hocking Township

• Decision Date: 24 July 1987
• Docket Number: 10-CA-87,87-LW-2695,15-CA-87
• Parties: Martin R. WALTER, et al., Plaintiffs-Appellees and Cross-Appellants, v. Stephen GREINER, et al., Zoning Inspector of Hocking Township, Defendants-Appellants and Cross-Appellees.
• Court: Ohio Court of Appeals

Martin R. WALTER, et al., Plaintiffs-Appellees and Cross-Appellants, v. Stephen GREINER, et al., Zoning Inspector of Hocking Township, Defendants-Appellants and Cross-Appellees.

Nos. 10-CA-87, 15-CA-87.

87-LW-2695 (5th)

Court of Appeals of Ohio, Fifth District Fairfield.

July 24, 1987

Civil Appeal from the Court of Common Pleas Case No. 57778.

T MICHAEL CHRISTIAN, MILLER, BARNES & CHRISTIAN, Lancaster, for plaintiffs-appellees and cross-appellants.

Kathy S. Mowry, Assistant Prosecutor, Lancaster, for defendants-appellants and cross-appellees.

OPINION

Before PUTMAN, P.J., and HOFFMAN and WISE, JJ.

WISE Judge.

This is an appeal from a judgment of the Court of Common Pleas of Fairfield County, Ohio, entered in favor of plaintiffs-appellees Martin R. Walter, et al. (appellees) and against defendants-appellants Stephen Greiner, et al., Zoning Inspector of Hocking Township (appellants). The judgment is the result of a declaratory judgment action brought by appellees following appellants' denial of appellees' application to re-zone a 5.143 acre parcel of land owned by appellees. The application sought an amendment to the Hocking Township Zoning Code (zoning code) which would have changed the use classification of appellees' parcel from residential and agricultural use to commercial use. Appellees wished to erect a radio tower, antenna and transmitter building thereon. Appellees sought a declaration that the zoning code was unconstitutional as a whole, that it was unconstitutional as applied to the appellees' property and that the trustees' refusal to amend the zoning code was arbitrary, capricious and unreasonable.

The amended Judgment entry of March 27, 1987, ordered:

(A) The Hocking Township, Fairfield County, Ohio, Zoning Code is declared constitutional under the United States Constitution and the Constitution of the State of Ohio.

(B) The Hocking Township, Fairfield County, Ohio, zoning code is declared unconstitutional as applied to the premises attached hereto as Exhibit "A' insofar as the provisions of said code would prevent the use of said premises as a site for a radio tower, antenna and transmitter station.

(C) It is declared that Plaintiffs, their successors or assigns, are allowed to erect, maintain and use the premises attached hereto as Exhibit "A' for the purpose of erecting, maintaining and using said premises as a site for a radio tower, antenna and transmitter station.

(D) That the Township of Hocking, Fairfield County, Ohio through its proper officers, issue any and all permits, orders or other writings necessary to allow Plaintiffs, their successors and assigns, to erect and maintain on the premises attached hereto as Exhibit "A' a radio tower, antenna and transmitter station and to use said improvements when completed.

The appellants timely appealed, arguing the following four assignments of error:

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANTS' MOTION FOR DIRECTED VERDICT.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED IN NOT APPLYING THE APPROPRIATE TEST FOR DETERMINING THE CONSTITUTIONALITY OF THE HOCKING TOWNSHIP ZONING CODE AS APPLIED TO THE PROPERTY OF THE APPELLEES.

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED IN FINDING THAT THE HOCKING TOWNSHIP ZONING CODE WAS UNCONSTITUTIONAL AS APPLIED TO THE PLAINTIFF'S [SIC] PROPERTY IN THAT SAID FINDING WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ERRED IN ORDERING THE BOARD OF TOWNSHIP TRUSTEES TO ISSUE ANY ORDER OR WRITINGS NECESSARY TO ALLOW THE APPELLEES TO ERECT AND MAINTAIN A RADIO TOWER, ANTENNA AND TRANSMITTER STATION ON THEIR PREMISES.

Appellees cross-appealed and argued the following assignment of error:

STATEMENT OF ASSIGNMENT OF ERROR

PLAINTIFFS-CROSS APPELLANTS, FOR THEIR ASSIGNMENT OF ERROR, STATE THAT THE AMENDED JUDGMENT ENTRY ENTERED BY THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO, IN THIS CASE IS ERRONEOUS IN THE FOLLOWING RESPECT:

(1) THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE PLAINTIFFS-CROSS APPELLANTS IN DECLARING THE HOCKING TOWNSHIP, FAIRFIELD COUNTY, OHIO, ZONING CODE IS CONSTITUTIONAL AS WRITTEN WHERE (A) THE EVIDENCE ESTABLISHED THAT THE CODE WAS UNREASONABLE, ARBITRARY AND CONFISCATORY AND NOT BASED ON THE HEALTH, SAFETY, MORALS OR WELFARE OF THE CITIZENS OF HOCKING TOWNSHIP, FAIRFIELD COUNTY, OHIO; (B) THE EVIDENCE DISCLOSED THAT THE ZONING CODE OF HOCKING TOWNSHIP, FAIRFIELD COUNTY, OHIO, WAS NOT ADOPTED PURSUANT TO A COMPREHENSIVE PLAN FOR PROMOTING THE PUBLIC HEALTH, SAFETY AND MORALS OF THE CITIZENS OF HOCKING TOWNSHIP, FAIRFIELD COUNTY, OHIO.

We overrule all assignments of error and affirm the judgment of the trial court. Our reasons cannot be better expressed than those cogently put forth in the trial court's memorandum-opinion of February 20, 1987, and we therefore reproduce same and attach a copy hereto incorporating it into and as our own.

The evidence shows that the property which forms the focal point of this case is a tract of 5.143 acres of rocky, hilly land which is zoned for agricultural and residential use; that "[T]he location, approach and character of the Walters' property are such that it can not effectively be used either for residential or agricultural purposes'; that "the only practical use of [appellees'] property is the erection and use of the proposed installation'; and, further such use would prevent "no harm to the public health, safety or morals.' Based on the overwhelming evidence, we agree with the trial court, and so hold, that the zoning ordinance was unconstitutionally applied to appellees' property and amounts to confiscation. East Fairfield Coal Co. v. Booth (1957), 166 Ohio St. 379.

I.

Appellants' first assignment of error is overruled for two reasons^one procedurally, and the other on the merits. Procedurally, appellants' motion for directed verdict was made at the close of appellees' case in chief; appellants did not rest its case at the close of appellees' case in chief nor did appellants renew their motion for a directed verdict at the conclusion of all the evidence. Therefore, the motion for directed verdict was waived. Helmick v. Republic-Franklin Ins. Co. (6/29/87), Stark App. No. CA-6968, unreported; Sylvania Saving Bank Co. v. Sunburst Car Care Center, Inc. (1983), 12 Ohio App.3d 97; Neiswender v. Edinger (1978), 59 Ohio App.2d 25; McKellips v. Industrial Comm. (1945), 145 Ohio St. 79.

Coming now to the merits, the record demonstrates that substantial credible evidence was introduced by appellees so that the trial court would have erred had the motion been granted at the time it was made.

II

Appellants in this assignment of error argued that the trial court did not apply the appropriate test for determining the constitutionality of the zoning code as applied to the appellees' property. Appellants set forth the test to be applied as that proposed by the Ohio Supreme Court in C. Miller Chevrolet v. Willoughby Hills (1974), 38 Ohio St.2d 298:

In each case, there must be a balancing of interests between the benefits that would flow to the owner of the property if his proposed use were allowed and the benefits to the public health, safety, welfare and morals that are derived from the existing zoning. Curtiss v. Cleveland (1959), 170 Ohio St. 127.

Id. at 303.

We agree that that is the test and we further hold that the trial court in his memorandum-opinion attached hereto, demonstrated that he expressly applied such test in finding that the zoning code had been unconstitutionally applied to appellants' property.

Appellants' second assignment of error is overruled.

III

We overrule the third assignment of error. The record reveals that the trial court's finding was not against the manifest weight of the evidence. There is some competent, credible evidence supporting the trial court's finding. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279.

IV

We overrule appellants' fourth assignment of error. We agree with appellees' analysis of Union Oil Co. v Worthington (1980), 62 Ohio St.2d at 263; and Mayfield-Dorsh, Inc. v. City of South Euclid (1981), 68 Ohio St.2d 156. These two cases are inapposite to the facts of the case at bar. In Union Oil at 266, the Supreme Court, citing the Court of Appeals for Franklin County, stated:

"It is entirely probable that any given property could be zoned in any one of several classifications and that any one of the several classifications would survive a constitutional attack based upon the ground that the classification was unreasonable, arbitrary and confiscatory and not based on health, safety, moral or welfare considerations * * *. The choice between various reasonable alternatives (emphasis added) is best left to the legislative body, rather than being usurped by the judiciary.'

We agree with the trial court that in the case at bar, the zoning code did not provide for a choice between various reasonable alternatives to be left to the legislative body. The evidence produced in the case at bar showed that the proposed use as a radio tower was the only use of the land that would have any economic utility.

We turn our attention now to the sole assignment of error proposed by the cross-appeal, namely that the zoning ordinance is unconstitutional as written.

I

We decline to rule on the merits of this assignment of error overruling the same on the authority of State, ex rel. Lieux v. Village of West Lake (1951), 154 Ohio St. 412, which states in syllabus 1:

Constitutional questions will not be decided until the necessity for their decision arises.

The merits of this case having been decided by the trial court on the basis that the zoning code was unconstitutionally applied...