Mcdonald's Corp. v. Village of Woodmere
| Decision Date | 29 August 1991 |
| Docket Number | 91-LW-1404,59567 |
| Parties | McDONALD'S CORPORATION, ET AL., Plaintiffs-Appellees v. VILLAGE OF WOODMERE, Defendant-Appellant CASE |
| Court | Ohio Court of Appeals |
Civil appeal from Common Pleas Court Case No. 155,339.
Michael T. Gavin, Eli Manos, MANSOUR, GAVIN, GERLACK & MANOS CO LPA, 2150 Illuminating Building, 55 Public Square, Cleveland Ohio 44113-1994; Wayne F. Bender, Real Estate/Legal Department, McDonald's Corporation, McDonald's Plaza, Oak Brook, Illinois 60521, (for Plaintiff-Appellee McDonald's Corporation).
Clarence D. Rogers, 800 Terminal Tower, 50 Public Square, Cleveland, Ohio 44113, (for Plaintiff-Appellee C & B Management, Inc.).
James Alexander, Jr., HARDIMAN, ALEXANDER, BUCHANAN & HOWLAND CO., LPA, 1414 Diamond Building, 1100 Superior Avenue, Cleveland, Ohio 44114-2590, (for Defendant-Appellant).
The Village of Woodmere appeals the Cuyahoga County Court of Common Pleas' order finding that Woodmere's denial of a building permit and use variance sought by McDonald's Corporation, appellee, was unsupported by the evidence, arbitrary, capricious, and unreasonable.
On June 2, 1986, McDonald's acquired land on the southwest corner of Maplecrest Road and Chagrin Boulevard in the Village of Woodmere for $1,025,000.00 with the intention of building and operating its trademark, fast-food restaurant. At such time, the property in question was zoned U-3, the general business classification. Under such category, restaurants are prohibited in the district by Woodmere's zoning ordinance Sec. 1153.01(C) which states:
Restaurant, hotel, drive-in, or other roadside stand serving food, refreshment and other commodities for consumption on or off the premises, tavern, and any other similar use where prepared food is offered for sale on or off the premises, not existing on the passage date of Ordinance 1979-50, is prohibited.
However, Woodmere's zoning ordinance Sec. 1105.03(d) authorizes the Zoning Commission and the Council of the Village of Woodmere to grant use variances when:
. . . such use will not be detrimental to the general welfare, health, or safety of the Municipality or the immediate neighborhood, or injure the appropriate use of neighboring property, and when such use will substantially serve the public convenience and welfare. Such permission shall be confirmed by resolution of Council before becoming effective.
On January 21, 1988, McDonald's submitted an application for a building permit which was referred to Woodmere's Zoning Commission insofar as such a permit could not be issued unless a variance were obtained. The Zoning Commission had the matter before it at meetings of February 10, 1988, April 13, 1988, June 8, 1988, and August 9, 1988. At the April 13, 1988 meeting, McDonald's learned for the first time that the property had been rezoned after its purchase from U-3 to U-4, the general office building classification. Under the U-4 category, retail stores and retail services are permitted in three-story buildings. However, Woodmere's Zoning Ordinance Sec. 1161.01(f), found within the U-4 zoning, provides:
No food shall be prepared or processed on the premises, no repairs or other services rendered unless such operations are clearly incidental to permitted use.
As a result, McDonald's was required to procure an additional variance in order to operate its restaurant under U-4 zoning. The Zoning Commission and subsequently the Woodmere council denied McDonald's request.
Pursuant to R.C. 2506.01, McDonald's appealed Woodmere's ruling to the Court of Common Pleas and also filed a motion to present additional evidence and for leave to file assignments of error and a brief after the presentation of evidence.
Woodmere filed a series of motions to dismiss the appeal, all of which were denied. On November 27, 1989, a hearing was held during which a variety of witnesses testified and evidence was submitted. Testimony revealed that there were eight restaurants in Woodmere on the Chagrin corridor, two of which are located on property adjoining the McDonald's property. There was evidence presented that Woodmere had ignored the prohibition against restaurant, tavern, and hotel use by permitting a Burger King to expand and by granting use variances to an ice cream company and a hotel which included a restaurant. Among the variety of witnesses who testified, William T. Jackson, McDonald's traffic expert, asserted that the effect of a McDonald's restaurant on the traffic on Chagrin Boulevard would be negligible insofar as few additional drivers would be lured to the area who would not otherwise be going to one of the many other eateries already on Chagrin Boulevard. Richard A. Overmyer, the traffic expert retained by Woodmere, testified that Chagrin Boulevard had the capacity to handle traffic generated by the proposed McDonald's restaurant, except for the peak hour of 4:30 p.m. to 5:30 p.m. on weekdays when traffic is so crowded that Chagrin Boulevard is incapable of handling traffic from anywhere.
On March 2, 1990, the trial court found that the decision of the Woodmere council denying McDonald's use variance and building permit was unsupported by the evidence, arbitrary, capricious, and unreasonable. The trial court also found that the relevant zoning ordinances in Woodmere were unconstitutional. Woodmere's timely appeal follows.
Appellant's first assignment of error states:
APPELLANT VILLAGE OF WOODMERE WAS DENIED DUE PROCESS OF LAW IN THE PROCEEDINGS BELOW.
A. MCDONALD'S CORPORATION FAILED AND REFUSED TO DISCLOSE THE BASIS OF ITS APPEAL UNTIL JANUARY 29, 1990 SUBSEQUENT TO THE TRIAL OF THE ACTION.
B. MCDONALD'S CORPORATION FAILED AND REFUSED TO DISCLOSE THE REPORTS OP ITS EXPERT WITNESS UNTIL TWO MONTHS BEFORE TRIAL.
C. MCDONALD'S CORPORATION ATTORNEYS CAUSED THE WITHDRAWAL OF A CRUCIAL VILLAGE EXPERT WITNESS ONLY TWO WEEKS PRIOR TO TRIAL.
D. MCDONALD'S CORPORATION PERMITTED TO ALTER THE SCOPE OF ITS APPEAL ONLY WEEKS PRIOR TO THE TRIAL.
E. THE TRIAL COURT DENIED APPELLANT WOODMERE VILLAGE A REASONABLE REQUEST FOR CONTINUANCE OF TRIAL TO PREPARE ITS DEFENSE.
Woodmere contends initially that it was denied due process of law because McDonald's failed to disclose the basis of its appeal to the court of common pleas until after trial. Woodmere asserts that McDonald's reference to a denial of a use variance in its January 29, 1990 filing of an assignment of error after trial was the first notice to Woodmere of the basis of McDonald's appeal. Such an argument lacks merit.
A review of the record reveals that Woodmere was sufficiently apprised of the issues in the case. On December 7, 1988, McDonald's filed a motion for leave to present additional evidence in which McDonald's pointed out that it was challenging the constitutionality of Woodmere's actions in proscribing the use of the property for a restaurant by denying the use variance and building permit that McDonald's sought. A constitutional challenge to a zoning restriction may be raised for the first time in an administrative appeal pursuant to R.C. 2506, et seq. Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St. 2d 23, 309 N.E. 2d 900. Woodmere was fully aware of the issues in the R.C. 2506, et seq. appeal which addressed the question of whether Woodmere's prohibition against McDonald's proposed use had any reasonable relationship to the exercise of Woodmere's police power. Id.
Woodmere next asserts that it did not receive the reports of McDonald's experts until two months before trial. However, our review of the record reveals that McDonald's complied with a pretrial order of May 12, 1989 by tendering its experts' reports in exchange for the reports of the experts retained by Woodmere. As a result, McDonald's complied fully with the pretrial discovery in accord with Civ. R. 16. Moreover, we note that Woodmere deposed McDonald's experts prior to trial. See Civ. R. 26(B)(4)(b). Therefore, Woodmere's allegation of McDonald's noncompliance with pretrial discovery and Loc. R. 21 lacks merit. See Sixty Trust v. Board of Revision of Cuyahoga County, et al. (Aug. 4, 1988), Cuyahoga App. No. 54169-54174, unreported.
Woodmere next argues that McDonald's caused the withdrawal of a key expert witness for Woodmere two weeks before trial. Woodmere contends that after receiving the expert appraisal report of McDonald's witness Charles Bramen, it contacted Richard C. Racek, a real estate appraiser, in order for him to prepare a report and provide testimony at trial. However, on November 10, 1989, Racek wrote Woodmere that he would not present evidence at trial. The parties agreed that appraisal testimony would be heard on December 28, 1989 and Woodmere had approximately a month to retain an expert. At trial, Woodmere presented no such expert testimony. There is nothing in the record to indicate that McDonald's purposefully contacted Racek to dissuade him from testifying or to interfere with his relationship with Woodmere. Rather, counsel for McDonald's stated that he bumped into Racek at a political fund raiser and mentioned that Racek had discussed the property in question with McDonald's in 1986. Based in our review of the record, we do not believe that McDonald's conduct was improper with respect to its communication with witnesses prior to trial.
Woodmere next asserts that McDonald's altered the scope of its R.C. 2506.04 appeal a few weeks before trial by changing the nature of the appeal from a denial of a building permit to a denial of a use variance. (fn1) While Woodmere does not develop its argument clearly in this section, we find that the scope of McDonald's R.C. 2506.04 was not changed prior to trial. The scope of an appeal under this section does not change whether or not the...
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