State ex rel. Gilmour Realty v. Mayfield, 90575.
| Decision Date | 07 January 2009 |
| Docket Number | No. 90575.,90575. |
| Citation | 180 Ohio App.3d 430,905 N.E.2d 1238,2009 Ohio 29 |
| Parties | The STATE of Ohio ex rel. GILMOUR REALTY, INC. v. CITY OF MAYFIELD HEIGHTS et al. |
| Court | Ohio Court of Appeals |
Rudolph J. Geraci, for relator.
The Carr Law Firm, Leonard F. Carr, Mayfield Heights, and L. Bryan Carr, for respondents.
{¶ 1} Following remand from the Supreme Court of Ohio, Gilmour Realty, Inc.'s ("Gilmour's") complaint for a writ of mandamus is once again before this court for consideration. Gilmour seeks an order from this court requiring the city of Mayfield Heights ("Mayfield") and the City of Mayfield Heights Planning Commission ("Commission") to commence appropriation proceedings in the Cuyahoga County Court of Common Pleas, Probate Division, in order to determine the alleged damages that resulted from the passage of a rezoning ordinance. Mayfield and the commission originally filed a joint motion for summary judgment or, in the alternative, a motion to dismiss, which we treated solely as a joint motion to dismiss. We shall now consider the motion for summary judgment jointly filed by Mayfield and the commission as well as the motion for summary judgment filed by Gilmour. For the following reasons, we grant the joint motion for summary judgment and deny Gilmour's motion for summary judgment.
{¶ 2} Gilmour has owned and operated a mortgage-brokerage business and a title agency at 5747 Mayfield Road in Mayfield Heights since 1999. In need of additional office space, Gilmour purchased two surrounding parcels of property: (1) 1461 Eastwood Avenue in Mayfield Heights (permanent parcel no. 861-01-082); and (2) 1455 Eastwood Avenue in Mayfield Heights (permanent parcel no. 861-01-080) ("the two parcels"). The two parcels were originally zoned U-4 Local Retail/Wholesale District, which permitted commercial use and could be converted into expanded office space.
{¶ 3} On March 8, 2004, Mayfield passed Ordinance No. 2004-04, which rezoned the two parcels from U-4 Local Retail/Wholesale District to U-1/Single Family House District and prohibited any commercial development or use. On October 19, 2007, Gilmour filed its complaint for a writ of mandamus.
{¶ 4} Following an extended briefing schedule, this court granted a joint motion to dismiss on behalf of Mayfield and the commission on the basis that a pending complaint for a declaratory judgment, filed in common pleas court, constituted an adequate remedy at law that prevented the granting of a writ of mandamus. State ex rel. Gilmour Realty, Inc. v. Mayfield Hts., 174 Ohio App.3d 113, 2007-Ohio-6480, 881 N.E.2d 277.
{¶ 5} Gilmour appealed our decision to the Supreme Court of Ohio. On July 2, 2008, the Supreme Court reversed our judgment. See State ex rel. Gilmour Realty, Inc. v. Mayfield Hts., 119 Ohio St.3d 11, 2008-Ohio-3181, 891 N.E.2d 320. The cause was remanded to this court for further proceedings with the specific instruction that "the parties shall be given the opportunity to introduce evidence and argument on Gilmour's partial regulatory-takings claim." Id. at ¶ 21.
{¶ 6} On August 22, 2008, this court issued an order that provided (1) the original action for a writ of mandamus was reinstated to the active docket, (2) the parties were granted leave to file supplemental briefs, and (3) disposition of the writ of mandamus was to be based upon all previously filed briefs and motions as well as any supplemental briefs. Pursuant to this order, the parties filed additional supplemental briefs with attached exhibits and documents. It must also be noted that neither party, following this order, has requested oral argument with regard to the pending motions for summary judgment, nor have they requested the appointment of a magistrate to receive and report evidence and provide this court with findings of fact and conclusions of law.
{¶ 7} In the case sub judice, Gilmour argues that the act of rezoning the two parcels from commercial to residential usage resulted in an uncompensated taking. Specifically, Gilmour argues that the act of rezoning the two parcels from commercial to residential usage resulted in the inability to exploit a property interest and market-value loss. Gilmore argues that its loss requires that this court issue a writ of mandamus ordering Mayfield and the commission to commence appropriation proceedings.
{¶ 8} The Fifth Amendment to the United States Constitution, which is often referred to as the "Just Compensation Clause," provides that private property shall not be taken for public use without compensation. Webb's Fabulous Pharmacies, Inc. v. Beckwith (1980), 449 U.S. 155, 101 S.Ct. 446, 66 L.Ed.2d 358. Section 19, Article 1 of the Ohio Constitution also provides that private property shall not be taken for public use, unless just compensation is provided. State ex rel. Trafalgar Corp. v. Miami Cty. Bd. of Commrs., 104 Ohio St.3d 350, 2004-Ohio-6406, 819 N.E.2d 1040.
{¶ 9} Two separate actions on the part of the government constitute a per se taking, which requires compensation under the Fifth Amendment: (1) permanent physical invasion of property, and (2) government regulations that completely divest a property owner of all economically beneficial uses of the property. Loretto v. Teleprompter Manhattan CATV Corp. (1982), 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868. See also Lucas v. South Carolina Coastal Council (1992), 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798. A third basis for compensation involves a claim of partial regulatory taking under the test established by the Supreme Court of the United States in Penn Cent. Transp. Co. v. New York City (1978), 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631.
{¶ 10} The Supreme Court of Ohio, in applying the holding of Penn Cent., established that "Penn Cent. recognizes an ad hoc, factual inquiry that requires the examination of the following three factors to determine whether a regulatory taking occurred in cases in which there is no physical invasion and the regulation deprives the property of less than 100 percent of its economically viable use: (1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation has interfered with distinct investment-backed expectations, and (3) the character of the governmental action." State ex rel. Shelly Materials, Inc. v. Clark Cty. Bd. of Commrs., 115 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d 59, ¶ 19.
{¶ 11} In the instant case, Gilmour alleges that the rezoning of the two properties "from Commercial to Residential denied the Plaintiff the economical viable use of the properties as they planned and interfered with the Relator's investment backed expectations," which mandates that this court issue a writ of mandamus in order to allow for the commencement of appropriation proceedings in the probate court.
{¶ 12} Mandamus is an extraordinary remedy, "to be issued with great caution and discretion and only when the way is quite clear." State ex rel. Kriss v. Richards (1921), 102 Ohio St. 455, 457, 132 N.E. 23. See also State ex rel. Skinner Engine Co. v. Kouri (1940), 136 Ohio St. 343, 16 O.O. 492, 25 N.E.2d 940. Mandamus is the appropriate remedy to compel a public entity to commence an appropriation action when an involuntary taking of private property is alleged. State ex rel. Preschool Dev., Ltd. v. Springboro, 99 Ohio St.3d 347, 2003-Ohio-3999, 792 N.E.2d 721. However, before this court will issue a writ of mandamus requiring Mayfield or the commission to commence an appropriation action in the probate court, Gilmour must demonstrate that (1) Gilmour possesses a clear legal right to compel Mayfield and the commission to commence an appropriation action, (2) Mayfield and the commission possess a clear legal duty to institute the appropriation action, and (3) there exists no other adequate remedy in the ordinary course of the law. State ex rel. Savage v. Caltrider, 100 Ohio St.3d 363, 2003-Ohio-6806, 800 N.E.2d 358. The Supreme Court of Ohio has already determined that Gilmour possesses no other adequate remedy at law. Thus, we must determine whether Gilmour has met the first and second prongs of the aforesaid three-part test.
Motion for Summary Judgment Pursuant to Civ.R.56(C)
{¶ 13} Mayfield and the commission, through their joint motion for summary judgment, argue that they are entitled to summary judgment as a matter of law. Specifically, Mayfield and the commission argue that the rezoning of the two parcels did not effect a taking pursuant to the holding of Penn Cent. and thus they are entitled to summary judgment as a matter of law.
{¶ 14} Summary judgment, pursuant to Civ.R. 56(C), shall be rendered on behalf of the moving party when (1) there exists no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence submitted to the court that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267. Accord Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46.
{¶ 15} In addition, Civ.R. 56(C) delineates the different kinds of evidence that may be considered in a motion for summary judgment. This court may only consider the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact. Finally, this court, in State ex rel. Martinelli v. Corrigan (1991), 71 Ohio App.3d 243, 593 N.E.2d 364, held that:
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State ex rel. Gilmour Realty, Inc. v. Mayfield Hts., 2009-0229.
...912 N.E.2d 110 ... 122 Ohio St.3d 1497-1509 ... 2009-Ohio-4221 ... State ex rel. Gilmour Realty, Inc ... Mayfield Hts ... No. 2009-0229 ... Supreme Court of Ohio ... August 26, 2009 ... Cuyahoga App. No. 90575, 180 Ohio App.3d 430, 2009-Ohio-29. Reported at 122 Ohio St.3d 260, 2009-Ohio-2871, 910 N.E.2d 455 ... On motion for ... ...