STATE EX REL TRAFALGAR CORP. v. Miami Cty. Bd. of Commrs., Case No. 2004-0336.

• Decision Date: 08 December 2004
• Docket Number: Case No. 2004-0336.
• Citation: 819 NE 2d 1040,2004 Ohio 6406,104 Ohio St.3d 350
• Parties: [The State ex rel.] Trafalgar Corporation et al., Appellants, v. Miami County Board of Commissioners, appellee, et al.
• Court: Ohio Supreme Court

2004 Ohio 6406

104 Ohio St.3d 350

819 NE 2d 1040

[The State ex rel.] Trafalgar Corporation et al., Appellants, v. Miami County Board of Commissioners, appellee, et al.

Case No. 2004-0336.

In the Supreme Court of Ohio.

Submitted September 14, 2004.

Decided December 8, 2004.

PER CURIAM.

{¶1} Pamela S. Geisinger and appellants Bruce Geisinger and Mark Geisinger own appellant Trafalgar Corporation, an Ohio corporation that has its principal place of business in Miami County, Ohio. For over 35 years, the Geisinger family or Trafalgar has owned an approximately 50-acre tract of land located in an unincorporated area of Concord Township, Miami County. In 1994, Bruce and Patricia M. Geisinger transferred the property to Trafalgar.

{¶2} In 1957, appellee, Miami County Board of Commissioners, adopted a Zoning Resolution for Miami County establishing zoning requirements for land located in the unincorporated area of the county. The board amended the zoning resolution in 1965. The resolution required the approval of the Miami County Planning Commission for residential building lots with frontage of less than 125 feet on any public highway or street. Conversely, the resolution permitted residential lots with road frontage of not less than 125 feet.

{¶3} In 1969, Bruce Geisinger sought approval of a preliminary plan to develop the property by dividing it into 53 residential building lots. The Miami County Planning Commission approved the plan subject to one road being moved and the approval of the City of Troy Planning Commission. According to Trafalgar, a final permit for development was not received until 1995 because of water and sewer problems near the property.

{¶4} In 1995, 1997, and 1999, the Miami County Board of Commissioners approved Trafalgar's requests to rezone the property from A-2 General Agricultural to R-1AA Single Family Residential. But each time, Concord Township voters rejected the zoning change by way of referendum. In its 1997 resolution approving Trafalgar's request for the zoning change, the board noted that "previous findings acknowledge that the area can be served with water and sewer services; the proposed zoning of R-1AA is consistent with surrounding zoning patterns; the use of the property for single family residential is compatible with surrounding land us[e] patterns; and, neither the transportation network nor other supportive services will be over burdened by this zoning change and possible development." >

{¶5} In June 1999, Trafalgar filed a complaint in the Miami County Court of Common Pleas for a judgment declaring R.C. 303.12 unconstitutional and rezoning the property to R-1AA, as requested by Trafalgar in 1995, 1997, and 1999. R.C. 303.12(H) permits qualified voters residing in the unincorporated area of the township to petition for a referendum on a zoning amendment approved by a board of county commissioners.

{¶6} In September 2001, after the trial court denied Trafalgar's claims, the court of appeals affirmed. Trafalgar Corp. v. Miami Cty. Bd. of Commrs. (Sept. 7, 2001), Miami App. No. 2001 CA 6, 2001 WL 1018620. The court of appeals held that the trial court did not err in determining that (1) the planning commission's 1969 approval of Bruce Geisinger's plan to develop 53 residential building lots on the property was conditional and not a final approval, (2) the electors' use of referendum to deny the requested zoning changes did not violate Trafalgar's right to substantive due process, (3) Trafalgar's takings claim was not cognizable in declaratory judgment, (4) the trial court ruled that declaratory judgment was not an appropriate action to determine the constitutionality of R.C. 303.12(H), (5) the right of referendum is not an unconstitutional delegation of legislative power to township electors, and (6) the 1995, 1997, and 1999 board approvals of Trafalgar's requests for a zoning change constituted legislative actions, which were subject to referendum. We did not accept Trafalgar's appeal from the court of appeals judgment for review. Trafalgar Corp. v. Miami Cty. Bd. of Commrs., 94 Ohio St.3d 1411, 759 N.E.2d 787.

{¶7} In 2000, 2001, 2002, and 2003, the board again approved Trafalgar's zoning change requests. Concord Township electors rejected each zoning amendment in separate referenda.

{¶8} On May 10, 2002, appellants, Trafalgar and Bruce and Mark Geisinger, filed a complaint in the Court of Appeals for Miami County for a writ of mandamus to compel the Miami County Board of Commissioners and Concord Township to approve a zoning change for the property from A-2 General Agricultural to R-1AA Single Family Residential. Trafalgar and the Geisingers also sought a writ of mandamus to compel the board and Concord Township to commence appropriation proceedings to determine the amount by which the value of appellants' property had been diminished by the repeated rejection of the zoning amendments by referenda.

{¶9} After the court of appeals dismissed Concord Township from the case, the remaining parties moved for summary judgment. Trafalgar and the Geisingers attached the affidavits of Bruce and Mark Geisinger to their motion. In Bruce Geisinger's affidavit, he made several conclusory statements, including that the previously approved residential land use was "entirely consistent with" the county's comprehensive development plan and approved land uses in the immediate vicinity of the proposed development.

{¶10} Mark Geisinger made comparable conclusory statements in his affidavit, e.g., "deprivation of use for residential purposes of the subject property constitutes a substantial and unreasonable interference with the right to use and develop the subject property," "refusal to allow the subject land use is in no way related to a substantial public purpose, is unduly harsh on the landowner and denies the landowner all economically viable use of the land," and "the use of the referendum power to preempt land use approval for residential purposes has been undertaken by petitioners and electors in unincorporated Concord Township for the express and specific malicious purpose of stifling the subject development for residential purposes, in a fashion which is not rationally related to any plan of development or use in the vicinity."

{¶11} Mark Geisinger further stated in his affidavit that "the only use of the subject property available to the landowner is farming, which produces a per acre payment by the tenant farmer to the landowner which totals a sum equaling no more than the cost of real estate taxes on the subject property."

{¶12} The board attached three affidavits to its motion. Kenneth A. LeBlanc, Director of Regional and Community Planning for the Miami Valley Regional Planning Commission, oversaw for the creation of the comprehensive development plan for Miami County. Based on the plan, the commission found that the area including Trafalgar's property was rated as prime farm land, which is the most highly rated type of farm land in Ohio.

{¶13} LeBlanc noted that Trafalgar's property is surrounded by both agricultural and residential uses and was thus equally suitable for both uses. Residential development would increase traffic and pollution and impose additional burdens on utilities and government services. Based on these specific facts, LeBlanc concluded that the retention of the current A-2 General Agricultural zoning classification on Trafalgar's property was consistent with Miami County's comprehensive plan and was reasonable and legitimately related to "the interests of preservation of rural areas in the county and the limitation of over-development of rural areas in Miami County."

{¶14} In two other affidavits attached to the board's summary judgment motion, Miami County residents residing on farms neighboring Trafalgar's property stated that they had been involved in the referendum efforts to defeat appellants' attempts to rezone the property. Their specified reasons for opposing rezoning were (1) "[p]reservation of farmland from the encroachment of residential and urban growth from the City of Troy," (2) [c]oncerns regarding "increased traffic, noise, and pollution necessarily accompanying increased residential development," (3) "[c]oncerns about increased burden on the local water supply (ground water), including concerns about overall water consumption and water pollution," (4) "[c]oncerns about the increased burden on local governmental services, including emergency services and schools," and (5) "[p]reservation of the rural aesthetic * * * that is inconsistent with increased residential housing." They also stated that appellants were growing corn on the property, and that appellants could divide their property into separate 10-acre lots for resale without any zoning change.

{¶15} On January 16, 2004, the court of appeals denied appellants' motion for summary judgment, granted the board's motion for summary judgment, and denied the writ of mandamus. The court of appeals determined that res judicata barred appellants' claim for a writ of mandamus to compel the board to approve the requested zoning change.

{¶16} The court of appeals further held that appellants' claim for a writ of mandamus to compel the board to institute an appropriation action lacked merit. Appellants had "failed to produce competent evidence to establish that the current zoning has deprived [them] of all economically viable uses of the land."

{¶17} On March 11, 2004, we referred this case to mediation. Trafalgar Corp. v. Miami Cty. Bd. of Commrs., 101 Ohio St.3d 1476, 804 N.E.2d 974. On — August 3, 2004, this case was returned to the regular docket. Trafalgar Corp. v. Miami Cty. Bd. of Commrs., 103 Ohio St.3d 1402, 812 N.E.2d 1286.

{¶18} This cause is now before us for a consideration of the merits. Standard of Review

{¶19} Appellants assert that the court of appeals erred in granting the board's summary judgment motion and denying their claims for writs of mandamus. Under...