2021 Ohio 1206
Ohio Ct. App.2021Background:
- Banker’s Choice bought the Davis Furniture Building (historic) at sheriff’s sale for $125,000 intending restoration or demolition if restoration was infeasible.
- Historic Conservation Board denied a demolition certificate after receiving three purchase offers; Zoning Board affirmed; Banker’s Choice appealed to common pleas court.
- A magistrate found demolition appropriate (and ruled on due process and constitutionality); the trial court initially adopted that decision but was reversed on appeal for failing to apply the statutory three-factor economic-hardship test.
- On remand the trial court applied Cincinnati Mun. Code 1435-09-2(b)’s three factors (deprivation of economically viable use; investment-backed expectations; owner-created hardship) and found Banker’s Choice proved economic hardship; it ordered issuance of a demolition certificate.
- The city appealed again, arguing the trial court’s economic-hardship finding was unsupported by the preponderance of substantial, reliable, and probative evidence; the court of appeals affirmed.
Issues:
| Issue | Plaintiff's Argument (Banker’s Choice) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Standard of review: scope of appellate review after common pleas weighed evidence | Common pleas properly weighed whole record under R.C. 2506.04; appellate review limited to legal questions/abuse of discretion | Appellate court should reverse if trial court substituted its judgment for zoning board or lacked evidentiary support | Court applied proper standard: appellate review limited and will not overturn absent legal error or abuse of discretion |
| (1) Deprivation of all economically viable use | Building is structurally unsafe, rehabilitation costs ($2.5–3.34M) exceed feasible return; experts say project not economically viable | City points to purchase offers and argues sale shows property could be used/sold and thus not deprived of all economic use | Held: evidence (engineers, cost estimates, pro forma) supported finding that no economically viable use existed without demolition |
| (2) Reasonable investment‑backed expectations | Buyer expected to restore if feasible; given restoration infeasibility, expectations frustrate and certificate is necessary | City emphasizes buyer knew preservation rules and accepted risk by purchasing historic property at sheriff’s sale | Held: reasonable expectations were not maintained because restoration was economically infeasible under credible evidence |
| (3) Whether owner created/exacerbated hardship | Banker’s Choice did not create the building’s long-term deterioration; it marketed property and retained brokers/experts | City alleges marketing/offers handling show owner exacerbated hardship or acted improperly | Held: record lacked credible evidence that Banker’s Choice created or exacerbated hardship; trial court’s contrary finding supported |
Key Cases Cited
- Henley v. Youngstown Bd. of Zoning Appeals, 735 N.E.2d 433 (Ohio 2000) (common pleas court weighs whole administrative record under R.C. 2506.04)
- Shelly Materials, Inc. v. City of Streetsboro Planning & Zoning Comm., 145 N.E.3d 246 (Ohio 2019) (appellate review more limited and deferential than common pleas)
- Kisil v. Sandusky, 465 N.E.2d 848 (Ohio 1984) (distinguishing scope of review between courts)
- Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals, 23 N.E.3d 1161 (Ohio 2014) (trial-court opinion detail gaps are not fatal; affirm if supported by substantial, reliable evidence)
- Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (U.S. 1992) (regulatory-takings framework: deprivation of all economically beneficial use)
- Valley Auto Lease v. Auburn Twp. Bd. of Zoning Appeals, 527 N.E.2d 825 (Ohio 1988) (when regulation deprives all economically viable use)
- Lost Tree Village Corp. v. United States, 787 F.3d 1111 (Fed. Cir. 2015) (sale of property is not equivalent to an economically beneficial use for takings analysis)
- Banker’s Choice, LLC v. Zoning Bd. of Appeals of City of Cincinnati, 106 N.E.3d 1271 (1st Dist. 2018) (prior appellate decision in this litigation discussing applicable standard)
- Farmers State Bank v. Sponaugle, 133 N.E.3d 470 (Ohio 2019) (law‑of‑the‑case doctrine scope)
- Giancola v. Azem, 109 N.E.3d 1194 (Ohio 2018) (law‑of‑the‑case applies only to issues previously decided)
- Quern v. Jordan, 440 U.S. 332 (U.S. 1979) (doctrine limiting reconsideration to issues previously resolved)