2013 Ohio 2279
Ohio Ct. App.2013Background
- Adjacent parcels B, C, D form a PD-2 zoned shopping center with parcel B owned by Fettro; parcels C and D owned by Rombach Center and contain a pharmacy and other stores.
- A 1985 development plan and a restrictive covenant govern land use, including prohibitions on certain uses on parcels B–D.
- The agreement requires development as a retail shopping center with a supermarket on B and a retail drug store on C, plus other retail shops, and lists specific prohibited uses.
- Plaintiffs sought a declaratory judgment that parcel B could host a church without violating the agreement or Wilmington’s zoning ordinance.
- Trial court granted summary judgment for plaintiffs, concluding church use on parcel B was not prohibited by the agreement or zoning.
- Appellants appeal raising three assignments of error: covenant interpretation, zoning application, and constitutional avoidance concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court properly construe the restrictive covenant? | Fettro argues covenant as a whole prohibits church use. | Rombach contends covenant strictly limits uses and bans churches. | No error; covenant does not expressly prohibit a church. |
| Did the trial court properly apply Wilmington PD-2 zoning to allow a church on parcel B? | Plaintiff argues zoning permits church as a contingent use under PD-2. | Defendant contends church use conflicts with development plan. | Church not prohibited by zoning; permitted under PD-2 and development plan. |
| Was there improper judicial notice of zoning facts? | Judicial notice used facts without due notice. | Noted, but parties failed to timely object. | Appellants waived challenge to judicially noticed facts. |
| Did the court violate constitutional avoidance by sua sponte raising constitutional questions? | Court should decide actual controversy without constitutional speculation. | Court did not rule on constitutionality; concern stated. | No constitutional issue decided; case affirming judgment. |
Key Cases Cited
- Simmons v. Yingling, 2011-Ohio-4041 (12th Dist. 2011) (de novo review standard for summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (Dresher: burden on movant to show no genuine issue of material fact)
- Driscoll v. Austintown Assoc., 42 Ohio St.2d 263 (1975) (restrictive covenants interpreted like contracts; strict against restrictions)
- Dillingham v. Do, 12th Dist. Nos. CA2002-01-004, CA2002-01-017, 2002-Ohio-3349 (2002) (express prohibition required for enforceability of land-use restrictions)
- Loblaw, Inc. v. Warren Plaza, Inc., 163 Ohio St. 581 (1955) (covenants interpreted to avoid increasing restrictions; implied restrictions not favored)
- Cumberland Trail Homeowners Assn., Inc. v. Bush, 2011-Ohio-6041 (5th Dist. 2011) (indefinite language resolved against broader restriction; favor free use of land)
- Connolly Constr. Co. v. Yoder, 2005-Ohio-4624 (3d Dist. 2005) (general rule: building schemes enforceable if not contrary to public policy)
- Houk v. Ross, 1973-Ohio St.2d 77 () (interpretation of covenants against restriction)