CENTRAL MOTORS CORPORATION, APPELLEE v. CITY OF PEPPER PIKE ET AL., APPELLANTS.
No. 94-375
SUPREME COURT OF OHIO
September 6, 1995
73 Ohio St.3d 581 | 1995-Ohio-289
Submitted May 23, 1995
[Cite as Cent. Motors Corp. v. Pepper Pike, 1995-Ohio-289.]
Zoning—Pepper Pike zoning ordinance No. 1981-21 permitting townhouse units at a maximum density of 2.5 units per acre constitutional.
APPEAL from the Court of Appeals for Cuyahoga County, No. 64422.
{¶ 1} The twenty-one-year-old case before us concerns the constitutionality of a zoning ordinance as applied to appellee‘s property.
The Property
{¶ 2} Central Motors Corporation (“CMC“), appellee, is an Ohio corporation owned by members of the Porter family. CMC owns approximately one hundred fourteen undeveloped acres located in the southwest corner of the city of Pepper Pike (“Pepper Pike“), appellant.
{¶ 3} In 1959, CMC purchased approximately two hundred acres of land within the cities of Beachwood and Pepper Pike for approximately $2,500 per acre. In 1962, the state of Ohio acquired 33.68 acres of the parcel by eminent domain for the construction of I-271. Ohio paid CMC $212,987 for the acquisition. The six-lane highway bisected CMC‘s property leaving approximately one hundred
{¶ 4} Rectangularly shaped, CMC‘s property is bordered on the east by Brainard Road, a two-lane residential street in Pepper Pike. Across from the property on the east side of Brainard Road are eighteen single family homes on one acre or greater lots. On the property‘s west border is I-271 and high voltage transmission lines and poles associated with the electrical substation. To the property‘s north is a narrow strip of undeveloped land abutting South Woodland Road. Across South Woodland Road to the north is a new subdivision developed for single-family residential homes on one-acre lots.
{¶ 5} On the south, the property abuts Woodmere Village and on that border starting from the west is the I-271/Chagrin Boulevard interchange, a bank office building, the Village Square Shopping Center and other commercial uses. The parcel has no frontage on Chagrin Boulevard.
Zoning History
{¶ 6} In 1959, when CMC purchased it, the property was zoned for single-family residential dwellings with a one-acre minimum lot requirement.
{¶ 7} In the early 1970‘s, CMC proposed a planned unit development which included high-rise office buildings, mid- and high-rise condominium/apartment buildings and clustered townhouses. Pepper Pike refused to rezone. CMC then amended its planned-unit-development proposal and requested that the property be zoned for three different uses. CMC wanted its property rezoned to allow a campus office park consisting of seven buildings on one third of the parcel at the southwestern edge of the property. On another third of the parcel, north of the proposed office park and abutting the interstate, CMC proposed zoning to allow thirteen five-story condominium buildings consisting of three hundred ninety condominium units total, or thirty units per building. The remaining area was to be restricted to development of one hundred twenty townhouse units, arranged in clusters.
Case History
{¶ 9} In 1974, when Pepper Pike refused to rezone CMC‘s property, CMC sued for a declaration that Pepper Pike‘s single family residential zoning of CMC‘s property was unconstitutional. From 1974 to the present, the case has been back and forth between the trial court and the Cuyahoga County Court of Appeals on numerous occasions.
{¶ 10} The case was originally tried in 1976, prior to Pepper Pike‘s rezoning CMC‘s property to townhouse use. After CMC presented its evidence and rested, Pepper Pike moved for dismissal under
{¶ 11} The present appeal concerns the constitutionality of zoning ordinance No. 1981-21 which permitted townhouse units at a maximum density of
{¶ 12} The cause is before this court pursuant to the allowance of a discretionary appeal.
Thompson, Hine & Flory, David L. Parham and Karen E. Rubin, for appellee.
Walter & Haverfield, Christopher L. Gibbon and R. Todd Hunt, for appellants.
John E. Gotherman and Malcolm C. Douglas, urging reversal for amici curiae, Ohio Municipal League and Ohio Municipal Attorneys Association.
Clarence D. Rogers; Zashin, Rich & Sutula and Robert I. Zashin, urging reversal for amici curiae, residents of the city of Pepper Pike.
COOK, J.
{¶ 14} Neither party contests the legal principles governing this case. Rather, the dispute concerns the application of those principles to the specific facts of this case. In analyzing the constitutionality of zoning ordinances, we necessarily begin with the strong presumption that the ordinance is valid. Valley Auto Lease of Chagrin Falls, Inc. v. Auburn Twp. Bd. of Zoning Appeals (1988), 38 Ohio St.3d 184, 185, 527 N.E.2d 825, 827; Franchise Developers, Inc. v. Cincinnati (1987), 30 Ohio St.3d 28, 32, 30 OBR 33, 36, 505 N.E.2d 966, 970; Hudson v. Albrecht, Inc. (1984), 9 Ohio St.3d 69, 71, 9 OBR 273, 275, 458 N.E.2d 852, 855; Brown v. Cleveland (1981), 66 Ohio St.2d 93, 95, 20 O.O.3d 88, 89, 420 N.E.2d 103, 105. We note that the party challenging the validity of a zoning classification bears, at all stages of the proceedings, the burden of demonstrating that the provision is unconstitutional. Ketchel v. Bainbridge Twp. (1990), 52 Ohio St.3d 239, 557 N.E.2d 779; Valley Auto, supra; Mayfield-Dorsh, Inc. v. S. Euclid (1981), 68 Ohio St.2d 156, 157, 22 O.O.3d 388, 429 N.E.2d 159, 160.
{¶ 15} In reviewing the trial court‘s decision to invalidate Pepper Pike‘s zoning ordinance, we are guided by the principle that judgments supported by competent, credible evidence going to all the material elements of the case must not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578, syllabus. If the evidence is susceptible to more than one interpretation, we must give it the interpretation consistent with the trial court‘s judgment. See Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 10 OBR 408, 461 N.E.2d 1273.
{¶ 17} Applying the two-pronged test reannounced in Gerijo to this case, we begin with the issue of whether Pepper Pike‘s zoning ordinance failed to advance a legitimate government interest. Pepper Pike maintains that zoning ordinance No. 1981-21 advanced its interest of retaining the residential character of the property, the neighborhood and the community. CMC contends the zoning does not advance a legitimate government interest because Pepper Pike does not have a comprehensive master plan, CMC‘s property is unique and increased traffic alone cannot justify a governmental interest.
{¶ 19} The evidence presented on behalf of Pepper Pike at trial indicates that after seven years of court involvement, the city rezoned CMC‘s property from single-family residential dwellings with a one-acre minimum lot requirement to townhouse cluster zoning with a maximum density of 2.5 units per acre. With this ordinance, Pepper Pike attempted to balance the competing interests of CMC and the other residents of Pepper Pike. One of Pepper Pike‘s objectives, as seen in its 1990 zoning map, was to restrict commercial development to the Chagrin Boulevard corridor and to keep Brainard Road a residential road. Zoning ordinance No. 1981-21 served to buffer the single-family homes from the intensive commercial and office development along Chagrin Boulevard.
{¶ 20} CMC‘s property was unique because it was one of the last undeveloped properties in Pepper Pike and abuts other political subdivisions and commercial uses. By zoning the property for a higher density of units and clustering of those units, Pepper Pike provided the necessary flexibility for development of the property, addressed the impact of the outside influences on the property, and maintained the residential character of the neighborhood and
{¶ 21} As to the adverse influences surrounding CMC‘s property, Pepper Pike‘s expert testified that the best way to separate incompatible uses such as retail or an interstate highway from residential development is to solve the problem at the site. “I find in my current experience that probably the best way when you have something that you are trying to separate from one use to the other, the best thing to do is to solve it right at the place, put in the necessary separations, screening and buffering and then go right into the development that you probably ought to have on that site in the first place.” By combining mounding, fencing and natually wooded space, the adverse influences could be diminished. Other developments in Cuyahoga County where barriers had been erected along freeways and behind commercial areas have successful expensive single-family residential developments.
{¶ 22} While a townhouse development would add 1,716 cars per day to Brainard Road, a two-lane, residential road, Pepper Pike demonstrated that the proposed commercial development would add 17,295 cars per day. Eighteen single-family homes were located on Brainard Road across from the property at issue.
{¶ 23} In finding that zoning ordinance No. 1981-21 did not advance a legitimate government interest, the trial court focused on the unique character of the property and the lack of a comprehensive master plan or “serious planning considerations.” In discussing the particular government interests advanced, the common pleas court only addressed the issue of traffic concerns and concluded that
{¶ 24} While both the trial court and the court of appeals correctly stated the law, both misapplied their pronouncement to the facts of the case. Whether CMC‘s proposed zoning might “better” advance the stated governmental interest does not address the issue of whether zoning ordinance No. 1981-21 advances a legitimate government interest. Likewise, whether the traffic concerns were substantially advanced by the zoning does not address whether any other legitimate government interest existed. “The judgment of the judiciary is not to be substituted for that of the legislature when an issue is fairly debatable so that reasonable minds may differ.” Gerijo, at 229, 638 N.E.2d at 538.
{¶ 25} We will not substitute our opinion for that of the legislative entity when the evidence presented clearly contradicts a finding that zoning ordinance No. 1981-21 was arbitrary or that it failed to substantially advance a legitimate government interest. Pepper Pike demonstrated that its zoning ordinance implemented a coherent land-use policy derived from a rational consideration of the needs of the community as a whole. We, therefore, hold that CMC failed to demonstrate beyond fair debate that zoning ordinance No. 1981-21 did not substantially advance Pepper Pike‘s legitimate governmental interest in protecting and maintaining the residential character of the property, neighborhood and community.
{¶ 27} Both the trial and appellate courts focused on the most viable use of the property and not on whether the zoning ordinance allowed for a viable use. The court of appeals stated “that the most productive use of the land from an economic standpoint for both parties would be to allow the proposed use rather than the existing all-townhouse zoning.” Whether this statement is correct or not, the judiciary is not to substitute its judgment for that of the legislative body. In this case, Pepper Pike had increased the density of the units allowed on CMC‘s property from the original one unit per acre to 2.5 units per acre.
{¶ 28} Preliminarily, we note that both courts, while acknowledging diminution in value alone is insufficient to invalidate an existing zoning ordinance, based their rulings, in part, upon the determination that under that zoning, CMC would suffer a ninety percent diminution in the value of the portion of the property proposed for office use. To arrive at this conclusion, the courts compared CMC‘s undeveloped property to developed commercial property located in Beachwood selling for $300,000 to $500,000 per acre.3 The proper comparison for the diminution in value would have been the difference in the value of the property as zoned, $14,900 per acre or $1.7 million according to CMC‘s expert or $32,500 or $3.7 million according to Pepper Pike‘s expert, and the value of the property as
{¶ 29} The trial court found that zoning ordinance No. 1981-21 deprived CMC of an economically feasible use of its land because the low density of 2.5 units per acre precluded the recovery of the up-front cost of bringing sanitary sewers to the site. Pepper Pike argues that the trial court erroneously included all the development costs when reviewing one of Pepper Pike‘s expert‘s figures. We agree.
{¶ 30} Pepper Pike‘s expert, a developer, testified that a successful townhouse development in accordance with zoning ordinance No. 1981-21 could be built with a fifteen percent profit on capital risked for townhouses in the range of $250,000 to $300,000. In order to provide that development, the developer testified that he could improve the land for a profit if he could purchase the property at $70,000 to $75,000 per acre. He assumed that the purchase price included the off-site improvements for sanitary treatment and a barrier for the attenuation of sound from I-271. The value of the land plus the costs of a sound barrier and off-site sewage treatment, according to the parties’ other experts, ranged from $30,824 to $61,819 per acre. Thus, the costs were well below the price the developer would be willing to pay for the land.
{¶ 31} In comparing the developer‘s testimony with that of other experts, the trial court used all the development costs, which it found to be approximately $86,000 per acre. The court of appeals recognized this error in its recitation of the facts, but in its analysis erroneously used both the on-site and off-site improvement costs to determine that the property costs and the improvement costs precluded the development of this property. Without the trial court‘s and court of appeals’ reliance on the erroneous statement of Pepper Pike‘s expert testimony, CMC did
{¶ 32} The judgment of the court of appeals is reversed.
Judgment reversed.
MOYER, C.J., DOUGLAS, RESNICK AND F.E. SWEENEY, JJ., CONCUR.
WRIGHT, J., CONCURS IN JUDGMENT ONLY.
PFEIFER, J., DISSENTS.
WRIGHT, J., concurring in judgment only.
{¶ 33} Although I agree with the reversal of the judgment of the court of appeals, I disagree with the majority‘s continued use of a conjunctive test, which this court expressly adopted in Gerijo, Inc. v. Fairfield (1994), 70 Ohio St.3d 223, 638 N.E.2d 533, syllabus. In adopting and following the conjunctive test, this court has drifted away from the specific constitutional provisions that govern zoning ordinances and has abandoned the proper constitutional principles, as announced by the United States Supreme Court. As discussed below, requiring any party who challenges the constitutionality of a zoning ordinance to prove, beyond fair debate, both that the ordinance deprives him of an economically viable use and that it fails to advance a legitimate governmental interest effectively strips individuals of rights guaranteed by the
{¶ 34} A party who challenges the constitutionality of a municipal zoning ordinance normally asserts that the ordinance violates the
{¶ 36} With regard to the
{¶ 37} Although states may afford individuals greater rights than those afforded under the federal Constitution, states cannot deprive individuals of rights that are guaranteed by the federal Constitution. Because the majority‘s conjunctive test does not provide individuals with the full protections afforded by the federal Constitution, it is, itself, unconstitutional. When reviewing the constitutionality of zoning ordinances, this court should abandon the conjunctive test and follow the
PFEIFER, J., dissenting.
{¶ 38} While I agree with Justice Wright‘s conclusion that a disjunctive test should be applied when evaluating the constitutionality of zoning regulations, the findings of fact and conclusions of law of the trial court should remain undisturbed.
{¶ 39} The trial court found that the zoning scheme was unconstitutional because it was arbitrary, confiscatory, unreasonable and did not bear a substantial relationship to the public health, safety, morals and general welfare. As its rationale for its zoning plan, the city claims that there is a need for a transitional buffer between residential and commercial properties. Using the property for low-density townhouses does little to further the city‘s objectives. The city‘s proposed use of the property is purely residential. A scheme which gradually shifts the use of property from commercial to residential would achieve a result consistent with the city‘s rationale, and was precisely the remedy crafted by the trial court. I accordingly dissent.