586 N.E.2d 145 | Ohio Ct. App. | 1990
Plaintiffs-appellants, The Shopco Group and PYP Corp. (collectively referred to as "Shopco") and General Electric Employee's Activities Association of Evendale Plant, Inc. ("GEEAA"), appeal from the summary judgment entered in favor of defendant-appellee, city of Springdale, Ohio, and certified pursuant to Civ.R. 54(B). In their sole assignment of error, the plaintiffs raise the issue of whether the defendant's zoning restrictions upon parcels of real estate held by GEEAA constituted a taking for which compensation should be paid for the period during which the zoning was effective, under the authority of First English Evangelical Lutheran Church ofGlendale, California v. County of Los Angeles (1987),
Plaintiffs brought suit against the city of Springdale after the Springdale City Council voted on October 7, 1987, to deny their petition to amend the zoning of real estate parcels, held by GEEAA and currently operated as a park, from "R-1-A" Single Family Residence and "G-I" General Industrial classifications to a planned unit development ("PUD") that would permit Shopco to develop the site into a regional shopping mall, neighborhood retail center, hotel and office building complex. Plaintiffs' suit sought a declaration that the R-1-A and G-I zoning classifications were invalid and constituted a taking of the property, and also sought $20 million in damages to compensate what they claimed to be the difference between the fair market value of the property if rezoned as they requested and its value as it was presently zoned, plus interest from June 9, 1987, the date the Supreme Court of the United States decided FirstEnglish, supra. On August 31, 1988, during the pendency of this suit below, the Springdale City Council voted to amend its zoning of the parcels to "GB" General Business, "OB" Office Business, and "RMF-1" Residential Multi-Family. As previously noted, the trial court entered summary judgment in the defendant's favor on the issue of damages only, on December 9, 1988, finding that there were no genuine issues of material fact disclosed by the record properly reviewable under Civ.R. 56(C) and that, as a matter of law, there was no unconstitutional "taking" within the meaning of First English, supra.
In their sole assignment of error that the trial court erred in granting summary judgment as to their claim for damages, the plaintiffs claim that sufficient evidence was contained in the record to raise a genuine question of material fact precluding summary judgment on the question of whether a taking occurred. In support of their contention, the plaintiffs refer to the statement of Gene Neff, GEEAA's Recreation Director, that because the park site is now surrounded by business and industry, "the present location is no longer situated in an area conducive for recreation." The plaintiffs also refer to the statements of various experts hired by the parties to evaluate the site that the property is "economically unsuited for development as R-1-A," and that the R-1-A and G-I classifications "do not reflect a sound use of the property, either from a land planning standpoint or an economic standpoint," and to statements that the existing zoning was not reasonable because there was "no possibility for economic development of the subject property under its present zoning classifications" and because the R-1-A and G-I classifications are "counterproductive to each other." The plaintiffs argue that the property could not be profitably developed in conformance with the zoning restrictions previously in effect, that the restrictions, before their amendment, deprived GEEAA of the ability to sell or obtain any economic value from the property, and that such a deprivation amounted to a temporary taking of the property. *705
In reviewing a summary judgment, the trial and appellate courts use the same standard, that the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, and if, when the evidence is so viewed, reasonable minds can come to differing conclusions, the motion should be overruled. Hounshell v.American States Ins. Co. (1981),
The plaintiffs' claim is based on the Fifth Amendment, which provides in relevant part that "private property [shall not] be taken for public use, without just compensation." The determination of whether a governmental regulation amounts to a constitutional taking under the doctrine of inverse condemnation is not made according to any precise rule and generally requires a weighing of private and public interests. Agins v. City ofTiburon (1980),
Each of the cases mentioned above, however, concerns the determination of whether a permanent deprivation of at least a portion of a property owner's use of his property constituted a taking. The ability of a property owner to obtain compensation for a temporary deprivation of a property owner's rights is addressed by the Supreme Court in First English Evangelical *706 Lutheran Church, supra, which states that "`temporary' takings which, as here, deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation." Id.,
In First English, the court held that where the government's activities have already worked a taking of "all use" of one's property, no subsequent action by the government, including amendment or withdrawal of the judicially invalidated regulation or exercise of eminent domain, can relieve the government of the duty to provide compensation for the period during which the taking was effective. Id. at 321,
The plaintiffs now assert that the Supreme Court extended its holding in First English to instances in which only a portion of a property owner's rights are temporarily taken, in Nollan v.California Coastal Comm. (1987),
We are aware of no binding precedent that extends FirstEnglish's remedy of compensation for temporary takings to facts involving other than a deprivation of "all uses" of the property. See O'Brien v. Columbus (Feb. 6, 1990), Franklin App. No. 89AP-877, unreported, 1990 WL 9273. At least one court in another state, however, has extended First English's remedy of damages for an uncompensated, temporary taking of less than all of a property owner's use of his land. Poirier v. Grand BlancTwp. (1988),
In the wake of First English the weighing analysis contained in Agins, supra, continues to be applied in cases involving permanent takings, such as Karches, supra, and Valley Auto Leaseof Chagrin Falls, Inc. v. Auburn Twp. Bd. of Zoning Appeals
(1988),
We also hold that the trial court did not err when it granted summary judgment because there was not before it any evidence that supported the inference that the plaintiffs had been deprived of all use of their property, even though the materials before the court indicated that they may have been deprived of some property rights related to economic development. Although the right to dispose of a piece of property has been described as one of the property rights in a physical thing, along with the right to possess and use it, Loretto v. Teleprompter ManhattanCATV Corp. (1982),
The record discloses that the plaintiffs were not denied all use of their property. The testimony given in the depositions of the plaintiff's expert, John E. Pflum, and GEEAA past president and current chairman of its facilities review committee Thomas R. Wahl indicates that GEEAA continues to use the park as it has for over twenty-five years; that the city of Springdale's failure to rezone the park in response to the changed surroundings did not interrupt the activities performed at the park; and that the property had a value. Even if we accept the plaintiffs' assertions that the property could not be profitably developed under the R-1-A and G-I zoning restrictions as truth, the assertions do not negate the fact of GEEAA's continued use and possession of the park. We, therefore, affirm the judgment of the trial court.
Judgment affirmed.
SHANNON, P.J., KLUSMEIER and UTZ, JJ., concur.