Gerijo, Inc. v. Fairfield

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Gerijo, Inc., Appellee, v. City of Fairfield, Appellant.

[Cite as Gerijo, Inc. v. Fairfield (1994), Ohio St.3d

.]

Municipal corporations -- Zoning -- Elements party who attacks

municipal zoning ordinance on constitutional grounds must

prove.

A party who attacks a municipal zoning ordinance on constitutional

grounds must prove, beyond fair debate, both that the

enactment deprives him or her of an economically viable use

and that it fails to advance a legitimate governmental

interest.

(No. 93-1434 -- Submitted April 26, 1994 -- Decided

September 14, 1994.)

Certified by the Court of Appeals for Butler County, No.

CA92-07-116.

Plaintiff-appellee Gerijo, Inc. ("Gerijo") is an Ohio

corporation owned by members of the Oliver family. The Olivers,

either individually or through the corporation, have owned the

property at issue in this appeal since the 1870s. The subject

property consists of approximately thirty-seven acres situated

one thousand feet southwest of State Route 4 in Fairfield, Ohio.

In 1979, defendant-appellant city of Fairfield adopted a

comprehensive land use plan ("the 1979 Plan") in response to the

rapid population growth the city had experienced during the

preceding two decades. The city devoted one section of the 1979

Plan to the perceived need for land use management as a means to

foster relationships among the residential, commercial and

industrial segments of the city. One objective articulated in

the land use section was to create a housing mix of seventy

percent owner-occupied and thirty percent renter-occupied

dwellings. In 1986, the Fairfield City Council passed a

resolution retaining this ratio but specifying that the

owner-occupied units must be single-family homes. Thereafter in

1989, Fairfield adopted a revised land use plan ("the 1989 Plan")

in which it again stated the city's desire for a seventy-thirty

ratio between single-family and multifamily dwellings. The 1989

Plan also included an intent to confine all industrial

development to the areas east of State Route 4.

Throughout most of the last century, the Olivers and/or

Gerijo farmed the land at issue in this case. Approximately ten

years ago, however, the property ceased to be used as a farm and

has since remained vacant. In its current state, the Gerijo

property is an undeveloped area surrounded on three sides by

multifamily residential developments. The fourth side, lying to

the north and northwest of the subject property, is zoned for

commercial uses. While the subject parcel was once zoned as a

multifamily residential area, the city of Fairfield rezoned the

area in 1989 as M-1, an Industrial Park District. According to

Chapter 1169 of the Fairfield Planning and Zoning Codes ("the

zoning code"), M-1 is a light industrial district reserved for

particular uses including warehouse storage, trucking terminals,

laboratories, product manufacturers, and public utilities. Those

uses are further limited by certain conditions and prohibitions

outlined in the zoning code.1 In the 1989 Plan, the city defined

"light industrial" areas as those "located in the most visible

industrial portion of the city. The purpose here is to attract

less environmentally disruptive development that typically

includes high growth and high tech type industries. [T]his type

[of] development is the key to the City's economic and tax

base.***"

In recent years, the Oliver family had received several

offers from prospective buyers who were interested in developing

the subject property. Most of the solicitations proposed

multifamily developments similar to those located on surrounding

properties and included offers ranging from $30,000 to $70,000

per acre. Gerijo also received one offer for $40,000 per acre to

develop the property under the existing light industrial zoning

classification.

On April 24, 1989, Gerijo filed a petition with the

Fairfield City Council requesting that the subject property be

rezoned from M-1 light industrial to R-3 multifamily

residential. Gerijo sought the reclassification so that it could

pursue an offer extended by Trammell Crow Residential Corporation

to develop five hundred thirty-two multifamily units on the

subject property at a price of $65,000 per acre. At the time

Gerijo filed its petition, Fairfield housing reflected a

fifty-fifty ratio of single-family to multifamily units.

Approval of the rezoning and subsequent development of the five

hundred thirty-two units would have altered the housing ratio to

roughly forty-eight to fifty-two in favor of multifamily units.

On August 14, 1989, the Fairfield City Council rejected Gerijo's

application.

Once the city denied its request to rezone the property,

Gerijo filed a complaint with the Court of Common Pleas of Butler

County challenging the constitutionality of the M-1 zoning scheme

as it related to the subject parcel. Gerijo argued the M-1

zoning prevented "the highest and best use of the Property, and

it is arbitrary, confiscatory, unreasonable, and not based on the

public health, safety, moral[s] and general welfare." While

finding that Gerijo failed to prove the M-1 zoning was

confiscatory, the trial court ultimately invalidated the

classification on the grounds that it failed to substantially

advance a legitimate governmental interest. The court of appeals

affirmed.

The appellate court, finding its judgment to be in conflict

with the judgment of the Court of Appeals for Lake County in

Diversified Constr., Inc. v. Willoughby Hills (Dec. 4, 1992),

Lake App. No. 91-L-145, unreported, certified the record of the

cause to this court for review and final determination.

Graydon, Head & Ritchey, Anthony G. Covatta and Harry J.

Finke IV, for appellee.

Manley, Burke, Fischer & Lipton, Timothy M. Burke and Gary

E. Powell; Millikin & Fitton and John H. Clemmons, City Law

Director, for appellant.

Alice Robie Resnick, J. In Columbia Oldsmobile, Inc. v.

Montgomery (1990), 56 Ohio St.3d 60, 564 N.E.2d 455, this court

held that in order to invalidate a zoning ordinance on

constitutional grounds, the party attacking the regulation must

establish, beyond fair debate, that the zoning classification

denies him or her an economically viable use of the zoned

property without substantially advancing a legitimate interest in

the health, safety or welfare of the community. The question

certified for our review is whether the two elements of this test

must be proven in the conjunctive or the disjunctive. For the

reasons which follow, we find that a plaintiff must prove both

prongs in order to invalidate a zoning ordinance. The decision

of the court of appeals is therefore reversed.

The authority vested in municipalities to enact zoning

ordinances is clearly defined in this state. R.C. 713.06 permits

Ohio cities such as Fairfield to "frame and adopt a plan for

dividing the municipal corporation or any portion thereof into

zones or districts, representing the recommendations of the

[municipality's planning] commission, in the interest of the

public health, safety, convenience, comfort, prosperity, or

general welfare ***." In addition, the Ohio Constitution

explicitly subjects the right of an individual to use and enjoy

his or her property to the legitimate exercise of local police

power. See Section 3, Article XVIII. Inasmuch as the exercise

of police power interferes with individual rights, the use of

such power must bear a substantial relationship to a legitimate

government interest and must not be unreasonable or arbitrary.

Hudson v. Albrecht, Inc. (1984), 9 Ohio St.3d 69, 9 OBR 273, 458

N.E.2d 852; Cincinnati v. Correll (1943), 141 Ohio St. 535, 539,

26 O.O. 116, 118, 49 N.E.2d 412, 414. We acknowledge, however,

that the line separating the legitimate use of police power from

the illegitimate is often incapable of precise delimitation, as

it varies from circumstance to circumstance. Euclid v. Ambler

Realty Co. (1926), 272 U.S. 365, 387, 47 S.Ct. 114, 118, 71 L.Ed.

303, 310.

When reviewing the legitimacy of zoning ordinances, this

court has repeatedly recognized a strong presumption in favor of

the validity of an enactment. Hudson, supra, 9 Ohio St.3d at 71,

9 OBR at 275, 458 N.E.2d at 855; Downing v. Cook (1982), 69 Ohio

St.2d 149, 151, 23 O.O.3d 186, 187, 431 N.E.2d 995, 997; Brown v.

Cleveland (1981), 66 Ohio St.2d 93, 95, 20 O.O.3d 88, 89, 420

N.E.2d 103, 105. The party challenging an ordinance 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; Mayfield-Dorsh, Inc.

v. S. Euclid (1981), 68 Ohio St.2d 156, 157, 22 O.O.3d 388, 429

N.E.2d 159, 160; Hilton v. Toledo (1980), 62 Ohio St.2d 394, 396,

16 O.O.3d 430, 431, 405 N.E.2d 1047, 1049. As this court

discussed in Willott v. Beachwood (1964), 175 Ohio St. 557, 560,

26 O.O.2d 249, 251, 197 N.E.2d 201, 204, a court's authority in

determining the validity of zoning regulations is limited in that

"the court can not usurp the legislative function by substituting

its judgment for that of the council. Municipal governing bodies

are better qualified, because of their knowledge of the

situation, to act upon these matters than are the courts." See,

also, Wilson v. Cincinnati (1976), 46 Ohio St.2d 138, 142, 75

O.O.2d 190, 193, 346 N.E.2d 666, 669; Allion v. Toledo (1919), 99

Ohio St. 416, 420, 124 N.E. 237, 238. A court may substitute its

judgment for that of the local governing body only when a

municipality exercises its zoning power in an arbitrary,

confiscatory or unreasonable manner which violates constitutional

guaranties. Willott, supra, at paragraph three of the syllabus.

In our examination of the trial court's decision to

invalidate Fairfield's zoning ordinance, we are necessarily

constrained 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. We must indulge every reasonable presumption in favor

of the lower court's judgment and finding of facts. Seasons Coal

Co. v. Cleveland (1984), 10 Ohio St.3d 77, 10 OBR 408, 461 N.E.2d

1273. In the event the evidence is susceptible to more than one

interpretation, we must construe it consistently with the lower

court's judgment. See Ross v. Ross (1980), 64 Ohio St.2d 203, 18

O.O.3d 414, 414 N.E.2d 426.

In considering the case at bar, our focus rests upon the

well-established standard of review that where a property owner

challenges the constitutionality of a municipal zoning ordinance,

that party must demonstrate, beyond fair debate, the zoning

classification denies him or her an economically viable use of

the zoned land without substantially advancing a legitimate

interest in the health, safety, or welfare of the community.

Columbia Oldsmobile, Inc. v. Montgomery, supra, 56 Ohio St.3d 60,

564 N.E.2d 455; Ketchel v. Bainbridge Twp., supra, 52 Ohio St.3d

at 245, 557 N.E. 2d at 783; Karches v. Cincinnati (1988), 38 Ohio

St.3d 12, 19, 526 N.E.2d 1350, 1357; Mayfield-Dorsh, Inc. v. S.

Euclid, supra, 68 Ohio St.2d 156, 22 O.O.3d 388, 429 N.E. 2d 159;

Superior Uptown, Inc. v. Cleveland (1974), 39 Ohio St.2d 36, 68

O.O.2d 21, 313 N.E.2d 820. See, also, Penn Cent. Transp. Co. v.

New York City (1978), 438 U.S. 104, 127, 98 S.Ct. 2646, 2661, 57

L.Ed.2d 631, 650; Goldblatt v. Hempstead (1962), 369 U.S. 590, 82

S.Ct. 987, 8 L.Ed.2d 130; Euclid v. Ambler Realty Co., supra, 272

U.S. at 395, 47 S.Ct. at 121, 71 L.Ed. at 314. We are

essentially being asked to clarify whether the phrase beginning

with the word "without" constitutes a second element which must

be proved or merely an alternative element which may, by itself,

support a finding of unconstitutionality. Both the trial court

and the court of appeals concluded Gerijo need only prove one of

the two prongs in order to succeed in its challenge of the M-1

light industrial classification. As a result, even though Gerijo

could not establish that the zoning scheme denied it a reasonable

economic use of the subject property, the lower courts

invalidated the Fairfield zoning ordinance upon the sole basis

that the scheme failed to advance a legitimate government

interest.

The lower courts' decisions effectively ignore and

consequently delete the "economic viability" prong from the

established standard of review. As we stated in Columbia

Oldsmobile, "we must employ a two-part analysis to pass on the

constitutional validity of a zoning ordinance." (Emphasis

added.) Id., 56 Ohio St.3d at 62, 564 N.E.2d at 457. Had we

intended for evidence of one element to qualify as sufficient

proof to invalidate a municipal enactment, there would have been

no need to state the second. By repeatedly setting out both

economic viability and the advancement of a legitimate

governmental interest as two steps of the same test, we intended

to require that a challenging party prove each element.

Gerijo contends, however, our actions in the Columbia

Oldsmobile decision speak louder than our words. In the first

part of the opinion, we determined that the zoning ordinance at

issue did not deprive the landowner of an economically viable

use. Thereafter, we proceeded to examine whether the legislation

advanced a legitimate governmental interest. Gerijo asserts that

if this court had intended for the two prongs to be applied

conjunctively, our review would have ceased once we concluded the

challenging party failed to establish deprivation of economic

viability. Gerijo's argument qualifies as the proverbial attempt

to make something out of nothing. Our discussion of each element

represents nothing more than a thorough application of the test

we adopted. In recognition of the accepted principle that

legislative bodies are vested with the discretion and authority

to create land use policies, one who challenges the legitimacy of

a zoning enactment must satisfy a substantial burden of proof in

order to prevail. We, therefore, hold that a party who attacks a

municipal zoning ordinance on constitutional grounds must prove,

beyond fair debate, both that the enactment deprives him or her

of an economically viable use and that it fails to advance a

legitimate governmental interest.

Applying the foregoing two-prong test to this case, we begin

with the issue of economic viability. Generally, a zoning

ordinance is not confiscatory so long as the owner is not

deprived of the reasonable use of his or her property. Valley

Auto Lease of Chagrin Falls, Inc. v. Auburn Twp. Bd. of Zoning

Appeals (1988), 38 Ohio St.3d 184, 527 N.E.2d 825. When,

however, a zoning ordinance denies an owner all uses except those

which are highly unlikely or practically impossible under the

circumstances, it is impermissibly restrictive. Id. at 186, 527

N.E.2d at 827.

The trial court determined that the Fairfield ordinance did

not deprive Gerijo of an economically feasible utilization of its

land given the outstanding offer to purchase the property, along

with some additional acreage, for $40,000 per acre under the

current light industrial zoning classification. In comparing the

$40,000 offer with the Trammell Crow offer of $65,000 per acre

for a multifamily development, the trial court concluded that

"[w]hile this difference in value is disheartening, we do not

believe that it is confiscatory." The mere fact that property is

not zoned for its highest value and best use does not alone

invalidate a zoning ordinance. Ketchel v. Bainbridge Twp.,

supra, 52 Ohio St.3d at 243, 557 N.E. 2d at 783; C. Miller

Chevrolet, Inc. v. Willoughby Hills (1974), 38 Ohio St.2d 298, 67

O.O.2d 358, 313 N.E.2d 400. Despite Gerijo's arguments in the

trial court concerning the confiscatory impact of the zoning

ordinance, Gerijo candidly admitted during oral argument before

this court that it had not been deprived of the reasonable

economic use of its property. Based upon the foregoing, Gerijo

clearly failed to satisfy one of the requisite elements for

invalidating Fairfield's zoning enactment.

Continuing our analysis under the Columbia Oldsmobile test,

we next consider whether the zoning ordinance substantially

advances Fairfield's legitimate interest in the health, safety or

welfare of the community. Where a municipality makes a

determination as to what is beneficial or detrimental to

community planning, including the development of land use

policies, that decision is first and foremost a legislative

matter. Willott, supra, 175 Ohio St. at 560, 26 O.O.2d at 251,

197 N.E.2d at 204. A city may properly exercise its zoning

authority in an attempt to preserve and protect the character of

designated areas in order to promote the overall quality of life

within the city's boundaries. Franchise Developers, Inc. v.

Cincinnati (1987), 30 Ohio St.3d 28, 33, 30 OBR 33, 37, 505

N.E.2d 966, 971; Hudson v. Albrecht, Inc., supra, 9 Ohio St.3d

69, 9 OBR 273, 458 N.E.2d 852. 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.

Willott, supra, 175 Ohio St. at 560, 26 O.O.2d at 251, 197 N.E.2d

at 204; Euclid, supra, at 388, 47 S.Ct. at 118; 71 L.Ed. at 311,.

The evidence presented on behalf of the city of Fairfield

indicates the city rezoned Gerijo's property from residential to

light industrial in an attempt to provide a buffer between the

multifamily residential and commercial sections which surround

the subject parcel. The Fairfield Planning Director testified

that from the time the 1979 Plan was adopted to 1989, when the

city rezoned the Gerijo property, the city experienced numerous

problems with multifamily dwellings located directly adjacent to

retail and commercial uses. Residents living in the area

immediately surrounding the subject parcel had complained to city

officials about excessive noise and traffic problems stemming

from nearby commercial establishments, which interfered with the

inhabitants' enjoyment of residential life.2 By rezoning

Gerijo's property for use as a buffer, the city was simply

responding to the existing clash between the residential and

commercial segments. One of Fairfield's experts testified,

"while one would not normally think of M1 [light industrial] as a

transition zone, I think in terms of land uses, a reasonable

person would recognize, from my land use experience, I recognize

the need for transitional use between the retail fronting on

State Route Four and the residential property***. [The light

industrial zone] does, indeed, provide that needed transition***

and needed buffering ***."

At the conclusion of its review of the evidence, the trial

court found that "it [is] axiomatic that all other zoning

classifications, other than M-1 and M-2 [industrial], would

represent a far less severe contrast in adjacent zonings." We

disagree. The city presented credible evidence to support the

transitional use of a light industrial district. There was

expert testimony from which the trial court could find that under

a light industrial classification, the subject property could be

developed into, among other things, a "high tech" industrial park

which would have little impact on the environment and would

likely operate only during normal business hours. The true range

of industrial possibilities, however, is unknown since, as the

trial court concluded, "the record is totally void of any

evidence which suggests the efforts [by Gerijo] to sell the

property as industrial." (Emphasis sic.) Nevertheless, all

potential developments will necessarily be constrained by the

prescribed list of permissible uses set forth in Chapter 1169 of

the Fairfield Zoning Code. The city will also be able to control

development of the parcel by virtue of Section 1169.05(b), which

specifically prohibits any use which "is, or may become,

hazardous, noxious or offensive due to the emission of odor,

dust, smoke, cinders, gas, fumes, noise, vibration, beat

frequency, refuse matter or water carried waste."

In support of its position that the city arbitrarily rezoned

Gerijo's property, the trial court placed great emphasis on its

conclusion that, in Fairfield, there was not a single developed

M-1 district next to a residential zone. Placement of a light

industrial area to the west of State Route 4 also conflicts with

the city's express intent to confine all industrial development

to the east side of Route 4. These issues, however, are not

fatal to the city's actions. Fairfield's efforts in this case

represent a sincere attempt by the local governing body to

respond to very specific land use problems that arose as the

municipality expanded. Use of the light industrial

classification as a transitional zone was specifically tailored

to meet the needs of areas surrounding Gerijo's property. We

will not substitute our opinion for the local zoning expertise of

the legislative entity when the evidence presented clearly

contradicts a finding that the M-1 zoning was arbitrary or that

it failed to substantially advance a legitimate governmental

interest.

Besides citing the need for a buffer between residential and

commercial areas, the city denied Gerijo's proposed zoning change

for the additional reason that it conflicted with the stated

objective of achieving a seventy-thirty ratio between

single-family and multifamily developments. Had the city

approved Gerijo's request, the number of multifamily dwellings

would have exceeded the number of single-family homes. Creating

a goal and a zoning scheme that are both designed to preserve a

balance between these types of residential uses represents a

legitimate use of a municipality's police power. Belle Terre v.

Boraas (1974), 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797; Euclid,

supra, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303.

The trial court labeled Fairfield's desired housing mix a

"worthy objective" but then struck down the zoning classification

as an attempt to "arbitrarily and capriciously 'zone out'

multifamily units." Upon review of the record, we conclude that

Fairfield was not attempting to arbitrarily banish multifamily

dwellings, but rather was striving toward its stated goal of a

balanced housing population. Contrary to the court of appeals'

position, we find nothing in the record to suggest that the city

had deviated from this stated objective on prior occasions. As a

result, the Fairfield City Council acted well within its scope of

authority when it denied Gerijo's application for

reclassification.

For the above stated reasons, we find that Gerijo failed to

prove that the Fairfield zoning classification both denied Gerijo

a reasonable economic use of its property and failed to advance a

legitimate interest in the health, safety or welfare of the

community. The record supports Fairfield's decision to zone the

subject property as a light industrial district in order to serve

as a buffer between residential and commercial segments of the

city. The judgment of the court of appeals is therefore reversed.

Judgment reversed.

Moyer, C.J., Douglas and F.E. Sweeney, JJ., concur.

A.W. Sweeney, Wright and Pfeifer, JJ., dissent.

FOOTNOTES

1 Section 1169.04 of the zoning code, entitled "Required

Conditions," states:

"Processes and equipment employed in goods processed or sold

shall be limited to those which are not objectionable by reason

of odor, dust, smoke, cinders, gas, fumes, noise, vibration,

refuse matter or water carried waste."

Section 1169.05 sets out "Prohibited Uses." Subsection (B)

states:

"No use shall be permitted or authorized to be established

or maintained which, when conducted under adequate conditions and

safeguards, in compliance with the provisions of the Zoning

Ordinance and any additional conditions or requirements

prescribed by the Planning Commission is, or may become,

hazardous, noxious or offensive due to the emission of odor,

dust, smoke, cinders, gas, fumes, noise, vibration, beat

frequency, refuse matter or water carried waste."

2 The record reveals numerous citizen complaints filed with

the Fairfield City Council and/or Mayor protesting the noise,

traffic and general change in atmosphere created by the close

proximity of commercial developments to the residential areas.

Included within the record is a petition signed by more than

fifty Fairfield residents who live in the area surrounding the

Gerijo property asking the city council to take action in

remedying these problems.

Pfeifer, J., dissenting. The majority uses an overly

generous test to determine the constitutionality of the Fairfield

zoning ordinance. When the correct analysis is applied, the

ordinance fails to pass constitutional scrutiny.

I

Columbia Oldsmobile, Inc. v. Montgomery (1990), 56 Ohio

St.3d 60, 564 N.E.2d 455, delineates the rule at issue in this

case. In Columbia Oldsmobile, we held that "'[i]n order to

invalidate a zoning regulation on constitutional grounds, the

parties attacking it must demonstrate, beyond fair debate, that

the zoning classification denies them the economically viable use

of their land without substantially advancing a legitimate

interest in the health, safety, or welfare of the community.* *

*'" (Citations omitted and emphasis added.) Id. at 62, 564

N.E.2d at 457. The majority holds that the word "without" means

"and." Thus, in order to invalidate a zoning ordinance on

constitutional grounds a plaintiff must prove both elements of

the test. It is hard to imagine a zoning scheme that would not

pass the majority's conjunctive test. Fortunately, the United

States Supreme Court has provided a test that provides affected

landowners with refuge from unreasonable governmental action.

The United States Supreme Court in Agins v. Tiburon (1980),

447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d. 106, unanimously

concluded that a disjunctive test should be used when

scrutinizing a zoning ordinance. The Agins court stated that

"[t]he application of a general zoning law to particular property

effects a taking if the ordinance does not substantially advance

legitimate state interests * * * , or denies an owner

economically viable use of his land." (Citations omitted and

emphasis added.) Id. at 260, 100 S.Ct. at 2141, 65 L.Ed.2d at 112.

In the present case, a disjunctive test should also be used.

II

In applying the disjunctive test used in Agins to the

present case, we should conclude that the Fairfield zoning

ordinance is unconstitutional because the evidence presented at

trial supports the trial court's conclusion that the ordinance

does not substantially advance a legitimate interest in health,

safety or welfare of the community.

The ordinance is arbitrary and indefensible. The city of

Fairfield's 1979 land use plan confined all industrial zones to

the east side of Route 4. At that time, Gerijo's land was zoned

multifamily residential. In 1989, the city passed a new land use

plan which designated Gerijo's property, which lies to the west

of Route 4, as light industrial even though the surrounding area

was residential. The residential districts in Fairfield shape a

horseshoe enveloping Gerijo's property. The city alleges that

the 1989 land use plan attempted to establish a ratio of seventy

percent single-family residences to thirty percent multifamily

residences. The zoning change of Gerijo's property from a

multifamily designation to industrial designation purportedly

facilitated this goal. As the trial court concluded, however,

evidence at trial showed that Fairfield had permitted other

multifamily residential projects since the land use plan was

adopted. At trial, Fairfield's planning director testified that

the current ratio of single-family to multifamily land use was

closer to a fifty-fifty ratio. In sum, the city of Fairfield

unfairly singles out the Gerijo property to be a victim of an

arbitrary scheme.

The judgment of the court of appeals should be affirmed.

A.W. Sweeney and Wright, JJ., concur in the foregoing

dissenting opinion.