# Gerijo, Inc. v. Fairfield

> Ohio Supreme Court · September 13, 1994 · 1994 Ohio 432

URL: https://www.frixlaw.com/law-library/cases/11148851

## Case

- **Court:** Ohio Supreme Court
- **Decided:** September 13, 1994
- **Citations:** 1994 Ohio 432
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Alice Robie Resnick, J.
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11148851

## Opinion text

OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of Ohio
are being transmitted electronically beginning May 27, 1992,
pursuant to a pilot project implemented by Chief Justice Thomas
J. Moyer.
Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention: Walter S.
Kobalka, Reporter, or Deborah J. Barrett, Administrative
Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010. Your
comments on this pilot project are also welcome.
NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised to
check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions. The
advance sheets to Ohio St.3d will also contain the volume and
page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11148851. Public record. Not legal advice.