owner had standing to challenge constitutionality of zoning as applied to its own property because owner may be limited by the zoning or may be harmed by restrictions placed on the property
How later courts described this case
- owner had standing to challenge constitutionality of zoning as applied to its own property because owner may be limited by the zoning or may be harmed by restrictions placed on the property
Written by the judges who cited it.
The opinion
Ford, Presiding Judge,
concurring.
While I concur with the judgment and analysis of the majority, I feel obliged to amplify the distinctions between the facts presented by the instant case and those before the Ohio Supreme Court in
Ketchel v. Bainbridge Twp.
(1990), 52 Ohio St.3d 239 , 557 N.E.2d 779 .
In
Ketchel,
the Ohio Supreme Court concluded that landowners did not meet their burden of proof in challenging the constitutionality of the relevant
use
restriction because they did not demonstrate that
all possible uses
were economically infeasible.
Id.
at 245, 557 N.E.2d at 784 .
In the instant action, the majority correctly holds that the rule of
Ketchel
does not preclude a successful challenge to the five-acre
area
limitation at issue by focusing on the fact that “[i]f the lot size remains at the five-acre minimum, the cost, per residence, of the sewer would make development economically infeasible.” While this statement is valid, several other factors render the rule of
Ketchel
inapplicable to the case
sub judice.
First, in
Ketchel
the court concluded that the available groundwater supply would be inadequate to support the proposed higher density development, and
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that the proposed development would strain the available water supply to the surrounding area. This finding was the fundamental basis for the failure of the landowners’ constitutional challenge.
As noted in
Ketchel,
a zoning regulation may be invalidated on constitutional grounds if the landowner demonstrates, beyond a fair debate, that (1) the zoning regulation denies him an economically viable use of his property,
and
(2)
the zoning regulation does not substantially advance a legitimate interest in health, safety, or welfare of the community. Id.
at 243, 557 N.E.2d at 782 . Since the evidence established the existence of an inadequate water supply, the use restriction in
Ketchel
substantially advanced the township’s legitimate interest in guarding against water shortages. Accordingly, the zoning regulation would withstand a constitutional attack
whether or not
it denied the landowners an economically viable use of their property.
Conversely, in the instant case there was no evidence that the appellee’s proposed two-acre development would strain the available water supply. Accordingly, the case
sub judice
rests solely on the issue of whether the zoning regulation denies appellee the economically viable use of its property.
Second, the property in
Ketchel
had no special or unique characteristics distinguishing it from other residentially zoned properties. Further there was no finding that all single-family development was infeasible. On the other hand, the soil conditions on the subject property in the instant case were so severe as to render on-site septic systems impossible to install. Accordingly, unlike
Ketchel, all
single-family development was economically infeasible.
Third,
Ketchel
is inapplicable because the landowners in that case attempted to challenge a use restriction rather than an area restriction. In
Ketchel,
approval was sought for a use which was expressly prohibited under the zoning classification, while appellee in the instant case sought approval to change the area restrictions for an already-permitted use. This distinction is significant, as appellee need only demonstrate that his permitted use of the property was economically infeasible under the five-acre area restrictions.
Christley, J., concurs in the foregoing opinion.