Opposition Brief — Hirt v. City of Strongsville

2 Bupreme Court, US

Kk] LED

No. 92-1221 [| *!

2s —— —+— FG-4-3-1995

IN THE | DEFICE OF THE CLERK

f ahatiied ct Ae, al cl

Supreme Court of the United States

October Term, 1992

ARTHUR HIRT, ONALEE HIRT

and HOBART HIRT,

Petitioners,

vs.

CITY OF STRONGSVILLE, OHIO,

a Municipal Corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME CouRT OF OHIO

RESPONDENT'S BRIEF IN OPPOSITION

FRANK A. DIPIERO

Counsel of Record

SQUIRE, SANDERS & DEMPSEY

4900 Society Center

127 Public Square

Cleveland, Ohio 44114-1304

(216) 479-8500

Counsel for Respondent

Of Counsel

JOHN D. RYAN

Law Director

City of Strongsville

18688 Royalton Road

Strongsville, Ohio 44136

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

TABLE OF CONTENTS

I. The Issues Raised In The ‘Question

Presented’ By Petitioners Will Not Be

Before The Court If Certiorari Is

Granted

Il. This Is Not An Appropriate Case To

Address The Issue Presented

CONCLUSION

“ lil

.

TABLE OF AUTHORITIES

Cases

Agins v. Tiburon, 447 U.S. 255 (1980)............. 12

Columbia Oldsmobile, Inc. v. Montgomery, 56 Ohio

St. 3d 60, 564 N.E.2d 455 (1990), cert. denied, 115

CCE 6 ccc eset tek bosecssveses 11

Euclid v. Ambler Realty Co. 272 U.S. 365

ee ee cee eek es teen ease edscees 12

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987) ..... 13,14

Hadacheck v. Sebastian, 239 U.S. 394 (1915). ...... 12

Haverlack v. Portage Homes, Inc., 2 Ohio St. 3d 26,

rrr 14

In re Leas, 5 Ohio App. 3d 120, 449 N.E.2d 780

a.) | 14

Karches v. Cincinnati, 38 Ohio St. 3d 12, 526 N.E.2d

ee Sn 6 ns keh 06 0 6.06 60 0.0% 0 os 11,13

Keystone Bituminous Coal Assn. v. DeBenedictis,

re 12

Lucas v. South Carolina Coastal Council, 505 U.S.

— 120 L. Ed 2d 798, 112 S. Ct. 2886

ek ea ee eb 6a a ee 9,10,11,12

McKee v. Akron, 176 Ohio St. 282, 199 N.E.2d 592

NEO re 14

Miller v. PPG Indus., 48 Ohio App. 3d 20, 547

N.E.2d 1216 (Pickaway County 1988)........... 14

Negin v. Board of Bldg. and Zoning Appeals, 69

Ohio St. 2d 492, 433 N.E.2d 165 (1982).......... 14

aa

iv.

Penn Central Transp. Co. v. New York City, 438

Fs Be CRO ks 465 5s BV Kane eR Oe eee 11,12

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

ee ee ee re era ne ep oe 10

State, ex rel. Killeen Realty Co. v. East Cleveland,

169 Ohio St. 375, 160 N.E.2d 1 (1959) .......... 13,14

State, ex rel. Pitz v. Columbus, 56 Ohio App. 3d 37,

564 N.E.2d 1081 (Franklin County 1988) juris.

denied, 41 Ohio St. 3d 729 (1989)............... 14

No. 92-1221

Supreme Court of the United States

October Term, 1992

ARTHUR HIRT, ONALEE HIRT

and HOBART HIRT,

Petitioners,

vs.

CITY OF STRONGSVILLE, OHIO,

a Municipal Corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME CouRT OF OHIO

RESPONDENT’S BRIEF IN OPPOSITION

OPINIONS BELOW

On January 12, 1989, Petitioners filed a complaint

for declaratory and injunctive relief, and relief under 12

U.S.C. $1983, in the Court of Common Pleas, Cuyahoga

County, Ohio, against the City of Strongsville, Ohio

(“City”). Petitioners sought a declaration that the

zoning then existing on their property was unreasonable,

2

arbitrary and unconstitutional. After hearing evidence on

April 16, 1990, the trial court issued its Findings of Fact,

Conclusions of Law and Judgment Entry on or about

June 1, 1990, wherein it held that the zoning on the

property at the time of trial was invalid. The court

ordered the City to enact new zoning legislation to

permit the development contemplated by The National

Land Development Company (‘‘National Land’’), a

developer which had an interest in Petitioners’ property

(Petitioners’ Appendix C).

On May 17, 1992, the Eighth District Court of

Appeals, Cuyahoga County, Ohio, reversed and entered

judgment for the City (Petitioners’ Appendix B). The

Court of Appeals ‘‘disagree[d]’’ with the trial court’s

conclusion that use of the property as zoned at the time

of trial was not economically feasible, finding that, at

most, Petitioners established their property could not be

as profitably developed as National Land had hoped

(Petitioners’ Appendix at 6a, 10a). Consistent with

longstanding precedent of this Court and of the Ohio

Supreme Court, the Court of Appeals held that even if

the ordinance at issue prevented the most profitable use

of the property, such a consequence, in itself, is

insufficient to invalidate the ordinance (Petitioners’

Appendix at 10a). Further, in response to Petitioners’

assertion that the existing zoning was unreasonable,

arbitrary and confiscatory, the Court of Appeals held

that ‘‘quite the contrary affirmatively appears from the

record”’ (Petitioners’ Appendix at 9a).

The Ohio Supreme Court overruled Petitioners’

motion for an order directing the Court of Appeals to

certify its record (Petitioners’ Appendix A).

3

STATEMENT OF THE CASE

Petitioners own two contiguous parcels of property

comprising 42.6 acres of land (‘‘the Hirt property’’) in

Strongsville, Ohio. The property fronts on Royalton

Road (a five-lane highway), 0.7 miles to the west of an

interchange with a major interstate highway

(Interstate 71) (Tr. at 20, 54). At the time this action was

commenced, the property was zoned RI-75, which limited

development to single-family dwellings and certain public

service uses (Petitioners’ Appendix D). A single-family

home owned by Petitioner Hobart Hirt is situated on one

of the parcels comprising the Hirt property. The other

parcel is vacant (Tr. at 149, Exhibit 1).

In late 1987 and early 1988, National Land, which is

not a party to this action, entered into contracts to

purchase the Hirt property, contingent upon it being

rezoned from RI-75 to multi-family residential (Tr. at 20-

21). In April 1988, National Land filed an application for

a change in zoning on the property from RI-75 to the

Multi-Family 1 (RMF-1) classification (Tr. at 22).

National Land proposed to construct a multi-family

housing and apartment complex on the property (Tr. at

22-23). Strongsville’s City Council unanimously rejected

the proposed zoning change ordinance at its meeting on

December 5, 1988 (Tr. at 28). The complaint was filed on

January 12, 1989.

On January 30, 1990, the trial court entered an

agreed order finding that the RI-75 zoning, reasonable

and lawful at the time the zoning was established, was

no longer reasonable due to changes in land use and

zoning in the area near the property (Petitioners’

Appendix D).' The Hirt property was rezoned to the OB

(Office Building) classification on March 27, 1990 (Tr. at

167-68).

There is ample evidence in the record demonstrating

that Council's decision to adopt the OB zoning

classification was properly supported by relevant land

use planning criteria. Council’s decision was based on

recommendations emanating from lengthy deliberations

of various committees, boards and commissions

responsible for zoning issues, and the underlying data

considered by those bodies. Those deliberations had

begun months before the complaint was filed.

4

At trial, Robert C. Hill, Strongsville’s City Planner

since 1960, testified that he aided in the preparation of

the City’s 1968 Comprehensive Master Plan, which

chartered for a period of 20 years the City’s future

development plans (Tr. at 163-64). As early as 1972, on

two occasions, Mr. Hill recommended the Hirt property

be rezoned for office use (Tr. at 171).

Beginning in August 1988, Mr. Hill and other City

officials reviewed the 1968 Comprehensive Master Plan

and began formulating recommendations regarding how

the plan should be revised and updated (Tr. at 164-65).

After more than a year of review, on September 26, 1989,

the Master Plan Review Committee recommended that

the Hirt property be rezoned for office use (Tr. at 165-

66). On December 14, 1989, the City Planning

‘One such change was the rezoning of a 22 acre parcel immediately

east of the Hirt property to ‘Office Building’’ and the construction of

a 120,000 square foot office building for the Central Reserve Life

Insurance Company (Tr. at 170). In addition, longstanding plans for

the building of a large shopping mall across Royalton Road and just

to the east of the Hirt property had been formalized and were moving

forward, as evidenced by the developers’ submission of an

application for development of that property (Tr. at 195).

5

Commission also recommended that the Hirt property be

rezoned to office building use (Tr. at 167-68). These

recommendations were based on relevant data submitted

to the committees throughout the course of the review

period (referenced in the City’s trial Exhibits A-L, Tr. at

220). The Hirt property was rezoned to the OB

classification in March 1990, eighteen months after

review of the 1968 Comprehensive Master Plan had

begun.

Mr. Hill testified that the rezoning of the property to

office use was an appropriate reasonable use for that

property. He concurred with Council’s view that the

property is located in a strategic and vital area of the

City. The location of Interstate 71 to the east of the

property creates the greatest potential of any area in

Strongsville for a business hub (Tr. at 168-69). City

officials concluded that the construction by Central

Reserve Life Insurance Company of a 120,000 square

foot office building headquarters to the immediate east

of the Hirt property will generate and attract similar

development (Tr. at 168-69).

The immediate vicinity of the Hirt property is

primarily dedicated to office development, including

a Kaiser Health Care facility, a bank, and an executive

office park. The construction of a_ state-of-the-art

shopping mall across the street and just to the east of

the Hirt property, which development will include

385,000 square feet of office space area, also is expected

to attract office building development to the Hirt

property (Tr. at 168-70, 175, 180-81).

Since 1987, approximately 200,000 square feet of

new Office development has occurred in Strongsville—a

strong indicator to City officials of the viable office

market in Strongsville (Tr. 175). The Hirt property is

6

considered by the City planners to be on the future

business corridor of Strongsville (Tr. at 179), and

constitutes an _ attractive location for continued

development of corporate office space or multi-tenant

offices (Tr. at 184-85). It is the judgment of

Strongsville’s officials that the Hirt property is the

prime area within Strongsville for significant office

building development into the future (Tr. at 185).

While Strongsville’s Master Plan Review Committee

considered multi-family development for the Hirt

property, it rejected such a use and _ instead

recommended office use development. In addition to the

other information analyzed during its review of the

Master Plan, the Committee viewed the future business

office development potential generated by the nearby

presence of Central Reserve Life Insurance Company, as

well as the availability and development of other

apartment units elsewhere, as significant (Tr. at 185-86,

200).

At trial, William Gould, an architect and city planner

specially hired by the City to review the Hirt property

and this zoning issue (Tr. at 210), also testified. Mr.

Gould explained that communities such as Strongsville

develop their zoning from a master plan and that

Strongsville had demonstrated a good history of

planning in the past by preparing a comprehensive plan

which designated the area where the Hirt property is

located as the “Town Center” (Tr. at 212-13). Based on

his comprehensive review and study, Mr. Gould

recommended to the City that it was more appropriate to

rezone the Hirt property for office use rather than multi-

family development. The Hirt property is “‘the last large

piece of undeveloped land in the Town Center area,’’ and

7

for future planning of the City, office use development

would be the optimal use to promote the concept of a

Town Center (Tr. at 213).

Petitioners ignore the foregoing evidence in an

attempt to convince this Court that the City had no

basis to conclude that office use was a reasonable zoning

classification for the Hirt property. The lengthy

deliberation on these issues by the City Planner, the

Master Plan Review Committee, the Planning

Commission and City Council, and the vast experience of

those persons and bodies, amply demonstrated otherwise

to the Eighth District Court of Appeals.

Despite Petitioners’ suggestion that they have been

denied ‘‘all economically viable use of their property,”

the actual evidence ‘‘belies this contention’ (Petitioners’

Appendix at 10a).? Each of Petitioners’ witnesses who

testified on this topic admitted that their testimony

was limited to the economic viability of developing a

Class A, multi-tenant, speculative office building on the

Hirt property in the near future (Tr. at 48, 83-84, 104-

05). None of Petitioners’ witnesses testified that all

other potential uses permitted under the OB

classification were economically infeasible (Petitioners’

Appendix at 18a-19a).

? The Petition itself reveals that Petitioners have not been deprived of

all economic use of their property. Petitioners’ “Question Presented, ”

for example, suggests denial of ‘‘the reasonable economic use of the

property’ (Petition at I), while elsewhere Petitioners frame this case

in terms of their purported loss of ‘‘an economically viable use of the

property."’ (id. at 10 n.4), or of their inability to ‘economically

develope| |’ the property (/d. at 6, 7).

*For example, Donald Lyden testified to the limited scope of

Petitioners’ presentation at trial as follows:

(Footnote continued on following page.)

8

There is nothing about the Hirt property that would

not physically support an office building for a primary

tenant (Tr. at 184-85). Appellees’ witnesses also agreed

that from a traditional planning perspective, office use is

a reasonable use of this land (Tr. at 79).

Finally, there was no testimony or finding that the

property was rendered ‘‘valueless’’ by reason of the

zoning ordinance at issue. None of the witnesses testified

about the relative market values of the Hirt property as

subject to multi-family, office building, or any other

zoning classification.

(Footnote continued from preceding page.)

Q. Mr. Lyden, it is your opinion then, the speculative

multi-tenant Class A office facility should not be built on this

piece of property; is that right?

A. Yes, sir.

Q. And your definition of a Class A building, that includes

what, a fitness center?

Yes.

Conference facility?

Yes.

Food service?

Yes.

You called it, I believe, a showcase property?

. Yes.

(Tr. at 104-05).

D>O>O>

>

a i

9

REASONS FOR DENYING THE WRIT

I. The Issues Raised In The ‘‘Question Presented”

By Petitioners Will Not Be Before The Court If

Certiorari Is Granted.

The record is clear that Petitioners did not prove,

nor did they attempt to prove, that the city’s OB zoning

classification as applied to their property denied them all

economically viable use of the land. Nor did they attempt

to show that their land was rendered valueless by reason

of the OB zoning ordinance. At most, Petitioners

established that the land could most profitably be

developed with a multi-family apartment complex, and

that it was not economically feasible to construct a

‘“‘showcase”’ office building on their land. Petitioners did

not establish that other uses permitted under the OB

zoning classification could not be economically developed

on the property. Petitioners presented no evidence

whatsoever that the value of the land itself was

affected—let alone adversely affected—by reasons of the

adoption of the OB zoning classification by Strongsville’s

City Council.

For these reasons and others described below, this

Court’s decision in Lucas v. South Carolina Coastal

Council, 505 U.S. _____, 120 L. Ed. 2d 798, 112 S. Ct.

2886 (1992), would not have affected the manner in

which the Court of Appeals analyzed _ the

constitutionality of the ordinance at issue, nor did the

announcement of that decision require the Ohio Supreme

Court to review the Court of Appeals’ holding.

Petitioners cannot demonstrate on this record that the

Court of Appeals’ decision, or the Ohio Supreme Court's

refusal to review that decision, was contrary to anything

stated in Lucas.

10

As recognized by Petitioners (Petition at 13 n.5),

Lucas relied on this Court’s Fifth Amendment Taking

Clause jurisprudence since Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393 (1922), when it held that if a newly

enacted land use regulation deprived a property owner of

all economically beneficial or productive use of the land,

compensation was required ‘‘without case-specific inquiry

into the public interest advanced in support of the

restraint.’’ Lucas, 120 L. Ed. 2d at 812. If property

owners cannot demonstrate that application of the

challenged land use regulation rendered their property

valueless, then the owners cannot take advantage of the

“categorical treatment’’ accorded the owner in Lucas. In

such situations, the tests articulated in this Court’s

regulatory takings cases, none of which were overturned

by Lucas, continue to apply. Jd. at 815 n.8.

This case in no manner resembles Lucas. First, the

South Carolina Beachfront Management Act at issue in

Lucas prohibited the building of any permanent

habitable structure on Lucas’ property. Jd. at 807.

Strongsville’s OB zoning classification is not, of course,

so severe. The Hirt property actually was up-zoned from

RI-75 to OB, and the single-family home on Petitioner

Hobart Hirt’s property continues to be occupied.

Second, at the time Lucas purchased his land, there

were no regulations prohibiting the development he

envisioned for the property. Jd. at 808. Subsequent to

Lucas’ purchase, the Beachfront Management Act was

adopted, preventing the development activity he

proposed. Here, the zoning ordinances which prohibited

multi-family development were in effect since the

adoption of the City*s 1968 Comprehensive Master Plan,

well before National Land targeted the Hirt property for

development (Petition at 4-5; Tr. at 154).

11

Finally, it was found in Lucas that application of the

Beachfront Management Act to Lucas’ property

rendered his property ‘‘valueless.’’ Lucas, 120 L. Ed. 2d

at 807. There is no finding in this case that application of

the OB zoning classification to the Hirt property

rendered that property valueless. There is simply no

evidence in the record that ‘‘the last large undeveloped

piece of land in [Strongsville’s] town center”’ (Petitioners’

Appendix at 9a) is devoid of any value—including all

market value and resale potential—as was the case with

Lucas’ property. Lucas, 120 L. Ed. 2d at 824 (Kennedy,

J., concurring).

Lucas reaffirmed that if a property owner suffers

less than a total loss of economically productive use of

his land, then the test of constitutionality articulated in

Penn Central Transp. Co. v. New York City, 438 U.S. 104

(1978), continues to apply. Lucas, 120 L. Ed. 2d at 815

n.8. The Penn Central test is the basis of the Ohio

rulings, challenged here by Petitioners, requiring owners

contesting the constitutionality of a zoning regulation to

“demonstrate ... 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”’ in order to

prevail. Columbia Oldsmobile, Inc. v. Montgomery, 56

Ohio St. 3d 60, 62, 564 N.E.2d 455, 457 (1990), cert.

denied, 115 L. Ed. 2d 1022 (1991); Karches v. Cincinnati,

38 Ohio St. 3d 12, 19, 526 N.E.2d 1350, 1357 (1988). See

Penn Central, supra, 438 U.S. at 125 (‘in instances in

which a state tribunal reasonably concluded that ‘the

health, safety, morals, or general welfare’ would be

promoted by prohibiting particular contemplated uses of

land, this Court has upheld land-use regulations that

12

destroyed or adversely affected recognized real property

interests.’’) (citations omitted). See also Agins ov.

Tiburon, 447 U.S. 255, 260-61 (1980) (“Although no

precise rule determines when property has been taken,

the question necessarily requires a weighing of

private and public interests.’’) (citation omitted); Euclid

uv. Ambler Realty Co., 272 U.S. 365, 391 (1926).

As noted, the Eighth District Court of Appeals held

that the OB zoning ordinance did not deny Petitioners

the economically viable use of their land and that the

ordinance substantially advanced legitimate government

interests (Petitioners’ Appendix at 6a, 9a-10a). The court

also held that “ ‘[t}he mere fact that one’s property can

be put to a more profitable use does not, in itself,

establish’ "’ the owners’ entitlement to relief (Petitioners’

Appendix to 10a). Because the Court of Appeals

properly applied the well-settled legal standards

employed in this Court and by Ohio courts for decades to

determine the constitutionality of zoning ordinances, and

because Lucas did not modify that settled law in cases in

which the economic impact on the property is less than

total, the announcement of the Lucas decision did not

create the need for the Ohio Supreme Court to review the

Court of Appeals’ ruling, and certiorari need not be

granted here.

‘This holding is consistent with Penn Central, supra, in which it was

confirmed “that diminution in property value, standing alone,

can{not] establish a ‘taking.’ ’’ 438 U.S. 104 at 131; See also Keystone

Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470 (1987); Euclid

v. Ambler Realty Co., 272 U.S. 365 (1926); Hadacheck v. Sebastian,

239 U.S. 394 (1915).

13

II. This Is Not An Appropriate Case To Address

The Issue Presented.

The Petition should also be denied because

Petitioners ask this Court to render an advisory opinion.

Petitioners seek for this Court to instruct the Ohio

Supreme Court how it should rule if it ever considers a

case in which owners pray for damages for the denial of

the use of their property occasioned by application of a

zoning ordinance which advances legitimate government

interests. As established above, that question cannot be

considered on this record, given that Petitioners have not

established the “elimination of economic usefulness’’

which is the foundation of the question they present.

The issue raised in Petitioners’ ‘‘Question Presented”’

has not been squarely before the Ohio Supreme Court

since this Court's ruling in First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S. 304

(1987), in which it was held that a landowner must

receive compensation if a land use regulation deprived

the owner of all use of its property, even if the

deprivation was temporary. Jd. at 318. The Ohio

Supreme Court did recognize in Karches, supra, that

First English may have entitled the property owners to

damages ‘for the taking that occurred before the

ordinance was invalidated” in that case, but this issue

was not considered because the property owners had not

appealed the trial court’s denial of their claim for

damages. 38 Ohio St. 3d at 21, 526 N.E.2d at 1359. It is

instructive, however, that the Ohio Supreme Court did

not rely on any of the cases cited in the Petition to reject

summarily the viability of such a claim.°

*Contrary to Petitioners’ assertion, the Ohio Supreme Court has

recognized that land use regulations may affect a taking if the

regulations go too far. See, e.g. State ex rel. Killeen Realty Co. v.

(Footnote continued on following page.)

14

Finaliy, the Ohio Court of Appeals’ cases cited at

page 15 of the Petition failed to award compensation to

the landowners not because there was no “physical

intrusion,” as Petitioners suggest, but because no

“takings” had occurred under well-settled principles

applied consistently with this Court’s decisions.*

(Footnote continued from preceding page.)

East Cleveland, 169 Ohio St. 375, 380, 160 N.E.2d 1, 5 (1959)

(“At some undefinable point, regulation of property shades into

taking of property, which must be compensated. ...'"’); Negin

v. Board of Bldg. and Zoning Appeals, 69 Ohio St. 2d 492,

497, 433 N.E.2d 165, 169 (1982) (‘The rendering of such a lot

useless for any practical purpose [by application of a zoning

ordinance] goes beyond mere limitation of use and becomes a

confiscation.”’); McKee v. Akron, 176 Ohio St. 282, 285, 199 N.E.2d

592, 594 (1964) (‘Physical displacement is not always necessary. A

taking may also be found where it is clear that the injury sustained

by a person differs substantially in kind from that sustained by

others in the neighborhood, even though there has been no physical

displacement."’), overruled on other grounds, Haverlack v. Portage

Homes, Inc., 2 Ohio St. 3d 26, 442 N.E.2d 749 (1982).

There is nothing to indicate that the Ohio Supreme Court, when

it directly considers the question posited here by Petitioners, would

ignore First English’s directive to award compensation for the

temporary period of time, prior to judicial invalidation, during which

an unconstitutional regulation burdened the property, or for the

permanent taking which would result if the government refused to

change the regulation after it is found to be unconstitutional.

* See State, ex rel. Pitz v. Columbus, 56 Ohio App. 3d 37, 41-42, 564

N.E.2d 1081, 1086 (Franklin County 1988) (court recognized that

there ‘‘need not be physical taking . .. or even dispossession”’ in order

for a ‘‘taking™’ to have occurred, but decline in market value, standing

alone, is “not enough to constitute a ‘taking’ which would require

compensation”), juris. denied, 41 Ohio St. 3d 729 (1989); Miller v. PPG

Indus., 48 Ohio App. 3d 20, 23, 547 N.E.2d 1216, 1219 (Pickaway

County 1988) (owner's third assignment of error, which alleged that

the trial court erred when it found that a land use regulation ‘“‘which

decreases land value is not a ‘taking’ under ... the Ohio

Constitution,” overruled); Jn re Leas, 5 Ohio App. 3d 120, 123, 449

N.E.2d 780, 784 (Jefferson County 1981) (‘Proof that [owner's]

property was damaged is not in itself enough to entitle her to

compensation ).

15

CONCLUSION

This is a traditional zoning dispute in which the

Petitioners asserted in the trial court that their property

had been unduly burdened by the land use legislation at

issue, and sought to have that legislation declared

unconstitutional. Petitioners did not establish that their

land was rendered valueless by reason of the zoning

ordinance, or that they were deprived of all economic use

of the property. Thus, the Eighth District Court of

Appeals properly employed a balancing test in which

diminution of the value (or profit potential) of the

property was relevant but not controlling, and in which

the strength of the public purpose underlying the

ordinance was considered. Such an approach is fully

consistent with this Court’s jurisprudence on_ this

subject. It is respectfully submitted, therefore, that the

petition for writ of certiorari should be denied.

Respectfully submitted,

FRANK A. DiPIERO

Counsel of Record

SQUIRE, SANDERS & DEMPSEY

4900 Society Center

127 Public Square

Cleveland, Ohio 44114-1304

(216) 479-8500

Counsel for Respondent

Of Counsel

JOHN D. RYAN

Law Director

City of Strongsville

18688 Royalton Road

Strongsville, Ohio 44136