Petition for Writ of Certiorari — Scheetz v. Village of Seville

\ Supreme Court, u.s.

| FILED

961650 APR 15 1997

CASE NO.

OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

(October 1996 to October 1997 Term)

STANLEY D. SCHEETZ, TRUSTEE OF THE

SEVILLE CORPORATE PARK SUBDIVISION

TRUST U/A DATED DECEMBER 1, 1988

Appellant

v.

THE VILLAGE OF SEVILLE, OHIO

Appellee

ON PETITION FOR WRIT OF CERTIORARI TO

THE MEDINA COUNTY APPEALS COURT,

NINTH JUDICIAL DISTRICT OF OHIO

PETITION FOR WRIT OF CERTIORARI

Jeffrey T. Witschey, Esq., Ohio reg. #0059151 (of

record)

Frank J. Witschey, Esq., Ohio reg. #0059171

WITSCHEY & WITSCHEY CO., L.P.A.

CommonWealth Square

300 N. Cleveland-Massillon Road, Suite 14

Akron, Ohio 44333

(330) 665-5117

Fax No. (330) 665-7615

COUNSEL FOR APPELLANT, STANLEY OD.

SCHEETZ, TRUSTEE

a

QUESTION PRESENTED FOR REVIEW

Is it proper for Ohio Courts to refuse to

recognize an Ohio private property owner’s United

States Constitution, Fifth Amendment “takings” rights

as pronounced by the United States Supreme Court

and instead recognize only Ohio State Constitutional

“takings” rights as pronounced by the Ohio Supreme

Court when the Ohio “taking” rights offer the private

property owner less constitutional protection than the

Federal “takings” rights?

ii

TABLE OF CONTENTS

Page

1. QUESTION PRESENTED FOR REVIEW....... ii

2. TABLE OF CITED AUTHORITIES............... Vv

Be Fe Se iicccindittnataiicatiattoncittecessceic vii

4. CITATIONS OF REPORTS OF OPINIONS

RE Gr itietcicitiinatiabitinibddbdicteniiiectecicd viii

Pi cucnncicisdicentnisicapiadniemnaeaiaiiiiebaieeibe seas ix

6. STATUTORY PROVISIONS CONFERRING

JURISDICTION TO THE UNITED STATES

SUPREME COURT TO REVIEW THE ORDER

BOG GIF 6 leks cncistniseisaniveiaienkcnieeinanbddabhcguittnctsibekd ix

7. CONSTITUTIONAL PROVISIONS, STATUTES,

ETC. INVOLVED IN THE INSTANT CASE AND SET

ORT VIR Fito nnincnncinssronincasscvniasnntaanvisminiess Xx

ill

ls it proper for Ohio Courts to refuse to recognize

an Ohio private property owner’s United States

Constitution, Fifth Amendment “takings” rights

as pronounced by the United States Supreme

Court and instead recognize only Ohio State

Constitutional “takings” rights as pronounced by

the Ohio Supreme Court when the Ohio “takings”

rights offer the private property owner less

constitutional protection than the Federal

“takings” rights?

A. The Medina County Common

Pleas Court, the Medina County

Court of Appeals and the Ohio

Supreme Court have decided an

important constitutional question in

a_way that conflicts with relevant

decisions of the U.S. Supreme

B. Application of the Gerijo and

Central Motors holdings to the

instant case offends, ignores, and

undermines the basic principals of

U.S. Federal law preemption and

U.S. __ Constitution _ supremacy

thereby depriving Ohio property

owners of their rights quaranteed

by the U.S. Constitution......... 12

Fe PPR I is isccncenesssveressueniéontese 16

1V

TABLE OF CITED AUTHORITIES

A. CASES

1. Agins v. Tiburon, 447 U.S. 255, 100 S. Ct.

2138, 65 L.Ed. 2d 106, (1980)

Lebesevneseens eae nae eee Gel MD Gpigiie © By bay Oa, TO

2. Arnold v. City of Cleveland, 67 Ohio St. 3d

FO, (TGS)... inc svecescossveces sce secs ste EHS, SO

3. Central Motors Corporation v. City of

Pepperpike, 73 Ohio St. 3d 581, 653 N.E.2d

639, (1995)

vec Pages 4, 5, 6, 7, 8,9,10,12,13,14,15,16

4. Chicago, B. & Q. R. Co. v. Chicago 166

U.S. 226, 239, 17 S.Ct. 581, 585, 41 L.Ed.

979, (1897)

een yid sos keede Riker eh vend indienne

5. Claflin v. Houseman, 93 U.S. 130, 23 L.Ed.

833; (1876)

a jabed Daacae) ease katie ee aie wis oe ee

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

388, 47 S. Ct. 114, 118, 71 L. Ed. 303,

311, (1926)

7. Fidelity Federal Savings & Loan Association

v. DeLaCuesta, 458 U. S. 141, 152-153,

102 S. Ct. 3014, 3022, (1982)

8. Gerijo, Inc. v. Fairfield, 70 Ohio St.3d 223,

638 N.E.2d 533, (1994)

9.

10.

at

12.

12

16.

17.

L.Ed. 23, (1824)

(1979)

App. 3d 178, 180-81, (1983)

....Pages 3,4,5,7,8,9, 10,11,12,13,14,15,16

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6

vesevevece ces MG 98

Hines v. Davidowitz, 312 U.S. 52, 61 S. Ct.

399, 85 L.Ed. 581, (1941)

wens NG big Lacee sober eh whe Caen ake Lap gaa te

Kaiser Aetna v. United States, 444 U. S.

164, 100 S. Ct. 383, 62 L. Ed.2d 332,

«scssevsee.Pages 5,10,11,14

Love v. Motorist Mut. Ins. Co., 86 Ohio App.

3d 394, 620 N.E.2d 987, (1993)

cinouivinw sip stu 24 Mi iacom A oe Wea ats esa

_Lucas v. South Carolina Coastal Council

905 U.S. 1003, 112 S.Ct. 2886, 120 L. Ed.

2d 798, (1992)

52 Vay wh ea Neue Pages 3,4,5,6,10,11,14

. Martin v. Hunters Lessee, 14 US. (1

Wheat) 304, 4 L. Ed. 833, (1816)

. Penn Central Transportation Co. v. New

York City, 438 U.S. 104, 98 S. Ct. 2646, 57

L. Ed. 2d 631, (1978)

scivabavn cua 019 Caen weuisp ah chap] ks cael a

Society National Bank v. Kienzle, 11 Ohio

sisccececenss Qe 13

Testa v. Katt, 330 U.S. 386, 67 S. Ct. 810,

91 L.Ed. 967, (1947)

Vi

Page 13

18. Thacker v. Bd. of Trustees of Ohio State

Univ. (1971), 31 Ohio App. 2d 17, 298

N.E.2d 542, (1971)

RP RPT eer Un ats ROR ....Page 7

B. STATUTES

1. United States Constitution Article VI Clause

2 (Supremacy Clause)

wish nasi einneoes Sas haduteaee Pages xi, 7, 12, 13,15

2. United States Constitution Fifth Amendment

15s paw bea ghia testes Ore reread Pages xi, 5,6,9,10

3. United States Constitution Fourteenth

Amendment

..s.s...Pages xii, 12

APPENDIX INDEX

FINDINGS AND ORDER OF MEDINA COUNTY

COMMON PLEAS COURT DENYING PLAINTIFF'S

MOTION FOR SUMMARY JUDGMENT AND

DENYING DEFENDANT'S MOTION FOR

SUMMARY JUDGMENT (February 17, 1995)

140 b6e.sna-aed ane dah von Geb SA Ags WERE Rae REn eee naa EXHIBIT A

FINDINGS AND ORDER OF MEDINA COUNTY

COMMON PLEAS COURT ib ssncindiur 11, 1995)

vt abeiasetimnsseee er Sai ..EXHIBIT B

DECISION AND JOURNAL ENTRY OF THE

MEDINA COUNTY COURT OF APPEALS (August

BN, 4D yun vaiejaviocaoyheumucsaue nee EXHIBIT C

Vii

ENTRY OF THE SUPREME COURT OF OHIO

DENYING CERTIORARI Saute 15, 1997)

CAAA a aaa hneaws hee Waa EIE i .. EXHIBIT D

TRIAL COURT TRANSCRIPT, PAGES 561, 580,

5, ET EE EEE EE Meer sg

BRIEF OF PLAINTIFF-APPELLANT FILED WITH

THE MEDINA COUNTY APPEALS COURT, PAGES

| PRY eer Oe Pep NE EA e mee |

BRIEF IN REPLY TO BRIEF OF APPELLEE,

PAGES 3 OIG 4... ci... esessseressescreeses RHO E

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANT, STANLEY OD. SCHEETZ,

TORS HES PIES acces cen as secon est sns exe cere eeet 09

CITATIONS OF REPORTS OF OPINIONS AND

ORDERS

1. Stanley Scheetz, Trustee v. Village of Seville,

Ohio Findings and Order filed February 17, 1995,

in the Court of Common Pleas, Medina County,

Ohio, Case No. 93 CV 1329, unreported.

2. Stanley Scheetz, Trustee v. Village of Seville,

Ohio Findings and Order filed September 11,

1995, in the Court of Common Pleas, Medina

County, Ohio, Case No. 93 CV 1329, unreported.

3. Stanley Scheetz, Trustee v. Village of Seville,

Ohio Decision and Journal Entry dated August

21, 1996, filed in the Medina County Court of

Appeals, Ninth Judicial District, Case No. 2482-

M, unreported.

Viil

4. Stanley Scheetz, Trustee v. Village of Seville,

Ohio Entry filed January 15, 1997 in the Supreme

Court of Ohio, Case No. 96-224 Stanley

Scheetz, Trustee v. Village of Seville, Ohio, 77

Ohio St. 3d 1516, 674 N.E. 2d 370 (1994).

CONCISE STATEMENT OF JURISDICTIONAL

BASIS

The order sought to be appealed from is the

Supreme Court of Ohio's Entry filed January 15,

1997, denying jurisdiction to hear the case and

dismissing the appeal as not involving any

substantial constitutional question. The last order

ruling on the merits of the case was the Stanley

Scheetz, Trustee v. Village of Seville, Ohio,

Decisions and Journal Entry dated August 21, 1996,

filed in the Medina County Court of Appeals, Ninth

Judicial District, Case No. 2482-M, unreported.

There is no order respecting rehearing or granting an

extension of time to file this Petition for a Writ of

Certiorari.

STATUTORY PROVISIONS CONFERRING

JURISDICTION TO THE U.S. SUPREME COURT

TO REVIEW THE ORDER IN QUESTION

1. Rule 10(a)(b) and (c) of the U.S. Supreme Court

Rules.

2. Fifth Amendment to the U.S. Constitution.

3. Fourteenth Amendment to the U.S. Constitution.

4. Article VI Clause 2 of the United States

Constitution.

iX

CONSTITUTIONAL PROVISIONS, STATUTES,

ETC. INVOLVED IN THE INSTANT CASE AND SET

OUT VERBATIM

1. United States Constitution Article VI Clause 2

Supremacy Clause:

This Constitution, and the Laws of the

United States which shall be made in

Pursuance thereof: and all Treaties

made, or which shall be made under

the Authority of the United States.

shall be the Supreme Law of the

Land; and the Judges in every State

shall be bound thereby, any Thing in

the Constitution or Laws of any State

to the Contrary notwithstanding.

2. United States Constitution Fifth Amendment:

No person shall be held to answer for

a Capital, or otherwise infamous crime,

unless on a presentment or indictment

of a Grand Jury, except in cases

arising in the land or naval forces, or

in the Militia, when in actual service in

time of War or public danger; nor shall

any person be subject for the same

offense to be twice put in jeopardy of

life or limb; nor shall be compelled in

any criminal case to be a witness

against himself, nor be deprived of

life, liberty, or property, without due

| process of law; nor shall private

property be taken for public use.

without just compensation.

3. United States Constitution Fourteenth

Amendment:

All persons born or naturalized in the

United States and subject to the

jurisdiction thereof, are citizens of the

United States and of the State

wherein they reside. No State shall

make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States: nor shall

any State deprive any person of life,

liberty, or property, without due

process of law; nor deny to any

person within its jurisdiction the equal

protection of the laws.

cli. sche app.mem-4

Xl

|. STATEMENT OF FACTS

Stanley Scheetz, Trustee of the Seville

Corporate Park Subdivision Trust (Mr. Scheetz) is

the owner of certain undeveloped land (Undeveloped

Land) in the Village of Seville, Ohio (Appellee). The

Undeveloped Land was zoned commercial according

to the Defendant's then applicable zoning code.’ Mr.

Scheetz, relying on the broad range of uses allowed

by the commercial zoning of the Undeveloped Land

purchased the Undeveloped Land on December 1,

1988 for $275,000. Mr. Scheetz then platted the

Undeveloped Land and immediately began

marketing the property for sale as commercial

property and investing money in_ infrastructure

improvements such as streets, waterlines and

sewers capable of handling a broad range of

commercial uses.”

On January 1, 1990, Appellee enacted a new

zoning ordinance (Zoning Ordinance). Just prior to

its enactment, a village council member added

language for a new zoning district into the Zoning

Ordinance entitled “Highway Service Commercial

District” (HSCD).* However, no change or

amendment was made to the zoning district map

(Zoning District Map) which designated the land to be

' This commercial zoning broadly allowed all commercial uses.

* As of trial, Mr. Scheetz had invested approximately $648,000

in infrastructure improvements and interest. Mr. Scheetz’

engineers estimated another $350,000 to complete the road

improvements.

* The language of the HSCD section strictly limited the use of

potential HSCD land to the following permitted uses: (a)

gasoline filling stations; (b) garage and automotive repair shops

(c) restaurants and eating places; (d) motels; (e) signs; (f)

parking and loading; and (g) accessory uses clearly incidental to

the above uses. These uses will be referred to herein as

“Highway Service Uses”.

included in each of the various zoning districts. Mr.

Scheetz Undeveloped Land remained commercial.

In 1992 the Zoning District Map was physically

changed at the insistence of one village council

member to change the zoning of the Undeveloped

Land from commercial to HSCD. However, this

change occurred without notice, without public

discussion or debate and without official action or

vote by Apeliee’s planning commission or council.

Except for a lot sold to Hardee’s Restaurants

(Lot No. 763), Mr. Scheetz has been unable to sell

any of the remaining Undeveloped Land in an arm's

length transaction for any Highway Service Uses and

has not been able to use the remainder of the

Undeveloped Property for any economically viable

use. Mr. Scheetz attempted to market, sell or use

the Undeveloped Property for Highway Service Uses,

but was unable to do so. Mr. Scheetz attempted to

obtain zoning amendments allowing commercial

uses that he once had, but was denied. Additionally,

he tried to obtain multifamily uses by amendments to

the Zoning Ordinance, but was again denied.

Because of the overly restrictive HSCD Zoning

applied to the Undeveloped Land without proper

legislative action, Mr. Scheetz has been unable to

recover his investment in the property.

On November 29, 1993, Mr. Scheetz filed his

Complaint for Declaratory Judgment and Money

Damages for the unconstitutional regulatory “taking”

of his property under the Ohio and United States

Constitutions. On September 6, 1994, Mr. Scheetz

filed his Amended Complaint requesting the Trial

Court issue its Declartory Judgment that the Zoning

Ordinance is unconstitutional and unlawful in general

and as it is applied to the Undeveloped Land under

both the Ohio and United States Constitutions. Mr.

Scheetz filed a motion for Summary Judgment on

i)

Peer dealt

Dra oak 4

ee Se Le ee va ery

October 25, 1994. In his Motion for Summary

Judgment Mr. Scheetz argued on pages 10 and 11

that the Trial Court apply the two part federal

disjunctive test as this Court set forth in Agins v

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

106, (1980) and Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L. Ed.

2d 798, (1992). Appellee filed a Counter Motion for

Summary Judgment and argued that the conjunctive

test set forth by the Ohio Supreme Court in Gerijo,

Inc. v. Fairfield, 70 Ohio St. 3d 223, 638, N.E.2d 533

(1994) should be applied instead of the federal test.

In his Memorandum in Opposition Mr. Scheetz again

argued on pages 3 and 4 as follows:

Mr. Scheetz’ argument is that the

Zoning Ordinance violated the Ohio

Constitution as applied to the

Undeveloped Property because the

Highway Service Uses are not

economically viable and do not

advance a ligitament governmental

interest. Gerijo, Inc. v. Fairfield, 70

Ohio St. 3d 223. The Zoning

Ordinance further violates the US.

Constitution because the Highway

Service Uses are not economically

viable or do not advance a ligitament

government interest. Agins v. Tiburon

(1980), 447 U.S. 255, 100 S. Ct. 2138,

65 L.Ed. 2d 106.

The Trial Court denied Mr. Scheetz’ Motion

for Summary Judgment and Appellees Motion for

Summary Judgment since material factual issues

existed. See Findings and Order marked as Exhibit

A of the Appendix. The Trial Court then conducted a

bench trial held on June 6 through June 9 and July 5,

1995. The pleaded declaratory judgment claims and

a procedural due process issue concerning the

unadopted zoning district map were tried.“

At trial, counsel for Mr. Scheetz argued that

the trial court apply this honorable Court’s holdings in

Lucas, 505 U.S. 1003, and Agins, 447 U.S. 255.

See pages 561, 580, 581 of the Trial Court transcript

marked as Exhibit E to the Appendix.

On September 12, 1995, the Trial Court filed

its final Findings and Order in favor of Appellee. The

Trial Court failed to apply the Lucus and Agins

decisions and instead applied the conflicting law

pronounced in the majority opinions of the Ohio

Supreme Court cases of Gerijo, Inc., 70 Ohio St. 3d

223, 638 N.E.2d 533 and Central Motors Corporation

v. City of Pepperpike, 73 Ohio St. 3d 581, 653

N.E.2d 639 (1995). See Findings and Order Marked

as Exhibit B to the Appendix.

On September 21, 1995 Mr. Scheetz filed his

appeal with the Medina County Appeals Court. Mr.

* The Zoning Ordinance was adopted in December of 1989, but

the Undeveloped Land remained in the regular commercial

zoning district according to the then existing zoning district

map. The zoning district map which classified Mr. Scheetz’

Undeveloped Land as HSCD property was not drafted until

1992. This zoning district map was never voted upon or enacted

with legislation. This suit was brought in November of 1993

approximately one year after the new zoning district map was

first created and Mr. Scheetz first discovered the change of

zoning on the Undeveloped Property. The trial court failed to

rule on the due process issues apparently refusing to apply

Ohio’s “discovery rule” to Ohio’s 2 year statute of limitations

regarding procedural deficiencies in the enactment of zoning

ordinances and apparently held that the procedural violation

occurred in December of 1989 when the Zoning Ordinance

adding the HSCD language was enacted without an updated

map. The procedural due process issue was therefore held to

have been barred by the applicable statute of limitations.

Scheetz argued in his appeal brief that the Trial

Court erred since it was bound to follow the U.S.

Supreme Court decisions which provided more

constitutional protection to Mr. Scheetz than the

Gerijo and Central Motors cases. See pages 8-10 of

Brief of Plaintiff-Appellant marked as Exhibit F to the

Appendix. The Appellee responded by arguing that

the Trial Court correctly applied the Gerijo and

Central Motors cases instead of Lucas and the Fifth

Amendment to U.S. Constitution because Lucas and

the Fifth Amendment of the U.S. Constitution only

provide for a remedy in cases where there is a

“complete taking”. In Mr. Scheetz’ Brief in Reply, Mr.

Scheetz argued that this position was void of merit

because:

(1) The outcome of the court’s

determination under the Federal

standard is not the issue on this

appeal. This appeal only concerns

whether the Federal disjunctive test

should have been used to determine

the outcome; (2) Lucas and the instant

case are in no way distinguishable

since both concern a regulatory taking

that left the owners lands

economically idie; (3) In _ neither

Central Motors nor Gerijo do the

majority opinions address the obvious

conflict between Ohio’s conjunctive

test and the Federal disjunctive test;

(4) In determining a “complete taking”

of property has occurred, the Federal

decisions require the court to consider

the property owner's “investment

backed expectations.” Lucas at 2903,

see e.g. Kaiser Aetna v. United States

(1979), 444 U. S. 164, 175. This

factor clearly weighs in Mr. Scheetz’

favor yet the Trial Court failed to

consider it; and (5) Lucas and the

Fifth Amendment to the US.

Constitution apply to all takings

cases! Mr. Scheetz has asserted the

same in his case throughout the

pleading, discovery and trial stages.°

See Pages 3 and 4 of Mr. Scheetz’

Reply Brief, marked as Exhibit G to

the Appendix.

On August 21, 1996 the Medina County

Appeals court denied Mr. Scheetz’ appeal on the

basis that it was bound to follow Ohio Supreme Court

Law instead of U.S. Supreme Court Law. The

Medina County Appeals Court stated on pages 3 and

4 of its opinion:

Rather than following the Ohio

Supreme Court's conjunctive tests,

requiring a challenger to prove both

elements, Scheetz asks us to follow

the federal disjunctive test, which

would require him to prove only one

element or the other. See Agins v.

Tiburon (1980), 447 U.S. 255, 260, 65

L.Ed. 2d 106, 112. This position, that

Ohio Courts should employ a

conjunctive test, was taken by the

concurring and dissenting opinions in

Cent. Motors Corp. v. Pepper Pike

(1995), 73 Ohio St. 3d 581, 588-590

(Wright, J., concurring in judgment

only), 590 (Pfeifer, J., dissenting).

* See, also, part IV of Mr. Scheetz’ Reply Brief marked as

Exhibit G to the Appendix.

/

7

:

;

:

3

:

The majority opinion in Central

Motors, however, reaffirmed that the

appropriate test in Ohio is the

conjunctive test set forth in the

syllabus of Gerijo, /d. at 584. We are

bound to follow the syllabus law of the

Ohio Supreme Court and have no

jurisdiction to reverse or modify it.

Love v. Motorist Mut. Ins. Co. (1993),

86 Ohio App. 3d 394, 400; Thacker v.

Bd. of Trustees of Ohio State Univ.

(1971), 31 Ohio App. 2d, 17, 21.

Therefore, the Trial Court did not err in

applying the Gerjo conjunctive test.

The first assignment of error is

overruled. See Decision and Journal

of the Medina County Court of

Appeals marked as Exhibit C to the

Appendix.

On October 4, 1996, Mr. Scheetz filed his

petition for Certiorari with the Ohio Supreme Court.

Mr. Scheetz again argued that the trial court, was

bound by the Supremacy Clause of the U. S.

Constitution to apply this honorable Court's decisions

instead of the lesser protections afforded in Gerijo

and Central Motors. See Memorandum In Support of

Jurisdiction of Appellant, Stanley D. Scheetz, Trustee

(filed with the Ohio Supreme Court), marked as

Exhibit H to the Appendix. The Ohio Supreme Court

filed its order on January 15, 1997 denying

jurisdiction to hear the case and dismissing the

appeal as not involving a substantial constitutional

question.®° See Entry of the Supreme Court of Ohio

° It is unclear how the Ohio State Supreme Court could have

dismissed the appeal as not involving a substantial constitutional

question. Since it rendered no opinion, this question remains

unanswered.

Denying Certiorari marked as Exhibit D to the

Appendix.

ll. QUESTION PRESENTED FOR REVIEW:

Is it proper for Ohio Courts to refuse to recognize

an Ohio private property owner’s United States

Constitution, Fifth Amendment “takings” rights

as pronounced by the United States Supreme

Court and instead recognize only Ohio State

Constitutional “takings” rights as pronounced by

the Ohio Supreme Court when the Ohio “takings”

rights offer the private property owner less

constitutional protection than the Federal

“takings” rights?

A. The Medina County Common

Pleas Court, the Medina County

Court of Appeals, and the Ohio

Supreme Court have decided an

important constitutional question in

a_ way that conflicts with relevant

decisions of the US. Supreme

Court.

The Medina County Appeals Court in the instant

case upheld the Trial Court’s application of the Ohio

Supreme Court’s recent holdings in Gerijo and

Central Motors since it stated that it was bound to

follow Ohio Supreme Court precedent instead of

United States Supreme Court precedent. In Gerijo

and Central Motors the Ohio Supreme Court has

decided an important federal question in a way that

conflicts with relevant and binding decisions of this

honorable Court.

In the instant case Mr. Scheetz alleged in his

complaint and argued throughout the course of trial

that the actions of the Appellee constituted an

unconstitutional “taking” of Mr. Scheetz’ property

under the Ohio Constitution and the Fifth

Amendment to the United States Constitution. There

is a substantial difference in the constitutional

protection afforded under each of these constitutions.

The Fifth Amendment of the United States

constitution states in pertinent part: “***nor shall

private property be taken for public use, without just

compensation.” This honorable Court, in interpreting

and applying this portion of the Fifth Amendment of

the U.S. Constitution, has offered substantially more

protection to property owners regarding “regulatory

takings” cases than the Ohio Supreme Court has

afforded property owners under the Ohio Constitution -

in its Gerijo and Central Motors cases. Because of

Gerijio and Central Motors, Ohio real property

owners, such as Mr. Scheetz, are not afforded the

benefits of their U.S. Constitutional rights as

pronounced by this Court in cases such as Lucas

and Agins.

In Gerijjio and Central Motors the Ohio

Supreme Court applied a conjunctive two part

analysis to decide the constitutional validity of zoning

regulations in Ohio. This two prong _§ analysis

requires the landowner alleging the “taking” to show

that the zoning classification denies his or her

property of its economic viability and does so without

advancing legitament government interests. Gerijo,

70 Ohio St. at 228, 638 N.E.2d 533 and Central

Motors, 73 Ohio St. at 584, 653 N.E.2d 639.’

” Additionally, under Ohio’s conjunctive test, Ohio property

owners are saddled with the burden of proving both elements

“beyond fair debate.” Gerijo at 229 and Central Motors at 584.

The Ohio Supreme Court has equated the “beyond a fair debate”

standard with the “beyond a reasonable doubt” standard applied

in criminal cases. The Central Motors Court stated on page 584

that:

***the party attacking the regulation must

establish, beyond fair debate, that the zoning

classification denies the owner an

10

SSR he Ne hm ee ee

Contrary to these decisions, this honorable Court

has held that a two part disjunctive test be applied

in analyzing a taking under the U. S. Constitution. In

other words, the regulation violates the U. S.

Constitution if it denies the property owner an

economically viable use of the land or it does not

substantially advance a legitament government

interest. Agins, 447 U.S. at 260 and, Lucas, 505

U.S. at 1016.

As part of the disjunctive test this honorable

Court has also provided additional protection for the

property owner by requiring the trial court consider

the landowner’s “investment backed expectations” in

deciding whether the regulated property has been

deprived of its economic viability. /d. at 1034, Kaiser

Aetna v. United States, 444 U.S. 164, 175, 100 S. Ct.

economically viable use of the zoned property,

and that the zoning classification fails to

advance a legitimate governmental interest.

Gerijo, Inc. v. Fairfield (1994), 70 Ohio St. 3d

223, 638 N.E. 2d 533, Syllabus. This Court

has stated that there is little difference

between the “beyond fair debate” standard,

and the “beyond a reasonable doubt”

standard. (emphasis added).

Ohio property owners must therefore prove their constitutional

rights by a criminal standard. There is no indication in any

federal case law that property owners must prove their

constitutional rights regarding the disjunctive federal test by a

criminal standard. Although Euclid v. Ambler Realty Co., 272

U.S. 365, 388, 47 S. Ct. 114, 118, 71 L. Ed. 303, 311, (1926)

indicates that a “beyond a fair debate” test is used, this

honorable Court has not likened this burden of proof to the high

burden of proof used in criminal cases. Again, the Ohio

Supreme Court has provided its property owners less

constitutional protection than is afforded to them under the U.S.

Constitution and this honorable Court’s holdings concerning the

same.

11

383, 390, 62 L. Ed. 2d 332 (1979), Penn Central

Transportation Co. v. New York City, 438 U.S. 104,

124, 98 S. Ct. 2646, 2659, 57 L. Ed. 2d 631 (1978).

The Gerijo and Central Motors decisions fail to

instruct trial courts in Ohio to considered the

landowner's “investment backed expectations” in

considering the economic viability prong of its test.

Mr. Scheetz did not receive the benefit of this part of

this Court's disjunctive federal test.

B. Application of the Gerijo and

Central Motors holdings to the

instant case offends, ignores, and

undermines the basic principals of

U.S. federal law preemption and

U.S. __ Constitution | supremacy

thereby depriving Ohio property

owners of their rights guaranteed

by the U.S. Constitution.

The Takings Clause of the Fifth Amendment

of the United States Constitution is applicable to the

states through the Fourteenth Amendment. Chicago,

B. & Q. R. Co. v. Chicago 166 U.S. 226, 239, 17

S.Ct. 581, 585, 41 L.Ed. 979 (1897). Additionally the

Supremacy Clause of the U.S. Constitution Article VI

Clause 2 states as follows:

This Constitution, and the Laws of

the United States which shall be

made in Pursuance thereof; and all

Treaties made, or which shall be

made under the Authority of the

United States, shall be the Supreme

Law of the Land; and the Judges in

every State shall be bound thereby,

any Thing in the Constitution or

Laws of any State to the Contrary

notwithstanding. (emphasis and

underlining added).

The Ohio Supreme Court holdings in Gerijo and

Central Motors and their application to the instant

case offend the Supremacy Clause of the US.

Constitution and well established holdings of this

honorable Court concerning the supremacy of U. S.

Federal law which were accurately noted by the Ohio

Supreme Court itself in Society National Bank v.

Kienzle, 11 Ohio App. 3d 178, 180-81, 463 N.E.2d

1261, 1264, (1983):

The Constitution, laws and treaties

of the United States are as much a

part of the law of every state as its

own local laws and constitution.

Their obligations is “*** imperative

upon the state judges in their official,

and not merely in private, capacities.

From the very nature of their judicial

duties they would be called upon to

pronounce the law applicable to the

case in judgment. They were not to

decide merely according to the

laws or constitution of the state.

but according to the constitution,

laws and treaties of the United

States -- ‘the supreme law of the

land’” Martin v. Hunter's Lessee

(1816), 14 U.S. (1 Wheat) 304, at 340-

341, 4 L. Ed. 833; Testa v. Katt

(1947), 330 U.S. 386, 67 S. Ct. 810,

91 L.Ed. 967. State courts have

both the power and duty to enforce

obligations arising under federal

law, unless Congress gives the

federal courts exclusive

jurisdiction. Claflin v. Houseman

(1876), 93 U.S: 190, 23 L.Ed. 833;

Testa v. Katt (1947), 330 U.S. 386, 67

S. Ct. 810 91 L.Ed. 967. State courts

are bound then to give effect to

federal law when it is applicable,

and to disregard state law when

there is _a_ conflict. Gibbons v.

Ogden (1824), 22 U.S. (9 Wheat.) 1,

6 L.Ed. 23; Hines v. Davidowitz

(1941), 312 U.S. 52, 61 S. Ct. 399, 85

L.Ed. 581. (emphasis and underlining

added).

Preemption occurs when state regulation

conflicts with or is incompatible with Federal law.

Fidelity Federal Savings & Loan Association v.

DeLaCuesta, 458 U. S. 141, 152-153, 102 S. Ct.

3014, 3022, (1982). Because Lucas, Agins, Kaiser,

and Penn Central provide the property owner with

more constitutional protection than is afforded by the

Ohio Supreme Court's decisions in Gerijo and

Central Motors, the U. S. Constitution and this

honorable Court's decisions should preempt the

conflicting lesser protections given by the Ohio

Supreme Court. The Ohio Supreme Court, itself, in

Arnold v. City of Cleveland, 67 Ohio St. 3d 35, 42,

616 N.E.2d 163, 169, (1993) stated:

In the areas of individual rights and

civil liberties, the United States

Constitution, where applicable to

the state, provides a floor below

which state court decisions may

not fall. (emphasis addea).

The Ohio Supreme Court further stated in Arnold:

“*** states may not deny individuals or groups

the minimum of protection mandated by the

Federal Constitution”. /d. at 42, 616 N.E.2d at 169.

14

(emphasis added). The Ohio Supreme Court's

recent holdings in Gerijo and Central Motors conflict

with relevant decisions of this honorable Court.

These holdings therefore, violate the fundamental

preemption rules and mandates of the Supremacy

Clause that the U. S. Supreme Court and the Ohio

Supreme Court itself, in Arno/d, have articulated.

It should be noted by this honorable Court

that Justices Pfeifer, Wright and A. William Sweeney

of the Ohio Supreme Court joined a dissenting

opinion in Gerijo arguing in favor of this honorable

Court’s disjunctive test. Gerijo at 231, 638 N.E.2d at

539.° In Central Motors, Justice Wright, concurring in

judgment only, correctly explained why the federal

disjunctive test should apply:

“Although states may afford

individuals greater rights than those

afforded under the Federal

Constitution, states can not deprive

individuals of rights that are

guaranteed by the Federal

Constitution. Because the

majority’s conjunctive test does not

provide individuals with the full

protection afforded by the Federal

‘One leading Ohio commentator has recently suggested: * The

dissenters in Gerijo are clearly correct. While the majority

may be forgiven for not citing Agins, *** its total disregard of

Lucas is incomprehensible***. Gerijo is a 4 to 3 decision, so

perhaps the Court [the Ohio Supreme Court] wili find an

opportunity to change its opinion.” Meek, Stuart, and Pearlman,

Kenneth, Ohio Planning and Zoning Law, Banks-Baldwin Law

Publishing Company, 1995-96 Edition, page 335. (emphasis

added). The instant case gave the Ohio Supreme Court that

opportunity, but instead, it denied certiorari. It is now clear that

the only way this injustice can be remedied is through action of

this honorable Court.

Constitution it is, itself,

unconstitutional. When reviewing

the constitutionality of the zoning

ordinance this court’ should

abandon the conjunctive test and

follow the proper legal standards

under the takings clause and or due

process clause, as articulated by

the United States Supreme Court.

Central Motors at 589, 590 (Justice

Wright concurring in judgment only).

(emphasis and underlining added)

The Gerijo and Central Motors cases have

widespread and substantial constitutional

ramifications since they conflict with this honorable

Court’s decisions and deprive Ohio property owners

of their U.S. Constitutional rights.*

lll. CONCLUSION

In the instance case the Medina County

Common Pleas Court, the Medina County Appeals

Court, and the Ohio State Supreme Court have

applied and upheld a rule of law which conflicts with

relevant decisions of this honorable Court. These

lower courts did not misapply a properly stated rule

of law, but instead applied an improper rule of law

that conflicts with relevant decisions of this honorable

Court. The Federal disjunctive test along with its

’ It is unclear why the Ohio State Supreme Court (after

demonstrating a clear understanding and willingness to follow

Federal law supremacy and preemption mandates in Arno/d) has

abandoned all notions of Federal law supremacy and preemption

in its regulatory “takings” cases. Although the dissenters in

Gerijo and Central Motors have correctly articulated Federal

law supremacy and preemption concepts, the members of the

majority have not explained themselves. Their opinions are

silent as to the preemption and supremacy issues.

16

es ae ee

requirements to consider the landowner’s

“investment backed expectations” and its “fairly

debatable” burden of proof test should have been,

but were not, applied to Mr. Scheetz’ claim for an

unconstitutional “regulatory taking” without

compensation. For the foregoing reasons each of

these issues should be considered by this Court and

Certiorari should be granted.

aa

Td

bo , Esq.,#0059151 ts

litt , Esq.,#0059171

(\& WITSCHEY CO., L.P.A.

CommonWealth Square

300 N. Cleveland-Massillon Rd., Suite 1 af}

Akron, Ohio 44333

(330) 665-5117

ATTORNEYS FOR

APPELLANT

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