Appendix — Scheetz v. Village of Seville

Supreme Court brief1997

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Supreme Court, U.S.

FILED

961650 APR is 1997

CASE NO. con a 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

APPENDIX TO 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

\\

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)

Saige heckas hacove nae aaamekin igi ...EXHIBIT A

FINDINGS AND ORDER OF MEDINA COUNTY

COMMON PLEAS COURT (September 11, 1995)

RT pice Pas pone ...EXHIBIT B

DECISION AND JOURNAL ENTRY OF THE

MEDINA COUNTY COURT OF APPEALS (August

Sas EE sacs cvicidcioasasabdriaueenxionieases EXHIBIT C

ENTRY OF THE SUPREME COURT OF OHIO

DENYING CERTIORARI a 15, 1997)

idevdxkacialesaiuce acute ashaasahate .. EXHIBIT D

TRIAL COURT TRANSCRIPT, PAGES 561, 580,

| PTR Ce Rr ewer: |. §

BRIEF OF PLAINTIFF-APPELLANT FILED WITH

THE MEDINA COUNTY APPEALS COURT, PAGES

PP isevdhns dak tiuxiccercinvecuee rudinntaky eae mieiid EXHIBIT F

BRIEF IN REPLY TO BRIEF OF APPELLEE,

PRA A IER criss cnsseas aden cotton spawn EXHIBIT G

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANT, STANLEY OD. SCHEETZ,

FORE ME PPIIES von. sanscnsnccantacvcnesanes EXHIBIT H

IN THE COURT OF COMMON PLEAS

MEDINA COUNTY, OHIO

STANLEY D. SCHEETZ, )

TRUSTEE ) CASE NO. 93CV1329

) COMMON PLEAS

Plaintiff ) COURT 95 FEB 17

) PM 3:22 FILED

v. ) KATHY FORTNEY

)MEDINA COUNTY

)CLERK OF COURTS

VILLAGE OF SEVILLE, ) FINDINGS AND

OHIO ) ORDER

)

Defendant )

wee

1. Plaintiff has moved for Summary Judgment on its

First Claim for Declaratory Judgment.

2. Defendant responded in opposition as well as

moving for Summary Judgment in its favor on

Plaintiff's Second Claim: Promissory Estoppel

and on Plaintiff's “taking” claim.

3. Plaintiff responded in opposition to Defendant's

Motion for Summary Judgment and replied to

Defendant's response.

4. Defendant then replied to Plaintiff's response.

5. Plaintiff moved to strike Defendant's reply.

6. The Court, however, GRANTS Defendant leave

to reply instant and DENIES Plaintiff's motion to

strike.

7. The Court has been inundated with paper from

both sides in this suit.

EXHIBIT A

10.

11.

12.

13.

14.

15.

16.

The Court has thoroughly studied the file, case

law, statutes and both the Ohio and United

States Constitution.

Plaintiff is the owner of certain real property in the

Village of Seville.

Mr. Scheetz, as the attorney for the prior owner

of the property, petitioned and received approval

from the Medina County Commissioners to annex

the property to the Village of Seville.

On October 10, 1988, in Village of Seville

Ordinance No. 22-88, the property was annexed

to the Village.

At the time of the annexation, the property was

zoned as Section 6 Commercial District of the

then applicable Zoning Code.

On November 30, 1988, Stan Scheetz, Trustee.

purchased the property.

On January 1, 1990, the Village of Seville

adopted a new Zoning Ordinance, which changed

the zoning of the annexed property to Highway

Service Commercial.

The Highway Service classification severely limits

permitted uses to gasoline stations, garage and

automotive repair shops, restaurants and eating

places, motels, signs, parking and loading, and

all uses incidental to these uses. There are no

allowed conditional uses.

As to Plaintiffs Motion for Summary Judgment

dealing with the constitutionality issue, the Court

finds there are genuine issues of material fact.

17. As to Defendant's Motion for Summary Judgment

on Plaintiff's “taking” claim, the Court finds there

are genuine issues of material fact.

18. As to Defendant's Motion for Summary Judgment

on Plaintiff's promissory estoppel claim, the Court

finds there is no genuine issue of material fact

upon which reasonable minds could differ.

Defendant is entitled to judgment as a matter of

law.

19. The Court bases this finding on the reasoning in

Westerville v. Kuehnert (1988), 50 Ohio App. 3d

77. Defendant has immunity for actions

undertaken in the exercise of its governmental

functions as here.

20. The Court GRANTS Defendant's Motion for

Summary Judgment on Plaintiff's promissory

estoppel claim.

21. Plaintiff has moved to bifurcate all non-jury issues

from jury issues.

22. The Court finds favor with Plaintiff's motion. Trial

to the Court shall be had on: Wednesday, April

5, 1995, at 9:00 A.M., on all non-jury issues, i.e.

declaratory judgment action.

23. The jury trial scheduled on OCTOBER 24, 1995.

shall be held for the damages portion of this

action.

IT 1S SO ORDERED.

PHILLIP A. BAIRD

Presiding Judge

ini

A copy of the within Findings and Order has

been mailed by the Court, this date, to Jeffrey T

Witschey, Esq., 3200 W. Market Street, Suite 300,

Akron, Ohio 44333, to William B. Young, Esq., P.O

Box 220, Medina, Ohio 44258, and to Fred Vergon,

Jr., Esq., 1965 E. Sixth Street, Suite 500, Cleveland.

Ohio 44114

cli sch. app findings-1

IN THE COURT OF COMMON PLEAS

MEDINA COUNTY, OHIO

STANLEY D. SCHEETZ, )

TRUSTEE ) CASE NO. 93CV1329

)

Plaintiff ) COMMON PLEAS

) COURT 1995,

Vv. ) SEPTEMBER 11,

) AM 11:16 FILED

VILLAGE OF SEVILLE, ) KATHY FORTNEY,

OHIO ) MEDINA COUNTY

) CLERK OF COURTS

Defendant )

) FINDINGS AND

) ORDER

eek

1. This law suit was brought by Plaintiff when the

Village of Seville rezoned a portion of Plaintiff's

property to Highway Service Commercial, thus

not allowing him to build apartments and

condominiums as he had planned.

2. The area in dispute lies north of I-76 and west of

State Route 3 at the northern edge of the Village

of Seville.

3. Plaintiff purchased the property when it was a

part of Guilford Township. At that time, it was

zoned Commercial in the Township Zoning Code

and apartments were not a permitted use.

4. Plaintiff successfully petitioned the Medina

County Commissioners for annexation to the

Village of Seville, and the Village, by Ordinance

22-88 adopted October 10, 1988, annexed the

property to the Village.

EXHIBIT B

10.

The Village amended its Zoning Ordinance on

March 11, 1991, and changed Plaintiff's land to

Highway Service Commercial which precluded

any apartments or condominiums.

The rezoning to Highway Service Commercial

basically follows the same as in other areas

where an interstate highway or highways

intersect with State highways and _ provide

services such as fast food, chain restaurants,

motels, service stations, automotive towing and

repair shops, and accessory uses to the above.

Plaintiff had some initial success in attracting a

Hardee's, a Dairy Queen, a Comfort Inn Motel

(financed and built by Plaintiff and some

partners), a Clearwater Systems, Subway Pizza,

an Equipment Rental, a Graphic Arts Shop, and,

by application, Lot 766 consisting of about six (6)

acres was given a conditional use to construct

condominiums.

Plaintiff attempted to get the balance of the

property rezoned to Local Commercial. This was

approved by the Village Planning Commission

and the Trustees of the Board of Public Affairs.

The Application went to the Village Council, was

voted on and denied by a 5 to 1 vote.

Plaintiff has made numerous attempts to attract

other fast food chains and service stations, or

other permitted uses, but has been unsuccessful

to date.

The reasons given were lack of a sufficient

volume of traffic and location too far off of the

interstate.

a:

12.

13.

The excuse of too far off the Interstate does not

seem valid since the distance at maximum would

be 3000 feet, or approximately three-fifths (3/5) of

a mile.

There are many such eateries and service

stations at a greater distance from the

interchanges at other locations.

The Plaintiffs First Cause of Action is for a

Declaratory Judgment declaring the Zoning

Ordinance illegal, unconstitutional, and void in

general.

Plaintiffs Second Cause of Action is_ for

Promissory Estoppel.

The Court has already granted Summary

Judgment to the Defendant on this Cause of Action.

14.

15.

16.

+.

As previously indicated, even if Plaintiff would

have his way and have the zoning Local

Commercial, he still would not be able to

construct apartments or condominiums without a

Conditional Zoning Certificate, Section 7.

The Court has reviewed all of the testimony,

exhibits, briefs, and cited cases and considered

the positions of both parties to this action.

The Village of Seville, like many other small

communities, enacted a zoning code in order to

promote orderly growth and maintain a balance

of housing, industrial and commercial areas.

The Plaintiff is a developer and is interested in

developing areas and supplying what he

perceives to be a need for condominiums and

apartments, the first for older citizens and the

latter for younger citizens who will later buy or

build a house.

18. An action for declaratory judgment is essentially

a special statutory proceeding, and the

controversy required to support an action for a

declaratory judgment must be a controversy

based upon legal rights and obligations.

19. The Village has the right to enact a zoning code

and to amend it as may become necessary.

20. The Plaintiff has the right to develop property so

long as the developing does not violate the

zoning code.

21. An amendment to a zoning code, such as here,

to establish a Highway Service Cor.imercial

area, is reasonable and, in the Court's opinion,

not illegal, arbitrary or unconstitutional.

ACCORDINGLY, the Court finds in favor of the

Defendant Village of Seville and against the Plaintiff

on his Complaint for a Declaratory Judgment.

;

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Costs are assessed to Plaintiff.

IT 1S SO ORDERED.

PHILLIP A. BAIRD

Presiding Judge

A copy of the within Findings and Order has

been mailed by the Court, this date, to Jeffrey T.

Witschey, Esq., 3200 W. Market Street, Suite 300,

Akron, Ohio 44333, to William B. Young, Esq., P.O.

Box 220, Medina, Ohio 44258, and to Fred Vergon,

Jr., Esq., 1965 E. Sixth Street, Suite 500, Cleveland,

Ohio 44114.

cli.sch.app.findings-2

STATE OF OHIO ) IN THE COURT OF

) OF APPEALS NINTH

COUNTY OF MEDINA ) JUDICIAL DISTRICT

)

STANLEY D. SCHEETZ,

)

TRUSTEE ) C.A. NO. 2482-M

)

Appellant )

)

Vv. ) APPEAL FROM

) JUDGMENT

VILLAGE OF SEVILLE, =) ENTERED IN THE

) COMMON PLEAS

Appellee ) COURT COUNTY OF

) MEDINA, OHIO

) CASE NO.

) 93 CIV 1329

eee

DECISION AND JOURNAL ENTRY

Dated: August 21, 1996

This cause was heard upon the record in the Trial

Court. Each error assigned has been reviewed and

the following disposition is made:

SLABY, Judge.

Appellant, Stanley Scheetz, as Trustee of Seville

Corporate Park Subdivision Trust, appeals from a

declaratory judgment of the Medina County Court of

Common Pleas that the Village of Seville Zoning

Code, as amended, was constitutional. We affirm.

In late 1988, Scheetz, as owner of several parcels of

real property in Guilford Township, had successfully

petitioned the annexation of the property to the

Village of Seville (“village”). Scheetz had apparently

hoped that annexation to the village would facilitate

EXHIBIT C

his plan to build condominiums and multi-family

apartments on the property. At no time before or

after annexation, however, was the property ever

zoned for multi-family apartments. The property as

originally Zoned, however, would allow multi-family

housing as a conditional use.

In December of 1989, the village enacted a new

comprehensive zoning ordinance, which was twice

amended during the next two years. At some point,’

due to its proximity to a highway intersection, the

village changed the zoning of Scheetz's property

from commercial to highway service commercial.

Highway service commercial zoning does not allow

for any conditional uses. Rather, the property may

only be used for commercial services to highway

travelers, such as gasoline service stations, motels,

restaurants, automotive repair shops, signs, and

parking lots.

Scheetz was able to sell or develop substantial

portions of the property for uses permissible within

the highway service commercial district. Scheetz

unsuccessfully attempted to get a conditional use

permit or rezoning for the remainder of the property.

Scheetz consequently brought this declaratory

judgment action against the village, attempting to

have the zoning ordinance declared _ illegal,

unconstitutional, and void. Through the same

complaint, Scheetz also stated a claim for promissory

estoppel. The promissory estoppel claim was later

dismissed by summary judgment, and is not at issue

in this appeal.

Following an evidentiary hearing, the trial court

determined that the village’s zoning ordinance was

‘ Due to alleged procedural errors during the enactment of the

zoning ordinance, the parties sharply dispute when the zoning

change occurred.

®

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not unconstitutional. Scheetz appeals and raises

four assignments of error.

Assignment of Error |

The trial court failed to apply the federal

2-prong disjunctive test in determining

whether the zoning ordinance effected

an unconstitutional taking of the

undeveloped lots.

Scheetz contends that, in evaluating the

constitutionality of the zoning ordinance, the trial

court applied the wrong law. It is well settled in Ohio

that a party challenging the constitutionality of a

zoning ordinance “most prove, beyond fair debate.

both that the enactment deprives him or her of an

economically viable use and that it faiis to advance a

legitimate governmental interest.” Gerijo, Inc. v.

Fairfield (1994), 70 Ohio St.3d 223, syllabus.

Although Ohio courts had been applying essentially

the same test, though worded differently, prior to the

Gerijo decision, the Gerijo court was asked to resolve

whether a challenger must prove both elements or

only one. The Gerijo court stressed that, to

invalidate a zoning ordinance, the challenging party

must prove both elements of the two-step test, and

reworded the test so as to reflect the conjunctive

nature of the elements. /d. at 226-228.

Rather than following the Ohio Supreme Court's

conjunctive test, 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

disjunctive 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).

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. Motorists Mut. Ins. Co.

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

court did not err in applying the Genjo conjunctive

test. The first assignment of error is overruled.

Assignments of Error

li. The trial court erred in failing to find that Mr.

Scheetz proved at least one prong of the two

prong test by the manifest weight of the

evidence and that the defendant failed to

rebut the same with credible, competent

evidence in the form of basic physical facts

relevant to the particular circumstances of the

instant case.

lil. The trial court erred in failing to find that the

defendant arbitrarily excluded multi family

apartment complexes in violation of the Ohio

and United States Constitutions.

We will address the second and fourth assignments

or error together, as they are interrelated. In the trial

court, Scheetz alleged that the zoning ordinance was

unconstitutional by restricting his property to highway

service commercial uses and by refusing to allow

multi-family apartment buildings. Scheetz contends

that the trial court’s failure to declare the zoning

ordinance unconstitutional was against the manifest

weight of the evidence.

Under Gerijo, as stated above, to invalidate the

zoning ordinance on constitutional grounds, Scheetz

was required to prove, beyond fair debate, that it (1)

deprived him of an economically viable use of his

property, and (2) that it failed to advance a

legitimate governmental interest. Gerijo, supra,

syllabus. We apply this test bearing in mind that

there is a strong presumption that a zoning ordinance

is valid as enacted. /d. at 226. “The party

challenging an ordinance bears, at all stages of the

proceedings, the burden of demonstrating that the

provision is unconstitutional.” /d.

Although still disputing the legal standard that

should have been applied by the trial court, the

parties are in agreement as to the appropriate

standard of review. We will not reverse the trial

court’s judgment as against the weight of the

evidence so long as it is supported by “some

competent, credible evidence going to all the

essential elements of the case[.]” C.E. Morris Co. v.

Foley Constr. Co. (1978), 54 Ohio St.3d 279,

syllabus,

Scheetz contends that he established that the

Village’s action deprived him of an economically

viable use of his property. A zoning ordinance is

considered to be impermissibly restrictive only when

it denies an owner all uses of the property except

those which are highly unlikely or practically

impossible under the circumstances. Cent. Motors,

supra, at 587.

The evidence before the trial court demonstrated

that Scheetz had been able to sell substantial

portions of the property. Although he had been

unsuccessful in his attempts to sell the remaining

portions of the property, it was unclear whether the

market might improve over time. Moreover, Scheetz

had not exhausted the full range of permissible

highway service commercial uses. Rather, he had

concentraied his marketing efforts on large fast food

and full service restaurant chains. Because he had

apparently made no attempts to sell the property for

USE as an automotive repair shop or any of the other

uses permitted in the highway service commercial

district, he did not establish that he had been

deprived of an economically viable use of his

property.

Even if Scheetz had established that the Village’s

zoning ordinance deprived him of an economically

viable use of his property, he failed to Satisfy the

second prong of the Gerijo test. Because Scheetz

continues to argue that the trial court should have

applied a disjunctive test, he focuses most of his

argument on the first prong of the test. while

essentially ignoring the second prong.

The second prong of the Gerijjo test required

Scheetz to prove, beyond fair debate, that the zoning

ordinance failed to advance a legitimate

governmental interest. Gerijo, supra, at syllabus.

The Village’s determination that its zoning action

would serve certain governmental interests must be

given great deference. Recognizing that “[t}he

legislative, not the judicial, authority is charged with

the duty of determining the wisdom of zoning

regulations, ***the judicial judgment is not to be

Substituted for the legislative judgment in any case in

which the issue or matter is fairly debatable.”

Ketchel v. Bainbridge Twp. (1990), 52 Ohio St.3d

239, 246.

The Village contended that by excluding multi-

family apartments as a permissible use, it could

preserve and protect the character of the community

by maintaining an appropriate balance of residential,

commercial, and industrial areas. Intermingling of

7

multi-family and commercial districts in the area

would present a safety hazard, and present noise

and traffic difficulties. Allowing development of multi-

family apartments would create an imbalance in the

existing ratio of single family to multi-family

residences in the Village. The Village did not want a

substantial increase in the rental, residential

population because renters are not as committed to

the community as homeowners’ who tend to have

strong ties to the community.

“[A] municipality may properly exercise its zoning

authority to preserve the character of designated

areas in order to promote the overall quality of life

within the city’s boundaries.” Cent. Motors, supra, at

585. Therefore, the Village’s interest in preserving

the existing ratio of homeowners to renters was a

legitimate governmental interest. The Village also

claimed that the rapid increase in population caused

by multi-family apartments would lead to an increase

in crime, traffic problems, and would overburden the

community's services and utilities. The Village stated

that its designation of this area as highway service

commercial promoted its interest in servicing the

needs of travelers from the nearby highway

interchange.

Scheetz does not argue that these purported

interests are not legitimate. Instead, he contends

that the Village’s zoning ordinance does not advance

these interests. Scheetz focuses his argument on

the weakness of the Village’s evidence that these

particular interests would be advanced by the zoning

ordinance. The Village, however, had no burden to

prove that these interests would, in fact, be

advanced by the zoning ordinance. Moreover, the

trial court's focus was not solely on whether the

ordinance would advance these particular interests,

or how effective it would be in so doing. Rather,

Scheetz had the burden to prove that neither the

purported interests nor any other legitimate

governmental interests would be advanced by the

Village's zoning ordinance. See Cent. Motors, supra,

at 586-587. Scheetz presented no such evidence.

Therefore, he failed to establish that the Village's

zoning ordinance did not advance a legitimate

governmental interest.

Scheetz failed to establish, beyond fair debate,

that the Village’s zoning ordinance deprived him of

an economically viable use of his property and that it

failed to advance a legitimate governmental interest.

Because there was competent, credible evidence to

support the trial court's determination that the

Village's zoning ordinance was not unconstitutional,

the second and fourth assignments of error are

overruled.

Assignment of Error Ill

The trial court erred in failing to

find that the defendant violated Mr.

Scheetz’s_ statutory and due

process rights.

Scheetz alleges that numerous procedural errors

were made by the Village in its enactment of the

zoning ordinance in December 1989 and in later

actions related to the zoning designation of his

property as highway service commercial. Due to

these errors, he contends, the ordinance is

unconstitutional. Scheetz argues on appeal that the

trial court erred in failing to find the zoning ordinance

unconstitutional on these procedural grounds.

We find no error by the trial court, however,

because this issue was not properly before it. The

issues to be determined in a declaratory judgment

6 aot Ere eat VAR ease.

action are “as broad or as narrow as the plaintiff

desires. These issues are derived from the

allegations of the complaint, the prayer for relief, and

the evidence presented.” Cent. Motors Corp. v.

Pepper Pike (1979), 63 Ohio App.2d 34, 56. Scheetz

failed to assert any of these procedural arguments in

his complaint for declaratory judgment. Because

Scheetz framed the issues before the trial court, and

failed to include this procedural argument, the trial

court did not err in failing to do something that it was

not asked to do.

Moreover, as the Village correctly asserts, such

an action would have been barred by the statute of

limitations. R.C. 713.121 provides:

No action challenging the validity of a

zoning ordinance or regulation or of any

amendment to such an ordinance or

regulation because of a procedural error

in the adoption of the ordinance,

regulation, or amendment shall be

brought more than two years after the

adoption of the ordinance, regulation, or

amendment.

Scheetz’s complaint was filed on November 29.

1993, more than two years after the enactment of the

zoning ordinance in December 1989. In his reply

brief, Scheetz attempts to bring his procedural

challenge within the two-year period by focusing on

related actions taken by the Village in 1992 or 1994.

At the heart of his argument in his main brief.

however, are the actions or omissions of the Village

ai the time it enacted the ordinance. Therefore, any

such action based on these procedural errors was

barred by the statute of limitations. The third

assignment of error is overruled.

10

The judgment of the trial court is affirmed.

Judgment Affirmed.

The Court finds that there were reasonable

grounds for this appeal.

We order that a special mandate issue out of this

court, directing the County of Medina Common Pleas

Court to carry this judgment into execution. A

certified copy of this journal entry shall constitute the

mandate, pursuant to App. R. 27.

Immediately upon the filing hereof, this document

shall constitute the journal entry of judgment, and it

shall be filed stamped by the Clerk of the Court of

Appeals at which time the period for review shall

begin to run. App. R. 22(E).

Costs taxed to appellant.

Exceptions.

S/

LYNN C. SLABY

FOR THE COURT

REECE, P.J.

CONCURS

DICKINSON, J.

CONCURS SAYING:

| concur in the judgment of the majority, although

for slightly different reasons. This case has been

difficult to analyze because of the shotgun approach

taken by the appellant before the trial court and

before this court. At bottom, however, as |

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understand the issues, the decision of the trial court

iS properly affirmed.

lt is unnecessary to resolve appellant's first

assignment of error because, regardiess of whether

the appropriate test is disjunctive or conjunctive.

appellant has failed to convince me that the trial

court's decision was against the manifest weight of

the evidence. He failed to prove, as argued in his

second assignment of error. that it is not

economically feasible for him to use his property for

any of the uses now permissible on it or that the

present zoning does not further a legitimate state

interest.

Certain parcels of appellant’s land have been

developed. Although he has contended that that

development only took place with incentives that

made the development unprofitable, he failed to

present sufficient evidence to Support such a finding.

His evidence included references to dollar amounts,

but lacked the Specificity that would permit a finding

regarding economic viability. Further, although, with

the last zoning change to appellant's property, that

Property may now be used for service related

commercial development beyond that permissible in

a highway service district, appellant's attempt to

prove that such uses are not practical was nominal at

best. He did not, therefore, Carry his burden on the

first prong of the two pronged test.

The current zoning furthers the village's legitimate

interest in keeping commercial development

separate from residential uses, thereby maximizing

property values for all the village’s residents. The

village presented evidence that tended to prove that

appellant's property was unsuitable for residential

development. Among such evidence was the

mayor's testimony that access between appellant's

12

property and the center of the village was limited to a

bridge over an interstate highway that does not

include a walkway for pedestrian traffic and that the

village lacks public transportation. Appellant did not

carry his burden on the second prong of the two

pronged test.

Appellant failed to properly raise the argument

encompassed by his third assignment of error before

the trial court and, therefore, it is not properly before

this Court. Assuming appellant had standing to raise

the argument encompassed by his fourth assignment

of error and, further, that arbitrarily excluding

apartment complexes from the village would be

violative of the Ohio and United States Constitutions,

appellant did not prove his claim that the village did

arbitrarily exclude apartment complexes. Among

other things, he failed to prove that sufficient rental

properties do not already exist within the village.

The decision of the trial court was not against the

manifest weight of the evidence. Accordingly, that

decision is properly affirmed.

APPEARANCES:

JEFFREY T. WITSCHEY, NICHOLAS GEORGE,

and FRANK WITSCHEY, Attorneys at Law, 33200

W. Market St., Suite 300, Akron, OH 44333 for

Appellant.

FREDERICK VERGON, JR., Attorney at Law, 500

Nat'l. City Tower, 1965 E. Sixth St., Cleveland, OH

44114 for Appellee.

WILLIAM B. YOUNG, Attorney at Law, 230 S. Court

S t., P.O. Box 220, Medina, OH 44258 for Appellee.

cli. sch.app.appeal-1

THE SUPREME COURT OF OHIO

FILED

JAN 15 1997

MARCIA J. MENGEL,

CLERK SUPREME

COURT OF OHIO

Stanley D. Scheetz, Trustee ) 1997 Term

Appellant, ) Case No. 96-2241

)

V. ) ENTRY FILED

) JANUARY 15, 1997

Village of Seville, ) MARCIA J.

Appellee, ) MERRGEL, CLERK

) SUPREME COURT

) OF OHIO

“ee

Upon consideration of the jurisdiction memoranda

filed in this case, the Court declines jurisdiction to

hear the case and dismisses the appeal as not

involving any substantial constitutional question.

COSTS:

Docket Fee, $40.00, paid by Witschey &

Witschey Co., L.P.A.

(Medina County Court of Appeals; No. 2428M)

S/

Thomas J. Moyer

Chief Justice

cli. scheetz.appeal.exhibitd.

EXHIBIT D

te wate.

to be“ DP ne aR 00

|

561

separate and independent argument.

We have also touched upon some issues

where we can clearly see due process violations in

this case, and also that Mr. Schee3tz had his vested

rights and property taken because of Seville not

accepting Mr. Scheetz’ non-conforming vested rights.

With respect to all of these issues, we believe

we have presented the facts necessary for you to

make rulings in our favor on all of these counts.

Now, we would like to review some of those

facts, and apply the law to those facts, to make the

concepts clear, and make our entitlement to

judgment clear.

First of all, with respect to the unconstitutional

takings aspect of this case, we see that there is a

two prong test that is both in Ohio and in the federal

law, but there is a difference.

In Ohio law, it is a conjunctive test, you have

to prove both there has been a denial of the

economic viability of the property because of the

zoning ordinance, and you have to prove that the

zoning ordinance, or the land being zoned the way it

is zoned does not advance a legitimate government

interest.

In Ohio, it is conjunctive.

In the federal test, you only have to prove one

or the other.

EXHIBIT E

580

reservation to themselves of what they can do, and it

is this type of statutory scheme that just provides a

fertile ground for the types of legislative improprieties

we have seen where they think we can do whatever

they want, without reason.

One last comment the, Your Honor, on the

economic viability aspect of this case.

In their trial brief, they mention that federal

law requires a two prong test that is in the

conjunctive, and cite two cases fort that proposition.

Your Honor, | would invite you to read those

cases because you are going to find that that is not

at all a proposition of law, that clearly both of those

cases stand for the proposition that under the federal

law it is a disjunctive test, that you only have to prove

one of the two prongs.

Our evidence with respect to the economic

viability of this land is completely unrefuted.

Mr. Sale couldn't do it because he is not

qualified to render an opinion on the economic

viability of the land.

Instead, they have just chosen to misstate the

law so they don’t have to hire another expert that is

qualified to render an opinion on the economic

viability of the land.

It is easier for them to argue the law is in the

conjunctive, you have to prove both of the tests, and

you

rE Nn Ae alien,

PC AM Oe 38.

i Galette in aca orth cnc nt teh BAL Ag eh OD oh Macnee cabeaaihpaiah Sai

581

don't meet the test with respect to the advancement

of a legitimate government interest.

Your Honor, the evidence has shown quite

Clearly that their zoning of this property throughout

the entire extent of this land does not advance a

legitimate government interest.

The law requires, on this issue of

advancement of a legitimate government interest,

that the ordinance must bear a real and substantial

relation to the public health, safety, morals or general

welfare.

It has to be real, and it has to be substantial.

Again, they can talk about all the buzz words

in the world, traffic problems, capacity problems, they

can talk about all of that, and we have evidence

today that all they an do is talk about buzz words and

theories, but the actual fact of the matter is that they

met all of those tests, that we have capacity, that

there is no evidence that there will be any traffic

problems.

Also, their own expert witness, Mr. Dale,

made a very clear admission today, that he is not

even qualified to render an opinion on whether

zoning the entire ext5ent of this property advances a

legitimate government interest.

| asked Mr. Dale, while he was on the stand,

if this property, if highway service users, the

businesses and entities that provide highway service

uses, if they are

cli. scheetz.appea exhibitE

Se ee

l. ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT FAILED TO APPLY THE

FEDERAL 2-PRONG DISJUNCTIVE TEST IN

DETERMINING WHETHER THE ZONING

bat ra. ince le a Lact LSet ETON GTR

ORDINANCE EFFECTED AN

UNCONSTITUTIONAL TAKING OF THE

i UNDEVELOPED LOTS.

/ Ohio Courts have applied a conjunctive

i two part analysis to decide the constitutional

validity of a zoning Ordinance. This two pronged

analysis requires the land owner to show that

; the zoning classification denies the property of

: its economic viability and it does so without

advancing a legitimate government interests.

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

223. However, the United States Supreme

Court has held that this two part test is in the

disjunctive when applying the U.S. Constitution.

In other words, the zoning classification is

unconstitutional if it denies the property owner

an economically viable use of the land or it does

not substantially advance a legitimate

; governmental interest. See eg. Agins v.

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

; 65 L. Ed. 2d 106, Lucas v. South Carolina

coastal Council, (1992), 112 S. Ct. 2886, 2894.

Since it provides the property owner more

constitutional protection than is afforded under

the Ohio Constitution, the United States

i Constitution preempts the lesser protection

| given under the Ohio Constitution.

i

A ILE ANE A Di cts 0 wet

In the areas of individual rights and

civil liberties, the United States

EXHIBIT F

Constitution, where applicable to

the states, provides a floor

below which _ state court

decisions may not fall. Arnold v.

City of Cleveland (1993), 67 Ohio

St. 3d 35, paragraph 1 of syllabus.

(emphasis added)

A common thread found in the

State court decisions which have

relied exclusively on the state’s

constitution is that states may not

deny individuals or groups the

minimum of protections

mandated by the Federal

Constitution. Id. at 42. (emphasis

added).

Under the Supremacy Clause, US.

Const. Art. VI, Cl.2, when state law conflicts or is

incompatible with federal law, the state law is

preempted by federal law. Preemption occurs

when state regulation actually conflicts or is

incompatible with Federal law. Fidelity Federal

Sav. & Loan Ass’n v. DeLa Cuesta (1982), 458

U.S. 141, 152-153, 102 S. Ct. 3014, 3022. The

Ohio Supreme Court's recent pronouncements

in the Gerijo case and in Central Motors

Corporation v. City of Pepperpike (1995), 73

Ohio St. 3d 581, ignore the basic preemption

rules that the United States Supreme Court and

the Ohio Supreme Court itself have articulated.

Justices Wright, Pfeifer and A. William Sweeney

joined a dissenting opinion in Gerijo arguing in

favor of the disjunctive test. Gerijo at 231. In

}

4

:

a

3

;

3

Central Motor. Justice Wright explained why the

federal disjunctive test should apply.

Although states may _ afford

individuals greater rights than

those afforded under the federal

constitution, states cannot

deprive individuals of rights that

are guaranteed by the Federal

Constitution. Because the

majority's conjunctive test does not

provide individuals with the full

protections afforded by the Federal

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 Taking Clause and/or

Due Process Clause, as articulated

by the United States Supreme

Court. Central Motors Corp. at

589, 590 (Justice Wright

concurring in judgment only).

(emphasis added).

The trial Court Judge, although in his

Findings somewhat unclear, applied the

conjunctive test since he stated in paragraph 19

of his Findings: “The Village has the right to

enact a zoning code and to amend it as may

become necessary.” Yet, the Trial Court Judge

was silent as to compensation for the land owner

if the “necessary” change deprived the land of its

economic viability. The Trial Court erred in

applying the conjunctive test to the facts of the

instant case since rules of federal law

preemption require the application of the federal

disjunctive test.

cli. scheetz.appeal.exhibitf

Pe ee ae Cee aaeas

EO a EIN Da be Se inte Se he on eB ett BR BV Pa diet

WB 8G ee Ce

0 AA Cal .

PON NII CBD tos We CET

Sia MA ial SST ed ae! sewn tine Nala teerie

by case basis. Additionally, the Defendant's Mayor,

Jean Jamison, signed and entered on public record a

version of the ordinance that she and William Young

had prepared prior to the vote on the November

ordinance. This version was not reflective of

council's vote since council voted to allow all

commercial uses as conditionally permitted uses. Tr.

222-228. Plaintiff's Exhibit 22, Plaintiff's Exhibit 35.

lil. ASSIGNMENT OF ERROR NO. 1(pg. 3

Defendant’s Brief):

Lucas. v. _South Carolina Coastal

Council (1992), 112 5 Ct. 2886, and

the Fifth Amendment to the U.S.

Constitution don't apply to Mr.

Scheetz’ case because they only

provide for a remedy in cases where

there is a “complete takings’.

The position is 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 owner's land economically idle; 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 whether a “complete taking” of

property has occurred, the Federal decisions require

the court to consider the property owners

“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

EXHIBIT G

and; 5. Lucas and the Fifth Amendment to the

U.S. Constitution apply to all takings cases! Mr.

Scheetz has asserted the Same in his case

throughout its pleading, discovery and trial Stages.

IV. ASSIGNMENT OF ERROR NO.1 (pg. 6

Defendant's Brief)

The trial court, therefore, did not

err in failing to apply Lucas (citation

omitted) and its disjunctive 2-prong

test, since this was not a taking

case under the Fifth Amendment of

the United States constitution and

since this was not a ‘complete

taking’ case.”

This statement is ludicrous. Throughout

the entire case, Mr. Scheetz argued that the

HSCD zoning of his property destroyed the

economic viability of his property and/or the

HSCD zoning failed to Substantially advance a

legitimate governmental interest and therefore

violated his U.S. Constitutional rights.

V. ASSIGNMENT OF ERROR NO. 1 (pg. 6

Defendant's Brief):

A City’s refusal to enlarge an

Owner's rights in his property does

not qualify as a taking of private

property without justification.***

When a_ developer purchases

Property and then gambles on

being able to secure a zoning

modification, the developer cannot

Er eee ee ee ee

later complain when the

government declines to modify the

zoning.

This is a gross misinterpretation of Mr. Scheetz’

i claims which were clearly set forth in his

i Complaint and throughout the trial of this matter.

i With respect to the unconstitutional taking

aspect of this case, Mr. Scheetz did not request

i the trial court to grant him a zoning modification

or an enlargement of property rights beyond

: those property rights that he had when he

purchased his property.2 With respect to the

unconstitutional taking of Mr. Scheetz’ property,

Mr. Scheetz has requested

Paani Rd tat Sd ls SS ml Les

cli.scheetz.appeal.exhibitg

Tea

* Mr. Scheetz has requested that he be allowed to develop

a portion of his property for multifamily apartment

complexes. However, his claim for this relief is founded

; upon the Defendant's unconstitutional exclusion of

4 multifamily housing in Seville not its unconstitutional taking

| of Mr. Scheetz’ property.

COS I he 605 1 bbe SI

MEMORANDUM IN SUPPORT OF

JURISDICTION IN THE

SUPREME COURT OF OHIO

STANLEY D. SCHEETZ, ) C.A. NO. 2482-M

TRUSTEE ) 96-2241

OF THE SEVILLE )

CORPORATE PARK )

SUBDIVISION TRUST )

U/A DATED ) ON APPEAL FROM

DECEMER 1, 1988 ) THE MEDINA

) COUNTY COURT

Appellant ) OF APPEALS

) NINTH

v. ) APPELLATE

) DISTRICT

THE VILLAGE OF )

SEVILLE, OHIO ) COURT OF

) APPEALS

Appellee ) CASE NO. 2482-M

kkk

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANT, STANLEY D. SCHEETZ,

TRUSTEE

Jeffrey T. Witschey, Esq., # 0059151

Frank J. Witschey, Esq., # 0059171

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

CommonWealth Square

Filed

300 N. Cleveland-Massillon Rd., Suite 14 Oct 04 1996

Akron, Ohio 44333

(330) 665-5117

Fax No. (330) 665-7615

Marcia J. Mengel,

Clerk Supreme

Court of Ohio

COUNSEL FOR APPELLANT, STANLEY DOD.

SCHEETZ, TRUSTEE

EXHIBIT H

Fred Vergon, Esq.. # 0012383

500 National City Tower

1965 E. 6th sr.

Cleveland, Ohio 44114

and William B. Young, Esq., #

230 S. Court St.. P.O. Box 220

Medina, Ohio 44258-0220

COUNSEL FOR APPELLEE, VILLAGE OF

SEVILLE, OHIO

S/

Jeffrey T. Witschey, Esq., #0059151

Frank J. Witschey, Esq., #0059171

WITSCHEY & WITSCHEY CO..

L.P.A.

CommonWealth Square

300 N. Cleveland-Massillon Rd., Suite 14

Akron, Ohio 44333

(330) 665-5117

ATTORNEYS FOR’ APPELLANT.

STANLEY D. SCHEETZ, TRUSTEE

TABLE OF CONTENTS

STATEMENT OF CASE AND

EXPLANATION OF WHY THIS CASE IS A

CASE OF PUBLIC OR GREAT GENERAL

INTEREST AND INVOLVES A SUBSTANTIAL

CONSTITUTIONAL

EE Bite ctcccscccaceccccasevescccscescescccnecccccces ccs J

. WHETHER OHIO LAND OWNERS '- ARE

PROTECTED BY THE U. S. CONSTITUTION AND

THE U. S. SUPREME COURT DECISIONS

REGARDING FIFTH AMENDMENT “TAKINGS

Ce eencicccecncsocnssctenecscoqecnasscocnsssncccccccececs J

. Proposition of Law No. 1: Gerijo and Central Motors

decisions offend, ignore, and undermine the basic

principals of U. S. Federal law preemption and U.S.

Constitution supremacy and therefore deprive Ohio

property owners of their rights guaranteed by the U. S.

Ca cctcccncecnsenccasasnescscsresosccccssscccosecce a

. Proposition of Law No. 2: The Gerijo and Central

Motors decisions place Ohio trial and appellate courts

in the “catch 22 position” of violating the Supremacy

Clause of the U.S. Constitution, the Lucas and Agins

decisions, and this Court’s holding in Arnold v. City of —

Cleveland (1993), 67 Ohio St. 3d 35 (the U.S.

Constitution provides a floor of protection below which

state law can not fall) or violating Gerijo, Central

Motors, and this Courts holding in Smith v. Klem

(1983), 6 Ohio St. 3d 16 (Ohio appellate courts are

bound to follow Ohio Supreme Court syllabus

lod

sn

Proposition of Law No. 3: The Gerijo and Central

Motors cases invite the governmental confiscation of

private property without compensation and invite the

maintenance of wasteful ordinances that fail to

advance government interests..............ceccccscececeeee 8

WHETHER OHIO CIV. R. 15 (B) APPLIES TO

DECLARATORY JUDGMENT ACTIONS

REGARDING PROCEDURAL DUE PROCESS

CASES UNDER THE OHIO AND US.

CG Wa icinhveetntiasinsikdatabniiibinsdaiiesnnel 9

Proposition of Law No. 4: Ohio Civ. R. 15 (B) is

applied to declaratory judgment actions regarding

procedural due process violations the same as with any

CURR CGI OE i vaakkntnibacctncvoenivinetineincias cc 10

THE PROPER APPLICATION OF THE OHIO

STATUTE OF LIMITATIONS (O.R.C. 713.121)

REGARDING PROCEDURAL DUE PROCESS

VIOLATIONS IN THE REZONING OF A PRIVATE

FUME SUED TT sécicvsdenencimisnadaciabihevkdbiasdinkdiabiaane 11

Proposition of Law No. 5: A cause of action for

procedural due process violations or errors in the

enactment of a zoning ordinance do not begin to accrue

under O.R.C. 713.121 until such time as the

infringement of a right arises................c.eccececeses 13

Proposition of Law No. 6: Ohio’s “discovery rule”

regarding the application of statutes of limitations

applies to the statute of limitations set out in O.R.C.

TERED uinkdurtkccsoebagiaswinbbehaniganabieneaeimidiias, 13

WHETHER A MUNICIPALITY’S ARBITRARY

EXCLUSION OF MULTIFAMILY APARTMENT

COMPLEXES IS A VIOLATION OF THE U.S. AND

CPRRHEE SMPTE EE 6 iti ncnsnarcccesevektennsbenntinccian 14

Proposition of Law No. 7: A municipalities exclusion

or restriction of a legitimate housing type is

unconstitutional when it is arbitrary and not supported

Fe I basa prinicaincanseunsicssensicavissmnccocwine 14

PEE SO WEEN Wi Mcisnsabcnbhedcsduneepiiedesiiccsice 15

APPENDIX

OPINION OF THE MEDINA COUNTY COURT

OF APPEALS

CRUISE ZE, VORB) ccicecdinsccsss EXHIBIT A

JUDGMENT ENTRY OF THE MEDINA

COUNTY COURT OF APPEALS

(AUGUST 21, 1996). ..o00. 05 .ccccce EXHIBIT A

UNREPORTED CASEG................ EXHIBIT B

cli.sche.app.memo-6

STATEMENT OF FACTS AND STATEMENT OF

CASE

Stanley Scheetz, Trustee of the Seville C orporate

Park Subdivision Trust (Mr. Scheetz) is the owner of

certain undeveloped land (Undeveloped Land) in the

Village of Seville, Ohio (Defendant). 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 |, 1988 for $275,000. Mr. Scheetz then

platted the Undeveloped Land and immediately began

marketing the property for sale and investing money in

infrastructure improvements such as Streets, waterlines

and sewers capable of handling a broad range of

commercial uses.2

On January |, 1990, Seville 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).3

However, no change or amendment was made to the

zoning district map (Zoning District Map) which

designated the land to be included in each of the various

zoning districts. Mr. Scheetz’ Undeveloped Land

' This district broadly allowed all commercial uses.

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

in infrastructure improvements and interest. To

complete the road improvements, Mr. Scheetz’ engineers

estimated another $350,000.

’ 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

(Cc) 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”.

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. This change occurred

without notice, without public discussion or debate and

without official action or vote by the village planning

commission or village council.

Except for a lot sold to Hardees Restaurants on the

corner of S.R. 3 and Park Avenue West (Lot No. 763), Mr.

Scheetz has been unabie to sell any of the remaining

Undeveloped Land in an arm’s length transaction for any

Highway Services Uses and has not been able to use the

remainder of the Undeveloped Property for any

economically viable use. In 1992, Mr. Scheetz having

found a great demand for multifamily apartment housing

sought approvals of various amendments to the Zoning

District Map allowing him to construct multifamily

dwellings on a portion of the Undeveloped Land. None of

Mr. Scheetz’ requests for amendments were allowed

because Seville had instituted a policy preventing the

construction of more new apartment housing in Seville.

On November 29, 1993, Mr. Scheetz filed his

Complaint for Declaratory Judgment and Money Damages

for the unconstitutional regulatory taking of his property.

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. The Trial Court 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. On September 12, 1995, the Trial Court

filed its findings and final judgment entry in favor of the

Defendant on the pleaded declaratory judgment aspects of

the case and failed to rule on the procedural due process

issue which was tried in Court. On September 21, 1995

Mr. Scheetz filed his appeal with the Medina County

Appeals Court. On August 21, 1996 the Appeals court

denied Mr. Scheetz’ appeal.

EXPLANATION OF WHY THIS CASE IS A CASE

OF

PUBLIC OR GREAT GENERAL INTEREST AND

INVOLVES A SUBSTANTIAL CONSTITUTIONAL

QUESTION

This appeal presents substantial constitutional

issues and matters of public and great general interest in

four critical areas regarding the current and future

property rights of Ohio land owners:

A. Whether Ohio land owners are protected

by the U. S. Constitution and the U. S.

Supreme Court decisions regarding Fifth

Amendment “takings cases”:

B. Whether Ohio Civ. Rule 15 (B) applies to

declaratory judgment actions regarding

procedural due process cases under the

Ohio and U.S. Constitution: and

C. The proper application of the Ohio statute

of limitations (Ohio Code Section

713.121) regarding procedural due

process violations in the rezoning of a

private property: and

D. Whether a municipality's — arbitrary

exclusion of multifamily apartment

complexes is a violation of the U. S. and

Ohio Constitutions.

An explanation of why these issues are of public and great

general interest and involve substantial constitutional

questions follows with applicable propositions of law:

A. WHETHER OHIO LAND OWNERS ARE

PROTECTED BY THE U. S. CONSTITUTION

AND THE U. S. SUPREME COURT DECISIONS

REGARDING FIFTH AMENDMENT “TAKINGS

CASES”,

The Appeals Court in the instant case applied this

Court’s holdings in Gerijo, Inc. v. City of Fairfield (1994),

70 Ohio St. 3d 223 and Central Motors Corporation v.

City of Pepper Pike (1995), 73 Ohio St. 3d 581. These

cases are of great public and general interest to all Ohio

real property owners and involve substantial constitutional

questions.

In this case the appellant, Stanley Scheetz, Trustee

(Mr. Scheetz) alleged in his complaint and argued

throughout the course of the trial that the actions of the

Village of Seville, Ohio (the Appellee) constituted an

unconstitutional taking of Mr. Scheetz’ property under the

Ohio and the U.S. Constitutions. There is a substantial

difference in the constitutional protection afforded under

each of these constitutions. The U.S. Supreme Court in

interpreting and applying the U.S. Constitution has offered

substantially more protection to the property owner

regarding “takings cases” than this Court has afforded

property owners under the Ohio Constitution in its Gerijo

and Central Motors cases. This has caused severe and

wide-spread ramifications for Ohio property owners who

have had or may in the future have interests in their

property infringed upon, by Ohio state or municipal

regulations. Because of Gerijo and Central Motors such

~ Ohio real property owners are not afforded the benefits of

their U.S. Constitutional rights as pronounced in cases

such as Lucas v. South Carolina Coastal Council (1992),

112 S.Ct. 2886 and Agins v. Tiburon (1980), 447 U. S.

255, 100 S. Ct. 2138, 65 L.Ed. 2d 106. This denial of

rights is of great general and public interest and involves

substantial constitutional questions since:

1. Proposition Of Law No. 1: Gerijo

and Central Motors offend, ignore, and

undermine 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.

In Gerijo and Central Motors this 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, at 228

and Central Motors at 584. Contrary to these decisions,

the U. S. Supreme 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 112 S. Ct. at 2894. In

addition to a disjunctive test the U.S. Supreme 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. Lucas at 2903 and Kaiser Aetna y. United

States (1979), 444 U.S. 164, 175. The Gerijo and Central

Motors decisions fail to instruct trial courts in Ohio to

considered the landowner’s “investment backed

expectations”.

The Supremacy Clause of the U.S. Constitution

Article VII Clause 2 states as follows:

ee ee a eee

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, anything in the Constitution or

laws of any state to the contrary

notwithstanding. (emphasis and

underlining added).

This Courts holdings in Gerijo and Central Motors offend

the Supremacy Clause of the U.S. Constitution and well

established U.S. Supreme Court holdings concerning the

supremacy of U. S. Federal law which were accurately

noted in Society National Bank y. Kienzle (1983), 11 Ohio

App. 3d 178, 180-81:

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 vy. Houseman

(1876), 93 U.S. 130, 23 L.Ed. 833: Tesia.

. 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: Afines v.

Davidowitz (1941), 312 U.S. 52. 61 S. Ct.

399, 85 L.Ed. 58}. (emphasis and

underlining added).

Preemption occurs when state regulation conflicts

with or is incompatible with Federal law. Fidelity Federal

Savings & Loan Association y. DeLaCuesta (1982), 458

U.S. 141, 152-153, 102 S. Ct. 3014, 3022. Since the U.S.

Supreme Court cases, interpreting the U. S. Constitution.

provide the property owner with more constitutional

protection than is afforded by this Court’s decisions in

Gerijo and Central Motors, the U. 8. Constitution and U.

S. Supreme Court decisions should preempt the

conflicting lesser protections given by this Court. Arnold

v. City of Cleveland (1993), 67 Ohio St. 3d 35. The

svilabus in the Arnold case 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 added),

This Court further stated in Arnold: “*** States may not

deny individuals or groups the minimum of protection

mandated by the Federal Constitution”. Id. at

42.(emphasis added).

This Court’s recent pronouncements in Gerijo and

Central Motors ignore the fundamental preemption rules

and mandates of the Supremacy Clause that the U. S.

Supreme Court and this Court itself have articulated.

However, Justices Pfeifer, Wright and A. William

Sweeney joined a dissenting opinion in Gerijo arguing in

favor of the U.S. Federal disjunctive test. Gerijo at 231.

In Central Motors, Justice Wright correctly explained why

the 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

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

Corp. at 589, 590 (Justice Wright

concurring in judgment only). (emphasis

added).4

net meth onihein MP.

aaa

* One leading commentator has recently suggested: * The

dissenters in Gerijo are clearly correct. While the majority

may be forgiven for not citing Agins, since the U.S. Supreme

Court has not always been noted for the clarity of its takings

opinions, its total disregard of Lucas is

incomprehensible***Gerijo is a 4 to 3 decision, so perhaps the

Court will find an opportunity to change its opinion.” Meek.

Stuart. and Pearlman, Kenneth, Ohio Planning and Zoning Law.

The Gerijo and Central Motors cases have w idespread and

substantial constitutional ramifications since they deprive

Ohio property owners of their U.S. Constitutional rights.

2. Proposition of Law No. 2: The

Gerijo and Central Motors decisions

place Ohio trial and appellate

courts in the “catch 22 position” of

violating the supremacy clause of

the U.S. Constitution, the Lucas

and Agins decisions, and _ this

court’s holding in Arnold V. City Of

Cleveland (1993), 67 Ohio St. 3d 35

(the U.S. Constitution provides a

floor of protection below which

State law can not fall) or violating

Gerijo, Central Motors, and this

Court’s holding in Smith V. Kelm

(1983), 6 Ohio St. 3d 16 (Ohio

appellate courts are bound to follow

Ohio Supreme Court syllabus law).

The Gerijo and Central Motors decisions place

our Ohio trial and appellate courts in an untenable “catch

22 position”. For instance, in this case. the Appeals Court

cited Thaker v. Board of Trustees of the Ohio State

University (1971), 31 Ohio App. 2d 17 and Love v. Motors

Mutual Insurance Co., (1993), 86 Ohio App. 3d 394 for

the proposition of law set forth by this Court in Smith vy.

Kelm (1983), 6 Ohio St. 3d 16 that: “The svilabus of an

opinion issued by the Supreme Court of Ohio states the

law of the case, and therefore, all lower courts in this state

are bound to the principals which it sets-forth”. Thacker

at 400. Given this requirement an Ohio trial appellate

court would be in a significant quandary in determining

Banks-Baldwin Law publishing company, 1995-96 Edition,

page 335. (emphasis added).

‘

a

a

4

which law to apply. If a lower court in Ohio applies the

Lucas and Agins disjunctive test and considers the land

owners “investment backed expectations” its holding

would be consistent with the U. S. Supremacy Clause and

this Court's pronouncement in Arnold, but would be at the

same time inconsistent with this Court's rulings in Gerijo

and Central Motors, therefore violating its duty to follow

Ohio Supreme Court law as pronounced in Ke/m. On the

other hand, if an Ohio trial or appellate court applied the

conjunctive test set forth in Gerijo and Central Motors

and did not consider the owners “investment backed

expectations’, its holding would be consistent with this

Court's pronouncement in Ae/m, but would at the same

time violate the U. S. Supreme Court pronouncements in

Lucas and Agins therefore violating the U. S. Supremacy

Clause and this Courts holding in Arnold. This situation

alone requires this Court's reevaluation of its Gerijo and

Central Motors decisions since they leave Ohio's lower

courts without proper direction.

3. Proposition of Law No. 3: The

Gerijo and Central Motors cases

invite the governmental

confiscation of private property

without compensation and _ invite

the maintenance of wasteful

ordinances that fail to advance

government interests.

The application of the conjunctive test set

forth in Gerijo and Central Motors invites the regulatory

confiscation of private property in Ohio’ without

compensation to the land owner. Querry: If a private

property owner is called upon to give up use of his or her

land for the public good shouldn't he or she be

compensated by the government so that all of those in the

public who benefit by the confiscation pays for it (i.e.

through taxes etc.). Additionally, the Gerijo and Central

Motors cases invite the maintenance of wasteful

ordinances that don’t advance legitament: government

purposes. For instance, an Ohio property owner under the

Gerijo and Central Motors decisions could have the use of

his or her property impaired. but not quite to the point of a

complete economic loss by a useless ordinance that

doesn’t advance any legitament government purposes.

Querry: Why should a property owner lose any value in

his property at all in favor of an ordinance that does

nothing to advance a government interest?

B. WHETHER OHIO CIV. R. 15 (B) APPLIES

TO DECLARATORY JUDGMENT ACTIONS

REGARDING PROCEDURAL DUE

PROCESS CASES UNDER THE OHIO AND

U.S. CONSTITUTIONS.

The Appeal Court below held that it was not error

for the Trial Court to fail to rule on Mr. Scheetz’ claim for

violations of his procedural due process rights since he

failed to allege this issue in his complaint for declaratory

judgment. This holding is of great general interest and

involves a substantial constitutional question since it

assumes that Ohio Civ. R. 15 (B) does not apply to

declaratory judgment actions regarding due process

violations. The instant Appeals Court cites Central

Motors Corp. v. Pepper Pike (1979), 63 Ohio App. 2d 34

for the basis of this decision. However. the Central

Motors case in no way trumps a parties rights under Ohio

Civ. R. 15 (B). This issue takes on substantial

constitutional significance and great public interest since

most suits concerning — the constitutionality of a

government ordinance or action are brought as declaratory

judgment actions.

4. Proposition of Law No. 4: Ohio Civ. R.

15 (B) is applied to declaratory

judgment actions regarding procedural

due process violations the same as with

any other cause of action.

:

}

z

4

3

3

4

Ohio Civ. R. 15 (B) provides in pertinent part:

When issues not raised by the pleadings

are tried by expressed or implied

consent of the parties, they shall be

treated in all respects as if they have

been raised in the pleadings. Such

amendment of the pleadings as may be

necessary to cause them to confirm to the

evidence and raise these issue may be

made upon motion of any party at any

time, even after judgment. Failure to

amend as provided herein does not

affect the result of the trial of these

issues. (emphasis added).

This court has stated: “It is axiomatic that cases

are to be decided on the issues actually litigated at

trial.” Evens v. Bainbridge Township Trustees (1983) 5

Ohio St. 3d 41, 44 (emphasis and underlining added). See

also, Hall v. Bunn (1984), Ohio St. 3d 118, 121. “Rule 15

was promulgated to provide the maximum opportunity for

each claim to be decided on its merits rather than on

procedural niceties [citations omitted]” Hal/ at 121. The

Evens Court further stated that Ohio Civ. R. 15 (B) ****

allows for liberal amendment of the pleadings toward that

end ***”. Evens at 44. (emphasis added). The

Commentary/Staff notes to Civ. R. 15 (B) note No. 2

states:

“If the opposing party does not raise an

objection to the introduction of

evidence outside of the pleadings and

continues on the merits, the evidence is

treated as if it had been raised by the

pleadings whether the pleadings are

amended to include such evidence or

not. *** If no objections were raised, he

would be permitted to continue with his

proofs without amendment ***. Ross v.

Philip Morris Co... 164 F. Supp. 683 (W.

D. Mo 1958). (emphasis added).

The rules requiring the liberal amendment of the

pleadings should not be relaxed in declaratory judgment

actions. There is no case law supporting the proposition

that Ohio Civ. R. 15 (B) does not apply to declaratory

judgment actions. Contrary to. the Appeals Court ruling.

Central Motors does not stand for the proposition that the

issues to be determined in a declaratory judgment action

must be alleged in the complaint and can not be raised at

trial pursuant to Ohio Civ. R. 15 (B). In fact. the Central

Motors appeals court stated: “ *** the issues to be

determined in a declaratory judgment action are as broad

Or as narrow as the plaintiff desires. These issues are

derived from the allegations of the complaint, the prayer

for relief, and the evidence presented.” Central Motors.

63 Ohio App. 2d at 56. Other decisions. including one by

the instant Appeals Court, have applied Civ. R. 15 (B) to

declaratory judgment actions the same as with other

actions. See, e.g.. Meehan v. Smith cgth App. Dist.,

semmit County, 1984) Case No. 11178. unreported;

Wayne Lakes Park v. Admin. Of Vet. Affairs (Ohio App.

Darke County, 1985) Case No. 1136. unreported.

C. THE PROPER APPLICATION OF THE OHIO

STATUTE OF LIMITATIONS (O.R.C. 713.121)

REGARDING PROCEDURAL DUE PROCESS

VIOLATIONS IN THE REZONING OF A

PRIVATE PROPERTY.

O.R.C. 713.121 provides:

No action challenging the validity of a

zoning ordinance or regulation or of any

amendment to such in ordinance or

regulation because of a procedural error in

the adoption of the ordinance. regulation,

or amendment shall be brought more that

two years after the adoption of the

ordinance. regulation, or amendment.

The application of this statute takes on great general and

public interest and concerns substantial constitutional

issues since it limits a property owners time in which to

bring a procedural due process violation under the Ohio or

U.S. Constitution. The Appeals Court's application of

O.R.C. 713.121 in the instant case sets a dangerous

precedent in this regard. In 1992 the Zoning District Map

was physically changed at the insistence of one village

council member. The changed map redesignated the

Undeveloped Land to HSCD Zoning from Commercial

Zoning. This 1992 change to the Zoning District Map

occurred without notice, public discussion, and without

official action or vote by the village planning commission

or village council in either 1990 or 1992. The new 1992

version of the Zoning District Map has never been

adopted. Since Mr. Scheetz filed suit in 1993 he was well

within the two year statute of limitations.

Somehow the Appeals Court reasoned that the

O.R.C. 713.121 time frame began running in 1990. This

application of 713.121 has the dubious effect of forcing a

property owner to bring its claim for procedural errors

before such errors occur and before the property owner,

could have been aware of the violation. Such an

application of this statute would, as in this case, allow a

municipality to enact a new zoning ordinance without

making any zoning district changes and wait two years to

secretly publish a new zoning map redesignating the

zoning of various properties. The property owners would

then be time barred from attacking the zoning changes.

Additionally, an unnoticed and unvoted upon change in

zoning could occur and an affected property owner would

not even be aware of the change until he or she attempted

to use the property for a nonconforming use sometime in

the future. If that time is two.years after the secretive

zoning change has occurred he or she would lose all rights

to bring a cause of action for the procedural errors or

procedural due process violations. The Appeals Court's

ruling in this case sets dangerous precedents regarding the

application of O.R.C. 713.121 that are of great public and

general concern to property owners in Ohio. These

concerns take on constitutional ramifications since this

statute if used as in the instant case can cut off a property

owner's procedural due process claims before the property

owner is aware of them and before the violation actually

occurs.

5. Proposition of Law No. 5: A cause of

action for procedural due process

violation or errors in the enactment of a

zoning ordinance do not begin to accrue

under O.R.C. 713.121 until such time as

the infringement of a right arises.

This Court has repeatedly held that a cause of

action does not accrue until actual damage occurs.

Typically this is when ones conduct becomes presently

injurious. See. e.g.. O'Stricter v. Jim Walter Corporation

(1983), 4 Ohio St. 3d 84, 87 Children Hospital v. Ohio

Department of Public Welfare (1982), 69 Ohio St. 2d 523,

526. Teamster Local Union vy. City of Youngstown (1977),

50 Ohio St. 2d 200. 203-204. Mr. Scheetz was not injured

by the enactment of the zoning ordinance in 1990 since

the zoning ordinance itself did not change the zoning of

his property. Mr. Scheetz was first injured in 1992 when

the unnoticed, undiscussed and unadopted new zoning

district map was first published and illegally applied to his

property.

6. Proposition of Law No. 6: Ohio's

“Discovery Rule” regarding the

application of statutes of limitations

applies to the statute of limitations set

out in O.R.C. 713.121.

Ohio's “Discovery Rule” states:

“The statute of limitations commences to

ru. when the plaintiff knows or has

reason to know of the injury which ts the

basis of his action. A plaintiff has reason

to know of his injury when he should have

discovered it through the exercise of

reasonable diligence.” LRL Property v.

Portage Metro Housing Authority (6th

Cir., 1995), 55 F3d 1097, 1107.

Property owners should be given the benefit of Ohio's

“Discovery Rule” regarding the improper enactment of an

amendment to a zoning ordinance. Otherwise, an

ordinance, as in the instant case, could be enacted or

amended and the affected property owner. even exercising

reasonable diligence, may be unaware of the procedural

violation, and would not be able to challenge the same if

the two year period had expired.

D. WHETHER A MUNICIPALITY’S ARBITRARY

EXCLUSION OF MULTIFAMILY APARTMENT

COMPLEXES IS A VIOLATION OF THE U.S.

AND OHIO CONSTITUTIONS.

A municipality’s arbitrary exclusion of a

legitimate housing type is of great general and public

interest and involves substantial constitutional issues.

Multifamily apartment housing provides a viable housing

option for many Ohioans who do not have the financial

resources for home ownership or older persons who prefer

to rent to avoid the time and energy needed to maintain a

house. A municipality should not be permitted to exclude

such a legitimate housing type from its boundaries without

having a rational basis for doing so. Given the urban

sprawl that is common place around Ohio metropolitan

areas it becomes increasingly important that suburban

municipalities and townships accept their fair share of all

types of legitimate housing and refrain from arbitrarily

excluding any type of housing unless they have a rational

basis for doing so.

7. Proposition of Law No. 7: A municipalities

exclusion or restriction of a legitimate housing type

is unconstitutional when it is arbitrary and not

supported by a rational basis.

The defendant in the instant case readily admits

that it has instituted a policy of excluding new multifamily

apartment complexes from its territorial limits. Such an

exclusion or restriction of a legitimate housing type is

unconstitutional when it is arbitrary and not supported by

a rational basis. Gerijo, 70 Ohio St. 3d at 230; City of

Boca Raton vy. Boca Villas Corp. (1979), 371 So. 2d

154.155; Henry Meyer Assoc. y. Village of Moreland Hills

(Ohio App. 8!) Dist. Dec. 8, 1994). No. 67234,

unreported.

CONCLUSION

For the foregoing reasons each of these issues

should be considered by this Court.

Respectfully Submitted.

y, Esq., # S917 1

EY & WITSCHEYX O.,

LFA.

CommonWealth Square

300 N. Cleveland-Massillon Rd., Suite 14

Akron, Ohio 44333

(330) 665-5117

ATTORNEYS FOR APPELLANT

a

Certification

Ihe foregoing document was delivered to Frederick P.

Vergon, Jr.. attorney for appellee, 500 National City

lower, 1965 E. 6th St. Cleveland. Ohio 44114 and

William B. Young, solicitor for appellee, 230 S. Court St.

P.O. Box 220. Medina, Ohio 44258-0220 by regular U.S.

Mail this POE eer ee day of

Jeffrey) I. chey, Esq.

ci.sche.app.mem-3

OPPOSITION

BRIEF)

URE ene coe & <2 ee —eeegren—eSeE

Supreme Court, U.S.

os eS Aas

No. 96-1650 MAY 16 1997

In The | UES

Supreme Court of the United States

~—

October Term, 1996

STANLEY D. SCHEETZ, TRUSTEE OF THE SEVILLE

CORPORATE PARK SUBDIVISION TRUST U/A DATED

DECEMBER 1, 1988,

Petitioner,

VS.

THE VILLAGE OF SEVILLE, OHIO,

Respondent.

On Petition for Writ of Certiorari to the Medina County

Court of Appeals, Ninth Judicial District of Ohio

RESPONDENT’S BRIEF IN OPPOSITION

FREDERICK P. VERGON

Counsel of Record

SMITH, MARSHALL, WEAVER

& VERGON

Attorneys for Respondent

500 National City-E. 6th Bldg.

1965 East Sixth Street

Cleveland, Ohio 44114

(216) 781-4994

71156 [uz

Ae enic

ervices, inc.

(800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21

ear Kone ectener eee uy reatereenncrmeeemteeees,

seus Seat Thy Cait ih RRR AE SRY eS ae ere my?

QUESTION PRESENTED FOR REVIEW

Whether the Petitioner received adequate relief from a lower

court in this case because either the application of Ohio’s two-

part conjunctive test for regulatory “takings” cases follows the

decisions of the United States Supreme Court, or the decisions

of the Ohio courts in this case satisfy the requirements for a

“regulatory takings” analysis as defined by the United States

Supreme Court in Lucas v. South Carolina Coastal Commission.

ii

TABLE OF CONTENTS

Question Presented For Review ...................

Tee OE CARD 6s kvcdceceedes tc

A. Prior Proceedings and Disposition ..........

B. Méisstatements in the Petition ...............

Reasons for Denying the Writ ....................

L

The Ohio Conjunctive Test For Regulatory

“Takings” Cases Follows The Decisions Of The

United States Supreme Court Because It Follows

The History Of Ohio Property Law, Thus Petition

For Writ Of Certiorari Should Be Denied. ....

Ohio’s “Beyond Fair Debate” Standard For

Regulatory Takings Cases Follows The Decisions

Of The United States Supreme Court. ........

Even Assuming That The Ohio Conjunctive Test

For “Takings” Cases Is Invalid, The State Court

iii

Contents

Page

Decisions In This Case Provided The Petitioner

With Adequate Relief And The Petition For Writ

Of Certiorari Should Be Denied. ............ 8

A. If Adequate Relief Has Been Obtained By A

Petitioner In A Lower Court, The United

States Supreme Court Should Dismiss A

Petition For Writ Of Certiorari. ......... 8

B. The Petitioner Could Not Prove Either That

He Had Been Denied All Economically Viable

Uses Of His Land Or That The Respondents’

Zoning Ordinance Did Not Advance A

Legitimate Public Purpose, Therefore

Petitioner Received Adequate Relief And His

Petition For Writ Of Certiorari Should Be

a at Na co ee oy a aE 9

SE ee eee ete ivevea eb beenadae ess 16

TABLE OF CITATIONS

Cases Cited:

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

ether heer leh va cenes secdutbeceean™ 10, 15

Brown v. Cleveland, 66 Ohio St. 2d 93, 420 N.E. 2d

I Se ee Se avabaacewaes 6

Central Motors Corporation v. City of Pepper Pike, 73

Ohio St. 3d 581, 653 N.E. 2d 639 (1995) ....1, 2, 5, 6, 12

iv

Contents

Page

Downing v. Cook, 69 Ohio St. 2d 149, 431 N.E. 995

[ROWE Riser instsiascheseseui Le 6

Euclid v. Amber Realty Co., 272 U.S. 365, 47 S. Ct. 114

PEE Nesndsseabees ibn ec ee 6, 7, 15

Forsyth v. City of Hammond, 166 U.S. 506, 17 S. Ct.

ber niak nordic PET OES POE ET ETERS GT Oar en 8

Gerijo, Inc. v. Fairfield, 70 Ohio St. 3d 223, 63€ N.E.

Pee A iis nick ios ae ts tc G, ty 42

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480

U.S. 470, 107 S. Ct. 1232 (1987) ......... 10, 11, 13, 14

Lucas v. South Carolina Coastal Commission Council,

505 U.S. 1003, 112 S. Ct. 2886 OOPEEE Siw das vce passim

Penn Central Transportation Co. v. City of New York,

438 U.S. 104, 98 S. Ct. 2646 (1978) ...... 10, 12, 13, 14

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.

Rat SO SOME is Gosc Geobisee ue 9

United States Constitution Cited:

PO PONE foo i 1, 9, 10, 11

Rules Cited:

papeenns Coat Bale 201-0 s

Contents

SUTOIND COME TOE BS occ nccccveeassanvicavees

Supsmens Cowmt RM TOD onc cas ccvicccebesunevan

APPENDIX

Appendix A — Plaintiff’s Transcript of Proceedings,

Scheetz v. Village of Seville, in the Medina County Court

of Common Pleas, Case No. 93CV1329 .........

1

Respondents request that the Court deny the petition for

writ of certiorari seeking review of an opinion of the Medina

County Appeals Court, Ninth Judicial District of Ohio. The

Medina County Court of Appeals opinion (No. 2482-M) is

unreported. For the convenience of the Court, all citations to

the opinion will be to the copy in the Petitioner’s Appendix.

Other references will be made to the Petitioner’s Appendix and

to Respondent’s Appendix attached hereto.

STATEMENT OF JURISDICTION

This Court should not exercise jurisdiction over this case

under the “takings” clause of the Fifth Amendment of the

Constitution. The questions presented for review were decided

by the Ohio courts under an analysis that comports with the

United States Constitution and the laws of the State of Ohio.

STATEMENT OF THE CASE

Respondent respectfully oppose the petition for writ of

certiorari, which conveniently tries to cloud the fact that no

regulatory “taking” occurred when the Respondent approved

valid zoning requirements for the Petitioner’s property. For the

most part, the Petition attacks the Ohio courts’ use of the Ohio

test for regulatory takings. However, the Petition neatly ignores

the fact that the Petitioner’s claim fails both the Ohio and United

States Supreme Court’s tests for a “taking.”

The Petition claims that the cases Gerijo, Inc. v. Fairfield,

70 Ohio St. 3d 223, 638 N.E. 533 (1994), and Central Motors

Corporation v. City of Pepper Pike, 73 Ohio St. 3d 581, 653

N.E. 2d 639 (1995), use an improper application of a conjunctive

test for regulatory takings. The Petition’s assertion is false.

Gerijo and Central Motors’ requirement that a claimant prove

that (1) a regulation does not advance a legitimate state interest,

2

and (2) the regulation denies an owner economically viable use

of his land, follows the spirit of this Court’s decision in Lucas v.

South Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886

(1992). The conjunctive test follows Lucas’s allowance for a

“takings” test to be shaped by Ohio’s police power and its history

of property law, particularly zoning law.

Even assuming that the Petition is correct in asserting Gerijo

and Central Motors test should not be used by Ohio courts, the

analysis performed by the Medina County Appeals Court and

the Medina County Court of Common Pleas provided the

Petitioner with adequate relief. Both facets of the Ohio

regulatory takings test are identical to the test in Lucas. The

analysis of both Ohio courts examined the legitimate government

interest of the Respondent and found no problems. Likewise,

both courts found that the Petitioner had not been deprived of

all economic uses of his land. In short, the analysis performed

in this case afforded the Petitioner adequate relief because he

failed both facets of a takings case.

STATEMENT OF FACTS

On December 1, 1988, Petitioner purchased certain

undeveloped property in Guilford Township, Ohio. Prior to the

purchase of the property, Petitioner acted as attorney for the

prior owner and obtained approval from the Medina County

Commissioners for annexation of the property into The Village

of Seville (hereinafter “Respondent”). At the time the Petitioner

purchased the property and it was annexed by the-Respondent

the property was zoned as Section 6 Commercial District under

the Respondent’s then applicable zoning code.

On January 1, 1990, the Respondent adopted a

comprehensive zoning ordinance. Pursuant to the zoning

ordinance, Petitioner’s Property was zoned as Highway Service

Commercial.

;

Cm EL eT eT

an Set all

3

On April 19, 1993, Petitioner applied for an amendment to

the zoning ordinance for Lot No. 765. He requested that the

zoning for Lot 765 be changed from highway commercial to R3

multi-family zoning. After a public hearing, the Respondents

denied the Petitioner’s application for an amendment.

The Petitioner then filed another application for a zoning

amendment dated September 15, 1994 to obtain commercial and

multi-family uses as conditionally permitted uses on his property.

The Respondent denied this amendment, and later voted to

change the zoning to a Commercial District from a Highway

Commercial District. The new Highway Commercial

classification left the Petitioner with many commercial uses for

his property, including gasoline service stations, motels,

restaurants, automotive repair shops, signs, and parking lots.

However, under this new zoning law, as well as the prior

Commercial District zoning no multi-family dwellings were

permitted.

A. Prior Proceedings and Disposition

Petitioner first filed his case in the Medina County Common

Pleas Court in Ohio. He alleged that an unconstitutional

regulatory taking had occurred under the United States and Ohio

constitutions. The Petitioner’s case went to a bench trial

whereupon the trial court filed its final Findings and Order in

favor of the Respondent. The trial court found that Petitioner

failed to establish both facets of the Ohio conjunctive test and

concluded that a proper exercise of Respondent’s police power

occurred.

Petitioner filed a Notice of Appeal in the Medina County

Court of Appeals. Again the Petitioner asserted that the

disjunctive test of Lucas should apply to his case. The appeals

court recognized the Petitioner’s argument, yet affirmed the

4

decision of the trial court because the Petitioner failed to show

that either the zoning denied him of all economically viable use

of his land, or that the Respondent zoning laws did not advance

a legitimate government interest. The appeals court found that

the Petitioner had actually been successful in selling significant

portions of his Property and therefore no economic inviability

could be shown. Likewise, the appeals court found that the

Petitioner presented no credible evidence at trial to prove that

the Respondent did not advance a legitimate interest by zoning

the property. Petitioner did not carry his burden, thus he lost on

both prongs of the takings test.

Petitioner filed a Memorandum in Support of Jurisdiction

in the Ohio Supreme Court, which was denied January 15, 1997,

B. Misstatements in the Petition

The opinion of the Medina County Court of Appeals

correctly sets forth the facts of this case. Factual findings in

that opinion give an accurate depiction of what actually occurred

in the case before this Honorable Court. Therefore, in the

interests of brevity, Respondent respectfully urges this Court to

direct its attention to the appellate court opinion in the

Petitioner’s Appendix, Exhibit C.

Pursuant to the United States Supreme Court Rule 15.1,

Respondent brings the following misstatements of facts

contained in the Petition to the Court’s attention.

Petitioner misstates the facts when he asserts in the Petition

that he has been denied commercial uses that he once had (see

Petition at second Paragraph, p. 2). As the Medina County Court

of Appeals noted in its opinion, the Petitioner was not denied

“uses that he once had” because the ability to use his property

for multi-family dwellings was a conditional use under the

-

5

existing commercial zoning. Special approval would have been

necessary for such a use, and no approval could be gained by

the Petitioner.

Petitioner further misstates the facts by his own admission.

Again, in paragraph 2 of the Petition, he asserts that he has been

denied all economically viable use. Yet, Petitioner also admits

that he sold a parcel of his property to Hardees and that other

parcels were sold, but not “at arm’s length.” Petitioner’s turn of

phrase “at arm’s length” means that he was unable to sell the

property because of the existing market conditions in the area.

The fact remains that Petitioner admits that he sold some of his

property, and that he could still sell other portions of his land.

REASONS FOR DENYING THE WRIT

I.

THE OHIO CONJUNCTIVE TEST FOR

REGULATORY “TAKINGS” CASES FOLLOWS THE

DECISIONS OF THE UNITED STATES SUPREME

COURT BECAUSE IT FOLLOWS THE HISTORY OF

OHIO PROPERTY LAW, THUS THE PETITION FOR

WRIT OF CERTIORARI SHOULD BE DENIED.

The conjunctive test as used in Gerijo, Inc. v. Fairfield, 70

Ohio St. 3d 223, 638 N.E. 533 (1994), and Central Motors

Corporation v. City of Pepper Pike, 73 Ohio St. 3d 581, 653

N.E. 2d 639 (1995), establishes that property owners who

challenge a state zoning regulation must prove that (1) they have

been denied all economically viable use of the property; and

(2) the zoning does not advance a legitimate government interest.

The federal test, as enumerated in Lucas v. South Carolina

Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886 (1992), sets

forth a disjunctive test for regulatory “takings” cases. This test

6

requires that a property owner prove either economic inviability

or failure to advance a legitimate government purpose. While

on its face Lucas might seem to be apposite to the decisions of

the Ohio Supreme Court, the decision in Lucas and cases prior

to it support Ohio’s conjunctive requirement for regulatory

taking cases.

Gerijo and Central Motors follow the history of Ohio

property law regarding zoning ordinances. Ohio property law

grants a presumption of validity to zoning ordinances, finding

that such ordinances are a proper exercise of the state’s police

power. Gerijo at 226; See also Downing v. Cook, 69 Ohio St.

2d 149, 431 N.E. 995 (1982): Brown vy. Cleveland, 66 Ohio St.

2d 93, 420 N.E. 2d 103 (1981).

In Lucas, this Court recognized that an owner’s “reasonable

expectations” regarding the property must be shaped by each

State’s law of property. 505 U.S. at 112 S. Ct. at 2894 (footnote

7). Likewise, in Euclid v. Amber Realty Co., 272 U.S. 365, 47

S. Ct. 114 (1926), this Court found that restrictions on multi-

family dwellings and other structures are within the proper array

of police powers exercised by a state, and more specifically Ohio.

Because this Court recognizes the restriction of multi-family

dwellings and other structures as a legitimate exercise of police

power, this Court must also recognize that such restrictions are

also advancing a legitimate state interest in a State which has a

history of a presumption in favor of those types of zoning

ordinances. As stated earlier, Ohio has a long history of a

presumption in favor of zoning ordinances. See Downing v.

Cook, 69 Ohio St. 2d 149, 431 N.E. 995 (1982); Brown vy.

Cleveland, 66 Ohio St. 2d 93, 420 N.E. 2d 103 (1981).

Therefore, Ohio must be allowed to apply a conjuctive test

ost

7

and require a claimant to prove both of the prongs of the Lucas

test so that the state’s history of zoning law may be continued.

The recognition of an individual state’s property law history in

Lucas, and the specific holding of Amber Realty, must lead to

the conclusion that this Court can and will allow the courts of

Ohio to continue to use the conjunctive test because of Ohio’s

presumption in favor of zoning laws. In a state where there is a

presumption in favor of zoning requirements, a property owner

must “reasonably expect” that his land will be affected by zoning

laws.

Il.

OHIO’S “BEYOND FAIR DEBATE” STANDARD FOR

REGULATORY TAKINGS CASES FOLLOWS THE

DECISIONS OF THE UNITED STATES SUPREME

COURT.

The “beyond fair debate” standard, as enumerated by the

Ohio Supreme Court in Gerijo, Inc. v. Fairfield, 70 Ohio St. 3d

223, 638 N.E. 533 (1994), follows the language of this court in

Euclid v. Amber Realty Co., 272 U.S. 365, 47 S. Ct. 114 (1926).

In Euclid, this Court recognized that the language “beyond fair

debate” was proper in regulatory takings cases. Likewise, in

Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112

S. Ct. 2886 (1992); this Court followed the “fairly debatable”

language that was used in Amber Realty. Unlike the Petitioner’s

assertion, Ohio property owners do not have to satisfy a criminal

standard in regulatory takings cases. As stated before, Ohio

has a presumption in favor of zoning ordinances like the one at

issue in this case. Thus, the standard for overturning a zoning

ordinance must be high. Yet, as the evidence shows, even a

lower standard in this case would have resulted in the failure of

the Petitioner’s claim.

—_ CE

8

Ill.

EVEN ASSUMING THAT THE OHIO CONJUNCTIVE

TEST FOR “TAKINGS” CASES IS IN VALID, THE STATE

COURT DECISIONS IN THIS CASE PROVIDED THE

PETITIONER WITH ADEQUATE RELIEF AND THE

PETITION FOR WRIT OF CERTIORARI SHOULD BE

DENIED.

A. If Adequate Relief Has Been Obtained By A Petitioner

In A Lower Court, The United States Supreme Court Should

Dismiss A Petition For Writ Of Certiorari.

The United State Supreme Court has absolute discretion to

determine if a petition for writ of certiorari should be granted.

Forsyth v. City of Hammond, 166 U.S. 506, 17 S. Ct. 665 (1897).

In Forsyth, Justice David Brewer noted that this Court’s

discretion for granting a writ of certiorari should be “sparingly

exercised.” 166 U.S. at 514, 17S. Ct. at 669. Rule 20(1), of the

Supreme Court Rules follows this reasoning and states that:

Issuance of an extraordinary writ authorized

by 28 U.S.C. § 1651(a) is not a matter of

right, but of discretion sparingly exercised.

To justify the granting of such a writ, the

petition must show that the writ will be in

aid of the Court’s appellate’s jurisdiction, that

exceptional circumstances warrant the

exercise of the Court’s discretionary powers,

and that adequate relief cannot be obtained

in any other form or from any other court.

Sup. Ct. R. 20 (emphasis added).

@

?

9

B. The Petitioner Could Not Prove Either That He Had Been

Denied All Economically Viable Uses Of His Land Or That

The Respondent’s Zoning Ordinance Did Not Advance A

Legitimate Public Purpose, Therefore Petitioner Received

Adequate Relief And His Petition For Writ Of Certiorari

Should Be Denied.

Even assuming that the Ohio test for regulatory takings does

not exactly follow this Court’s decision in Lucas v. South

Carolina Coastal Commission, 505 U.S. 1003, 112 S. Ct. 2886

(1992), Petitioner received adequate constitutional protection

and relief from the analysis of the both the Medina County Court

of Common Pleas and the Medina County Court of Appeals.

The analysis performed by both courts examined the questions

of (1) whether the Petitioner was denied all economically viable

use of his property; and (2) whether the Respondent’s zoning

ordinance advanced a legitimate state interest. Under each facet

of the analysis, the Petitioner failed. As such, review by this

court under a disjunctive test would provide no more

constitutional relief than that which has already been provided

to the Petitioner because the Petitioner would fail both a

conjunctive and disjunctive analysis for regulatory “takings”

cases.

Regulatory “takings” cases brought under the Fifth

Amendment have a long and storied history in our country.

Courts have always sought to strike the proper balance between

the legitimate police power of the state and a property owner’s

right to be compensated for land that is deprived of economic

use. This Court began its analysis in Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393, 43 S. Ct. 158 (1922), when Justice Oliver

Wendell Holmes recognized that if a government regulation goes

too far it will be recognized as a taking.

Years later, the test for determining what exactly “too far”

j

4

5

x

p

;

4

10

meant started to become apparent in Penn Central Transportation

Co. v. City of New York, 438 U.S. 104, 98 S. Ct. 2646 ( 1978).

The City of New York had designated Central Station as a

landmark, not subject to destruction or exterior modification

without review by the New York City Landmark Commission.

Id. The station wanted to raise money by selling the area above

the station for the building of a Skyscraper, but the commission

denied approval for the plan. Jd.

This Court upheld New York City’s ordinance, finding that

no taking occurred under the Fifth Amendment. Several factors

of analysis were enumerated, including: (1) the economic impact

of a regulation on the plaintiff; (2) the extent to which the

regulation has interfered with “distinct investment backed

expectations”; (3) the character of the governmental action; (4)

whether the ordinance prevented a reasonable use of th property;

(5) whether the ordinance is reasonably necessary to effect a

substantial public Purpose; (6) whether the owners of the

property received a benefit commensurate with the burden of

the regulation: and (7) whether the landowner secured an

“average reciprocity of advantage” compared to other

landowners. Jd.

The multi-factor approach of Penn Central remained the

standard until this Court altered the analysis for a “takings”

decision in Lucas v. South Carolina Coastal Commission, 505

U.S. 1003, 112 S. Ct. 2886 (1992). Lucas built upon Penn

Central, and the prior decisions of Agins v. Tiburon, 447 U.S.

255, 100 S. Ct. 2138 (1980)', and Keystone Bituminous Coal

1. In Agins, this Court used a two prong disjunctive test like the one

used in Lucas to determine that the city’s open-space land zoning ordinances,

which restricted a previously purchased five-acre tract of land to single-family

residences and Open-space use, did not take the Property without just

compensation, where the zoning permitted construction of one to five

(Cont'd)

11

Assn. v. DeBenedictis, 480 U.S. 470, 107 S. Ct. 1232 (1987).?

In Lucas, this Court continued to follow the multi-factored

approach of Penn Central. However, a new minimum standard

recognized that, at the very least, a regulatory taking occurs

when a claimant has been deprived of all economically viable

uses for her/his property. Lucas v. South Carolina Coastal

Commission, 505 U.S. 1003, 112 S. Ct. 2886 (1992). This

minimum standard remains unless (1) the regulation prevents a

nuisance; or (2) there is some feature in state law under which

an owner should have recognized that the state could prevent

development.’ /d.

To implement the minimum standard of Lucas, this Court

fashioned a two prong test which found a violation of the Fifth

Amendment if a regulation (1) denies an owner all economically

viable use of his land; or (2) does not substantially advance a

legitimate state interest. Jd. Under this test, the claimant in Lucas

proved to this Court that he had been deprived all economically

viable use of his beachfront property, without ever having to

address the methodology of South Carolina’s statute. /d. In short,

(Cont'd)

residences on the land, advanced legitimate government goals, would benefit

the landowners as well as the public by assuring careful and orderly

development, and neither prevented the best use of the land or extinguished a

fundamental attribute of ownership.

2. In Keystone, this Court held that a statute which required coal

companies to leave undisturbed 50 percent of the coal beneath the surface of

land supporting structures was constitional. This ruling came in spite of the

fact that the statute required coal companies to leave about 27 million tons of

coal in place and deprived them of all value of the support estate that they

had previously purchased from the owners of the surface.

; 3. These exceptions in Lucas are not at issue, since neither “nuisance”

or the legitimacy of the Respondents’ zoning regulation is at issue in this

Petition.

12

this Court established that a property owner could prove a taking

without ever having to prove that the state’s legitimate interest

were not advanced by the chosen regulation. Jd. A claimant need

only prove the economic factors mentioned in Penn Central to

show that her/his property has been deprived of all economically

viable uses under Lucas. Id.

The Petitioner can draw no distinction between the Ohio

and Lucas tests for economic viability. On their face the tests

are the same. Ohio’s test includes both an analysis of (1) whether

a property owner has been deprived of all economically viable

use of her/his '*nd; and (2) whether the state’s regulation

advances a legitiuuate state interest. Gerijo, Inc. v. Fairfield, 70

Ohio St. 3d 223, 638 N.E. 533 (1994), and Central Motors

Corporation v. City of Pepper Pike, 73 Ohio St. 3d 581, 653

N.E.2d 639 (1995). As stated before, Lucas sets out the same

words.

The analysis conducted under the Ohio test and the Lucas

test is identical. Under both tests, the burden is on the Plaintiff

to prove that her/his property has been rendered economically

inviable. Gerijo, Inc. v. Fairfield, 70 Ohio St.3 d 223, 638 N.E.

533 (1994); and Lucas v. South Carolina Coastal Commission,

505 U.S. 1003, 112 S. Ct. 2886 (1992). The language of both

tests is also similar. As the Ohio Supreme Court stated in Gerijo,

“A zoning ordinance denies a property owner an economically

viable use if it denies an owner all uses except those which are

highly unlikely or practically impossible under the

circumstances.” 70 Ohio St. 3d at 228, 638 N.E. 2d at 537-538.

In this way, the Gerijo court followed the analysis of this Court

in Penn Central and Lucas by finding that opportunity loss for

the most economically viable use is not an usurpation of a

property owner’s investment backed expectations.‘ Rather, under

4. Under both the Ohio and Lucas forms of analysis, a decision to bar

the most effective use is not a taking. Under both tests, barring the most

(Cont’d)

13

each of these tests all economically viable uses must be taken

from the claimant’s property. Jd.

As applied in the Petitioner’s case, the Ohio and Lucas test

for economic viability are the same. In Lucas, this Court stated

that for there to be a taking it must be evident that, “... the

owner of real property has been called upon to sacrifice all

economically beneficial uses in the name of the common good,

that is, to leave [the] property economically idle...” 505 U.S.

at 1019, 112 S. Ct. at 2895. (Emphasis included in the original).

The following language from the Medina County Court of

Appeals evidences a similar analysis in the Petitioner’s case:

The evidence before the trial court

demonstrated that Scheetz had been able to

sell substantial portions of the property.

Although he had been unsuccessful in his

attempts to sell the remaining portions of the

property, it was unclear whether the market

might improve over time. Moreover, Scheetz

had not exhausted the full range of

permissible highway service commercial

uses. Rather, he had concentrated his

marketing efforts on large fast food and full

service restaurant chains. Because he had

apparently made no attempts to sell the

property for use as an automotive repair shop

(Cont'd)

effective use of the space above Grand Central Station-building a skyscraper

on top of it-would not be a taking. See generally Penn Central Transportation

Co. v. City of New York, 438 U.S. 104, 98 S. Ct. 2646 (1978). Likewise, this

court did not recognize a “most viable use” argument in Keystone Bituminous

Coal Assn. v. DeBenedictis, 480 U.S. 470, 107 S. Ct. 1232 (1987), even though

the most economically viable use of the land would have been the complete

removal of coal from the land.

14

or any of the other uses permitted in the

highway service commercial district, he did

not establish that he had been deprived of

an economically viable use of his property.

(Petitioner’s Appendix, Exhibit F, pp. 5-6) (emphasis added).°

The preceding passage from the appeals court opinion shows

that the Petitioner would not have survived the economic

viability test as applied in Lucas. In fact, if the claimant in

Lucas had been allowed to sell his beachfront property to a fast-

food chain, it is certain that his case never would have reached

this Court for review.® Likewise, even though Petitioner claims

that he was denied the right to build multi-family dwellings, his

land was not deprived of all of its prior uses.’ Under Lucas and

other decisions of this court, such a partial deprivation is not a

“taking.” See Penn Central Transportation Co. v. City of New

York, 438 U.S. 104, 98 S. Ct. 2646 (1978); and Keystone

Bitum‘nous Coal Assn. v. DeBenedictis, 480 U.S. 470, 107 S.

Ct. 12.2 (1987).

5. Other facts presented at trial showed that the Petitioner was not denied

all economically viable uses of his land. Petitioner’s expert land use planner,

Mr. Majewski, testified that a portion of the property adjacent to the property

owned by the Petitioner was in Guilford Township and that Guilford

Township’s zoning allowed at least 30 uses. Even with the greater number of

uses, other than two parcels, the Guilford Township property is undeveloped.

(Respondent’s Appendix, Exhibit A, pp. 314, 315). As such, no denial of an

“average reciprocity of advantage could be made under Lucas or under the

multi-factored approach of Penn Central.

6. Petitioner admitted in his Petition to this Court that he had sold a

parcel of land to “Hardees” and other buyers. (See Petition at second

paragraph, p. 2).

7. The building of multi-family dwellings is a use that the Petitioner

claims was taken from him. Yet, Petitioner shies away from the fact that

under the Respondents’ original zoning plan, multi-family dwellings were a

conditional use and, at best, speculative.

15

Petitioner failed the second prong of the Lucas test at both

at trial and on appeai in the Ohio courts. At trial, the Medina

County Court of Common Pleas found that Respondent

presented numerous reasons for its zoning decision, including

traffic patterns, impact of taxes, noise, storage problems, utility

and crime. (Respondent’s Appendix, Exhibit A, pp. 333-334).

Evidence aiso established that the Respondent had a legitimate

interest in preventing the development of multi-family dwellings

in the area. (Respondents’ Appendix, Exhibit A, pp. 480-482).

Furthermore, the Medina County Court of Appeals noted that

the Petitioner did not argue that the interests of the Respondent

were not legitimate. (See Petitioner’s Appendix, Exhibit C, p.

7). Petitioner only attacked the evidence that the Village

presented to support the fact that the zoning regulations did

advance those interests. (See Petitioner’s Appendix, Exhibit C,

p. 7). The appeals court noted that there was competent, credible

evidence to support the trial court’s determination that the

Respondent’s ordinance did in fact advance the interests

mentioned above. See Petitioner’s Appendix, Exhibit C, p. 7).

Petitioner’s claim should also fail the second prong in Lucas

because this Court has recognized that zoning regulations like

those put forth in in the Respondents’ ordinance are a proper

method for advancing legitimate state interests. In Euclid v.

Amber Realty Co., 272 U.S. 365, 47 S. Ct. 114 (1926), this Court

recognized that another Ohio zoning regulation, which limited

multi-family dwellings, legitimately advanced state interests like

those at issue in this case. Likewise, in Agins v. Tiburon, 447

U.S. 255, 100 S. Ct. 2138 (1980), this Court noted that zoning

regulations which prevented unwanted urbanization advanced

legitimate state interests. In short, the commercial highway

district employed by the Respondent should be upheld because

it is nearly identical to the regulations used in Agins and Amber

Realty to curb the effects of over crowding, traffic congestion,

taxpact and the like.

16

CONCLUSION

For the aforementioned reasons the Petitioner’s petition for

a writ for certiorari should be denied.

Respectfully submitted,

FREDERICK P. VERGON

Counsel of Record

SMITH, MARSHALL, WEAVER

& VERGON

Attorneys For Respondent

500 National City-E. 6th Bldg.

1965 East 6th Street

Cleveland, Ohio 44114

(216) 781-4994

la

APPENDIX A — PLAINTIFF’S TRANSCRIPT OF

PROCEEDINGS, SCHEETZ V. VILLAGE OF SEVILLE, IN

THE MEDINA COUNTY COURT OF COMMON PLEAS,

CASE NO. 93CV1329

State of Ohio, )

County of Medina, __)

IN THE COURT OF COMMON PLEAS

Case No. 93-CIV-1329

Stanley D. Scheetz, Trustee,

Plaintiff

vs.

Village of Seville, Ohio,

Defendant.

PLAINTIFF’S TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

NICHOLAS T. GEORGE & ASSOCIATES

by Jeffrey Witschey, Esq.,

Attorney on behalf of the Plaintiff.

WILLIAM YOUNG, ESQ. LAW DIRECTOR

SMITH, MARSHALL & WEAVER

by Frederick P. Vergon, Jr., Esq.,

Attorneys on behalf of the Defendant.

2a

Appendix A

[Commencing at page 314]

district, or cannot go there?

A. They cannot. The road has been approved, has not been

completed. It is anticipated that the road will be completed. It

has been platted and approved by the village.

Q. But never completed, is that right?

A. Correct.

Q. You also indicated one of the basis for your opinion was

you felt that the property over here in Guilford Township might

be more appropriate for highway commercial use, am I stating

your position correctly?

A. Yes, it is more attractive to be useful to the highway traveler.

Q. At the present time, that is Guilford Township, and the

Village of Seville has no jurisdiction over that land?

A. Yes.

Q. You indicated there is a service station over here?

A. Not in that quadrant, in the southeast quadrant.

Q. This land up here, which you say is more appropriate for

highway commercial, is zoned what?

A. It is my understanding it is zoned commercial district in the

Guilford Township code.

Q. Approximately how many uses are allowed under the

Guilford Township commercial district?

A. I don’t know the exact number. As I recall looking at the

code, there are a significant number of uses.

ir An ae alee Slt at Ay ew ‘

3a

Appendix A

[315]

Q. I think you said on direct-examination, about thirty?

A. I think so.

Q. Of those thirty uses, were highway commercial type uses

permitted?

A. I can’t tell you for sure, I have to look.

Q. Even though Guilford Township allowed thirty different uses

for that property or land in Guilford Township, there is no

development on that land?

A. There is two buildings on that land, yes.

Q. What is on there?

A. I think one is a plastics company, and another building that

is vacant. It looks like it was a gas station at one time.

Q. Other than the plastics company, the land in Guilford

Township is undeveloped?

A. I believe so, yes.

Q. Just because land is undeveloped doesn’t mean its zoning is

improper, does it?

A. No. It may be undeveloped because zoning is improper.

Q. Just because it is undeveloped could be because of a number

of factors?

A. Yes.

Q. Just because it is undeveloped doesn’t mean there is

something wrong with the zoning?

A. Correct.

4a

Appendix A

* * *

[333]

true?

A.

Q.

A.

Q.

Yes.

And it doesn’t necessarily mean one is right or wrong?

It may.

Are you aware that, I think you are, that the area up here to

the western end of the highway commercial is now multi-family?

A.

2 >Or>re

Yes.

This area off Greenwich Road is multi-family?

Yes.

And this area down here, I think apartments are multi-family?

Yes.

. Did you come to any idea how old these two developments,

or three developments are?

A.

I believe, no, I don’t know. I know the northerly one is under

construction, so it is brand new.

The one just north of Greenwich Road can’t be more than

five or six years old.

The one south, I can’t say.

Q. In the last five years, there have been at least two

developments that are multi-family?

Sa

Appendix A

A. That appears to be the case.

Q. Is it a legitimate concern of a village or municipality as to

the ratio of multi-family to single family homes or [334]

residences?

A. It is an issue that should be researched.

Q. Is it also a legitimate issue as to the ratio between renter

occupied units and owner occupied units in a municipality?

A. If the community suspects there is an issue there, they should

look into it and see if they can substantiate problems.

MR. VERGON: Thank you, Mr. Majewski.

THE COURT: Any redirect, we will do it in the morning.

MR. WITSCHEY: Tomorrow morning?

THE COURT: Yes. It is twenty-five of, and I have to get

out of here.

MR. WITSCHEY: I can probably do it in five minutes.

THE COURT: I don’t have that much time, I have to meet

some people.

You will have, one way or the other, Mr. — what is his

name?

MR. WITSCHEY: Sharpnack.

THE COURT: In the morning first thing.

6a

Appendix A

If you can do what you are talking about in five minutes, it

won’t hurt him to wait five minutes.

See you in the morning at nine o’clock.

* * *

[480] The second one was even more on point, in that it

refers to establishing population densities to prevent or reduce

congestion, and I believe this is the important language, to secure

economy in the cost of providing water supply and sewerage

systems, streets and highways, fire and police protection,

schools, parks and recreation facilities, and other governmental

services.

The purpose statements go on to refer to fostering well

planned industrial, commercial growth, and protecting

developments from the detrimental effects of incompatible

surrounding uses.

When I look at these statements of public purpose, which I

think are very legitimate, reasonable statements that one might

find in a zoning ordinance, and I look at this property in

relationship to development throughout the community, it occurs

to me that to permit multi-family uses in this particular area

would result in those uses being isolated from the main part of

the community, the main residential areas of the community,

thereby running contrary to this public purpose of economy in

the cost of providing services.

That is when you have a residential area that is isolated

from other residential areas, it creates inefficiencies in delivery

of services for things such as police and fire services, when you

have one smaller area [481] isolated from other areas.

7a

Appendix A

When you look at the pattern of development, and the

location of the residential population in this community, it is

oriented, with the exception of one property, entirely to the south

of the interstate, and there are several areas there that show,

even the location of the multi-family zones, which are further

south along Route 3, south of the interstate area.

Q. Let me interrupt you, Greg, if I may.

On the map is the yellow, the residential area?

A. Yes, I believe yellow is the single family residential area,

and the green, I think, is the multi-family zoned areas.

Q. With the exception of this green area, and the little green

area up here, is it fair to say all the residential property in Seville

is south of Greenwich Road?

A. Yes.

Q. Is that what you mean by isolation?

A. Yes.

What I conclude, while other communities may have chosen

to include multi-family along interstate interchange areas, I

believe, given the statement of purposes in the zoning code, and

the particular facts surrounding this community, it is reasonable

for this community to conclude in this particular case multi-

family should not occur as [482] part of that highway commercial

district.

Q. One of the claims is the highway commercial district is too

8a

Appendix A

large, or extends too far off State Route 3. Are you aware of

that?

A. Yes, I am aware of that claim.

Q. Do you have an opinion as to the extent of the highway

commercial district in this case?

A. Yes, I do.

Q. What is that?

A. My opinion is that the highway commercial district, in this

case, is not too large, it is not too far away from the interstate,

and, in fact, is very similar to what you find in other communities

that have the same issue.

Q. Have you, as part of your work on this case, Mr. Dale, done

any investigation as to other interstate intersections in the State

of Ohio?

A. Yes.

Q. Could you tell the Court what investigation you have done?

A. First of ali, I want to indicate, like many people, I am a

frequent interstate traveler. I am aware generally of the

configuration of interstate interchanges, particularly with regard

to my planning and zoning background.

My initial reaction to this is that there was nothing

particularly unusual about the distance of this property ... .

* * *

Noi, Pes

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