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.
;
|
3
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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3
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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11
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
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.