Petition for Writ of Certiorari — City of Mayfield Heights v. Shemo

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Supreme Court, U.S.

FILED

‘V9, 714 vec 11 2002

No.

In The

Supreme Court of the Anited States

CITY OF MAYFIELD HEIGHTS, MAYOR

MARGARET A. EGENSPERGER, et al.,

Petitioners,

MICHAEL A. SHEMO, Trustee,

and LARRY GOLDBERG, Trustee,

Respondents,

On Petition For A Writ Of Certiorari

To The Supreme Court Of The State Of Ohio

PETITION FOR A WRIT OF CERTIORARI

LEONARD F. CARR, Esq. (#0029884)

Counsel of Record

L. BRYAN CARR, Esq. (#0066649)

1392 SOM Center Road

Mayfield Heights, Ohio 44124

Telephone: 440-473-2277

Facsimile: 440-473-0166 ao

ANTHONY J. COYNE, ESQ. (#0039605)

BRUCE G. RINKER, ESQ. (#0017493)

ELI MANOS, Esq. (#0006468)

MANSOUR, GAVIN, GERLACK & MANOS Co., L.P.A.

55 Public Square, Suite 2150

Cleveland, Ohio 44113-1994

Telephone: 216-523-1500

Facsimile: 216-523-1705 Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether a land-use restriction that does not

substantially advance a legitimate public purpose can be

deemed, on that basis alone, to effect a taking of property

requiring the payment of just compensation.

2. Whether the sole remedy available to an owner of

property encumbered by a zoning restriction that does not

substantially advance a legitimate public purpose is

invalidation of the restriction as a deprivation of property

prohibited by the Due Process Clause of the Fourteenth

Amendment.

LIST OF PARTIES

Petitioners not listed in the caption are City of May-

field Heights Council; Charles Pona, President; Gregory Ss.

Costabile; Geno Manfredi; Howard Sonenstein; Donald J.

Manno; Sam Mercurio; and Michael Ballistrea; City of

Mayfield Heights Planning Commission; David Zimmer-

man, Chairman; Margaret A. Egensperger; Bernard

Stadelman; Al Kay; and Howard Sonenstein.

Respondents brought this action in mandamus in the

Supreme Court of Ohio in the statutory form prescribed by

the law of Ohio at Ohio Rev. Code Ann. §2731.04 (Ander-

son 2000), captioned State ex rel. Shemo v. Mayfield Hts.

The case also includes the previous action brought by the

Trustees directly against the City of Mayfield Heights, its

Mayor and members of Council captioned Shemo v. May-

field Hts.

ek velar wes

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED. ...............:sceceseeseeseeeeneees i

Re MI PEASE dvcccssevesesoscssvecsessovevsssenecesvecessoussens ii

TABLE OF AUTHORITIES ........ccccccsoccccccsccccscesscceees Vv

PINE IMEI sisvssccesesecevsssvsccccsocovesenssssscensessees 1

ETE MEET sciscsavcsriscsacescossnssessoavenesonsesesessvssenenss 1

CONSTITUTIONAL PROVISIONS INVOLVED....... 2

STATEMENT OF THE CASE................:ccseceeseeeeeeeees 2

REASONS_FOR GRANTING THE PETITION ......... 10

I. Due Process/Takings Clause Tension............. 10

II. The Fairness Doctrine ................ alice —

III. The Anomaly of a Taking Without Public

I bi ckcichabakansveddhubscgbvbsoneesebieoundavieennesesevens 19

IV. The Decision Below Conflicts With Decisions

of the Supreme Courts of New Jersey, Penn-

sylvania, Rhode Island and Florida ............... 22

II ins svncsdchasinsduisanseiveotbsseousonsenetenuesoseasoes 24

APPENDIX

Opinion of the Supreme Court of Ohio dated April

10, 2002, State ex rel. Shemo v. Mayfield Heights,

95 Ohio St. 3d 59, 765 N.E.2d 345 (2002)............... App. 1

Opinion of the Supreme Court of Ohio dated August

8, 2001, State ex rel. Shemo v. Mayfield Heights,

93 Ohio St. 3d 1, 755 N.E.2d 354 (2001)............... App. 20

Opinion of the Supreme Court of Ohio dated July

18, 2001, State ex rel. Shemo v. Mayfield Heights,

92 Ohio St. 3d 324, 750 N.E.2d 167 (2001)........... App. 30

TABLE OF CONTENTS - Continued

Page

Opinion of the Supreme Court of Ohio dated Feb-

ruary 9, 2000, Shemo uv. Mayfield Heights, 88

Ohio St. 3d 7, 722 N.E.2d 1018 (2000).......ss0ccccreeee App. 34

Order of the Supreme Court of Ohio granting recon-

sideration in part dated October 2, 2002, State ex

rel. Shemo v. Mayfield Heights, 96 Ohio St. 3d

379, 775 N.E.2d 493 (2002)........--sssssesseeesrrereesesees App. 46

Opinion of the Court of Appeals for the Eighth

Appellate District dated August 20, 1998, Mi:

chael A. Shemo, Co-Trustee, et al. v. City of May-

field Heights, Ohio, et al., Case No. 73241........... App. 56

Opinion of the Court of Appeals for the Eighth

Appellate District dated April 3, 1997, Michael A.

Shemo, Co-Trustee, et al. v. City of Mayfield

Heights, Ohio, et al., Case No. i )) ene App. 62

Final Judgment Entry of the Cuyahoga County

Court of Common Pleas dated September 2,

1997, Michael A. Shemo, Co-Trustee, et al. v. City

of Mayfield Heights, Ohio, et al., Case No. CV-

991595 .........csccccsssscssssssssssscscsscsssssscccsccecssssananessesees App. 65

Opinion of the Cuyahoga County Court of Common

Pleas dated May 16, 1996, Michael A. Shemo, Co-

Trustee, et al. v. City of Mayfield Heights, Ohio, et

al., Case No. CV-291595.........:sesseeserenesersenressenes App. 67

ia i tt

TABLE OF AUTHORITIES

Page

CASES:

Agins v. Tiburon, 447 U.S. 255 (1980).........:eeceee 3, 4, 8, 10

Armstrong v. United States, 364 U.S. 40 (1960)................ 13

Brunelle v. Town of South Kingstown, 700 A.2d

BOT CE, BP occccceececctncintenscanisentvinesasitmmaniinatitaiaaia 22

Chicago, Burlington & Quincy Railroad Company

v. Chicago, 166 U.S. 226 (1897) ........:cccsesceessrerecesseeeesees 2

Cincinnati v. Vester, 281 U.S. 439 (1930) ............eeeeeeeeeeeee 20

City of Monterrey v. Del Monte Dunes at Monterrey

Limited, 526 U.S. 687 (1999) ............ccscecccsssscsessesseees 3, 10

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998)...11, 13, 20

Euclid v. Ambler Realty Company, 272 U.S. 365

CRE i ccriccrccaccecclbcsinnctsstetrinnicanntionens sissslediubadeniniesdadndelibbitus 12

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, California,

BI TET, BOG CIT) vccccccccscnesnsssntsevenitesvciceskevenipermansvecnss 15

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

BE ee BO CI nccccieccncesecessascsnssinccsnsenactetuecsotatectnticss 5, 8

Goldberg Cos., Inc. v. Richmond Hts. City Council,

81 Ohio St. 3d 207, 690 N.E.2d 510 (1998)..............00 5, 8

Hawaii Housing Authority v. Midkiff, 467 U.S. 229

1 DIE, ovocceccchsnsonvsssavantiipennccnpstecoussasnielligienemanniaabbdad 2, 20

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

CIUINT x. .sccentaiespeasecinsmianeipediaeabincusiaaiaaeiecaaentete 15

Miller and Son Paving, Inc. v. Plumstead Town-

ship, Bucks County, 552 Pa. 652, 717 A.2d 483 |

TABLE OF AUTHORITIES -— Continued

Page

Palazzolo v. Rhode Island, 533 U.S. 606 (2001)...... 7, 13, 16

Penn Central Transportation Company v. City of

New York, 438 U.S. 104 (1978).......sceeseesserees 7, 10, 13, 16

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

(1922)......ccccsscccrcessssscccsssscessesssessensssessscssnseassnssnnessssnsense 8,9

Pheasant Bridge Corporation v. Township of War-

ren, 169 N.J. 282, 777 A.2d 334 (2001).........-sseeseererereees 22

San Diego Gas & Electric Company v. City of San

Diego, 450 U.S. 621 (1981).........sesessssenererersnsensenenenenenens 19

Shemo v. Mayfield Heights, 88 Ohio St. 3d 7, 722

N.E..2d 1018 (2O000)..........cssccccsesereeeeeeereeeserreeeneneenens 1, 5,9

State ex rel. Shemo v. Mayfield Heights, 92 Ohio St.

3d 324, 750 N.E.2d 167 (2001).........:.sesessereereesreeeesnees 1,6

State ex rel. Shemo v. Mayfield Heights, 93 Ohio St.

3d 1, 755 N.E.2d 354 (2001).........sssesserersesenseesersnensensnes 1

State ex rel. Shemo v. Mayfield Heights, 95 Ohio St.

3d 59, 765 N.E.2d 345 (2002).........:eseeseserseseerereereeseneens 1,7

State ex rel. Shemo v. Mayfield Heights, 96 Ohio St.

3d 379, 775 N.E.2d 493 (2002)........sssessessererrerreeresenes 1.7

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 122 S.Ct. 1465 (2002) ..passim

Tampa-Hillsborough County Expressway Authority

v. A.G.WS. Corporation, 640 So.2d 54 (Fla. 1994)........ 23

Union Oil Company of California v. Worthington,

62 Ohio St. 2d 263, 405 N.E.2d 277 (1980)... 8

Van Horne’s Lessee v. Dorrance, 2 Dallas 304 (US.

Dist. Ct. Pa. 1795) ........sscccsseessseeeseeseeseessereeseeeennneneneens 18

Vii

TABLE OF AUTHORITIES -— Continued

Page

CONSTITUTIONAL AND STATUTORY PROVISIONS:

BB UB.C.. SUBST vccocccccccveccvesccscccssecccscvesscesccceesecesecosoossovsesocees 2

Ohio Rev. Code Ann. §2731.04 (Anderson 2000) ................ ii

UB. Comit. Amin, VV ..ccccsecsccosesescccscsscovasscosonserenecsonse passim

UIT, Gee, RAINE, TREY ceccexceccoccsnevssctentecensnsersennseees 2,12, 13

OTHER AUTHORITIES:

Robert Brauneis, “The Foundation of our ‘Regula-

tory Takings’ Jurisprudence”: The Myth and

Meaning of Justice Holmes’s Opinion in Pennsyl-

vania Coal Co. v. Mahon, 106 Yale L.J. 613, 683,

i ia cleadeemmanenmnnnenelandeell WF

Steven J. Eagle, Substantive Due Process in Regu-

latory Takings: A Reappraisal, 51 Ala. L. Rev.

OTT, IOBB CRBBD) .cenncrscrcrececcosecsecsccssncrencesvserecnvescnsoossevenses 10

The Federalist No. 9 (Alexander Hamilton) (Ban-

beeen: Ree. BID ccccccnerccnercscisecenccscnscccvnscnscsnezesssonses 17, 18

William M. Treanor, The Original Understanding of

the Takings Clause and the Political Process, 95

Colum. L. Rev. 782, 818 (1995) ............ssssssseseeseeeeeeeeeenees 18

OPINIONS BELOW

The opinion of the Ohio Supreme Court issuing the

writ of mandamus ordering Petitioner City of Mayfield

Heights (“City” or “Mayfield Heights”) to appropriate the

property (“Subject Property”) owned by Respondents

Michael A. Shemo and Larry Goldberg, Co-Trustees

(“Trustees”) is reported at 95 Ohio St. 3d 59, 765 N.E.2d

345 (2002) (App., infra, App. 1). The opinion of the Ohio

Supreme Court modifying its judgment in part on the

City’s motion for reconsideration is reported at 96 Ohio St.

3d 379, 775 N.E.2d 493 (2002) (App., infra, App. 46). Other

opinions of the Ohio Supreme Court in the~case are re-

ported at 93 Ohio St. 3d 1, 755 N.E.2d 354 (2001) (App.,

infra, App. 20) and 92 Ohio St. 3d 324, 750 N.E.2d 167

(2001) (App., infra, App. 30). The opinion of the court in an

earlier proceeding in the case captioned Shemo v. Mayfield

Heights is reported at 88 Ohio St. 3d 7, 722 N.E.2d 1018

(2000) (App., infra, App. 34). The opinion of the Cuyahoga

County Court of Appeals for the Eighth Appellate District

dated August 20, 1998 is unreported (App., infra, App. 56).

Its entry of dismissal dated April 3, 1997 is unreported

(App., infra, App. 62). The opinion of the Cuyahoga County

Court of Common Pleas dated September 2, 1997 is

unreported (App., infra, App. 65) and its opinion dated

May 16, 1996 is unreported (App., infra, App. 67).

JURISDICTION

The judgment of the Supreme Court of Ohio issuing

the writ of mandamus was entered on April 10, 2002. A

timely motion for reconsideration was grantea in part,

modifying the judgment, shortening the period of the

temporary taking, but in all other respects was denied on

October 2, 2002. The jurisdiction of this Court is invoked

under 28 U.S.C. §1257.

CONSTITUTIONAL PROVISIONS INVOLVED

The Due Process Clause of the Fourteenth Amend-

ment to the United States Constitution provides:

“nor shall any State deprive any person of life,

liberty, or property, without due process of law;”

U.S. Const. Amend. XIV §1.

The Takings Clause of the Fifth Amendment to the United

States Constitution provides:

“nor shall private property be taken for public

use, without just compensation.” U.S. Const.

Amend. V.

The Takings Clause was incorporated into the law of the

states through the Due Process Clause of the Fourteenth

Amendment by this Court’s decision in Chicago, Burling-

ton & Quincy Railroad Company v. Chicago, 166 U.S. 226

(1897). Hawaii Housing Authority v. Midkiff, 467 U.S. 229,

243, n. 7 (1984).

STATEMENT OF THE CASE

This case squarely presents the issue of whether a

zoning regulation which does not substantially advance a

legitimate public purpose is per se violative of the Takings

Clause of the Fifth Amendment to the United States

Constitution so as to require the payment of compensation

by the governmental entity. In spite of the urging of umici,

this Court declined to review the issue in City of Monterrey

uv. Del Monte Dunes at Monterrey Limited, 526 U.S. 687

(1999), finding the posture of that case unsuitable. Id. at

706. In this case, the Ohio Supreme Court cited this

Court’s application of the Takings Clause of the Fifth

Amendment as binding authority, holding at 95 Ohio St.

3d 63 (App., infra, App. 7):

The United States Supreme Court has consis-

tently held that “application of land-use regula-

tions to a particular piece of property is a taking

only ‘if the ordinance does not substantially ad-

vance legitimate state interests * * * or denies an

owner economically viable use of his land.’” See

United States v. Riverside Bayview Homes, Inc.

(1985), 474 U.S. 121, 126, 106 S.Ct. 455, 88

L.Ed.2d 419, quoting Agins v. Tiburon (1980),

447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d

106; Keystone Bituminous Coal Assn. v. DeBene-

dictis (1987), 480 U.S. 470, 485, 107 S.Ct. 1232,

94 L.Ed.2d 472.

At 95 Ohio St. 3d 64 (App., infra, App. 9), it held that the

Trustees with respect to the “Agins’ disjunctive test,”

“have satisfied the first prong, i.e., the application of the

U-1(1) and U-2-A zoning classifications to the Subject

Property was unconstitutional in that the application of

these classifications did not substantially advance legitimate

state interests.” And at page 65 (App., infra, App. 10) held

that the Trustees did not establish the second prong of the

* Agins v. Tiburon, 447 U.S. 255, 260 (1980).

Agins test that the City’s single-family zoning regulations

deprived the Trustees of all economically viable use of the

Subject Property. This case therefore definitively presents

the issue of whether a zoning regulation found deficient in

that it does not substantially advance a legitimate public

purpose categorically effects a taking for which compensa-

tion is requfred. It poses a concern of local governments

throughout the nation.

The Subject Property is a 22-'2 acre platted but

undeveloped single-family residential subdivision situated

in the City of Mayfield Heights. In 1927 the municipality

adopted a comprehensive zoning ordinance which classi-

fied the Subject Property in the single-family residential

district. It lay vacant and unimproved. On January 21,

1992, Milton A. Wolf and Jack Goldberg, Trustees, after

holding title to the Subject Property for several years,

conveyed it to Michael A. Shemo and Larry Goldberg,

Trustees. The beneficiaries of the trust are Milton A. Wolf

and members of the Goldberg family. On March 19, 1992,

the Trustees, without applying to the pertinent agencies of

the City for amendment of the zoning regulations, filed an

action in the Court of Common Pleas of Cuyahoga County,

Ohio, requesting that the single-family residential zoning

as applied to the Subject Property be declared unconstitu-

tional and urging that the Subject Property be zoned so

that it might be devoted to multi-family development.

In June, 1995, the Trustees dismissed that action and

immediately re-filed, demanding that the single-family

residential classification of the Subject Property be de-

clared unconstitutional, but urging that it be zoned for the

uses permitted by the Zoning Code of the City in the Local

Retail and Wholesale District. In December, 1995, the City

and the Trustees entered into a stipulation that the single-

family residential zoning of the Subject Property was

invalid and provided the City 120 days from the date of

journalization of the judgment entry invalidating the

single-family residential zoning on the Subject Property to

rezone it. The City rezoned the Subject Property into the

Planned Unit Development Districts, permitting single-

family attached and detached residences. On May 16,

1996, the Court of Common Pleas issued judgment-declar-~

ing the residential planned unit development zoning of the

Subject Property unconstitutional, but declined to order

into effect the retail zoning as requested by the Trustees

(App., infra, App. 78). On appeal to the Court of Appeals of

Cuyahoga County, the action was remanded to the trial

court with instructions to determine the reasonableness of

the retail use (App., infra, App. 62). On remand, the trial

court on September 2, 1997, declared the Trustees’ pro-

posed retail use reasonable and enjoined the City from

interfering with the implementation of the proposed retail

use by the Trustees (App, infra, App. 65). On appeal from

that decision of the trial court, the Court of Appeals of

Cuyahoga County, Ohio, remanded the case to the trial

court to reconsider its decision in light of Goldberg Cos., Inc.

v. Richmond Hts. City Council, 81 Ohio St. 3d 207, 690

N.E.2d 510 (1998), which modified the decision of the Ohio

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

223, 638 N.E.2d 533 (1994), upon which the trial court had

relied (App., infra, App. 56). Rather than accepting the

remand, the Trustees appealed to the Ohio Supreme Court,

which upheld the finding of the trial court that the single-

family residential use limitation applied to the Subject

Property failed to advance “legitimate governmental health,

safety and welfare concerns;” Shemo v. Mayfield Heights, 88

Ohio St. 3d 7, 13, 722 N.E.2d 1018, 1021, 1024 (2000) (App.,

infra, App. 34, 44) and so reversed the order of remand of

the Cuyahoga County Court of Appeals. At App., infra,

App. 36 the court held:

“Since there was competent, credible evidence

supporting the trial court’s conclusion that the U-

2-A zoning classification does not substantially

advance a legitimate health, safety, and welfare

concern of Mayfield Heights, we reverse the

judgment of the court of appeals and reinstate

the trial court’s judgment declaring the zoning

ordinance unconstitutional.”

At App., infra, App. 44 it held:

“Since appellants have shown that the city lacks

any legitimate governmental health, safety, and

welfare concerns in support of the U-2-A zoning

classification, we find that the trial court was

correct in declaring the U-2-A zoning ordinance

unconstitutional.”

The Ohio Supreme Court also held that the Trustees’

proposed retail use of the Subject Property was reasonable

and affirmed the trial court’s decision with respect to its

judgment approving tl:e Trustees’ proposed retail plan. Jd.

at App., infra, App. 44. On May 16, 2001, the Trustees

requested a writ of mandamus from the Ohio Supreme

Court to compel the City to bring appropriation proceed-

ings to establish compensation for the alleged temporary

taking during the litigation period. The application was

dismissed on a technicality. State ex rel. Shemo v. Mayfield

Heights, 92 Ohio St. 3d 324, 750 N.E.2d 167 (2001) (App.,

infra, App. 30). The Trustees re-filed the application on

July 23, 2001. The Ohio Supreme Court on April 10, 2002,

issued the writ ordering the City to commence appropriation

proceedings to pay compensation for the temporary taking

of the Subject Property from March 19, 1992, the date of

the filing of the initial complaint for declaratory judgment

protesting the zoning of the Subject Property, to April,

2001, when the City applied the Trustees’ request for retail

use. State ex rel. Shemo v. Mayfield Heights, 95 Ohio St. 3d

59, 69, 765 N.E.2d 345 (2002) (App., infra, App. 1, 18). On

reconsideration, the Ohio Supreme Court modified its

judgment to order that compensation be paid for the

temporary taking commencing with June, 1995, when the

Trustees filed their action suggesting that the appropriate

zoning for the Subject Property was retail and warehouse

development. 96 Ohio St. 2d 379, 384, 775 N.E.2d 493

(2002) (App., infra, 46, 55). The Ohio Supreme Court also

made it clear that a categorical taking had occurred rather

than engaging in the “ad hoc factual inquiries” this Court

has generally stressed in considering land-use regulations

and the Takings Clause. Penn Central Transportation

Company v. City of New York, 438 U.S. 104, 124-125

(1978); Palazzolo v. Rhode Island, 533 U.S. 606 (2001);

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional

Planning Agency, 122 S.Ct. 1465 (2002). In rejection of our

contention that the Trustees had not established that a

taking had occurred under the Penn Central analysis, the

Ohio Supreme Court held at 96 Ohio St. 3d 381, 775

N.E.2d 496 (App, infra, App. 50):

Second, it is not evident that the Penn

Cent./Palazzolo analysis applies to this case, in

which the land-use regulations at issue were held

to be unconstitutional as applied to the property,

ie., the U-1(1) and U-2-A zoning classifications

did not substantially advance legitimate state

interests. Shemo, 95 Ohio St. 3d at 64, 765 N.E.2d

345. Neither Penn Cent. nor Palazzolo involved a

claim that the applicable legislation did not

substantially advance legitimate state interests.

Thus, the Ohio Supreme Court has corstrued the Takings

Clause of the Fifth Amendment to the United States

Constitution to require the payment of compensation

categorically by reason of a zoning ordinance that does not

substantially advance the public welfare and upon invali-

dation of the regulation mandating payment of compensa-

tion for a temporary taking during the period from which

the owner files an action challenging the validity of the

zoning ordinance until the regulation is removed. Ohio law

requires that invalidation of a zoning ordinance does not

leave the property unzoned but directs the trial court to

“give notice to the zoning authority that, within a reason-

able time certain, it may at its option, rezone the prop-

erty.” Union Oil Company of California v. Worthington, 62

Ohio St. 2d 263, 267, 405 N.E.2d 277, 283 (1980). Thus,

under the construction of the Takings Clause of the Fifth

Amendment by the Ohio Supreme Court, compensation for

a temporary taking must be paid notwithstanding the fact

that state law procedures impose delays during change in

the law. Other procedural delays ensued as the Ohio

courts, in construing what they refer to as the two prongs

of the takings holding in Agins v. Tiburon, supra, bounced

from the decision in Gerijo, Inc. v. Fairfield, supra, to

Goldberg Cos., Inc. v. Richmond Hts. City Council, supra.

This Court in the case “that gave birth to ... regula-

tory takings jurisprudence,” Tahoe-Sierra, supra, at 122

S.Ct. 1480, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

(1922), noted at page 413:

Government hardly could go on if to some extent

values incident to property could not be dimin-

ished without paying for every such change in

the general law. As long recognized some values

are enjoyed under an implied limitation and

must yield to the police power. But obviously the

implied limitation must have its limits or the

contract and due process clauses are gone.

Thus, Justice Holmes emphasized the Due Process Clause

as the mainspring of the decision. Justice Brandeis related

to Justice Frankfurter that in Justice Holmes’s mind

Pennsylvania Coal Co. v. Mahon was a substantive due

process case. Robert Brauneis, “The Foundation of our

‘Regulatory Takings’ Jurisprudence”: The Myth and Mean-

ing of Justice Holmes’s Opinion in Pennsylvania Coal Co.

v. Mahon, 106 Yale L.J. 613, 683, n.333 (1996). In its

motion for reconsideration in the Ohio Supreme Court the

City directly raised the applicability of the Due Process

Clause to this case at page 3 of its brief, pointing out that

the initial decision of the Ohio Supreme Court in this

litigation reported at 88 Ohio St. 3d 7, 722 N.E.2d 1018

(App, infra, App. 34):

“is grounded upon the Due Process Clause of the

Fifth and Fourteenth Amendments to the United

States Constitution, which historically has been

applied judicially to repeal irrational land use

limitations imposed by government. State ex rel.

Synod of Ohio United Lutheran Churches in

America v. Joseph (1942), 139 Ohio St. 229; Nec-

tow v. Cambridge (1928), 277 U.S. 172; Moore v.

East Cleveland (1977), 431 U.S. 494, 514 (Ste-

vens, J., concurring in judgment). The remedy

has been judicial repeal of the offending legisla-

tion. A halt is called to the deprivation through

the enforcement of the Due Process Clause.”

REASONS FOR GRANTING THE PETITION

I. Due Process/Takings Clause Tension

This case presents squarely to this Court the issue of

whether an errant or obsolete land-use regulation that

does not substantially advance a legitimate governmental

interest should be categorically treated in the same

manner as physical invasions of land for devotion to public

use by government for which the Takings Clause of the

Fifth Amendment requires the payment of compensation

or whether other factors must be considered such as those

enumerated in Penn Central Transportation Company v.

City of New York, supra, at 438 U.S. 124, “the economic

impact of the regulation on the claimant,” “the extent to

which the regulation has interfered with distinct invest-

ment-backed expectations” and “the character of the

governmental action,” or wiether such a _ regulation

imparting no benefit to the public should be examined

pursuant to the Due Process Clause of the Fourteenth

Amendment rather than the Fifth Amendment Takings

Clause. The amici urged this Court to consider the ques-

tion in City of Monterrey v. Del Monte Dunes at Monterrey

Limited, supra, as is indicated by this Court’s statement at

526 U.S. 706. Our First Question Presented is lifted from

the Solicitor General’s brief in that case as reported at

Steven J. Eagle, Substantive Due Process in Regulatory

Takings: A Reappraisal, 51 Ala. L. Rev. 977, 1023 (2000).

Justice Souter, writing for four Members of the Court in

dissent in Del Monte Dunes, noted that in Agins v. Tibu-

ron, supra:

“One theory of recovery in inverse condemnation

cases is that the taking makes no substantial

contribution to a legitimate governmental purpose.

This issue includes not only a legal component

that may be difficult to resolve, but one so closely

related to similar issues in substantive due

process property claims, that this Court cited a

substantive due process case when recognizing

the theory under the rubric of inverse

condemnation. See Agins, 447 U.S., at 260 (citing

Nectow v. Cambridge, 277 U.S. 183, 188, 48 S.Ct.

447 (1928)).”

In footnote 12 to that quote, Justice Souter states:

“I offer no opinion here on whether Agins was

correct in assuming that this prong of liability

was properly cognizable as flowing from the Just

Compensation Clause of the Fifth Amendment as

distinct from the Due Process Clauses of the

Fifth and Fourteenth Amendments.” (Emphasis

Supplied.)

In Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), this

Court considered retroactive payments to a fund for

retired coal miners challenged as violative of the Fifth

Amendment Due Process Clause and Takings Clause. Five

Members of this Court rejected the analysis of the case

pursuant to the Takings Clause, id. at 539, 554, and

engaged in a Due Process analysis, whereas four Members

of this Court, consisting of the plurality, held the retroac-

tive payment provision of the bill unconstitutional as

violating the Takings Clause of the Fifth Amendment, id.

at 503. Justice Kennedy concurred in the judgment,

stating that the retroactive payment required by the

legislation was invalid under Due Process principles, but

rejected the plurality’s Takings Clause analysis, id. at 539.

State ex rel. Shemo v. Mayfield Heights presents this Court

with a fact-specific proceeding, providing the Court with

an opportunity not heretofore presented to shed light as to

whether a governmental entity is required by the Takings

Clause of the Fifth Amendment to pay compensation by

reason of an obsolete zoning regulation judicially declared

as failing to substantially advance the public health,

safety and welfare, or whether such a regulation is invalid

because it offends the Due Process Clause, which histori-

cally has been the remedy. Euclid v. Ambler Realty Com-

pany, 272 U.S. 365 (1926). In that case this Court upheld

the comprehensive zoning code of the City of Euclid, Ohio,

from the challenge that it violated the Due Process Clause

of the Fourteenth Amendment. Justice Sutherland, writ-

ing for the Court, noted at page 395:

It is true that when, if ever, the provisions set

forth in the ordinance in tedious and minute de-

tail, come to be concretely applied to particular

premises, including those of the appellee, or to

particular conditions, or to be considered in con-

nection with specific complaints, some of them,

or even many of them, may be found to be clearly

arbitrary and unreasonable.

And, writing for the Court two years later, Justice Suther-

land, in Nectow v. Cambridge, 277 U.S. 172 (1928), stated

at page 188:

The governmental power to interfere by zoning

regulations with the general rights of the land

owner by restricting the character of his use, is

not unlimited, and other questions aside, such

restriction cannot be imposed if it does not bear a

substantial relation to the public health, safety,

morals, or general welfare. Euclid v. Ambler Re-

alty Co., supra, p. 395. * * * That the invasion of

the property of plaintiff in error was serious and

highly injurious is clearly established; and, since

a necessary basis for the support of that invasion

is wanting, the action of the zoning authorities

i 13

comes within the ban of the Fourteenth Amend-

ment and cannot be-sustained.

Shemo’s challenge to the Mayfield Heights zoning regula-

tion was not facial, but rather as applied. This Court has

not approved a case in which compensation was ordered to

be paid an owner who established that a land-use regula-

tion diminishing the value of property failed to advance a

legitimate governmental interest. Historically, this Court

has applied the Due Process Clause of the Fourteenth

Amendment and invalidated the legislation by reason

thereof. This case presents the significant question of the

applicability of the Due Process Clause of the Fourteenth

Amendment and the Takings Clause of the Fifth Amend-

ment to the recurrent issue of the treatment of property

burdened by an obsolete or errant land-use regulation that

does not advance a legitimate governmental interest. It is

readily apparent that resolution of that question is of

significant importance to the states and their subdivisions.

II. The Fairness Doctrine

In recent years this Court has frequently relied upon

its statement in Armstrong v. United States, 364 U.S. 40,

49 (1960), relating to “fairness and justice” in determining

the Takings Clause applicable to regulation of property.

Penn Central Transportation Company v. City of New York,

supra, at 123; Eastern Enterprises v. Apfel, supra, at 522;

Palazzolo v. Rhode Island, supra, at 636; Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Regional Planning

Agency, supra, at 1484. Justice O’Connor elaborated on the

assessments involved under the Armstrong rule in Palaz-

zolo v. Rhode Island, supra, at 636 as follows:

Our polestar instead remains the principles set

forth in Penn Central itself and our other cases

that govern partial regulatory takings. Under

these cases, interference with investment-backed

expectations is one of a number of factors that a

court must examine. Further, the regulatory re-

gime in place at the time the claimant acquires

the property at issue helps to shape the reason-

ableness of those expectations.

The Fifth Amendment forbids the taking of pri-

vate property for public use without just compen-

sation. We have recognized that this consti-

tutional guarantee is “‘designed to bar Govern-

ment from forcing some people alone to bear

public burdens which, in all fairness and justice,

should be borne by the public as a whole.’” Penn

Central, supra, at 123-124, 98 S.Ct. 2646 (quot-

ing Armstrong v. United States, 364 U.S. 40, 49,

80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)). The con-

cepts of “fairness and justice” that underlie the

Takings Clause, of course, are less than fully de-

terminate. Accordingly, we have eschewed “any

‘set formula’ for determining when ‘justice and

fairness’ require that economic injuries caused by

public action be compensated by the government,

rather than remain disproportionately concen-

trated on a few persons.” Penn Central, supra, at

124, 98 S.Ct. 2646 (quoting Goldblatt v. Hemp-

stead, 369 U.S. 590, 594, 82 S.Ct. 987, 8 L.Ed.2d

130 (1962)). The outcome instead “depends

largely ‘upon the particular circumstances [in

that] case.’” Penn Central, supra, at 124, 98 S.Ct.

2646 (quoting United States v. Central Eureka

Mining Co., 357 U.S. 155, 168, 78 S.Ct. 1097, 2

L.Ed.2d 1228 (1958)).

We have “identified several factors that have

particular significance” in these “essentially ad

hoc, factual inquiries.” Penn Central, 438 U.S., at

124, 98 S.Ct. 2646. Two such factors are “[t]he

economic impact of the regulation on the claim-

ant and, particularly, the extent to which the

regulation has interfered with distinct invest-

ment-backed expectations.” Jbid. Another is “the

character of the governmental action.” Ibid. The

purposes served, as well as the effects produced,

by a particular regulation inform the -takings

analysis. Jd., at 127, 98 S.Ct. 2646 (“[A] use re-

striction on real property may constitute a ‘tak-

ing if not reasonably necessary to the

effectuation of a substantial public purpose, [ci-

tations omitted], or perhaps if it has an unduly

harsh impact upon the owner’s use of the prop-

erty”); see also Yee v. Escondido, 503 U.S. 519,

523, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992) (Reg-

ulatory takings cases “necessarily entai(]] com-

plex factual assessments of the purposes and

economic effects of government actions”). Penn

Central dees not supply mathematically precise

- variables, but instead provides important guide-

posts that lead to the ultimate determination

whether just compensation is required.

Except with respect to regulations that deny the owner all

beneficial use of property, as in Lucas v. Carolina Coastal

Council, 505 U.S. 1003 (1992), and First English Evangeli-

cal Lutheran Church of Glendale v. County of Los Angeles,

California, 482 U.S. 304 (1987), this Court has not ap-

proved categorical treatment in analysis of a regulation

pursuant to the Takings Clause, as was held by the Ohio

Supreme Court in this case. Justice O’Connor suggests

categorical treatment is not appropriate for a use restric-

tion that does not effect a substantial public purpose.

It is readily apparent that if the Takings Clause is to

be applied to an unwarranted regulation, fairness and

justice require further examination as identified in Penn

Central and elaborated upon by Justice O’Connor in her

concurring opinion in Palazzolo. This case demonstrates

that categorical treatment is inappropriate.

In this case, the character of the Mayfield Heights

action is, in fact, inaction. The single-family residential

zoning on the Subject Property was in effect since 1927,

until the court ordered rezoning in April, 2001. Neither the

Trustees nor their predecessors petitioned the City to

rezone the Subject Property. Instead, the Trustees filed an

action in 1992 requesting t’.e zoning as applied to the

Subject Property be declared unconstitutional and sug-

gesting zoning permitting multi-family development as

appropriate. In 1995, they dismissed the case and without

petitioning the City for rezoning, re-filed an identical

complaint except suggesting that the appropriate zoning

for the Subject Property was local retail and warehouse

development: It is difficult to comprehend how fairness

and justice require compensation and the application of

the Takings Clause to a zoning regulation enacted 70

years ago without petition from the owners to rezone the

property through the normal planning process. The impor-

tance of informed decision-making and the planning

process were stressed by this Court in Tahoe-Sierra,

supra, at 122 S.Ct. 1488. Furthermore, the Trustees,

having elected to pursue the judicial process rather than

the normal procedures for obtaining the change in zoning,

should not benefit from the “normal delays in obtaining

building permits, changes in zoning ordinance, variances,

and the like,” Penn Central, supra, at 482 U.S. 321.

When the Subject Property was acquired by the

owners, it was vacant, undeveloped land platted as a

single-family residential subdivision and requiring the

investment of substantial monies for streets and other

improvements. Just as this Court noted in Tahoe-Sierra,

supra, at 122 S.Ct. 1489, that there is reason to believe

property values often will continue to increase, so it might

reasonably be expected that upon rezuning to a higher and

better use, the value of property increases. In the previous

decision in this case, the court noted that a Costco whole-

sale store was to occupy 75 percent of the retail space on

the Subject Property. (App, infra, App. 23). It is highly

unlikely that the Trustees suffered any economic harm,

and likely that they are being rewarded far beyond their

reasonable expectations.

In evaluating fairness and justice, consideration must

be given to the fact that republican government is the

centerpiece of the Constitution, weighing as heavily in the

framers’ minds as the Bill of Rights. The Federalist No. 9

(Alexander Hamilton). In praise of republican government,

he stated:

The science of politics, however, like most other

sciences has received great improvement. The ef-

ficacy of various principles is now well under-

stood, which were either not known at all, or

imperfectly known to the ancients. The regular

distribution of power into distinct departments —

the introduction of legislative ballances and

checks — the institution of courts composed of

judges, holding their offices during good behav-

iour — the representation of the people in the leg-

islature by deputies of their own election — these

are either wholly new discoveries or have made

their principal progress towards perfection in

othe eeneenneeneennememneneienenanemenemmeieinnientilinmen ig

modern times. They are means, and powerful

means, by which the excellencies of republican

government may be retained and its imperfec-

tions lessened or avoided.

Id. at 38 (Bantam Edition 1988). The framers of the

Constitution, Professor Treanor points out, limited the

Takings Clause to provide compensation when the prop-

erty taken was devoted to public use. See, William M.

Treanor, The Original Understanding of the Takings

Clause and the- Political Process, 95 Columbia L.R. 782,

818 (1995), in which Professor Treanor points out:

Rather, republicanism, which values the right to

property but subjects it to majoritarian delinea-

tion, was also extremely influential. The power of

the republican view of property during this pe-

riod shows that there was no consensus among

the framers that majoritarian decisionmakers

could not be trusted to determine the appropriate

level of protection for property interests.

Property interests were adequately protected in the early

years of the Republic by due process concepts. Van Horne’s

Lessee v. Dorrance, 2 Dallas 304 (U.S. Dist. Ct. Pa. 1795).

In analyzing the fairness of extending the Takings

Clause to a use regulation in effect for over 70 years, found

to fail to substantially fulfill a public purpose, respect

should be extended to legislative judgments which by their

nature are debatable, are susceptible to numerous pres-

sures, and are an essential foundation of our government.

The owners of the Subject Property reasonably anticipated

the process through which their goal was to be accom-

plished. They have reaped a substantial reward. It would

not be fair to impose upon the taxpayers of Mayfield

Heights a penalty because their elected officials did not

concur with the owners concerning the appropriate use of

the Subject Property.

This Court noted in Tahoe-Sierra, supra, at 122 S.Ct.

1463, “[L]and-use regulations are ubiquitous and most of

them impact property values in some tangential way —

often in completely unanticipated ways. Treating them all

as per se takings would transform government regulation

into a luxury few governments could afford.”

Fairness requires that legislative judgments not be

subjected te categorical treatment even though not substan-

tially advan ing a legitimate governmental interest.

III. The Anomaly of a Taking Without Public Benefit

In that the Takings Clause presupposes a public

benefit from governmental exaction, it logically follows

that there can be no taking without a public use. In San

Diego Gas & Electric Company v. City of San Diego, 450

U.S. 621 (1981), Justice Brennan, writing in dissent for

himself and three other Justices of the Court, broached

this suggestion at page 656, noting:

Because the police power regulations must be

substantially related to the advancement of the

public health, safety, morals, or general welfare,

see Village of Euclid v. Ambler Realty Co., 272

U.S. 365, 395, (1926), it is axiomatic that the

public receives a benefit while the offending

regulation is in effect. If the regulation denies

the private property owner the use and enjoy-

ment of his land and is found to effect a “taking,”

it is only fair that the public bear the cost of

benefits received during the interim period be-

tween application of the regulation and the gov-

ernment entity's rescission of it. The payment of

just compensation serves to place the landowner

in the same position monetarily as he would have

occupied if his property had not been taken.

In footnote 23 on that page to that comment, he added:

A different case may arise where a' police power

regulation is not enacted in furtherance of the

public health, safety, morals, or general welfare

so that there may be no “public use.” Although

the government entity may not be forced to pay

just compensation under the Fifth Amendment,

the landowner may nevertheless have a damages

cause of action under 42 U.S.C. §1983 for a Four-

teenth Amendment due process violation.

The appropriation of property by government must be for

the devotion of the property to a public benefit; otherwise

it is illegitimate and invalid. Cincinnati v. Vester, 281 U.S.

439 (1930); Hawaii Housing Authority v. Midkiff, supra, at

467 U.S. 241-243.

A majority of this Court apparently agree with Justice

Brennan’s analysis. Justice Kennedy, concurring in the

judgment in Eastern Enterprises v. Apfel, supra, at 524

U.S. 545, noted:

The Clause operates as a conditional limitation,

permitting the government to do what it wants

so long as it pays the charge. The Clause presup-

poses what the government intends to do is oth-

erwise constitutional:

“As its language indicates, and as the Court has

frequently noted, [the Takings Clause] does not

prohibit the taking of private property, but in-

stead places a condition on the exercise of that

power. This basic understanding of the Amend-

ment makes clear that it is designed not to limit

the governmental interference with property

rights per se, but rather to secure compensation

in the event of otherwise proper interference

amounting to a taking.” First English Evangeli-

cal Lutheran Church of Glendale v. County of Los

Angeles, 482 U.S. 304, 314-315 (1987) (emphasis

and citations omitted).

Justice Breyer, writing for four Justices in dissent, pointed

out at page 554:

The Constitution’s Takings Clause does not ap-

ply. That Clause refers to the taking of “private

property ... for public use, without just compen-

sation.” U.S. Const., Amdt. 5. As this language

suggests, at the heart of the Clause lies a con-

cern, not with preventing arbitrary or unfair

government action, but with providing compensa-

tion for legitimate government action that takes

“private property” to serve the “public” good.

The “private property” upon which the Clause

traditionally has focused is a specific interest in

physical or intellectual property. See, e.g., Penn

Central Transp. Co. v. New York City, 488 U.S.

104, 124 (1978); Ruckelshaus v. Monsanto Co.,

467 U.S. 986 (1984). It requires compensation

when the government takes that property for a

public purpose.

It may be surmised that many land-use regulations

throughout the country have become obsolete and do not

substantially advance the public welfare, and also that

local zoning authorities may enact land-use limitations

held by a court to be arbitrary. The exposure to the public

resources is frightening. A decision from this Court regard-

ing the issues presented by this case is critical to local

government throughout the country. Therefore, important

questions arise in connection with this case and the

Petition should be granted.

IV. The Decision Below Conflicts With Decisions of

the Supreme Courts of New Jersey, Pennsyl-

vania, Rhode Island and Florida

The decision of the Ohio Supreme Court that an

owner is entitled to compensation for a temporary taking

during the time spent in invalidating an arbitrary zoning

ordinance conflicts with the decisions of the Supreme

Courts of New Jersey, Pennsylvania, Rhode Island and

Florida. In Pheasant Bridge Corporation v. Township of

Warren, 169 N.J. 282, 777 A.2d 334 (2001), the court held

at page 336, “[Wle ... reinstate the trial court’s determi-

nation invalidating the zoning ordinance because it is

arbitrary, capricious, and unreasonable as applied to

plaintiff’s property. We hold further that plaintiff has no

cognizable claim that it experienced a temporary taking

during the period in which it successfully challenged the

ordinance.” The court held at 169 N.J. 286, 777 A.2d 336,

“[A] per se compensable taking does not occur as a result of

the temporary application of a zoning ordinance that is

ultimately declared invalid in a judicial challenge to the

municipal zoning authority.”

In Miller and Son Paving, Inc. v. Plumstead Town-

ship, Bucks County, 552 Pa. 652, 717 A.2d 483 (1998), the

court held at 552 Pa. 653, 717 A.2d 484, “[FJor the reasons

that follow, we ... hold that a per se compensable taking

does not result from a zoning ordinance which is ulti-

mately declared invalid.”

In Brunelle v. Town of South Kingstown, 700 A.2d

1075 (R.I. 1997), the court disposed of the landowner’s

Fifth Amendment takings claim at 700 A.2d 1081, stating,

“[H]Je maintains that the period during which defendants

refused to rezone his parcel until ordered to do so by the

Superior Court in December 1990 was a sufficient gov-

ernmental interference with his property so as to amount

to a taking. We disagree.”

In Tampa-Hillsborough County Expressway Authority

v. A.G.W.S. Corporation, 640 So.2d 54 (Fla. 1994), the

court explained at 640 So.2d 57:

Thus, it is evident that while both constitutional

theories involve “takings” and “police power,” the

analysis under due process is different from the

analysis under just compensation. Regulations

found by the courts to be invalid because they

deprive landowners of substantially all use of

their property without compensation are not or-

dinarily struck down as unconstitutional. The

government is forced to choose between paying

just compensation to keep the regulation in effect

or removing the regulation. In situations where

state action is declared an improper exercise of

police power under due process, the regulation is

simply declared unconstitutional.

Therefore, a land use regulation can be held fa-

cially unconstitutional without a finding that

there was an uncompensated taking.

This Court has not had a fact-specific situation ena-

bling it to review arbitrary, invalid land-use regulation

with respect to the Takings Clause. It should grant this

Petition and resolve the subject and the conflict in the

interpretation of the Takings Clause between the Supreme

Court of Ohio and the courts of New Jersey, Pennsylvania,

Rhode Island and Florida.

CONCLUSION

The Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

LEONARD F. Carr, Esq.

(#0029884)

Counsel of Record

L. BRYAN CARR, ESQ.

(#0066649)

1392 SOM Center Road

Mayfield Heights, Ohio 44124

Telephone: 440-473-2277

Facsimile: 440-473-0166

ANTHONY J. COYNE, Esq.

(#0039605)

BRUCE G. RINKER, Esq.

(#0017493)

ELI MANOS, Esq.

(#0006468)

MANSOUR, GAVIN, GERLACK &

MANOS Co., L.P.A.

55 Public Square, Suite 2150

Cleveland, Ohio 44113-1994

Telephone: 216-523-1500

Facsimile: 216-523-1705

Counsel for Petitioner

APPENDIX

Opinion of the Supreme Court of Ohio dated April

10, 2002, State ex rel. Shemo v. Mayfield Heights,

95 Ohio St. 3d 59, 765 N.E.2d 345 (2002)............... App. 1

Opinion of the Supreme Court of Ohio dated August

8, 2001, State ex rel. Shemo v. Mayfield Heights, 93

Ohio St. 3d 1, 755 N.E.2d 354 (2001)... App. 20

Opinion of the Supreme court of Ohio dated July

18, 2001, State ex rel. Shemo v. Mayfield Heights,

92 Ohio St. 3d 324, 750 N.E.2d 167 (2001)........... App. 30

Opinion of the Supreme Court of Ohio dated Feb-

ruary 9, 2000, Shemo v. Mayfield Heights, 88

Ohio St. 3d 7, 722 N.E.2d 1018 (2000).....2-0%........ App. 34

Order of the Supreme Court of Ohio granting

reconsideration in part dated October 2, 2002,

State ex rel. Shemo v. Mayfield Heights, 96 Ohio

St. 3d 379, 775 N.E.2d 493 (2002) ...............seeeeeees App. 46

Opinion of the Court of Appeals for the Eighth

Appellate District dated August 20, 1998, Mi-

chael A. Shemo, Co-Trustee, et al. v. City of May-

field Heights, Ohio, et al., Case No. 73241........... App. 56

Opinion of the Court of Appeals for the Eighth

Appellate District dated April 3, 1997, Michael

A. Shemo, Co-Trustee, et al. v. City of Mayfield

Heights, Ohio, et al., Case No. 70715.............:0006 App. 62

Final Judgment Entry of the Cuyahoga County

Court of Common Pleas dated September 2,

1997, Michael A. Shemo, Co-Trustee, et al. v.

City of Mayfield Heights, Ohio, et al., Case No.

SP a asssnniinnencinensnennisehvesesetuednudidedsdananenibgteiins App. 65

APPENDIX - Continued

Page

Opinion of the Cuyahoga County Court of Common

Pleas dated May 16, 1996, Michael A. Shemo, Co-

Trustee, et al. v. City of Mayfield Heights, Ohio,

et al., Case No. CV-291595 ooo... ccccccccscescescesseceees App. 67

App. 1

THE STATE EX REL. SHEMO ET AL. V. CITY OF

MAYFIELD HEIGHTS ET AL.

[Cite as State ex rel. Shemo v. Mayfield

Hts. (2002), 95 Ohio St.3d 59.]

Mandamus sought to compel city of Mayfield Heights et al.

to commence appropriation proceedings to detrmine the

amount for the city’s temporary taknig or relator’s prop-

erty — Writ granted, when.

(No. 01-1325 — Submitted February 5, 2002 —

Decided April 10, 2002.)

IN MANDAMUS.

Per Curiam. Relators, Michael A. Shemo and Larry

Goldberg, are co-owners as trustees of a 22.6-acre parcel of

land in respondent city of Mayfield Heights. Relators

acquired the parcel in January 1992.

On March 19, 1992, relators filed a complaint in the

Cuyahoga County Court of Common Pleas, naming May-

field Heights and the Ohio Attorney General as defen-

dants. Relators requested a declaratory judgment that the

existing U-1(1) Single-Family House District zoning

classification unconstitutionally restricted the use of the

property to single-family residential development. Rela-

tors initially wanted the property rezoned to permit mid-

rise, multifamily development.

In June 1995, relators voluntarily dismissed the

declaratory judgment action and refiled it. Relators again

requested a judgment declaring that the U-1(1) zoning

classification was unconstitutional as applied to their

property. This time, however, relators requested that the

property be rezoned to U-4 Local Retail and Wholesale

App. 2

District so that retail and warehouse development would

be permitted. Relators alleged that the U-1(1) zoning

classification denied them an economically viable use of

the property without substantially advancing a legitimate

interest in the health, safety, or welfare of Mayfield

Heights.

In December 1995, relators and Mayfield Heights

stipulated that the U-1(1) zoning classification as applied

to relators’ property was invalid. Over relators’ objection,

the city rezoned the property to U-2-A Planned Unit

Development District, which restricted the use of the

property to attached and detached single-family residen-

tial dwellings. Relators then challenged the constitutional-

ity of this new classification in their pending declaratory

judgment action.

In May 1996, following a trial, the common pleas court

held that the U-2-A zoning classification was unconstitu-

tional as applied to relators’ property. The common pleas

court found that the U-2-A zoning classification did not

substantially advance any legitimate health, safety, or

welfare concern of Mayfield Heights and that the U-2-A

zoning rendered the property economically nonviable.

In September 1997, on remand from the court of

appeals, the common pleas court entered a judgment

incorporating its May 1996 declaration that the U-2-A

zoning classification was unconstitutional as applied to the

property and held that relators’ proposed retail use of the

property, as described in their site plan, was reasonable.

The common pleas court ordered that relators make the

improvements to Golden Gate Boulevard specified in their

site plan, that Mayfield Heights take actions to facilitate

these road improvements, that the city and municipal

App. 3

officers named as defendants be enjoined from interfering

with relators’ proposed retail use of the property and

installation of the road improvements, and that the city

and the individual defendants allow retail development

and use consistent with the court’s judgment.

On appeal, the court of appeals vacated the common

pleas court judgment and remanded the cause for further

determination. On further appeal, we reversed the judg-

ment of the court of appeals and reinstated the September

1997 common pleas court judgment. Shemo v. Mayfield

Hts. (2000), 88 Ohio St.3d 7, 722 N.E.2d 1018 (“Shemo I”).

In so holding, we stated that “[s]ince [relators] have shown

that the city lacks any legitimate governmental health,

safety, and welfare concerns in support of the U-2-A zoning

classification, we find that the trial court was correct in

declaring the U-2-A zoning ordinance unconstitutional.”

Id. at 13, 722 N.E.2d at 1024. We also found that compe-

tent, credible evidence supported the common pleas court’s

conclusions that the property was not suitable for residen-

tial use and that relators’ proposed commercial use of the

property was reasonable. Jd. at 12-13, 722 N.E.2d 1018.

In August 2000, Mayfield Heights enacted an ordi-

nance in which it claimed ownership of certain unim-

proved streets located on relators’ property and authorized

the mayor to sell these “paper streets.” These streets had

been dedicated to the city in June 1927, but had never

been constructed. After Mayfield Heights accepted the

dedication of an adjacent subdivision in 1959, the paper

streets were blocked from access to actual streets. The city

did not claim ownership of the paper streets during the

declaratory judgment proceeding even though there was

testimony and evidence concerning them during that

proceeding.

App. 4

Relators subsequently filed a common pleas court

action to enjoin the sale of the paper streets and to declare

that they had been abandoned by the city or, if not aban-

doned, to declare them vacated under R.C. 723.09. In

December 2000, the parties resolved that case by consent

and agreed that the paper streets were vacated and that

relators were declared the owners of the property that

contained the paper streets.

In March 2001, relators applied to respondent May-

field Heights Planning and Zoning Commission for road

improvements consistent with the common pleas court

judgment reinstated by this court in Shemo I. The devel-

opment also required a modification of an easement by an

adjacent property owner for a new access drive. The city

council initially disregarded the property owner’s applica-

tion for an improvement to modify the easement because it

found that relators were unable to demonstrate either that

they had obtained a wetlands permit for the property or

that no permit was required. No city ordinance, however,

authorized the planning commission or city council to deny

building permits based upon environmental regulations.

In April 2001, the planning commission approved the

application for modification of the easement, but it refused

to completely approve relators’ road improvement plans,

instead restricting the use of Maplewood Road, which

provides access to the proposed retail development, to

emergency use. The city council confirmed the decision of

the planning commission. As required by Shemo I, the city

rezoned relators’ property from U-2-A to U-4 in April 2001.

On May 16, 2001, relators filed a complaint in this

court against respondents, Mayfield Heights and its

mayor, city council, and planning commission. Relators

App. 5

requested a writ of mandamus to compel respondents to

grant final approval of their road improvement plans,

including unrestricted, nonemergency access to Maple-

wood Road, in accordance with the September 1997

common pleas court judgment reinstated by this court in

Shemo I. Relators also requested a writ of mandamus to

compel the city to commence appropriation proceedings in

the Cuyahoga County Common Pleas Court, Probate

Division, to determine the amount of the city’s alleged

regulatory taking of relators’ property.

In July 2001, we dismissed without prejudice relators’

mandamus action because they had failed to fully comply

with the affidavit requirement of S.Ct.Prac.R. X(4)(B).

State ex rel. Shemo v. Mayfield Hts. (2001), 92 Ohio St.3d

324, 750 N.E.2d 167 (“Shemo II”).

On July 23, 2001, relators refiled their mandamus

action, which fully complied with S.Ct.Prac.R. X(4)(B). On

relators’ motion, we expedited our consideration of rela-

tors’ mandamus claim relating to their road improvement

plans for the proposed retail development. Upon consid-

eration, we granted a peremptory writ of mandamus to

compel respondents to approve relators’ road improvement

plans in connection with the proposed retail development.

This included unrestricted access to and from Maplewood

Road once the specified conditions are met, except for

vehicles weighing over ten thousand pounds, and granting

all other approvals and permits necessary for the retail

development of the property ordered by the common pleas

court’s September 2, 1997 judgment. State ex rel. Shemo v.

Mayfield Hts. (2001), 93 Ohio St.3d 1, 752 N.E.2d 854

(“Shemo III”). On August 20, 2001, the city council enacted

a resolution consistent with Shemo III by removing the

emergency-use restriction for Maplewood Road.

App. 6

We subsequently granted an alternative writ and

issued a schedule for the presentation of evidence and

briefs on relators’ remaining mandamus claim. State ex rel.

Shemo v. Mayfield Hts. (2001), 93 Ohio St.3d 1431, 755

N.E.2d 354. Relators introduced evidence that “faJs a

direct consequence of the City’s unlawful enforcement of

its U-1(1) and U-2A residential zoning against [the]

Property and the City’s failure to comply with the Trial

Court’s Judgment set forth above, [relators] have been

deprived of the use of [their] Property from March 19,

1992 until August 20, 2001.” In addition, respondents’

actions delayed construction of a store to be built on the

property as part of the development plan from the summer

of 2001 until the spring of 2002.

This cause is now before the court to consider relators’

claim for a writ of mandamus to compel appropriation

proceedings as well as respondents’ request for oral argu-

ment.

Respondents’ Request for Oral Argument

Respondents request oral argument because, among

other reasons, it will afford the parties the opportunity “to

focus upon the significant issues” and will “enhance a

thorough understanding and appreciation of the case.”

We have resolved comparable takings cases without

the necessity of oral argument. See, e.g., State ex rel.

Elsass v. Shelby Cty. Bd. of Commrs. (2001), 92 Ohio St.3d

529, 751 N.E.2d 1032; State ex rel. Painesville v. Lake Cty.

Bd. of Commrs. (2001), 93 Ohio St.3d 566, 569, 757 N.E.2d

347, 351.

App. 7

Based on the foregoing, we deny respondents’ request

and proceed to the merits of relators’ mandamus claim.

Mandamus — Appropriation — Compensable Taking

Relators request a writ of mandamus to compel

respondents to commence appropriation proceedings for

the city’s temporary taking of their property.

The United States and Ohio Constitutions guarantee

that private property shall not be taken for public use

without just compensation. Fifth and Fourteenth Amend-

ments to the United States Constitution; Section 19,

Article I, Ohio Constitution. Mandamus is the appropriate

action to compel public authorities to institute appropria-

tion proceedings where an involuntary taking of private

property is alleged. State ex rel. Elsass v. Shelby Cty. Bd.

of Commrs., 92 Ohio St.3d at 533, 751 N.E.2d 1032.

Relators have the burden of proving their entitlement to

the requested extraordinary relief in mandamus. Id.

We must first determine whether relators have

established a compensable taking of their property.

The United States Supreme Court has consistently

held that “application of land-use regulations to a particu-

lar piece of property is a taking only ‘if the ordinance does

- not substantially advance legitimate state interests * * *

or denies an owner econcmically viable use of his land.’”

See United States v. Riverside Bayview Homes, Inc. (1985),

474 U.S. 121, 126, 106 S.Ct. 455, 88 L.Ed.2d 419, quoting

Agins v. Tiburon (1980), 447 U.S. 255, 260, 100 S.Ct. 2138,

65 L.Ed.2d 106; Keystone Bituminous Coal Assn. v. De-

Benedictis (1987), 480 U.S. 470, 485, 107 S.Ct. 1232, 94

L.Ed.2d 472.

App. 8

We have also adopted this test for a taking caused by

a zoning law. See Goldberg Cos., Inc. v. Richmond Hts.

City Council (1998), 81 Ohio St.3d 207, 211, 690 N.E.2d

510, quoting Agins, 447 U.S. at 260, 100 S.Ct. 2138, 65

L.Ed.2d 106 (“‘The application of a general zoning law to

particular property effects a taking if the ordinance does

not substantially advance legitimate state interests * * *

or denies an owner economically viable use of his land

* kK? “)

This test is disjunctive, i.e., a compensable taking can

occur either if the application of the zoning ordinance to

the particular property is constitutionally invalid, i.e., it

does not substantially advance legitimate state interests,

or denies the landowner all economically viable use of the

land. Although in previous cases we have applied the test

in a conjunctive fashion, those cases involved merely

challenges to the constitutionality of these ordinances and

did not involve takings claims. See, e.g., Gerijo, Inc. uv.

Fairfield (1994), 70 Ohio St.3d 223, 638 N.E.2d 533,

syllabus, modified in part in Goldberg, 81 Ohio St.3d 207,

690 N.E.2d 510, syllabus. Similarly, although some of our

language in Goldberg could be construed to specify that

both of the Agins prongs must be met in order to consti-

tute a compensable taking, see 81 Ohio St.3d at 211, 213,

690 N.E.2d 510, this language is dicta because the land-

owner in Goldberg did not claim that the application of the

challenged zoning regulation to its property constituted a

taking.

We now clarify that satisfaction of either prong of the

Agins test establishes a taking. We implicitly recognized

this in BSW Dev. Group v. Dayton ( 1998), 83 Ohio St.3d

338, 343, 699 N.E.2d 1271, where we noted that “given

BSW’s failure to properly raise any constitutional issue of

App. 9

whether the Dayton historic preservation ordinances

substantially advance legitimate state interests * * * BSW

could only establish entitlement to appropriation proceed-

ings if it established that appellees’ denial of the demoli-

tion permit denied BSW all economically viable use of the

Wilcon Building property.” (Emphasis added.) More

important, this clarification comports with the plain

language of the Agins test. In other words, “[w]here a

regulation places limitations on land that fall short of

eliminating all economically beneficial use, a taking

nonetheless may have occurred * * * ”’ Palazzolo v. Rhode

Island (2001), 533 U.S. 606, 617, 121 S.Ct. 2448, 2457, 150

L.Ed.2d 592, 607.

Relators claim that they have established a taking

because they have satisfied either prong of the Agins

disjunctive test. It is evident that relators have satisfied

the first prong, i.e., the application of the U-1(1) and U-2-A

zoning classifications to their property was unconstitu-

tional in that the application of these classifications did

not substantially advance legitimate state interests. The

parties stipulated that the U-1(1) zoning classification as

applied to relators’ property was unconstitutional, and the

common pleas court found, in the declaratory judgment

' For state appellate cases expressing confusion over whether the

test is conjunctive or disjunctive, see Rumpke Rd. Dev. Corp. v. Union

Twp. Bd. of Trustees (1996), 115 Ohio App.3d 17, 684 N.E.2d 353; MDJ

Preperties v. Union Twp. Bd. of Trustees (Mar. 27, 2000), Clermont App.

Nos. CA99-02-013 and CA99-02-019, unreported, 2000 WL 313502;

James Place Properties, Inc. v. Madison Twp. Bd. of Trustees (Sept. 25,

1998), Lake App. No. 97-L-143, unreported, 1998 WL 682347; cf. Wilson

v. Union Twp. Trustees (Oct. 26, 1998), Clermont App. No. CA98-06-036,

unreported, 1998 WL 744089, holding that Goldberg adopted the Agins

disjunctive test for takings claims.

App. 10

reinstated by this court in Shemo I, that the U-2-A zoning

classification was also unconstitutional because, as ap-

plied to relators’ property, it did not substantially advance

any legitimate health, safety, or welfare concern of May-

field Heights. Respondents are collaterally estopped from

asserting otherwise. See State v. Bey (1999), 85 Ohio St.3d

487, 491, 709 N.E.2d 484, quoting Thompson v. Wing

(1994), 70 Ohio St.3d 176, 183, 637 N.E.2d 917 (“‘Collat-

eral estoppel [issue preclusion] prevents parties * * * from

relitigating facts and issues in a subsequent suit that were

fully litigated in a prior suit’”).

It is less clear whether relators satisfied the second

prong of the Agins test, i.e., that the application of the U-

1(1) and U-2-A zoning classifications to their property

denied them all economically viable use of their land. In

this regard, our judgment in Shemo I, which reinstated

the common pleas court’s September 1997 declaratory

judgment, did not determine this issue. Although in

Shemo I we concluded that relators introduced competent,

credible evidence supporting the declaration that the

property was not suitable for residential use, that does not

necessarily mean that no economically viable use re-

mained upon the application of the unconstitutional

zoning classifications. And even though relators’ evidence

in this mandamus action states that the U-1(1) and U-2-A

residential zoning deprived them of “the use of [their]

Property,” it does not specify that it deprived them of all

economically viable use of their property. (Emphasis

added.) Relators therefore did not establish the second

prong of the Agins test.

Nevertheless, because relators need to establish only

one prong of the Agins disjunctive test in order to prove a

taking, their satisfaction of the first prong is sufficient.

App. 11

The U-1(1) and U-2-A single-family residential zoning

classifications were unconstitutionally applied to relators’

property, and the property was, in fact, not suitable for

this residential use. Therefore, relators have proved a

taking of their property.

Effect of Existence of Contested Zoning

at the Time of Acquisition on Takings Claim

Respondents contend that there can be no taking

because the challenged single-family residential zoning

existed at the time relators acquired the property and

respondents did not further restrict the preexisting resi-

dential use of the property after relators’ acquisition of it.

Respondents’ contention lacks merit. The United

States Supreme Court recently rejected a similar argu-

ment that a purchaser or a successive title holder is

deemed to have notice of an earlier-enacted land restric-

tion and is barred from claiming that it effects a taking:

“The theory underlying the argument that post-

enactment purchasers cannot challenge a regulation under

the Takings Clause seems to run on these lines: Property

rights are created by the State. *** So, the argument

goes, by prospective legislation the State can shape and

define property rights and reasonable investment-backed

expectations, and subsequent owners cannot claim any

injury from lost value. After all, they purchased or took

title with notice of the limitation.

“The State may not put so potent a Hobbesian stick

into the Lockean bundle. The right to improve property, of

course, is subject to the reasonable exercise of state

authority, including the enforcement of valid zoning and

App. 12

land-use restrictions. * * * The Takings Clause, however,

in certain circumstances allows a landowner to assert that

a particular exercise of the State’s regulatory power is so

unreasonable or onerous as to compel compensation. Just

as a prospective enactment, such as a new zoning ordi-

nance, can limit the value of land without effecting a

taking because it can be understood as reasonable by all

concerned, other enactments are unreasonable and do not

become less so through passage of time or title. Were we to

accept the State’s rule, the post-enactment transfer of title

would absolve the State of its obligation to defend any

action restricting land use, no matter how extreme or

unreasonable. A State would be allowed, in effect, to put an

expiration date on the Takings Clause. This ought not to be

the rule. Future generations, too, have a right to challenge

unreasonable limitations on the use and value of land.

“Nor does the justification of notice take into account

the effect on owners at the time of [the] enactment, who

are prejudiced as well. * * * The proposed rule is, further-

more, capricious in effect. The young owner contrasted

with the older owner, the owner with the resources to hold

contrasted with the owner with the need to sell, would be

in different positions. The Takings Clause is not so quix-

otic. A blanket rule that purchasers with notice have no

compensation right when a claim becomes ripe is too blunt

an instrument to accord with the duty to compensate for

what is taken.” (Emphasis added and citations omitted.)

Palazzolo, 533 U.S. at 626-628, 121 S.Ct. at 2462-2463,

150 L.Ed.2d at 613-614.

Respondents’ reliance on cases like Community

Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning

Appeals (1993), 66 Ohio St.3d 452, 613 N.E.2d 580, and

Singer v. Fairborn (1991), 73 Ohio App.3d 809, 598 N.E.2d

App. 13

806, is misplaced. Community Concerned Citizens involved

a challenge to an administrative denial of a conditional-

use permit rather than a takings claim premised on the

unconstitutional application of a zoning ordinance. And in

Singer, the landowner challenged a city’s denial of his

request for rezoning rather than the constitutionality of

the ordinance itself. 73 Ohio App.3d at 815, 598 N.E.2d

806.

Effect of Invalidation of Challenged

Zoning Ordinances on Takings Claim

Respondents next assert that once the zoning ordi-

nances were invalidated as applied to relators’ property,

the case is terminated and relators are not entitled to

compensation for the period that the unconstitutional

ordinances were applied to the property. Respondents cite

our following statement from Goldberg, 81 Ohio St.3d at

213, 690 N.E.2d 510:

“If the landowner has challenged the constitutionality

of zoning and also alleged that it constitutes a taking of

the property, the case is terminated if the zoning is found

to be unconstitutional, because the landowner is free of the

zoning that restricted the use of the land.”

Respondents’ contention is meritless. The cited dicta

did not consider the possibility of a claim for temporary

taking because the landowner therein did not claim a

taking. Id., 81 Ohio St.3d at 213, 690 N.E.2d 510.

More important, the United States Supreme Court

has declared that temporary takings are compensable:

“Once a court determines that a taking has occurred,

the government retains the whole range of options already

App. 14

available — amendment of the regulation, withdrawal of

the invalidated regulation, or exercise of eminent domain.

Thus we do not, as the Solicitor General suggests, ‘permit

a court, at the behest of a private person, to require the...

Government to exercise the power of eminent domain... .’

* * * We merely hold that where the government’s activi-

ties have already worked a taking of all use of property, no

subsequent action by the government can relieve it of the

duty to provide compensation for the period during which

the taking was effective.” (Ellipsis sic.) First English

Evangelical Lutheran Church of Glendale v. Cty. of Los

Angeles (1987), 482 U.S. 304, 321, 107 S.Ct. 2378, 96

L.Ed.2d 250.

Although First English involved the second prong of

the Agins takings test rather than the first prong, its

holding “still contains nuggets of language helpful to

resolution of some other inverse condemnation issues not

directly addressed.” See, generally, 8 Rohan & Reskin,

Nichols on Eminent Domain (3 Ed.2001) 14E-22, Section

14E.04. In other words, “(t]he First English court stated

that damages from ‘temporary’ takings, that is, resulting

from interim ordinances, or presumably, from ordinances

intended to be permanent but later invalidated by the

courts as a taking and therefore effectively transformed

into an interim ordinance, are to be ‘measured by the

principles normally governing the taking of a right to use

property temporarily, that is, in the same way as in

eminent domain actions for temporary use of property.”

(Footnote omitted.) Id. at 14E-23, Section 14E.04[2],

quoting First English, 482 U.S. at 318, 107 S.Ct. 2378, 96

L.Ed.2d 250.

Therefore, the invalidation of the U-1(1) and U-2-A

residential zoning ordinances as applied to relators’

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App. 15

property did not relieve respondents of their duty to

compensate relators for the temporary taking of their

property. When the burden on the landowner “results from

governmental action that amounted to a taking, the Just

Compensation Clause of the Fifth Amendment requires

that the government pay the landowner for the value of

the use of the land during this period. * * * Invalidation of

the ordinance or its successor ordinance after this period

of time, though converting the taking into a ‘temporary

one, is not a sufficient remedy to meet the demands of the

Just Compensation Clause.” First English, 482 US. at

319, 107 S.Ct. 2378, 96 L.Ed.2d 250.

Delays in Use; Paper Streets

Respondents claim that relators were not entitled to

compensation because they were not prepared to make the

required access road improvements for retail use as

authorized by the court until March 2001, when they

submitted their road improvement plans to Mayfield

Heights, and relators did not address a wetlands issue

concerning their development of property until November

2000.

The United States Supreme Court emphasized in

First English that it expressed no opinion on “normal

delays in obtaining building permits, changes in zoning

ordinances, variances, and the like” in regulatory inverse

condemnation cases. 482 U.S. at 321, 107 S.Ct. 2378, 96

L.Ed.2d 250.

Respondents here, however, applied unconstitutional

zoning classifications to relators’ property for over nine

years after relators acquired the property. Any delays by

relators did not contribute to respondents’ delay in finally

App. 16

rezoning the property to U-4. In fact, as established by

relators, there was never a substantive wetlands issue.

Respondents further claim that there is no com-

pensable taking because the city owned “paper streets”

until the December 2000 consent entry vacating the

streets and declaring relators the owners of the property.

The evidence, however, establishes that Mayfield Heights

abandoned the paper streets long before the taking of the

property here.

The land constituting the paper streets was dedicated

to the city in 1927. Once land is dedicated, it is held in

trust for street or alley purposes and reverts to the grantor

or those claiming under the grantor when it is abandoned

or vacated. See, e.g., State ex rel. Bedard v. Lockbourne

(1990), 69 Ohio App.3d 452, 457, 590 N.E.2d 1327; Chilli-

cothe Bowling Lanes, Inc. v. Kitchen Collection, Inc. (Aug.

15, 1995), Ross App. No. 94CA2066, unreported, 1995 WL

495959. Nonuse of the property, i.e., ceasing all acts of

enjoyment on the property, must occur for at least twenty-

one years in order to constitute abandonment. Nail & Iron

Co. v. Furnace Co. (1889), 46 Ohio St. 544, 22 N.E. 639,

paragraph two of the syllabus; Anderson v. Alger (May 14,

1999), Hardin App. No. 6-98-10, unreported, 1999 WL

378377. The city never constructed or used the paper

streets here.

In fact, when Mayfield Heights accepted the dedica-

tion of an adjacent subdivision in 1959, access to these

never-constructed streets from actual streets was blocked.

The city’s 1959 acceptance of this dedication consequently

evinced its intent to abandon the paper streets, and its

nonuse of these streets continued for over the requisite

App. 17

twenty-one-year period before the taking here. See Ander-

son, citing Wyatt v. Ohio Dept. of Transp. (1993), 87 Ohio

App.3d 1, 5, 621 N.E.2d 822, regarding the requirement of

an intent to abandon. Therefore, relators owned the

property consisting of the “paper streets” at the time the

temporary taking occurred because the city had aban-

doned the property.

Res Judicata

Respondents finally argue that res judicata bars

relators’ takings claim because relators could have raised

their takings claim in their declaratory judgment action,

which was the subject of Shemo I. Respondents are correct

that res judicata generally bars litigation of all claims that

either were or might have been litigated in a first lawsuit.

State ex rel. Carroll v. Corrigan (2001), 91 Ohio St.3d 331,

332, 744 N.E.2d 771.

Unlike other judgments, however, and consistent with

the persuasive weight of authority, a declaratory judgment

is not res judicata on an issue or claim not determined

thereby even though it was known and existing at the time

of the original action. See Jamestown Village Condo.

Owners Assn. v. Market Media Research, Inc. (1994), 96

Ohio App.3d 678, 685-687, 645 N.E.2d 1265. Thus, a

declaratory judgment determines only what it actually

decides and does not preclude other claims that might

have been advanced. 1 Restatement of the Law 2d, Judg-

ments (1982) 337, Section 33, Comment c; Ketchel v.

Bainbridge Twp. (1992), 79 Ohio App.3d 174, 177-178, 607

N.E.2d 22.

App. 18

Therefore, relators’ failure to raise their takings claim

in their previous declaratory judgment action does not bar

their takings claim in this mandamus proceeding.

Temporary Taking — Duration and Measure of Damages

Relators request compensation for the period from

March 19, 1992, when they filed a declaratory judgment

action challenging the existing U-1(1) zoning classifica-

tion, until August 20, 2001, when the city council enacted

a resolution removing the emergency-use restriction for

one road providing access to the proposed retail develop-

ment.

Under the first prong of the Agins test, relators

established a temporary taking during the time that the

U-1(1) and U-2-A zoning classifications were unconstitu-

tionally applied to their property. These single-family

residential classifications were applied to their property on

March 19, 1992, the date they claim as the beginning date

of the temporary taking. But the zoning classifications had

been invalidated and the requested zoning, U-4, was

applied by Mayfield Heights to their property in April

2001. Although the Maplewood Road emergency-use

restriction was not removed until August 2001, April 2001

is the ending date for the temporary taking because the

challenged zoning regulations no longer applied to rela-

tors’ property. And relators did not establish that they

were denied all economically viable use for their property

under the second prong of the Agins test after the rezoning

in April 2001.

For the measure of damages, relators are entitled to

the diminution in the value of the use of their property

during the period of the temporary taking. See Norwood v.

App. 19

Sheen (1933), 126 Ohio St. 482, 494, 186 N.E. 102; First

English, 482 U.S. at 319, 107 S.Ct. 2378, 96 L.Ed.2d 250.

Conclusion

Based on the foregoing, relators have established their

entitlement to the requested extraordinary relief in

mandamus to compel respondents to commence appropria-

tion proceedings to determine the amount of the city’s

temporary taking of relators’ property. Therefore, we grant

the writ.

Writ granted.

Moyer, C.J., RESNICK, COOK and LUNDBERG STRATTON,

JJ., concur.

FE. SWEENEY AND PFEIFER, JJ., concur but would also

award attorney fees.

Douglas, J., concurs in judgment.

Kahn, Kleinman, Yanowitz & Arnson Co., L.PA.,

Sheldon Berns and Benjamin J. Ockner, for relators.

Leonard F. Carr and L. Bryan Carr, Calfee, Hatler &

Griswold, L.L.P., and Phillip J. Campanella, for respon-

dents.

App. 20

THE STATE EX REL. SHEMO ET AL. v.

CiTy OF MAYFIELD HEIGHTS ET AL.

[Cite as State ex rel. Shemo v.

Mayfield Hts. (2001), 93 Ohio St.3d 1.]

Municipal corporations — Zoning — Motion for expedited

consideration of relator’s mandamus claim to compel

city of Mayfield Heights et al. to approve relators’ ap-

plication for road improvement plan granted — Motion

for expedited consideration of relators’ mandamus

claim to compel appropriation pruceedings denied —

Peremptory writ of mandamus to compel respondents

to approve relators’ road improvement plans in con-

nection with the proposed development of their prop-

erty granted.

(No. 01-1325 — Submitted July 24, 2001 -

Decided August 8, 2001.)

IN MANDAMUS.

ON MOTION FOR EXPEDITED CONSIDERATION

AND FOR PEREMPTORY WRIT.

Per Curiam. Relators, Michael A. Shemo, Trustee,

and Larry Goldberg, Trustee, are co-owners of an undevel-

oped parcel of land containing approximately twenty-two

acres located in respondent city of Mayfield Heights. The

property was zoned U-2-A, which is a classification for

cluster single-family residences. On May 16, 1996, follow-

ing a lengthy trial in an action for declaratory and injunc-

tive relief brought by relators against Mayfield Heights

and other municipal defendants, the Cuyahoga County

Court of Common Pleas issued an order declaring the

city’s U-2-A zoning classification to be unconstitutional as

applied to relators’ property.

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App. 21

On September 2, 1997, the common pleas court

entered a judgment incorporating its previous declaration

and held that relators be “permitted to use and develop

their Property generally consistent with the prepared Site

Plan proposed by Keera [sic] Kekst * * * introduced into

evidence at trial and consistent with the terms of the

recorded deed restrictions * * * and recorded access ease-

ment (Plaintiffs’ Exhibit 82).” The judgment authorized

relators to use the property for their proposed retail use.

The site plan provides for access to the property through

Maplewood Road and an access driveway from Golden

Gate Boulevard.

Under one of the recorded deed restrictions, “[nJo

automobile traffic (except municipal law enforcement or

emergency vehicles) shall be permitted to access to and

from any retail building or use on the Property directly to,

from or onto Maplewood Road unless and until [1] [the

relators have] recorded an easement providing for auto-

mobile access to and from the Property and Golden Gate

Boulevard across the retail zoned properties abutting the

southerly boundary of the Property * ** and [2] the road

improvements for the Golden Gate Boulevard Access and

related *** improvements * ** have been completed.”

Another of the deed restrictions prohibits vehicles weigh-

ing over ten thousand pounds from accessing relators’

property from Maplewood Road. Thus, once the Golden

Gate Boulevard easement and access improvements have

been completed, only the deed restriction regarding vehicle

weight would apply to Maplewood Road.

The common pleas court further ordered in its Sep-

tember 2, 1997 judgment entry that relators make the

improvements to Golden Gate Boulevard described in their

site plan, that Mayfield Heights take any and all actions

App. 22

to facilitate these road improvements, that the city and

the other municipal defendants be enjoined from interfer-

ing with relators’ proposed retail use of their property and

installation of the road improvements, and that the city

and the other defendants issue all approvals and permits

to allow such retail development and use consistent with

the court’s judgment.

Subsequently, on appeal, the court of appeals vacated

the common pleas court judgment and remanded the cause

for further determination. On further appeal to this court,

we reversed the judgment of the court of appeals and

reinstated the judgment of the common pleas court. Shemo

v. Mayfield Hts. (2000), 88 Ohio St.3d 7, 722 N.E.2d 1018

(“Shemo I”). In so holding, we rejected the city’s contention

that the common pleas court erred in failing to hold that

decreasing traffic congestion is a legitimate governmental

concern in part because relators “have also proposed to

limit direct access from their property to the residential

streets to cases of emergency only.” Id., 88 Ohio St.3d at

12, 722 N.E.2d at 1023. We did not, however, modify the

common pleas court’s judgment. Id., 88 Ohio St.3d at 14,

722 N.E.2d at 1025.

In April 2001, the committee to re-elect respondent

Mayfield Heights Mayor Margaret A. Egensperger circu-

lated a campaign flier noting that neither the city nor its

residents wanted the proposed development and that the

Ohio “Supreme Court Justices hold the sole blame for this

fiasco.” The flier also contained statements that respon-

dents Mayor Egensperger and city council would not open

Maplewood Road to through traffic except for emergency

vehicles and that “only the Supreme Court can open

Maplewood Road to full traffic.” (Capitalization and

emphasis omitted.)

App. 23

On April 16, 2001, respondent Mayfield Heights

Planning Commission voted to approve a preliminary site

plan in connection with relators’ proposed development,

but, over relators’ objections, without Maplewood Road

access other than for emergency purposes. At the planning

commission meeting, Mayor Egensperger stated, “I have

no problem opening Maplewood for emergency traffic only,

but until the Supreme Court comes back and says the City

of Mayfield Heights will open Maplewood, as far as 'm

concerned, we will not open it.”

Relators’ development plan includes a Costco Whole-

sale (“Costco”) store that will occupy seventy-five percent

of the retail space on the property. Unless respondents

approve relators’ road improvement plans, which include

general access to the development from Maplewood Road,

Costco will cancel its plans for a store on the property and

relators may suffer irreparable harm.

On April 23, the city council confirmed the decision of

the planning commission. On May 7, the planning com-

mission gave final approval to the site plan as amended to

limit Maplewood Road traffic to relators’ property to

emergency traffic. On May 14, the city council confirmed

the planning commission’s final approval of the project as

amended.

On May 16, relators filed a complaint in this court

against respondents, Mayfield Heights and its mayor, city

council, and planning commission. Relators requested a

writ of mandamus to compel respondents “to grant final

approval of Relators’ Road Improvement Plans [in connec-

tion with the proposed development], including unre-

stricted access to and from Maplewood Road except for

vehicles weighing more than [ten thousand pounds], to

| App. 24

grant all other approvals and permits necessary for the

retail development of the Property,” and to commence

appropriation proceedings in the Cuyahoga County Com-

mon Pleas Court, Probate Division, to determine the

amount of the city’s alleged regulatory taking of relators’

property. Relators’ complaint contained a verification by

relator Shemo, but Shemo did not specify in his verifica-

tion that the allegations of his complaint were based on

his personal knowledge. Relators also filed a motion for a

peremptory writ. On May 17, relators filed a motion for

expedited consideration of their motion for peremptory

writ. Respondents subsequently filed a motion to dismiss,

and relators filed a memorandum in opposition to the

dismissal motion.

On July 18, 2001, we dismissed without prejudice

relators’ mandamus action because they failed to fully

comply with the affidavit requirement of S.Ct.Prac.R.

X(4)(B). State ex rel. Shemo v. Mayfield Hts. (2001), 92

Ohio St.3d 324, 750 N.E.2d 167 (“Shemo II”).

On July 23, 2001, relators refiled their mandamus

action, which now fully comports with S.Ct.Prac.R.

X(4)(B).

This cause is now before the court upon relators’

motions for expedited consideration and for a peremptory

writ.

Motion to Expedite

We generally await a response before determining

entitlement to the requested extraordinary writ. See

S.Ct.Prac.R. X(5). See, also, State ex rel. Cleveland Elec.

Illum. Co. v. Cuyahoga Cty. Court of Common Pleas (2000),

App. 25

88 Ohio St.3d 447, 449, 727 N.E.2d 900, 902. But under

S.Ct.Prac.R. XIV(4)(C), we can act sooner if “the interests

of justice warrant immediate consideration.” See State ex

rel. Taft-O’Connor ’98 v. Franklin Cty. Court of Common

Pleas (1998), 83 Ohio St.3d 487, 488, 700 N.E.2d 1232,

1233.

This case warrants expedited consideration of relators’

claim for a writ of mandamus to compel respondents to

grant final approval of its road improvement plans and to

grant all other approvals and permits necessary for the

retail development of the property. Relators have chal-

lenged respondents’ attempts to prohibit their retail use of

the property for over five years, and over a year ago, we

reinstated the September 1997 common pleas court

judgment they seek to enforce. Shemo I, 88 Ohio St.3d 7,

722 N.E.2d 1018. In fact, as relators assert, the city’s

unconstitutional zoning of their property has allegedly

deprived them of the viable economic use of the property

for over nine years.

In the interim, relators’ prospective primary tenant,

Costco, may withdraw and destroy the proposed retail

development approved by the court, and respondents have

noted that they will provide access for nonemergency

vehicles to the property through Maplewood Road only if

we order them to do so.

Under these unique circumstances, we grant relators’

motion for expedited consideration concerning their first

mandamus claim to compel respondents to approve rela-

tors’ application for approval of the road improvement

plans. Their second mandamus claim, to compel appro-

priation proceedings, however, does not warrant similar

expedited treatment. In other words, relators’ arguments

App. 26

supporting expedited treatment of their first claim do not

support expedited consideration of their second claim,

which ultimately relates to potential damages from re-

spondents’ alleged deprivation of the economic viable use

of their property since March 1992. We will consider this

claim in the normal process. See S.Ct.Prac.R. X(5).

Therefore, we grant relators’ motion for expedited

consideration of their motion for a peremptory writ for

their first claim and deny the motion as it relates to their

second claim.

Motion for Peremptory Writ

Relators request a peremptory writ of mandamus. If it

appears beyond doubt that relators are entitled to the

requested extraordinary relief, a peremptory writ should

issue. State ex rel. Stern v. Mascio (1998), 81 Ohio St.3d

297, 298, 691 N.E.2d 253, 254.

Relators are entitled to the requested writ. Contrary

to respondents’ position, as reflected above, we did not

modify the common pleas court’s September 1997 judg-

ment; instead, we reinstated the judgment. Shemo I, 88

Ohio St.3d at 14, 722 N.E.2d at 1025. Under that judg-

ment, which incorporates the site plan and deed restric-

tions, once the recordation of an easement providing for

automobile access to the development from Golden Gate

Boulevard and improvements for the Golden Gate Boule-

vard access are completed, the only limitation on access to

the property through Maplewood Road is the prohibition

against venicles weighing over ten thousand pounds. By

restricting approval of relators’ site plan to forever limit

Maplewood Road traffic to relators’ property to emergency

App. 27

traffic, respondents acted contrary to the common pleas

court’s September 1997 judgment.

A writ of mandamus will not be issued if there is a

plain and adequate remedy in the ordinary course of the

law. R.C. 2731.05; State ex rel. Wilke v. Hamilton Cty. Bd.

of Commrs. (2000), 90 Ohio St.3d 55, 64, 734 N.E.2d 811,

820. “In order for an alternative remedy to constitute an

adequate remedy at law, it must be complete, beneficial,

and speedy.” State ex rel. Natl. Electrical Contractors

Assn., Ohio Conference v. Ohio Bur. of Emp. Serv. (1998),

83 Ohio St.3d 179, 183, 699 N.E.2d 64, 67.

Respondents have previously contended in Shemo II

that relators have an adequate remedy by a motion in the

common pleas court to enforce that court’s September 1997

judgment. And, as respondents noted at that time, in

general, “[t]he use of mandamus to enforce a judgment is

not popular and widespread because other avenues of

enforcement [e.g., motion for contempt] are readily avail-

able.” Hunt v. Westlake City School Dist. Bd. of Edn.

(1996), 114 Ohio App.3d 563, 568, 683 N.E.2d 803, 806;

see, also, State ex rel. Bitter v. Missig (1995), 72 Ohio St.3d

249, 252, 648 N.E.2d 1355, 1357 (“The court that issued

the order sought to be enforced is in the best position to

determine if that order has been disobeyed”).

Nevertheless, a motion to enforce the common pleas

judgment would be inadequate here because respondents

erroneously rely on language from our 2000 judgment

reinstating the common pleas court judgment and they

have specified that they will not abide by the trial court

judgment unless we order them to do so. Given the lengthy

litigation that this dispute has already engendered,

relegating relators to a motion in the trial court and yet

App. 28

another appellate process would not be sufficiently speedy.

Even if relators were to prevail on such a motion in the

common pleas court, respondents could stay the judgment

without posting bond pending its resolution on appeal. See

State ex rel. Ocasek v. Riley (1978), 54 Ohio St.2d 488, 8

0.0.3d 466, 377 N.E.2d 792.

It appears beyond doubt that relators do not have an

adequate remedy in the ordinary course of law to enforce

the trial court’s September 1997 judgment. Therefore,

relators are entitled to the requested relief on their first

claim, and we grant a peremptory writ of mandamus to

compel respondents to approve relators’ road improvement

plans in connection with the proposed development,

including unrestricted access to and from Maplewood Road

once the conditions included in the deed restrictions are

met, except for vehicles weighing more than ten thousand

pounds, and to grant all other approvals and permits

necessary for the retail development of the property

ordered by the common pleas court’s September 2, 1997

judgment.’

Judgment accordingly.

! This constitutes a judgment entry and a decision on the merits

relating to the first claim for purposes of S.Ct.Prac.R. XI. We find that

there is no just reason for delay. See Civ.R. 54(B) (“When more than one

claim for relief is presented in an action***, the court may enter final

judgment as to one or more but fewer than all of the claims * * * only

upon an express determination that there is no just reason for delay”);

S.Ct.Prac.R. X(2) (“All original actions shall proceed under the Ohio

Rules of Civil Procedure, unless clearly inapplicable”).

App. 29

Moyer, C.J., RESNICK, F. E. SWEENEY, PFEIFER, COOK

and LUNDBERG STRATTON, JJ., concur.

DOUGLAS, J., dissents but would grant an alternative

writ as to both claims.

Kahn, Kleinman, Yanowitz & Arnson Co., L.PA.,

Sheldon Berns and Benjamin J. Ockner, for relators.

App. 30

THE STATE EX REL. SHEMO, TRUSTEE, ET AL.

v. CITY OF MAYFIELD HEIGHTS ET AL.

[Cite as State ex rel. Shemo v. Mayfield

Hts. (2001), 92 Ohio St.3d 324.]

Mandamus sought to compel city of Mayfield Heights et al.

to approve relators’ application for road improvement

plans — Motion for expedited consideratoin granted —

Motion for peremptory writ denied and cause dismissed

without prejudice.

(No. 01-929 — Submitted May 30, 2001 —

Decided July 18, 2001.)

IN MANDAMUS.

ON MOTION FOR EXPEDITED CONSIDERATION.

On consideration of relators’ motion for expedited

consideration of their motion for peremptory writ,

IT IS ORDERED that the motion for expedited con-

sideration be, and hereby is, granted.

IT IS FURTHER ORDERED that relators’ motion for

peremptory writ be, and hereby is, denied, and that the

cause be, and hereby is, dismissed without prejudice for

failure to comply with S.Ct.Prac.R. X(4)(B).

MOYER, C.J., DOUGLAS, RESNICK, FE. SWEENEY and

Cook, JJ., concur.

PFEIFER, J., concurs separately.

LUNDBERG STRATTON, J., dissents, would grant the

peremptory writ, anc concurs in the syllabus in the analysis

App. 31

of the nature of the defect in relators’ complaint found in the

concurring opinion of Pfeifer, J.

PFEIFER, J., concurring. I concur in the judgment

denying relators’ motion for peremptory writ and in the

dismissal of the cause without prejudice. I write sepa-

rately, however, to specify the nature of the defect in

relators’ complaint in order to limit its recurrence in this

and future cases.

Relators failed to comply with S.Ct.Prac.R. X(4)(B),

which requires that “[a]ll complaints * ** shall be sup-

ported by an affidavit of the relator or counsel specifying

the details of the claim.” That affidavit must be “ ‘based on

personal knowledge.” (Emphasis sic.) State ex rel. Sek-

ermestrovich v. Akron (2001), 90 Ohio St.3d 536, 538, 740

N.E.2d 252, 254, quoting State ex rel. Nix v. Cleveland

(1998), 83 Ohio St.3d 379, 384, 700 N.E.2d 12, 17. Relator

Shemo’s verification of the complaint does not state that it

is based on personal knowledge, and an affidavit of relator

Shemo contained in relators’ compendium of exhibits that

is based on his personal knowledge does not cover all of

the necessary details of relators’ claim for extraordinary

relief in mandamus. Dismissal of relators’ case is thus

required. See Sekermestrovich, 90 Ohio St.3d at 538-539,

740 N.E.2d at 254-255; Logan v. Ohio Adult Parole Auth.

(1998), 84 Ohio St.3d 1423, 702 N.E.2d 433; Goist v.

Seventh Dist. Court (1997), 79 Ohio St.3d 1452, 680 N.E.2d

1024.

Nevertheless, I agree that the dismissal should be

without prejudice. Pursuant to Civ.R. 41(B)(3), as made

applicable to this case by S.Ct.Prac.R. X(2), this court has

the discretion to make an involuntary dismissal with or

App. 32

without prejudice for failure to comply with rules like

S.Ct.Prac.R. X(4)(B). See Pembaur v. Leis (1982), 1 Ohio

St.3d 89, 1 OBR 125, 437 N.E.2d 1199. We need not

automatically dismiss with prejudice all original actions

that fail to comply with the affidavit requirement of

S.Ct.Prac.R. X(4)(B).

In exercising our discretion here, it is evident that

relators’ noncompliance with S.Ct.Prac.R. X(4)(B) did net

involve a complete failure to file an affidavit. Relators did

attempt to verify their complaint and additionally filed an

affidavit based on personal knowledge that supported

some of the details of their mandamus claim. And relators’

allegations, if ultimately established, specify respondents’

violation of a 1997 common pleas court order that we

unanimously reinstated last year. Shemo v. Mayfield Hts.

(2000), 88 Ohio St.3d 7, 722 N.E.2d 1018.

Therefore, under these unique circumstances, relators

should not be forever barred from raising their claim for

extraordinary relief based on their partial noncompliance

with S.Ct.Prac.R. X(4)(B). See State ex rel. Montgomery v.

R & D Chem. Co. (1995), 72 Ohio St.3d 202, 204, 648

N.E.2d 821, 823, quoting DeHart v. Aetya Life Ins. Co.

(1982), 69 Ohio St.2d 189, 193, 23 0.0.3d 210, 213, 431

N.E.2d 644, 647 (“Fairness and justice are best served

when a court disposes of a case on the merits’ ”).

However, I would further caution relators, as well as

other prospective relators, that future violations of

S.Ct.Prac.R. X(4B) may be subject to dismissal with

prejudice. See Sekermestrovich, Logan, and Goist. Fla-

grant, substantial disregard for court rules justifies a

dismissal with prejudice. See Quonset Hut, Inc. v. Ford

Motor Co. (1997), 80 Ohio St.3d 46, 48, 684 N.E.2d 319,

App. 33

321, citing DeHart, 69 Ohio St.2d at 193, 23 0.0.3d at 213,

431 N.E.2d at 647. This case should provide prospective

relators with sufficient warning regarding the potential

consequences of not fully complying with the affidavit

requirement of S.Ct.Prac.R. X(4)(B). Much like an umpire

giving a pitcher a warning that the next pitch aimed at a

batter’s head may lead to his ejection, attorneys are

similarly warned here.

Kahn, Kleinman, Yanowitz & Arnson CO., L.PA.,

Sheldon Berns, Benjamin J. Ockner and Robert A. Zim-

merman, for relators.

App. 34

SHEMO ET AL., APPELLANTS. v.

MAYFIELD HEIGHTS ET AL., APPELLEES

[Cite as Shemo v. Mayfield Hts. (2000), 88 Ohio St.3d 7.]

Municipal corporations — Zoning — Reinstatement of trial

court’s judgment declaring unconstitutional Mayfield

Heights’ U-2-A (cluster single-family) zoning classifi-

cation of an undeveloped 22.6-acre parcel of land.

(No. 98-2054 — Submitted November 17, 1999 —

Decided February 9, 2000.)

APPEAL from the Court of Appeals for Cuyahoga County,

No. 73241.

Plaintiffs-appellants Michael Shemo and _ Larry

Goldberg are owners of an undeveloped 22.6-acre parcel of

land in Mayfield Heights. The property is a generally

triangular tract of land, with commercial properties

bordering to the south, residential properties to the west

on Bonnie Lane, and Interstate 271 to the east. Six Cleve-

land Electric Illuminating (“CEI”) high-tension power lines

traverse the eastern edge of the property. These power

lines, along with high-intensity lighting from Interstate

271, run the entire eastern length of the property. In

addition, CEI, pursuant to an easement, has the right to

uninterrupted access to the property.

The property was initially zoned U-1 for single-family

homes. In June 1995, appellants sought to invalidate the

U-1 single-family zoning classification and filed a com-

plaint for declaratory relief against defendants-appellees,

the city of Mayfield Heights and individual city council

members (“the city”). As part of this action, the parties

entered into a stipulation that the U-1 zoning was unconsti-

tutional and that Mayfield Heights had the right to rezone

the property pursuant to Union Oil Co. of California v.

WA 2 ORAS wee

App. 35

Worthington (1980), 62 Ohio St.2d 263, 16 0.0.3d 315, 405

N.E.2d 277. Over appellants’ objection, on the same day

that the city signed the stipulation, Mayfield Heights City

“Council enacted Ordinance 1995-42, which rezoned the

property to a U-2-A (cluster single-family) classification.

Appellants then sought to invalidate the U-2-A zoning

classification and to have the property rezoned to permit

retail and warehouse use (U-4 classification). Following a

visit to the property and a ten-day trial, the trial court

determined, pursuant to the two-pronged test in Gerijo,

Inc. v. Fairfield (1994), 70 Ohio St.3d 223, 638 N.E.2d 533,

that the U-2-A residential zoning did not substantially

advance a legitimate health, safety, or welfare concern of

the city and denied the owner of the property an economi-

cally feasible use of the land. Thus, the trial court declared

the U-2-A zoning classification unconstitutional.

The city appealed that decision. Pursuant to Union

Oil Co. v. Worthington, supra, the court of appeals re-

manded the case to the trial court to determine whether

appellants’ proposed retail and warehouse use of the

property was reasonable. The trial court found that the

proposed use was reasonable, and the city filed another

appeal.

During the pendency of the appeal, Gerijo, Inc. uv.

Fairfield, supra, which the trial court had relied upon, was

modified by Goldberg Cos., Inc. v. Richmond Hts. City

Council (1998), 81 Ohio St.3d 207, 690 N.E.2d 510. Be-

cause of this change in the law, the appellate court vacated

the trial court’s judgment and remanded the case for

further determination in light of Goldberg.

App. 36

The cause is now before this court upon the allowance

of a discretionary appeal.

Kahn, Kleinman, Yanowitz & Arnson Co., L.PA,

Sheldon Berns and Benjamin J. Ockner; Chester, Willcox &

Saxbe, L.L.P, and J. Craig Wright; Forbes, Forbes &

Associates and George L. Forbes, for appellants.

The Carr Law Firm, L. Bryan Carr and Leonard F-

Carr, for appellees.

FRANCIS E. SWEENEY, SR., J. In this case, we are asked

to decide whether Mayfield Heights’ U-2-A zoning classifi-

cation of the property is unconstitutional. Initially, we

must decide whether the court of appeals was correct in

remanding the case for reconsideration under the Gold-

berg decision. For the reasons that follow, we find that

remand to the trial court was unnecessary. Since there

was competent, credible evidence supporting the trial

court’s conclusion that the U-2-A zoning classification does

not substantially advance a legitimate health, safety, and

welfare concern of_ Mayfield Heights, we reverse the

judgment of the court of appeals and reinstate the trial

court’s judgment declaring the zoning ordinance unconsti-

tutional.

Prior to our decision in Goldberg Cos., Inc. v. Rich-

mond Hts. City Council, supra, this court adhered to a

two-part test when reviewing the legitimacy of zoning

ordinances. Under that test, which was set forth in Gervjo,

Inc. v. Fairfield, supra, we held that “[a] party who attacks

a municipal zoning ordinance on constitutional grounds

must prove, beyond fair debate, both that the enactment

App. 37

deprives him or her of an economically viable use and that

it fails to advance a legitimate governmental interest.” Id.

at syllabus. In Goldberg, we revisited this test and deter-

mined that the economic-viability prong is applicable only

to those cases where the owner alleges a taking of the

property. Id., 81 Ohio St.3d at 210, 690 N.E.2d at 512. We

found that “Gerijo established an unduly broad standard

that encompassed both the standard for challenging the

constitutionality of zoning regulations and the test to

prove a taking.” Jd. at 213, 690 N.E.2d at 514. In modify-

ing Gerijo, we discarded the two-prong test in favor of a

single criterion. Thus, under Goldberg, where no taking is

alleged, we need only decide whether the ordinance was

“‘clearly arbitrary and unreasonable, having no substan-

tial relation to the public health, safety, morals, or general

welfare.’” Id., quoting Euclid v. Ambler Realty Co. (1926),

272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303, 314.

The court of appeals determined that a remand was

necessary because the trial court did not have the oppor-

tunity to apply the case law articulated in Goldberg, which

was decided during the pendency of the appeal. Appellants

contend that remand is unnecessary because they had

already shown that the ordinance was unconstitutional

under the more stringent test of Gerijo. Thus, appellants

maintain that even without the evidence regarding eco-

nomic viability, there was still sufficient evidence pre-

sented to support the trial court’s decision that the zoning

ordinance failed to substantially advance legitimate

governmental interests. The city disagrees, believing that

remand is necessary, since the trial court’s decision

wrongly considered both prongs of the Gervjo test, and

because the economic-viability prong is inextricably

intertwined with the health/safety/welfare prong.

App. 38

We find no merit in the city’s argument that the trial

court incorrectly relied upon economic viability to come to

the conclusion that the zoning ordinance was unconstitu-

tional. A review o° the trial court’s decision reveals that

the trial court discussed each prong of the Gerijo test

separately, and independently found the ordinance uncon-

stitutional under each prong of the test. Under these

circumstances, where the trial court’s opinion clearly sets

forth the evidence relied upon to show that the zoning

ordinance was clearly arbitrary and unreasonable, having

no substantial relation to the public health, safety, morals,

or general welfare, the Goldberg standard has been met

and there is no need for a remand to the trial court.

Furthermore, we have previously held that a remand to

consider new case law is unnecessary where the new case

law has lessened the standard of proof for the prevailing

party. See Wagner v. Midwestern Indemn. Co. (1998), 83

Ohio St.3d 287, 699 N.E.2d 507. Since the trial court found

that the zoning ordinance was unconstitutional under the

more stringent Gerijo test, we find that it is unnecessary

in this case to remand for reconsideration under the lesser

Goldberg standard.’

Nor is remand to the court of appeals necessary to consider the

assignments of error that were raised there by the city. Most of the

alleged errors are implicitly resolved in determining the constitutional-

ity of the zoning classification. Furthermore, we believe that the case

can be appropriately decided by this court, since there is a comprehen-

sive record before us and since the trial court made extensive findings

of fact. See Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 18-19, 526

N.E.2d 1350, 1357. As for the remaining arguments, we reject the

allegation that the city was prejudiced by the appearance of attorney

George Forbes. We also decline to consider whether the court erred by

(Continued on following page)

App. 39

We must next decide whether there was competent,

credible evidence to support the trial court’s judgment. In

reviewing the trial court’s judgment, it is well established

that every reasonable presumption must be made in favor

of the judgment and findings of fact. Seasons Coal Co. v.

Cleveland (1984), 10 Ohio St.3d 77, 10 OBR 408, 461

N.E.2d 1273. Furthermore, judgments supported by

competent, credible evidence going to the material ele-

ments of the case will not be disturbed as being against

the manifest weight of the evidence. C.E. Morris Co. v.

Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 0.0.3d 261,

376 N.E.2d 578, syllabus.

In considering the evidence, we begin with the prem-

ise that all zoning ordinances are presumed constitutional.

Cent. Motors Corp. v. Pepper Pike (1995), 73 Ohio St.3d

581, 583-584, 653 N.E.2d 639, 642. However, a zoning

ordinance will be struck down if a property owner chal-

lenging the ordinance proves, beyond fair debate, that the

ordinance is “arbitrary and unreasonable and without

substantial relation to the public health, safety, morals, or

general welfare of the community.” Goldberg, supra, 81

Ohio St.3d at 214, 690 N.E.2d at 515.

The city argued that the zoning ordinance advances

three legitimate governmental health, safety, and welfare

concerns: (1) it will maintain the residential character of

the neighborhood, (2) it will maintain a balanced mix of

uses in the city, and (3) it will not exacerbate traffic

congestion and noise in the area. The trial court found

refusing to consider expert testimony concerning economic viability,

since that prong is irrelevant to the case at hand.

App. 40

that appellants proved beyond fair debate that these

concerns were not valid and that the ordinance was

unconstitutional. We agree, and find that the trial record

is replete with evidence to support the trial court’s find-

ings.

With respect to the argument that the U-2-A zoning

was intended to advance the city’s interest in maintaining

the residential nature of the neighborhood, appellants

presented ample evidence to show that this interest is not

met by the U-2-A zoning. The property in question is

located near the intersection of Interstate 271 and May-

field Road. Although there are residential properties to the

north and west on Ridgebury Boulevard and Bonnie Lane,

the predominant uses to the south are commercial. The

Golden Gate Shopping Center is located to the southwest

of the intersection. A Best Buy store, a Budgetel Motel,

and a Bob Evans restaurant are adjacent to the property.

The Eastgate Shopping Center is east of Interstate 271

and north of Mayfield. In total, there are approximately

three-quarter million square feet of retail space located in

the vicinity of the property.

Nonetheless, the city argues that the area needs to be

kept residential in nature. For support, the city presented

the testimony of some current residents who are opposed

- to the commercial development of the property because

there will likely be increased traffic in their neighborhood.

While we do not mean to minimize the concerns of these

residents and, in fact, sympathize with their plight, we

cannot ignore the fact that their homes are adjacent to

high-density commercial property, which carries with it a

heavy volume of traffic. Traffic on the interstate alone

exceeds ninety-two thousand vehicles passing by appel-

lants’ property daily. Therefore, although their streets are

App. 41

obviously residential in nature, Robert Hill, city planner

for several Cleveland suburbs, stressed that the existing

development pattern around appellants’ property indicates

a nonresidential character. We reject the citys argument

that the U-2-A zoning is necessary to maintain the resi-

dential character of the neighborhood.

We also reject the citys argument that the U-2-A

zoning classification is necessary to advance the legitimate

governmental interests of maintaining a balanced mix of

uses in the city and decreasing traffic congestion in the

area. Since the area contains both residential and com-

mercial properties, there already exists a balanced mix of

uses in the city. The goal of attaining a balance between

both types of uses will be met regardless of whether the

appellants’ property is zoned for commercial or residential

use. In addition, the city requires a six-foot masonry wall

as a buffer between the retail and residential uses, which

will help lessen the commercial feel of the area. Therefore,

the trial court did not err in finding that a balanced mix of

uses is not a legitimate governmental concern.

Nor did the trial court err in rejecting the city’s

argument that decreasing traffic congestion is a legitimate

governmental concern. Although the U-4 zoning classifica-

tion would increase traffic in the area, one of appellants’

expert witnesses testified that the impact of the increased

traffic would not be severe. Moreover, the current drive-

way configuration for the Best Buy, Budgetel, and Bob

Evans properties is poorly designed and is described by a

Mayfield Heights police officer as a safety hazard. How-

ever, appellants have proposed to widen and replace the

current driveway at their expense and to have a traffic

light installed to improve the flow of traffic in the area and

to alleviate current safety concerns. Appellants have also

App. 42

proposed to limit direct access from their property to the

residential streets to cases of emergency only. While

promoting traffic safety may be one factor courts can

consider in determining whether a zoning ordinance is

valid (see Columbia Oldsmobile, Inc. v. Montgomery,

[1990], 56 Ohio St.3d 60, 66, 564 N.E.2d 455, 461), the city

has not demonstrated that it is a legitimate concern in this

case.

The trial court also found that the property is not

suitable for residential use. According to the trial court,

the property is degraded by the adjacent interstate, which

carries with it extreme noise, pollution, and high-intensity

lighting. Furthermore, the property has CEI high-tension

poles and wires running the entire length of its eastern

border. Given these characteristics, the court found that

the property is not habitable.

The city contests these findings and the trial court’s

conclusion that the property is uninhabitable by down-

playing the negative effects of the interstate and by

pointing out that there are other residential properties

adjacent to the interstate. Although there are other

residential properties along the interstate, various wit-

nesses testified that appellants’ property is different from

those properties and that its unique characteristics make

it not suitable for habitation. For instance, expert witness

real estate appraisers Roger Ritley and Wesley Baker both

testified that this property is perhaps the only site along

Interstate 271 surrounded by high-tension lines, two-

family zoning, and retail uses. Even the city’s expert

witness, city planner David Hartt, concedes this point.

Moreover, the high-intensity lights along this part of

Interstate 271 are so bright that one witness testified that

he was able to read a newspaper at 10:30 p.m., without

EEO

App. 43

any other source of illumination. In addition to the six

high-tension power poles, CEI’s easement also encumbers

the property. The irregular shape, small size, and grading

of the property (which is even with the highway) also

adversely affect the habitability of the parcel.

Although the city’s expert planner, David Hartt,

testified that the property is habitable, even he had to

admit that given the surrounding characteristics of the

property, the potential occupants of residential units

would be limited to elderly and/or childless residents who

are uninterested in using their yards on a regular basis.

The trial court was free to reject testimony that the

property is habitable in favor of the wide array of evidence

that showed that the property is unsuitable for residential

use.

The city also maintains that appellants themselves

have caused the property to become a small, irregularly

shaped remnant by selling off various portions of their

property over the years. Furthermore, the city points out

that it was appellants’ decision to grant CEI the easement,

which they now complain has a negative effect on the

habitability of the property. Under these circumstances,

the city argues, appellants should not be afforded relief

from their self-created hardships.

We acknowledge the principle that property owners

are not afforded relief from self-created hardships. Reed v.

Rootstown Twp. Bd. of Zoning Appeals (1984), 9 Ohio St.3d

54, 55-56, 9 OBR 260, 261, 458 N.E.2d 840, 842. However,

the situation presented here differs from those cases relied

upon by appellee. For instance, in Reed, property owners

deliberately created from a larger property a lot that was

not in conformity with the applicable minimum lot size.

App. 44

Therefore, they acted in direct contravention of a zoning

resolution. In this case, appellants did not take action in

violation of an established zoning resolution. Instead, over

the years they made business decisions to sell off various

portions of the original piece of property. While these

decisions did cause their property to be difficult to develop

as a residential property, other factors that adversely

affect the property, such as the construction of the inter-

state and the installation of high-intensity lighting, were

beyond their control. Under these circumstances, we

decline to apply the principle that denies relief to owners

who created their own hardship, and find that the trial

court’s conclusion that the property is uninhabitable is

supported by competent, credible evidence.

Since appellants have shown that the city lacks any

legitimate governmental health, safety, and welfare

concerns in support of the U-2-A zoning classification, we

find that the trial court was correct in declaring the U-2-A

zoning ordinance unconstitutional.

We must next decide whether the trial court was

correct in determining that appellants’ proposed commer-

cial use of the property was reasonable. We find that there

was competent, credible evidence to support this conclu-

sion. As previously shown, the property is unsuitable for

residential use and is more appropriate for commercial

use. The evidence presented shows that appellants’ pro-

posed commercial use of the property includes a plan to

help alleviate current traffic concerns in the area of the

Best Buy, Budgetel, and Bob Evans properties by changing

the configuration of the existing driveway and installing a

traffic light. In addition, the city requires a six-foot ma-

sonry wall and a forty-foot setback as buffers. We find that

the trial court was warranted in holding that the proposed

App. 45

U-4 commercial classification is not detrimental to the

health, safety, and welfare concerns of the city and is a

‘reasonable classification of the property.

We reverse the judgment of the court of appeals and

reinstate the judgment of the trial court.

Judgment reversed.

Moyer, C.J., DOUGLAS, RESNICK, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.

App. 46

THE STATE Ex REL. SHEMO ET AL. V.

Ciry or MAYFIELD HEIGHTS ET AL.

[Cite as State ex rel. Shemo v. Mayfield Hts.,

96 Ohio St.3d 379, 2002-Ohio-4905.]

Motion for reconsideration granted in part

and judgment modified in part.

(No. 2001-1325 — Submitted June 4, 2002 —

Decided October 2, 2002.)

IN MANDAMUS.

ON MOTION FOR RECONSIDERATION.

Per Curiam.

{f 1} On April 10, 2002, we granted a writ of man-

damus to realtors, co-owners as trustees of land located in

the city of Mayfield Heights, Ohio, to compel respondents,

the city and its mayor, city council, and planning commis-

sion, to commence appropriation proceedings to determine

the amount of the city’s temporary taking of realtors

property. State ex rel. Shemo v. Mayfield Hts. (2002), 95

Ohio St.3d 59, 765 N.E.2d 345. We held that realtors

established a compensable taking of their property be-

cause the city’s application of U-1(1) and U-2-A single-

family residential zoning classifications to their property

was unconstitutional in that the application of these

classifications did not substantially advance legitimate

state interests. Id. at 64, 765 N.E.2d 345. We further held

that realtors had established the period of the com-

pensable taking as being from March 19, 1992, the date

they claimed as the beginning date of the taking, i.e.,

when they first filed a declaratory judgment action chal-

lenging the application of U-1(1) zoning, until April 2001,

App. 47

when the U-2-A zoning classification was invalidated. Id.

at 69, 765 N.E.2d 345.

{¥ 2} On April 22, 2002, respondents filed a motion

for reconsideration.

{¥ 3} On April 23, 2002, the United States Supreme

Court decided Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency (2002), 535 U.S. ___, 122

S.Ct. 1465, 152 L.Ed.2d 517. In Tahoe-Sierra, the court

held that moratoriums, totaling 32 months, on develop-

ment in the Lake Tahoe Basin did not constitute a com-

pensable taking although the moratoriums temporarily

deprived affected landowners of all economically viable use

of their property.

{¥ 4} On April 29, 2002, realtors filed a brief in

opposition to respondents’ motion for reconsideration.

Motion for Reconsideration

{{ 5} We have used our reconsideration authority

under S.Ct.Prac.R. XI to “‘correct decisions which, upon

reflection, are deemed to have been made in error.”

Buckeye Community Hope Found. v. Cuyahoga Falls

(1998), 82 Ohio St.38d 539, 541, 697 N.E.2d 181, quoting

State ex rel. Huebner v. W. Jefferson Village Council

(1995), 75 Ohio St.3d 381, 383, 662 N.E.2d 339. For the

following reasons, we grant respondents’ motion in part

and shorten the period in which a compensable taking was

found, but otherwise deny the motion.

App. 48

Compensation for Application of

Invalid Zoning Ordinance

{4 6} Respondents raise three claims in support of

reconsideration. In their first claim, they assert that

Shemo sub silentio overruled established Ohio law, i.e.,

Superior Uptown, Inc. v. Cleveland (1974), 39 Ohio St.2d

36, 68 O0.0.2d 21, 313 N.E.2d 820. In Superior Uptown, at

the syllabus, we held, “A cause of action for money dam-

ages can not be maintained against a municipality for

losses sustained as the result of the adoption of a rezoning

ordinance which is subsequently declared invalid.”

{7} Respondents’ claim lacks merit. Shemo does not

overrule Superior Uptown. Superior Uptown involved a

direct action for money damages against a municipality

and was based upon the doctrine of sovereign immunity.

By contrast, this case involves a mandamus claim to

compel public authorities to institute appropriation

proceedings where an involuntary taking of private prop-

erty was alleged and ultimately proven by realtors.

Takings Analysis

{9 6} Respondents raise three claims in support of

reconsideration. In their first claim, they assert that

Shemo sub silentio overruled established Ohio law, i.e.,

Superior Uptown, Inc. v. Cleveland (1974), 39 Ohio St.2d

36, 68 0.0.2d 21, 313 N.E.2d 820. In Superior Uptown, at

the syllabus, we held, “A cause of action for money dam-

ages can not be maintained against a municipality for

losses sustained as the result of the adoption of a rezoning

ordinance which is subsequently declared invalid.”

{¥ 7} Respondents’ claim lack merit. Shemo does not

overrule Superior Uptown. Superior Uptown involved a

App. 49

direct action for money damages against a municipality

and was based upon the doctrine of sovereign immunity. By

contrast, this case involves a mandamus claim to compel

public authorities to institute appropriation proceedings

where an involuntary taking of private property was

alleged and ultimately proven by realtors.

Takings Analysis

{¥ 8} Respondents next contend that reconsideration

is warranted because we did not apply in our takings

determination the analysis set forth in Penn Cent. Transp.

Co. v. New York (1978), 438 U.S. 104, 98 S.Ct. 2646, 57

L.Ed.2d 631. In Penn Cent., the United States Supreme

Court held that, in general, the determination of whether

a land-use regulation constitutes a compensable taking is

an ad hoc. factual inquiry that depends upon several

factors, including the economic effect on the landowner,

the extent to which the regulation has interfered with

reasonable investment-becked expectations, and the

character of the government action. Id. at 124, 98 S.Ct.

2646, 57 L.Ed.2d 631; see, also, Palazzolo v. Rhode Island

(2001), 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592.

For the following reasons, respondents’ contention does

not warrant reconsideration.

{¥ 9} First, respondents’ attempted reargument of

this contention is not authorized by our Rules of Practice.

“A motion for reconsideration shall be confined strictly to

the grounds urged for reconsideration [and] shall not

constitute a reargument of the case *** .” S.Ct.Prac.R.

X1(2)A). Respondents previously asserted the applicability

of the Penn Cent. inquiry in their merit brief.

App. 50

{10} Second, it is not evident that the Penn

Cent. /Palazzolo analysis as applies to this case, in which

the land-use regulations at issue were held to be unconsti-

tutional as applied to the property, i.e., the U-1(1) and U-

2-A zoning classifications did not substantially advance

legitimate state interests. Shemo, 95 Ohio St.3d at 64, 765

N.E.2d 345. Neither Penn Cent. nor Palazzolo involved a

claim that the applicable legislation did not substantially

advance legitimate state interests. And in Penn Cent., the

United States Supreme Court emphasized that the land-

owners did not contest that New York City’s objective in

enacting the challenged landmark-preservation legislation

was a permissible governmental goal or that the restric-

tions imposed on their land were appropriate means to

secure that objective. Id., 438 U.S. at 129, 98 S.Ct. 2646,

57 L.Ed.2d 631.

{11} Third, even assuming that the Penn

Cent./Palazzolo analysis applies, a finding of a com-

pensable taking is still warranted. Restricting realtors’

land to residential use on property that was held to be

unsuitable for residential use had an obvious adverse

economic impact on realtors, which necessarily interfered

with their reasonable investment-backed expectations

when they requested that the property be rezoned for

retail development. Further, the city’s application of

residential classifications to their property did not sub-

stantially advance any legitimate health, safety, or welfare

concern of Mayfield Heights. Shemo, 95 Ohio St.3d at 64,

765 N.E.2d 345; cf. First English Evangelical Lutheran

Church of Glendale v. Los Angeles (1989), 210 Cal.App.3d

1353, 1372, 258 Cal.Rptr. 893, where a California appel-

late court, on remand from the United States Supreme

Court, held that there was no compensable regulatory

App. 51

taking, while observing that “[t]he complaint does not

allege * * * that it was unreasonable for the County to

conclude these limitations would contribute substantially

to the public safety.” In addition, the duration of the

challenged restrictions was much lengthier here than the

challenged restrictions in Tahoe-Sierra, which totaled 32

months, Id. at __, 122 S.Ct. at 1489, 152 L.Ed.2d at 553

(“the duration of the restriction is one of the important

factors that a court must consider in the appraisal of a

regulatory takings claims”).

{{ 12} Therefore, respondents’ reliance on Penn Cent.

and Palazzolo in support of reconsideration is misplaced.

Tahoe-Sierra

{J 13} Respondents’ reconsideration motion could not

rely on Tahoe-Sierra because that case was decided one

day after their motion. The court therefore sua sponte

considers whether Tahoe-Sierra requires a modification of

our decision in Shemo. Upon consideration, Tahoe-Sierra

does not warrant vacation of our April 10 judgment.

{J 14} As realtors correctly note, unlike this case,

Tahoe-Sierra did not involve the first prong of the regula-

tory takings test set forth in Agins v. Tiburon (1980), 447

U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106 (application

of land-use regulations to property constitutes a com-

pensable taking “if the ordinance does not substantially

advance legitimate state interests * * * or denies an owner

economically viable use of his land”). In fact, in Tahoe-

Sierra, the United States Supreme Court emphasized that

the landowners challenging the temporary environmental

moratoriums did not argue, as realtors did in this case,

App. 52

that the moratoria did not substantially advance a legiti-

mate state interest. Id. at __, 122 S.Ct. at 1485, 152

L.Ed.2d at 548 (“recovery on * * * a theory that the state

interests were insubstantial is foreclosed by the District

Court’s unchallenged findings of fact”).

{{ 15} Moreover, to the extent that Tahoe-Sierra

could be construed as an abandonment of most per se or

categorical rules in regulatory takings cases, application of

the Penn Cent. /Palazzolo ad hoc factual inquiry here does

not, as previously discussed, require a different holding.

{{ 16} Therefore, Tahoe-Sierra does not demand a

vacation of our judgment here.

Period of the Taking

{{ 17} Respondents finally contend that we should

reconsider the length of the period for the compensable

taking.

{{ 18} In this case, realtors requested that the period

of the taking begin on March 19, 1992, when they first

challenged the application of the U-1(1) single-family

residential zoning classification to their property. We

granted their request. Shemo, 95 Ohio St.3d at 69, 765

N.E.2d 345.

{{ 19} The date of regulatory taking may begin on

the date the challenged regulation was either enacted or

applied to the subject property. See, generally, 8A Rohan

& Resking, Nichols and Eminent Domain (3d Ed.2001) 24-

36, Section 24.04[3], fn. 34; First English Evangelical

Lutheran Church of Glendale v. Los Angeles (1987), 482

U.S. 304, 319, 107 S.Ct. 2378, 96 L.Ed.2d 250.

App. 53

{J 20} The date that the first of the challenged

zoning classifications was adopted and applied to realtors’

property preceded the date that realtors requested for the

commencement of the taking, i.e., the date they first

challenged the validity of the classification as appiied to

their property.

{f 21} But upon reflection, we deem this period to

start in June 1995, when realtors refiled their action for

declaratory judgment, and shorten the period of the

temporary taking. in this regard, although realtors ini-

tially challenged the application of the U-1(1) classification

to their property by a declaratory judgment action filed on

March 19, 1992, they voluntarily dismissed this action in

June 1995. Moreover, until they refiled their declaratory

judgment action in that same month, they never requested

that their property be rezoned to permit retail use, instead

choosing to request that it be rezoned to permit multifam-

ily residential development. Therefore, they were not

harmed by the application of the challenged regulations to

their property, which was ultimately found unsuitable for

residential use, during the period from March 1992 to

June 1995 when they did not seek to use their property for

a nonresidential use. The appropriate starting date for the

taking is consequently June 1995, when they specifically

requested in their refiled declaratory judgment action that

the property be rezoned to permit retail and warehouse

development.

{J 22} Respondents assert that the period of the

taking should be further shortened because any delay was

due to the court’s change in precedent, realtors’ delay in

preparing to build an access drive, the relatively late

resolution of the issue concerning the paper streets that

the city claimed it owned, and the R.C. 2744.04 statute of

App. 54

limitations. Respondents’ additional assertions lack merit

for the following reasons.

{f 23} Neither Gerijo, Inc. v. Fairfield (1994), 70

Ohio St.3d 223, 638 N.E.2d 533, nor Goldberg Cos., Inc. v.

Richmond Hts. City Council (1998), 81 Ohio St.3d 207, 690

N.E.2d 510, the two cases cited by respondents in their

reconsideration motion, involved takings claims. Hence,

respondents could not justifiably rely on them to support

their unconstitutional application of residential zoning

classifications to realtors’ property. Shemo, 95 Ohio St.3d

at 63-64, 765 N.E.2d 345.

{f 24} In addition, respondents’ arguments concern-

ing realtors’ alleged delay in preparing to make access

road improvements and the further delay concerning the

resolution of the paper-streets issue were both raised in

their initial brief; they cannot reargue them now.

S.Ct.Prac.R. XI(2)(A). And as we held in Shemo, 95 Ohio

St.3d at 68, 765 N.E.2d 345, “Any delays by realtors did

not contribute to respondents’ delay in finally rezoning the

property to U-4 [retail and wholesale use].” Further,

“realtors owned the property consisting of the ‘paper

streets’ at the time the temporary taking occurred because

the city had abandoned the property.” Id.

{{ 25} Finally, respondents waived their R.C.

2744.04 contention by failing to raise this affirmative

defense in their pleadings. See State ex rel. Tubbs Jones v.

Suster (1998), 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (“A

statute of limitations is an affirmative defense that is

waived unless pled in a timely manner”).

App. 55

Conclusion

{J 26} Based on the foregoing, we grant respondents’

motion for reconsideration in part and shorten the period

of the temporary taking from March 19, 1992 through

April 2001 to June 1995 through April 2001. In all other

respects, we deny respondents’ motion for reconsideration.

Judgment accordingly.

Moyer, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and

LUNDBERG STRATTON, JJ., concur.

PFEIFER and COOK, JJ., concur in part and dissent in

part.

Cook, J., concurring in part and dissenting in part.

{J 27} I would deny the motion for reconsideration in

its entirety.

PFEIFER, J., concurs in the foregoing opinion.

Berns, Ockner & Greenberger, L.L.C., Sheldon Berns,

Benjamin J. Ockner and Jordan Berns, for realtors.

Leonard F. Carr and L. Bryan Carr: Mansour, Gavin,

Gerlack & Manos Co., L.P.A., Anthony J. Coyne, Bruce G.

Rinker and Eli Manos, for respondents.

App. 56

Court of Appeals of Ohio, Eighth District,

Cuyahoga County.

Michael A. SHEMO, Co-Trustee, et al.

Plaintiffs-Appellees

CITY OF MAYFIELD HEIGHTS, Ohio et al.

Defendants-Appellants

No. 73241.

Aug. 20, 1998.

Civil appeal from Common Pleas Court Case No. CV-

291595. Judgment Vacated and Cause Remanded.

Timothy J. Grendell, Steven A. Targove, Grendell &

Targove, Independence, George L. Forbes, Scott H.

Schooler, Forbes, Forbes & Associates, Mark A. Ferguson,

Taft, Stettinius & Hollister, Cleveland, for Plaintiffs-

Appellees.

Leonard F. Carr, Leslie Y. Spencer, L. Bryan Carr, Carr,

Feneli & Carbone, L.P.A., Mayfield Heights, for Defen-

dants-Appellants.

JOURNAL ENTRY AND OPINION

ODONNELL, Presiding J.

This is the second time this matter has been appealed to

our court.

Initially, in 1995, Michael A. Shemo and Larry Goldberg,

co-trustees of a 22.6 acre parcel of land located in the City

of Mayfield Heights abutting I-271 on the east, Bonnie

Lane on the west, Ridgebury Boulevard on the north, and

Maplewood Road to the south, filed a complaint in the

App. 57

common pleas court contesting the constitutionality of the

residential zoning of the property, and seeking to have the

property re-zoned to permit retail and warehouse usage.

The court conducted a bench trial, viewed the premises,

and, after hearing all the evidence, determined in accor-

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

223, 638 N.E.2d 533, that the residential zoning failed to

“substantially advance a legitimate health, safety or

welfare concern,” and denied an “economically feasible

use” of the property to the owner; on that basis, the trial

court declared the residential zoning to be “arbitrary,

capricious, and unconstitutional.” Upon appeal by the city

of that decision to our court, we remanded the matter to

the trial court for a further determination as to the rea-

sonableness of the owner’s proposed retail and warehouse

use of the property, as mandated by Union Oil Co. v.

Worthington (1980), 62 Ohio St.2d 263, 405 N.E.2d 277,

and, following our remand, the court found that proposed

use to be a reasonable one.

The City of Mayfield Heights now again appeals from

these same Common Pleas Court determinations. sceking

our review of them, and raises the following seven assign-

ments of error concerning the constitutionality of the

residential zoning and the reasonableness of the retail and

warehouse usage:

I. THE TRIAL COURT ERRED BY FAILING TO

FIND THAT PLAINTIFFS-APPELLEES LANDOWNERS

WERE SINGULARLY RESPONSIBLE FOR THE SELF-

INFLICTED HARDSHIP TO THE SUBJECT PROPERTY

AND FOR ANY DEGRADATION TO THE VALUE OF

THE SUBJECT PROPERTY THUS PRECLUDING THE

GRANT OF THE REQUESTED ZONING, ALL OF

App. 58

WHICH IS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

Il. THE TRIAL COURT ERRED IN FINDING THAT

THERE WAS NO ADVANCEMENT OF A LEGITIMATE

GOVERNMENTAL INTEREST IN THE HEALTH,

SAFETY AND WELFARE OF THE COMMUNITY BY

MAINTAINING THE CURRENT ZONING OF THE

SUBJECT PROPERTY, ALL OF WHICH IS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.

III. THE TRIAL COURT'S FINDING THAT THE LAND

IS UNINHABITABLE AS CURRENTLY ZONED IS

AGAINST THE MANIFEST WEIGHT OF THE EVI-

DENCE.

IV. THE TRIAL COURT ERRED BY FINDING THAT

THE SUBJECT PROPERTY AS CURRENTLY ZONED

DENIES PLAINTIFFS-APPELLEES AN ECONOMI-

CALLY “FEASIBLE” (VIABLE) USE OF THE LAND.

V. DEFENDANTS-APPELLANTS WERE UNFAIRLY

PREJUDICED BY THE LAST MINUTE APPEARANCE

OF ATTORNEY GEORGE FORBES.

VI. THE TRIAL COURT ERRED BY REFUSING TO

CONSIDER THE TESTIMONY OF THE DEFENDANTS-

APPELLANTS’ EXPERTS RELATIVE TO THE ECO-

NOMIC VIABILITY OF THE DEVELOPMENT OF THE

SUBJECT PROPERTY AS CURRENTLY ZONED.

VII. THE TRIAL COURT’S FINDING THAT PLAIN-

TIFFS-APPELLEES’ PROPOSED RETAIL PLAN WAS

REASONABLE WAS ERROR AND AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

App. 59

On this appeal, the city contends the trial court erred

when it declared the residential zoning unconstitutional

and found the retail and warehouse usage to be reason-

able. We recognize that appellees urge the court properly

determined these matters.

Here, the record demonstrates that the trial court judge

followed the law then in effect as articulated in Gerijo, Inc.

v. Fairfield, supra, and Union Oil Co. v. Worthington,

supra. However, subsequent to the trial court’s determina-

tions, and prior to our consideration of the matters raised

on this appeal, the Ohio Supreme Court in Goldberg Cos.,

Inc. v. Richmond Hts. City Council (1998), 81 Ohio St.3d

207, 690 N.E.2d 510 modified the Gerijo, Inc. v. Fairfield,

supra standard in part, re-established the standard

articulated in Euclid v. Ambler Realty Co. (1926), 272 U.S.

365, 47 S.Ct. 114, 71 L.Ed. 303 as applicable to constitu-

tional challenges involving zoning regulations, and stated

in its syllabus:

A zoning regulation is presumed to be constitutional

unless determined by a court to be clearly arbitrary and

unreasonable and without substantial relation to the

public health, safety, morals, or general welfare of the

community.

In its opinion at 214, the court further stated: “The burden

of proof remains with the party challenging an ordinance’s

constitutionality, and the standard of proof remains

“beyond fair debate.” See [Cent. Motors Corp. v. Pepper

Pike (1995), 73 Ohio St.3d 581] at 584, 653 N.E.2d at 642.”

The timing of the modification by the Ohio Supreme Court

in the applicable law precludes our consideration of the

assignments of error advanced by the city in this case. The

reason this is so is best stated in the per curiam opinion in

App. 60

The Peerless Electric Co. v. Bowers (1955), 164 Ohio St.

209, at 210, 129 N.E.2d 467:

*** The general rule is that a decision of a court of

supreme jurisdiction overruling a former decision is

retrospective in its operation, and the effect is not that the

former was bad law, but that it never was the law. * **.

We, of course, recognize that the supreme court did not

specifically overrule Gerijo, Inc. v. Fairfield, supra, but

merely modified its application in accordance with Euclid

vu. Ambler Realty Co., supra. Nonetheless, a decision of the

Ohio Supreme Court shall be applied retroactively unless

a specific provision declares its application to be prospec-

tive only. See N. Olmsted v. Eliza Jennings, Inc. (1993), 91

Ohio App.3d 173, 631 N.E.2d 1130. See, also, O’Connor v.

Zimmer (1995), 104 Ohio App.3d 143, 661 N.E.2d 248.

Accordingly, as the trial court never had an opportunity to

apply the law as articulated in Goldberg Cos., Inc. v.

Richmond Hts. City Council, supra, to this case, we now

vacate the judgment of the trial court and remand the

matter for a determination by that court in conformity

with that prevailing standard of review.

-Judgment vacated and cause remanded.

Judgment vacated and cause is remanded to the lower

court for further proceedings consistent with this opinion.

Costs to be divided equally between appellees and appel-

lants. r

_ It is ordered that a special mandate be sent to said court

to carry this judgment into execution.

App. 61

A certified copy of this entry shall constitute the mandate

pursuant to Rule 27 of the Rules of Appellate Procedure.

TIMOTHY E. McMONAGLE and JAMES D. SWEENEY,

JJ., concur.

App. 62

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT

COUNTY OF CUYAHOGA

MICHAEL A. SHEMO, CO- COURT OF APPEALS

TRUSTEE, ET AL. NO. 70715

Appellee LOWER COURT NO. CV-

291595 |

-VS-

COMMON PLEAS

CITY OF MAYFIELD COURT

HEIGHTS, OHIO, ET AL.

Agpalinat MOTION NO. 82009

DATE APRIL 3, 1997

Journal Entry

Motion by appellee, Michael A. Shemo, to dismiss

appeal is granted.

Upon a review of the record, the trial court in its

December 26, 1995 order, declared the U-1 zoning of the

tract of undeveloped land between Ridgebury Boulevard,

Mayfield Road, at Interstate 271, unconstitutional, and

thereafter permitted the City of Mayfield Heights to

reclassify the property and the court retained jurisdiction

at that time to review the same.

In its May 16, 1996 journal entry, the court declared

the U-2 reclassification of the property unconstitutional

and provided the city a second opportunity to rezone or

reclassify the property.

Pursuant to Union Oil Co. v. Worthington (1980), 62

Ohio St. 2d 263, the court, at that time, should have

App. 63

determined the reasonableness of the owner’s proposed

use of the land.

Accordingly, the case is remanded to the trial court for

further proceedings consistent with this announcement.

Costs to appellant.

O’DONNELL, J., CONCURS

PRYATEL, J., CONCURS AND DISSENTS

(Judge August Pryatel, Retired,

Eighth Appellate District, Sitting

by Assignment)

(See attached opinion.)

/s/- James D. Sweeney

CHIEF JUSTICE

JAMES D. SWEENEY

This is an announcement of Court’s decision.

Motion for reconsideration must be filed within

10 days from date hereon.

—

COURT OF APPEALS OF OHIO EIGHTH DISTRICT

COUNTY OF CUYAHOGA

NO. 70715 ~

MICHAEL A. SHEMO,

Trustee, et al

CONCURRING

Plaintiffs-appellees AND DISSENTING

vs. . OPINION

CITY OF MAYFIELD HEIGHTS .

Defendant-appellant

DATE OF ANNOUNCEMENT ~ APRIL 3, 1997

OF DECISION os

App. 64

AUGUST PRYATEL, J., CONCURRING IN PART AND

DISSENTING IN PART:

Cross-appellants (also known as plaintiffs-appellees)

have raised the issue of applicability of Union Oil Co. of

California v. City of Worthington (1980), 62 Ohio St. 2d

263, which the lower court failed to address. Accordingly, I

join with the majority in dismissing the appeal.

However, in my judgment, the lower court is pre-

cluded from determining the “reasonableness of the

owners’ proposed use of the land” in view of appellant’s

timely appeal of the trial court’s ruling of unconstitution-

ality of the U-2(A) zoning.

App. 65

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

MICHAEL A. SHEMO, ) CASE NO. CV-291595

CO-TRUSTEE, et al. ) JUDGE SHIRLEY

—

Plaintiffs, } STRICKLAND SAFFOLD

~v- ) FINAL JUDGMENT

CITY OF MAYFIELD? ENTRY

HEIGHTS, OHIO, et al. (Filed Sep. 2, 1997)

Defendants. )

This matter came before the Court for trial on March

6-8. 11-14 and April 12, 15-16, 1996 after which the Court

issued its Journal Entry dated May 16, 1996 declaring the

Defendant City of Mayfield Heights’ U-2A zoning classifi-

cation as applied to Plaintiffs’ Property (as described in

-the Complaint) to be unconstitutional. The Court’s May

16, 1996 Journal Entry is incorporated by reference

herein.

Remaining for adjudication is the reasonableness of

the Plaintiffs’ proposed retail use of their Property. After

consideration of the ten (10) days of testimony, the admit-

ted documentary evidence and the Court’s site visit, the

Court finds that the Plaintiffs’ proposed retail use of the

Property, as generally described in Plaintiffs’ Site Plan

(Plaintiffs’ Exhibit 16), is reasonable. The Plaintiffs are

hereby permitted to use and develop their Property gener-

ally consistent with the prepared Site Plan proposed by

Keera Kekst (Plaintiffs’ Exhibit 16) introduced into evi-

dence at trial and consistent with the terms of the re-

corded deed restrictions (Plaintiffs’ Exhibits 80, 81) and

recorded access easement (Plaintiffs’ Exhibit 82). The Court

further orders the Plaintiffs to make the improvements to

App. 66

Golden Gate Boulevard as described in their Site Plan and

the record of the trial proceedings and orders the City to

take any and all actions to facilitate such road improve-

ments and to not interfere with such road improvements.

The City of Mayfield Heights and the individually named

Defendants are hereby enjoined from interfering with

Plaintiffs’ proposed retail use of the Property and the

installation of the above stated road improvements, and

are ordered to issue all approvals and permits to allow

such retail development and use consistent with this

Order. ;

/s/ S. Strickland Saffold 9/2/97

JUDGE, Cuyahoga County

Common Pleas Court

cc: George L. Forbes, Esq.

Timothy J. Grendell, Esq.

Leonard F. Carr, Esq.

App. 67

THE STATE OF OHIO ) IN THE COURT OF

) Ss. COMMON PLEAS

CUYAHOGA COUNTY ) CASE NO. 291595

MICHAEL A. SHEMO,

CO-TRUSTEE, et al., )

ae )

Plaintiffs, =) OPINION AND

-vs- ) JUDGMENT ENTRY

CITY OF MAYFIELD ) 5/16/96

HEIGHTS, OHIO, et al.,

Defendants. )

S. Strickland Saffold, J.:

The Plaintiffs, Michael A. Shemo and Larry Goldberg,

are owners’ of an undeveloped 22.6 acre parcel of land in

Mayfield Heights. This 22.6 acre parcel (hereinafter the

“Property”) is an irregularly shaped tract of land bordering

commercial properties to the south on Mayfield Road,

residential properties to the north and west on Ridgebury

Boulevard, and Bonnie Lane, and Interstate-271 to the

east. On the eastern most edge of the Property are located

six Cleveland Electric Illuminating Company (CEI) elec-

tric transmission towers carrying 138 kvh high tension

power lines. These power lines, and the interstate with its

high intensity lighting, run the entire length of the Prop-

erty (approximately 2,000 feet). CEI, pursuant to an

easement, has the right to uninterrupted access, ingress

’ In fact, the Plaintiffs hold the subject property as Co-Trustees for

Milton Wolf and various branches of the Goldberg families.

App. 68

and egress to the property to relocate, construct, recon-

struct, operate, repair, maintain, renew and remove

electric transmission lines, including poles and other

structures. Finally, the easement area is 75 feet wide, and

it forbids any construction of buildings, any changes in

grade, any excavation or addition of fill within the ease-

ment without prior written approval of CEI. Until late

1995, the Property was zoned U-1 for single family homes

only.

On March 19, 1992, Plaintiffs filed a Complaint for

Declaratory Judgment in the Cuyahoga County Court of

Common Pleas seeking to invalidate the U-1 single family

zoning classification. On June 8, 1995, Michael A. Shemo,

et al. v. City of Mayfield Heights, et al., Case No. 299140,

was voluntarily dismissed without prejudice. Upon subse-

quently refiling, the instant action, the parties entered a

stipulation by which the defendant. City of Mayfield

Heights, agreed that the U-1 single family zoning classifi-

cation was constitutionally invalid. Further, the parties

agreed pursuant to Union Oil v. City of Worthington

(1980), 62 Ohio St.2d 263 that: 1) the City had the right to

rezone the Property to a constitutionally valid use: and 2)

the Plaintiffs reserved the right to challenge the subse-

quent zoning classification. This stipulation was made an

order of the Court on December 22, 1995. Further, this

Court entered an order, in accordance with an agreement

between of [sic] the parties, invalidating the U-1 zoning

classification.

On December 11, 1995, Mayfield Heights City Council

met for the purpose of rezoning the Property. Council, over

the objections of the Plaintiffs, enacted Ordinance 1995-42

which rezoned the Property to a U-2A (cluster single

family) classification. A U-2A Planned Unit Development

App. 69

District requires a minimum 40 acre project area and a

maximum overall density of 3.5 units per acre. See May-

field Heights Zoning Code §1162.04. As the subject Prop-

erty is only 22.6 acres, Council, on its own initiative,

granted a variance from the 40 acre minimum project size

and the 3.5 unit per acre density requirements of the U-2A

district.

The Plaintiffs contend that upon stipulating that the

U-1 classification was unconstitutional, the Defendants

failed to rezone the Property within a reasonable time and

in a constitutionally permissible manner pursuant to

Union Oil Co. of California v. City of Worthington (1980),

62 Ohio St.2d 263. As such;-Plaintiffs argue that the Court

need not determine whether the U-2A zoning classification

substantially advances a legitimate health, safety or

welfare interest of Mayfield Heights, or provides the

Property owners with an economically feasible use of their

land. Rather, they contend that the Court may move

directly to the issue of the reasonableness of Plaintiffs’

_ development plan. .

The Court finds that the City of Mayfield Heights did

in fact rezone the Property within a reasonable time when

it enacted Ordinance 1995-42. As such, this Court will

determine the constitutionality of the U-2A zoning classi-

fication.

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

1003, 112 S.Ct. 2886, 120 L.Ed.2d 798, (quoting Agins v.

Tiburon, 447 U.S. 225), the U.S. Supreme Court held that

the Takings Clause of the United States Constitution is

violated when a zoning ordinance “does not substantially

advance legitimate state interest or denies an owner

economically viable use of his land.” (emphasis added).

App. 70

However, in Central Motors Corp. v. Pepper Pike, et al.,

(1995) 73 Ohio St.3d 581, the Ohio Supreme Court held

that a plaintiff is required to satisfy both prongs of the

Lucas test. In order to be successful in having a zoning

regulation declared unconstitutional, therefore, a plaintiff

must-~satisfy both parts of the above test, “beyond fair

debate.” Karches v. Cincinnati (1988), 38 Ohio St. 3d 12,

19. Fair debate was defined in Central Motors v. City of

Pepper Pike, et al. (1979), 63 Ohio App.3d 34, when Judge

Krenzier wrote:

The validity of a zoning ordinance is fairly de-

batable if reasonable minds may differ. A mere

difference of opinion is not sufficient to make the

issue of validity of a zoning ordinance fairly de-

batable because it is relatively easy for a prop-

erty owner and a municipality to obtain the

services of expert witnesses who will have differ-

ing opinions as to the validity of a zoning ordi-

nance. The fairly debatable rule must concern

itself not with mere words or expressions of opin-

ion, but basic physical facts pertinent to the issue

of the validity of the zoning ordinance.

* * *

Therefore, the courts must in an objective man-

ner scrupulously review the underlying relevant

and material evidence and facts in the case as

well as the evidence upon which expert opinions

are based before making a determination of the

validity or invalidity of a zoning ordinance.

Courts should resist the tendency to make a de-

termination in regard to the validity of a zoning

ordinance based on the mere conclusion or opin-

ion of experts. If two experts have differing opin-

ions, the court should not automatically rule that

the issue of the validity of a zoning ordinance is

App. 71

fairly debatable without ever reviewing the un-

derlying evidence. For a mere difference of opin-

ion or a conflict in testimony does not require a

finding that the reasonableness of a zoning ordi-

nance is fairly debatable.

Id. at p. 51.

Therefore, in Ohio, for the Plaintiffs to succeed, they

must satisfy both prongs of the Lucas test. In other words,

they must prove beyond fair debate that the U-2A classifi-

cation, as applied to the Property: 1) does not substantially

advance a legitimate health, safety, and welfare concern of

Mayfield Heights: and 2) that the U-2A zoning classifica-

tion renders the Property economically nonviable.

The City of Mayfield Heights has alleged that the U-

2A zoning classification is related to the following three

legitimate health, safety and welfare concerns: 1) main-

taining the character of the neighborhood: 2) maintaining

a balanced mix of uses in Mayfield Heights; and 3) not

exacerbating traffic congestion in the city.

First, in Leslie v. Toledo (1981), 66 Ohio St.2d 488, the

Court held that maintaining the residential nature of a

neighborhood can be a legitimate governmental concern.

However, the Court must determine whether the local

governing entity is attempting to arbitrarily banish

commercial development or is instead earnestly striving

towards its stated goals. See Henry Meyer Assoc., Inc. v.

Village of Moreland Hills, 1994 WL 693509 (Ohio App. 8th

Dist. 1994).

In this case, the Court finds that the Plaintiffs have

proven beyond fair debate that the U-2A zoning classifica-

tion as applied to the Property does not substantially

advance Mayfield Heights’ interest in maintaining the

App. 72 |

character of the residential neighborhood. The Property is

located within the I-271 and Mayfield Road intersection.

At one point, all of Mayfield Heights was zoned single

family. Since 1979, however, the City has rezoned for

commercial uses a substantial portion of the land immedi-

ately adjacent to the Property. Today, the predominant

uses within this inte

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