Opposition Brief — City of Mayfield Heights v. Shemo
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ry Supecme Court, U8.
(9 ; FILED
No. 02-914 ~~ _
FFB $2003
Jn The OFFICE OF THE CLERK
Supreme Court of the Anited States
¢
CITY OF MAYFIELD HEIGHTS, MAYOR
MARGARET A. EGENSPERGER, et al.,
Petitioners,
v.
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
+
BRIEF IN OPPOSITION TO PETITION
FOR A WRIT OF CERTIORARI
o
SHELDON BERNS, Esq.
Counsel of Record
BENJAMIN J. OCKNER, ESQ.
JORDAN BERNS, Esq.
BERNS, OCKNER &
GREENBERGER, LLC
24500 Chagrin Blvd., Suite 101
Beachwood, Ohio 44122
Telephone: 216-831-8838
Facsimile: 216-464-4489
STEVEN S. ROSENTHAL, ESQ.
ALAN PALMER, ESQ.
KAYE SCHOLER LLP
901 Fifteenth Street, N.W.
Washington, DC 20005-2327
Telephone: 202-682-3500
Facsimile: 202-682-3580
Counsel for Respondents
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
TABLE OF CONTENTS
Page
EARiiats CE ALTER TEAS seviccrnsceresccsvscesscovsesevscsnens ii
COUNTER-STATEMENT OF THE CASE................ 1
REASONS FOR DENYING THE WRIT............000000 13
I. The Judgment Below Was Not “Final” Within
The Meaning Of 28 U.S.C. § 1257.................. 13
II. The Decision Below Rests On Independent
And Adequate State Law Grounds................. 16
III. The “Questions Presented” In The Petition
Were Not Timely And Properly Raised Below
And The Petition Fails To Comply With Rule
RE Tae ee sibs sDievactcsteonstnceinvisiencins 21
IV. The Ohio Supreme Court Correctly Applied
This Court’s Takings Decisions, And This
Case Would Be An Inappropriate Vehicle For
Reconsidering Those Decisions ...................... 23
a. This Ohio Supreme Court Correctly
Applied Agins And The Takings Decisions
i a crecicinicatabanptrsnisinsinnenerabnabacias 23
b. This Is An Inappropriate Case In Which
- To Reconsider Agins .........s.sssecssssrorsseees 25
EI sensitised nities cubiciicieiiakceninadlachsitlaadeieanminanteaicie 29
ii
TABLE OF AUTHORITIES |
Page - |
CASES |
Agins v. Tiburon, 447 U.S. 255 (1980)............ eee passim
Andrus v. Allard, 444 U.S. 51 (1979) ..........cccecccssseeceereeeees 18
California v. Freeman, 488 U.S. 1311 (1989) .............e 16
City of Monterey v. Del Monte Dunes at Monterey,
ERG. , CRB BAT CID a hsivcssnctnsicssiansnavensecenenpiores 23, 25
Coleman v. Thompson, 501 U.S. 722 (1991).................ce0 20
Cramp v. Board of Public Instruction,
EE FA Ce i ies cctsinaset isan wiicesaiecccinbanectinsint 17
Dolan v. City of Tigard, 512 U.S. 374 (1994)... eee eee 25
First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, California,
GER UB. FR CAI e hivicnscincadchedcianiaiescapnichitigainatninaltasnvicies 19
Fox Film Corp. v. Muller, 296 U.S. 207 (1935).................. 17
Gerijo, Inc. v. Fairfield, 70 Ohio St. 3d 223,
638 N.E.2d 533 (1994)..........cccccccrescscorscsssorcosssees 4,5, 6, 19
Glenn v. Bartlett, 98 F.3d 721 (2d Cir. 1996).................06. 20
Goldberg Companies, Inc. v. Richmond Heights City
Council, 81 Ohio St. 3d 207,
OG FETE GI Cre ivisiisven tise sncinmrnswcseitcensueinatees 5, 18, 19 |
Goldblatt v. Town of Hempstead,
OD TFB, BO Ca i issn sacs chkcrsscvinniasioneetamctinanioies 24 |
Grays Harbor Logging Co. v. Coats-Fordney |
Logging Co., 243 U.S. 251 (1917)..........ccccecsseserreeees 13, 14
Herb v. Pitcairn, 324 U.S. 117 (1945)... eeeeeeeee 16, 20
Huddleston v. Dwyer, 322 U.S. 232 (1944)... eee 16 |
eeeeiniemeniliiiiiiiiiiiaiiaa
TABLE OF AUTHORITIES -— Continued
Page
Jankovich v. Indiana Toll Road Commission,
SN AI 0 sis sd dncnscnsdnivnsochsenbssamebnnnttmnievanedies 17, 19
Keystone Bituminous Coal Assn. v. DeBenedictis,
Dio ais enidnsiedvavenivineeeinaibunvahesevnoiens 9, 25
Michigan v. Long, 463 U.S. 1032 (1988)..................cceeeeeees 20
Mugler v. Kansas, 123 U.S. 623 (1887).............:cccccccesseeeees 24
Murdock v. City of Memphis, 20 Wall. 590 (1875)...........:. 16
Nectow v. Cambridge, 277 U.S. 183 (1928) ................. 21, 24
Nollan v. California Coastal Commission,
a ght Sidi satescnlaeneiniodlehn ddobwavensanesas 25
North Dakota State Bd. of Pharmacy v. Snyder’s
Drug Stores, 444 U.S. 156 (1973).......escceseseseeeeeeeeeenees 15
Norwood v. Sheen, 126 Ohio St. 482,
a hak hdc dabicsisenseonanindsobeonveniios 10, 19
O’Brien v. Skinner, 414 U.S. 524 (1974)... cece ceeeeeeee 16
Palazzolo v. Rhode Island,
ee Fi I I ED shissvoxscctonsvevevsvcscvveesesovess Li, 12, 13, 19
Penn Central Transportation Company v. City of
New York, 438 U.S. 104 (1978)............ccccccseseseseeeees passim
‘Republic Natural Gas Co. v. State of Oklahoma,
I is snc ceasing nnenietcinnidabbnsiitiihessiacsesinessoovess 15
San Diego Gas & Electric v. City of San Diego,
I sss ndsinisnahitninoenaensouasnnenovees 14, 22
Shemo v. Mayfield Heights, 88 Ohio St. 3d 7,
ED IID oss csnonensnsvenssbvesnevensensecnesers passim
Smith v. Erie Railroad Co., 134 Ohio St. 135,
Sc cnhsicbdcaecieelieniniornnndisiesonanvainskeventin 18
lv
TABLE OF AUTHORITIES -— Continued
Page
State ex rel. BSW Development Group v. Dayton,
83 Ohio St. 3d 338, 699 N.E.2d 1271 (1998),
cert. denied, 526 U.S. 1067 (1999) ..........ceeeeeeees 9, 18, 19
State ex rel. Elsass v. Shelby County Board Of
Commissioners, 92 Ohio St. 3d 529,
Fe Fee I iathisaetd ia thcinihenccbininimanisiancinnamnvens 9
State ex rel. OTR v. City Of Columbus,
76 Ohio St. 3d 203, 667 N.E.2d 8 (1996)...................00008 18
State ex rel. Shemo v. City of Mayfield Heights,
95 Ohio St. 3d 59, 765 N.E.2d 345,
reconsideration granted in part,
96 Ohio St. 3d 379, 775 N.E.2d 493 (2002)............ passim
State ex rel. Shemo vu. Mayfield Heights,
92 Ohio St. 3d 324, 750 N.E.2d 167 (2001)..................... 8
State ex rel. Shemo v. Mayfield Heights,
93 Ohio St. 3d 1, 752 N.E.2d 854 (2001).............. eee 8
State ex rel. Shemo v. Mayfield Heights,
96 Ohio St. 3d 379, 775 N.E.2d 493 (2002)..................... 1
Superior Uptown, Inc. v. Cleveland,
39 Ohio St. 2d 36, 313 N.E.2d 820 (1974)................... ie
Tahoe-Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency,
Se ee ee Ce victekinectiticiccanicnninenscconenen 12, 13, 25, 29
Union Oil v. City of Worthington,
62 Ohio St. 2d 263, 405 N.E.2d 277 (1980).................. 4,5
United States v. Riverside Bayview Homes, Inc.,
"A ee, a esl 9, 25
Village of Euclid v. Ambler Realty Co.,
SF a I aiscipdinsiecaacesvintndiaidinienasesniitinsesasanianenindicaiain 24
TABLE OF AUTHORITIES — Continued
Page
Webb’s Fabulous Pharmacies, Inc. v. Beckwith,
gk ee fk RE enn nn 24
Yee v. City of Escondido, 503 U.S. 519 (1992).............. 22, 23
CONSTITUTIONAL PROVISIONS
Bs I SI Fh vvitsnnicenisvticssenicncmisiieeceninenionaiiiaea passim
Bost GAN: SAIONIIE, GEE pocse svc picsconsesenvitnecenizetsnonaniin 9, 15, 16
Ce I MOR. Be BOP ic ciccntsstcnsennieneicccindniameainan 16, 18, 19
STATUTES
Oe ae Ae I cctecininscshsiinadivetiintinedaimiteiintdaidalaaaieatiaaaal 15, 22
a re RE vevicsacckcchitendinianiantninnientaceamieiaae 13
CRO Ba Cle BF OG I iivsesecsecsnrccscasicnsvenscsixeccsssensessses 11
RULES
U.S. Supreme Court Rule 14(g)(i)............ eee cecceceeeeeeeeeeeeee 21
1
BRIEF IN OPPOSITION TO PETITION
FOR A WRIT OF CERTIORARI
Respondents Michael A. Shemo, Trustee, and Larry
Goldberg, Trustee (collectively, “Trustees”) respectfully
urge this Court to deny the Petition for a Writ of Certiorari
(“Petition” or “Pet.”) of Petitioners City of Mayfield
Heights, Ohio, et al. (collectively, “City”) seeking review of
the Ohio Supreme Court’s decision in State ex rel. Shemo
v. City of Mayfield Heights, 95 Ohio St. 3d 59, 765 N.E.2d
345, reconsideration granted in part, 96 Ohio St. 3d 379,
775 N.E.2d 493 (2002). ;
COUNTER-STATEMENT OF THE CASE
The City describes this dispute as a challenge te an
“errant” or “obsolete” zoning regulation in effect for more
_ than 70 years, and describes the City’s conduct as “inac-
tion” resulting in “normal delays in obtaining building
permits, changes in zoning ordinance, variances, and the
like.” Pet. at 10, 16, 18. Nothing could be further from the
truth. The zoning classification that was held unconstitu-
tional as applied to the Trustees’ property was one to
which the City, over the Trustees’ objection, rezoned that
property on December 11, 1995. For three years beginning
in March 1992, the City defended the constitutionality of
the “70 year old” U-1(1) detached single-family ordinance
before stipulating its invalidity on December 11, 1995. On
that same day, the City rezoned the property to U-2-A,
allowing only detached and attached single-family use.
The City defended the constitutionality of the application
of that classification to the Trustee’s property until April
21, 2000, when the Ohio Supreme Court denied the City’s
request to reconsider its unanimous February 9, 2000
decision affirming the Cuyahoga County Common Pleas
Court’s holding that, as applied to the property, the ordi-
nance was arbitrary, capricious and unreasonable, and failed
to substantially advance any legitimate governmental
interests of the City. Thereafter, the City not only refused to
comply with the trial court’s order (thus requiring the
2
|
Trustees to seek a writ of mandamus from the Ohio
Supreme Court compelling the City to comply with that |
order), but actively engaged in conduct to stop the devel- |
opment of the Trustees’ property in accordance with that
order, prompting two members of the Ohio Supreme Court |
sua sponte to suggest that the court also award attorneys |
fees against the City. Such conduct was not inaction nor
was the almost ten year period during which the City
trampled the constitutional rights of the —— a “nor-
mal delay in obtaining a building permit.”
The subject property (the “Property”)’ is an irregular
triangular shaped 22.6 acre parcel of land owned by the
Trustees located near the intersection of Interstate 271
and Mayfield Road in the City of Mayfield Heights. To the
south, the Property is bordered by several retail and
commercial properties including a big box appliance store,
a motel, and a restaurant. To the northeast, it is bordered
by Interstate 271, a ten-lane interstate highway with daily
traffic exceeding 92,000 vehicles. The Property is at grade
with the highway, and is degraded by the noise and pollu-
tion from the traffic it carries. In addition, high-intensity
lighting on the highway floods the Property with so much
light that it is possible to read a newspaper at 10:30 p.m.
while standing in the middle of the Property without any
other light source.’ Additionally, six massive electric
transmission towers carrying high tension power lines are
located on the northeastern edge of the Property. The
transmission towers, power lines and high intensity
lighting from the adjacent highway run the entire 2,000
foot length of the Property’s northeastern border. On
March 19, 1992, the Trustees filed suit against the City in |
* The facts regarding the Property are described in Shemo v.
Mayfield Heights, 88 Ohio St. 3d 7, 722 N.E.2d 1018 (2000) (“Shemo J”),
Petition Appendix — “App.” — 34-45, at App. 40-43.
* Trial testimony of Roger D. Ritley in Shemo I, Transcript at 1004-
1005.
2
3
the trial court seeking a declaratory judgment that the U-
1(1) detached single-family use classification was uncon- _
stitutional as applied to the Property. The Trustees ini-
tially sought to develop the Property for multi-family
residential use. App. 1. They dismissed that suit on June
28, 1995 after determining that the Property was not
suitable for habitation.* The Trustees then refiled suit
seeking a declaratory judgment that the U-1(1) detached
single-family use classification was unconstitutional as
applied to the Property, and a determination that a spe-
cific retail use the Trustees proposed for the Property was
reasonable. App. 1.*
On December 11, 1995, having defended its constitu-
tionality as applied to the Property for more than three
years, the City then stipulated that the U-1(1) detached
single-family use classification was invalid as applied to
the Property and agreed to rezone the Property to a
constitutional use classification. Incredibly, on that same
day, the City rezoned the Property, over the Trustees’
objections, to another form of single-family use classifica-
tion, U-2-A, allowing only detached and attached —
family homes. App. 2.
The Trustees challenged the constitutionality of the
new single-family use classification as applied to the
Property. A trial was conducted over a ten day period in
March and April 1996, during which the trial court heard
evidence as to the constitutionality of the U-2-A use
classification as applied to the Property, and the reason-
ableness of the Trustees’ proposed retail use as shown in
the Site Plan. The City defended the constitutionality of the
U-2-A zoning classification as applied to the Property by
* Trial testimony of Michael A. Shemo in Shemo I, Transcript at
176-178.
* The retail use was the subject of a site plan dated April 22, 1995
(the “Site Plan”).
4
introducing testimony of a planner the City engaged to
defend the single-family zoning ordinance in court. The
planner, conceding that he knew of no other land that was
burdened by the same degrading characteristics of the
Property, App. 42, testified that the Property was suitable
for childless, old couples who had no desire to be outdoors,
and who would keep their windows shut to block the noise
and light from the-adjoining interstate highway. App. 43.°
By an Opinion and Judgment Entry dated May 16,
1996, App. 67-79, the trial court found, inter alia, that the
Property was not “suitable for habitation”, App. 73, and
held that the U-2-A classification was unconstitutional as
applied to the Property. App. 78. Consistent with the test
articulated in Gerijo, Inc. v. Fairfield, 70 Ohio St. 3d 223,
638 N.E.2d 533 (1994), the trial court held that the Trus-
tees had established beyond fair debate that those regula-
tions failed to substantially advance the City’s legitimate
health, safety or welfare concerns and denied the Trustees
of the economic feasible use of the Property. App. 78.° The
trial court properly rejected the incredulous testimony of
the City’s planner.
The trial court made no determination as to the
reasonableness of the Trustees’ proposed retail use; in-
stead, pursuant to Union Oil v. City of Worthington, 62
Ohio St. 2d 263, 405 N.E.2d 277 (1980),’ the trial court
* The testimony of the City’s planner is included in the Supplement
filed by the Trustees with the Ohio Supreme Court in Shemo I.
* Gerijo held that a zoning ordinance was not unconstitutional as
applied to property unless the owner demonstrated beyond fair debate
that the ordinance failed to substantially advance legitimate state
interests and deprived the owner of the economic viable use of the
property.
" Union Oil established the procedure under Ohio law to be
followed by trial courts in reviewing the constitutionality of specific
zoning classifications when applied to property.
5
advised the City “that it may rezone the Property within
90 days” of the order. App. 78.
The City then filed a notice of appeal to the Cuyahoga
County Court of Appeals. By a Journal Entry dated April
3, 1997, App. 62-64, the Court of Appeals remanded the
case to the trial court to rule on the reasonableness of the
Trustees’ proposed retail use pursuant to Union Oil. On
September 2, 1997, the trial court entered its Final Judg-
ment Entry (the “Trial Court’s Judgment”), App. 65-66,
ruling that Trustees’ proposed retail use was reasonable,
ordering the City to take any and all actions to facilitate,
and not interfere with, improvements to be made to a
street servicing the Property, enjoining the City and
members of its Council from interfering with the proposed
retail use of the Property and the installation of the
requisite street improvements, and ordering the City to
issue all approvals and permits to allow the retail devel-
opment of the Property consistent with that Judgment.
On September 25, 1997, the City appealed the Trial
Court’s Judgment to the Court of Appeals. While that
appeal was pending, the Ohio Supreme Court announced
its decision in Goldberg Companies, Inc. v. Richmond
Heights City Council, 81 Ohio St. 3d 207, 690 N.E.2d 510
(1998), modifying the standard in Ohio for determining the
constitutionality of a zoning ordinance as applied to
property. Despite the fact that the test articulated in
Gerijo and applied by the trial court was much more
stringent than the one set forth in Goldberg, on August 20,
1998, the Court of Appeals vacated the Trial Court’s
Judgment and remanded the case for reconsideration in
accordance with Goldberg. App. 56-61."
* Both Gerijo and Goldberg involve a determination as to whether
a zoning ordinance substantially advances legitimate state interests.
Goldberg, however, did away with the requirement in Gerijo that the
ordinance must also deprive the owner of the economic viable use of
property. The trial court found that the Trustees proved both elements
(Continued on following page)
6
The Trustees appealed that decision to the Ohio
Supreme Court. On February 9, 2000, the Ohio Supreme
Court announced its decision in Shemo J, unanimously
reversing the decision of the Court of Appeals and affirming
and reinstating the Trial Court’s Judgment. The Ohio
Supreme Court found “that the trial court’s conclusion
that the property is uninhabitable is supported by compe-
tent, credible evidence,” that the Trustees “have shown
that the city lacks any legitimate governmental health,
safety, and welfare concerns in support of the U-2-A zoning
classification,” and that “the trial court was warranted in
holding that the proposed U-4 commercial classification is
not detrimental to the health, safety, and welfare concerns
of the City and is a reasonable classification of the prop-
erty.” Shemo I, 88 Ohio St. 3d at 13, 722 N.E.2d at 1024,
App. 44-45.
A motion for reconsideration filed by the City on
February 17, 2000 was unanimously denied by the Ohio_
Supreme Court on April 21, 2000. Shemo v. Mayfield
Heights, 88 Ohio St. 3d 1489, 727 N.E.2d 596 (2000).
Vowing to continue its fight against the Trustees’
retail development of the Property,’ in April 2000 the City
claimed frivolously and for the first time an ownership
interest in a portion of the Property that had been dedi-
cated to the City in 1927 for the construction of streets
(creating so-called “paper streets”), and threatened to sell
of Gerijo; therefore, it was unnecessary for the Court of Appeals to
remand the case.
* During a public meeting held on February 14, 2000, five days
after the Ohio Supreme Court decided Shemo I, the City’s law director
advised the City’s Council and Mayor and audience: “And I also believe
we have other legal recourse and again, the Mayor and this Council,
has [sic] been very supportive of all you folks in this particular fight,
and they continue to be supportive and as those issues unfold, I can tell
you, I don’t believe the legal fight is over.” Evidence of Relators filed in
Case No. 01-1325 on October 16, 2001 (“Rel. Evid.”), Exhibit A.
7
those “paper streets.” It was clear that the City had
abandoned such interest more than 40 years earlier by
accepting the dedication of a subdivision to the west of the
Property, thereby blocking access to the paper streets and
rendering the Property landlocked. State ex rel. Shemo v.
Mayfield Heights, 95 Ohio St. 3d 59, 68, 765 N.E.2d 345,
354-355 (2002) (“Shemo IV”), App. 15-17. Nevertheless, the
Trustees were compelled to file an action for declaratory
and injunctive relief to block the City from trying to sell
the “paper streets” and to declare that the City had aban-
doned them. In order to avoid further delays in the devel-
opment of the Property, eight months later, on December
29, 2000, the Trustees and the City entered into a stipu-
lated judgment entry by which the City formally vacated
the paper streets. Rel. Evid., Ex. B.
On March 2, 2001, the Trustees filed with the City’s
Planning Commission their application for preliminary
approval of road improvement plans for the retail devel-
opment of the Property. Despite its having been clearly
affirmed and reinstated by the Ohio Supreme Court, the
City refused to comply with the Trial Court’s Judgment
and continued to block the Trustees’ judicially approved
retail use, now disingenuously claiming that in Shemo I,
the Ohio Supreme Court had determined that access to
and from the only public street providing access to the
Property, Maplewood Road (one of only two necessary
points of access to the Property, the other being a driveway
” The City’s description of the Property as “vacant, undeveloped
land platted as a single-family residential subdivision”, Pet. at 17, is
misleading. The paper streets were included in a platted single-family
residential subdivision that included only half of the Property, not all of
it. Relators’ Compendium of Exhibits filed in Case No. 01-1325 on July
23, 2001 (“Rel. Comp.”), Exhibit K-3. Part of the same subdivision
immediately south of the Property had been rezoned by the City for
retail use. Trial testimony of Michael A. Shemo in Shemo I, Transcript
at 139.
8
easement through private property) was confined to
emergency use.”
On May 16, 2001, the Trustees filed a Complaint for a
Writ of Mandamus in the Ohio Supreme Court seeking to
compel the City, its Mayor and the members of its Council
to approve the Trustees’ road improvement plans and to
grant all other permits and approvals necessary for the
retail development of the Property in accordance with the
Trial Court’s Judgment as affirmed and reinstated by the
Ohio Supreme Court. The Trustees’ Complaint included a
second claim for relief — the issuance of a writ of manda-
mus compelling the City to institute proceedings in the
Cuyahoga County Probate Court to determine the extent,
if any, to which the value of the Trustees’ use of the Prop-
erty was diminished as a consequence of the City’s con-
tinuing unconstitutional application of its single-family
zoning regulations to the Property.”
On August 8, 2001, the Ohio Supreme Court unani-
mously entered a peremptory writ of mandamus as to the
first of the Trustees’ two claims, ordering the City to
approve the Trustees’ road improvement plans as provided
for in the Trial Court’s Judgment and to grant all other
permits and approvals necessary for the retail develop-
ment of the Property in accordance with the Trial Court’s
Judgment. State ex rel. Shemo v. Mayfield Heights, 93
Ohio St. 3d 1, 752 N.E.2d 854 (2001) (“Shemo Iil”), App.
20-29.
” Rel. Evid., Ex. B, which also contains a detailed description of
other attempts by the City to block the development of the Property.
* The Trustees’ Complaint was dismissed without prejudice as a
consequence of a technical defect in their compliance with the Ohio
Supreme Court’s Rules of Practice, State ex rel. Shemo v. Mayfield
Heights, 92 Ohio St. 3d 324, 750 N.E.2d 167 (2001) (“Shemo II”), App.
30-33, and the Trustees immediately refiled their Complaint for a Writ
of Mandamus on July 23, 2001.
9
On April 10, 2002, after the Trustees’ second claim
was fully briefed and evidence submitted in accordance
with the Ohio Supreme Court’s Rules of Practice, that
Court unanimously issued a writ compelling the City “to
commence appropriation proceedings to determine the
amount of the City’s temporary taking of relator’s prop-
erty.” Shemo IV, 95 Ohio St. 3d at 70, 765 N.E.2d at 355-
356, App. 19. The Ohio Supreme Court held that the Fifth
and Fourteenth Amendments to the United States Consti-
tution and Article I, Section 19 of the Ohio Constitution
“guarantee that private property shall not be taken for
public use without just compensation,” and noted that
under Ohio law “[m]Jandamus is the appropriate action to
compel public authorities to institute appropriation
proceedings where an involuntary taking of private prop-
erty is alleged.” 95 Ohio St. 3d at 63, 765 N.E.2d at 350,
App. 7, citing State ex rei. Elsass v. Shelby County Board
Of Commissioners, 92 Ohio St. 3d 529, 751 N.E.2d 1032
(2001).
The Ohio Supreme Court then determined that the
Trustees had established a compensable taking under both
the United States and Ohio Constitutions, citing this
Court’s decisions in Agins v. Tiburon, 447 U.S. 255 (1980),
Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S.
470 (1987), and United States v. Riverside Bayview Homes,
Inc., 474 U.S. 121 (1985), as well as its own prior decision ~
in Goldberg in which it adopted the disjunctive two-part
test for a regulatory taking set forth in Agins.” 95 Ohio
St. 3d at 63, 765 N.E.2d at 350, App. 8. Citing State ex rel.
BSW Development Group v. Dayton, 83 Ohio St. 3d 338,
699 N.E.2d 1271 (1998), cert. denied, 526 U.S. 1067 (1999),
the Ohio Supreme Court held that either of the two prongs
* “[Alpplication of a general zoning law to a 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.” 447 U.S. at 260.
10
of the test establishes a taking. 95 Ohio St. 3d at 64, 765
N.E.2d at 351, App. 8-9. The Ohio Supreme Court held:
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 un-
constitutional in that the application of these
classifications did not substantially advance le-
gitimate 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 reinstated by this court in Shemo I,
that the U-2-A zoning classification was also un-
constitutional because, as applied to relators’
property, it did not substantially advance any le-
gitimate health, safety, or welfare concern of
Mayfield Heights.
* * *
The U-1(1) and U-2-A single-family residen-
tial zoning classifications were unconstitution-
ally applied to relators’ property, and the
property was, in fact, not suitable for this resi-
dential use. Therefore, relators have proved a
taking of their property.
95 Ohio St. 3d at 64-65, 765 N.E.2d at 351-352, App. 9-11.
With respect to the measure of damages, the Ohio
Supreme Court, relying on Norwood v. Sheen, 126 Ohio St.
482, 186 N.E. 102 (1933), held “relators are entitled to the
diminution in the value of the use of their property during
the period of the temporary taking.” 95 Ohio St. 3d at 69,
765 N.E.2d at 355, App. 18-19. The Ohio Supreme Court
determined that the period of the temporary taking
commenced when the single-family residential zoning
regulations were applied to the Property on March 19,
1992, the date the Trustees filed their initial lawsuit
against the City, and ended in April 2001, when the
Property was rezoned to allow retail use of the Property
11
and the City’s unconstitutional zoning regulations were no
longer applied to the Property. Id.
The Ohio Supreme Court thus fashioned a remedy
under the Ohio Constitution to compensate the Trustees to
the extent that the value of their use of the Property was
diminished by application of zoning regulations that was
arbitrary, capricious and unreasonable, and failed to
substantially advance legitimate governmental interests.
On April 22, 2002, the City asked the Ohio Supreme
Court to reconsider its decision in Shemo IV. The City
advanced three reasons for reconsideration. First, it
argued that Shemo IV overruled sub silentio Superior
Uptown, Inc. v. Cleveland, 39 Ohio Sc. 2d 36, 313 N.E.2d
820 (1974), in which the Ohio Supreme Court held that a
direct cause of action for money damages cannot be main-
tained against a municipality as a result of the adoption of
an invalid zoning ordinance. The Ohio Supreme Court
rejected this argument because the claim asserted by the
Trustees was not a direct cause of action for damages.
State ex rel. Shemo v. Mayfield Heights, 96 Ohio St. 3d
379, 380, 775 N.E.2d 493, 495 (2002) (“Shemo V”), App.
48,"
Next, the City complained that the Ohio Supreme
Court had failed in its takings analysis to apply the ad hoc
factual inquiry set forth in Penn Central Transportation
Company v. City: of New York, 438 U.S. 104 (1978), and
Palazzolo v. Rhode Island, 533 U.S. 606 (2001). Expressing
doubts as to the applicability of “the Penn Cent. /Palazzolo
analysis,” 96 Ohio St. 3d at 381, 775 N.E.2d at 496, App.
50, the Ohio Supreme Court nevertheless responded to the
City’s complaint and concluded that reconsideration was
not warranted:
“ Ohio does not permit a direct action for damages against a
municipality for a regulatory taking. Superior Uptown, 39 Ohio St. 2d
at 40, 313 N.E.2d at 823; Ohio Rev. Code § 2744.03(A)(1) and (3).
12
Even assuming that the Penn Cent. /Palazzolo
analysis applies, a finding of a compensable tak-
ing is still warranted. Restricting relators’ land ‘
to residential use on property that was held to be
unsuitable for residential use had an obvious ad-
verse economic impact on relators, which necessar-
ily interfered with their reasonable investment-
backed expectations when they requested that the
property be rezoned for retail development. Fur-
ther, the city’s application of residential classifi-
cations to their property did not substantially
advance any legitimate health, safety, or welfare
concern of Mayfield Heights. Shemo, 95 Ohio
St.3d at 64, 765 N.E.2d 345.... In addition, the
duration of the challenged restrictions was much
lengthier here than the challenged restrictions in
Tahoe-Sierra [Preservation Council, Inc. v. Tahoe
Regional Planning Agency, 122 S.Ct. 1465
(2002)], which totaled 32 months, .. . 122 S.Ct. at
1489, ... (“the duration of the restriction is one
of the important factors that a court must con-
sider in the appraisal of a regulatory takings
claim”).
95 Ohio St. 3d at 381-382, 765 N.E.2d at 496, App. 50-51.
Finally, the City asked the Ohio Supreme Court to
reconsider the length of the period for the compensable |
taking. After review, the Ohio Supreme Court shortened
the period of the temporary taking by establishing a
starting date in June 1995, when the Trustees refiled their |
action challenging the constitutionality of the U-1(1) |
classification as applied to their Property and seeking }
approval of a retail use on their Property, as opposed to |
March 19, 1992, when the Trustees first commenced their |
challenge to the constitutionality of the application of the
U-1(1) classification to the Property. App. 53. The Court
rejected the City’s argument that the period of the taking
|
alll alll
13
should be further shortened because of procedural delays
in the rezoning of the Property. App. 54.
In Shemo V, the court sua sponte considered this
Court’s decision in Tahoe-Sierra,” noting that it involved a
claim under the second prong of the regulatory takings
test set forth in Agins, and reiterating its conclusion that
“application of the Penn Cent./Palazzolo ad hoc factual
inquiry here does not, as previously discussed, require a
different holding.” 95 Ohio St. 3d at 382, 765 N.E.2d at
497, App. 52.
REASONS FOR DENYING THE WRIT
I. The Judgment Below Was Not “Final” Within
The Meaning Of 28 U.S.C. § 1257.
This Court’s jurisdiction to review decisions of a
state’s highest court by writ of certiorari extends only to
review of “final judgments or decrees.” 28 U.S.C. § 1257(a).
Under this Court’s longstanding precedent, a judgment in
a Takings case is not “final”, and therefore is not subject to
review by this Court, until a determination of just com-
pensation has been made. Grays Harbor Logging Co. uv.
Coats-Fordney Logging Co., 243 U.S. 251 (1917)..In the
case sub judice, after determining that the Trustees had
established a compensable taking of their Property, the
Ohio Supreine Court granted the Trustees’ request for a
writ of mandamus to compel the City to commence appro-
priation proceedings for the determination of the Trustees’
damages, if any, for the City’s taking of the use of their
Property. App. at 19. The compensation proceedings are to
be commenced in the Cuyahoga County Common Pleas
Court, Probate Division. Because there has not yet been a
determination of just compensation, under Grays and its
* This Court’s decision in Tahoe-Sierra was not announced until
after the City asked the Ohio Supreme Court to reconsider its decision
in Shemo IV.
14
progeny this Court has no jurisdiction to review the
decision of the Ohio Supreme Court.
In Grays, a case with a procedural history strikingly
similar to that of this case, plaintiffs opposed a condemna-
tion procedure involving construction of a railroad on their
property, alleging that the proposed construction consti-
tuted a taking of their property without due process of law
in violation of the Washington Constitution. A lower court
entered an order of condemnation and set proceedings to
determine the damages and compensation. Before the
issue of just compensation was decided, plaintiffs applied
for and obtained a writ of certiorari from the state su-
preme court to review the constitutional question. The
Washington Supreme Court affirmed the judgment of the
lower court and remanded the case to that court for further
proceedings. In assessing its jurisdiction to review the state
court’s decision, this Court considered the finality of the
state court judgment and announced the now well-settled
rule applicable to takings claims:
[W]e cannot regard a condemnation proceeding
taken under the authority of the Constitution of
Washington and the Act of 1913 as severable into
two distinct branches. The Constitution forbids
that the property be taken without compensation
first made or ascertained and paid into court for
the owner, and, of course, in case of controversy,
compensation cannot be made to the owner until
the amount of it has been ascertained. It follows
that the judgment entered by the superior court
to the effect that petitioner was entitled to con-
demn and appropriate the land in question for its
right of way must be construed as being subject
to a condition that the proper compensation be
first ascertained and paid.
243 U.S. at 256.
Hence the Court concluded that it was without
jurisdiction to review the state court decision. This holding
has been reaffirmed in subsequent cases, most recently in
San Diego Gas & Electric v. City of San Diego, 450 U.S.
15
621 (1981). There, the plaintiff alleged that the city’s
rezoning of its property deprived it of the beneficial use of
its property and, therefore, constituted a taking without
just compensation in violation of the Federal and State
Constitutions. This Court was presented with a situation
that was the reverse of the typical takings question — the
state court had determined that monetary compensation
was not an appropriate remedy, but had not decided
whether any taking had occurred, and thus remanded the
case to the lower court for further proceedings. This Court
considered whether it had jurisdiction to review the
decision under 28 U.S.C. § 1257. Relying on Grays, this
Court stated as follows: “[A] state court’s holding that
private property has been taken in violation of the Fifth
and Fourteenth Amendments and that further proceedings
are necessary to determine the compensation that must be
paid has been regarded as a classic example of a decision
not reviewable in this Court because it is not ‘final.’” 450
U.S. at 632-33. Based on this principle, the Court found
that there was no final decision and dismissed the appeal
for want of jurisdiction.
The Court should similarly dismiss the City’s Petition.
See also North Dakota State Bd. of Pharmacy v. Snyder’s
Drug Stores, 414 U.S. 156, 163 (1973) (“(IJn [eminent
domain] cases the federal constitutional question em-
braces not only a taking but a taking on payment of just.
compensation. A state judgment is not final unless it
covers both aspects of that integral problem.”); Republic
Natural Gas Co. v. State of Oklahoma, 334 U.S. 62, 68
(1948) (“[A] decision that a taking by eminent domain is
for public use, where the amount of compensation has not
been determined, is not deemed final, certainly where the
property will not change hands until after the award of
compensation.”).
It is indisputable that Petitioners have the burden of
affirmatively establishing this Court’s jurisdiction. See
Republic Natural Gas Co., 334 U.S. at 70. The City has
EE a
16
- preemptively and prematurely filed its Petition before a
determination of just compensation has been made. Given
this Court’s clear and unambiguous rule that takings
proceedings are not final judgments subject to review until
compensation has been determined, the Court should deny
the City’s Petition.
II. The Decision Below Rests On Independent
And Adequate State Law Grounds.
This Court has long respected interpretations of state
law by a state’s highest court to be conclusive and binding
on it. See, e.g., Murdock v. City of Memphis, 20 Wall. 590
(1875); Huddleston v. Dwyer, 322 U.S. 232, 237 (1944);
O’Brien v. Skinner, 414 U.S. 524, 531 (1974); California v.
Freeman, 488 U.S. 1311, 1313 (1989).
Our only power over state judgments is to correct
them to the extent that they incorrectly adjudge
federal rights. And our power is to correct wrong
judgments, not to revise opinions. We are not
permitted to render an advisory opinion, and if
the same judgment would be rendered by the
state court after we corrected its views of federal
laws, our review could amount to nothing more
than an advisory opinion.
Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945) (emphasis
added).
The Trustees’ claims were asserted and addressed by
the Ohio Supreme Court under both Article I, Section 19 of
the Ohio Constitution and the Fifth and Fourteenth
Amendments to the U.S. Constitution. In adopting a
remedy to compensate the Trustees to the extent the value
of their use of the Property was diminished by the City’s
application of single-family zoning classifications that was
arbitrary, capricious, and unreasonable, and failed to
substantially advance legitimate governmental interests,
17
it is clear that the decision of the Ohio Supreme Court is
independently grounded upon state constitutional law
principles.”
It is “‘the settled rule that where the judgment of a
state court rests upon two grounds, one of which is Federal
and the other non-federal in character, [this Court’s]
jurisdiction fails if the non-federal ground is independent
of the federal ground and adequate to support the judg-
ment.’” Jankovich v. Indiana Toll Road Commission, 379
U.S. 487, 489 (1965) (quoting Cramp v. Board of Public
Instruction, 368 U.S. 278, 281 (1961), in turn quoting Fox
Film Corp. v. Muller, 296 U.S. 207, 210 (1935)).
This case is strikingly similar to Jankovich. In Jank-
ovich, the Indiana Supreme Court held that the City of
Gary’s airport zoning ordinance “purported to authorize an
unlawful and unconstitutional appropriation of property
rights without payment of compensation.” 379 U.S. at 489,
quoting 244 Ind. 574, 584, 193 N.E. 2d 237, 242 (1965).
Upon review, however, this Court observed that the state
court decision addressed “the just compensation require-
ment of the Indiana Constitution ... as well as ... the
Fourteenth Amendment.” 379 U.S. at 491. Noting that the
state court opinion “quite understandably” cited both state
and federal decisions, this Court concluded that “even
though [the] opinion relie[d] on similar provisions in both
the Federal and State Constitutions,” the state constitu-
tional provision was “an independent and adequate ground
of decision depriving this Court of jurisdiction to review
the state judgment.” Jd. at 492. Similarly, while the court
below discussed the Trustees’ takings claims in the context
of both federal and state law, it is clear that those claims
“ The City has not suggested and cannot show that the Ohio
Supreme Court’s determination of the Trustees’ takings claim under the
Ohio Constitution somehow trenches on any rights secured by the
~~ Federal Constitution.
18
were resolved on independent and adequate state constitu-
tional grounds, as set forth in previous Ohio decisions.
The, existence of an independent and adequate state-
law basis for the Ohio Supreme Court’s decision is evident
from the text of Shemo IV. The court began its analysis by
noting that it was addressing both “[t]he United States
and the Ohio Constitutions,” each of which “guarantee[s]
that private property should not be taken for public use
without just compensation.” App. 7 (emphasis added). And
the court specifically cited in this regard Section 19,
Article I, of the Ohio Constitution, which provides that
“[p]rivate property shall ever be held inviolate” and that if
property is taken by the State, “compensation shall be
made to the owner... .” Id.
In assessing whether a taking had occurred, the Ohio
Supreme Court noted the Agins test and then added that
in Goldberg and BSW it had “also adopted” the same test.
App. 8.” Since the Ohio Supreme Court was bound in its
resolution of the Trustees’ federal takings claim by this
” In BSW, the court relied on State ex rel. OTR v. City Of Colum-
bus, 76 Ohio St. 3d 203, 667 N.E.2d 8 (1996), in which it held: “In order
to establish a taking, a landowner must demonstrate a substantial or
unreasonable interference with a property right. ... Such an interfer-
ence may involve the actual physical taking of real property, or it may
include the deprivation of an intangible interest in the premises.” 76
Ohio St. 3d at 206-207, 667 N.E.2d at 11-12. OTR in turn relied upon
Smith v. Erie Railroad Co., 134 Ohio St. 135, 16 N.E.2d 310 (1938),
Syllabus, Para. 1, which states: “Under Section 19, Article I of the
[Ohio] Constitution, which requires compensation to be made for
private property taken for public use, any taking, whether it be physical
or merely deprives the owner of an intangible interest appurtenant to the
premises, entitles the owner to compensation.” (Emphasis added.) These
decisions reveal that Ohio’s property jurisprudence is in marked
contrast to decisions of this Court like Andrus v. Allard, 444 U.S. 51
(1979), in which this Court held that “where an owner possesses a full
‘bundle’ of property rights, the destruction of one ‘strand’ of the bundle
is not a taking because the aggregate must be viewed in its entirety.”
444 U.S. at 65-66.
19
Court’s interpretation of the United States Constitution,
and has no discretion to “adopt” or not “adopt” such an
interpretation, its announced “adoption” of the Agins test
can only mean that in construing the Ohio Constitution,
the court independently determined that it would “also”
follow the approach outline in Agins.
Indeed, in elaborating on its conclusion that “[t]his
test is disjunctive,” the court cited no less than seven state
court decisions — Gerijo, Goldberg, and BSW in the text
and four others in a footnote, App. 8-9 — as providing the
basis for that conclusion. “[U]nderstandably,” as in Jank-
ovich, the court also referred to decisions of this Court. Its
only references to any such decisions other than Agins,
however, were to First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, California,
482 U.S. 304 (1987) (which it found persuasive on the
issue of the Trustees’ entitlement to compensation for a
temporary taking — consistent with that court’s earlier
decision in Norwood — despite the fact that First English
arose under the second prong of Agins), and to a statement
in Palazzolo that a taking may occur even where “a regu-
lation places limitations on land that fall short of eliminat-
ing all economically beneficial use.... ” App. 9. Palazzolo
did not purport to apply the first prong of Agins, however,
which is the subject of the “Questions Presented” by the
Petition. Hence, Palazzolo could not possibly be a part of
the basis for the ruling of the Ohio Supreme Court chal-
lenged in the City’s Petition.
Finally, with respect to the measure of compensation,
the Ohio Supreme Court relied on state law as set forth in
Norwood, Syllabus, Para. 4, cited at App. 18-19, in which
that court held that the measure of compensation under
Article I, Section 19 of the Ohio Constitution for a tempo-
rary taking is the “diminution in the value of the use of
the property during [the relevant] period.”
Since deciding Jankovich, this Court’s approach to
discerning the existence of adequate and independent
state grounds has evolved, most notably in the review of
20
state court decisions in criminal cases. Observing that
state courts “handle the vast bulk of all criminal litigation
in this country” and “necessarily create a considerable
body of ‘federal law’ in the process,” in Michigan v. Long,
463 U.S. 1032, 1042, n.8 (1983), the Court explained that
it had “become more interested in the application and
development of federal law by state courts in the light of
the recent significant expansion of federally created
standards that we have imposed on the States.” Id. 13.
The Court held that where the adequacy and independ-
ence of a state-law ground is “not clear from the face of the
{state court’s] opinion,” it would presume and “accept as
the most reasonable explanation that the court decided the
case the way it did because it believed that federal law
required it to do so.” 463 U.S. at 1041.
Even under this approach, however, the absence of an
explicit statement, in so many words, that “we are decid-
ing this case on state-law grounds” is not a sine qua non
for determining that a separate state-law basis for a
decision exists. E.g., Coleman v. Thompson, 501 U.S. 722,
739 (1991) (“we will not impose on state courts the respon-
sibility for using particular language”); Glenn v. Bartlett,
98 F.3d 721, 725 (2d Cir. 1996) (“to require a state court to
use specific talismanic phrases when ruling in the alterna-
tive would be undue formalism; it would also intrude on
the state court’s autonomy without advancing the federal-
ism and comity interests protected by the independent and
adequate state grounds doctrine”). The real question is
always whether it “fairly appears that a state court judg-
ment rested primarily on federal law or was interwoven |
with federal law,” since “[t]he [Long] presumption applies
only” in such circumstances. Coleman, 501 U.S. at 739
(emphasis added). This is necessarily true, since the
independent and adequate state-law doctrine is based on
“the limitations of [this Court’s] own jurisdiction.” Herb v.
Pitcairn, 324 U.S. at 125.
It is obvious from the text of Shemo IV that the Ohio
Supreme Court chose to “adopt” the two-part Agins test in
21
resolving the takings issue under the Ohio Constitution.
That the Ohio Supreme Court may have regarded some
decisions of this Court as persuasive as to the proper
construction of the Ohio Constitution does not change the
fact that the holding was based on adequate and inde-
pendent state-law grounds under that Constitution.
Ill. The “Questions Presented” In The Petition
Were Not Timely And Properly Raised Below
And The Petition Fails To Comply With Rule
14(g)(i) Of This Court.
Rule 14(g)(i) of this Court requires that a party
seeking review of a state court judgment set forth with
specificity in its petition: (1) each stage in the proceedings
when the federal questions sought to be reviewed were
raised; (2) the “method or manner of raising them and way
in which they were passed on” by the state courts; and (3)
“pertinent quotations of the record ... so as to show the
federal question was timely and properly raised.” Except
for a brief passage from its Motion for Reconsideration
before the Ohio Supreme Court, the City has failed to
comply with the Rule, which is intended to permit Peti-
tioner to demonstrate that this Court has jurisdiction. The
City’s failure to comply with Rule 14(g)(i) is amply ex-
plained by the fact that the City, as demonstrated below,
has in fact failed to timely and properly raise the federal
questions that it is seeking to bring before this Court.
The City is asking this Court to overrule a line of
authority that long precedes this case, which holds that
“application of general zoning law to a particular property
effects a taking if the ordinance does not substantially
advance legitimate state interest ... .” Agins, 447 U.S. at
260; see also Nectow v. Cambridge, 277 U.S. 183 (1928).
However, the City’s principal argument in the original
action for mandamus was far narrower and fact-specific in
22
nature”, and its only discussion of Agins in the proceed-
ings below was to observe that this Court did not find a
taking under the facts in Agins. The City never challenged
this Court’s reasoning or analysis in Agins or the test it set
forth. Similarly, the City never discussed Justice Bren-
nan’s dissenting opinion in San Diego Gas & Electric Co.,
in the proceedings below. The one brief occasion on which
the City claims, Pet. at 9, to have raised before the Ohio
Supreme Court the issues which it presents in its Petition,
upon examination, does not in fact do that. Moreover, the
quoted language was presented in support of a contention
that was addressed to how the Ohio Supreme Court should
interpret Ohio law, not as to how it should interpret the
U.S. Constitution.”
In Yee v. City of Escondido, 503 U.S. 519, 533 (1992),
this Court stated: “In reviewing the judgments of state
courts under the jurisdictional grant of 28 U. S. C. § 1257,
the Court has, with very rare exceptions, refused to
consider petitioners’ claims that were not raised or ad-
dressed below.”
* “Proposition of Law No. I: When A Zoning Ordinance Restricting
The Use Of Property To Residential Use Is Declared Unconstitutional
There Is No Involuntary Taking Of Property Without Just Compensa-
tion Where: (A) At The Time The Property Owner Acquired Ownership
Of The Land Its Zoning Was Limited To Residential Use; (B) There Was
No Deprivation Of The Right To Continue The Prior Use Of The
Property; and (C) The Property Owner Failed To Establish Any Harm
Caused By The Government Between The Time It Became The Owner
Of The Property And The Time The Zoning Ordinance Was Declared
Unconstitutional.” Brief of Respondents in Case No. 01-1325 filed
November 12, 2001, ati, 5.
* “This Court should reconsider its enlargement of Ohio law to
include the right to devote property to the use for which it should be
zoned as compensable under the Takings Clause”. Respondent’s Motion
for Reconsideration in Case No. 01-1325 filed April 22, 2002, at 3.
23
Yee’s cautionary instruction applies here. As the City
never suggested that the Ohio Supreme Court’s considera-
tion of Agins in connection with the Trustees’ takings
claim was erroneous, that Court had no reason to engage
in such analysis. Under similar circumstances, this Court
declined to review Agins in City of Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U.S. 687 (1990):
[W]e note that the trial court’s instructions are
consistent with our previous general discussions
of regulatory takings liability.... The city did
not challenge below the applicability or continued
viability of the general test for regulatory takings
liability recited by these authorities and upon
which the jury instructions appear to have been
modeled. Given the posture of the case before us,
we decline the suggestions of amici to revisit these
precedents.
526 U.S. at 704 (emphasis added) (citations omitted).
Having failed to demonstrate that it timely and
properly raised below the issues it seeks to raise here, the
City’s Petition should be denied.
IV. The Ohio Supreme Court Correctly Applied
This Court’s Takings Decisions, And This Case
Would Be An Inappropriate Vehicle For Re-
considering Those Decisions.
a. This Ohio Supreme Court Correctly Ap-
plied Agins And The Takings Decisions Of
This Court.
If this Court reaches the issues presented by the
Petition, it bears emphasis that the City has not contended
that the Ohio Supreme Court has done other than to adopt
and faithfully apply Agins and this Court’s Takings Clause
jurisprudence. Agins set forth the following test: “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
of economically viable use of his land.” 447 U.S. at 260.
24
This test, and specifically its first prong, was hardly
novel and had antecedents back to the earliest zoning
cases heard by this Court. In Village of Euclid v. Ambler
Realty Co., 272 U.S. 365 (1926), this Court upheld the
constitutionality of a comprehensive zoning scheme, but
cautioned that such ordinances “must find their justifica-
tion in some aspect of the police power, asserted for the
public welfare.” 272 U.S. at 387.
Nectow v. Cambridge, decided two years later, con-
firmed that the power to interfere by zoning regulations
with the general rights of the land owner by restricting the
character of his use is “not unlimited”: “[O]ther questions
aside, such restriction cannot be imposed if it does not
bear a substantial relation to the public health, safety,
convenience and general welfare.” 277 U.S. at 188. Where
a zoning regulation does not bear a substantial relation to
a communitys public health, safety, convenience and
welfare as applied to property, the “invasion of property”
occasioned by that application is “serious and highly
injurious.” Id.
In Goldblatt v. Town of Hempstead, 369 U.S. 590
(1962), this Court reiterated what it had observed 75 years
earlier: “A prohibition simply upon the use of property for
purposes that are declared, by valid legislation, to be
injurious to the health, morals or safety of the community
cannot, in any just sense, be deemed a taking or an appro-
priation of property for the public benefit.” 369 U.S. at 593
(emphasis added), quoting Mugler v. Kansas, 123 U.S. 623,
668 (1887). Goldblatt implicitly recognized that invalid
legislation imposing limitations on the use of property can
affect a taking of property.
In Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449
U.S. 155 (1980), decided roughly contemporaneously with
Agins, this Court held that in the absence of any police
power justification or any reasonable basis for sustaining
it, a Florida statute directing payment to the county of
interest accruing on interpleader funds deposited in
county court registries, when a fee, prescribed by another
ee
25
statute, was charged for the clerk’s services in receiving
the fund into the registry, violated the Takings Clause of
the Fifth Amendment. That clause, the Court explained,
“stands as a shield against the arbitrary use of govern-
mental power.” 449 U.S. at 164.
Since deciding Agins, this Court has reiterated the
Agins test on numerous occasions. See, e.g., Riverside
Bayview Homes, Inc., 474 U.S. at 126; Keystone Bitumi-
nous Coal Assn., 480 U.S. at 485; Nollan v. California
Coastal Commission, 483 U.S. 825, 834 (1987); Dolan v.
City of Tigard, 512 U.S. 374, 385 (1994). In Del Monte
Dunes, this Court expressly declined to reconsider Agins.
526 U.S. at 704. In Tahoe-Sierra, this Court once again
reiterated the Agins test. Despite holding that temporary
moratoria on development imposed during the develop-
ment of a comprehensive land-use plan for the Lake Tahoe
area did not constitute a per se taking of property, the
Court explained that the landowners could have at-
tempted to establish a taking on the theory “that the
moratoria did not substantially advance a legitimate state
interest, see Agins and Monterey.” Tahoe-Sierra, 122 S. Ct.
at 1485.
In light of this history, the Ohio Supreme Court acted
entirely appropriately in applying the Agins test as the
appropriate legal standard for finding a taking under the
U.S. Constitution. Since it is undisputed that application
of the City’s zoning ordinance to the Property did not
substantially advance legitimate state interests, the Ohio
Supreme Court’s issuance of a writ compelling the City to
commence appropriation proceedings to determine the
compensation due the Trustees as a result of the City’s
temporary taking of their property is unobjectionable
under this Court’s precedents.
b. This Is An Inappropriate Case In Which
To Reconsider Agins.
By ignoring its own misconduct and distorting the
factual and procedural background of this case, the City
26
seeks to depict this case as one presenting issues “critical
to local government throughout the country.” Pet. at 21.
Contrary to the City’s suggestion, “local government(s]
throughout the country” are not guilty of the misconduct
committed by the City in this case. Because the Ohio
Supreme Court’s decision results from the unique facts of
this case, this is not an appropriate case for reconsidera-
tion of Agins.
In its effort to portray this case as presenting a wrong
worthy of this Court’s consideration, the City audaciously
claims that the Trustees suffered no economic harm on
account of the City’s unconstitutional interference with the
Trustees’ use of the Property, are “likely being rewarded
far beyond their reasonable expectations”, Pet. at 17, and,
in fact, have “reaped a substantial reward”, Pet. at 18, on
account of the City’s rezoning the Property after being
ordered to do so by the courts. Not surprisingly, there is no
factual or logical support for the City’s claim or the City’s
argument that any increase in value of the Property
occasioned by the rezoning in April 2001 compensates the
Trustees for the diminution in the value of their use of the
Property while it was unconstitutionally zoned by the City
for single-family use.” According to the City, no economic
consequences flowed from its arbitrary and capricious
application of zoning regulations that prevented the
Trustees from using their Property. For that proposition to
be true, it would also have to be true that, had the Prop-
erty been zoned for a constitutionally permitted use during
the almost six-year period for which the court determined
the Trustees were entitled to compensation, the Trustees
* Initially, the Trustees claimed that the period of the taking
should begin in March 1992, and the court below agreed. On reconsid-
eration, the court revised the starting date to June 1995 when the
Trustees first sought to develop their Property for retail use. In both
Shemo IV and Shemo V, the court below held that the taking period
ended in April 2001, when the Property was rezoned to commercial use.
27
would have elected not to develop the Property, would
have borne the expenses of maintaining the Property, and
would have received no income from it.
It may be that obtaining rights to which one is enti-
tled under the U.S. and Ohio Constitutions is a windfall in
the City of Mayfield Heights; hopefully, that proposition is
not true in the rest of the United States.
Of course the City is correct in stating that the Prop-
erty increased in value once it was rezoned to a retail use
as a consequence of the court orders to do so. Before then,
however, “the value of the use of their property,” Shemo IV,
App. 18, was diminished by the City’s arbitrary and
capricious action — not inaction.
The City sought to convince the Ohio Supreme Court
that it would be unfair to award compensation to the
Trustees under the facts of this case and that a decision
awarding compensation would “have an extreme chilling
effect on a municipality’s exercise of their [sic] constitu-
tional police power with respect to land use.” Brief of
Respondents, filed November 12, 2001, at 10. The Ohio
Supreme Court unanimously determined that the City’s
conduct in this case warranted a finding that a taking had
occurred for which compensation was due the Trustees.
As the Ohio Supreme Court observed in Shemo IV,a
city may stay an adverse “judgment without posting bond
pending its resolution on appeal.” App. 28. Thus, in Ohio a
city knows that even if a challenge as to the constitutional-
ity of a zoning regulation is decided against it at the trial
court level, it has the right to appeal that decision, to-
gether with any order containing injunctive relief, without
posting a supersedeas bond and may thereby postpone for
years any adverse final determination. In this case, the
City postponed compliance with the adverse determination
of the trial court for more than five years.
Cities in Ohio understand that they have the ability to
delay an owner’s use of his or her property for years by
enforcing unconstitutional zoning regulations and by
defending that enforcement over the course of years of
litigation. In the absence of a compensation remedy, some
28
cities will use that advantage, without regard to injury
they may inflict on property owners, to extract clearly
unlawful concessions as to the use of their property, or to
curry favor with some residents by refusing to make unpopu-
lar but constitutionally-mandated decisions, forcing the
courts to make unpopular decisions which the cities, them-
selves, should have made. In either event, property owners
may and generally will be deprived of their constitutional
rights for years.”
Here, the City refused to make the constitutionally-
mandated decision to allow the Trustees a reasonable use
of their property, foisted the cbligation to make that
decision on the courts, and, when the courts made the
decision that the City was obliged to make, blamed the
courts for the City’s failure. In a re-election campaign flyer
circulated by the City’s mayor to residents of the City
during the week of April 22, 2001, she stated:
FACT None of us want this development; not the
residents, not Council, not I. The city has ex-
pended a great deal of money fighting this case.
Many of us have spent long hours in court to rep-
resent the interests of our community. Remember
that the Ohio Supreme Court Justices, not the
City of Mayfield Heights or any of its representa-
tives, made this decision. The Supreme Court
Justices hold the sole blame for this fiasco.
Compendium of Exhibits filed on behalf of Relators in
Case No. 01-1325 on July 23, 2001, Exhibit J.
The Ohio Supreme Court found that the City’s conduct
constituted a taking for which a claim in inverse condem-
nation was available. To have done otherwise would have
left cities in Ohio unaccountable and property owners
without a remedy under Ohio law. That, of course, is
* While the life of land may be infinite, the economic opportunities
for its use and development are not. Those opportunities are governed
by economic and market factors that are dynamic and fleeting.
29
exactly what the City would prefer — no accountability for
its conduct and no remedy for the Trustees under Ohio
law, thus leaving the Trustees alone to bear the burden of
the City’s unlawful conduct. Faced with the facts in this
case, the Ohio Supreme Court determined that the Trus-
tees were entitled to compensation and fashioned a rem-
edy under Ohio law that the court deemed appropriate.
Those facts do not warrant reconsideration of Agins in this
case.
The City also contends that this case “squarely pre-
sents 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 Amend-
ment to the United States Constitution .. . Pet. at 2-3;
t.e., that a deprivation of property arising from the failure
of a zoning ordinance to substantially advance legitimate
governmental interests is not a categorical taking, and
must be subjected to the analysis in Penn Central. Al-
though the Ohio Supreme Court expressed its view that
under the facts of this case a determination that a taking
had occurred did not require application of the Penn
Central analysis, that court, in response to both the City’s
request and this Court’s decision in Tuahoe-Sierra, did
apply the Penn Central factors and still concluded that the
City had taken the Property. App. 50-52.
Given the egregious conduct of the City and the fact
that the Ohio Supreme Court actually applied the Penn
Central factors and, upon application of those factors, still
found a taking, this clearly is not an appropriate case in
which to determine whether or not the City’s conduct
constitutes a categorical taking.
CONCLUSION
The City has petitioned this Court to interpret the
Takings Clause of the Fifth Amendment to the United
States Constitution as preventing the Ohio Supreme Court
from fashioning a remedy under the Ohio Constitution to
compensate property owners against whose property a city
30
has arbitrarily and capriciously enforced a zoning ordi-
nance that fails to substantially advance legitimate
governmental interests as to such property. In doing so,
the City has misstated the factual and procedural back-
ground of this dispute, disregarded the absence of finality
of the judgment below, failed to raise in the court below
the issues it asks this Court to consider, and misstated the
issues presented by this case by ignoring the Ohio Su-
preme Court’s application of the Penn Central analysis on
reconsideration. For the reasons set forth herein, the
City’s Petition for a Writ of Certiorari should be denied.
Respectfully submitted,
SHELDON BERNS, Esq.
Counsel of Record
BENJAMIN J. OCKNER, ESQ.
JORDAN BERNS, Esq.
BERNS, OCKNER &
GREENBERGER, LLC
24500 Chagrin Blvd., Suite 101
Beachwood, Ohio 44122
Telephone: 216-831-8838
Facsimile: 216-464-4489
STEVEN S. ROSENTHAL, Esq.
ALAN PALMER, Esq.
KAYE SCHOLER LLP
901 Fifteenth Street, N.W.
Washington, DC 20005-2327
Telephone: 202-682-3500
Facsimile: 202-682-3580
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.