Shemo v. Mayfield Hts. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Shemo v. Mayfield Hts., 88 Ohio St.3d 7, 2000-Ohio-258.]

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 classification 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 Cleveland 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 complaint 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 unconstitutional and
that Mayfield Heights had the right to rezone the property pursuant to Union Oil
Co. of California v. Worthington (1980), 62 Ohio St.2d 263, 16 O.O.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 economically 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 remanded 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.

2

During the pendency of the appeal, Gerijo, Inc. v. 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. Because 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.

The cause is now before this court upon the allowance of a discretionary
appeal.
__________________

Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A., 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 classification of the property is unconstitutional.
Initially, we must decide whether the court of appeals was correct in remanding the
case for reconsideration under the Goldberg 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

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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.

Prior to our decision in Goldberg Cos., Inc. v. Richmond 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 Gerijo, 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
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 determined 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." Id. at 213, 690 N.E.2d at 514. In
modifying 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 substantial
relation to the public health, safety, morals, or general welfare.' " Id., quoting

4

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 opportunity 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 economic viability,
there was still sufficient evidence presented 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 Gerijo test, and because the
economic-viability prong is inextricably intertwined with the health/safety/welfare
prong.

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
unconstitutional. A review of the trial court's decision reveals that the trial court
discussed each prong of the Gerijo test separately, and independently found the
ordinance unconstitutional under each prong of the test. Under these
circumstances, where the trial court's opinion clearly sets forth the evidence relied

5

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.1

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 elements 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 O.O.3d 261, 376 N.E.2d 578,
syllabus.

6

In considering the evidence, we begin with the premise 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 challenging 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 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
findings.

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 Mayfield Road. Although there are residential properties to the north and

7

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 appellants' property daily.
Therefore, although their streets are 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 city's argument that the U-2-A zoning is necessary to maintain the residential
character of the neighborhood.

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We also reject the city's 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 commercial 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
classification 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 driveway 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. However, 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 proposed to limit direct access from their property to the residential streets to

9

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 downplaying 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
witnesses 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
10

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 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.
11

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. 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 interstate 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.
12

We must next decide whether the trial court was correct in determining that
appellants' proposed commercial use of the property was reasonable. We find that
there was competent, credible evidence to support this conclusion. As previously
shown, the property is unsuitable for residential use and is more appropriate for
commercial use. The evidence presented shows that appellants' proposed
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 masonry wall and a forty-foot setback as
buffers. We find 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 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.
FOOTNOTE:

1.
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
13

are implicitly resolved in determining the constitutionality of the zoning
classification. Furthermore, we believe that the case can be appropriately decided
by this court, since there is a comprehensive 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 refusing to
consider expert testimony concerning economic viability, since that prong is
irrelevant to the case at hand.
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