Jaylin Investments, Inc. v. Village of Moreland Hills

IN THE SUPREME COURT OF OHIO

 

JAYLIN INVESTMENTS, INC.,                    )          

                                                                        )          

                        Appellant,                                 )           Case No. 04-1145

                                                                        )          

v.                                                                                                                   )          

)          

VILLAGE OF MORELAND HILLS,              )           On Appeal from the Cuyahoga

                                                                        )           County Court of Appeals

            Appellee.                                  )           Eighth Appellate District

 

                                                                                                                                   

 

BRIEF OF APPELLANT JAYLIN INVESTMENTS, INC.

                                                                                                                                   

 

 

Sheldon Berns (0000140)                    

            (Counsel of Record)

Benjamin J. Ockner (0034404)

Berns, Ockner & Greenberger, LLC

3733 Park East Drive, Suite 200

Beachwood, Ohio  44122

(216) 831-8838

Fax: (216) 464-4489

sberns@bernsockner.com

bockner@bernsockner.com

 

COUNSEL FOR APPELLANT

Leonard A. Spremulli (0023915)

            (Counsel of Record)

29325 Chagrin Blvd., Suite 305

Pepper Pike, Ohio  44122

(216) 831-4935

 

Santo T. Incorvaia (0039813)

Crown Centre, Suite 600

5005 Rockside Road

Independence, Ohio 44131

(216) 328-1100

 

COUNSEL FOR APPELLEE

 

 

 

 


TABLE OF CONTENTS

 

Table of Authorities.................................................................................................................. iv

INTRODUCTION.................................................................................................................. 1

 

STATEMENT OF FACTS...................................................................................................... 4

 

            The Village’s Environmental Interests............................................................................ 6

 

            Jaylin’s Property........................................................................................................... 7

 

            Jaylin’s Proposed Use.................................................................................................. 8

 

                        Owl Ridge Will Be Served by Sewers Not Septic Systems................................ 9

 

                        Owl Ridge Will Comply with the Village’s Storm Water

                        Management Requirements............................................................................... 9

 

                        Owl Ridge Will Comply with the Village’s Hillside Protection

                        Ordinance...................................................................................................... 10

 

                        Owl Ridge Includes Other Environmentally Beneficial Features

                        Not Required By the Village........................................................................... 11

 

            Jaylin’s Proposed Use Is Proscribed By The P&Z Code............................................. 11

 

            Jaylin Seeks Village Approval..................................................................................... 12

 

            Jaylin Commences This Action.................................................................................... 12

 

                        Jaylin’s Case.................................................................................................. 16

 

                        The Village’s Case.......................................................................................... 19

 

            The Trial Court Rules in Jaylin’s Favor........................................................................ 25

 

            The Court of Appeals Reverses.................................................................................. 26

 

ARGUMENT  ...................................................................................................................... 30

 

            PROPOSITION OF LAW NO. 1: Where In A Declaratory Judgment

            Action A Property Owner Challenges The Constitutionality Of A Zoning

            Ordinance As Applied To the Owner’s Property To Prohibit A Specific

            Proposed Use Of That Property, The Trial Court Must Consider The Proposed

            Use As Well As The Application Of The Challenged Ordinance To The

            Affected Property....................................................................................................... 32

 

            I.          The Constitutionality Of A Zoning Ordinance Can Be Determined In

                        A Declaratory Judgmetn Action Under R.C. 2721.03...................................... 32

 

            II.         A Challenge To The Constitutionality Of A Zoning Ordinance May

                        Involve A Question As To The Constitutionality Of A Prohibition

                        Against A Specific Proposed Use................................................................... 33

 

                        A.        Such a challenge can be asserted in an administrative appeal................ 33

 

                        B.         The same challenge can be asserted in a declaratory judgment

                                    Action................................................................................................ 34

 

            III.       The Court of Appeals Committed Reversible Error In Revising

                        Jaylin’s Claim and the Trial Court’s Analysis of That Claim; Its

                        Decision Should Be Reversed, and The Trial Court’s Judgment

                        Reinstated...................................................................................................... 37

 

                        A.        When A Trial Court Concludes Beyond Fair Debate

                                    That A Zoning Ordinance Is Unconstitutional As Applied

                                    To Prohibit A Specific Proposed Use Of Property, The

                                    Trial Court May Properly Order That The Proposed Use

                                    Be Permitted Subject To All Other Lawful Ordinances........................ 38

 

                        B.         Union Oil Did Not Prevent The Trial Court From

                                    Declaring the P&Z Code Unconstitutional As Applied To

                                    Prohibit Jaylin’s Proposed Use Of The Property And

                                    Allowing That Proposed Use Subject To All Lawful

                                    Ordinances Of The  Village................................................................. 41

 

            PROPOSITION OF LAW NO. 2: On Appeal From A Bench Trial, A

            Court of Appeals May Not Substitute Its Judgment For That Of The

            Trial Court As To The Credibility of an Expert Witness Who Has

            Contradicted Herself, Acknowledged That She Lacks Competence To

            Make Certain Conclusions, and Otherwise Indicated a Lack of Credibility,

            Unless The Trial Court Clearly Lost Its Way And Created Such A Manifest

            Miscarriage Of Justice That Its Decision Must Be Reversed And A New

            Trial Ordered   .......................................................................................................... 42

 

CONCLUSION.................................................................................................................... 45

 

Appendix

 

Notice of Appeal, O.S.Ct., Case No. 04-1145......................................................................... 1

 

Journal Entry and Opinion, Cuyahoga County Court of Appeals (June 7, 2004)......................... 4

 

Judgment Entry, Cuyahoga County Court of Common Pleas (March 11, 2003)....................... 18

 

Planning & Zoning Code of the Village of Moreland Hills, §1129.02........................................ 27

 

Planning & Zoning Code of the Village of Moreland Hills, §1129.04........................................ 29

 

Building Code of the Village of Moreland Hills, §1329.07........................................................ 30

 

Building Code of the Village of Moreland Hills, Ch. 1341........................................................ 31

 

Ohio Const., Art. I, §19......................................................................................................... 37

 

U.S. Const., Amend. XIV...................................................................................................... 38

 

Ohio Rev. Code §2721.03..................................................................................................... 39

 


TABLE OF AUTHORITIES

 

Cases

 

Berger v. City of Mayfield Heights (6th Cir. 1998), 154 F.3d 621............................................... 30

 

C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St. 2d 279............................................. 42

 

Community Concerned Citizens, Inc. v. Union Township Board of Zoning Appeals (1993), 66 Ohio St.3d 452      36, 38, 46

 

Driscoll v. Austintown Associates (1975), 42 Ohio St.2d 263................... 1, 32, 35, 38-40, 42, 46

 

Euclid v. Ambler Realty Co. (1926), 272 U.S. 365..................................................................... 31

 

Goldberg Companies, Inc. v. Council of the City of Richmond Heights (1998), 81 Ohio St. 3d 207 14, 30, 31

 

Henry Meyer Associates, Inc. v. Village of Moreland Hills , 85 Ohio St. 3d 1481...................... 14

 

Karches v. City of Cincinnati (1988), 38 Ohio St.3d 12..................... 1, 31, 32, 35, 36, 38, 40, 46

 

McKay Machine Company v. Rodman (1967), 11 Ohio St. 2d 77........................................ 43, 44

 

Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St.2d 23......................................... 32-35, 38, 46

 

Seasons Coal v. Cleveland (1984), 10 Ohio St.3d 77........................................................... 43, 44

 

Shultz v. Village of Lisle (1972), 53 Ill. 2d 39............................................................................. 34

 

Shemo v. City of Mayfield Heights (2000), 88 Ohio St. 3d 7...................................................... 42

 

Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370.................................... 34

 

State v. Antill, 176 Ohio St. 61................................................................................................... 43

 

State v. DeHass (1967), 10 Ohio St. 2d 230............................................................................... 43

 

State v. Evans (1993), 67 Ohio St. 3d 405, cert. denied (1994), 510 U.S. 1166.................. 43, 44

 

State v. Leonard (2004), 104 Ohio St. 3d 54.............................................................................. 44

 

State v. Thompkins (1997), 78 Ohio St.3d 380........................................................................... 44

 

Union Oil Co. of California v. City of Worthington (1980), 62 Ohio St. 2d 263.................. 40-42

 

Visconsi-Royalton Ltd. v. North Royalton (Cuyahoga App. 2001),

146 Ohio App.3d 287............................................................................................................ 27, 36

 

Unreported Cases

 

Henry Meyer Associates, Inc. v. Village of Moreland Hills (Cuyahoga App. 1994), 1994 Ohio App. LEXIS 5499    13, 14

 

Henry Meyer Associates, Inc. v. Village of Moreland Hills (Cuyahoga App. 1998), 1998 Ohio App. LEXIS 3830    14

 

Henry Meyer Associates, Inc. v. Village of Moreland Hills, Ohio Supreme Court,

  Case No. 98-2053..................................................................................................................... 15

 

North Olmsted Land Holdings, Ltd. v. Planning Commission of the City of North Olmsted (Cuyahoga App. 2001), 2001 Ohio App. LEXIS 5038, motion overruled (2002), 95 Ohio St. 3d 1423..................... 36, 38

 

Shemo v. Mayfield Heights, Ohio Supreme Court, Case No. 98-2054........................................ 14

 

Statutes

 

Revised Code Ch. 2506.................................................................................................... 31, 33-36

 

Revised Code Ch. 2721..................................................................................................... 1, 31, 36

 

Revised Code §2721.03............................................................................................................... 32

 

Other Law

 

Building Code of the Village of Moreland Hills, Ohio, Ch. 1341....................................................... 6

 

Planning & Zoning Code of the Village of Moreland Hills, Ohio, §1129.02.................................... 11

 

Planning & Zoning Code of the Village of Moreland Hills, Ohio, §1129.04.................................... 11

 

Planning & Zoning Code of the Village of Moreland Hills, Ohio, §1329.07...................................... 6

 

Planning & Zoning Code of the Village of Moreland Hills, Ohio, Ch. 1341..................................... 10

 


INTRODUCTION

            In the Declaratory Judgment Act, R.C. Ch. 2721, the General Assembly created a vital, efficient remedy available to any person in this State whose rights are affected by a municipal ordinance by allowing them to petition the Courts for a determination of the validity of such ordinance and for a declaration of their rights under it.  This Court has long held that such an action is appropriate for resolving challenges to the constitutionality of a municipal zoning ordinance as applied to prohibit a specific proposed use of property.[1]  According to the Cuyahoga County Court of Appeals, however, the owner’s proposed use is irrelevant in such a challenge.  This illogical holding completely subverts the remedy crafted by General Assembly as interpreted by this Court, and must be reversed.

            Jaylin Investments, Inc. (“Jaylin”) proposes to build 29 new homes in the Village of Moreland Hills (“Village”) on one-half acre lots adjacent to smaller homes on narrow lots, many of which are one-half acre in size, platted in 1915.  Jaylin’s new homes will be served by a central sewer system that will tie into a nearby sewage treatment plant.  In contrast, the  lots to the north and west of Jaylin’s property are served by aging septic systems which discharge their effluent into roadside ditches and ultimately into the Chagrin River.  But Jaylin’s proposed use is prohibited by the Village’s zoning laws.  Consequently, Jaylin commenced a declaratory judgment action challenging the constitutionality of those laws as applied to Jaylin’s property to proscribe that use.

            The Village defended by claiming that its two acre minimum lot size and side yard setback requirements (inapplicable to the smaller lots abutting Jaylin’s property to the north and west) advance the Village’s environmental interests.  Jaylin, however, demonstrated that its proposed use meets or exceeds every zoning regulation passed by the Village to protect the environment, and that its proposed use furnished other environmental safeguards that are not required by the Village.  These additional safeguards include the expansion at Jaylin’s cost of public sewer facilities to allow lots near Jaylin’s property to be sewered.

            At trial, substantial evidence about Jaylin’s property, its proposed use, and its compliance with the Village’s zoning ordinances, excepting only its minimum lot size and front and side yard setback ordinances, was admitted without objection.  After hearing the witnesses and observing their demeanor as they testified; after viewing the Property, the surrounding neighborhood, and other areas of the Village; and after hearing evidence submitted by the Village purporting to establish the Village’s environmental interests in preventing Jaylin’s proposed use, the trial court held that Jaylin had proved beyond fair debate that applying the Village’s zoning code to proscribe Jaylin’s proposed use of its property did not substantially advance the Village’s legitimate governmental interests, including its environmental interests, and was arbitrary and capricious.[2]

            The Court of Appeals reversed.[3]  First, it declared that the issue presented by Jaylin and tried by the trial court without objection by the Village was incorrect, and that instead of deciding whether the Village’s zoning laws were unconstitutional as applied to the extent that they prohibited Jaylin’s proposed use, the trial court should have confined its focus to the application of the Village’s zoning laws to Jaylin’s property without considering Jaylin’s proposed use.  Then, relying upon testimony by Laura DeYoung, the Village’s expert witness, which the trial court had specifically found was not credible and was not supported by the evidence, the Court of Appeals held that Jaylin had failed to prove beyond fair debate that the Village’s zoning laws were unconstitutional as applied to Jaylin’s property.

            Without having observed her testify, and without having viewed Jaylin’s property and adjoining properties which formed the predicate for Ms. DeYoung’s testimony, the Court of Appeals improperly substituted its uninformed assessment of Ms. DeYoung’s credibility for that of the trial court.  From the record it concluded that the trial court had improperly based its rejection of the credibility of all of Ms. DeYoung’s testimony on a mathematical error she made pertaining to just one of her conclusions.  To the contrary, the trial court had numerous reasons to reject the credibility of all of Ms. DeYoung’s conclusions.

            To further compound matters, the Court of Appeals found that Jaylin allegedly had agreed with Ms. DeYoung’s testimony about the location of wetlands on Jaylin’s property as depicted on an exhibit.  Jaylin made no such concession.  To the contrary, Jaylin both moved the trial court to strike Ms. DeYoung’s testimony about wetlands after she was forced to admit that she was incompetent to offer any such testimony, and objected to the admission of the exhibit upon which Ms. DeYoung had based her testimony about wetlands.

            Finally, the Court of Appeals held that the Village’s stated intention a decade earlier to enact a series of ordinances intended to accomplish specific environmental goals established the Village’s legitimate environmental interests, even though the Village never enacted such legislation.

            By declaring the details of a proposed use of property irrelevant in a declaratory judgment action challenging the constitutionality of a zoning ordinance as applied to proscribe that proposed use, the Court of Appeals repudiated this Court’s clear decisions authorizing that precise remedy, and severely limited the efficacy of declaratory judgment actions to resolve constitutional challenges to zoning regulations.  The prompt relief afforded by such actions enables the parties to resolve their constitutional disputes more efficiently and economically, on the narrowest constitutional issue possible.  Such relief also reduces the potential losses to property owners whose proposed use of property has been unconstitutionally prevented, and reduces the potential exposure of public entities for any taking liability that may be found to have arisen from such unconstitutional prohibition.

            This case tests the enduring mettle of the Judiciary as the lone sentinel against arbitrary and capricious legislative action that would destroy the rights to use and enjoy property guarantied by Article I, Sec. 19 of the Ohio Constitution and the Fourteenth Amendment of the United States Constitution.  It also challenges the Courts of this State to look beyond the empty statements of good intentions which a municipality claims guides its zoning decisions and to look, instead, to the facts relating to those decisions, including the municipality’s action or inaction in carrying out its alleged intentions.  The Court of Appeals’ decision must be reversed.

STATEMENT OF FACTS

            Moreland Hills is a community of affluent households located among Cleveland’s eastern suburbs.  The Village is divided into three zoning districts: Dwelling House (U1) (applicable to most of the Village), Retail Business (U2), and Apartment House (U3).[4]  Except for a few undeveloped parcels of land, the Village is almost entirely developed, predominantly with estate type homes on large lots.  Just north of the center of the Village, however, an enclave of small, older homes and cottages are crowded along Wiltshire Road, Ellendale Road, and Berkeley Avenue[5] on narrow lots many of which are approximately one-half acre in size.  Most of the land surrounding this enclave has been developed for large homes on lots of two or more acres.

[Excerpt from Village’s Zone Map (PX 5) showing area in question].

The Village’s Environmental Interests

            In 1973, the Village adopted a General Land Use Plan.  While that plan recites several objectives as to the preservation of natural features of the Village, the Village enacted only one ordinance pursuant to that plan - the establishment of a maximum 12% coverage for homes in the Village, with which Jaylin’s proposed use will comply.

            In 1991, the Village authorized Behnke & Associates (“Behnke”), an environmental consulting firm, to prepare a “Growth Management Strategies Plan” (“Growth Plan”).  The Growth Plan, never itself adopted by the Village, recommended that the Village enact several specific ordinances to protect natural resources in the Village.  The Village followed two of those recommendations (with respect to hillside protection and erosion control), but declined to follow any of the others.

            In 1992, the Village Council passed Resolution 1992-40 (Defendant’s Exhibit (“DX”) G, Supp. at 270) declaring the Chagrin River Valley a “scenic, natural and cultural resource district,” and announcing Council’s intention to protect the Chagrin River Valley

by administrative and legislative action such as hillside protection, waterway corridor and wetland protection, terrain alteration control, storm water runoff control, erosion and sediment control and scenic corridor protection and nonregulatory strategies such as the use of local land conservancy.

 

At the same meeting, the Village Council passed ordinances enacting section 1329.07 of the Village’s Building Code (the “Erosion Control Ordinance,” App. at 30) “to provide for erosion and sedimentation control,” and Chapter 1341 of the Village’s Building Code (the “Hillside Protection Ordinance,” App. at 31) “to provide for the creation of protected hillside zones and to provide regulations therefore,”[6] both of which were recommended by Behnke.  The Village never passed any other legislation recommended by Behnke or mentioned in Resolution 1992-40.[7]

Jaylin’s Property

            Jaylin owns an irregularly shaped 18 acre parcel of undeveloped land (the “Property”) in the Village’s Dwelling House District.  To the west, the Property is abutted by one-half acre lots on Ellendale.  To the north are deep, narrow lots on Berkeley.  The Property is isolated from neighboring residential developments to the south and east by a deep, wide, densely-wooded valley.  (Tr. at 189, Supp. at 51).

 

[Excerpt from Hillside Zone Map (PX2) showing Property and surrounding areas, Supp. at 271.]

            The Property can be accessed only by way of Ellendale and Berkeley.  (Tr. at 551, Supp. at 220).  The homes on Ellendale and Berkeley are served by off-site septic systems that drain into road side ditches.  (Tr. at 221, 275-276, Supp. at 68, 74-75).

Jaylin’s Proposed Use

            In 2002, Jaylin proposed to use the Property for the development of a community of new homes to be known as Owl Ridge.  Owl Ridge would be built generally in accordance with a site plan (“Site Plan,” PX 8) and architectural elevations (“Architectural Elevations,” PX 10) as a “self-contained” community with its own identity.  It would consist of 29 new homes intended to appeal to older residents desiring to remain in the Village without the burden of maintaining large lots.  (Tr. at 103-104, Supp. at 13-14).

 

[Excerpt from Conceptual Development Site Plan for Owl Ridge (PX 4), Supp. at 272.]

 

            In order to offset the adverse impact of the older, smaller homes on Ellendale and Berkeley served by off-site septic systems draining into roadside ditches, it was necessary that Owl Ridge be designed to include a sufficient “critical mass” of new homes.  (Trial Deposition of Roger Ritley (“Ritley Dep.”) at 9-13 (Supp. at 245-249)).

            Like the lots on Ellendale along the western boundary of the Property, lots in Owl Ridge are designed to be approximately one-half acre in size (Tr. at 188-189, Supp. at 50-51), so Jaylin’s proposed use would be harmonious with adjacent existing uses.[8]

            Owl Ridge Will Be Served by Sewers Not Septic Systems.

            The homes on Ellendale, Berkeley and Wiltshire, are served by septic systems.  Some of those septic systems have failed (Tr. at 498, Supp. at 210) and others are in disrepair such that they discharge their effluent across Jaylin’s property and ultimately into the Chagrin River.  (Tr. at 221, 427, Supp. at 68, 162).  The Quail Hollow Subdivision located across the valley to the south and east of the Property is served by a central sewer system and the Quail Hollow Wastewater Treatment Plant.  Owl Ridge will be served by a central sewer system that will also tie into that treatment plant.  Jaylin will pay for the expansion of the plant and for the installation of a forcemain of a size sufficient to carry sewage not only from the homes in Owl Ridge, but from the existing homes on Ellendale, Berkeley and Wiltshire too, if the Village desires.[9]

Owl Ridge Will Comply with the Village’s Storm Water Management Requirements.

 

            The Village has adopted storm water management regulations that require property in the Village to be developed in such a way that storm water discharged from the site after development will not exceed the rate of storm water discharge prior to development.[10]  Owl Ridge will be developed with a network of ponds, including a distinctive and aesthetically pleasing “water feature” entranceway (PX 11), designed to meet or exceed the Village’s storm water management requirements.  (Tr. at 198-205, Supp. at 57-64)

            Owl Ridge Will Comply with the Village’s Hillside Protection Ordinance.

            The Village has adopted a “Hillside Protection Ordinance” aimed at protecting certain hillsides and slopes in the Village by establishing a protected area (“Protected Hillside Zone”) within which any construction requires prior approval from the Village.[11]  Jaylin’s development of Owl Ridge will actually exceed the requirements of the Hillside Protection Ordinance.  None of the homes in Owl Ridge will be built within the Protected Hillside Zone.  (Tr. at 115, Supp. at 20).  With respect to nine sublots that contain or are adjacent to slopes, Jaylin will provide the Village Engineer with a report from a geotechnical engineer licensed in the State of Ohio who, after conducting a study of the slopes adjacent to and within those sublots, and such soils tests as he or she deems necessary, will delineate: a) the minimum distance from the top of any slope to the foundation of any home to be constructed safely adjacent to that slope, and b) the type of foundation system to be used in the construction of said home, driveway, roadway, or retaining wall.  (Tr. at 117-118, 564-566, Supp. at 21-22, 229-231).  The Village’s Engineer agreed that this measure “goes beyond anything that is now in” the Hillside Protection Ordinance.  (Tr. at 566, Supp. at 231).

Owl Ridge Includes Other Environmentally Beneficial Features Not Required By the Village.

 

            The Village has no ordinances restricting impervious surfaces or limiting the removal of trees and vegetation on residential property.  (Tr. at 389, 436, 470, Supp. at 124, 171, 205).  Nevertheless, Owl Ridge is designed to maximize green space and limit the amount of impervious surfaces.  Lots in Owl Ridge, for example, will be served by short common drives (Tr. at 102, Supp. at 12; PX 4), as opposed to the long circular drives so prevalent on the estate style lots found elsewhere in the Village.  Jaylin will also file deed restrictions prohibiting the construction of tennis courts in Owl Ridge.  (Tr. at 583, Supp. at 215).

            Jaylin’s development plans for Owl Ridge also call for landscaping and the planting and replacement of trees on the Property, and the creation of a homeowners association that would be responsible for maintenance of landscaping, driveways and roadways (if not dedicated to the Village).  (Tr. at 122-123, Supp. at 23-24).

Jaylin’s Proposed Use Is Proscribed By The P&Z Code

            Lots in the Village’s Dwelling House District must be a minimum of 87,000 square feet (approximately two acres) (P&Z Code §1129.02, App. at 27), and have minimum side yards of 35 feet (P&Z Code §1129.04, App. at 29), unless those lots are located on Berkeley, Ellendale and Wiltshire (including those abutting the northern and western boundaries of Jaylin’s Property), in which case there is no minimum lot size.  Although the Property is completely isolated from the nearest development of two acre lots by the valley to its south and east, and abuts lots on Berkeley and Ellendale that are not subject to any minimum lot size requirement, these area requirements preclude Jaylin from developing Owl Ridge.

Jaylin Seeks Village Approval

            In April 2002, Jaylin presented its proposal for the development of Owl Ridge to the Village Planning Commission.  (Tr. at 107-108, Supp. at 17-18).  Jaylin provided the Commission with a development plan (PX 4), deed restrictions, and color renderings showing the architectural style of homes proposed for the Property.

            The Planning Commission took no action on Jaylin’s proposal, however, after its counsel advised that variances allowing Jaylin’s proposed use were not possible.[12]

Jaylin Commences This Action

            On July 1, 2002, Jaylin filed a Complaint seeking a declaratory judgment that the prohibition of Owl Ridge by the Village’s P&Z Code fails to advance the health, safety, morals or general welfare of the Village, is arbitrary, capricious and unreasonable and is, therefore, unconstitutional as applied to the Property, and that Jaylin is entitled to develop its Property as proposed.

            Once the details of Jaylin’s proposed use were explained, it was impossible for the Village to argue, as municipalities generally do when confronted with similar challenges, that applying the P&Z Code to the Property to prevent Jaylin’s proposed use was necessary to ensure that the development of the Property would be harmonious with surrounding uses.  Nor could the Village argue that proscribing Jaylin’s proposed use would protect neighboring property values or spare neighboring properties from other feared negative impacts of Jaylin’s use.  The Village did not claim, and could not have shown, moreover, that preventing the development of Owl Ridge would serve any legitimate interest in aesthetics or traffic control.  The Village nevertheless was bound and determined to prevent the development of Owl Ridge.  If it were to succeed, it had to conjure up a purported legitimate governmental interest that it could claim would be served by prohibiting Jaylin’s proposed use.  Finding no other possible governmental interest to justify the prohibition of Owl Ridge, the Village struck upon the use of the environment to attempt to justify that which could not be justified.

            The Village’s reliance upon the environment as a means of defending its two acre zoning from constitutional challenge was unprecedented.  In March 1992, Henry Meyer Associates, Inc. (“Meyer”) filed a complaint for declaratory judgment asserting that the Village’s “low density” zoning was unconstitutional as applied “because of the topography of the property, its limited access, heavy traffic flow of the area, and the close proximity to a retail business, two major regional highways and commercial enterprises.” Henry Meyer Associates, Inc. v. Village of Moreland Hills (Cuyahoga App. 1994), 1994 Ohio App. LEXIS 5499, at *5-*6.   Meyer did not attack the Village’s two acre zoning as such as being unreasonable; rather, he claimed that because his property was uniquely situated (on account of the attributes described above), the Village’s low density zoning was unconstitutional as applied to his property.  The Village defended Meyer’s claims on the grounds that Meyer’s property (three parcels) were large enough to comply with the zoning requirements, and could be provided with water service, sanitary sewerage, and improved access.  1994 Ohio App. LEXIS 5499, at *3.  The Village also presented expert testimony to the effect that allowing Meyer’s proposed development (27 townhouses and apartments) would cause traffic and safety problems.  1994 Ohio App. LEXIS 5499, at *4.  The trial court entered summary judgment in the Village’s favor, but the Court of Appeals reversed holding that genuine issues of material fact existed with respect to whether the low density zoning substantially advanced the Village’s legitimate interest in the health, safety or welfare of the community.   1994 Ohio App. LEXIS 5499, at *11.

            On remand, the trial court held that the Village’s single-family zoning classification was unconstitutional as applied to Meyer’s property, and the Village appealed.  On August 20, 1998, in Henry Meyer Associates, Inc. v. Village of Moreland Hills (Cuyahoga App. 1998), 1998 Ohio App. LEXIS 3830, the Court of Appeals vacated the trial court’s decision and remanded the matter for further proceedings in light of this Court’s decision in Goldberg Companies, Inc. v. Council of the City of Richmond Heights (1998), 81 Ohio St. 3d 207.  On May 12, 1999, this Court agreed to hear the case.  Henry Meyer Associates, Inc. v. Village of Moreland Hills , 85 Ohio St. 3d 1481.

            On July 21, 1999, the Village filed its Merits Brief.  In that Brief, the Village made no attempt to defend the application of its low density zoning on any environmental grounds.  The case was consolidated with Shemo v. City of Mayfield Heights, Case No. 98-2054, for oral argument.  After oral argument, Henry Meyer was settled.

            It was not until it was faced with defending this case that the Village apparently concluded that no matter how inharmonious the application of its two acre zoning might be to a particular property, the Village could rely on a claim that its two acre zoning protected the environment in order to defeat a constitutional challenge to the application of two acre zoning to any property in the Village no mater what facts would dictate a contrary result.  It is clear from the facts presented in this case that the Village’s defense was nothing more than a pretext, and that based upon the evidence in this case, including Jaylin’s specific plans for the development of Owl Ridge, the Village’s two acre zoning, standing alone, did not and could not substantially advance the Village’s claimed interest in protecting the environment.

            Despite Jaylin’s compliance with every ordinance that the Village had passed for the purpose of protecting the environment; the numerous environmentally beneficial features of Owl Ridge not required by the Village; Jaylin’s agreement to build Owl Ridge with sewers and to pay for the expansion of the Village’s nearby waste water treatment plant necessary to handle the sewage generated by Owl Ridge, and to construct a forcemain of sufficient size to carry sewage from sanitary sewers to be constructed in Owl Ridge and the homes on Ellendale, Berkeley and Wiltshire, if the Village decided that they should also be sewered; and despite the Village’s failure to enact ordinances specifically intended to preserve trees, limit impervious surfaces, or protect riparian corridors (despite past recommendations and statements of its intent to do so), the Village claimed in its Answer that prohibiting Jaylin from developing Owl Ridge advances the Village’s interest in protecting natural resources in the Chagrin River Corridor, including slopes, trees and riparian corridors on the Property.

            The case was tried to the Cuyahoga County Court of Common Pleas bench on December 23, 26, 27, and 30, 2002.  The trial court heard testimony from four witnesses that testified on behalf of Jaylin, and two witnesses on behalf of the Village.  The trial court was presented with numerous exhibits describing the Property, the Village, Jaylin’s proposed use, and various resolutions and ordinances passed by the Village.  On December 26, 2002, the trial court also viewed the Property, the areas surrounding the Property and other parts of the Village.

            Jaylin’s Case

            Jaylin presented testimony from four witnesses: Robert Hill, an expert planner; Roger Ritley, an expert appraiser and planner; Terrence Gerson, an engineer (formerly the Village’s engineer); and Charles Chudakoff, Jaylin’s president.

            Robert Hill was the planner for the cities of Strongsville, Independence and Middleburg Heights, and the planning consultant to the cities of Berea and Lyndhurst at the time of trial.  (Tr. at 34, Supp. at 2).  Based on his 40 years’ experience as a city planner (Id.), he testified without contradiction that based upon the Property’s configuration, its access, its isolation from the Quail Hollow Subdivision (the nearest subdivision consisting of two acre lots), and its proximity to older modest homes on narrow lots on Ellendale and Berkeley, a development consistent with the Village’s two acre minimum zoning on the Property would be inharmonious with the existing adjoining residential uses.  (Tr. at 58-61, Supp. at 5-8).  Mr. Hill also testified that applying the P&Z Code to prevent the development of Owl Ridge on the Property fails to substantially advance the Village’s health, safety, morals or welfare concerns.  (Tr. at 56, Supp. at 4).

            Jaylin also presented the testimony of Roger Ritley, an expert real estate appraiser for more than 35 years, who has also served as a planning consultant to the cities of Mentor, Lyndhurst and Beachwood.  (Ritley Dep. at 5, Supp. at 241).  Mr. Ritley accurately described the lots on Ellendale and Berkeley as part of “an old subdivision predating modern planning practices characterized by small lots, some of which are quite irregular in shape, … [on] bowling alley lots where the frontage is quite restricted and they go back for some considerable distance.”  (Ritley Dep. at 6-7, Supp. at 242-243).  Mr. Ritley testified that the closeness of lots on Ellendale and Berkeley to the Property, and the sporadic development of those lots over the course of 70 years (with not all of those platted lots having been sold) (Ritley Dep. at 7-8, Supp. at 243-244), among other things, made the development of six to nine two-acre lots on the Property, as insisted upon by the Village, impossible.  (Ritley Dep. at 13-14, Supp. at 249-250).  None of Mr. Ritley’s conclusions were refuted.

            Jaylin also presented testimony from its president, Charles Chudakoff.  Mr. Chudakoff testified about specific facets of Owl Ridge and the measures Jaylin would take, not required by the Village, to protect the environment.  He also testified without contradiction that infrastructure and construction costs, in addition to the matters to which Messrs. Hill and Ritley had previously testified, made it impossible to develop the Property with only six residential sublots.  (Tr. at 100, 147, Supp. at 10, 25).[13]

            Finally, Jaylin presented testimony from Terrence Gerson, a professional engineer and land surveyor, and formerly the Village’s Engineer.  (Tr. at 153, 193, Supp. at 29, 52).  Mr. Gerson testified that Owl Ridge would comply with the Hillside Protection Ordinance as set forth in PX 2 and 13[14], and that construction of homes in Owl Ridge could take place entirely outside of the Protected Hillside Zone.  (Tr. at 237, Supp. at 72).  He also testified that Owl Ridge would comply with the Village’s Sediment and Erosion Control Ordinance by including retention ponds, as shown on Jaylin’s plans, that will limit the rate at which water will be discharged from the site after development to the rate of discharge prior to development or slower (Tr. at 194-206, Supp. at 53-65).  Mr. Gerson was then asked about the consequences of a development without water retention:

Q.   So what would happen if you did not have water retention with regard to the Chagrin River in storm conditions?

 

A.    By developing this individual site?

 

Q.   By developing any site without retention.

 

A.    Well, if you’re taking – the impact of this single site on the Chagrin River is probably very small.  But if you developed all the property in the Chagrin River basin without taking some provision, then there would be a large effect.

 

(Tr. at 196-197, Supp. at 55-56, emphasis added).[15]  This testimony was neither challenged nor refuted.

            Mr. Gerson confirmed that the Quail Hollow sewage treatment plant can be expanded to accept sewage from Owl Ridge as well as the houses on Ellendale, Berkeley and Wiltshire, if the Village so desired.  (Tr. at 219-220, Supp. at 66-67).  He explained that the septic systems servicing the homes on Ellendale and Berkeley were for the most part off-site systems, and that effluent treated by those systems was discharged off the property and ultimately into the Chagrin River.  (Tr. at 221, Supp. at 68).  He also testified that, from his past service as the Village Engineer, he was aware that some of the off-site septic systems that served those homes had discharged sewage into nearby ditches.  (Tr. at 275-276, Supp. at 74-75).

            At the conclusion of Mr. Gerson’s testimony, and after moving the admission of Plaintiff’s exhibits, Jaylin rested.  The Village moved for a judgment in its favor under Civil Rule 41.  The trial court denied the Village’s motion, and the Village presented its case.

            The Village’s Case

            The Village relied on the testimony of Laura DeYoung, the only witness to offer expert testimony on the Village’s behalf, in its efforts to explain why the prohibition of Owl Ridge would protect the environment.  She failed miserably in that charge, as she was bound to do.[16]

            Ms. DeYoung is an environmental planner who has counseled other communities in northern Ohio on specific measures they can take to preserve natural resources and protect the environment.  The Village has never adopted a number of these measures despite its having been urged to do so in the past by other environmental consultants that it paid specifically to make such recommendations after studying conditions in the Village.

            Ms. DeYoung testified on direct examination that requiring the Property to be developed only in accordance with the Village’s two acre minimum lot size would protect the environment because Jaylin’s proposed development, she claimed, would disturb the Protected Hillside Zone more than a two acre development (Tr. at 391-392, Supp. at 126-127); would disturb wetlands on the Property more than a two acre development (Tr. at 391, Supp. at 126); would entail the removal of more trees than would a two acre development (Tr. at 391, Supp. at 126); would disturb “riparian corridors” on the Property more than a two acre development (Tr. at 391-392, Supp. at 126-127); and would entail more impervious surfaces than would a two acre development (Tr. at 392, Supp. at 127).[17]

            Not a single one of these contentions held up under cross-examination.

                        -           Ms. DeYoung’s Testimony About The Protected Hillside Zone

            Referring to DX N, Ms. DeYoung testified that six homes and six driveways depicted on Jaylin’s Conceptual Development Plan (PX 4) were to be constructed within the Protected Hillside Zone.  On cross-examination, however, Ms. DeYoung acknowledged that her drawing showing the alleged encroachment by the homes planned for Owl Ridge into the Protected Hillside Zone were inaccurate, and she was unable to defend her conclusions.[18]

                        -           Ms. DeYoung’s Testimony About Wetlands

            Ms. DeYoung stated that there were wetlands on the Property and that they would be impacted more by Jaylin’s proposed development than a two acre development.  (Tr. at 391, Supp. at 126).  Ms. DeYoung admitted however that she is not a certified wetland biologist (Tr. at 423, Supp. at 158), and stipulated that she is not competent to determine the extent or existence of wetlands on the Property.  (Tr. at 424-425, Supp. at 159-160).  Instead, she was relating the alleged observations and conclusions of other persons who did not testify and whose credibility and expertise, therefore, could not be tested or assessed.  (Tr. at 424-427, Supp. at 159-162).

            While the Property may contain a very small area of wetlands, moreover, it was Ms. DeYoung’s testimony that the largest wetland on the Property was created by effluent discharged from individual septic systems nearby and is of a very low quality.  (Tr. at 427, Supp. at 162).  She also agreed that it would be possible in any event for Jaylin to “obtain a permit to fill those wetlands.”  (Tr. at 428-429, Supp. at 163-164).

                        -           Ms. DeYoung’s Testimony About Trees

            Ms. DeYoung opined that the development of Owl Ridge would cause the removal of more trees than a development of the Property with two acre lots.  (Tr. at 436, Supp. at 171).  She could not defend this claim, however, because the Village has no ordinance that limits the extent to which property owners in the Village can clear trees from their property.  (Tr. at 436, Supp. at 171).  As such, there was no limit to the number of trees that owners of homes built on two acre lots could remove to accommodate landscaping, including lawns and gardens, pools, greenhouses, tennis courts or barns.  (Tr. at 437-439, Supp. at 172-174).[19]

                        -           Ms. DeYoung’s Testimony About The Riparian Corridor

            Ms. DeYoung testified that Jaylin’s proposed use would more adversely impact the “riparian corridors” on the Property than would a two acre development.  This conclusion could not be sustained, however, for the simple reason that, once again, the Village has no ordinance relating to the protection of riparian corridors.  (Tr. at 429, Supp. at 164).[20]  As such, Ms. DeYoung agreed that the Village has no law that would prevent the construction of a home or other structure in such riparian corridors.  (Tr. at 430, 436, Supp. at 165, 171).

                        -           Ms. DeYoung’s Testimony About Impervious Surfaces

            Ms. DeYoung claimed that Owl Ridge would entail more impervious surfaces than would a development of two acre lots, even if every two acre lot on the Property included a tennis court.  (Tr. at 392-393, Supp. at 127-128).  Her bold claim fell flat on its face for three reasons.  First, Ms. DeYoung did not know the exact square footage of a tennis court.  (Tr. at 393, Supp. at 128).  Second, the Village has no ordinance limiting the extent to which impervious surfaces can be developed on residential property in the Village.  (Tr. at 470, Supp. at 205).  Third, in developing Owl Ridge, Jaylin would take numerous measures to limit the amount of impervious surfaces and maximize green space within the community: deed restrictions prohibiting tennis courts would be filed; lots would be served by short, shared drives (as opposed to long, circular drives often found at mansion style homes); and the homes proposed for Owl Ridge would have much smaller footprints than what typify mansion style homes elsewhere in the Village.  (Tr. at 464-470, Supp. at 199-202).[21]

                        -           Ms. DeYoung’s Testimony About Drainage and Sewers

            Ms. DeYoung offered no testimony to rebut Mr. Gerson’s testimony that Owl Ridge would meet or exceed the Village’s storm water management regulations.  As for sewers, she agreed that failing septic systems and the infiltration of septic system effluent into nearby rivers was problematic (Tr. at 454, Supp. at 189), and that use of a central sewer system tied into a sewage treatment plant (as Jaylin proposed) “would be preferable than having a failing septic systems [sic].”  (Tr. at 454, Supp. at 189).  Ms. DeYoung also agreed that if an existing sewage treatment plant could be expanded without degradation to downstream areas, using sewers rather than septic fields “could make sense.”  (Tr. at 455, Supp. at 190).

            Having acknowledged that in the Village there are no limits to which trees could be removed from residential property, no limits to which houses or other structures can be built in “riparian zones” that are not in the Protected Hillside Zone, and no limits on the extent of impervious surfaces on residential property; having failed to refute any testimony by any of Jaylin’s expert witnesses; and having been forced to admit that her testimony about the impact on the Protected Hillside Zone of Jaylin’s proposed development was wrong, Ms. DeYoung concluded that “low density zoning” is “probably the predominant tool being used by communities as a tool to protect environmental resources, open space.”  (Tr. at 472, Supp. at 207).  By the time Ms. DeYoung’s testimony was concluded, it was clear that she was not competent to express the “expert” opinions to which she testified, that those opinions were not sustained by the evidence, and most important, that Jaylin’s proposed plan protected the environment in various ways that the Village’s two acre zoning requirement plainly did not address.

            The Village also presented testimony from Jeffrey Filarski, the Village’s Engineer.  Mr. Filarski testified that some of the homes depicted on the Site Plan failed to meet the Village’s front and side yard setback requirements (Tr. at 517, Supp. at 211), but then acknowledged that most of the homes on Ellendale and Berkeley did not comply with the front yard regulations, and that none were required to comply with the side yard requirements.  (Tr. at 529-530, Supp. at 213-214).  He also testified that some of the homes and driveways depicted on the Site Plan encroached into the Protected Hillside Zone (Tr. at 551, Supp. at 220), but then acknowledged that those houses and driveways could be altered and/or relocated so as not to be within the protected area.  (Tr. at 553-560, Supp. at 221-228).  He testified that roadways depicted on Jaylin’s Site Plan did not conform to the Village’s zoning regulations (Tr. at 519, Supp. at 212), having previously acknowledged, however, that private roads need not conform to the P&Z Code.  (Tr. at 490-491, Supp. at 208-209).[22]

            Mr. Filarski acknowledged that some of the septic systems on Ellendale and Berkeley had recently failed.  (Tr. at 498, Supp. at 210).  He agreed that a central wastewater collection and treatment system (as proposed by Jaylin) is preferable to individual septic systems.  (Tr. at 545, Supp. at 219).  And he agreed with Mr. Gerson that the Quail Hollow Treatment Plant could be physically expanded to accept and treat sewage from the homes in Owl Ridge and, if the Village desired, the homes on Ellendale, Berkeley and Wiltshire.  (Tr. at 538-539; 543-544, Supp. at 215-216, 217-218).

            After Mr. Filarski testified, the Village rested and moved the Court to admit its exhibits into evidence.

            Following a very brief rebuttal, the hearing was closed, and the parties submitted closing briefs and arguments.

The Trial Court Rules in Jaylin’s Favor

            Having viewed the Property and other areas of the Village, observed the witnesses, listened to the testimony and inspected the exhibits, on February 12, 2003 the trial court announced that she would be entering judgment in Jaylin’s favor and directed the parties to submit proposed entries effectuating that judgment.  On March 13, 2003, the trial court issued its Judgment (App. at 18).  After describing Jaylin’s Property and proposed use, reviewing the evidence presented by the parties, assessing the credibility of the witnesses (including a finding that the testimony of the Village’s witnesses was not credible), and discussing the applicable law, the trial court held:

Jaylin has demonstrated beyond fair debate that, as applied to the Property, the prohibition in the Village’s zoning regulations of the Proposed Use is arbitrary and unreasonable and without substantial relation to the public health, safety, morals, or general welfare of the community….

 

(Judgment at 7-8; App. at 24-25); declared that

 

(a) the prohibition of the Proposed Use by the Village’s Planning and Zoning Code does not advance the health, safety, morals or general welfare of the Village, is arbitrary, capricious and unreasonable and is, therefore, unconstitutional as applied to the Property, and (b) Jaylin is entitled to develop its Property in accordance with the Proposed Use as described above;

 

(Id. at 8; App. at 25); and ordered the Village

to issue all approvals and permits for the construction on the Property of 29 single-family homes on 29 lots generally in accordance with the Proposed Use as described above and further subject to all lawful ordinances of the Village that are applicable to the Proposed Use, except those setting forth minimum lot size, frontyards and sideyards … [and]

 

              to otherwise cooperate with Jaylin in the development, construction and/or enlargement of any sanitary sewer/wastewater treatment facilities (at Jaylin’s cost) to serve the Proposed Use, including without limitation making applications and other submissions in order to obtain permits from appropriate governmental agencies and officers.

 

(Judgment at 8; App. at 25).

            On April 8, 2003, the Village appealed to the Cuyahoga County Court of Appeals.

The Court of Appeals Reverses

            On May 27, 2004, the Court of Appeals issued its Entry (App. at 4).  On the record it was given, the law compelled the Court of Appeals to affirm the trial court’s Judgment.  Instead, the Court of Appeals reversed, holding Jaylin had failed to demonstrate that the Village’s two acre minimum lot size requirement “is arbitrary, unreasonable and bears no substantial relation to the public health, safety and welfare of the community, especially in light of testimony presented by the Village that the two-acre zoning requirement advances a legitimate environmental interest.”  (Entry at 12-13; App. at 15-16).

            To reach this conclusion, the Court of Appeals revised the record and either ignored or rewrote the law.

            The issue presented was not simply whether the Village’s two acre minimum lot size requirement was unconstitutional, nor did Jaylin claim that the Village’s two acre zoning was unconstitutional as applied to Jaylin’s Property.  Jaylin’s claim was more focused and narrow: it claimed that the P&Z Code was unconstitutional as applied to the Property to the extent that it precluded Jaylin’s proposed use.

            The Court of Appeals revised that specific claim for relief.  Citing one of its prior decisions as authority, the Court of Appeals explained that the trial court should not have considered Jaylin’s proposed use, and should have confined its focus to the application of the zoning ordinance to the Property.  (Entry at 5; App. at 8, citing Visconsi-Royalton Ltd. v. North Royalton (Cuyahoga App. 2001), 146 Ohio App.3d 287 (T. McMonagle, J.)).[23]

            After revising Jaylin’s claim to one for relief that Jaylin did not seek based on a theory that Jaylin did not advance, the Court of Appeals turned on the trial court’s review of the evidence.  While the trial court had the advantages, not shared by the Court of Appeals, of viewing the property, surrounding neighborhoods, and areas of the Village developed with “estate type” homes on two-acre lots, and observing the witnesses as they testified at trial, the Court of Appeals disregarded the trial court’s finding that Ms. DeYoung’s testimony was not credible and was unsupported by the evidence.  (Judgment at 6, App. at 23).  Finding that the trial court’s assessment of Ms. DeYoung’s credibility was based only on her “miscalculations” (to which the Village had stipulated) in applying the Hillside Protection Ordinance to Jaylin’s proposed use (Entry at 9; App. at 12), the Court of Appeals held that in the absence of testimony contradicting Ms. DeYoung’s other conclusions, the trial court “need not” have discounted those conclusions based on Ms. DeYoung’s miscalculation in plotting the location of the Protected Hillside Zone on the Property.  (Entry at 9; App. at 12).  The Court of Appeals ignored the fact that all of Ms. DeYoung’s conclusions were contradicted and refuted - by Ms. DeYoung herself – and that there was ample reason for the trial court to conclude, as it did, that her testimony was not credible:

          Ms. DeYoung was unable to measure distances on plans she had prepared, and was reluctant to admit a critical error in her calculations (Tr. at 405-413, Supp. at 140-148);

          The Village stipulated that “the calculations done by Ms. DeYoung were done incorrectly” (Tr. at 413-414, Supp. at 148-149);

          Ms. DeYoung is not an engineer and has no geotechnical training (Tr. at 422, Supp. at 157);

          She is not a certified wetlands expert, and cannot “determine the extent or existence of wetlands” (Tr. at 424, Supp. at 159);

          Despite her conclusion that two-acre zoning protects riparian corridors, she acknowledged that in the Village “there is no riparian protection,” (Tr. at 436, Supp. at 171), and that the Village has no law “that would prevent somebody who owns…the Jaylin property, from building a home or any other kind of structure in the …riparian corridor” (Tr. at 430, Supp. at 165);

          Despite her conclusion that two-acre zoning preserves trees, Ms. DeYoung acknowledged that there is no law in the Village “that prevents the owner of property … from taking down whatever trees the owner determines is appropriate,” (Tr. at 436-437, Supp. at 171-172); that no law in the Village prevents property owners from removing trees for front yards, backyards and playing fields, gardens, tennis courts, swimming pools, greenhouses or barns (Tr. at 437-439, Supp. at 172-174); and that trees and vegetation must be removed from any areas where septic systems are to be located (a fact she omitted from her calculations) (Tr. at 456-457, Supp. at 191-192);

          Despite her conclusion that two-acre zoning limits the quantity of impervious surfaces on lots, Ms. DeYoung acknowledged that the Village has no ordinance imposing such limitations, and that “the length and width of driveways for large homes” in the Village “would depend on the individual land owner and the home” (Tr. at 470, Supp. at 205); and

          Ms. DeYoung, moreover, completely ignored the fact that Jaylin’s plans included numerous features for environmental protection, not required by the Village’s ordinances, that would ensure the impact of Jaylin’s proposed use would be less than the development of two-acre lots by individual builders and homeowners unrestrained by any ordinances or deed restrictions that afford the environmental protections built into Jaylin’s plans.

            None of that mattered to the Court of Appeals.  Instead, it erroneously found that Jaylin had conceded “that [Ms.] DeYoung’s reliance on an exhibit indicating the wetlands is accurate.”  (Entry at 9; App. at 12).  Jaylin made no such concession.  To the contrary, Ms. DeYoung was incompetent to testify as to wetlands (Tr. at 424, Supp. at 159); Jaylin objected to her testimony as to wetlands and moved that it be stricken (Tr. at 424-427, Supp. at 159-162); and Jaylin objected to the admission of the specific exhibits from which Ms. DeYoung testified about wetlands on the Property.  (Tr. at 576-577, Supp. at 232-233).

            Jaylin timely commenced this appeal.[24]  In its Memorandum Opposing Jurisdiction, the Village falsely represented testimony by Mr. Gerson and falsely claimed that Jaylin had stipulated to certain testimony by Ms. DeYoung.  After the Village refused to correct those falsehoods, Jaylin asked this Court to strike them from the Village’s Memorandum.  The Court denied this appeal without ruling on that motion.  Jaylin moved this Court for reconsideration on October 25, 2004.  This Court granted that motion on December 16, 2004.

ARGUMENT

            Zoning laws are unconstitutional if they are shown beyond fair debate to be “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”  Goldberg Companies, Inc. v. Council of the City of Richmond Heights (1998), 81 Ohio St. 3d 207, 213.  The constitutionality of zoning laws can be tested either on the face of those laws or as they are applied to specific property under specific circumstances.  In a “facial challenge,” the Court determines if a rational relationship exists between the terms of the ordinance and a legitimate governmental purpose.  See, e.g., Berger v. City of Mayfield Heights (6th Cir. 1998), 154 F.3d 621, 624-626.[25]  If there is such a relationship, the constitutional challenge fails.  In contrast, an as-applied constitutional challenge calls upon the court to determine whether the zoning law is “clearly arbitrary and unreasonable and without substantial relation to the public health, safety, morals, or general welfare of the community” as applied to a particular property under specific circumstances.  Goldberg Companies, Inc., 81 Ohio St. 3d at 214.[26]  Goldberg reinstated the test set forth in Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, for determining the constitutionality of zoning laws.  In language that epitomizes the typical as-applied challenge to a zoning ordinance, Euclid explained:

A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities….  [T]he question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, … is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality.

 

272 U.S. at 387-388 (emphasis added).

            Not all as-applied constitutional challenges are identical.  Some seek a declaration that a particular use classification is unconstitutional as applied to specific property.  Others are much more focused: instead of assailing the types of uses allowed by a particular zoning classification, one or more specific regulations pertaining to those uses are challenged.[27]

            The constitutionality of zoning regulations can be challenged in actions for declaratory judgment under R.C. Ch. 2721 and in administrative appeals under R.C. Ch. 2506.  Karches, Syllabus, Para. 1.  Regardless of the form it takes, though, “any constitutional assault on a zoning ordinance implicitly questions legislative judgment.”  Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St.2d 23, 30 (emphasis added).  Accordingly, this Court’s decisions resolving constitutional challenges to the application of zoning ordinances that arose in the context of both administrative appeals and in declaratory judgment actions compel this Court to reverse the Court of Appeals’ decision below, and to preserve the very important remedy sought by Jaylin.

PROPOSITION OF LAW NO. 1:

 

Where In A Declaratory Judgment Action A Property Owner Challenges The Constitutionality Of A Zoning Ordinance As Applied To the Owner’s Property To Prohibit A Specific Proposed Use Of That Property, The Trial Court Must Consider The Proposed Use As Well As The Application Of The Challenged Ordinance To The Affected Property.

 

I.          The Constitutionality Of A Zoning Ordinance Can Be Determined In A Declaratory Judgment Action Under R.C. 2721.03.

 

            R.C. 2721.03 (App. at 39) provides in pertinent part:

Subject to division (B) of section 2721.02 of the Revised Code, any person interested under a deed, will, written contract, or other writing constituting a contract or any person whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, township resolution, contract, or franchise may have determined any question of construction or validity arising under the instrument, constitutional provision, statute, rule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status, or other legal relations under it.

 

            In Driscoll v. Austintown Associates (1975), 42 Ohio St. 2d 263, this Court held explicitly that a “declaratory judgment is a proper … remedy for” challenges to the constitutionality of zoning ordinances.  42 Ohio St. 2d at 270.  See also Karches, Syllabus Para. 1.


II.        A Challenge To The Constitutionality Of A Zoning Ordinance May Involve A Question As To The Constitutionality Of A Prohibition Against A Specific Proposed Use.

 

            A property owner can challenge the constitutionality of a zoning ordinance as applied to proscribe a specific proposed use of that owner’s land.

            A.        Such a challenge can be asserted in an administrative appeal.

            In Mobil Oil Corp. v. City of Rocky River, Mobil Oil claimed that the application of the Rocky River zoning ordinances to prohibit it from building a gas station on property zoned for single-family residential use was unconstitutional.  Mobil Oil arose from an administrative appeal under R.C. Chapter 2506 filed after the city refused to rezone the property, its building inspector refused to issue a building permit and certificate of occupancy, and its board of zoning appeals refused to grant a variance.  If the trial court reversed, Mobil Oil would have its gas station.

            The trial court framed the specific issue presented by Mobil Oil’s appeal as follows:

Is the failure of the *** city of Rocky River to zone the subject property so that a gasoline service station may be constructed thereon so arbitrary or unreasonable as to be violative of constitutional guarantees?

 

38 Ohio St.2d at 25.  Although it was prepared to find the single-family residential zoning unconstitutional, the trial court refused to grant Mobil Oil the relief it sought:

*** The wisdom of whether the comprehensive zoning ordinance of Rocky River should permit the installation of a gasoline service station at the southeast corner at Spencer and Center Ridge Road is, at most, under the facts presented herein, a fairly debatable one and it cannot be seriously contended here that its action [that of the zoning ordinance] was so arbitrary, confiscatory and unreasonable so as to be in violation of constitutional rights.

 

38 Ohio St.2d at 30.

            The Court of Appeals reversed.  It held that the trial court had decided the wrong issue, and that the trial court should have confined its analysis to whether the zoning ordinance was valid as applied to Mobil Oil’s property.  38 Ohio St.2d at 25.  In doing so, as this Court described it, “the Court of Appeals thus viewed appellee's proposed use, i.e., a gasoline service station, as being a matter of relief only, and essentially irrelevant to the constitutional issue involved.”  38 Ohio St.2d at 27 (emphasis in original).

            This Court reversed and held:

In an appeal, pursuant to R. C. Chapter 2506, which challenges the constitutionality of a zoning ordinance as applied, the issue for determination is whether the ordinance, in proscribing a landowner's proposed use of his land, has any reasonable relationship to the legitimate exercise of police power by the municipality.

 

Syllabus.

            B.        The same challenge can be asserted in a declaratory judgment action.

            The Mobil Oil Court was persuaded by the reasoning in several Illinois Supreme Court cases that arose as declaratory judgment actions.  Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370; Shultz v. Village of Lisle (1972), 53 Ill. 2d 39.  That did not trouble this Court:

The difference between such actions, and the one now before us, is that an appeal from the denial of a building permit, pursuant to R. C. Chapter 2506, necessarily involves some particular use which has been denied a landowner.  In such an administrative appeal, where a landowner attacks the constitutionality of a zoning ordinance as applied, the words "as applied" have a specific connotation; i.e., as applied to prevent the landowner from using his property in the way in which he has requested.  This approach is wholly consonant with sound judicial practice, which requires that constitutional issues be as precisely and narrowly framed as possible.

 

38 Ohio St. 2d at 29 (emphasis added and in original).  Regardless of whether an as applied challenge to the constitutionality of a zoning ordinance arises in a declaratory judgment action or in an administrative appeal under R.C. Ch. 2506, both “seek the same result -- elimination of an existing zoning regulation which precludes a proposed use of the property,” Karches, 38 Ohio St.3d at 15, citing Driscoll, 42 Ohio St. 2d at 270, and both “implicitly question[] legislative judgment.”  Mobil Oil Corp., 38 Ohio St.2d at 30.

The city of Rocky River, as noted by the trial court, is zoned into nine use districts. * * *  The inclusion of specified uses in each district also indicates a legislative judgment to exclude other uses.  It is the constitutionality of the legislative decision, as embodied in Rocky River’s zoning ordinance, to exclude gasoline service stations from appellee’s property that is here in question.

 

38 Ohio St. 2d at 29 (emphasis added). 

            Little more than a year after deciding Mobil Oil, in Driscoll, this Court held that the use-specific as applied constitutional challenge it approved in Mobil Oil could also be maintained in a declaratory judgment action: “The constitutionality of a zoning ordinance, as it applies to a specific parcel of property to proscribe the owner's proposed use of the property, can be determined in a declaratory judgment action.”  Drsicoll, Syllabus, Para. 1.

            In Karches, this Court held that declaratory judgment actions lie “when a party challenges a zoning ordinance as it applies to a specific parcel of property to proscribe the owner's proposed use of the property.”  38 Ohio St. 3d at 16 (emphasis added).  Karches explained how the trial courts should review constitutional challenges to zoning regulations that arise in an R.C. Chapter 2506 appeal:

The challenge is that a prohibition against a specific proposed use is unconstitutional; and the task of the trial court is to determine whether the prohibition against the specific proposed use has any reasonable relationship to the legitimate exercise of police power by the municipality. Mobil Oil Co., supra. Thus, the determination turns on the specific proposed use of the property.

 

38 Ohio St.3d at 16.  Then the Court held that a declaratory judgment action challenging the constitutionality of a zoning ordinance “may, but need not, involve a question as to the constitutionality of a prohibition against a specific proposed use.”  Id. (emphasis added).

            More recently, in Community Concerned Citizens, Inc. v. Union Township Board of Zoning Appeals (1993), 66 Ohio St.3d 452, a notice of appeal under Chapter 2506 that purported to include a claim for declaratory relief under R.C. Chapter 2721 was filed after a township board of zoning appeals denied an application for a conditional zoning certificate to operate a day care center.  This Court rejected what it referred to as a “hybrid constitutional challenge” holding: “We find that appellant could have challenged the constitutionality of the ordinance as applied to the specific proposed use; however, in order to request a declaratory judgment appellant was required to file a separate R.C. Chapter 2721 action.”  66 Ohio St.3d at 454 (emphasis added).

            Until it decided this case, in fact, the Cuyahoga County Court of Appeals recognized the propriety of declaratory judgment actions to challenge the constitutionality of a zoning ordinance as applied to proscribe the proposed use of land:

the broader alternative of the declaratory judgment action is not limited to, but could include, an analysis of the specific proscribed use that may also happen to be subject to the alternative or additional remedy of an administrative appeal under R.C. Chapter 2506.

 

North Olmsted Land Holdings, Ltd. v. Planning Commission of the City of North Olmsted (Cuyahoga App. 2001), 2001 Ohio App. LEXIS 5038, at *5, motion overruled (2002), 95 Ohio St. 3d 1423.

            In this case, however, citing its own earlier decision in Visconsi-Royalton, the Court of Appeals held that the trial court should not have analyzed the prohibition against Jaylin’s proposed use to determine if that prohibition “is arbitrary, unreasonable and without substantial relation to the public health, safety and welfare of the community.”  (Entry at 5, n.1; App. at 8).[28]

III.       The Court of Appeals Committed Reversible Error In Revising Jaylin’s Claim and the Trial Court’s Analysis of That Claim; Its Decision Should Be Reversed, and The Trial Court’s Judgment Reinstated.

 

            There can be no doubt that a property owner whose proposed use of his or her property is barred by the application of zoning laws to that property may seek a declaratory judgment as to the constitutionality of that prohibition.  When presented with such a challenge, moreover, the trial court must analyze whether the prohibition against the specific proposed use is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.  Otherwise, the specific, clearly stated remedy this Court and the General Assembly have created would have no efficacy.

            The lots on Ellendale that abut Jaylin’s Property are one-half acre in size.  Jaylin proposes to build 29 new single-family homes on one-half acre lots, but the Village’s lot size and yard requirements prevent it from doing so.  Jaylin claimed and proved beyond fair debate that applying those regulations to the Property to prohibit its proposed use was clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.  In reaching this conclusion, the trial court properly analyzed Jaylin’s proposed use and the constitutionality of its prohibition.  In reversing, the Court of Appeals disregarded this Court’s decisions in Mobil Oil, Driscoll, Karches, and Community Concerned Citizens, as well as its own earlier decision in North Olmsted Land Holdings and illogically concluded that a trial court should not analyze the proposed use in such a case.  The Court of Appeals erred and its decision should be reversed.

A.        When A Trial Court Concludes Beyond Fair Debate That A Zoning Ordinance Is Unconstitutional As Applied To Prohibit A Specific Proposed Use Of Property, The Trial Court May Properly Order That The Proposed Use Be Permitted Subject To All Other Lawful Ordinances.

 

            After it declared the P&Z Code unconstitutional as applied to proscribe Jaylin’s proposed use, the trial court ordered the Village inter alia “to issue all approvals and permits for the construction on the Property of 29 single-family homes on 29 lots generally in accordance with the Proposed Use as described above and further subject to all lawful ordinances of the Village that are applicable to the Proposed Use, except those setting forth minimum lot size, frontyards and sideyards ….”  (Judgment at 8, App. at 25; emphasis added).  The Village complained that the trial court should not have ordered such relief.[29]

            It is hard to imagine any more appropriate relief under the facts of this case.  Having declared the prohibition of Jaylin’s proposed use on account of the application of the Village’s lot size and yard requirements to Jaylin’s Property unconstitutional, the trial court’s order directing the Village to allow that use certainly was proper.  Here, though, the trial court went further, and for the benefit of all concerned including the Village, ordered that Jaylin’s proposed use could proceed but only “subject to all lawful ordinances of the Village that are applicable to the Proposed Use, except those setting forth minimum lot size, frontyards and sideyards….”  This Court has held that such relief is proper.

            In Driscoll, the owner, Willowcrest, sought to develop 13 acres of a 20 acre tract of land it owned in Austintown Township for a specific proposed use - multi-family dwellings - a use that was not permitted under the property’s existing zoning.  After its application to rezone the property from R-2 to R-3 (in which multi-family dwellings were permitted) was denied, Willowcrest sought a declaratory judgment declaring the township trustees’ refusal to rezone the property “unconstitutional, illegal and void,” and compelling the township’s zoning inspector to issue the necessary permits to allow Willowcrest’s proposed use.  The common pleas court granted Willowcrest that relief in June 1971.  No appeal was filed.  Two years later, after Willowcrest commenced clearing and grading operations preparatory to the construction of apartment buildings, a group of neighboring residents and others (including the township trustees) filed a lawsuit to enjoin Willowcrest’s development claiming, among other things, that the 1971 declaratory judgment was void and that the proposed use was not allowed by the R-2 zoning regulations.

            The common pleas court dismissed the case on grounds of res judicata and collateral estoppel.  The court of appeals reversed claiming that it was rendering “the judgment which the Common Pleas Court should have rendered,” and enjoined Willowcrest from using its property in any manner not permitted by the R-2 zoning.

            This Court reversed the court of appeals’ decision, explaining:

The major contention of Willowcrest's declaratory judgment action was that the existing zoning ordinance, as it applied to the 13-acre tract of land to prohibit its use for multi-family dwelling units, was unconstitutional.  The 1971 declaratory judgment order agreed with this contention and ordered the township zoning inspector to issue permits for the construction of apartment buildings.

 

42 Ohio St.2d at 266 (emphasis added).  Without ever reaching the trial court’s holding that res judicata and collateral estoppel precluded the subsequent lawsuit, this Court reversed and held that the 1971 declaratory judgment order was “a valid and final decree entitling appellants to use the property in question as the site for multi-family dwellings.”  42 Ohio St.2d at 266.[30]

            Jaylin did not assail the zoning classification of the Property.  Instead, it asserted a much more specific and narrow claim: that the application of the P&Z Code to the Property was unconstitutional to the extent that it precluded Jaylin’s proposed use.  Driscoll clearly authorizes a trial court to grant the relief sought here by Jaylin (i.e., a declaration of the owner’s right to use its property as proposed after the trial court has declared that municipal zoning ordinances are unconstitutional as applied to that property to the extent they preclude the owner’s specific proposed use).

            Having determined that the exclusion of Jaylin’s proposed use was unconstitutional, it was appropriate for the trial court to order the Village to allow Jaylin to proceed with its proposed use subject to all lawful ordinances of the Village, save and except for those which the trial court had found beyond fair debate were applied unconstitutionally to the Property to proscribe that proposed use.

B.        Union Oil Did Not Prevent The Trial Court From Declaring the P&Z Code Unconstitutional As Applied To Prohibit Jaylin’s Proposed Use Of The Property And Allowing That Proposed Use Subject To All Lawful Ordinances Of The  Village.

 

            Some declaratory judgment actions challenge the constitutionality of a particular zoning classification as applied to specific property without regard to any particular use.  In such a case, even if the trial court agrees that a zoning classification is unconstitutional as applied to the plaintiff’s property, the dispute is not terminated because the property would be left “unzoned.”  Union Oil held that in such a case, it is improper for the trial court to simply “rezone” the property:

[I]n a declaratory judgment action, upon finding existing zoning unconstitutional as applied to specific real property, the trial court should give notice to the zoning authority that, within a reasonable time certain, it may, at its option, rezone the property.  Further notice should be given that, if the property is not rezoned within such period of time, the court will authorize the property owner to proceed with the proposed use if, on the basis of the evidence before it, the court determines the proposed use to be reasonable.

 

62 Ohio St. 2d at 267.  The courts have neither legislative expertise nor authority to zone or rezone property; therefore, “where a court orders the use classification of property changed,” this Court cautioned, “uses may be authorized for which no evidence of reasonableness has been presented.”  62 Ohio St. 2d at 266.

            In this case, Jaylin claimed and the trial court found that the P&Z Code was unconstitutional as applied only to the extent that the minimum lot size, and frontyard and sideyard setback requirments prohibited Jaylin’s proposed use of the Property.  Jaylin did not claim that the Property should be zoned for something other than residential use, and the trial court made no such determination.  The Dwelling House zoning classification of the Property remains intact.

            The Union Oil procedure described above has no application in this case.  Once the trial court determined that the P&Z Code unconstitutionally prohibited Jaylin’s proposed use of the Property, there was no reason to remand the matter to the Village to rezone the Property.  No such action was necessary.  All that was necessary, as in Driscoll, was an order directing the Village to permit the development of the Property in accordance with Jaylin’s proposed plan and all lawful Village ordinances.[31]

PROPOSITION OF LAW NO. 2:

On Appeal From A Bench Trial, A Court of Appeals May Not Substitute Its Judgment For That Of The Trial Court As To The Credibility of an Expert Witness Who Has Contradicted Herself, Acknowledged That She Lacks Competence To Make Certain Conclusions, and Otherwise Indicated a Lack of Credibility, Unless The Trial Court Clearly Lost Its Way And Created Such A Manifest Miscarriage Of Justice That Its Decision Must Be Reversed And A New Trial Ordered.

 

            A judgment by a trial court declaring the application of municipal zoning regulations to specific property unconstitutional will not be disturbed as being against the manifest weight of the evidence if it is supported by competent, credible evidence going to the material elements of the case.  See, e.g., Shemo v. City of Mayfield Heights (2000), 88 Ohio St. 3d 7, 10; C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St. 2d 279, syllabus.

            When reviewing trial courts’ judgments, appellate courts must make every reasonable presumption in favor of the trial courts’ rulings.  Seasons Coal v. Cleveland (1984), 10 Ohio St.3d 77.  If the evidence is susceptible of more than one construction, the courts of appeals are to give that evidence “that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the trial court's verdict and judgment.”  Seasons Coal, supra.

            After paying lip service to these basic principles of appellate jurisprudence, the Court of Appeals usurped one of the most fundamental roles of the trial court in any trial – the assessment of the credibility of the witnesses – and replaced the trial court’s first-hand assessment of Ms. DeYoung’s credibility with its own.

            The weight of the evidence and the credibility of witnesses are for the trier of fact to determine.  State v. DeHass (1967), 10 Ohio St. 2d 230, 231.  In McKay Machine Company v. Rodman (1967), 11 Ohio St. 2d 77, this Court rejected an argument that the admission of expert opinion testimony as to an ultimate fact infringes the function of the jury.  McKay’s explication of the role of the finder of fact is important:

[I]n the last analysis, the jury or the court, if a jury is waived, is the sole weigher of credibility and testimony.  The jury can accept all, a part or none of the testimony offered by a witness whether it is expert opinion or eyewitness fact, whether it is merely evidential or tends to prove the ultimate fact. In other words, "[t]he jury is the sole judge of the weight of the evidence and the credibility of witnesses.  It may believe or disbelieve any witness or accept part of what a witness says and reject the rest.  [In so doing it] * * * should consider the demeanor of the witness and the manner in which he testifies, his connection or relationship with the * * * [plaintiff] or the defendant, and his interest, if any, in the outcome." State v. Antill, 176 Ohio St. 61, 67.

 

11 Ohio St. 2d at 82 (emphasis added).  In State v. Evans (1993), 67 Ohio St. 3d 405, cert. denied (1994), 510 U.S. 1166, this Court elaborated:

[O]nly the trier of fact, who is in the unique position to observe a witness face-to-face, can make such factual inferences as elusive as the witnesses’ subjective motives. According to one expert on communication techniques for trial attorneys, ninety percent of the total meaning of testimony is interpreted through nonverbal behavior, such as voice inflection, hand gestures, and the overall visual demeanor of the witness. The witnesses’ choice of words accounts for only ten percent of the meaning of their testimony.… Therefore, nonverbal information, incapable of being transcribed into the record by the court stenographer, significantly influences the fact finder’s determinations.

 

67 Ohio St. 3d at 410-411 (emphasis added).  See also Seasons Coal, 10 Ohio St.3d at 80:

The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.

 

            Appellate courts in general do not have a chance to observe witnesses face-to-face, to hear their voice inflection, to observe their posture and gestures, or take in their overall visual demeanor.  In this case, moreover, the Court of Appeals did not have the opportunity taken by the trial court to view the Property, its surrounding areas and other parts of the Village in order to put the testimony and exhibits into a more specific, more comprehensive and better informed context for deciding who to believe.

            In reviewing the record to determine if the trial courts’ judgments are supported by the evidence, the Courts of Appeals “must examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether the jury ‘clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’”  State v. Leonard (2004), 104 Ohio St. 3d 54, 68, 2004 Ohio 6235, ¶81; State v. Thompkins (1997), 78 Ohio St.3d 380, 387.

            The trial court found that Laura DeYoung was not credible (Judgment at 6) after observing her during direct and cross-examination and after questioning her.  Contrary to the Court of Appeals’ account (Entry at 9; App. at 12), that finding was informed by much more than a simple miscalculation.

            The Court of Appeals’ substitution of its judgment of Ms. DeYoung’s credibility for that of the trial court was improper.  Having made that improper substitution, the Court of Appeals based its decision to reverse the trial court on Ms. DeYoung’s discredited and unsupported testimony.  The Court of Appeals did not conclude, and the record comes nowhere near supporting the conclusion, that the trial court clearly lost its way and created such a manifest miscarriage of justice that its Judgment must be reversed and a new trial ordered when it rejected the credibility of Ms. DeYoung’s testimony.

            The dubious and thoroughly-discredited proposition that the Village’s two acre zoning requirement achieved a range of specific environmental protections (as to which the Village never enacted legislation despite recommendations ten years earlier from an environmental consultant that it do so) that justified the prohibition of Jaylin’s Proposed Use was predicated solely on Ms. DeYoung’s testimony.  The trial court gave that testimony whatever negligible weight it merited.  Without identifying any “manifest miscarriage of justice” inherent in that assessment (because there was none), the Court of Appeals clearly abused its discretion when it improperly disregarded the trial court’s evaluation of the evidence.  Accordingly, the Court of Appeals’ decision reversing the trial court must be reversed and the trial court’s Judgment reinstated.

CONCLUSION

            The Court of Appeals has repudiated the right of a property owner to seek a declaratory judgment that a municipal zoning ordinance is unconstitutional as applied to the extent that it precludes a specific proposed use of property.  In doing so, the Court of Appeals has attempted to reverse Mobil Oil, Driscoll, Karches and Community Concerned Citizens.  The Court of Appeals’ holding goes even further, however, by precluding evidence of the owner’s proposed use in any as applied constitutional challenge to a zoning ordinance.  The notion that a trial court may “discuss” but may not analyze or consider the owner’s proposed use in such a challenge is unprecedented, certainly in this Court and in every other Court of Appeals in this State.

            The Court of Appeals’ conclusion that the testimony of the Village’s expert witness was credible, despite an expressed finding to the contrary by the trial court based upon overwhelming evidence in the record, is likewise unprecedented, and wrong.

            Jaylin has not challenged the Village’s authority to enact and enforce zoning ordinances that are intended to protect the environment or preserve natural resources where the application of those ordinances substantially advances legitimate government interests.  In this case, however, the Village’s two acre zoning failed to substantially advance any such interests when applied to prohibit Jaylin’s proposed use of the Property based upon the evidence that the Property is landlocked and isolated by a deep, wide valley from any property in the Village to which the two acre zoning requirements applies, and is bordered to the north and west by small, narrow lots with older, modest homes and cottages served by off-site septic systems; that Jaylin’s proposed use includes central sewers and off-site infrastructure enhancements (at Jaylin’s cost) that will make it possible for those neighboring lots and others on Wiltshire, Berkeley and Ellendale, to eventually tie into sewers if the Village so desires; and that Jaylin’s proposed use will meet or exceed the requirements of all ordinances the Village has enacted for protecting the environment, and will entail other environmentally beneficial measures that are not required by any ordinance.

            In this case, the Village has labored without any basis to imbue its two acre zoning requirement with specific environmental objectives that are not identified in nor furthered by that requirement and as to which, moreover, the Village historically has declined to enact despite prior recommendations by environmental consultants for their enactment.

            Because the Village’s environmental defense was nothing more than a pretext for its arbitrary insistence on forcing a square peg into a round hole, it was unable to sustain that defense at trial.  It was clear to the trial judge (as it would have been to any trial judge) that Jaylin’s plan does more to protect the environment than the Village’s two acre zoning requirement.

            The Court of Appeals’ decision is a dramatic and unwarranted departure from Ohio law.

            For all of the foregoing reasons, Jaylin Investments, Inc. respectfully urges this Court to reverse the Court of Appeals’ decision and to reinstate the Judgment of the trial court.

                                                            Respectfully submitted,

 

                                                                                                                                   

                                                            Sheldon Berns (0000140) (Counsel of Record)

                                                            Benjamin J. Ockner (0034404)

                                                            Berns, Ockner & Greenberger, LLC

                                                            3733 Park East Drive, Suite 200

                                                            Beachwood, OH 44122

                                                            Telephone: (216) 831-8838

                                                            Facsimile: (216) 464-4489

 

                                                                                Attorneys for Appellant Jaylin Investments, Inc.


CERTIFICATE OF SERVICE

            A copy of the foregoing Brief of Appellant, Jaylin Investments, Inc. has been served this 23rd day of February, 2005, by regular U.S. mail upon:

Leonard A. Spremulli, Esq.

29325 Chagrin Boulevard, Suite 305

Pepper Pike, Ohio 44122

Santo T. Incorvaia, Esq.

Crown Centre, Suite 600

5005 Rockside Road

Independence, Ohio 44131

 

 

                                                                                                                                   

                                                            One of the Attorneys for Appellant,

                                                            Jaylin Investments, Inc.

 



[1] See, e.g., Driscoll v. Austintown Associates (1975), 42 Ohio St.2d 263, Syllabus, Para. 1; Karches v. City of Cincinnati (1988), 38 Ohio St.3d 12, Syllabus, Para. 1.

[2]  A copy of the trial court’s Judgment Entry filed March 13, 2003 (“Judgment”) is attached to the Appendix (“App.”) at Page 18.

[3]  A copy of the Court of appeals’ Journal Entry and Opinion journalized on June 7, 2004 (“Entry”) is attached to the Appendix at Page 4.

[4] A copy of the Village’s Zone Map is in the record as Plaintiff’s Exhibit (“PX”) 5, and included in the Supplement (“Supp.”) at 269.

[5] These lots are part of the Kinsman Highland Subdivision which was platted in 1915.  Trial Transcript (“Tr.”) at 42, Supp. at 3.  A copy of the plat was admitted as PX 6.

[6] Jaylin’s proposed use would comply with these provisions.

[7] According to Ms. DeYoung, any recommendation that a community pass a specific measure to protect its natural resources “would be based on their comprehensive planning process and what they want to prioritize,” and that if “it was something that was valuable to the community, and they wanted to put a tool in place to protect their natural resources,” they could adopt such a recommendation.  (Tr. at 471, Supp. at 206).

[8] Testimony of Robert Hill (Jaylin’s expert planner), Tr. at 59-60, Supp. at 6-7.

[9]  Tr. at 105–107, Supp at 15-17.

[10] Tr. at 195,199, Supp. at 54, 58.  The Village’s Erosion Control Ordinance, P&Z Code Sec. 1329.07, includes these regulations.

[11] P&Z Code Ch. 1341.

[12] The Chairman of the Planning Commission asked the Village’s assistant law director if Jaylin’s proposal presented “a zoning issue or a variance issue.”  In response, counsel advised: “As legal advisor to the planning commission, it’s my considered opinion that this is a rezoning issue.”  (Tr. at 149-151, Supp. at 26-28).

[13] Mr. Chudakoff had considered proposing a development of 51 homes on the Property which would be consistent with the density of a development the Village approved for property owned by Henry Meyer Associates, Inc.  He also considered a development of 36 homes on one-half acre lots.  He decided that both plans were too dense.  (Tr. at 101-102, Supp. at 11-12; PX 9). 

[14] PX 2 is the Hillside Zone Map prepared by Mr. Gerson.  PX 13 is a diagram from the Ordinance itself defining the Protected Hillside Zone.  Mr. Gerson explained clearly how the boundaries of the Protected Hillside Zone are determined, and how they were illustrated on PX 2 and PX 4 (Jaylin’s conceptual development plan superimposed on a topographic map of the Property).  (Tr. at 162-181; 234-238, Supp. at 30-49; 69-73).

[15] Mr. Gerson did not testify that the impact of Jaylin’s proposed development on the Chagrin River basin would be very small, as the Village has previously claimed (and as the Court of Appeals found); he testified that if Jaylin’s proposed development went forward without the water retention measures called for in Jaylin’s plans, the impact would probably be very small.

[16]  All of Ms. DeYoung’s testimony is included in the Supplement at 76 - 207.

[17] Much of Ms. DeYoung’s testimony centered on two diagrams (Defendant’s Exhibits – “DX” – M and N) she prepared depicting her interpretations of the projected environmental impacts of Jaylin’s proposed development as compared to those of a plan prepared by the Village Engineer for the development of six homes on the Property (referred to as the “Compliant Site Plan” and marked as DX A).

[18] Having used a computer to generate DX N, Ms. DeYoung was unable to defend her conclusions using a scale or ruler (Tr. at 406, Supp. at 141), claiming that her computer provides more precise measurements, that there was “a problem” using a ruler of a particular scale provided to her during trial to confirm the distances and contours of the Protected Hillside Zone on the Property as depicted on that exhibit (Tr. at 407, Supp. at 142), and that the scale of another ruler provided to her to test her conclusions “must not be accurate….”  (Tr. at 408, Supp. at 143).  Further attempts by Jaylin’s counsel to test Ms. DeYoung’s conclusions with other documents and scales met with a similar fate.  (Tr. at 409, 412, 413, Supp. at 144, 147, 148).  Ultimately, the Village stipulated that the contours and dimensions of the Protected Hillside Zone as depicted on DX N were wrong.  (Tr. at 413-414; 420-421, Supp. at 148-149).

[19] Ms. DeYoung also ignored the fact that Jaylin was committed to replacing some trees that would be removed in the course of grading and construction, even though the Village has no ordinances requiring that replacement.  (Tr. at 583-584, Supp. at 235-236).

[20] The Village specifically declined to enact such legislation despite a recommendation by Behnke & Associates in the Growth Plan.  (Tr. at 429, Supp. at 164).

[21] Mr. Chudakoff is an experienced builder, and has built a number of homes in the Village.  (Tr. at 96, Supp. at 9).  Some of those homes have footprints that are approximately 5,500 square feet.  (Tr. at 582, Supp. at 234).  The lots proposed for Owl Ridge will support homes in the 2,500 to 4,000 square foot range (Tr. at 109, Supp. at 19), so the footprints will obviously be much smaller.

[22] Jaylin stated early on that it was willing to develop Owl Ridge with the roadway being either public or private.  (Tr. at 123, Supp. at 24).

[23] Visconsi-Royalton bears no resemblance to this case.  That portion of its reasoning on which the Court of Appeals relied in this case, moreover, has never been adopted by any other court in this State.

[24]  A date-stamped copy of its Notice of Appeal is attached to the Appendix at 1.

[25] Berger involved provisions of the Mayfield Heights zoning code that required owners of small vacant lots with one hundred feet or less of street frontage to “totally cut” their lots to a height of no more than eight inches.

[26] In Goldberg, Goldberg Companies, Inc. challenged the constitutionality of the City of Richmond Heights’ off-street parking requirements as applied to land owned by Goldberg Companies in Richmond Heights.  Goldberg Companies did not claim that Richmond Heights had no legitimate interest in managing off-street parking, and did not assert that the city’s off-street parking regulations were unrelated to that legitimate interest.  The claim was simply that under the particular circumstances of that case, given the specifics of Goldberg Companies’ plans and other considerations, the application of the city’s off-street parking requirements to Goldberg Companies’ property was unconstitutional.  

[27] This is such a case.  The Village’s two acre zoning requirement is not a use classification.  It is an area requirement that applies to all property in the Dwelling House District except for lots on three streets, including lots the abut the north and west sides of the Property.

[28] In Visconsi-Royalton, a trial court granted summary judgment in favor of the owner, declaring an existing zoning classification invalid and unconstitutional as applied to specific property, and rezoning the property to a new use classification.  The Court of Appeals reversed.  Jaylin sought no such relief here.  No other court has cited Visconsi-Royalton.  That case, moreover, was decided a month and a half before North Olmsted Land Holdings (in which the same Court clearly held that a declaratory judgment action may require “an analysis of the specific proscribed use”).

[29] See Assignment of Error 4 in the Brief of Defendant-Appellant filed in the proceedings below.  The Court of Appeals did not address this issue.

[30] Karches, on the other hand, granted no such relief.  The Court held that Karches’ land was not constitutionally zoned.  Karches had not presented a specific proposed use, nor had it claimed, as Jaylin does here, that the exclusion of a specific proposed use was unconstitutional.  Its challenge was a broadside attack on the property’s zoning classification without regard to or in pursuit of any specific use.  As a practical matter, therefore, it was impossible for a court to grant any relief beyond declaring the zoning of the property unconstitutional.  Having declared the zoning classification of the property unconstitutional (which Jaylin did not seek here), moreover, the trial court had remanded the matter to the city to consider rezoning the property to a constitutional use as called for by this Court’s decision in Union Oil Co. of California v. City of Worthington (1980), 62 Ohio St. 2d 263.  As discussed in the next section, Union Oil does not apply here.

[31] The Village never claimed that Union Oil applied until after the trial court announced its decision to find in Jaylin’s favor and directed the parties to submit proposed journal entries.  It urged the Court of Appeals to apply Union Oil, and assigned as several errors in its Brief the trial court’s failure to remand the matter back to the Village.  The Court of Appeals did not discuss Union Oil.


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