COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60061 ARTHUR HIRT, ET AL. : : Plaintiff-appellees : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF STRONGSVILLE, OHIO : : Defendant-appellant : : DATE OF ANNOUNCEMENT : MAY 7, 1992 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 163209 JUDGMENT : REVERSED AND JUDGMENT ENTERED FOR APPELLANT. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellees: For defendant-appellant: FRANK A. DiPIERO, ESQ. ROBERT E. MANLEY, ESQ. STACY D. BALLIN, ESQ. 225 West Court Street l800 Huntington Building Cincinnati, OH 45202 Cleveland, OH 44115 EDWARD KANCLER, ESQ. JOHN D. RYAN, Law Director 850 Euclid Avenue, Suite 100 City of Strongsville Cleveland, OH 44114-3399 18688 Royalton Road Strongsville, OH 44136 - 2 - PATTON, P.J., Defendant-appellant, the City of Strongsville ("City"), appeals from the trial court's decision declaring the existing zoning on plaintiff-appellees Hobart, Onalee and Arthur Hirt's property unreasonable, arbitrary and unconstitutional. Plain- tiffs challenged the validity of the current office zoning classification on their 42.6 acre site located in the City as the present zoning did not allow them a reasonable economic use of their property. The plaintiffs successfully argued below that the property's most reasonable use in the immediate future is multi-family dwellings (i.e., apartments). The relevant facts follow: The subject property, located in the City of Strongsville, with the south side fronting Route 82, was originally zoned R1-75, which permits the construction of single-family detached residential units. On March 27, 1990, during the pendency of this declaratory judgment action, the property was rezoned to permit office buildings, OB. At the time of trial, the construction of the headquarters of Central Reserve Life was underway adjacent to the subject property on its east side. Land adjoining the property to the west is a 158-unit apartment complex. The property on the opposite side of Route 82 is zoned to permit the construction of a shopping center. Prior to this property being rezoned OB, the National Land Development Company ("National Land") entered into two contracts - 3 - with the plaintiffs to purchase this property. The contracts, however, were contingent upon the property being rezoned from single-family detached residential to multi-family residential. After numerous studies and extensive research, National Land concluded that the only reasonable use of the property was multi- family dwellings. In April of 1988, National Land applied to the City for a zone change from R1-75 to RMF-1, multi-family residential. The City's planning commission recommended approval but the City Council rejected the proposal. The plaintiffs then instituted this action and alleged that the present zoning of the plaintiffs' property is unreasonable, arbitrary, confiscatory and, hence, unconstitutional. Count II alleged the City deprived the plaintiffs the equal protection of the laws as the City had approved a high-density apartment complex immediately to the west of the subject property. Count III alleged a 1983 cause of action that the plaintiffs were deprived of the reasonable use of their property. The trial court, after entertaining extensive testimony on this matter, entered findings of fact and concluded that: Considering all of the evidence and testi- mony presented at trial, the Court finds as a matter of law that the plaintiff has proven that its land could not be profitably developed as single or multi-office space in the foreseeable future; that the zoning ordinance as applied to the plaintiff is clearly invalid beyond fair debate. Central Motors Corp. v. Pepper Pike, 13 O.O. 3d 347 (1979). - 4 - IT IS, THEREFORE, CONSIDERED, ADJUDGED, ORDERED AND DECREED that the present zoning on P.P. No. 396-11-001 and No. 396-11-002 (Office/Building) is clearly invalid, beyond the scope of fair debate; that the most reasonable use of said property in the immediate future is multi- family dwellings; and that the Defendant, City of Strongsville, is ordered to enact rezoning legislation forthwith to carry out the judgment of this Court. Costs to Defendant, City of Strongsville. The City's timely appeal asserts three errors for review by this court: I. THE TRIAL COURT ERRED WHEN IT FAILED TO DISMISS THE COMPLAINT AND ENTER JUDGMENT IN FAVOR OF THE CITY OF STRONGSVILLE AFTER APPELLEES WERE UNABLE TO DEMONSTRATE BEYOND FAIR DEBATE THAT THE ZONING OF THE APPELLEES' PROPERTY WAS CLEARLY ARBITRARY AND UNREASONABLE. II. THE TRIAL COURT ERRED WHEN IT SUBSTITUTED ITS JUDGMENT FOR THAT OF THE DULY ELECTED COUNCIL OFFICIALS OF THE CITY OF STRONGSVILLE AS TO A REASONABLE ZONING FOR THE APPELLEES' PROPERTY. III. THE TRIAL COURT ERRED WHEN IT FAILED TO DISMISS THE COMPLAINT AND ENTER JUDGMENT IN FAVOR OF THE CITY OF STRONGSVILLE AFTER APPELLEES FAILED TO PRESENT EVIDENCE THAT THEIR CONSTITUTIONAL RIGHTS WERE DEPRIVED. The City argues the trial court erred and usurped its authority in ordering it to rezone the subject property. The City's arguments are interrelated so they will be addressed together. A. In particular, the City contends the plaintiffs did not demonstrate, beyond fair debate, that the zoning classification is unreasonable and not necessary to the health, safety and - 5 - welfare of the community. Hence, the City avers the trial court erred in not deferring to the legislative body (the City Coun- cil) and in substituting its judgment for that of the City Council. The plaintiffs carry the burden of proving, beyond fair debate, that the zoning classification of OB is unreasonable and not necessary to the health, safety and welfare of the City. Karches v. Cincinnati (1988), 38 Ohio St. 3d 12, 19 (citations omitted). The plaintiffs must demonstrate that the zoning clas- sification denies them the economically viable use of their land without substantially advancing a legitimate government interest. Id. The trial court found it beyond the fair reach of debate that the existing OB zoning as applied to the plaintiffs' property was unreasonable, arbitrary and confiscatory, and that the plaintiffs' land could not be "profitably developed" as a single or multi-office space in the foreseeable future. The trial court found that the use for the property as currently zoned for office use was not economically feasible. We disagree and reverse the decision of the trial court. The plaintiffs produced several witnesses in support of their position. Robert Westendarp, Chairman of the Board of National Land, testified that he entered into a contract with the plaintiffs for the purchase of the subject property contingent upon rezoning for multi-family dwellings. His research and - 6 - studies revealed the subject property was not conducive to office development for several reasons. First, Westendarp stated "there is simply no market." (Tr. 38.) Second, Westendarp explicated that the market rates for leasing in the area are $12 per square foot. He would have to charge $19 per square foot "just to break even." (Tr. 39.) Third, financing for office building development on the subject property is not feasible, mostly because of its location. This leads into Westendarp's fourth reason that the property itself is not conducive to office development. There is no "highway visibility." (Tr. 30.) Because of the physical characteristics of the subject property, only half of the frontage is usable as the other half is a ravine. (Tr. 30.) The ravine measures approximately sixty feet in depth and three hundred feet in width. (Tr. 24.) This very feature makes this particular parcel attractive for multi-family dwelling development as it is a "great natural amenity." (Tr. 25.) Westendarp stated that the ravine effectively precludes the development of office buildings or a retail center. (Tr. 25.) Moreover, Westendarp stated, prior to approaching the plaintiffs regarding the sale of the property, he reviewed the 1968 Comprehensive Master Plan for the City. The Plan was essentially authored by Robert Hill, the City Planner and defense witness. Review of the Master Plan revealed that the subject site was zoned for a multi-family site. (Tr. 20.) In 1988, the City formed a Master Plan Review Committee in order that the 1968 - 7 - Master Plan could be updated and revised. (Tr. 34.) The report which was spawned by this committee concluded that any business rezoning for this piece of property "would be highly speculative" because of the City's "overall business potential in relation to its total acres of currently zoned business land." (Tr. 34-5, 78.) David Hartt, a city planning consultant, testified there is clearly no market potential for office development at the sub- ject site. (Tr. 66-67.) "[T]here is more land in the City zoned for economic development than jobs that will be available to fill it." (Tr. 70.) In response to questions from the bench, Hartt discounted the "satellite office development" theory which embodies the concept that offices are built around a retail shopping center such as the one being developed across Route 82 from the subject site. Hartt stated that many shopping centers in the area do not have satellite office development. (Tr. 91- 2.) Hartt also stated that, in his opinion, multi-family dwellings on this parcel would be more aesthetically pleasing as less of the site would be used for buildings and parking and more of the natural character of the landscape would be retained. Hartt also stated that this area, known as the southwest corri- dor, is clearly not the kind of business "hub" as those on Rock- side Road in Independence or Chagrin Boulevard and I-271, nor does the southwest corridor have the capabilities and potential for such growth. (Tr. 89.) - 8 - Donald Lyden, a leasing consultant at Ostendorf-Morris Com- pany, also testified. Ostendorf-Morris is the largest commer- cial real estate firm in northern Ohio which completes over 70% of the brokered transactions in the Cleveland market. Lyden corroborated the testimony of Westendarp and Hartt and concluded that it would not generally be a "smart idea" as "an office building on this site of any type would be uneconomical [and] unfeasible from a leasing standpoint ***." (Tr. 98.) Lyden opined that the location is "the biggest strike against the parcel." (Tr. 108.) He stated that financing for an office building on this site could probably not be obtained; there would not be enough tenants to attract; and even if financing were obtainable, the building, in all probability, could not be leased. (Tr. 101.) Richard Van Curen, a real estate appraiser, also testified. His opinions conformed to the testimony of the other witnesses produced by the plaintiffs. Van Curen stated that the most rea- sonable use of the subject parcel is for multi-family dwellings. There are no other major office buildings in the area. (Tr. 122.) Central Reserve Life is a single-user institutional facility (Tr. 59) and other buildings in the area are service- oriented, such as banks or a Kaiser facility. Van Curen did not see the southwest corridor as a business hub and concluded that if the current zoning remained, the development of this parcel of land would be halted in the foreseeable future. (Tr. 132.) - 9 - Norman Crumholz, the plaintiffs' last witness, is a profes- sor of urban planning at Cleveland State University. He reviewed the 1968 Comprehensive Master Plan as well as the 1988 revised version, along with the accompanying notes and records, and averred that the intention of the City was to give "special emphasis to multi-family or apartment dwellings" in the subject area. (Tr. 139.) Crumholz concluded that the best and most reasonable use of the subject property is multi-family dwellings and there is clearly a "sufficient need" for apartments in the area. (Tr. 147.) The City produced the testimony of Robert Hill, the City Planner and author of the 1968 Comprehensive Master Plan for Strongsville. Hill is also the city planner for Independence, where a large hub of business activity is located, and is the planning consultant for the city of North Olmsted. North Olmsted has satellite development around Great Northern Mall. Hill testified that the present zoning would create a hub for business activity in the southwest corridor and such zoning is consistent with the City's comprehensive plan of development. Hill stressed the significance of the new adjacent mall site in the area and the importance of the presence of the Central Reserve Life building in the immediate vicinity of the subject property. Further, Hill stated that the immediate vicinity is already zoned for office use and houses the Kaiser facility as well as banks and the Central Reserve Life building. Moreover, - 10 - Hill testified that the roadway of Route 82 is undergoing plans for expansion in order to accommodate the business district. His considerable experience in city planning with not only Strongsville, but Independence and North Olmsted, coupled with a review of the City's comprehensive plan led Hill to conclude that OB zoning was an appropriate use of the subject parcel. William Gould, an architect and city planner, testified next. Gould also stated that the current zoning is an appro- priate use of the property and would aid in the City's important objective of creating a town center. (Tr. 211-13.) He also added that the subject parcel is the last large undeveloped piece of land in the town center and its use should be given considerable thought. In this case, it is clearly not beyond the scope of fair debate that the existing zoning is unreasonable, arbitrary and confiscatory. In fact, quite the contrary affirmatively appears from the record. A fair debate ensued between plaintiffs' witnesses and the defense witnesses. It appears that the trial court substituted its judgment for that of the City Council and the City Planner, Hill. Last, we note that counsel for plaintiff during the trial below and oral argument before this court misplaced the emphasis of his position. He presented testimony below and on appeal that there is no economically viable use of his property; hence, he is entitled to relief. First, the testimony belies this contention - 11 - or at least creates a fair debate. Second, it is a well- established principle of law that "[t]he mere fact that one's property can be put to a more profitable use does not, in itself, establish an unnecessary hardship where less profitable alternatives are available within the zoning classification." Consolidated Mgmt., Inc. v. Cleveland (1983), 6 Ohio St. 2d 238. Accordingly, the first and second assigned errors are well- taken. B. The City also maintains that the plaintiffs erroneously delegated their 42 U.S.C. 1983 action to National Land and National Land lacks standing to pursue the 1983 action as it is not the record owner of the subject property. This is simply not true. The plaintiffs did not delegate their cause of action. Con- trary to the statement made by the City, Westendarp of National Land did not testify as to the perceived harm to the company if the conditions to the real estate contract could not be met. The plaintiffs are correctly the real party in interest and the causes of action were properly maintained by them. Accordingly, the third assigned error is overruled. Judgment reversed and judgment entered for the City. - 12 - This cause is reversed and judgment entered for the appellant. It is, therefore, considered that said appellant recover of said appellees its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, J., PRYATEL, J.,* CONCUR PRESIDING JUDGE JOHN T. PATTON *SITTING BY ASSIGNMENT: JUDGE AUGUST PRYATEL, retired of the Eighth Appellate District. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .