COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60076 : ALEXANDER KANAREFF, ETC., ET AL. : : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION CITY OF WESTLAKE, ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 162,491 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellants: For Defendant-Appellees: MICHAEL R. GAREAU, ESQ. ROBERT McCLELLAND, ESQ. WILLIAM L. COSTELLO, ESQ. Assistant Law Director Gareau & Dubelko Co., L.P.A. City of Westlake 23823 Lorain Road, Suite 200 55 Public Square, Suite 1775 North Olmsted, Ohio 44070 Cleveland, Ohio 44113 - 2 - HARPER, J.: I. Appellants, Alexander Kanareff, et al. (Kanareff) appeal from the judgment of the Cuyahoga County Court of Common Pleas which dismissed their declaratory judgment action against appellee, the City of Westlake (the City). For the reasons that follow, we affirm. II. After a careful review of the record, we find that the findings of fact as stated by the trial court accurately reflect the facts necessary to the resolution of this case, therefore, we adopt the trial court's findings of fact in its entirety. "FINDINGS OF FACT "1. The 'Subject Property' is located along Center Ridge Road, Westlake, Ohio, consisting of all of permanent parcels 213-16-13 and 213-16-18 and the rear portion of permanent parcels 213-16-32 and 213-16-33, which three lots front on Center Ridge Road. "2. The Subject Property is zoned for single family residential use while the southern portion of permanent parcels 213-16-31, 32 and 33 are zoned general business. "3. The southern portion of permanent parcels 213-16-31, 32 and 33 were rezoned to general business from single family residential at the request of plaintiff, Alexander Kanareff ('Kanareff'). "4. The rezoning of the southern portion of permanent parcels 213-16-31, 32 and 33 was not in keeping with the recommendations of the Westlake Guide Plan. "5. There are four means to gain access to the Subject Property, as follows: "A. Through the retail development on the southern portion of the Subject Property. The Westlake Codified Ordinances prohibit access to a residential development through a commercial development. - 3 - "B. Through a Critical Street Opening (Ordinance 66-6) contained on the Westlake Thoroughfare Plan and the Westlake Guide Plan. "C. Through the acquisition of property on Maple Drive. "D. Through the acquisition of land on Dover Center Road. "6. The Subject Property is not landlocked. Westlake has provided Critical Street openings to provide access to land areas for development. The Subject Property is located on the path of such a street opening provided in Westlake Ord. 66-6. "7. Kanareff obtained the property through the purchase of the five parcels during the years 1978- 1981. "8. Kanareff paid a total of $171,300 for all five of the parcels, including two houses. "9. The Westlake Guide Plan is a planning guide for the City, which is updated on a periodic basis and has no force of law. "10. The Westlake Guide Plan proposed that all five Kanareff parcels and four adjoining parcels to the east be zoned for general office use. "11. Kanareff developed Dover Village on the southern portion of permanent parcels 213-16-31, 32 and 33 as a general business use, in contradiction to the zoning proposed in the Westlake Guide Plan. "12. The development of the Subject Property for single family residential purposes is economically feasible for the following reasons: "A. 8-10 lots could be developed on the Subject Property. "B. It is common for a development to have 180-200 feet of dead-head road to gain access. That cost is a standard factor in the cost of development. "C. The lots to be developed on the Subject Property, at the most, cost Kanareff $4,600 each. - 4 - "D. The usual cost to purchase an undeveloped blank lot in Westlake is approximately $10,000. "E. There would be an additional 100 feet of deadhead street at a cost between $35,000 to $40,000, or an additional $4,000 per lot, to be developed. "F. There is an additional cost of approximately $10,000 to complete the development of lots in Westlake, bringing the total development cost of a single family residential lot to $20,000 to $22,000. "G. With the additional dead-head street, the Subject Property's costs could be developed for the same cost as other lots in Westlake. "H. Developed lots in Westlake sell from $50,000 to $70,000. "I. There are a number of cul-de-sacs in Westlake and there has been great demand for lots on those types of streets. "J. There would be a market for homes on the Subject Property. "13. The development of the Subject Property would not result in an economic loss to the developer. "14. Development of the Subject Property as permitted under Westlake's general office zoning would adversely affect the surrounding residential neighborhoods. "15. On October 25, 1985, Kanareff filed development plans with the Westlake Planning Commission, seeking approval of Dover Village, Phase One, which envisioned three commercial structures within the General Business District, directly south of and adjacent to the Subject Property. "16. On October 28, 1985, Kanareff submitted building plans in support of the Dover Village development plan. - 5 - "17. On March 3, 1986, the Westlake Planning Commission approved plans for Dover Village, Phase One, an office-retail complex. "18. On January 6, 1987, Kanareff submitted development plans for a fourth building, to be constructed in conjunction with Dover Village. "19. On March 2, 1987, the Westlake Planning Commission approved this second phase of Dover Village. "20. On February 11, 1987, Kanareff filed an application to amend the zoning map for the Subject Property from residential to general business. "21. On February 24, 1987, the Planning/Zoning/ Legislative Committee of the Westlake City Council referred Kanareff's initial rezoning request to the Westlake Planning Commission for review and recommendation. "22. On October 30, 1987, Robert M. Parry, Director of Planning and Economic Development, addressed a memorandum to the Westlake Planning Commission, which fully outlines considerations for review of Kanareff's request for rezoning. "23. On November 2, 1987, the Westlake Planning Commission conducted an informal work meeting to review Kanareff's request for rezoning. "24. In June, 1988 and thereafter, Kanareff exchanged correspondence with the Berkeley/Forest Park Homeowner's Association, representing the interest of neighboring property owners, and the association responded in an effort to recommend alternatives to the Westlake Planning Commission. "25. On July 26, 1988, Kanareff filed a second application to amend the zoning map for the Subject Property from residential to general business and office building. This second application revised Kanareff's request by seeking office building rather than general business use for the rear portion of his property. "26. Westlake Ordinance No. 1988-196 was drafted pursuant to Kanareff's second application. "27. On August 26, 1988, Kanareff's revised rezoning request was heard by the Planning/Zoning/ - 6 - Legislative Committee of Westlake City Council, resulting in a recommendation that the requested change be to office building only. Accordingly, Ord. No. 1988-196 was amended by substituting office building for general business and office building. "28. On September 1, 1988, Westlake Ord. No. 1988-196 was referred by Westlake City Council to Westlake Planning Commission. "29. On October 12, 1988, Robert M. Parry, Director of Planning and Economic Development, addressed a memorandum to the Westlake Planning Commission which offered alternatives should the Commission consider rezoning of the Subject Property to general office use. "30. On October 17, 1988, Westlake Planning Commission unanimously denied recommendation of Westlake Ord. No. 1988-196. "31. On November 3, 1988, Westlake Ord. No. 1988- 196 was read for a second time by the Westlake City Council. "32. On December 1, 1988, after due notice and public hearing on Ord. No. 1988-196, Westlake City Council unanimously defeated the rezoning request. "33. On January 6, 1988, Kanareff filed his complaint for declaratory Judgment and other relief pursuant to O.R.C. Chapter 2721. "34. When Kanareff purchased the five parcels, part of which is the Subject Property, all five parcels were zoned single family residential. "35. Kanareff is a knowledgeable and sophisticated land developer in Westlake, and he was aware of he [sic] zoning of the five parcels when he purchased them. "36. Prior to the development of Dover Village, there was ready access to all five parcels. "37. Kanareff sold the five parcels with the Dover Village development to new-party plaintiff, Joseph Feghali, for $1,700,000. "38. General office building zoning in Westlake has the following performance standards: - 7 - "A. Maximum height of 50 feet (5 stories); "B. Minimum 10 foot buffer zone next to adjacent properties; "C. Minimum parking setback of 20 feet from adjacent property line; "D. Minimum building setback of 40 feet to a three story office building; "E. Lighting is only limited to the extent that it may not be directed upon the neighboring properties; "F. The maximum square footage of general office building which would fit on this property is 160,000 square feet with 672 parking spaces. "39. Kanareff's planner, Robert Hill, stated that he would only recommend office building zoning on the Subject Property with specific limitations not contained in the Westlake Codified Ordinances. "40. Robert Hill stated that ten feet of buffering between residential zoning and general office building is insufficient. "41. Kanareff's expert appraiser, Roger Ritley, provided no calculations of land values or development costs. "42. Roger Ritley did not provide any comparable properties to determine the value of the Subject Property." III. Appellant's assignments of error are as follows: "I. The decision of the trial court which upheld the zoning classification of the subject parcel as constitutional was not supported by competent, credible evidence. "II. The decision of the trial court which upheld the zoning classification of the subject parcel as constitutional was against the manifest weight of the evidence. - 8 - "III. The trial court erred as a matter of law in concluding that the Plaintiff had the burden of proving the zoning ordinance unconstitutional by taking the validity of the zoning ordinance beyond fair debate. "IV. The trial court erred as a matter of law in concluding that the Plaintiff had failed to meet the burden of proof by failing to prove the zoning ordinance unconstitutional by taking the validity of the zoning ordinance beyond fair debate." Appellants' first and second assignments of error address the same issues and will be treated together. Appellants' third and fourth assignments of error will also be treated together. Appellants, in their first and second assignments of error, argue that the trial court's upholding of the constitutionality of appellee's zoning classification was not supported by credible evidence and was against the manifest weight of the evidence. Appellants argue that the development of single family residences would result in an economic loss and a severe diminution in value of the property. Appellants base their argument on the testimony of their expert witness, Rojer Ritley. Rojer Ritley testified that it would cost in excess of $30,000, for appellant to develop the subject property. On cross-examination, Mr. Ritley, in an attempt to resolve the conflict in his testimony and that of Mr. Kanareff, who testified that it would cost less than $10,000 to develop, conceded that Mr. Kanareff's cost of less than $10,000 was more reasonable than the $30,000 he testified to on direct. The trial court concluded from the testimony of various witnesses including appellants' expert witness, Mr. Ritley, that the cost of developing a single family - 9 - residential lot in Westlake would cost between $20,000 and $22,000. Neither the appellants nor their expert witness, Mr. Ritley, presented any appraisal on the property in question, or any comparable properties showing a land development cost analysis. The Ohio Supreme Court in Columbia Oldsmobile Inc. v. City of Montgomery (1990), 56 Ohio St. 3d 60, 62, held that: "'* * * In order to invalidate a zoning regulation on constitutional grounds, the parties attacking it must demonstrate, beyond fair debate, that the zoning classification denies them the economically viable use of their land without substantially advancing a legitimate interest in the health, safety, or welfare of the community. * * * Ketchel v. Bainbridge Twp. (1990), 5 Ohio St. 3d 239, 243, 557 N.E.2d 779 793, citing Karches v. Cincinnati (1988), 38 Ohio St. 3d 12, 19, 526 N.E. 2d 1350, 1357. See Mayfield-Dorsh Inc. v. South Euclid (1981), 68 Ohio St. 2d 156, 22 O.O. 3d 388, 429 N.E.2d 159; Brown v. Cleveland (1981), 66 Ohio St. 2d 93, 20 O.O. 3d 88, 420 N.E. 2d 103; Superior Uptown, Inc. v. Cleveland (1974), 39 Ohio St. 2d 36, 68 O.O.2d 21, 313 N.E.2d 820; see, also, Penn Central Transp. Co. v. New York City (1978), 438 U.S. 104; Goldblatt v. Hempstead (1962), 369 U.S. 590; Euclid v. Ambler Realty Co. (1926), 272 U.S. 365." Thus, appellants have to pass the two-prong test of (1) demonstrating that they were denied a viable economic use of their land, and (2) that the City did not substantially advance a legitimate interest in the health, safety, or welfare of the community. The trial court found that eight to ten lots could be developed on the property in question at a total development cost of between $20,000 to $22,000 per lot. The court found that they could be sold as improved lots from $50,000 to $70,000, which could yield a gross profit to appellants in the amount of $224,000 to $500,000. The court arrived at this conclusion based - 10 - on the average sale price for new homes in Westlake which ranges between $159,000 to $400,000. Appellants' expert witness, Mr. Ritley, testified that the homes only sold between $80,000 and $120,000, but failed to show that even with his own figures appellants will not derive a reasonable profit. This court held in Central Motors Corp. v. Pepper Pike (1979), 63 Ohio App. 2d 34, that: "The validity of a zoning ordinance is fairly debatable if reasonable minds may differ. A mere difference of opinion is not sufficient to make the issue of the validity of a zoning ordinance fairly debatable because it is relatively easy for a property owner and a municipality to obtain the services of expert witnesses who will have different opinions as to the validity of a zoning ordinances [sic]. The fairly debatable rule must concern itself not with mere words or expressions of opinion, but basic physical facts pertinent to the issue of the validity of the zoning ordinances. "Where it appears from all the facts that room exists for a difference of opinion concerning the reasonableness of a zoning classification, the legislative judgment is conclusive. Within reasonably debatable areas of judgment and policies, a Court will not attempt to decide what ought to be done or not done by local zoning authorities. Only where illegality is clearly demonstrated or where the ordinances is arbitrary, unreasonable or discriminatory is judicial interference warranted. (Central Motors v. Pepper Pike, supra, 409 N.E.2d at 272 and See the Syllabus of the Court at paragraph 2.)" Since the trial court was presented with competent credible evidence that a viable development scheme of the property in question would yield a profit, there is, therefore, sufficient evidence before it to justify its ruling that the City's zoning ordinance did not "beyond fair debate", deny appellants an economically viable use of their land, Columbia Oldsmobile, - 11 - supra; Ketchel v. Bainbridge Twp., supra, and that appellants failed to prove otherwise. Having determined that the zoning ordinance leaves appellants with an economically feasible utilization of their land we must decide whether the zoning ordinance substantially advances the City's legitimate interest in health, safety, or welfare of the community. Columbia Oldsmobile, supra. "A court will uphold a zoning ordinance in the face of a constitutional challenge, unless the party challenging the ordinance can prove 'beyond fair debate' that a city's interests in restricting the use of that land were neither legitimate nor substantially advanced by such a restriction." Ketchel v. Bainbridge, supra. The trial court held that appellants did not prove beyond fair debate, that the present zoning classification is unreasonable and not necessary to the health, safety and welfare of the municipality. We agree. Appellants argue that the city failed "to prove that the present zoning classification substantially advances the health, safety and welfare of the community. * * *" Appellants further argue that the City's refusal to grant their request was solely based on the disagreement between the neighboring homeowners and themselves. A legislatively enacted municipal zoning ordinance is presumed constitutional, Brown v. Cleveland (1981), 66 Ohio St. 2d 93, and the burden of proving its unconstitutionality lies on the party challenging the ordinance. The trial court determined that rezoning the subject property for office building use would have an adverse impact upon the residential neighborhood. The record - 12 - shows that the subject property is bordered on three sides by land zoned for single family, residential purposes. Appellants' proposal to rezone the area for office building use would no doubt substantially deviate from the nature and actual use of the surrounding properties. As the trial court found, rezoning would give appellants legal backing to construct any structure permitted by the City code in an office building district without consideration to the impact such construction will have on the residential homes. The record shows that the subject property is heavily wooded, with foliage, providing a natural buffer between existing single-family residences and the subject property. A construction of an office building will result in clearing of the woods and expose the single family residences to the proposed office building and also to the commercial activity at Dover Village. Appellants' expert, Robert Hill, recognized the possible impact on the residential neighborhood when he testified that he would not condone an office building without placing greater limitations on its size and placement than presently allowed by the City code. Since we cannot separate the adverse impact on the residents of the surrounding property from the impact on the community, we find that the City's zoning scheme which provides that certain areas in its municipality be developed as a residential cul-de-sac to preserve the natural setting of the area and secure a natural buffer for the single family residences is a legitimate interest in health, safety, and welfare of the - 13 - community. See FRC of Kamms Corner v. Cleveland Bd. of Zoning Appeals (1984), 14 Ohio App. 3d 372; Consolidated Light, Inc. v. Cleveland (1983), 6 Ohio St. 3d 328. It is a settled law in Ohio that judgment supported by competent, credible evidence going to all the material elements of the case must not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. Every reasonable presumption must be made in favor of the judgment and the findings of facts. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77. Lastly, if the evidence is susceptible of more than one construction, we must give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the trial court's verdict and judgment. Seasons Coal Co., supra; Gates v. Bd. of Edn. of River Local School Dist. (1967), 11 Ohio St. 2d 83; Ross v. Ross (1980), 64 Ohio St. 2d 203; Karches v. City of Cincinnati (1988), 38 Ohio St. 3d 12. Accordingly, appellants' first and second assignments of error are overruled. III. Appellants, in their third and fourth assignments of error, argue that the trial court erred by concluding that they have the burden of proving the zoning ordinance unconstitutional by taking the validity of the zoning ordinance beyond fair debate. Appellants argue that since their rezoning request is consistent with the City Guide Plan's proposed zoning classification they should be subject to a lesser standard of proof. Appellants' - 14 - argument has no merit. The Ohio Supreme Court, in Karches, supra, held that: "To strike a zoning ordinance on constitutional grounds appellants must demonstrate, beyond fair debate, that the zoning classification is unreasonable and not necessary to the health, safety and welfare of the municipality. Mayfield-Dorsh, Inc. v. South Euclid (1981), 68 Ohio St. 2d 156, 22 O.O.3d 388, 429 N.E.2d 159. See, also, Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 395, 47 S.Ct. 114, 71 L.Ed. 303; Goldblatt v. Hempstead (1962), 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130. Appellants must demonstrate that the ordinance denies to them the economically viable use of their land without substantially advancing a legitimate government interest. Superior Uptown, supra; Agins, supra; Penn Central Transp. Co. v. New York City (1978), 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631. See, also, Ruckelshaus v. Monsanto Co. (1984), 467 U.S. 986, 104 S.Ct. 2862, 81 L.Ed.2d 815." The law remains that a party seeking to have a zoning ordinance declared unconstitutional bears the burden of proving that the ordinance is unreasonable, arbitrary, confiscatory and not based on the public health, safety, morals and general welfare. Central Motors Corp., supra. Appellants did not attack the Guide Plan but the Ordinance. The Ordinance is the law, the Guide Plan is what it is, a guide. This court addressed the issue of Guide Plans in Central Motors Corp., supra, and refused to give it a force of law. Thus, in the within case, we hold that a Guide Plan is a helping tool, which is not intended to create its own burden of proof. Appellants stated in their brief: "Thus, in order to develop the property in the manner he sees fit, the plaintiff had no alternative but to file a declaratory judgment action to declare the zoning ordinance unconstitutional." In another section of their brief, appellants argued: "Furthermore, - 15 - the City did not offer any evidence to rebut the assumption [as set forth in footnote 2 page 35, supra] that the Plaintiff's request for rezoning was to enable him to more economically develop his property." Appellants' brief and the record suggest that because they could not develop the subject property as they saw fit to obtain a larger profit the ordinance should be declared unconstitutional. We reject such reasoning in the within case as we did in Mintz v. Village of Pepper Pike (1978), 57 Ohio App. 2d 105, as not being a sound ground for challenging a constitutionality of a city ordinance. An act of government (local, state or federal) is not declared unconstitutional because a party cannot have his way. A party seeking to declare a governmental action unconstitutional must show that the action is an infringement to the rights protected by the constitution and has the burden of proving the injury he sustained as a result of the infringement. Accordingly, appellants' arguments are insufficient to overturn the city's ordinance, and their third and fourth assignments of error are overruled. Appellee argues that the trial court committed prejudicial error by denying its motion for a directed verdict. Since appellee failed to renew its motion for directed verdict at the close of all evidence, it is precluded from raising it on appeal. Helmick v. Republic-Franklin Insurance Co. (1988), 39 Ohio St. 2d 71. Appellee's argument lacks merit and is overruled. Judgment of the trial court is affirmed. - 16 - It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. Exceptions. DYKE, P.J., and WEAVER, J.*, CONCUR. SARA J. HARPER JUDGE *Judge Margaret K. Weaver, Sandusky County Common Pleas Court, sitting by assignment. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. .