COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68397 L & L LAND COMPANY : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION CITY OF MAYFIELD HEIGHTS, ET AL : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 19, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-271981 JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: MARVIN L. KARP Ulmer & Berne 900 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114-1583 For Defendant-Appellant: LEONARD F. CARR DALE C. FENELI LESLIE Y. SPENCER Carr, Feneli & Carbone 1392 SOM Center Road Mayfield Heights, Ohio 44124 - 2 - O'DONNELL, J.: Appellant, the City of Mayfield Heights, appeals from the trial court's judgment declaring the city's zoning ordinance unconstitutional as applied to L & L Land Company's property and its subsequent order to the city to rezone the property according to L & L's proposed use. We conclude that L & L failed to meet its burden of proof on the constitutional issue and, therefore, we reverse. The subject property, situated on the south side of Landerhaven Drive, east of Lander Road, consists of 11 contiguous parcels and comprises 11.7 acres in the City of Mayfield Heights. It is bordered on the south and west by single family zoned uses, on the east by a four acre single family condominium planned urban development, and on the north, across Landerhaven Drive, by Executive Caterers and the Allen Bradley world headquarters. L & L argues the presence of these business uses and accompanying traffic renders the subject property not suitable for single family use. The subject property was zoned U-1 single family when L & L purchased it in 1987, and the only development on it occurred in the 1950's when two ranch homes were built. In 1992, L & L approached the Mayfield Heights Planning Commission and proposed an adult apartment complex and nursing home project for the property. The Commission rejected the nursing home concept, but seemed amenable to the apartment - 3 - complex. L & L then redrafted its proposal for adult garden apartments, smaller than the city's zoning code permitted. The commission suggested that L & L draft a new ordinance to accommodate its plan, L & L complied, and proposed ordinance 1993-23 to create a new zoning classification and ordinance 1993- 24 to change L & L's property to the proposed classification. The Planning Commission approved proposals, but the Mayfield Heights City Council rejected both and neither ordinance was ever adopted. L & L then filed two actions in Common Pleas Court which were consolidated for trial. In Case No. 256771, L & L appealed from the council's failure to pass the proposed ordinances, in Case No. 271981, it sought, inter alia, judicial declaration that council's refusal to rezone the subject property was unconstitutional. After a bench trial, the trial court dismissed Case No. 256771 because the legislative actions of council are not appealable to court, and declared in Case No. 271981, the existing zoning ordinance unconstitutional and ordered the city to rezone the property according to L & L's proposed use. The city now appeals the court's determination in Case No. 271981 and assigns five errors for our review. I. THE TRIAL COURT ERRED WHEN IT HELD THAT THE APPELLANT MUNICIPALITY'S ZONING OF THE SUBJECT PROPERTY WAS AN UNCONSTITUTIONAL DEPRIVATION OF - 4 - THE RIGHTS OF THE APPELLEE LANDOWNERS IN THE USE OF ITS LAND. The city argues the existing ordinance is constitutional because L & L failed to prove, beyond fair debate, both that the current zoning constituted a deprivation of viable economic use of the land and did not advance a legitimate governmental interest. In contrast, L & L contends the trial court properly declared the ordinance unconstitutional because it found the ordinance denied L & L an economically viable use of the property without substantially advancing a legitimate governmental interest. The issue before us, then, is whether the trial court properly held the current zoning unconstitutional. In Gerijo, Inc. v. Fairfield (1994), 70 Ohio St.3d 223, the Ohio Supreme Court announced a dual-standard conjunctive test which requires a party challenging a zoning ordinance to prove, beyond fair debate, both that the zoning ordinance denies the owner an economically viable use of the property and does not substantially advance a legitimate interest in the health, safety or welfare of the community. In Cent. Motors Corp. v. Pepper Pike (1995), 73 Ohio St.3d 581 at 585, the Ohio Supreme Court recently reaffirmed its holding in Gerijo stating: [I]n order to invalidate a zoning ordinance on constitutional grounds, the party attacking the regulation must establish, beyond fair debate, that the zoning classification denies the owner an economically viable use of the zoned property and that the zoning classification fails to advance a legitimate governmental interest. - 5 - In this case, there is disputed evidence regarding the denial of an economically viable use of the property due to the existing zoning. The city and L & L each presented experts who testified in support of their respective positions regarding the ability to successfully develop the subject property. Here, however, we need not determine whether the trial court erred in finding there was no economically viable use, because the record reveals L & L did not present any evidence to prove beyond fair debate that the existing ordinance does not substantially advance a legitimate interest in the health, safety or welfare of the community. The only evidence addressing this aspect of Gerijo, supra, begins on page 193 of the trial transcript. L & L's expert witness, Robert C. Hill, was asked: Q. In your opinion, does the city's refusal to rezone this particular property so as to permit it to be used for garden apartments substantially advance the health, safety and welfare of the community? A. I don't believe so. This testimony only addresses the city's failure to rezone the property to a new classification, but does not address the issue of the city's similar interests in maintaining the current zoning for this property. As the Ohio Supreme Court pointed out in Cent. Motors Corp., "[w]hether CMC's proposed ordinance might 'better' advance the stated governmental interest does not advance the issue of whether the [current] zoning ordinance advances a legitimate government interest." Id. at 586. Because L & L presented no - 6 - evidence that the current zoning fails to advance a legitimate governmental interest, L & L did not meet its burden of proof as required by Gerijo and Central Motors. Therefore, in conformity with the holding in Gerijo and in Central Motors, which we are constrained to follow, we hold the trial court erred in finding the ordinance unconstitutional. Accordingly, the first assignment of error is well-taken. II. THE TRIAL COURT ERRED BY GRANTING TO APPELLEE LANDOWNER A RE-ZONING CLASSIFICATION NOT INCLUDED IN THE APPELLANT MUNICIPALITY'S ZONING CLASSIFICATIONS The city contends the trial court erred in its order which stated in part: *** [T]he zoning authority *** is hereby given notice that within a reasonable time, which this Court finds to sixty days certain, it may rezone the property, as requested by plaintiff, to the U- 3 garden-style apartments use as set forth in defendant's Ordinances Nos. 1993-23 and 1993-24. If not rezoned accordingly within such period of time, the Court hereby authorizes the plaintiff property owner to proceed with the proposed use, as set forth in those two ordinances, which the Court determines hereby to be reasonable. Further, the city urges the holding of Union Oil Co. v. Worthington (1980), 62 Ohio St.2d 263, requires rezoning according to the city's own choosing and that only if the city fails to rezone or fails to rezone in a constitutional manner should the court rule on reasonableness and authorize the property owner to proceed with the proposed development. L & L claims the trial court correctly followed the mandate of Union - 7 - Oil and appropriately ruled on reasonableness at trial in the interest of judicial economy. In Union Oil the court specifically directed how a trial court should proceed after finding a zoning ordinance unconstitutional: Thus, in 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. Id. at 267. The court in Union Oil recognized that several classifications may be constitutional as applied to the property in question and stated that "the choice between various reasonable alternatives is best left to the legislative body, rather than being usurped by the judiciary." Id. at 266. In this case, the trial court ordered the city to rezone the property "as requested by the plaintiff" instead of giving the city council the right to rezone the parcel, at its option, to whatever category it so desired. Since, Union Oil directs that upon finding of existing zoning unconstitutional, the matter should be returned to the legislative authority for rezoning at the option of the zoning authority, the court improperly applied Union Oil. Because we are bound to follow Union Oil, we hold the trial court erred in its order directing the manner in which the - 8 - city council must rezone the subject property. Accordingly, the second assignment of error is also well-taken and the court's order is hereby vacated. III. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT MUNICIPALITY'S MOTION FOR A DIRECTED VERDICT. IV. THE TRIAL COURT'S PREDISPOSITION AND BIAS AGAINST APPELLANT MUNICIPALITY DID NOT AFFORD APPELLANT A FAIR AND COMPLETE TRIAL. V. THE TRIAL COURT ERRED IN OVERRULING APPELLANT MUNICIPALITY'S MOTION IN LIMINE TO EXCLUDE TESTIMONY OF APPELLEE LANDOWNER'S EXPERT. Because our determination of the first two assignments of error renders moot the determination of the remaining assignments of error, App. R. 12(A)(1)(c) directs we shall not decide them. The judgment of the trial court declaring the existing zoning ordinance unconstitutional is reversed and the order issued to council to rezone the property is vacated. - 9 - This cause is reversed. It is, therefore, considered that said appellant(s) recover of said appellee(s) 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. DAVID T. MATIA, P.J., and JAMES M. PORTER, CONCUR JUDGE TERRENCE O'DONNELL 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, .