COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73241 MICHAEL A. SHEMO, CO-TRUSTEE, : et al. : : JOURNAL ENTRY Plaintiffs-Appellees : : AND v. : : OPINION CITY OF MAYFIELD HEIGHTS, OHIO : et al. : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 20, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-291595 JUDGMENT: JUDGMENT VACATED AND CAUSE REMANDED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: For Plaintiffs-Appellees: For Defendants-Appellants: TIMOTHY J. GRENDELL LEONARD F. CARR STEVEN A. TARGOVE LESLIE Y. SPENCER Grendell & Targove L. BRYAN CARR 6060 Rockside Woods Blvd. #250 Carr, Feneli & Carbone, L.P.A. Independence, Ohio 44131 1392 S.O.M. Center Road Mayfield Heights, Ohio 44124 GEORGE L. FORBES SCOTT H. SCHOOLER Forbes, Forbes & Associates 700 Rockefeller Bldg. 614 Superior Avenue Cleveland, Ohio 44113 MARK A. FERGUSON Taft, Stettinius & Hollister 600 Bond court Building 1300 East Ninth Street Cleveland, Ohio 44114 -2- TERRENCE O'DONNELL, PRESIDING JUDGE: This is the second time this matter has been appealed to our court. Initially, in 1995, Michael A. Shemo and Larry Goldberg, co- trustees of a 22.6 acre parcel of land located in the City of Mayfield Heights abutting I-271 on the east, Bonnie Lane on the west, Ridgebury Boulevard on the north, and Maplewood Road to the south, filed a complaint in the common pleas court contesting the constitutionality of the residential zoning of the property, and seeking to have the property re-zoned to permit retail and warehouse usage. The court conducted a bench trial, viewed the premises, and, after hearing all the evidence, determined in accordance with Gerijo, Inc. v. Fairfield (1994), 70 Ohio St.3d 223, that the residential zoning failed to substantially advance a legitimate health, safety or welfare concern, and denied an economically feasible use of the property to the owner; on that basis, the trial court declared the residential zoning to be arbitrary, capricious, and unconstitutional. Upon appeal by the city of that decision to our court, we remanded the matter to the trial court for a further determination as to the reasonableness of the owner's proposed retail and warehouse use of the property, as mandated by Union Oil Co. v. Worthington (1980), 62 Ohio St.2d 263, and, following our remand, the court found that proposed use to be a reasonable one. The City of Mayfield Heights now again appeals from these same Common Pleas Court determinations, seeking our review of them, and -3- raises the following seven assignments of error concerning the constitutionality of the residential zoning and the reasonableness of the retail and warehouse usage: I. THE TRIAL COURT ERRED BY FAILING TO FIND THAT PLAINTIFFS-APPELLEES LANDOWNERS WERE SINGULARLY RESPONSIBLE FOR THE SELF-INFLICTED HARDSHIP TO THE SUBJECT PROPERTY AND FOR ANY DEGRADATION TO THE VALUE OF THE SUBJECT PROPERTY THUS PRECLUDING THE GRANT OF THE REQUESTED ZONING, ALL OF WHICH IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO ADVANCEMENT OF A LEGITIMATE GOVERNMENTAL INTEREST IN THE HEALTH, SAFETY AND WELFARE OF THE COMMUNITY BY MAINTAINING THE CURRENT ZONING OF THE SUBJECT PROPERTY, ALL OF WHICH IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. III. THE TRIAL COURT'S FINDING THAT THE LAND IS UNINHABITABLE AS CURRENTLY ZONED IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. IV. THE TRIAL COURT ERRED BY FINDING THAT THE SUBJECT PROPERTY AS CURRENTLY ZONED DENIES PLAINTIFFS-APPELLEES AN ECONOMICALLY FEASIBLE (VIABLE) USE OF THE LAND. V. DEFENDANTS-APPELLANTS WERE UNFAIRLY PREJUDICED BY THE LAST MINUTE APPEARANCE OF ATTORNEY GEORGE FORBES. VI. THE TRIAL COURT ERRED BY REFUSING TO CONSIDER THE TESTIMONY OF THE DEFENDANTS- APPELLANTS' EXPERTS RELATIVE TO THE ECONOMIC VIABILITY OF THE DEVELOPMENT OF THE SUBJECT PROPERTY AS CURRENTLY ZONED. VII. THE TRIAL COURT'S FINDING THAT PLAINTIFFS-APPELLEES' PROPOSED RETAIL PLAN WAS REASONABLE WAS ERROR AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. -4- On this appeal, the city contends the trial court erred when it declared the residential zoning unconstitutional and found the retail and warehouse usage to be reasonable. We recognize that appellees urge the court properly determined these matters. Here, the record demonstrates that the trial court judge followed the law then in effect as articulated in Gerijo, Inc. v. Fairfield, supra, and Union Oil Co. v. Worthington, supra. However, subsequent to the trial court's determinations, and prior to our consideration of the matters raised on this appeal, the Ohio Supreme Court in Goldberg Cos., Inc. v. Richmond Hts. City Council (1998), 81 Ohio St.3d 207 modified the Gerijo, Inc. v. Fairfield, supra standard in part, re-established the standard articulated in Euclid v. Ambler Realty Co. (1926), 272 U.S. 365 as applicable to constitutional challenges involving zoning regulations, and stated in its syllabus: A zoning regulation is presumed to be constitutional unless determined by a court to be clearly arbitrary and unreasonable and without substantial relation to the public health, safety, morals, or general welfare of the community. In its opinion at 214, the court further stated: The burden of proof remains with the party challenging an ordinance's constitutionality, and the standard of proof remains beyond fair debate. See [Cent. Motors Corp. v. Pepper Pike (1995), 73 Ohio St.3d 581] at 584, 653 N.E.2d at 642. -5- The timing of the modification by the Ohio Supreme Court in the applicable law precludes our consideration of the assignments of error advanced by the city in this case. The reason this is so is best stated in the per curiam opinion in The Peerless Electric Co. v. Bowers (1955), 164 Ohio St. 209, at 210: * * *. The general rule is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former was bad law, but that it never was the law. * * *. We, of course, recognize that the supreme court did not specifically overrule Gerijo, Inc. v. Fairfield, supra, but merely modified its application in accordance with Euclid v. Ambler Realty Co., supra. Nonetheless, a decision of the Ohio Supreme Court shall be applied retroactively unless a specific provision declares its application to be prospective only. See N. Olmsted v. Eliza Jennings, Inc. (1993), 91 Ohio App.3d 173. See, also, O'Connor v. Zimmer (1995), 104 Ohio App.3d 143. Accordingly, as the trial court never had an opportunity to apply the law as articulated in Goldberg Cos., Inc. v. Richmond Hts. City Council, supra, to this case, we now vacate the judgment of the trial court and remand the matter for a determination by that court in conformity with that prevailing standard of review. Judgment vacated and cause remanded. -6- Judgment vacated and cause is remanded to the lower court for further proceedings consistent with this opinion. Costs to be divided equally between appellees and appellants. 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. TIMOTHY E. McMONAGLE, J., JAMES D. SWEENEY, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .