Columbia Oldsmobile, Inc. v. City of Montgomery

564 N.E.2d 455, 56 Ohio St. 3d 60, 1990 Ohio LEXIS 1715
CourtOhio Supreme Court
DecidedDecember 12, 1990
DocketNo. 89-1132
StatusPublished
Cited by36 cases

This text of 564 N.E.2d 455 (Columbia Oldsmobile, Inc. v. City of Montgomery) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Columbia Oldsmobile, Inc. v. City of Montgomery, 564 N.E.2d 455, 56 Ohio St. 3d 60, 1990 Ohio LEXIS 1715 (Ohio 1990).

Opinions

Per Curiam.

This case presents the question of whether a trial court must uphold a municipal zoning ordinance when there is competent, credible evidence that the ordinance allows the landowners to retain an economically viable use of their land and that the ordinance substantially advances a legitimate governmental interest in the health, safety or welfare of the community. We answer this question in the affirmative. Thus, we must reverse the judgment of the court of appeals and reinstate the decision of the trial court.

“* * * 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), 52 Ohio St. 3d 239, 243, 557 N.E. 2d 779, 783, 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, we must employ a two-part analysis to pass on the constitutional validity of a zoning ordinance. We will first determine whether the zoning ordinance allowed the landowner, Columbia Oldsmobile, an economically feasible utilization of its 11.5-acre parcel. We must next determine whether the ordinance permissibly advanced a legitimate interest of the city of Montgomery. Mayfield-Dorsh, Inc., supra.

I

We turn first to our discussion of economic feasibility. Ordinarily, a zoning ordinance is not confiscatory so long as the owner is not deprived of the reasonable use of his property. Valley Auto Lease of Chagrin Falls, Inc. v. Auburn Twp. Bd. of Zoning Appeals (1988), 38 Ohio St. 3d 184, 527 N.E. 2d 825, syllabus. However, a zoning ordinance that deprives an owner of all uses except those which are highly improbable or practically impossible under the circumstances is impermissibly restrictive. Id. at 186, 527 N.E. 2d at 827; Negin v. Mentor Bd. of Bldg. & Zoning Appeals (1982), 69 Ohio St. 2d 492, 23 O.O. 3d 423, 433 N.E. 2d [63]*63165; Superior Uptown, Inc. v. Cleveland, supra.

Among the trial court’s findings of fact and conclusions of law is the specific finding that “[p]laintiff can obtain a fair and reasonable profit if the subject property is developed in accordance with existing zoning.” Based upon the evidence, the court went on to note that “* * * [a] viable, marketable and profitable single family residence subdivision can be developed on the rear 11.5 acres of the subject property, consistent with its surrounding land uses. A viable, marketable, and profitable 30,000 square foot retail shopping center can be developed on the [5.1-acre] Retail ‘E’ frontage of the subject property.”

The court of appeals reversed these findings, based upon four factors. First, the court believed that Columbia’s 11.5-acre parcel is located within the Montgomery Road commercial corridor, a heavily developed and concentrated business area. Second, the court noted that Columbia’s adjoining 5.1-acre parcel is already zoned “E” retail. Third, the court averred that the city in 1982 passed an ordinance to allow the planned development of the property directly north of Columbia’s property and in 1985 approved a resolution to allow for the commercial use of the property directly across Montgomery Road from Columbia’s 5.1-acre parcel. Fourth, the court acknowledged the previous uses of the site as a drive-in theater and storage site for highway equipment. The court stated that these factors combined to make Columbia’s 11.5-acre parcel unsuitable for the residential development required to comply with the parcel’s “A” residential zoning classification.

At trial, Jerry Devitt, a professional real estate broker and appraiser and former president and director-treasurer of the Cincinnati Board of Realtors, testified that the 11.5-acre rear parcel is worth $135,000, or approximately $11,700 per acre when undeveloped and zoned as “A” residential. He further stated that the 5.1-acre retail frontage parcel is worth $1,750,000, or approximately $350,000 per acre when undeveloped and zoned “E” retail. Devitt noted that the major portion of the value of commercial properties is found in the frontage. David N. Tipton, a commercial real estate developer, opined that the entire 16.6 acres, if undeveloped and zoned as retail, would be worth $3,154,000, or approximately $190,000 per acre.

However, the majority of the trial court’s attention was occupied by testimony concerning the efficacy of profitably developing these two parcels. As Columbia and Montgomery-each attempted to address whether it would be feasible to construct a single-family home subdivision on the 11.5-acre parcel, the parties presented conflicting evidence regarding the price that a new single-family home built in such a subdivision might command.

Columbia’s witness, West Shell, chairman of a single-family home listing agency, testified that a single-family home built in the new development would command a maximum price of only about $150,000. He based this conclusion in part upon the fact that the most expensive home in Governor’s Watch, the adjoining subdivision, sold for $131,000. Shell averred that a $150,000 price per home would reflect a return on investment too low to justify undertaking such an enterprise.

Montgomery’s witness, Jerry Devitt, testified regarding new home sales in comparable locations in the Sycamore School District where the subject 11.5-acre parcel is located. The asking price of those homes ranged from just over $200,000 to nearly [64]*64$290,000. Additionally, Kenneth R. Campbell, a professional developer of single-family homes, testified that Multiple Listing Service data from the Cincinnati Board of Realtors revealed that the overwhelming majority of new single-family homes with three or more bedrooms in the Sycamore School District listed from $200,000 to $470,000. Columbia’s witness, West Shell, acknowledged the general accuracy of these figures and also acknowledged that homes priced at $200,000 through $250,000 would be in the low range of new homes sold in the Sycamore School District.

Campbell and another Montgomery witness, Ronald K. Edgerton, a professional city planner, architect, and consultant, testified regarding a two-phase plan they had developed to place a residential subdivision on the 11.5-acre parcel. The subdivision would consist of eighteen single-family homes on twenty-thousand-square-foot lots and would conform to Montgomery’s “A” residential zoning requirements. Campbell stated that each phase of the plan could yield a significant profit.

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Cite This Page — Counsel Stack

Bluebook (online)
564 N.E.2d 455, 56 Ohio St. 3d 60, 1990 Ohio LEXIS 1715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/columbia-oldsmobile-inc-v-city-of-montgomery-ohio-1990.