Donofrio, Judge.
{¶ 1} Plaintiffs-appellants and cross-appellees, Ronald Swiger, Mildred Rowland, and John and Theresa Litva, appeal from a Jefferson County Common Pleas Court decision granting summary judgment in favor of defendant-appellee and cross-appellant, the village of Richmond. The court held that disputed village ordinances are “valid and enforceable.”
{¶ 2} Appellants own property in Richmond, Ohio. The Litvas keep horses on their property for breeding, training, and giving riding lessons. Swiger and Rowland raise donkeys, goats, and chickens on their property and use the animals as attractions for their antique shop. When appellants purchased the land, there were no laws or regulations prohibiting property owners from keeping farm animals on their property.
{¶ 3} Subsequently, a group of citizens in favor of the prohibition of farm animals in the village placed a proposed ordinance on the ballot through an initiative petition. The voters passed the initiative petition on November 6, 2001, Ordinance No. 626, which prohibits “the keeping, harboring, fencing, penning, pasturing, or stabling of * * * fowl and farm or domesticated animals.”
{¶ 4} Richmond Village Council (“Council”) then passed Ordinance No. 505.15 as an enforcement mechanism for Ordinance No. 626. Ordinance No. 505.15
permits those who already own farm animals to keep farm animals and requires them to register the animals with the village.
{¶ 5} Appellants filed a complaint asking for damages and a declaration and judicial determination of rights and duties with respect to the enforcement of Ordinance Nos. 626 and 505.15. Appellants claimed that the recently passed legislation caused their farm animal businesses to suffer loss of income in the raising, maintaining, cultivating, breeding, and boarding of their animals.
{¶ 6} Appellants and appellee each filed summary judgment motions. The trial court granted summary judgment in favor of appellee, finding that the ordinances are valid and enforceable, and appellants are “permitted to maintain there [sic] non-conforming use in the manner and to the extent it existed on the effective day” of the passage of the Ordinances. In other words, appellants “may continue to possess the same number of animals possessed on the effective date of the Ordinances but this right is not limited to the identical animals that were owned at the time.” Appellants filed a timely notice of appeal on June 30, 2005.
{¶ 7} Appellants raise two assignments of error, the first of which states:
{¶ 8} “The court erred in granting defendant’s motion for summary judgment without a hearing.”
{¶ 9} Appellants contend that the trial court erred in granting summary judgment without a hearing, because they could have presented material evidence in support of their case through testimony and documents.
{¶ 10} Civ.R. 56(C) states that courts are to consider only “pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact” when ruling on summary judgment motions. Therefore, Civ.R. 56(C) does not allow for testimony to be presented in a summary judgment hearing.
{¶ 11} Further, Ohio appellate courts “uniformly agree that a trial court is not required to schedule an oral hearing on every motion for summary judgment.”
Hooten v. Safe Auto Ins. Co.,
100 Ohio St.3d 8, 2003-Ohio-4829, 795 N.E.2d 648, at ¶ 14. The trial court has discretion in deciding whether to grant a request for an oral hearing. Id. Here, there is no indication that appellants requested an oral hearing. - Thus, even if appellants did request an oral hearing, it would not be mandatory for the trial court to hold one. Therefore, we cannot conclude that the trial court abused its discretion in granting summary judgment without a hearing.
{¶ 12} Accordingly, appellants’ first assignment of error is without merit.
{¶ 13} Appellants’ second assignment of error states:
{¶ 14} “The court erred in allowing the village of Richmond to take plaintiffs’ property rights without just compensation.”
{¶ 15} Appellants now argue that by “drastically” restricting the uses of their property without compensation, their land has become less valuable. They contend that the ordinances constitute a taking as prohibited by the Fifth Amendment to the United States Constitution. However, they never made this argument in their summary judgment motion. Appellants’ summary judgment argument focused on whether the ordinances were properly passed and whether their enforcement was a valid exercise of police power by appellee. Irrespective, these ordinances did not result in the taking of appellants’ property in that they were not prohibited from using their property as they had in the past.
{¶ 16} Both Section 19, Article I of the Ohio Constitution and the Fourteenth and Fifth Amendments to the United States Constitution prohibit the government from taking private property for public use without just compensation.
Palazzolo v. Rhode Island
(2001), 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592;
State ex rel. R.T.G., Inc. v. State,
98 Ohio St.3d 1, 2002-Ohio-6716, 780 N.E.2d 998, ¶ 33. “The clearest sort of taking occurs when the government encroaches upon or occupies private land for its own proposed use.”
Palazzolo,
533 U.S. at 617, 121 S.Ct. 2448, 150 L.Ed.2d 592. However, this is not the only type of taking. For instance, governmental regulation of property can sometimes constitute a taking. See
Pennsylvania Coal Co. v. Mahon
(1922), 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (“[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking”).
{¶ 17} Furthermore, Section 3, Article XVIII of the Ohio Constitution grants Ohio municipalities the power to enact local police regulations. “A legislative body may enact legislation declaring that previously lawful activity will thereafter be deemed a nuisance. Such legislation will be upheld against constitutional challenge if it comes within the police power, i.e., if it has a real and substantial relation to the public health, safety, morals or general welfare of the public and is neither unreasonable nor arbitrary.”
Downing v. Cook
(1982), 69 Ohio St.2d 149, 150, 23 O.O.3d 186, 431 N.E.2d 995, 997. The appellant must demonstrate a “clear and palpable abuse of power” for a reviewing court to substitute its judgment for legislative discretion.
State v. Renalist, Inc.
(1978), 56 Ohio St.2d 276, 278, 10 O.O.3d 408, 383 N.E.2d 892.
{¶ 18} Here, appellants contend that their properties have effectively been “taken” because the ordinances have diminished their property values. But as noted above, appellants did not make this argument to the trial court when they moved for summary judgment.
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Donofrio, Judge.
{¶ 1} Plaintiffs-appellants and cross-appellees, Ronald Swiger, Mildred Rowland, and John and Theresa Litva, appeal from a Jefferson County Common Pleas Court decision granting summary judgment in favor of defendant-appellee and cross-appellant, the village of Richmond. The court held that disputed village ordinances are “valid and enforceable.”
{¶ 2} Appellants own property in Richmond, Ohio. The Litvas keep horses on their property for breeding, training, and giving riding lessons. Swiger and Rowland raise donkeys, goats, and chickens on their property and use the animals as attractions for their antique shop. When appellants purchased the land, there were no laws or regulations prohibiting property owners from keeping farm animals on their property.
{¶ 3} Subsequently, a group of citizens in favor of the prohibition of farm animals in the village placed a proposed ordinance on the ballot through an initiative petition. The voters passed the initiative petition on November 6, 2001, Ordinance No. 626, which prohibits “the keeping, harboring, fencing, penning, pasturing, or stabling of * * * fowl and farm or domesticated animals.”
{¶ 4} Richmond Village Council (“Council”) then passed Ordinance No. 505.15 as an enforcement mechanism for Ordinance No. 626. Ordinance No. 505.15
permits those who already own farm animals to keep farm animals and requires them to register the animals with the village.
{¶ 5} Appellants filed a complaint asking for damages and a declaration and judicial determination of rights and duties with respect to the enforcement of Ordinance Nos. 626 and 505.15. Appellants claimed that the recently passed legislation caused their farm animal businesses to suffer loss of income in the raising, maintaining, cultivating, breeding, and boarding of their animals.
{¶ 6} Appellants and appellee each filed summary judgment motions. The trial court granted summary judgment in favor of appellee, finding that the ordinances are valid and enforceable, and appellants are “permitted to maintain there [sic] non-conforming use in the manner and to the extent it existed on the effective day” of the passage of the Ordinances. In other words, appellants “may continue to possess the same number of animals possessed on the effective date of the Ordinances but this right is not limited to the identical animals that were owned at the time.” Appellants filed a timely notice of appeal on June 30, 2005.
{¶ 7} Appellants raise two assignments of error, the first of which states:
{¶ 8} “The court erred in granting defendant’s motion for summary judgment without a hearing.”
{¶ 9} Appellants contend that the trial court erred in granting summary judgment without a hearing, because they could have presented material evidence in support of their case through testimony and documents.
{¶ 10} Civ.R. 56(C) states that courts are to consider only “pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact” when ruling on summary judgment motions. Therefore, Civ.R. 56(C) does not allow for testimony to be presented in a summary judgment hearing.
{¶ 11} Further, Ohio appellate courts “uniformly agree that a trial court is not required to schedule an oral hearing on every motion for summary judgment.”
Hooten v. Safe Auto Ins. Co.,
100 Ohio St.3d 8, 2003-Ohio-4829, 795 N.E.2d 648, at ¶ 14. The trial court has discretion in deciding whether to grant a request for an oral hearing. Id. Here, there is no indication that appellants requested an oral hearing. - Thus, even if appellants did request an oral hearing, it would not be mandatory for the trial court to hold one. Therefore, we cannot conclude that the trial court abused its discretion in granting summary judgment without a hearing.
{¶ 12} Accordingly, appellants’ first assignment of error is without merit.
{¶ 13} Appellants’ second assignment of error states:
{¶ 14} “The court erred in allowing the village of Richmond to take plaintiffs’ property rights without just compensation.”
{¶ 15} Appellants now argue that by “drastically” restricting the uses of their property without compensation, their land has become less valuable. They contend that the ordinances constitute a taking as prohibited by the Fifth Amendment to the United States Constitution. However, they never made this argument in their summary judgment motion. Appellants’ summary judgment argument focused on whether the ordinances were properly passed and whether their enforcement was a valid exercise of police power by appellee. Irrespective, these ordinances did not result in the taking of appellants’ property in that they were not prohibited from using their property as they had in the past.
{¶ 16} Both Section 19, Article I of the Ohio Constitution and the Fourteenth and Fifth Amendments to the United States Constitution prohibit the government from taking private property for public use without just compensation.
Palazzolo v. Rhode Island
(2001), 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592;
State ex rel. R.T.G., Inc. v. State,
98 Ohio St.3d 1, 2002-Ohio-6716, 780 N.E.2d 998, ¶ 33. “The clearest sort of taking occurs when the government encroaches upon or occupies private land for its own proposed use.”
Palazzolo,
533 U.S. at 617, 121 S.Ct. 2448, 150 L.Ed.2d 592. However, this is not the only type of taking. For instance, governmental regulation of property can sometimes constitute a taking. See
Pennsylvania Coal Co. v. Mahon
(1922), 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (“[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking”).
{¶ 17} Furthermore, Section 3, Article XVIII of the Ohio Constitution grants Ohio municipalities the power to enact local police regulations. “A legislative body may enact legislation declaring that previously lawful activity will thereafter be deemed a nuisance. Such legislation will be upheld against constitutional challenge if it comes within the police power, i.e., if it has a real and substantial relation to the public health, safety, morals or general welfare of the public and is neither unreasonable nor arbitrary.”
Downing v. Cook
(1982), 69 Ohio St.2d 149, 150, 23 O.O.3d 186, 431 N.E.2d 995, 997. The appellant must demonstrate a “clear and palpable abuse of power” for a reviewing court to substitute its judgment for legislative discretion.
State v. Renalist, Inc.
(1978), 56 Ohio St.2d 276, 278, 10 O.O.3d 408, 383 N.E.2d 892.
{¶ 18} Here, appellants contend that their properties have effectively been “taken” because the ordinances have diminished their property values. But as noted above, appellants did not make this argument to the trial court when they moved for summary judgment. Appellate courts will not consider arguments that parties raise or for the first time on appeal.
Nasser ex rel. Nasser v.
Orthopaedic Assn. of Youngstown,
7th Dist. No. 01-CA-123, 2002-0hio-5208, 2002 WL 31172981, at ¶ 27. “Despite the fact that appellate courts review summary judgment decisions de novo, ‘[t]he parties are not given a second chance to raise arguments that they should have raised below.’ ”
Aubin v. Metzger,
3d Dist. No. 1-03-08, 2003-Ohio-5130, 2003 WL 22229400, at ¶ 10, quoting
Smith v. Capriolo
(Apr. 11, 2001), 9th Dist. No. 19993, 2001 WL 358387. Accordingly, an appellate court must limit its review of a summary judgment to that which was on record before the trial court. Id.
{¶ 19} Furthermore, appellants have not offered any evidence that the legislation was unreasonable, arbitrary, or unrelated to the general safety and welfare of the public. Also, there was no evidence of a taking because a taking did not occur. The electorate themselves made the determination that farm animals were not wanted in the village, presumably for health and safety reasons. The residents of the village of Richmond decided that it was reasonable and in the best interests of the community to restrict farm animals. There was no evidence that this was an abuse of police powers.
{¶ 20} Appellants have also not offered any evidence demonstrating that Council clearly and palpably abused its police power when it enacted Ordinance No. 505.15 to enforce Ordinance No. 626. Council passed Ordinance No. 505.15 as an enforcement mechanism and as a way to allow prior farm-animal owners to maintain ownership of farm animals. This was not an abuse of power by Council, but rather an attempt by Council to enforce the wishes of the residents of Richmond. It was also an indication that appellants did not suffer a taking.
{¶ 21} But even though the ordinances are valid, the trial court’s order puts a further restriction on appellants’ property that the ordinances do not. The ordinances simply require appellants to register their animals with the village. The ordinances did not result in any taking of appellants’ property. The court’s order, however, limits the number of animals appellants may possess on their property.
{¶ 22} Ordinance No. 505.15(a) provides that “[e]very owner * * * of farm or domesticated animals that are currently kept * * * within the current municipal corporation limits shall register the same with the Village.” Section (b) goes on to provide that the failure of any owner to register his or her animals by a certain date shall be deemed to be a violation of Ordinance No. 626. Nowhere in Ordinance No. 505.15 or 626 does it provide that animal owners are limited to the same number of animals they possessed on the effective date of the ordinances. The trial court added this restriction. On this basis, appellants’ second assignment of error has merit.
{¶23} For the reasons stated above, the trial court’s judgment is hereby affirmed insofar as it held Ordinance Nos. 626 and 501.15 valid and enforceable. These ordinances did not result in the taking of appellants’ property, in that appellants were not prohibited from using their property as they had in the past. The court’s judgment is modified, however, and the part of the judgment that limits appellants to the number of animals appellants possessed on the effective date of the ordinances is hereby vacated.
Judgment accordingly.
Waite, J., concurs.
DeGenaro, J., dissents.