[Cite as State ex rel. Fair v. Canton, 2012-Ohio-779.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE ex rel. TAMMY FAIR JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellant Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 2011 CA 00132 CITY OF CANTON
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2011 CV 00189
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 27, 2012
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
ALYSSA KEENEY KEVIN R. L'HOMMEDIEU Post Office Box 39631 THOMAS R. CURNS Solon, Ohio 44139 CANTON LAW DEPARTMENT 218 Cleveland Avenue, SW WARNER MENDENHALL Canton, Ohio 44701-4218 190 North Union Street, Suite 201 Akron, Ohio 44304 Stark County, Case No. 2011 CA 00132 2
Wise, J.
{¶ 1} Appellants Tammy Fair and Total Image, LLC appeal the decision of the
Stark County Common Pleas Court granting summary judgment in favor of Appellee
City of Canton.
STATEMENT OF THE FACTS AND CASE
{¶ 2} In August, 2001, Appellant Tammy Fair purchased property located at
3400 West Tuscarawas Street in Canton, Ohio. The structure on the property was a
Victorian, two-and-a-half story, red brick house. The property had previously been
zoned as a “PB-3, custom draperies and resale shop”. Appellant Fair wanted to operate
a salon/spa business on the property so she applied for a planned district zone change
to a “PB-3, beauty salon and day spa.”
{¶ 3} On October 29, 2001, Canton City Council approved the planned district
zoning change.
{¶ 4} Appellant Total Image, LLC obtained a $65,000 loan from the Canton
Community Improvement Corporation to remodel the property and purchase equipment,
then opened a full-service salon and spa, offering massage, skin care, nails and
pedicures and full hair service.
{¶ 5} Appellant Fair operated Total Image at that location until early 2009 when
it defaulted on its loan and closed its doors.
{¶ 6} On two occasions prior to the closing of Total Image, once in 2005 and
again in 2008, Appellant was approached by a real estate developer whose client
wanted to build a Walgreen’s drugstore at that location. Appellant entered into an
agreement, contingent on the developer’s client’s ability to purchase the surrounding Stark County, Case No. 2011 CA 00132 3
properties and obtain the necessary zoning change from the current PB-3 to a General
Business District, B-3.
{¶ 7} In 2006, Appellant Tammy Fair attempted to gain approval to change her
parcel from "PB-3" to “B-3” so that she could close on an offer to purchase the property
but was unsuccessful.
{¶ 8} In 2008, the developer again approached Appellant Fair with a similar
offer to purchase, but Fair was again unsuccessful in her attempts of obtain the change
in zoning.
{¶ 9} On January 18, 2011, Appellant Fair filed a Complaint with Stark County
Court of Common Pleas seeking a declaratory judgment that the City of Canton’s
ordinances regarding “Planned” zoning districts is unconstitutional and further seeking a
writ of mandamus compelling the City of Canton to commence an action and
compensate her for the taking of her property without just compensation.
{¶ 10} On May 9, 2011, Appellee filed a motion for summary judgment on all
issues.
{¶ 11} On May 23, 2011, Appellants filed a response to Appellee’s motion for
summary judgment.
{¶ 12} By Judgment Entry filed June 8, 2011, the trial court granted Appellee City
of Canton’s Motion for Summary Judgment, finding that the City of Canton’s zoning
ordinance is “constitutional on its face and as applied to Fair as it bears a rational
relationship to a legitimate regulatory purpose.”
{¶ 13} Appellants assign the following errors for review: Stark County, Case No. 2011 CA 00132 4
ASSIGNMENTS OF ERROR
{¶ 14} “I. THE COURT ERRED AS A MATTER OF LAW IN FINDING THAT THE
ORDINANCE IS CONSTITUTIONAL ON ITS FACE AND AS APPLIED TO
PLAINTIFF’S PROPERTY BECAUSE IT IS ARBITRARY, CAPRICIOUS,
UNREASONABLE, CONFISCATORY.
{¶ 15} “II. THE COURT ERRED AS A MATTER OF LAW IN FINDING THAT THE
PLAINTIFF’S PROPERTY BECAUSE IT VIOLATES THE EQUAL PROTECTION
CLAUSE OF THE OHIO CONSTITUTION.
{¶ 16} “III. THE COURT ERRED AS A MATTER OF LAW IN NOT FINDING
THAT THE ORDINANCE CONSTITUTES A TAKING WITHOUT JUST
COMPENSATION, AND GRANTING SUMMARY JUDGMENT TO DEFENDANT CITY
OF CANTON ON THIS ISSUE.”
STANDARD OF REVIEW
{¶ 17} We will first address the standard of review applicable to Appellants'
Assignments of Error.
{¶ 18} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639, 1996-Ohio-211:
{¶ 19} “Civ.R. 56(C) provides that before summary judgment may be granted, it
must be determined that (1) no genuine issue as to any material fact remains to be
litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it
appears from the evidence that reasonable minds can come to but one conclusion, and Stark County, Case No. 2011 CA 00132 5
viewing such evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is made. State ex
rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing
Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364
N.E.2d 267, 274.”
{¶ 20} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30
Ohio St.3d 35, 506 N.E.2d 212.
I., III.
{¶ 21} In their first and third assignments of error, Appellants claim that the trial
court erred in not finding that the Canton City Ordinance is unconstitutional both on its
face and as applied and that such zoning is not an unconstitutional taking of her
property without just compensation. We disagree.
{¶ 22} We begin our analysis of Appellants’ challenge to the Canton City
Ordinance by recognizing that zoning ordinances are presumed to be constitutional.
Goldberg Cos., Inc. v. Richmond Hts. City Council (1998), 81 Ohio St.3d 207, 209;
State v. Dorso (1983), 4 Ohio St.3d 60, 61, 446 N.E.2d 449. Courts must apply “all
presumptions and pertinent rules of construction so as to uphold, if at all possible, a
statute or ordinance assailed as unconstitutional.” Id. A court should not declare a
legislative enactment unconstitutional if there is a rational interpretation that would
preserve its constitutionality. State v. Sinito (1975), 43 Ohio St.2d 98, 101, 330 N.E.2d
896. Zoning ordinances are presumed constitutional unless a court determines that the Stark County, Case No. 2011 CA 00132 6
ordinance is “clearly arbitrary and unreasonable and without substantial relation to the
public health, safety, morals, or general welfare of the community.” Goldberg Cos., Inc.
v. Richmond Hts. City Council (1998), 81 Ohio St.3d 207, 214, 690 N.E.2d 510.
{¶ 23} In order to invalidate a zoning ordinance, the challenging party must
demonstrate, beyond fair debate, that the zoning classification is “‘arbitrary and
unreasonable, having no substantial relation to the public health, safety, morals, or
general welfare.’“ Id. at 210. (Citation omitted.) The “beyond fair debate” standard is
similar to the “beyond a reasonable doubt” standard used in the context of a criminal
trial. Heritage Dev. Co., LLC v. Willoughby Hills, 11th Dist. No. 2001-L-221, 2002-Ohio-
7269, at ¶ 17. (Citation omitted.)
{¶ 24} In the context of this case, Appellants are raising two types of challenges
to the zoning ordinance: a facial challenge and an as-applied challenge.
{¶ 25} A zoning ordinance can be challenged on its face or on the particular set
of facts to which the statute has been applied. Harold v. Collier, 107 Ohio St.3d 44,
2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37, citing Belden v. Union Cent. Life Ins.
Co. (1944), 143 Ohio St. 329, 28 O.O. 295, 55 N.E.2d 629, paragraph four of the
syllabus. When a statute is challenged on its face, the challenger must demonstrate that
no set of circumstances exists under which the statute would be valid. Id., citing United
States v. Salerno (1987), 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697. The fact
that the statute could operate unconstitutionally under some given set of facts or
circumstances is insufficient to render it wholly invalid. Id.”
{¶ 26} Conversely, when a statute is challenged as applied, the challenger must
establish by clear and convincing evidence an existing set of facts that renders the Stark County, Case No. 2011 CA 00132 7
statute invalid when applied to those facts.” Smith v. Jones, 175 Ohio App.3d 705,
2007-Ohio-6708, 889 N.E.2d 141, ¶ 14, citing Harold, 107 Ohio St.3d 44, 2005-Ohio-
5334, 836 N.E.2d 1165, at ¶ 38.
{¶ 27} The Supreme Court of Ohio has stated:
{¶ 28} “In a facial challenge to a zoning ordinance, the challenger alleges that the
overall ordinance, on its face, has no rational relationship to a legitimate governmental
purpose and it may not constitutionally be applied under any circumstances.* * *
{¶ 29} “In an ‘as applied’ challenge to a zoning ordinance, the landowner
questions the validity of the ordinance only as it applies to a particular parcel of
property. If the ordinance is unconstitutional as applied under those limited
circumstances, it nevertheless will continue to be enforced in all other instances. * * * A
landowner may also allege that the ordinance so interferes with the use of the property
that, in effect, it constitutes a taking of the property. * * *.” Jaylin Investments, Inc. v.
Moreland Hills, 107 Ohio St.3d 339, 2006-Ohio-4, at ¶ 11-12. (Internal citations
omitted.)
{¶ 30} In the case sub judice, Appellant is alleging that the City of Canton’s
zoning constitutes a taking of her property.
Facial Challenge
{¶ 31} As set forth above, when a zoning ordinance is challenged on its face, the
challenger must demonstrate that no set of circumstances exists under which the
statute would be valid. Id., citing United States v. Salern, supra.
{¶ 32} The Supreme Court of Ohio has stated: Stark County, Case No. 2011 CA 00132 8
{¶ 33} “In a facial challenge to a zoning ordinance, the challenger alleges that
the overall ordinance, on its face, has no rational relationship to a legitimate
governmental purpose and it may not constitutionally be applied under any
circumstances.* * *
{¶ 34} Here, the codified policy of Canton’s zoning ordinance is to “promote the
stability and preservation of residential neighborhoods” and to “encourage the economic
stability and growth.”
{¶ 35} Upon review, we find that the “Planned” designation in the case sub judice
guarantees that properties who apply for a zoning change, use the property in
accordance with the zoning change. We find that such ordinance is rationally related to
encourage the economic stability and growth while protecting the stability and
preservation of residential neighborhoods.
{¶ 36} As such, we do not find such ordinance to be unconstitutional on its face.
As-applied Challenge
{¶ 37} In Jaylin, supra, the Supreme Court of Ohio reiterated the appropriate
analysis to employ when considering whether a zoning ordinance is constitutional, as
applied to a property owner.
{¶ 38} “In a constitutional analysis, the object of scrutiny is the legislative action.
The zoning ordinance is the focal point of the analysis, not the property owner's
proposed use, and the analysis begins with a presumption that the ordinance is
constitutional. The analysis focuses on the legislative judgment underlying the
enactment, as it is applied to the particular property, not the municipality's failure to
approve what the owner suggests may be a better use of the property. If application of Stark County, Case No. 2011 CA 00132 9
the zoning ordinance prevents an owner from using the property in a particular way, the
proposed use is relevant but only as one factor to be considered in analyzing the zoning
ordinance's application to the particular property at issue.” Jaylin, 107 Ohio St.3d 339, at
¶ 18.
{¶ 39} “In an ‘as applied’ challenge to a zoning ordinance, the landowner
questions the validity of the ordinance only as it applies to a particular parcel of
property. If the ordinance is unconstitutional as applied under those limited
circumstances, it nevertheless will continue to be enforced in all other instances. * * * A
landowner may also allege that the ordinance so interferes with the use of the property
that, in effect, it constitutes a taking of the property. * * *.” Jaylin Investments, Inc. v.
Moreland Hills, 107 Ohio St.3d 339, 2006-Ohio-4, at ¶ 11-12. (Internal citations
{¶ 40} Here, Appellant sought and successfully obtained a zoning designation
change when she purchased the property. In fact, she operated a business at this
location under that “Planned” zoning designation for approximately eight years. The
ordinance herein does not render the property economically non-viable; it is just that
now Appellant needs a different zoning designation to allow her to engage in a more
lucrative sale of her property.
{¶ 41} Appellant’s inability to get a second zoning designation change does not
make the zoning ordinance unconstitutional as applied to Appellant’s property. We find
that the zoning ordinance herein furthers the purpose preserving the integrity of the
surrounding neighborhoods. Stark County, Case No. 2011 CA 00132 10
{¶ 42} We find that Appellant has not demonstrated beyond fair debate, that the
zoning classification is “arbitrary and unreasonable, having no substantial relation to the
public health, safety, morals, or general welfare.”
Takings Clause
{¶ 43} Appellant has also argued that the zoning ordinance herein constitutes an
unconstitutional taking of her property, in violation of the Fifth Amendment of the United
States Constitution, for which she is entitled to compensation. More specifically,
Appellant argues that the ordinance herein interferes with an investment expectation in
the property.
{¶ 44} “As its text makes plain, the Takings Clause ‘does not prohibit the taking
of private property, but instead places a condition on the exercise of that power.’ * * * In
other words, it ‘is designed not to limit the governmental interference with property rights
per se, but rather to secure compensation in the event of otherwise proper interference
amounting to a taking.’ * * * While scholars have offered various justifications for this
regime, we have emphasized its role in ‘bar[ring] Government from forcing some people
alone to bear public burdens which, in all fairness and justice, should be borne by the
public as a whole.’ ” Lingle, at 536-537. (Citations omitted; emphasis sic.) Cf. Section
19, Article I, Ohio Constitution (providing that private property shall not be taken for
public use without just compensation).
{¶ 45} “Two types of regulatory actions will be deemed to be per se takings for
Fifth Amendment purposes: first, those government actions that cause an owner to
suffer a permanent physical invasion of property * * * and second, government
regulations that completely deprive an owner of ‘all economically beneficial uses' of the Stark County, Case No. 2011 CA 00132 11
property.” Shelly Materials, at ¶ 18, quoting Lucas v. South Carolina Coastal Council
(1992), 505 U.S. 1003, 1019, 112 S.Ct. 2886, 120 L.Ed.2d 798. (Emphasis sic.)
{¶ 46} The Ohio Supreme Court held the application of a zoning ordinance to a
particular parcel of land is not deemed an unconstitutional taking unless the zoning
designation denies the landowner all economically viable use of the land, State ex rel.
Shemo v. Mayfield Heights, 95 Ohio St.3d 59, 2002-Ohio-1627; Shankel v. City of
Canton, Stark App.No. 2006-CA-0004, 2006-Ohio-4070.
{¶ 47} A zoning regulation has denied all economically viable uses of land where
the regulation so “restricts the use of the land as to render it valueless, the permitted
uses are not economically feasible, or the regulation permits only uses which are highly
improbable or practically impossible under the circumstances.” Valley Auto Lease of
Chagrin Falls, Inc. v. Auburn Tp. Bd. of Zoning Appeals (1988), 38 Ohio St.3d 184, 186.
{¶ 48} Upon review, we find that the trial court did not err in finding Appellants
still have the ability to use the subject property as zoned. The property is usable to
Appellants as a “PB-3” zoned property, just not to their best economic advantage. See
Shankel v. City of Canton, Stark App.No. 2006-CA-00004, 2006-Ohio-4070.
{¶ 49} Appellant’s first and third assignments of error are overruled.
II.
{¶ 50} In her second assignment of error, Appellant argues that the ordinance
herein is unconstitutional because it violates the equal protection clause of Ohio’s
Constitution. We disagree. Stark County, Case No. 2011 CA 00132 12
{¶ 51} Appellant argues that other surrounding parcels which are similarly
situated are not subject to the designation of “Planned” district, thereby burdening
“Planned” owners and not others.
{¶ 52} The Fourteenth Amendment to the United States Constitution provides
that “[no] State shall * * * deny to any person within its jurisdiction the equal protection of
the laws.”
{¶ 53} “The limitations placed upon governmental action by the Equal Protection
Clauses of the Ohio and United States Constitutions are essentially identical.” Kinney v.
Kaiser Aluminum & Chem. Corp. (1975), 41 Ohio St.2d 120, 123, 322 N.E.2d 880, citing
Porter v. Oberlin (1965), 1 Ohio St.2d 143, 205 N.E.2d 363. When the government
treats similarly situated individuals differently, such action implicates equal protection.
Cleburne v. Cleburne Living Ctr., Inc. (1985), 473 U.S. 432, 439, 105 S.Ct. 3249, 87
L.Ed.2d 313.
{¶ 54} It is fundamental that legislation cannot be attacked merely because it
creates distinctions and thereby classifies the subjects of a law because legislation, by
its very nature, treats people by groups and classes and must, of necessity, draw its
lines based upon “amalgamations of factors.” Vance v. Bradley (1979), 440 U.S. 93,
109, 99 S.Ct. 939, 59 L.Ed.2d 171.
{¶ 55} Further, in the absence of a fundamental right or suspect class, a
legislative classification will be upheld if it is rational. Id.; Williamson v. Lee Optical of
Oklahoma, Inc. (1955), 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563. Because no
fundamental right or suspect class is involved here, the rational basis test is applicable
to determine whether the ordinance herein violates equal protection. Stark County, Case No. 2011 CA 00132 13
{¶ 56} Pursuant to this test, an ordinance will be held to be constitutional if it is
rationally related to any legitimate governmental interest. Cleburne, supra, at 440.
Again, enactments of the legislature are valid if “they bear a real and substantial relation
to the object sought to be obtained, namely, the health, safety, morals or general
welfare of the public, and are not arbitrary, discriminatory, capricious or unreasonable.
*** The federal test is similar. To determine whether such statutes are constitutional
under federal scrutiny, we must decide if there is a rational relationship between the
statute and its purpose.” (Internal citations omitted.) State v. Thompkins, 75 Ohio St.3d
558, 560, 664 N.E.2d 926, 1996-Ohio-264. In Police Department of the City of Chicago
v. Mosley (1972), 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212, the Supreme Court held:
“As in all equal protection cases, * * * the crucial question is whether there is an
appropriate governmental interest suitably furthered by the differential treatment.” Id. at
95.
{¶ 57} In applying the rational basis test, a court will not overturn an ordinance
unless the varying treatment of different groups or persons is so unrelated to the
achievement of a legitimate governmental purpose that the court can only conclude the
legislature's actions were irrational. Vance, supra, at 97.
{¶ 58} Here, this Court has found that the City of Canton has a legitimate interest
in creating the “Planned” district. We therefore find such ordinance to be facially
constitutional, and find no equal protection violation.
{¶ 59} Likewise, we find that Appellant has failed to prove that such ordinance is
unconstitutional in its application. To succeed on her challenge, she must show that Stark County, Case No. 2011 CA 00132 14
similarly situated persons were treated differently and that such disparate treatment was
motivated by a discriminatory purpose.
{¶ 60} Appellant has failed to show that a property like hers, surrounded by
residential properties, obtained a “Planned” designation and then later was permitted a
change to a “B-3” designation.
{¶ 61} Furthermore, Appellant has failed to set forth any motivation on the part of
the City for such alleged discrimination.
{¶ 62} Based on the foregoing, we find no violation of Equal Protection.
{¶ 63} Appellants’ second assignment of error is overruled.
{¶ 64} Accordingly, the judgment of the Common Pleas Court, Stark County,
Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
___________________________________
JUDGES JWW/d 0213 Stark County, Case No. 2011 CA 00132 15
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE EX REL. TAMMY FAIR : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : CITY OF CANTON : : Defendant-Appellee : Case No. 2011 CA 00132
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
Costs assessed to Appellant.
JUDGES