Winer v. Clay Twp. , 2017 Ohio 8765 ( 2017 )

[Cite as Winer v. Clay Twp., 2017-Ohio-8765.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
EMANUAL H. WINER :
:
Plaintiff-Appellant : Appellate Case No. 27565
:
v. : Trial Court Case No. 15-CV-3650
:
CLAY TOWNSHIP, MONTGOMERY : (Civil Appeal from
COUNTY, OHIO, et al. : Common Pleas Court)
:
Defendant-Appellee :
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OPINION
Rendered on the 1st day of December, 2017.
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KONRAD KUCZAK, Atty. Reg. No. 0011186, 130 West Second Street, Suite 1010,
Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
JEFFREY C. TURNER, Atty. Reg. No. 0063154, KEVIN A. LANTZ, Atty. Reg. No.
0063822, and DAWN M. FRICK, Atty. Reg. No. 0069068, 8163 Old Yankee Street, Suite
C, Dayton, Ohio 45458
Attorney for Defendant-Appellee
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HALL, P.J.
{¶ 1} Emanuel Winer appeals from the grant of summary judgment for the
defendants, Clay Township and the members of the Clay Township Board of Trustees,
on his claim for compensation for the regulatory taking of his property and his declaratory
judgment claim that the current zoning classification of the property is unconstitutional as-
applied. Finding no error, we affirm.
I. BACKGROUND
{¶ 2} Winer owns four acres of land located along Dayton-Greenville Pike in Clay
Township. He purchased the land in 1992 and built a model home on it as a marketing
tool for his home-construction business. The parcel is one of several contiguous parcels
in a business district zoned General Business-2 (B-2). When Winer retired in 2013, he
found someone who wanted to buy the property and use the model home as a residence.
He sought to rezone the property to Planned Development-4 (PD-4) so that the model
home could be used and occupied as a residence. He filed a rezoning application with
the Clay Township Zoning Commission, which recommended that the property be
rezoned PD-4. The Zoning Commission’s recommendation went before the Montgomery
County Planning Commission, which approved the Zoning Commission’s
recommendation. The Zoning Commission then affirmed its recommendation and sent
the matter to the Clay Township Board of Trustees. The Trustees held a hearing on
Winer’s application, and in November 2014, they voted to deny the application.
{¶ 3} Over half-a-year later, in July 2015, Winer filed a “Complaint for Declaratory
Judgment and Money Damages” against Clay Township and the Trustees. The complaint
alleges that the B-2 classification is unconstitutional as-applied to Winer’s property and
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effects a taking of the property under the Fifth Amendment. The complaint claims that
Winer is entitled to compensation under Ohio law and 42 U.S.C. 1983. Also, the complaint
asks for an injunction to stop the defendants from “interfering” with Winer’s development
and use of the property as a PD-4 zoned property. Based on the federal-law claims, the
defendants removed the case to federal district court. In July 2016, the district court
entered a judgment on the pleadings as to the 42 U.S.C. 1983 claim and remanded the
remaining claims back to the common pleas court.
{¶ 4} Both Winer and the defendants filed a motion for summary judgment. On
March 1, 2017, the trial court denied Winer’s motion and granted the defendants’ motion
in part and denied it in part. The court rejected the defendants’ argument that Winer lacks
standing and rejected their argument that the claim for injunctive relief is not ripe. But the
court agreed that summary judgment is proper on the takings claim and as-applied
constitutional claim.
{¶ 5} Winer appealed, but we dismissed the appeal for lack of a final, appealable
order because the claim for injunctive relief still remained. On April 19, 2017, the trial court
issued a Civ.R. 54(B) decision, concluding that there was no just cause to delay appeal
of its summary-judgment decision. Winer appealed that decision, and that appeal is
before us now.1
1 Although the claim for injunctive relief is not raised in this appeal, we see no legal
claim that would support such relief. The defendants named in the complaint are Clay
Township and the three Trustees, not the Board of Zoning Appeals. After citing R.C.
519.14, which in certain circumstances authorizes a township Board of Zoning Appeals
to grant variances (R.C. 519.14(B)) or to allow permitted conditional uses (R.C.
519.14(C)), the court concluded that a question remained whether the Trustees could
grant a conditional use. Our reading of the complaint refers to a request for rezoning not
for a conditional use.
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II. ANALYSIS
{¶ 6} Winer assigns three errors to the trial court. The first assignment of error
alleges that the court failed to follow the administrative-appeal procedures in R.C. Chapter
2506. The second alleges that the court should not have considered the affidavit of the
defendants’ expert. And the third assignment of error alleges that the trial court erred by
denying Winer’s summary-judgment motion and granting the defendants’ motion.
A. R.C. Chapter 2506 does not apply.
{¶ 7} The first assignment of error alleges that the trial court erred by not following
R.C. Chapter 2506, which establishes the procedure for appeals from administrative
decisions. Specifically, Winer argues that the court failed to apply the statutory standard
of review (in R.C. 2506.04) to determine whether the Trustees’ decision is adequately
supported by the evidence.
{¶ 8} It is apparent from the complaint that this case was intended as an action for
declaratory judgment with a request for damages and injunctive relief. The complaint’s
first paragraph states: “This action is brought under Chapter 2721 of the Ohio Revised
Code entitled Declaratory Judgment.” The complaint does not mention R.C. Chapter
2506. The trial court does cite this chapter at one point in its decision, but it does so in a
case quotation: “ ‘The constitutionality of a zoning ordinance may be attacked and
injunctive relief from its prohibitions obtained in a declaratory judgment action brought
pursuant to Ohio Rev. Code Ann. ch. 2506.’ ” The quotation comes from Mays v. Board
of Trustees of Miami Township, 2d Dist. Montgomery No. 18997, 2002-Ohio-3303, and
this is the only mention of R.C. Chapter 2506 in the opinion. The statute played no part in
the holding, the pleadings do not attempt to raise a R.C. Chapter 2506 administrative
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appeal and the statutory reference is extraneous and irrelevant.
{¶ 9} Even if this case were intended to be, in part, an administrative appeal, the
trial court would not have had jurisdiction over it, because Winer failed to perfect a timely
appeal under the statute. R.C. 2506.01(A) provides that an administrative decision may
be appealed to a court of common pleas “as provided in Chapter 2505 of the
Revised Code.” R.C. 2505.04 pertinently provides that “[a]n appeal is perfected when a
written notice of appeal is filed * * * in the case of an administrative-related appeal, with
the administrative officer, agency, board, department, tribunal, commission, or other
instrumentality involved.” And R.C. 2505.07 provides that, after the administrative
decision is entered, “the period of time within which the appeal shall be perfected, unless
otherwise provided by law, is thirty days.” There is no evidence in the record that Winer
ever filed a notice of appeal with the Trustees, let alone filed one within thirty days after
the Trustees made their decision. Indeed, Winer filed his complaint half-a-year after the
decision was issued. As the Ohio Supreme Court has said, “an appeal, the right to which
is conferred by statute, can be perfected only in the mode prescribed by statute.” Zier v.
Bureau of Unemp. Comp., 151 Ohio St. 123, 125, 84 N.E.2d 746 (1949). Invoking
jurisdiction demands “[c]ompliance with a requirement that a notice of appeal shall be
filed within the time specified.” Id.{¶ 10} Because R.C. Chapter 2506 does not apply, the trial court did not err by not
applying the standard of review under that chapter.
{¶ 11} The first assignment of error is overruled.
B. The trial court properly considered the affidavit of the defendants’ expert.
{¶ 12} The second assignment of error alleges that the trial court erred by
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considering the affidavit of the defendants’ expert, Gregory Dale.
{¶ 13} Winer first argues that by considering Dale’s affidavit the court violated R.C.
2506.02 because the affidavit was not before the Trustees when they conducted their
hearing, and it could not be added to the record in support of the summary judgment
motion. Because R.C. Chapter 2506 does not apply, we reject this argument.
{¶ 14} Winer next argues that opinions in Dale’s affidavit are not admissible
because they violate Evid.R. 703 and 704. But Winer waived the ability to raise these
issues on appeal. He did not object in the trial court to Dale’s affidavit or to any of the
materials attached to or referenced in the affidavit. The failure to raise such a challenge
waives the ability to raise the issues on appeal. See Credit Invests., Inc. v. Obanion, 2d
Dist. Montgomery No. 26129, 2014-Ohio-5799, ¶ 15. But even if Winer had not waived
the issues, we would find no error.
{¶ 15} Evid.R. 703 states that “[t]he facts or data in the particular case upon which
an expert bases an opinion or inference may be those perceived by the expert or admitted
in evidence at the hearing.” Winer says that Dale’s opinions are based on his review of
nonexistent materials. Dale avers that he considered certain material, including Winer’s
responses to the defendants’ discovery requests, Winer’s deposition, and the exhibits to
the deposition. Winer says that his responses to the defendants’ discovery requests are
not in the record and that his deposition is not on file. Winer also says that Dale’s opinions
are based on materials that Dale did not say he considered in forming his opinions. Dale
avers: “The B-2 classification along with the portion of the Comprehensive Plan pertinent
to Clay Township reduces the risk of land use conflicts and promotes consistency as is
shown by the staff reports provided by the Clay Township Zoning Commission and the
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Montgomery County Planning Commission.” (Dale Aff. ¶ 17(d)). Winer says that the staff
reports are not attached to Dale’s affidavit and that, in the affidavit, Dale does not list the
staff reports among the materials that he considered to form his opinions.
{¶ 16} All of the documents that Winer mentions—except his deposition, which
does not appear ever to have been correctly filed—is in the record. The exhibits to his
deposition are there, and among them are Winer’s responses to the defendants’
interrogatories. As for the staff reports, Dale’s reference to them in his affidavit can be
understood as his citing additional support for his opinion rather than as the basis for his
opinion. Nevertheless, the Clay Township Zoning Commission staff report is attached to
the affidavit of Justin Brown, the township’s zoning compliance officer. Brown’s affidavit
is attached to the defendants’ summary-judgment motion. Also attached to Brown’s
affidavit are the Montgomery County Planning Commission’s September 11, 2014
meeting minutes, which contain a review of the Commission’s staff report.
{¶ 17} Evid.R. 704 provides that “[t]estimony in the form of an opinion or inference
otherwise admissible is not objectionable solely because it embraces an ultimate issue to
be decided by the trier of fact.” We have said that “ ‘[o]pinion testimony on an ultimate
issue is admissible if it assists the trier of the fact, otherwise it is not admissible. The
competency of the trier of the fact to resolve the factual issue determines whether or not
the opinion testimony is of assistance.’ ” Gehrke v. Senkiw, 2016-Ohio-2657, 63 N.E.3d
773, ¶ 27 (2d Dist.), quoting Evid.R. 704, Staff Notes. In his affidavit, Dale states that
“[t]he ‘B-2’ General Business District is not arbitrary and, furthermore, it is reasonable and
bears a substantial relation to the public health, safety, morals, or general welfare of the
community.” (Dale Aff. ¶ 17(a)). He also states that “[a]s shown on the Clay Township
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Zoning Map, Plaintiff’s property is reasonably zoned ‘B-2.’ ” (Id. at ¶ 17(e)). Winer says
that these are all legal conclusions that were to be decided by the trial court, which did
not need help.
{¶ 18} The question whether the B-2 zoning is reasonable and bears a substantial
relation to the public health, safety, morals, or general welfare of the community and the
question whether Winer’s property is reasonably zoned B-2 are ultimate issues that the
trial court was tasked to decide. Based on Dale’s education and extensive experience
cited in his affidavit, it is clear that he is an expert in the area of land-use regulations. So
it is no wonder that the trial court found Dale’s opinions helpful to decide these ultimate
issues, which it evidently did since it quotes several paragraphs of his affidavit in its
decision. Ultimately, though, it was the court that concluded that “[b]ased upon the
evidence presented, there is no dispute of fact that the failure to re-zone Plaintiff’s
property from B-2 to PD-4 was not arbitrary or unreasonable” and concluded that the B-
2 zoning “has a substantial relation to the public health, safety, morals, or general
welfare.” We see little reason why the court could not consider the opinion testimony in
Dale’s affidavit to arrive at these conclusions.
{¶ 19} The second assignment of error is overruled.
C. Winer failed to overcome the presumption that B-2 zoning is constitutional.
{¶ 20} The third assignment of error alleges that the trial court erred by granting
summary judgment on Winer’s claim that B-2 zoning is unconstitutional as-applied to his
property.
{¶ 21} “Zoning is a valid legislative function of a municipality’s police powers.
Courts should not interfere with zoning decisions unless the municipality exercised its
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power in an arbitrary and unreasonable manner and the decision has no substantial
relation to the public health, safety, morals, or general welfare.” (Citations omitted.) Jaylin
Investments, Inc. v. Moreland Hills, 107 Ohio St.3d 339, 2006-Ohio-4, 839 N.E.2d 903, ¶
10. “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.” Id. at ¶ 12. “
‘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.’ ” Id. at ¶ 13, quoting Goldberg Cos.,
Inc. v. Richmond Hts. City Council, 81 Ohio St.3d 207, 690 N.E.2d 510 (1998), syllabus.
“The burden of proof remains with the party challenging an ordinance’s constitutionality,
and the standard of proof remains ‘beyond fair debate.’ ” Id., citing Goldberg at 214.
{¶ 22} The Township presented evidence that the B-2 classification is reasonable
and has substantial relation to the public health, safety, morals, and general welfare of
the community. Winer presented no evidence to the contrary. But he contends that the
rezoning approvals of the Clay Township Zoning Commission and the Montgomery
County Planning Commission raise the inference that rezoning the property to PD-4 “is
compatible with the goal of protecting the public health, safety, morals, or general welfare
of the township and of the entire county.” And Winer contends that the approvals raise
“the corollary inference that the refusal of the Trustees to re-zone Winer’s property was
arbitrary and/or unreasonable.”
{¶ 23} It is irrelevant whether the rezoning approvals show that rezoning the
property to PD-4 is compatible with these goals. Winer is using what the Ohio Supreme
Court has called an “inverse analysis, i.e., that if the proposed use meets the
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government’s legitimate goals underlying the zoning, a municipality may not prohibit it.”
Jaylin at ¶ 18. But this analysis “does not accurately state the issue.” Id. The Court
explained:
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.
Jaylin at ¶ 18. The rezoning approvals on which Winer relies do not show that the current
B-2 zoning is “clearly arbitrary and unreasonable and without substantial relation to the
public health, safety, morals, or general welfare of the community.”
{¶ 24} Winer fails to overcome the presumption that the B-2 zoning is
constitutional. Based on the evidence presented, it cannot reasonably be said that,
beyond fair debate, the B-2 zoning of Winer’s property is “clearly arbitrary and
unreasonable and without substantial relation to the public health, safety, morals, or
general welfare of the community.” The Trustees were authorized to deny Winer’s request
for a zoning change. It is not unconstitutional simply to decide not to rezone one parcel
of property in a business district, particularly when the owner of the parcel knew of the
zoning when he bought the property.
{¶ 25} The third assignment of error is overruled.
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III. CONCLUSION
{¶ 26} We have overruled each of the assignments of error presented. The trial
court’s judgment is affirmed.
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WELBAUM, J. and TUCKER, J., concur.
Copies mailed to:
Jeffrey C. Turner
Kevin A. Lantz
Dawn M. Frick
Konrad Kuczak
Hon. Timothy N. O’Connell