Fulton R.R. Co. v. City of Cincinnati

[Cite as Fulton RR. Co., Ltd. v. Cincinnati, 2017-Ohio-9320.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
FULTON RAILROAD CO. LTD, : APPEAL NO. C-160901
TRIAL NO. A-1406585
THE SAWYER PLACE COMPANY, :
O P I N I O N.
and :
CINCINNATI BARGE & RAIL :
TERMINAL, LLC.,
Plaintiffs-Appellants, :
vs. :
CITY OF CINCINNATI, :
CITY COUNCIL OF THE CITY OF :
CINCINNATI,
:
and
:
CITY PLANNING COMMISSION OF
THE CITY OF CINCINNATI, :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 29, 2017
Barrett & Weber, C. Francis Barrett and Joshua L. Goode, for Plaintiffs-Appellants,
Paula Boggs Muething, City Solicitor, Marion E. Haynes, Assistant City Solicitor,
and Emily E. Woerner, Assistant City Solicitor, for Defendants-Appellees.
OHIO FIRST DISTRICT COURT OF APPEALS
MILLER, Judge.
{¶1} We affirm the trial court’s reluctant determination that the residential
zoning designation placed on riverfront land near downtown Cincinnati, presently
and historically used for industrial purposes, is constitutional. The city is
empowered to zone property in an effort to change the character of a neighborhood.
Appellants did not meet their high burden of establishing that the zoning applied to
their property is unconstitutional. Nor did they establish a total regulatory taking,
i.e., that the zoning deprived the owner of all economically viable uses of the land,
assuming such a claim was properly pled.
Facts
{¶2} Fulton Railroad Company (“Fulton”), Sawyer Place Company
(“Sawyer”), and Cincinnati Barge & Rail Terminal, LLC, (“Cincinnati Barge”) claim
that the zoning of the property at issue as “Riverfront Residential/Recreational”
(“RF-R”) is unconstitutional. The subject property, owned by Fulton and Sawyer,
consists of 26-plus acres along the Ohio River, upriver from downtown Cincinnati. It
abuts the Theodore M. Berry International Friendship Park to the west, light
industrial property to the east, and residential property to the northwest.
Approximately 18 of these acres are out of the floodplain—making the property
somewhat unique.
{¶3} The property, used for commercial and industrial purposes for at least
200 years, is currently used by Cincinnati Barge as a barge terminal. Materials are
offloaded from barges, stored in yards, and loaded onto trucks and railcars for
further transport. For decades, the city has wanted the property to be used for high-
end residential purposes, and has zoned it accordingly. Despite this zoning, the code
allows Cincinnati Barge to continue its operations as a legal, nonconforming use.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} In 2007, the city rezoned the property to Planned Development 46
(“PD-46”) via Cincinnati Ordinance 39-2007. Before this change, the property,
which consists of multiple parcels, had a unified zoning designation of “Planned
Development 17” (“PD-17”). Prior to PD-17 zoning, the parcels were in two zoning
categories, “R-5(T)” and “RF-2.” The PD-46 designation allows development for
office, hotel, and residential mixed-uses. Among other requirements, a final
development plan had to be submitted and approved to keep the PD-46 designation.
If a final development plan was not approved, Cincinnati Ordinance 39-2007
provided that the property would “revert” to RF-R, a zoning classification it never
previously had.
{¶5} In 2014, after numerous extensions, the city denied Sawyer’s request
to modify PD-46 to adopt its present use as the final development plan, and also
denied its request for yet another extension to submit a final development plan. The
PD-46 designation terminated. Under Cincinnati Ordinance 39-2007, the property
“reverted” to RF-R.
Procedural Posture
{¶6} Appellants filed this action seeking a declaration that RF-R zoning is
unconstitutional as applied to the subject property. Appellants contended, in
relevant part, that (1) the zoning designation deprived them of economically viable
uses;1 (2) the uses permitted by the RF-R zoning were not “reasonably practical”
uses; (3) the RF-R zoning bears no reasonable relationship to the preservation of the
public health, safety, morals, or general welfare; and (4) the zoning failed to
1 The parties impliedly dispute, but did not thoroughly brief, whether an unconstitutional taking
without just compensation can be properly alleged via a declaratory judgment action where
mandamus has not been sought. Whether this request for a declaration was an effort to assert
such a claim, or was merely an argument to support its as-applied challenge to the zoning, is also
unclear. As discussed below, we can resolve this case without resolving this issue, and reserve it
for another day.
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OHIO FIRST DISTRICT COURT OF APPEALS
substantially advance a legitimate government interest. Appellants also moved for a
declaration that Cincinnati Ordinance 39-2007 did not authorize RF-R zoning after
the expiration of the PD-46 overlay district because the zoning should have
“reverted” to what had existed prior to Cincinnati Ordinance 39-2007—namely PD-
17, or a combination of R-5(T) and RF-2.
{¶7} The case proceeded to a bench trial, during which numerous experts
testified concerning the purpose of the zoning and the economies of developing the
property as zoned. Appellants’ experts surmised that developing the property for
residential purposes in accordance with the RF-R designation was not economically
feasible. The city primarily argued that the zoning designation was constitutional
because it had a substantial relationship to the city’s plan to meet the demand of new
residents seeking high-end housing close to downtown Cincinnati and on the Ohio
River, and that a high-end residential development was likely to increase property
tax revenues. Each side offered experts to rebut the other’s experts.
{¶8} In an advisory “letter decision” before it formally entered judgment,
the trial court indicated that it was sympathetic to appellants’ plight, and went so far
as to voice skepticism regarding the legal burden placed upon landowners. The trial
court nevertheless recognized that it was constrained to apply the law as it found it,
and informed the parties that it intended to rule that the zoning was constitutional.
The court directed the city to prepare a proposed entry.
{¶9} The trial court later entered extensive findings of fact and conclusions
of law, in which it incorporated its letter-decision, and held that appellants had not
met their burden to demonstrate that the zoning regulation was “clearly arbitrary,
unreasonable, or without substantial relation to the public health, safety, morals, and
general welfare of the community.” On this basis alone, the court determined that
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OHIO FIRST DISTRICT COURT OF APPEALS
the zoning regulation was constitutional as applied to the subject property. The
court did not directly address appellants’ economic-feasibility argument in its
conclusions of law, although it made factual findings that appellants had failed to
prove that the property could not be developed for a residential use.
{¶10} The trial court also concluded that the RF-R designation was not
“revisionary zoning,” as appellants had contended, because the “clear intent” of the
city’s ordinance “was to apply RF-R, Riverfront Residential/Recreational, zoning to
the subject property should the Planned Development 46 zoning lapse.” The court
dismissed appellants’ complaint with prejudice, and entered judgment in favor of the
city.
Analysis
{¶11} In appellants’ sole assignment of error, they contend that the trial
court erred as a matter of law because it failed to apply the proper test for
determining the constitutionality of zoning, and that it failed “to follow the required
standards” for considering whether the zoning as applied to their property is
constitutional. Through artful wording, appellants attempt to shoehorn our review
solely into a question of law that we review de novo. However, appellants subdivide
their assignment of error into six issues. As the city correctly points out, not all of
the issues present questions of law. We will address the standard of review for each
issue as they come.
{¶12} The judgment was consistent with the findings of fact.
In the first issue presented for review, appellants argue that the trial court’s letter-
decision indicates that the court found the zoning to be arbitrary and unreasonable
and without substantial relation to the public health, safety, morals, or general
welfare, and yet failed to enter judgment in appellants’ favor.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} Application of the law to the trial court’s findings presents a legal
question that we review de novo. Nationwide Mut. Fire Ins. Co. v. Guman Bros.
Farm, 73 Ohio St. 3d 107, 108, 652 N.E.2d 684 (1995); Castlebrook Ltd. v. Dayton
Properties Ltd. Partnership, 78 Ohio App. 3d 340, 346, 604 N.E.2d 808 (2d
Dist.1992). A zoning regulation that is arbitrary and unreasonable and without
substantial relation to the public health, safety, morals, or general welfare is
unconstitutional. State ex rel. Ridge Club v. Amberley Village, 1st Dist. Hamilton
No. C-070012, 2007-Ohio-6089, ¶ 11. Appellants do not challenge any particular
finding of fact. Rather, in support of their argument, appellants point to the trial
court’s statements regarding its frustration with the state of the law.
{¶14} Appellants are correct that, in its letter-decision, the trial court
expressed an unambiguous preference to declare the zoning unconstitutional—if it
could do so under the law. What the trial court so eloquently put was, “The law
does not permit me to so find, but if I could I would find the mere desire to turn
this unique property into a use it has not had for 200 years, no matter how often
stated, is arbitrary and capricious without investigation as to whether the change is
feasible.” (Emphasis added.) Rather than being a factual finding in appellant’s favor,
this is an express statement of judicial restraint. The trial court stated a desire for a
different legal standard. The trial court preferred the city be required to conduct an
economic-feasibility analysis before rezoning property in a manner that would limit
its current use. As the trial court recognized, this isn’t the law.
{¶15} The trial court also preferred that the city not be permitted “to
explicitly preference one economic group over another to benefit its own treasury.”
As the trial court correctly recognized, and as discussed more fully under appellants’
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OHIO FIRST DISTRICT COURT OF APPEALS
third and fourth issues presented for review, these factors do not render a zoning
regulation unconstitutional.2
{¶16} In its journalized findings of fact, the trial court found,
RF-R zoning is consistent with the publically-stated
plans for the subject property. The reasons for the plans
include that the City will benefit from additional high-
end housing options in the East End neighborhood,
which supports the demand for new residents interested
in living near the city center and the Ohio River, and
that high-end residential development are [sic] likely to
increase property tax revenues generated by the subject
property as compared with the property tax revenues
generated by the current operations on the subject
property. Plaintiffs have not proven that the subject
property cannot be developed for a residential use
beyond fair debate. There are simply too many things
not known at this time.
The court’s judgment follows from these findings of fact.
{¶17} Appellants contend that the court’s findings require reversal under
Karches v. Cincinnati, 38 Ohio St. 3d 12, 526 N.E.2d 1350 (1988). Interestingly,
Karches involved property owners who wanted to construct a river barge terminal on
the Ohio River underneath the I-275 Combs-Hehl Bridge near Coney Island in
2 The trial court also stated, “I would find it arbitrary and capricious to force a small business out
of business without full compensation * * *.” However, there was no finding that Cincinnati Barge
is being forced out of business at this time. Moreover, appellants elected not to seek a writ of
mandamus to force an inverse condemnation proceeding, so compensation was not an available
remedy.
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OHIO FIRST DISTRICT COURT OF APPEALS
Cincinnati’s California neighborhood. The Supreme Court reinstated the trial court’s
judgment that the zoning for the site was unconstitutional because it was cost
prohibitive to construct the houses above the floodplain, and the allowed commercial
uses had either been tried and failed or were cost prohibitive. Id. at 20-22. The trial
court in that case also found that the zoning decreased the value of the property. Id.
{¶18} While the issues here are strikingly similar, the factual findings are
strikingly different. Here, most of the property is out of the floodplain, which
arguably reduces development costs vis-à-vis those in Karches. Here, a barge
terminal is already in place, in use, and is not required to cease operations. The trial
court here found, unlike in Karches, that appellants failed to prove that residential
use was not economically viable. Moreover, the trial court found that residential
development here is likely to increase the value of the property and the
corresponding real estate taxes paid to the city. Karches does not require reversal.
{¶19} Accordingly, appellants’ first issue presented for review is not well
taken. The judgment is wholly consistent with the factual findings.
{¶20} The Disjunctive Test. In their second issue presented for review,
appellants argue that the trial court misapplied the law because it considered only
one test to determine constitutionality when it should have considered two.
Determining what the law is presents a question of law that we review de novo. This
issue is less a dispute over what the law is, and more a dispute over whether
appellants properly asserted a takings claim.
{¶21} In their complaint, appellants sought a declaration that the zoning was
unconstitutional because “The uses permitted of the subject real property . . . are not
economically viable uses.” If a property has been totally deprived of its economic
value through zoning, a total regulatory taking has occurred. Lucas v. South
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OHIO FIRST DISTRICT COURT OF APPEALS
Carolina Coastal Council, 505 U.S. 1003, 1027, 112 S. Ct. 2886, 120 L. Ed. 2d 798
(1992). A large portion of the trial focused on the economic viability of the zoning,
with experts testifying to the issue on behalf of both sides. The parties tried the
issue, and the trial court issued findings thereon. So even if a takings claim was not
pled, it was arguably tried by consent of the parties under Civ.R. 15(B), and “shall be
treated in all respects as if * * * [it] had been raised in the pleadings.” But, to the
extent that the takings issue was raised, it was within the context of a declaratory
judgment, not in mandamus.
{¶22} The constitutionality of zoning may be challenged via declaratory
judgment. Union Oil Co. of California v. City of Worthington, 62 Ohio St. 2d 263,
267, 405 N.E.2d 277 (1980) (“[I]n a declaratory judgment action, upon finding
existing zoning unconstitutional as applied to specific real property, the trial court
should give notice to the zoning authority that, within a reasonable time certain, it
may, at its option, rezone the property.”) Unaddressed by Ohio law is whether a
takings claim can be successfully pursued via declaratory judgment where
mandamus is not sought. Compare Moore v. Middletown, 133 Ohio St. 3d 55, 2012-
Ohio-3897, 975 N.E.2d 977 (dismissing a mandamus takings claim for lack of
standing, but not addressing whether declaratory relief would be appropriate). We
decline to resolve this issue today because, as explained below, the zoning ordinance
is valid under both tests.
{¶23} Appellants correctly state that, in this appellate district, the legal
standard for as-applied zoning challenges is set forth in Ridge Club, 1st Dist.
Hamilton No. C-070012, 2007-Ohio-6089. There are two separate tests in Ridge
Club. Id. at ¶ 11. One renders an ordinance unconstitutional where “the zoning
classification is arbitrary and unreasonable, having no substantial relationship to the
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OHIO FIRST DISTRICT COURT OF APPEALS
health, safety, and welfare of the municipality.” Id. Second, an unconstitutional
uncompensated taking occurs where the zoning “denies the economically viable use
of the land * * * .” Id. So, a party can challenge the constitutionality of a zoning
ordinance on either or both of these grounds. The second ground is applicable only
where a taking is alleged.
{¶24} The city contends that there was no error, and argues that the
economic-viability test is not good law. At one time, the Ohio Supreme Court treated
the two tests as conjunctive—meaning, to prevail, a plaintiff had to establish that the
zoning ordinance was unconstitutional under both tests. See Gerijo, Inc. v. Fairfield,
70 Ohio St. 3d 223, 638 N.E.2d 533 (1994). So, even if a zoning designation deprived
an owner of all economically viable use of land, the zoning would be upheld if it
“advanced a legitimate government interest.” Id. at syllabus; see Meck & Perlman,
Ohio Planning and Zoning Law, Section 10:7 (2017).
{¶25} Later, the Supreme Court recognized that requiring both prongs be
met was inappropriate, and the test became disjunctive. Goldberg Cos., Inc. v.
Richmond Hts. City Council, 81 Ohio St. 3d 207, 213, 690 N.E.2d 510 (1998). As
stated by a leading treatise on Ohio zoning law, the Supreme Court in Goldberg
“abandoned the conjunctive test for the disjunctive test. From this point on, the rule
in Ohio is that a zoning ordinance can be overturned by a court if it fails to
substantially advance legitimate state interests or deprives a landowner of
economically viable use of property.” Meck & Perlman at Section 10:8. The city
argues that Goldberg did not adopt a disjunctive test, but instead abandoned the
economic-viability test altogether. The landowner there did not assert an economic-
viability argument—i.e., a taking, so the test was not relevant to that case. The
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OHIO FIRST DISTRICT COURT OF APPEALS
Supreme Court explained as much in State ex rel. Shemo v. Mayfield Hts., 95 Ohio
St.3d 59, 63, 765 N.E.2d 345 (2002) (“Shemo II”).
{¶26} Completely abandoning the economic-viability test would run afoul of
the United States Supreme Court Fifth Amendment precedent. A state regulation
that deprives land of all economically beneficial use constitutes a taking, per se.
Lucas, 505 U.S. at 1027, 112 S. Ct. 2886, 120 L. Ed. 2d 798, followed by Lingle v.
Chevron U.S.A., Inc., 544 U.S. 528, 538, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005). A
government that undertakes a total regulatory taking must either pay just
compensation or “the State may elect to rescind its regulation and thereby avoid
having to pay compensation for a permanent deprivation.” Lucas at fn. 17.
Appellants here sought rescission of the RF-R zoning designation via declaratory
judgment. We reserve for another day whether this is an appropriate manner to
bring a takings claim.
{¶27} The RF-R zoning is neither arbitrary nor unreasonable. In
their fourth issue, appellants contend that the trial court should have found that the
zoning ordinance is arbitrary and unreasonable, having no substantial relationship to
the health, safety, and welfare of the municipality. See Ridge Club, 1st Dist. Hamilton
No. C-070012, 2007-Ohio-6089, at ¶ 11. We review this argument to determine if
the court’s judgment was against the manifest weight of the evidence. See Eastley v.
Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20; State v.
Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997). In support of their
argument, appellants again point to statements that the trial court made in its letter-
decision expressing frustration at the state of the law. The trial court’s factual
findings are different than appellants contend.
{¶28} Here, the trial court found:
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OHIO FIRST DISTRICT COURT OF APPEALS
RF-R zoning is consistent with the publicly-stated plans
for the subject property. The reasons for the plans
include that the City will benefit from additional high
end housing options in the East End neighborhood,
which supports the demand [of] new residents
interested in living near the city center and the Ohio
River, and that high end residential development are
[sic] likely to increase property tax revenues generated
by the subject property as compared with the property
tax revenues generated by the current operations on the
subject property.
These findings are supported by the record.
{¶29} Zoning with the purpose of growing the tax base and increasing the
vibrancy of the riverfront in a neighborhood near the city center is neither arbitrary
nor unreasonable. It certainly has a substantial relationship to the welfare of the
municipality. See State ex rel. Phillips Supply Co. v. Cincinnati, 2012-Ohio-6096,
985 N.E.2d 257, ¶ 30 (1st Dist.) (holding that zoning that promoted economic
stability and strong neighborhoods was rationally related to the health, safety, and
welfare of the city’s citizens). Moreover, the zoning is reasonable because, as
discussed, it allows for the continuation, expansion, and substitution of appellants’
nonconforming use.
{¶30} The RF-R zoning is currently economically viable. In their
third issue presented for review, appellants argue that they proved at trial that the
RF-R zoning designation denies them all economically viable uses of their property.
They essentially argue that the trial court’s findings to the contrary are against the
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OHIO FIRST DISTRICT COURT OF APPEALS
manifest weight of the evidence. We will review this argument without passing on
whether it is relevant to the analysis of the constitutionality of the zoning or if an
uncompensated taking was properly alleged.
{¶31} For our review, we weigh the evidence and all reasonable inferences,
consider the credibility of witnesses and determine whether in resolving conflicts in
the evidence, the finder of fact clearly lost its way, thereby creating a manifest
miscarriage of justice so that the judgment must be reversed and a new trial ordered.
Eastley, 132 Ohio St. 3d 328, 2012-Ohio-2179, 972 N.E.2d 517, at ¶ 20; Thompkins,
78 Ohio St. 3d at 387, 678 N.E.2d 541. In weighing the evidence, we are mindful that
every reasonable presumption must be made in favor of the judgment and the
findings of fact. Eastley at ¶ 21.
{¶32} A landowner does not, of course, have the right to have his land zoned
for its most advantageous economic use. Ridge Club, 1st Dist. Hamilton No. C-
070012, 2007-Ohio-6089, at ¶ 13. The central inquiry in an economic-deprivation
analysis—“total regulatory taking” in federal parlance—is whether the zoning
ordinance denies an owner of all economically viable use of his land. Id. The word
“all” is significant. A zoning ordinance is unconstitutional if it “ ‘restricts the use of
the land so 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 * * * .’ ” Id., quoting Valley Auto Lease of
Chagrin Falls, Inc. v. Auburn Twp. Bd. of Zoning Appeals, 38 Ohio St. 3d 184, 186,
527 N.E.2d 825 (1988). At trial, appellants had the burden to demonstrate that the
ordinance at issue is unconstitutional “beyond fair debate.” Ridge Club at ¶ 10, citing
Cent. Motors Corp. v. Pepper Pike, 73 Ohio St. 3d 581, 583-584, 653 N.E.2d 639
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OHIO FIRST DISTRICT COURT OF APPEALS
(1995). This is a high standard of proof—the civil equivalent to the criminal “beyond
a reasonable doubt” standard. Id.
{¶33} Here, the trial court found that appellants did not prove beyond fair
debate “that the subject property cannot be developed for a residential use,” as
permitted by the RF-R zoning designation. This finding is supported by the record.
{¶34} Appellants presented a development plan that they argued showed
that the land as zoned was not economically feasible.3 However, the trial court found
the feasibility analysis to be inconclusive. We will expound on a few examples of the
evidence that, when every inference is made favorable to the city, demonstrate the
trial court did not lose its way.
{¶35} Appellants’ experts opined that 13.5 acres of the site would be
excavated to a depth of ten feet and refilled—completely removing and replacing
210,000 cubic yards of material at an estimated cost of $10.5 million. The city’s
expert opined that appellants’ expert overestimated both the per unit cost and
amount of site preparation work needed. The city’s expert countered that only
100,000 cubic yards of excavation and embankment was necessary at a cost of only
$650,000. According to the city, total site preparation costs were estimated at only
$6 million compared to appellants’ estimate of $25 million. It was reasonable for the
court to find the city’s expert to be more credible, or at the very least that appellants
did not meet their burden of establishing the development costs beyond fair debate,
which it did when it concluded that “[p]laintiffs have not proven that the subject
property cannot be developed for a residential use beyond fair debate. There are
simply too many things not known at this time.”
3 Although case law discusses economic “viability,” the experts tend to prefer the term
“feasibility.” There appears to be no substantive difference.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶36} Moreover, the trial court could have concluded that the “site density”—
i.e., the number of housing units—in appellants’ plan was too low because it was
based upon an overly restrictive reading of the city code. The city’s expert observed
that the site could accommodate many more residences. Appellants’ expert agreed,
but indicated that would lower the value of each site.
{¶37} We also note that appellants could not establish that the present
zoning is economically unviable because, unlike in Ridge Club, there is an
economically-viable business on the property. Granted, the uses are non-
conforming, but they are specifically permitted to continue. See Cincinnati
Municipal Code 1447-03. With city approval, the present uses can expand or be
replaced by other nonconforming uses. See Cincinnati Municipal Code 1447-09 and
1447-11. Of course, what becomes of the property if the present uses cease is a
question for another day. The appellants did not prove beyond fair debate that the
zoning is not economically viable now.
{¶38} The term “revert” did not render the zoning unlawful. In
their fifth issue, appellants claim that “reverting” to RF-R zoning after the
termination of the PD-46 designation was illegal and invalid. Our review of the legal
meaning of the ordinance is de novo. Ceccarelli v. Levin, 127 Ohio St. 3d 231, 2010-
Ohio-5681, 938 N.E.2d 342, ¶ 8.
{¶39} After seven years and several extensions of the deadline to submit a
final development plan under the PD-46 zoning, the City Planning Commission
decided not to afford appellants another extension. Cincinnati Ordinance 39-2007,
which zoned the property PD-46, provided “That a Final Development Plan shall be
approved by the City Planning Commission in accordance with Section 1429-11(C) of
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OHIO FIRST DISTRICT COURT OF APPEALS
the Cincinnati Municipal Code, or the property will revert to the RF-R, Riverfront
Residential/Recreational District.”
{¶40} The trial court concluded, “The use of the word ‘revert’ was
unfortunate and inaccurate but if the City had used another word, the same thing
would have been accomplished.” Appellants now argue that the property could not
possibly “revert” to a zoning designation it never had. They do not contend that the
reference to RF-R in the ordinance was unintentional or a scrivener’s error. Their
argument is purely semantical. Appellants contend that the property should have
“reverted” to the PD-17 designation it had under the former zoning code before the
ordinance at issue changed the zoning to RF-R with a PD-46 designation. Under the
former code, the property had two different zoning designations, R-5(T) and RF-2,
with a designation entitled Planned Development 17. The R-5(T) and RF-2
designations no longer exist in the city’s zoning code. Appellants cite no precedent
regarding how the ordinance should be interpreted. Their only citation is to a single
aged case that was an ode against “contract zoning.” See Hausmann & Johnson, Inc.
v. Berea Bd. Of Bldg. Code Appeals, 40 Ohio App. 2d 432, 320 N.E.2d 685 (8th Dist.
1974).
{¶41} In response, the city relies on Mishr v. Poland Bd. of Zoning Appeals,
76 Ohio St. 3d 238, 667 N.E.2d 365 (1996), in which a divided Supreme Court ruled
that an ordinance repealing a rezoning ordinance implicitly reinstated the prior
zoning. The majority found the intent to reinstate the prior zoning to be clear, and
concluded that a reading that would render the property unzoned to be absurd. Id.
at 240. The dissent adopted the reasoning of the court of appeals that “[t]he only
way the property in question could have been returned to the designation it had
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OHIO FIRST DISTRICT COURT OF APPEALS
under the 1978 ordinance would have been for the repealing ordinance to contain
language sufficient to revive that designation.” Id. at 240-241.
{¶42} Following Mishr, the clear intent of Cincinnati Ordinance 39-2007 was
to rezone the property to RF-R if a final development plan was not approved. The
ordinance also likely satisfies the concerns of the Mishr dissent. RF-R is expressly
stated. This specific designation in Cincinnati Ordinance 39-2007 controls over the
general provision in the zoning code. See Springdale v. CSX Ry. Corp., 68 Ohio
St.3d 371, 376, 627 N.E.2d 534 (1994) (holding that specific statutory provisions
prevail over general ones). And there is a reason why the verb “revert” was used.
Cincinnati Municipal Code 1429-19(c) states that if a PD District expires “the zoning
of the PD District revert [sic] to the zoning district designation in effect immediately
before the PD designation.” Cincinnati Ordinance 39-2007 used “revert” to align
itself with the language of the city code. The best, fairest reading of Cincinnati
Ordinance 39-2007 is that it simultaneously rezoned the property PD-46 and
changed the underlying zoning to RF-R.
{¶43} The sixth issue is moot. In their sixth and final issue, appellants
contend that “when zoning is unconstitutional as applied * * *, it is the duty of the
trial court to determine whether the proposed use of the property is reasonable and
proper.”
{¶44} As we have already determined that the trial court correctly found the
zoning to be constitutional, we have no occasion to visit the final issue raised by
appellants and we disregard it as moot.
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OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶45} The assignment of error is overruled. The trial court’s well-reasoned
judgment that the zoning is constitutional as presently applied to the property in
question is affirmed.
Judgment affirmed.
ZAYAS, P.J., and MYERS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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