Korey v. Hunting Valley Planning & Zoning Comm.

[Cite as Korey v. Hunting Valley Planning & Zoning Comm., 2022-Ohio-4390.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
SYLVIA KOREY, TRUSTEE, :
Plaintiff-Appellant, :
v. : No. 111382
PLANNING AND ZONING :
COMMISSION OF THE VILLAGE
OF HUNTING VALLEY, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 8, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-897414
Appearances:
Mansour Gavin LPA, Anthony J. Coyne, Bruce G. Rinker,
Tracey S. McGurk, and Kathryn E. Weber, for appellant.
Stephen L. Byron, Hunting Valley Law Director, for
appellee.
Hauser Law LLC, and Laura A. Hauser, urging reversal for
amici curiae the Cleveland Restoration Society, Heritage
Ohio, and the National Trust for Historic Preservation.
SEAN C. GALLAGHER, A.J.:
Plaintiff-appellant Sylvia Korey, Trustee (“Korey”), appeals the
judgment of the Cuyahoga County Court of Common Pleas that found “the codified
ordinances of the Village of Hunting Valley zoning code as applied to [Korey’s]
property are constitutional.” Upon review, we affirm the judgment of the common
pleas court.
I. Procedural and Factual History
Korey is the owner of a residence, known as “Roundwood Manor,”
located in the Daisy Hill subdivision in the Village of Hunting Valley, Ohio (“the
Village” or “Hunting Valley”). Roundwood Manor is a 55,000 square-foot residence
situated on 7.69 acres of land in the Village’s U-1 single-family house district.1 Other
properties in the Daisy Hill neighborhood, and elsewhere in the Village, have been
developed in conformance with the Village’s zoning code.
Korey purchased her property in 1988 and has used the residence as
a single-family dwelling for over 30 years. Roundwood Manor was built in the 1920s
and originally served as a country home and business retreat to Oris Paxton
Van Sweringen and Mantis James Van Sweringen. Korey completed restoration
work on the property, and she and others have worked toward and advocated for the
historic preservation of Roundwood Manor. Korey began trying to sell the property
1 Hunting Valley Codified Ordinances 1155.01(a) provides that “the Village shall
consist of three use districts termed Class U1 (Single-Family House), Class U3
(Institutional), and Class CDD (Conservation Development District plus a category of
specially permitted uses termed Class U2 (Residential-Special Permit), a single height
district termed Class H1, and a single area district termed Class A1.”
in 2002, and eventually she began proposing to convert Roundwood Manor into six
luxury residences. However, under the current zoning classification, the residence
may only be used as a single-family dwelling and in the area district, the zoning code
prohibits more than one residential unit for each five acres of lot area. See Hunting
Valley Codified Ordinances 1155.03 and 1155.09(a).
In July 2017, Korey filed an application for a conditional-use permit,
which sought to convert Roundwood Manor from its current configuration as a
single-family residence into a multi-family dwelling consisting of six condominium
units. In the application, Korey expressed an objective for the historic preservation
of the “unique manor house” and indicated that Roundwood Manor “is, in its
history, architecture, and its strategic land use emblematic of the region’s golden age
of development.” Korey attached various documents in support of her application.
The Planning and Zoning Commission of the Village of Hunting
Valley (“the Commission”) heard testimony and took evidence regarding the
application. On April 10, 2018, the Commission issued a final order denying Korey’s
application for the conditional-use permit and her amended request for a special-
use permit. The Commission recognized the testimony supporting the historic
significance of Roundwood Manor and reflecting the shared interest in its historic
preservation, but the Commission found “the presumed historic significance of
[Roundwood Manor] does not preempt the zoning regulations of the Village.” The
Commission noted that there are other large prominent residences in the Village.
Among other findings, the Commission found that “[t]he five acres per residential
unit is the sine qua non of Hunting Valley’s Zoning Code” and that “every
development in the last 40 years has complied with the density requirement.”2 The
Commission concluded that varying from this requirement would not be “in general
keeping and compatible with the uses authorized for a Class U1 or Class U2
classification[,]” that “the residential density is not consistent with every other
residential development that has been built in the Village since the five-acres per
residential unit requirement was enacted as law[,]” and that “[t]he proposed use is
also likely to substantially injure the neighboring property and the entire Village.”
In the administrative appeal to the Cuyahoga County Court of
Common Pleas, the court rejected Korey’s arguments that the Commission’s
decision was unsupported by a preponderance of probative evidence, and the court
upheld the denial of Korey’s request for a special-use permit. Korey v. Planning and
Zoning Comm. of Hunting Valley, Cuyahoga C.P. No. CV-18-897414 (Mar. 13,
2020). The common pleas court also rejected Korey’s claim that the zoning
requirement of five acres per residential unit is unconstitutional as applied to
Korey’s property. Id.In the first appeal to this court, the panel affirmed the common pleas
court’s decision to uphold the Commission’s denial of Korey’s request for a special-
2 The Commission also took notice of its own past actions in that “[o]nly one
property has been developed in the Village pursuant to Chapter 1157 [Conditional Use
Regulations] and Chapter 1159 [Historic Settlement] of the Zoning Code: the
[Clanonderry] property in Daisy Hill” and that development was approved “because it met
all the Zoning Code’s requirements[,]” including the density requirement of one
residential unit per five acres of land.
use permit. Korey v. Planning & Zoning Comm. of Hunting Valley, 8th Dist.
Cuyahoga No. 109669, 2021-Ohio-1881, ¶ 40, 44 (“Korey I”). However, the panel
found that Korey was entitled to the opportunity to admit additional evidence
supporting her claim that the “5:1 acreage-to-residence zoning regulation” is
unconstitutional as applied to her property. Id. at ¶ 45-46, 55. The case was
remanded with instruction for the common pleas court to conduct a de novo hearing
to allow Korey to present additional evidence to support her argument that relevant
portions of the Village’s zoning code are unconstitutional as applied to Korey’s
property. Id. at ¶ 57. Additional background until this point of the case can be found
in Korey I. See id. at ¶ 3-44.
Upon remand from Korey I, the common pleas court conducted a
three-day de novo hearing that allowed the parties to present additional testimony
and evidence to address Korey’s constitutional challenge. Specifically, Korey
claimed the zoning regulation requiring five acres of lot area per residential unit is
unconstitutional as applied to the proposed use of her property. Several witnesses
testified at the hearing. We have reviewed the transcript of the proceedings and
include only a brief overview of some of the testimony herein.
On behalf of Korey, testimony was provided by Michael Fleenor, a
historic preservation expert who authored an application for historic preservation
of Roundwood Manor. He testified to the historic significance of the property, but
he did not say the proposed use was the only way that Roundwood Manor can be
preserved. Kristin Hopkins, an expert in land-use planning, testified that the five-
acre minimum lot size stemmed from deed restrictions that started with the Daisy
Hill subdivision and that an open-space plan was adopted as the master plan for the
entire Village. She testified that “currently the zoning code does not permit more
than one dwelling unit on a lot” and that she researched the number of lots in the
Village with more than one dwelling unit. She found 28 parcels in the county records
that have two or more dwelling units on one lot. For example, she indicated the
Clanonderry property, which was originally the stables to Roundwood Manor, has
three residential units; and the Ostendorf property, which are the former garages to
Roundwood Manor, has five units. Hopkins acknowledged that the Village’s zoning
code was passed in 1938 and has been amended over the years. Hopkins’s report
dated October 22, 2021, indicates that the former garages on the Ostendorf property
were converted to apartments by 1964, and the former stables on the Clanonderry
property were converted into residences in the late 1990s. Hopkins acknowledged
that the current zoning code, which was amended in 1999, provides that no
accessory building on a lot less than ten acres in area shall be designated or used for
residential purposes. See Hunting Valley Codified Ordinances 1155.04(a)(5).
Hopkins also conceded that the zoning code does not apply so long as the preexisting
nonconforming use does not change.
Among other matters, Korey testified regarding her ownership of the
property, to her interest in preserving Roundwood Manor, to the characteristics of
her property, to her efforts to sell the property, and to her proposed development of
Roundwood Manor.3 Former Hunting Valley Councilman William O’Neill, Jr., who
supported Korey’s proposal and her efforts to preserve Roundwood Manor,
recognized that one of the reasons for the five-acre minimum zoning requirement is
“to limit the number of residences that can be built on a given amount of land and
its design, of course, was to keep open space and the pasturable quality and scenic
beauty of Hunting Valley, to try to retain that.” He believed an exception should be
made for Korey’s property and submitted a document entitled “The Case to Save
Roundwood Manor” to the Village council. Hunting Valley Councilman Gerald
Medinger testified to his understanding that Korey would not be changing the ratio
of the building footprint to the amount of land. Nevertheless, he was opposed to
Korey’s proposal and indicated the five-acre minimum zoning requirement is
consistent with maintaining the character of the Village and the open space that the
legislative and executive branches of the Village have embraced for its residents.
On behalf of the Village, the deposition testimony of Stephen Morris
was played for the court. Morris, who formerly served on the Village’s Planning and
Zoning Commission, testified that the requirement of a five-acre minimum per
residential unit is an “integral [and] important part” of the Village’s zoning. He
testified a majority of the property owners in the Village have a deed restriction
limiting the use of their property to one residence per five acres of land. He indicated
the five-acre minimum restriction is part of the reason the Village is a desirable place
3 The testimony reflects that Korey does not have a deed restriction on her
property.
to live. He believed that the general welfare of the community was best served by
the restriction because it maintained open space and preserved environmental
values. He did not believe Korey’s proposal to convert her property into six
condominium units was consistent with the overall character of the community.
Sabrina Lahorra, president of the board of trustees of the Daisy Hill
Homeowners Association, testified that she would not have purchased a home in the
Daisy Hill subdivision if there was the potential of a very large home being converted
into six condominium units and that the board had unanimously voted against
Korey’s request to waive the deed restrictions. Lahorra indicated that she was aware
when she purchased her property of two preexisting properties in Daisy Hill with
accessory structures with more than one residence, including the Clanonderry
property and the Ostendorf property; however, she knew going forward all
properties in Daisy Hill would be single-family residences. She indicated that she
would not have purchased her property if there was a potential for the larger homes
to be converted into multi-family structures.
Donald Cunningham, the Hunting Valley building commissioner,
testified to each of the properties discussed in Hopkins’s report, which he indicated
have a preexisting nonconforming use, a permitted use at the time constructed, or
conform to the current zoning code’s five-acre minimum requirement. For example,
he testified that the Ostendorf residence was constructed in 1920, has the main
residence and four apartments, and is a preexisting nonconforming use; the Godsick
residence was built in 1941 and has a separate guest house that was a permitted use
at the time constructed; the Wolstein residence was built in 2006, has a detached
garage with two apartments, and is on 73.7 acres, which conforms to the current
zoning code; and the Clanonderry property was built in 1918 and met the
requirements for a historic-settlement district.
George Smerigan, the Village’s municipal planning expert, indicated
that the one dwelling unit per five-acre standard is the very heart of the Village’s
planning and zoning code and that environmental conditions make density control
and intensity of land use critical zoning issues. He noted that the topography of the
Village has areas of extreme slopes and very steep ravines and that there are no
sanitary sewers, difficult soils in terms of handling on-site septic systems, and some
substandard streets. He testified to his belief that the provisions of the Village’s
zoning code are based on standards of balancing the scope and intensity of land use
with the capability of the associated infrastructure. He also opined that multi-family
housing was incompatible with the established single-family character of the district
and that it would have adverse effects on the adjacent properties. He further opined
that allowing large single-family dwellings to be converted to multi-family
structures would change the character of the neighborhood and the community that
residents bought into and would have a detrimental effect on values within the
community. Smerigan testified that the Village has single-family detached
properties and single-family attached properties, which have separate entry and no
common halls or shared parking; but that the Village has no “multi-family” housing,
which has shared entrances, shared hallways, and shared parking arrangements.
Smerigan also testified that 16 of the 28 properties in Hopkins’s
report have more than five acres per residential unit. As for the other 12 properties,
Smerigan indicated that several were constructed prior to the enactment of the
Village’s zoning code in 1938 and are preexisting, lawful nonconforming uses. Those
that were built between 1938 and 1999 were permissible and legal at the time they
were constructed. Smerigan also pointed out that up until 1999, the Village’s zoning
code permitted accessory guest quarters on a property, but it was amended to
eliminate provision for those extra units and extra density.
The common pleas court issued a decision on February 25, 2022.
Korey v. Planning and Zoning Comm. of Hunting Valley, Cuyahoga C.P. No. CV-
18-897414 (Feb. 25, 2022). The court’s opinion reflects that it heard the testimony
provided, considered the entire record, and gave due consideration to Korey’s
constitutional challenge. Id. The court noted the witnesses who testified and briefly
commented on the testimony of the municipal planning experts. Id. The court
commented that Smerigan offered testimony that the Village’s zoning requirement
for a minimum of five acres per residential unit safeguards environmental values,
such as soils, aquifer, storm water, riparian areas, sanitation, environmentally
sensitive lands and habitat, slopes sensitive to erosion, and overall preservation of
open spaces. Id. The court also commented that Hopkins offered testimony that
Korey’s proposed use, which would not alter the footprint of the home, would not
adversely affect those environmental values, nor would it affect traffic, light, noise,
character, and open space of the Village. Id. The common pleas court recognized
from its previous determination of the request for a special-use permit that “the
density limits in the Village of five-acres per residential unit was the ‘core value’ of
the Village’s zoning code” and that “the facts previously established that an increase
of ‘noise, traffic and light in the Village’ would substantially harm the neighboring
properties.” Id. The court considered the additional evidence presented on Korey’s
as-applied challenge and set forth the proper standard of review. Id.
In its decision, the common pleas court rejected Korey’s argument
that because multiple accessory buildings and rental properties currently exist in the
Village, her proposed use of Roundwood Manor would be reflective of the character
of the Village. Id. The court found that “[while] accessory residential dwellings were
permitted prior to the enactment of Ordinance No. 1999-141, and some properties
in the Village (including [Korey’s] residence) have more than one dwelling unit
incorporated into an existing building (or an accessory building),” that these “are
considered lawful non-conforming prior uses” and “accessory residential dwellings
are no longer permitted” under the Village’s zoning code. Id. As the court observed,
In the U-1 District, the only new residential dwellings that are
permitted on a lot that is less than 10 acres in area is one single-family
dwelling per five acres of land. Nearly all of the Village is subject to
private deed restrictions, which prohibit the development of the land
in the Village at a density greater than one residential dwelling per five
acres. This is evidence of the investment-backed expectations of the
property owners in the Village that the character of the neighborhood
will be preserved.
Id.
The common pleas court concluded that the challenged zoning
provision is constitutional as applied to Korey’s property, stating as follows:
[The] Court finds [the] Village’s ordinances, as applied to
[Korey’s] property, advance the health, safety and welfare of the Daisy
Hill neighborhood and the whole of [the] Village. [Korey] has failed to
establish beyond fair debate that the five-acre minimum zoning
ordinance was [arbitrary] and unreasonable or substantially unrelated
to the public health, safety, or general welfare of the Village of Hunting
Valley. [Korey’s] interest in increasing the marketability of her
property and/or its preservation [does] not render the Hunting Valley
codified ordinance as applied to her property unconstitutional. While
the Court is sympathetic to Mrs. Korey’s cause, this Court is bound to
the law before it.
Accordingly, upon consideration of the entire record including
the de novo hearing, the Court finds that the codified ordinances of the
Village of Hunting Valley[’s] zoning code as applied to [Korey’s]
property are constitutional.
Id.
Korey timely filed this appeal. This court granted a motion for leave
to file an amicus curiae brief in support of appellant instanter filed by the Cleveland
Restoration Society, Heritage Ohio, and the National Trust for Historic
Preservation. We have reviewed all the briefing and the record before us.
II. Assignments of Error
Under her first assignment of error, Korey challenges the common
pleas court’s evaluation of her as-applied constitutional challenge. She maintains
that her proposed use of her land “does not adversely affect the public interests
advanced by the 5-acre house-to-land regulation.”4 Under her second assignment
4 Korey does not assert a facial challenge to the zoning or allege a taking of the
property.
of error, Korey argues the common pleas court erred by basing its decision on the
opinion testimony of the Village’s municipal planning expert. Korey claims that the
court failed to undertake its obligation as “gatekeeper” of expert-opinion evidence
and that Smerigan’s testimony was “incompetent, speculative, conclusory and/or
was not the product of ‘reliable, scientific, technical, or other specialized
information.’” Under her third assignment of error, Korey claims the common pleas
court’s decision is against the manifest weight of the evidence. Among other
assertions, Korey claims that the common pleas court turned a blind eye to the
evidence, that the court abdicated its duty to adjudicate upon the evidence, that the
contentions of the Village’s witnesses lack merit, and that Korey proved her as-
applied constitutional claim.
III. Law and Analysis
In an administrative appeal in which a landowner challenges the
constitutionality of a zoning ordinance as applied, the issue of constitutionality
presented for determination is “whether the ordinance, in proscribing a landowner’s
proposed use of his land, has any reasonable relationship to the legitimate exercise
of police power by the municipality.” Mobil Oil Corp. v. Rocky River, 38 Ohio St.2d
23, 309 N.E.2d 900 (1974), syllabus. A zoning ordinance is presumed to be
constitutional, and the party challenging the ordinance’s constitutionality has the
burden to demonstrate “beyond fair debate” that the ordinance at issue is arbitrary
and unreasonable, and without substantial relation to the public health, safety,
morals, or general welfare of the community, as applied to the particular property.
Jaylin Invests., Inc. v. Moreland Hills, 107 Ohio St.3d 339, 2006-Ohio-4, 839
N.E.2d 903, ¶ 13, citing Goldberg Cos. v. Council of Richmond Hts., 81 Ohio St.3d
207, 214, 690 N.E.2d 510 (1998). “[T]he object of scrutiny is the legislative action”
and “[t]he zoning ordinance is the focal point of the analysis, not the property
owner’s proposed use * * *.” Id. at ¶ 18. Consequently, “[t]he 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.” Id. As held in Jaylin, “[i]n an ‘as applied’ challenge,
the proposed use may be a relevant factor to be considered; however, the owner
must also present evidence to overcome the presumption that the zoning is a valid
exercise of the municipality’s police powers, as it is applied to the property at issue.”
Id. at ¶ 2. “‘The legislative, not the judicial, authority is charged with the duty of
determining the wisdom of zoning regulations, and the judicial judgment is not to
be substituted for the legislative judgment in any case in which the issue or matter
is fairly debatable.’” Cent. Motors Corp. v. Pepper Pike, 73 Ohio St.3d 581, 584, 653
N.E.2d 639 (1995), quoting Willott v. Beachwood, 175 Ohio St. 557, 560, 197 N.E.2d
201 (1964).
In this matter, the lower court correctly stated the law, engaged in a
proper analysis when evaluating the facts, and determined that Korey did not
demonstrate beyond fair debate that the five-acre minimum zoning ordinance is
arbitrary and unreasonable, and without substantial relation to the public health,
safety, morals, or general welfare of the community, as applied to her property.
Korey, Cuyahoga C.P. No. CV-18-897414 (Feb. 25, 2022). Upon our review, we
agree that Korey failed to meet her burden of proof and did not establish the zoning
ordinance is unconstitutional as applied to her property.
We begin with the presumption that the Village’s zoning ordinances
are constitutional. Jaylin at ¶ 18. Here, the Village’s zoning code provides that the
general purpose of the zoning regulations is “to promote and protect the public
health, safety, convenience, comfort, prosperity and general welfare throughout the
Village * * *.” Hunting Valley Codified Ordinances 1151.02. Among other intended
objectives, the provisions are to be applied “[t]o conserve and protect open space,
valuable residential property and the reasonable use of private property by
individuals.” Hunting Valley Codified Ordinances 1151.02(a). To that end, the
zoning code provides for a single-family house district but regulates “the number of
square feet of lot area per family housed” in a single area district. Hunting Valley
Codified Ordinances 1155.01. The zoning code requires that “[i]n a Class A1 District,
no dwelling shall be erected or altered to accommodate or make provision for more
than one family for each five (5) acres of lot area.” Hunting Valley Codified
Ordinances 1155.09(a). The zoning code further provides that “[n]o building or
premises shall be erected or used except in conformity with the regulations herein
prescribed for the use, height and area districts in which such building or premises
are located.” Hunting Valley Codified Ordinances 1151.01.
The object of scrutiny is the legislative action, and the analysis focuses
on the legislative judgment underlying the Village’s zoning ordinances, as it is
applied to Korey’s property. Jaylin, 107 Ohio St.3d 339, 2006-Ohio-4, 839 N.E.2d
903, at ¶ 18. As applied to Korey’s property, which is zoned for single-family use
and has less than eight acres, the five-acre minimum zoning ordinance prohibits
Korey from having more than one residential unit per five acres of land. The issue
to be considered is whether the Village’s zoning ordinance, as applied to prohibit
Korey’s proposed use of her property as a multi-family structure with six
condominium units, has any reasonable relationship to the legitimate exercise of
police power by the Village. See id. at ¶ 20, citing Mobil Oil, 38 Ohio St.2d 23, 309
N.E.2d 900, at syllabus.
Testimony was provided by Morris that the five-acre minimum per
residential unit requirement is an integral part of the Village’s zoning, that a
majority of property owners in the Village have a deed restriction, and that the five-
acre restriction serves the general welfare of the community by conserving open
space and protecting environmental values. The Village’s municipal planning
expert, Smerigan, testified that the one dwelling unit per five-acre standard is the
very heart of the Village’s zoning code. He referred to the Village’s “extreme
topographic conditions” and indicated that the zoning requirement is intended to
protect environmental values, to control the intensity of land use, and to maintain
reasonable density of development. Smerigan also testified that there is no multi-
family housing in the Village and that multi-family housing is incompatible with the
established single-family character of the district. Consistent with these purposes,
Village resident Lahorra testified that she bought into the single-family character of
the Daisy Hill neighborhood and that the Daisy Hill board of trustees unanimously
voted against waiving deed restrictions. The record demonstrates that the Village’s
five-acre minimum zoning ordinance, in prohibiting Korey’s proposed use of her
property, advances the Village’s legitimate interests in conserving open space,
protecting environment values, maintaining reasonable density of development,
and preserving the single-family character of the Village, among other purposes.
“The challenge must focus on the constitutionality of the ordinance as
applied to prohibit the proposed use, not the reasonableness of the proposed use.”
Id. at ¶ 20. Korey makes the inverse argument. She states that her argument
“presupposes that the zoning ordinance advances legitimate public interests of
health, safety, morals and welfare.” She argues that “the harm sought to be avoided”
bears no relation to her proposed interior renovation of Roundwood Manor, that the
unique facts involving her property must be considered, and that her proposed use,
which does not change the footprint of the home, does not adversely affect the public
interests advanced by the zoning regulation. But the issue is not whether the
proposed use meets the government’s legitimate goals underlying the zoning
enactment. See id. at ¶ 18. As the Supreme Court indicated in Jaylin, whether a
proposed use advances the stated governmental interest does not address the issue
of “’whether [the] zoning ordinance [at issue] advances a legitimate government
interest.’” See id. at ¶ 23, quoting Cent. Motors, 73 Ohio St.3d at 586, 653 N.E.2d
639.
Although the proposed use may be a relevant factor to be considered
in analyzing the zoning ordinance’s application to the particular property at issue,
the analysis does not focus on the municipality’s failure to approve what the owner
suggests may be a better use of the property. See Jaylin, 107 Ohio St.3d 339, 2006-
Ohio-4, 839 N.E.2d 903, at ¶ 18. Korey has used her property as a single-family
home for over three decades in conformance with the Village’s zoning code. The
five-acre minimum zoning ordinance precludes her proposed conversion of her
single-family residence into six condominium units. Insofar as Korey has worked
toward the restoration of Roundwood Manor and she, the amici curiae, and others
have advocated in favor of historic preservation, such evidence does not in and of
itself render the zoning ordinance unconstitutional, as applied to prohibit the
proposed use. As the lower court observed, “[Korey’s] interest in increasing the
marketability of her property and/or its preservation [does] not render the Hunting
Valley codified zoning ordinance as applied to her property unconstitutional.”
Korey, Cuyahoga C.P. No. CV-18-897414 (Feb. 25, 2022); see also Jaylin.
“‘The burden of proof remains with the party challenging an
ordinance’s constitutionality * * *.’” Jaylin at ¶ 13, quoting Goldberg, 81 Ohio St.3d
at 214, 690 N.E.2d 510. Korey proceeds to argue that there are other properties in
the Village that do not meet the five-acre ratio. Although Korey’s land-use planning
expert, Hopkins, pointed to other properties that have more than one dwelling unit
on the property, the record reflects those properties had a preexisting
nonconforming use, a permitted use under prior zoning provisions, or conform to
the current zoning code. The amicus brief refers to several of the same properties,
some of which have a primary residence and a “guest cottage” on the lot.5 However,
this fails to account for the fact that up until 1999, the Village’s zoning code
permitted accessory guest quarters on a property. The record reflects that the
Village has uniformly enforced its zoning code, that there are no “multi-family”
dwellings in the Village, and that accessory residential uses have not been permitted
on properties less than ten acres since 1999.
Korey also argues that historic preservation is an attribute of Hunting
Valley and there are three named historic settlements listed in Chapter 1159 of the
Village’s zoning code, including the Clanonderry property. However, unlike Korey’s
property, Clanonderry met all the requirements for a historic-settlement district
under the Village’s zoning code, including the density requirement. The Village does
not dispute the value of historic preservation, and the zoning code permits
designation of historic districts when requirements are met. However, the Village
has never permitted multi-family housing, and the five-acre minimum per
residential unit remains a core value of the Village’s zoning code. As already
discussed, the Village has legitimate interests in the preservation of open space and
important environmental values. Also, the testimony provided was reflective of
residents’ expectations in maintaining reasonable density of development, the
5 We note that the amicus brief points to several properties that do not meet the
requirement of five acres per residential unit, including four properties built between
1938 and 1999, each having a main house and an accessory structure, and to five
properties built before 1938 that were “presumably ‘grandfathered’ in 1938.”
scenic landscape, and the single-family character of the community. Korey fails to
show that the Village’s land-use policy has been exercised in an arbitrary or
unreasonable manner. As expressed by the Supreme Court of Ohio, “‘The power of
a municipality to * * * determine land-use policy is a legislative function which will
not be interfered with by the courts, unless such power is exercised in such an
arbitrary, confiscatory, or unreasonable manner as to be in violation of
constitutional guaranties.’” Id. at ¶ 21, quoting Willott, 175 Ohio St. 557, 197 N.E.2d
201, at paragraph three of the syllabus.
Our review of the record reflects Korey failed to demonstrate “beyond
fair debate” that the five-acre minimum zoning ordinance is arbitrary and
unreasonable, and without substantial relation to the public health, safety, or
general welfare of the community, as applied to her property. We agree with the
common pleas court’s determination that the Village’s zoning ordinance as applied
to Korey’s property is constitutional.
Finally, we address Korey’s challenge to the admission of certain
testimony of the Village’s municipal planning expert. Korey maintains that the
lower court, as gatekeeper, should have evaluated the reliability of the opinions
offered by Smerigan that were not within his area of expertise. She argues that being
a qualified municipal planner does not automatically qualify Smerigan to render
opinions on traffic, noise, light, septic systems, aquifers, hillside slopes prone to
erosion, wetlands, habitat, and other environmentally sensitive lands.
The admission of expert testimony is a matter committed to the
sound discretion of the trial court. State v. Biros, 78 Ohio St.3d 426, 452, 678
N.E.2d 891 (1997), citing State v. Williams, 74 Ohio St.3d 569, 576, 660 N.E.2d 724(1996). Here the matter was heard by the common pleas judge. The record reflects
that the judge properly evaluated the evidence when considering the
constitutionality of the zoning ordinance as applied to Korey’s property. Smerigan
testified to the underlying purposes of the Village’s zoning provision allowing only
one single-family dwelling unit per five acres, which he stated was intended to
control the intensity of land use and maintain reasonable density levels. He shared
his opinion as a land-use planner that multi-family housing was incompatible with
the established single-family character of the district and of the adverse effects the
requirement was intended to protect against, such as increasing traffic volume,
increasing light and noise, and putting pressures on the carrying capacity of both
the land and associated infrastructure. The court sustained an objection raised as
to how specifically the conversion of Korey’s property into six condominiums would
affect the environment. On cross-examination, Smerigan was questioned
extensively regarding the concerned impacts and environmental values as related to
Korey’s proposed use of her property. From our review of the testimony, we do not
find any abuse of discretion occurred. Even assuming solely for the sake of
argument that there was error in the admission of certain aspects of Smerigan’s
testimony, we find that error to be harmless since it did not prejudice the substantial
rights of Korey. See Civ.R. 61.
We have fully considered all the arguments presented by Korey, as
well as in the amicus brief, and are not persuaded by any other argument not
specifically addressed herein. The assignments of error are overruled.
IV. Conclusion
We agree with the common pleas court that Korey failed to
demonstrate, beyond fair debate, that the zoning ordinance at issue is arbitrary and
unreasonable and without substantial unrelation to the public health, safety, morals,
or general welfare of the community, as applied to prohibit Korey’s proposed use of
her property. We affirm the judgment of the common pleas court finding the
Village’s zoning ordinances as applied to Korey’s property are constitutional.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
__________
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., and
MARY EILEEN KILBANE, J., CONCUR