[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                          :


                                                ...........

                                                OPINION

                          Rendered on the 1st day of December, 2017.

                                                ...........

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
                                                                                          -5-


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
                                                                                           -6-


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
                                                                                            -7-


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
                                                                                             -8-

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
                                                                                             -9-


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
                                                                                        -10-


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.

                                  .............



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
