[Cite as State ex rel. Fair v. Canton, 2012-Ohio-779.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE ex rel. TAMMY FAIR                                    JUDGES:
                                                            Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellant                                 Hon. William B. Hoffman, J.
                                                            Hon. John W. Wise, J.
-vs-
                                                            Case No. 2011 CA 00132
CITY OF CANTON

        Defendant-Appellee                                  OPINION




CHARACTER OF PROCEEDING:                                 Civil Appeal from the Court of Common
                                                         Pleas, Case No. 2011 CV 00189


JUDGMENT:                                                Affirmed



DATE OF JUDGMENT ENTRY:                                  February 27, 2012



APPEARANCES:

For Plaintiff-Appellant                                  For Defendant-Appellee

ALYSSA KEENEY                                            KEVIN R. L'HOMMEDIEU
Post Office Box 39631                                    THOMAS R. CURNS
Solon, Ohio 44139                                        CANTON LAW DEPARTMENT
                                                         218 Cleveland Avenue, SW
WARNER MENDENHALL                                        Canton, Ohio 44701-4218
190 North Union Street, Suite 201
Akron, Ohio 44304
Stark County, Case No. 2011 CA 00132                                                 2

Wise, J.

       {¶ 1} Appellants Tammy Fair and Total Image, LLC appeal the decision of the

Stark County Common Pleas Court granting summary judgment in favor of Appellee

City of Canton.

                       STATEMENT OF THE FACTS AND CASE

       {¶ 2} In August, 2001, Appellant Tammy Fair purchased property located at

3400 West Tuscarawas Street in Canton, Ohio. The structure on the property was a

Victorian, two-and-a-half story, red brick house. The property had previously been

zoned as a “PB-3, custom draperies and resale shop”. Appellant Fair wanted to operate

a salon/spa business on the property so she applied for a planned district zone change

to a “PB-3, beauty salon and day spa.”

       {¶ 3} On October 29, 2001, Canton City Council approved the planned district

zoning change.

       {¶ 4} Appellant Total Image, LLC obtained a $65,000 loan from the Canton

Community Improvement Corporation to remodel the property and purchase equipment,

then opened a full-service salon and spa, offering massage, skin care, nails and

pedicures and full hair service.

       {¶ 5} Appellant Fair operated Total Image at that location until early 2009 when

it defaulted on its loan and closed its doors.

       {¶ 6} On two occasions prior to the closing of Total Image, once in 2005 and

again in 2008, Appellant was approached by a real estate developer whose client

wanted to build a Walgreen’s drugstore at that location.    Appellant entered into an

agreement, contingent on the developer’s client’s ability to purchase the surrounding
Stark County, Case No. 2011 CA 00132                                                   3


properties and obtain the necessary zoning change from the current PB-3 to a General

Business District, B-3.

       {¶ 7} In 2006, Appellant Tammy Fair attempted to gain approval to change her

parcel from "PB-3" to “B-3” so that she could close on an offer to purchase the property

but was unsuccessful.

       {¶ 8} In 2008, the developer again approached Appellant Fair with a similar

offer to purchase, but Fair was again unsuccessful in her attempts of obtain the change

in zoning.

       {¶ 9} On January 18, 2011, Appellant Fair filed a Complaint with Stark County

Court of Common Pleas seeking a declaratory judgment that the City of Canton’s

ordinances regarding “Planned” zoning districts is unconstitutional and further seeking a

writ of mandamus compelling the City of Canton to commence an action and

compensate her for the taking of her property without just compensation.

       {¶ 10} On May 9, 2011, Appellee filed a motion for summary judgment on all

issues.

       {¶ 11} On May 23, 2011, Appellants filed a response to Appellee’s motion for

summary judgment.

       {¶ 12} By Judgment Entry filed June 8, 2011, the trial court granted Appellee City

of Canton’s Motion for Summary Judgment, finding that the City of Canton’s zoning

ordinance is “constitutional on its face and as applied to Fair as it bears a rational

relationship to a legitimate regulatory purpose.”

       {¶ 13} Appellants assign the following errors for review:
Stark County, Case No. 2011 CA 00132                                                4


                                ASSIGNMENTS OF ERROR

       {¶ 14} “I. THE COURT ERRED AS A MATTER OF LAW IN FINDING THAT THE

ORDINANCE IS CONSTITUTIONAL ON ITS FACE AND AS APPLIED TO

PLAINTIFF’S     PROPERTY       BECAUSE       IT   IS   ARBITRARY,      CAPRICIOUS,

UNREASONABLE, CONFISCATORY.

       {¶ 15} “II. THE COURT ERRED AS A MATTER OF LAW IN FINDING THAT THE

ORDINANCE IS CONSTITUTIONAL ON ITS FACE AND AS APPLIED TO

PLAINTIFF’S PROPERTY BECAUSE IT VIOLATES THE EQUAL PROTECTION

CLAUSE OF THE OHIO CONSTITUTION.

       {¶ 16} “III. THE COURT ERRED AS A MATTER OF LAW IN NOT FINDING

THAT     THE    ORDINANCE       CONSTITUTES        A   TAKING      WITHOUT      JUST

COMPENSATION, AND GRANTING SUMMARY JUDGMENT TO DEFENDANT CITY

OF CANTON ON THIS ISSUE.”

                                 STANDARD OF REVIEW

       {¶ 17} We will first address the standard of review applicable to Appellants'

Assignments of Error.

       {¶ 18} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639, 1996-Ohio-211:

       {¶ 19} “Civ.R. 56(C) provides that before summary judgment may be granted, it

must be determined that (1) no genuine issue as to any material fact remains to be

litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it

appears from the evidence that reasonable minds can come to but one conclusion, and
Stark County, Case No. 2011 CA 00132                                                     5


viewing such evidence most strongly in favor of the nonmoving party, that conclusion is

adverse to the party against whom the motion for summary judgment is made. State ex

rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing

Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364

N.E.2d 267, 274.”

      {¶ 20} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30

Ohio St.3d 35, 506 N.E.2d 212.

                                          I., III.

      {¶ 21} In their first and third assignments of error, Appellants claim that the trial

court erred in not finding that the Canton City Ordinance is unconstitutional both on its

face and as applied and that such zoning is not an unconstitutional taking of her

property without just compensation. We disagree.

      {¶ 22} We begin our analysis of Appellants’ challenge to the Canton City

Ordinance by recognizing that zoning ordinances are presumed to be constitutional.

Goldberg Cos., Inc. v. Richmond Hts. City Council (1998), 81 Ohio St.3d 207, 209;

State v. Dorso (1983), 4 Ohio St.3d 60, 61, 446 N.E.2d 449. Courts must apply “all

presumptions and pertinent rules of construction so as to uphold, if at all possible, a

statute or ordinance assailed as unconstitutional.” Id. A court should not declare a

legislative enactment unconstitutional if there is a rational interpretation that would

preserve its constitutionality. State v. Sinito (1975), 43 Ohio St.2d 98, 101, 330 N.E.2d

896. Zoning ordinances are presumed constitutional unless a court determines that the
Stark County, Case No. 2011 CA 00132                                                   6


ordinance is “clearly arbitrary and unreasonable and without substantial relation to the

public health, safety, morals, or general welfare of the community.” Goldberg Cos., Inc.

v. Richmond Hts. City Council (1998), 81 Ohio St.3d 207, 214, 690 N.E.2d 510.

       {¶ 23} In order to invalidate a zoning ordinance, the challenging party must

demonstrate, beyond fair debate, that the zoning classification is “‘arbitrary and

unreasonable, having no substantial relation to the public health, safety, morals, or

general welfare.’“ Id. at 210. (Citation omitted.) The “beyond fair debate” standard is

similar to the “beyond a reasonable doubt” standard used in the context of a criminal

trial. Heritage Dev. Co., LLC v. Willoughby Hills, 11th Dist. No. 2001-L-221, 2002-Ohio-

7269, at ¶ 17. (Citation omitted.)

       {¶ 24} In the context of this case, Appellants are raising two types of challenges

to the zoning ordinance: a facial challenge and an as-applied challenge.

       {¶ 25} A zoning ordinance can be challenged on its face or on the particular set

of facts to which the statute has been applied. Harold v. Collier, 107 Ohio St.3d 44,

2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37, citing Belden v. Union Cent. Life Ins.

Co. (1944), 143 Ohio St. 329, 28 O.O. 295, 55 N.E.2d 629, paragraph four of the

syllabus. When a statute is challenged on its face, the challenger must demonstrate that

no set of circumstances exists under which the statute would be valid. Id., citing United

States v. Salerno (1987), 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697. The fact

that the statute could operate unconstitutionally under some given set of facts or

circumstances is insufficient to render it wholly invalid. Id.”

       {¶ 26} Conversely, when a statute is challenged as applied, the challenger must

establish by clear and convincing evidence an existing set of facts that renders the
Stark County, Case No. 2011 CA 00132                                                       7

statute invalid when applied to those facts.” Smith v. Jones, 175 Ohio App.3d 705,

2007-Ohio-6708, 889 N.E.2d 141, ¶ 14, citing Harold, 107 Ohio St.3d 44, 2005-Ohio-

5334, 836 N.E.2d 1165, at ¶ 38.

       {¶ 27} The Supreme Court of Ohio has stated:

       {¶ 28} “In a facial challenge to a zoning ordinance, the challenger alleges that the

overall ordinance, on its face, has no rational relationship to a legitimate governmental

purpose and it may not constitutionally be applied under any circumstances.* * *

       {¶ 29} “In an ‘as applied’ challenge to a zoning ordinance, the landowner

questions the validity of the ordinance only as it applies to a particular parcel of

property. If the ordinance is unconstitutional as applied under those limited

circumstances, it nevertheless will continue to be enforced in all other instances. * * * A

landowner may also allege that the ordinance so interferes with the use of the property

that, in effect, it constitutes a taking of the property. * * *.” Jaylin Investments, Inc. v.

Moreland Hills, 107 Ohio St.3d 339, 2006-Ohio-4, at ¶ 11-12. (Internal citations

omitted.)

       {¶ 30} In the case sub judice, Appellant is alleging that the City of Canton’s

zoning constitutes a taking of her property.

                                     Facial Challenge

       {¶ 31} As set forth above, when a zoning ordinance is challenged on its face, the

challenger must demonstrate that no set of circumstances exists under which the

statute would be valid. Id., citing United States v. Salern, supra.

       {¶ 32} The Supreme Court of Ohio has stated:
Stark County, Case No. 2011 CA 00132                                                        8


       {¶ 33} “In a facial challenge to a zoning ordinance, the challenger alleges that

the overall ordinance, on its face, has no rational relationship to a legitimate

governmental purpose and it may not constitutionally be applied under any

circumstances.* * *

       {¶ 34} Here, the codified policy of Canton’s zoning ordinance is to “promote the

stability and preservation of residential neighborhoods” and to “encourage the economic

stability and growth.”

       {¶ 35} Upon review, we find that the “Planned” designation in the case sub judice

guarantees that properties who apply for a zoning change, use the property in

accordance with the zoning change. We find that such ordinance is rationally related to

encourage the economic stability and growth while protecting the stability and

preservation of residential neighborhoods.

       {¶ 36} As such, we do not find such ordinance to be unconstitutional on its face.

                                   As-applied Challenge

       {¶ 37} In Jaylin, supra, the Supreme Court of Ohio reiterated the appropriate

analysis to employ when considering whether a zoning ordinance is constitutional, as

applied to a property owner.

       {¶ 38} “In a constitutional analysis, the object of scrutiny is the legislative action.

The zoning ordinance is the focal point of the analysis, not the property owner's

proposed use, and the analysis begins with a presumption that the ordinance is

constitutional. The analysis focuses on the legislative judgment underlying the

enactment, as it is applied to the particular property, not the municipality's failure to

approve what the owner suggests may be a better use of the property. If application of
Stark County, Case No. 2011 CA 00132                                                       9


the zoning ordinance prevents an owner from using the property in a particular way, the

proposed use is relevant but only as one factor to be considered in analyzing the zoning

ordinance's application to the particular property at issue.” Jaylin, 107 Ohio St.3d 339, at

¶ 18.

        {¶ 39} “In an ‘as applied’ challenge to a zoning ordinance, the landowner

questions the validity of the ordinance only as it applies to a particular parcel of

property. If the ordinance is unconstitutional as applied under those limited

circumstances, it nevertheless will continue to be enforced in all other instances. * * * A

landowner may also allege that the ordinance so interferes with the use of the property

that, in effect, it constitutes a taking of the property. * * *.” Jaylin Investments, Inc. v.

Moreland Hills, 107 Ohio St.3d 339, 2006-Ohio-4, at ¶ 11-12. (Internal citations

omitted.)

        {¶ 40} Here, Appellant sought and successfully obtained a zoning designation

change when she purchased the property. In fact, she operated a business at this

location under that “Planned” zoning designation for approximately eight years. The

ordinance herein does not render the property economically non-viable; it is just that

now Appellant needs a different zoning designation to allow her to engage in a more

lucrative sale of her property.

        {¶ 41} Appellant’s inability to get a second zoning designation change does not

make the zoning ordinance unconstitutional as applied to Appellant’s property. We find

that the zoning ordinance herein furthers the purpose preserving the integrity of the

surrounding neighborhoods.
Stark County, Case No. 2011 CA 00132                                                     10


       {¶ 42} We find that Appellant has not demonstrated beyond fair debate, that the

zoning classification is “arbitrary and unreasonable, having no substantial relation to the

public health, safety, morals, or general welfare.”

                                     Takings Clause

       {¶ 43} Appellant has also argued that the zoning ordinance herein constitutes an

unconstitutional taking of her property, in violation of the Fifth Amendment of the United

States Constitution, for which she is entitled to compensation. More specifically,

Appellant argues that the ordinance herein interferes with an investment expectation in

the property.

       {¶ 44} “As its text makes plain, the Takings Clause ‘does not prohibit the taking

of private property, but instead places a condition on the exercise of that power.’ * * * In

other words, it ‘is designed not to limit the governmental interference with property rights

per se, but rather to secure compensation in the event of otherwise proper interference

amounting to a taking.’ * * * While scholars have offered various justifications for this

regime, we have emphasized its role in ‘bar[ring] Government from forcing some people

alone to bear public burdens which, in all fairness and justice, should be borne by the

public as a whole.’ ” Lingle, at 536-537. (Citations omitted; emphasis sic.) Cf. Section

19, Article I, Ohio Constitution (providing that private property shall not be taken for

public use without just compensation).

       {¶ 45} “Two types of regulatory actions will be deemed to be per se takings for

Fifth Amendment purposes: first, those government actions that cause an owner to

suffer a permanent physical invasion of property * * * and second, government

regulations that completely deprive an owner of ‘all economically beneficial uses' of the
Stark County, Case No. 2011 CA 00132                                                  11

property.” Shelly Materials, at ¶ 18, quoting Lucas v. South Carolina Coastal Council

(1992), 505 U.S. 1003, 1019, 112 S.Ct. 2886, 120 L.Ed.2d 798. (Emphasis sic.)

      {¶ 46} The Ohio Supreme Court held the application of a zoning ordinance to a

particular parcel of land is not deemed an unconstitutional taking unless the zoning

designation denies the landowner all economically viable use of the land, State ex rel.

Shemo v. Mayfield Heights, 95 Ohio St.3d 59, 2002-Ohio-1627; Shankel v. City of

Canton, Stark App.No. 2006-CA-0004, 2006-Ohio-4070.

      {¶ 47} A zoning regulation has denied all economically viable uses of land where

the regulation so “restricts the use of the land as to render it valueless, the permitted

uses are not economically feasible, or the regulation permits only uses which are highly

improbable or practically impossible under the circumstances.” Valley Auto Lease of

Chagrin Falls, Inc. v. Auburn Tp. Bd. of Zoning Appeals (1988), 38 Ohio St.3d 184, 186.

      {¶ 48} Upon review, we find that the trial court did not err in finding Appellants

still have the ability to use the subject property as zoned. The property is usable to

Appellants as a “PB-3” zoned property, just not to their best economic advantage. See

Shankel v. City of Canton, Stark App.No. 2006-CA-00004, 2006-Ohio-4070.

      {¶ 49} Appellant’s first and third assignments of error are overruled.

                                           II.

      {¶ 50} In her second assignment of error, Appellant argues that the ordinance

herein is unconstitutional because it violates the equal protection clause of Ohio’s

Constitution. We disagree.
Stark County, Case No. 2011 CA 00132                                                        12


       {¶ 51} Appellant argues that other surrounding parcels which are similarly

situated are not subject to the designation of “Planned” district, thereby burdening

“Planned” owners and not others.

       {¶ 52} The Fourteenth Amendment to the United States Constitution provides

that “[no] State shall * * * deny to any person within its jurisdiction the equal protection of

the laws.”

       {¶ 53} “The limitations placed upon governmental action by the Equal Protection

Clauses of the Ohio and United States Constitutions are essentially identical.” Kinney v.

Kaiser Aluminum & Chem. Corp. (1975), 41 Ohio St.2d 120, 123, 322 N.E.2d 880, citing

Porter v. Oberlin (1965), 1 Ohio St.2d 143, 205 N.E.2d 363. When the government

treats similarly situated individuals differently, such action implicates equal protection.

Cleburne v. Cleburne Living Ctr., Inc. (1985), 473 U.S. 432, 439, 105 S.Ct. 3249, 87

L.Ed.2d 313.

       {¶ 54} It is fundamental that legislation cannot be attacked merely because it

creates distinctions and thereby classifies the subjects of a law because legislation, by

its very nature, treats people by groups and classes and must, of necessity, draw its

lines based upon “amalgamations of factors.” Vance v. Bradley (1979), 440 U.S. 93,

109, 99 S.Ct. 939, 59 L.Ed.2d 171.

       {¶ 55} Further, in the absence of a fundamental right or suspect class, a

legislative classification will be upheld if it is rational. Id.; Williamson v. Lee Optical of

Oklahoma, Inc. (1955), 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563. Because no

fundamental right or suspect class is involved here, the rational basis test is applicable

to determine whether the ordinance herein violates equal protection.
Stark County, Case No. 2011 CA 00132                                                     13


       {¶ 56} Pursuant to this test, an ordinance will be held to be constitutional if it is

rationally related to any legitimate governmental interest. Cleburne, supra, at 440.

Again, enactments of the legislature are valid if “they bear a real and substantial relation

to the object sought to be obtained, namely, the health, safety, morals or general

welfare of the public, and are not arbitrary, discriminatory, capricious or unreasonable.

*** The federal test is similar. To determine whether such statutes are constitutional

under federal scrutiny, we must decide if there is a rational relationship between the

statute and its purpose.” (Internal citations omitted.) State v. Thompkins, 75 Ohio St.3d

558, 560, 664 N.E.2d 926, 1996-Ohio-264. In Police Department of the City of Chicago

v. Mosley (1972), 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212, the Supreme Court held:

“As in all equal protection cases, * * * the crucial question is whether there is an

appropriate governmental interest suitably furthered by the differential treatment.” Id. at

95.

       {¶ 57} In applying the rational basis test, a court will not overturn an ordinance

unless the varying treatment of different groups or persons is so unrelated to the

achievement of a legitimate governmental purpose that the court can only conclude the

legislature's actions were irrational. Vance, supra, at 97.

       {¶ 58} Here, this Court has found that the City of Canton has a legitimate interest

in creating the “Planned” district.    We therefore find such ordinance to be facially

constitutional, and find no equal protection violation.

       {¶ 59} Likewise, we find that Appellant has failed to prove that such ordinance is

unconstitutional in its application. To succeed on her challenge, she must show that
Stark County, Case No. 2011 CA 00132                                                   14


similarly situated persons were treated differently and that such disparate treatment was

motivated by a discriminatory purpose.

       {¶ 60} Appellant has failed to show that a property like hers, surrounded by

residential properties, obtained a “Planned” designation and then later was permitted a

change to a “B-3” designation.

       {¶ 61} Furthermore, Appellant has failed to set forth any motivation on the part of

the City for such alleged discrimination.

       {¶ 62} Based on the foregoing, we find no violation of Equal Protection.

       {¶ 63} Appellants’ second assignment of error is overruled.

       {¶ 64} Accordingly, the judgment of the Common Pleas Court, Stark County,

Ohio, is affirmed.


By: Wise, J.

Gwin, P. J., and

Hoffman, J., concur.



                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                JUDGES
JWW/d 0213
Stark County, Case No. 2011 CA 00132                                         15


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STATE EX REL. TAMMY FAIR                  :
                                          :
       Plaintiff-Appellant                :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
CITY OF CANTON                            :
                                          :
       Defendant-Appellee                 :         Case No. 2011 CA 00132




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
