[Cite as Land Dev. Mgt., L.L.C. v. Lancaster, 2012-Ohio-3136.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



LAND DEVELOPMENT MANAGEMENT, LLC                                 JUDGES:
                                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                                      Hon. Sheila G. Farmer, J.
                                                                 Hon. John W. Wise, J.
-vs-

CITY OF LANCASTER, OHIO                                          Case No. 11-CA-47

        Defendant-Appellee                                       OPINION



CHARACTER OF PROCEEDING:                                         Appeal from the Court of
                                                                 Common Pleas, Case No.
                                                                 10CV1367


JUDGMENT:                                                        Affirmed




DATE OF JUDGMENT:                                                July 9, 2012




APPEARANCES:

For Plaintiff-Appellant                                          For Defendant-Appellee

RAY R. MICHALSKI                                                 LAURA MACGREGOR COMEK
222 South Broad Street                                           5000 South Front Street
Lancaster, OH 43130                                              Suite 1200
                                                                 Columbus, OH 43215

                                                                 RANDALL T. ULLOM
                                                                 123 East Chestnut Street
                                                                 P.O. Box 1008
                                                                 Lancaster, OH 43130
Fairfield County, Case No. 11-CA-47                                                     2

Farmer, J.

       {¶1}   On October 29, 2010, appellant, Land Development Management, LLC,

filed a declaratory judgment action against appellee, city of Lancaster, Ohio, challenging

the constitutionality of a zoning classification as applied to appellant's property. The

property was zoned as a Commercial Neighborhood District (hereinafter "CN") and

prohibited an automobile sales and servicing business which appellant's potential tenant

desired to open. Appellant had requested a use variance, but was denied. Thereafter,

the Lancaster City Engineer filed a rezoning application to rezone appellant's property to

a "Commercial General District" (hereinafter "CG"), but appellee denied the application.

       {¶2}   Appellee filed a motion for summary judgment on June 30, 2011.           By

memorandum of decision filed August 24, 2011 and judgment entry filed August 26,

2011, the trial court granted the motion.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

       {¶4}   "THE TRIAL COURT ERRED IN GRANTING THE APPELLEE'S MOTION

FOR SUMMARY JUDGMENT INSOFAR AS THE APPELLEE WAS NOT ENTITLED

TO A JUDGMENT AS A MATTER OF LAW BECAUSE THE SUBJECT ZONING

CLASSIFICATION, AS APPLIED TO APPELLANT'S PROPERTY, IS CLEARLY

ARBITRARY AND UNREASONABLE, HAVING NO SUBSTANTIAL RELATION TO

THE PUBLIC HEALTH, SAFETY, MORALS, OR GENERAL WELFARE AND

BECAUSE THE DISTINCTION BETWEEN THE ZONING CLASSIFICATION OF

APPELLANT'S      PROPERTY        AND    THAT    OF    OTHER     SIMILARLY     SITUATED
Fairfield County, Case No. 11-CA-47                                                  3


PROPERTIES       BEARS     NO   RATIONAL       RELATIONSHIP     TO   A   LEGITIMATE

GOVERNMENT OBJECTIVE."

                                           I

      {¶5}   Appellant claims the trial court erred in granting summary judgment to

appellee. We disagree.

      {¶6}   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, 1996-Ohio-211:

      {¶7}   "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

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."

      {¶8}   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.

      {¶9}   Appellant challenges the zoning classification as unconstitutional as it

applies to its property.   Appellant argues the zoning classification is arbitrary and
Fairfield County, Case No. 11-CA-47                                                    4


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

general welfare of the community.

       {¶10} In its appellate brief at 10, appellant concedes there are no material facts

in dispute. The facts are as follows:

       {¶11} 1. The subject property is located in a "Commercial Neighborhood District"

or "CN" under Section 1133.02 of the Planning and Zoning Code for the City of

Lancaster.   Subsection (b)(1-14) of the ordinance includes an extensive listing of

permitted uses.

       {¶12} 2. The use desired to be operated by appellant's potential tenant (an

automobile sales and servicing business) is not a permitted use in a CN, but is a

permitted use in a "Commercial General District" or "CG". See, Section 1133.03 of the

Planning and Zoning Code for the City of Lancaster.

       {¶13} 3. The subject property from 1939 to 2000 (the date of the enactment of

the current zoning code) was classified as light industrial which would have been

consistent with appellant's desired use.

       {¶14} 4. Appellant purchased the property subsequent to 2000.                After

discovering the zoning issue relative to an automobile sales and servicing business,

appellant requested a use variance, but was denied.        No appeal pursuant to R.C.

Chapter 2506 was taken from this decision. Thereafter, the Lancaster City Engineer

filed a rezoning application to rezone appellant's property to a CG, but appellee denied

the application.

       {¶15} 5. Also uncontested is the fact that with the enactment of the new

comprehensive zoning code in 2000, appellant's property was the only property on the
Fairfield County, Case No. 11-CA-47                                                       5


east side of North Columbus Street to be zoned a CN. The adjacent properties were

zoned as CGs. In fact, with the enactment of the 2000 Planning and Zoning Code,

twenty-one properties on the east and west sides of North Columbus Street were zoned

as CGs except for two: appellant's property and the "Marshall Property," a residential

property.

       {¶16} Primarily, we note appellant challenges the exhibits attached to appellee's

motion for summary judgment as not being evidentiary quality pursuant to Civ.R. 56(E).

Appellant's Brief at 11. No challenge to these exhibits was made to the trial court.

Further, the exhibits attached are materials that are either attached in part to appellant's

original complaint or are part of the undisputed facts. Therefore, we find this challenge

to be waived.

       {¶17} The constitutional challenge advanced by appellant is a challenge to the

ordinance "as applied" to appellant's specific property. As such, appellant seeks only a

prohibition against the application of the CN zoning to its property and does not allege a

"taking" of the property.

       {¶18} As Justice Lundberg Stratton explained in Goldberg Companies, Inc. v.

Richmond Heights City Council, 81 Ohio St.3d 207, 212-213, 1998-Ohio-207, the

standard to be employed is as follows:

       {¶19} " 'To strike a zoning ordinance on constitutional grounds appellants must

demonstrate, beyond fair debate, that the zoning classification is unreasonable and not

necessary to the health, safety and welfare of the municipality.' Karches [v. Cincinnati

(1988)], 38 Ohio St.3d at 19, 526 N.E.2d at 1357.

       {¶20} "***
Fairfield County, Case No. 11-CA-47                                                        6


       {¶21} "A zoning regulation may be either constitutional or unconstitutional based

upon whether it is 'clearly arbitrary and unreasonable, having no substantial relation to

the public health, safety, morals, or general welfare' regardless of whether it has

deprived the landowner of all economically viable uses of the land."

       {¶22} As stated in Goldberg, our standard in determining appellant's challenge is

whether the ordinance is clearly arbitrary and unreasonable and has no substantial

relation to the public health, safety, morals or general welfare of the community.

       {¶23} The crux of appellant's challenge is that the CN zoning of its property and

the Marshall Property, in a sea of some nineteen other parcels zoned as CGs which is a

less restrictive use, is arbitrary and unreasonable. Appellant claims it is a "taking" of its

property and it is denied the viable use of the property.

       {¶24} In Jaylin Investments, Inc. vs. Moreland Hills, 107 Ohio St.3d. 339, 2006-

Ohio-4, ¶21, Justice Lundberg Stratton again addressed the constitutionality of the "as

applied" issue as follows:

       {¶25} "If we were to modify this rule as Jaylin advocates, we would effectively

eliminate the initial presumption that the zoning is constitutional.      Opposing parties

would merely argue over who presents the better use of the property. '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.'

Willott v. Beachwood, 175 Ohio St. 557, 26 O.O.2d 249, 197 N.E.2d 201, paragraph

three of the syllabus. 'Municipal governing bodies are better qualified, because of their
Fairfield County, Case No. 11-CA-47                                                     7


knowledge of the situation, to act upon these matters than are the courts.' Id. at 560, 26

O.O.2d 249, 197 N.E.2d 201."

       {¶26} In reaching this affirmation, Justice Lundberg Stratton points out the

emphasis in an "as applied" case is centered on the legislative action and not the

property uses of the alleged aggrieved:

       {¶27} "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

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, at ¶18.

       {¶28} We will use the decisions of the Supreme Court of Ohio as a template in

our analysis. We note no evidence was taken by the trial court nor were any affidavits

presented as to legislative purpose. The legislation, Chapter 1133 of the Planning and

Zoning Code of the City of Lancaster, incorporates the rationale and purposes of the

ordinances as follows:

       {¶29} "1133.01 ESTABLISHMENT AND PURPOSE.

       {¶30} "There are hereby established four (4) Commercial Districts.          These

Commercial Districts are designed to:

       {¶31} Encourage the provision of suitable areas for commercial growth and

development within the City.

       {¶32} Meet the needs for commercial goods and services within the community.

       {¶33} Promote a range of diverse commercial environments.
Fairfield County, Case No. 11-CA-47                                                        8


      {¶34} Encourage a compatible relationship between commercial facilities and

other land uses.

      {¶35} Facilitate the planning for the cost effective provision of streets, utilities,

and other public facilities to serve commercial facilities (Ord. 42-05. Passed 6-27-05.)

      {¶36} "1133.02(CN) COMMERCIAL NEIGHBORHOOD DISTRICT.

      {¶37} "(a) Purpose. The (CN) Commercial Neighborhood District is designed to

provide for the orderly development of neighborhood-oriented businesses serving the

regular day-to-day convenience and personal service needs of nearby residents.

Because commercial establishments within the CN District are more closely associated

with the residential land uses, more restrictive requirements related to size and scale,

traffic control and landscaping are needed than in other commercial districts.

      {¶38} "1133.03 (CG) COMMERCIAL GENERAL DISTRICT.

      {¶39} "(a) Purpose.      The (CG) Commercial General District is designed to

provide for a broad range of business activity oriented toward community and/or

regional markets.   Such business uses, by their nature, rely on higher volumes of

customer traffic and generally have higher impact levels on adjacent uses. The intent of

the CG District is to encourage the most compatible relationship between permitted

uses and overall traffic movement within the City, while minimizing negative impacts on

adjacent land uses."

      {¶40} Appellant argues the legislation is unconstitutional because (1) the

property prior to 2000 was used and zoned for light industrial purposes and (2) the

property was "singled out" as a CN while leaving the adjacent lots as CGs.
Fairfield County, Case No. 11-CA-47                                                       9


       {¶41} In reviewing the "Permitted Uses" in a CN vis-á-vis the "Permitted Uses" in

a CG, we find the major distinction is the inclusion in a CG of commercial recreational

facilities, lumber and home improvement sales, automobile sales and services, theaters,

hotels and motels, and garden centers. See, 1133.03(b)(12)-(17).

       {¶42} When viewed in light of the general purposes clauses of the two

classifications, we find the distinction to be reasonable. Those included in a CG that are

not in a CN create high volumes of customer traffic and have a higher impact on

adjacent uses. Therefore, the delineation between the two classifications is reasonable

and not arbitrary and does have a relation to the public safety and health.

       {¶43} Appellant argues it has been "singled out" and points to his neighbors

along North Columbus Road who are designated as CGs. As the maps attached to the

pleadings and the summary judgment motion illustrate, within appellant's block,

appellant's property is the only property zoned as a CN while the other properties are

zoned as CGs. Across North Columbus Road, save for the Marshall Property, twelve

lots are zoned as CGs. However, what appellant fails to point out is its lot is a corner lot

with its major frontage on another street where the adjacent properties are zoned RS-3

and RS-4.

       {¶44} It is correct when viewed from a North Columbus Road standard,

appellant appears to have been singled out. However, when viewed from the major

frontage street or alley (unnamed), the property is in a RS-3/RS-4 area; therefore, its

property has not been "singled out" to the less restrictive use. Further, when viewing

the area from a "birds-eye view," it is obvious the area continuing north and west on

North Columbus Road, a state route, is not a high density area as is the area of
Fairfield County, Case No. 11-CA-47                                                     10


appellant's property.   The area bordered by the unnamed road, which is one-way

eastbound, Marks Avenue, North Broad Street, and Wilson Avenue, is a high density

area and contains residential parcels, the greater portion of which is R-4.

       {¶45} Given the above observations, we find appellant's property was not

singled out to a more restrictive use, but was given a more restrictive use given the

entire area.

       {¶46} We conclude the trial court was correct in finding the zoning as it pertains

to appellant's property was not unconstitutional.

       {¶47} Appellant also argues the zoning violates the equal protection clause, as

its property is being treated like the Marshall Property which is improved by a residence

and differently than the Danison Property which is the only other industrial building in

the area which is zoned as a CG. As pointed out by the attachments to appellant's

memorandum contra motion filed July 27, 2011, the Danison Property is on the west

side of North Columbus Road and is across the street and north of appellant's property.

       {¶48} In Kruppa v. City of Warren, Trumbull App. No. 2009-T-017, ¶34-38, our

brethren from the Eleventh District fully explained the Equal Protection guarantees as

follows:

       {¶49} "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.'

       {¶50} " 'The limitations placed upon governmental action by the Equal Protection

Clauses of the Ohio and United States Constitutions are essentially identical.'***When
Fairfield County, Case No. 11-CA-47                                                        11


the government treats similarly situated individuals differently, such action implicates

equal protection.***

       {¶51} "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.'***

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

legislative classification will be upheld if it is rational.***Because no fundamental right or

suspect class is involved here, the rational basis test is applicable to determine whether

Sec. 1367.10 violates equal protection. Pursuant to this test, an ordinance will be held

to be constitutional if it is rationally related to any legitimate governmental

interest.***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.)***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.

       {¶53} "In applying the rational basis test, a court will not overturn a statute

unless the varying treatment of different groups or persons is so unrelated to the
Fairfield County, Case No. 11-CA-47                                                     12


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

legislature's actions were irrational.***" (Citations omitted.)

        {¶54} The issue is whether the zoning treats similarly situated properties

differently. Appellant argues its property and the Danison Property were zoned light

industrial use prior to 2000. Now the properties in close proximity are zoned differently.

It should be noted that the Danison Property's use, a monument business, is permitted

in both CN and CG classifications. Therefore, the nature of the businesses' purposes is

entirely different. Also, the Danison Property is across the street in a less dense area

than appellant's property. Although close in proximity, the quality and nature of the two

areas are different.

        {¶55} Appellant argues there is no appropriate governmental interest that would

validate treating the two properties differently. As we noted supra, the purpose clause

of a CN area is different than a CG area. In a CN area, the purpose centers upon

"neighborhood oriented business" where in a CG area, the business activity generates

high volume traffic at higher impact levels.

        {¶56} An observation of the two areas establishes that appellant's property is the

sole residential/business building in an area that for blocks is residential in nature. The

Danison Property is in a less dense area and is not similarly located in a comparable

area.

        {¶57} We find appellee has set forth a legitimate governmental interest in the

two, albeit similar, zoning classifications. There is also no convincing evidence that

appellant's property and the Danison Property are similarly situated properties.
Fairfield County, Case No. 11-CA-47                                             13


      {¶58} Upon review, we find the trial court did not err in granting summary

judgment to appellee.

      {¶59} The sole assignment of error is denied.

      {¶60} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




                                          _s/ Sheila G. Farmer_______________



                                          s/ William B. Hoffman______________



                                          s/ John W. Wise__________________

                                                      JUDGES



SGF/sg 614
[Cite as Land Dev. Mgt., L.L.C. v. Lancaster, 2012-Ohio-3136.]


                  IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT




LAND DEVELOPMENT                                       :
MANAGEMENT, LLC                                        :
                                                       :
        Plaintiff-Appellant                            :
                                                       :
-vs-                                                   :         JUDGMENT ENTRY
                                                       :
CITY OF LANCASTER, OHIO                                :
                                                       :
        Defendant-Appellee                             :         CASE NO. 11-CA-47




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

judgment of the Court of Common Pleas of Fairfield County, Ohio is affirmed. Costs to

appellant.




                                                       s/ Sheila G. Farmer_______________



                                                       s/ William B. Hoffman______________



                                                       s/ John W. Wise__________________

                                                                    JUDGES
