        [Cite as Ehemann Real Estate, Ltd. v. Anderson Twp. Zoning Comm., 2020-Ohio-1091.]

                         IN THE COURT OF APPEALS
                FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO




EHEMANN REAL ESTATE, LTD.,                     :         APPEAL NOS. C-190002
                                                                    C-190038
EME FENCE COMPANY, INC.,                       :         TRIAL NOS. A-1306230
                                                                    A-1306651
 and                                           :

LAMAR ADVANTAGE GP COMPANY,                    :            O P I N I O N.
L.L.C.,
                                               :
       Plaintiffs-Appellants/
       Cross-Appellees,                        :

 vs.                                           :

ANDERSON TOWNSHIP ZONING                       :
COMMISSION,
                                               :
 and
                                               :
ANDERSON TOWNSHIP BOARD OF
TRUSTEES,                                      :

    Defendants-Appellees/
    Cross-Appellants.                          :



Civil Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: March 25, 2020


Strauss Troy Co., L.P.A., R. Guy Taft, Matthew W. Fellerhoff and Stephen E.
Schilling, for Plaintiffs-Appellants/Cross-Appellees,

Frost Brown Todd L.L.C., Thomas B. Allen and Benjamin J. Yoder, and The Law
Office of Gary E. Powell and Gary E. Powell, for Defendants-Appellees/Cross-
Appellants.
                      OHIO FIRST DISTRICT COURT OF APPEALS



CROUSE, Judge.

        {¶1}    The case before us concerns an administrative appeal of a zoning

dispute between plaintiffs-appellants/cross-appellees Ehemann Real Estate, Ltd.,

EME Fence Company, Inc., (“EME”) and Lamar Advantage GP Company, L.L.C.,

(collectively   “Lamar”),    and   defendants-appellees/cross-appellants     Anderson

Township Zoning Commission and Anderson Township Board of Trustees

(collectively “the Township”). Ehemann Real Estate owns property located at 5060

Batavia Pike in Hamilton County, Ohio, and leases the property to EME. EME leases

a small portion of the land to Lamar Advantage GP Company, on which Lamar has

been operating a legal nonconforming billboard. This case revolves around the

Township’s decision that the billboard must be taken down.

        {¶2}    The Township cross-appealed the trial court’s judgment on the

administrative appeal, and argues in two assignments of error that the court erred

when it reversed the Township’s decision that required the billboard to be taken

down.

        {¶3}    Lamar appealed the trial court’s judgment on its constitutional action,

and argues in two assignments of error that the court erred in denying Lamar’s

motion for summary judgment and granting the Township’s motion for summary

judgment on Lamar’s constitutional claims, and in denying Lamar’s motions to

present additional evidence under R.C. 2506.03 as part of the administrative appeal.

        {¶4}    We affirm the trial court’s judgment on the administrative appeal and

affirm its grant of summary judgment in favor of the Township on Lamar’s

constitutional claims. Therefore, we do not reach Lamar’s second assignment of

error as it is moot. All other assignments of error are overruled.




                                               2
                     OHIO FIRST DISTRICT COURT OF APPEALS


                              Factual Background


       {¶5}   A planned unit development (“PUD”) functions as an exception to

regular zoning ordinances. A PUD permits a “property to be used in a manner or

intensity not permitted as-of-right by the underlying district regulations.” Anderson

Township Zoning Resolution (“ATZR”) 4.1.A. When an applicant applies for a PUD,

the township zoning commission reviews the application and approves or denies it.

       {¶6}   In 2008, EME filed a PUD application to redevelop its property. The

2008 PUD application did not mention the nonconforming billboard, and the

billboard was not included on the overlay. However, the billboard was clearly visible

in several photographs which were part of the 2008 PUD application. The zoning

commission approved the 2008 PUD application and issued the 2008 PUD

resolution (“2008 PUD”). The 2008 PUD did not mention the billboard.

       {¶7}   In 2012, EME applied to the zoning commission for a modification to

the 2008 PUD. The 2012 PUD application included the billboard on the overlay.

Without conducting a hearing, the zoning commission approved the 2012 PUD

application, but on the condition that the billboard come down “at the end of the

lease term or earlier as may be necessitated by the construction of other approved

structures on the site.” Lamar appealed to the board of trustees, which remanded

the case to the zoning commission to conduct a hearing on the 2012 PUD

application. The commission conducted the hearing, and ruled the same way as

before, issuing the 2012 PUD resolution (“2012 PUD”), which approved the

application, but on the condition that the billboard come down at the end of the

lease. Lamar again appealed the decision to the board of trustees, which upheld the




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                     OHIO FIRST DISTRICT COURT OF APPEALS



zoning commission’s ruling. Lamar filed an administrative appeal with the trial

court, and the case was assigned to a magistrate.

       {¶8}   Lamar then filed a separate cause of action against the Township,

arguing violations of its constitutional rights and seeking a writ of mandamus and a

declaratory judgment. During the pendency of the administrative appeal, and the

pendency of Lamar’s action against the Township, the billboard remained in use, and

remains in use to this day.

       {¶9}   The trial court consolidated Lamar’s administrative appeal with

Lamar’s constitutional action against the Township. The magistrate reversed the

board of trustees’ decision on the 2012 PUD, holding that the Township’s condition

requiring removal of the billboard was contrary to law. The trial court adopted the

magistrate’s decision.   The trial court then granted the Township’s motion for

summary judgment on Lamar’s constitutional claims.

                   The Township’s First Assignment of Error


       {¶10} In its first assignment of error, the Township argues that the trial court

improperly reversed the Township’s zoning decision.

       {¶11} A trial court’s review of a township’s zoning decision is limited. A

township’s zoning decision is “presumed to be valid, and the burden is upon the

party contesting the board’s determination to prove otherwise.” Klein v. Hamilton

Cty. Bd. of Zoning Appeals, 128 Ohio App.3d 632, 636, 716 N.E.2d 268 (1st

Dist.1998). “The scope of judicial review of the zoning board’s decision is very

limited and unusually deferential.” Id. The trial court reviews the decision only to

determine if it is “unconstitutional, illegal, arbitrary, capricious, unreasonable, or

unsupported by the preponderance of substantial, reliable, and probative evidence



                                              4
                     OHIO FIRST DISTRICT COURT OF APPEALS



on the whole record.” R.C. 2506.04. The trial court will not substitute its judgment

for that of the township so long as the township’s decision is supported by a

preponderance of reliable, probative, and substantial evidence. Klein at 636.

       {¶12} Review of an administrative appeal is likewise limited for a court of

appeals—an appellate court may only reverse the trial court if it finds that, as a

matter of law, the trial court’s decision is not supported by a preponderance of

reliable, probative, and substantial evidence. Id. at 637.

       {¶13} The central issue in this case is whether the 2008 PUD, which did not

mention the nonconforming billboard, required the billboard to be removed. The

Township contends that the magistrate improperly “reopened” the 2008 PUD and

made factual findings regarding the 2008 PUD, even though the 2008 PUD was

never appealed and was not before the trial court in this case.

       {¶14} ATZR 4.1.I permits adjustments to an approved PUD only if there is

“no modification of recorded easements or written conditions of approval contained

in an Anderson Township Zoning Commission’s Resolution.”             The magistrate

determined that the billboard was not required to be removed under the 2008 PUD,

and that by adding such a condition to the 2012 PUD, the Township modified the

written conditions of the 2008 PUD, thereby violating ATZR 4.1.I. The trial court

adopted the magistrate’s decision without further analysis.

       {¶15} The Township agreed to make the record from the 2008 PUD part of

the record for the 2012 PUD appeal. In order to determine whether the condition in

the 2012 PUD requiring removal of the billboard was legal, the magistrate first had to

understand the 2008 PUD.




                                               5
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} It was unclear from the 2008 PUD whether the parties intended for

the billboard to remain in place.       Paul Drury, the secretary for the zoning

commission, admitted as much when he testified during the hearing on the 2012

PUD application. Therefore, the magistrate reviewed the evidence presented in the

2008 PUD application to determine whether the parties intended for the billboard to

remain, or to be taken down, as part of the 2008 PUD. The magistrate did not

exceed his authority in considering the record from the 2008 PUD because it was

included in the record below. The Township’s first assignment of error is overruled.

                   The Township’s Second Assignment of Error

       {¶17} In its second assignment of error, the Township argues that the 2008

PUD did not include a condition for the billboard, and so the continued use of the

billboard was not permitted because the billboard was a nonconforming use.

       {¶18} Zoning resolutions are generally construed in favor of the property

owner. In Terry v. Sperry, 130 Ohio St.3d 125, 2011-Ohio-3364, 956 N.E.2d 276, ¶

19, the Ohio Supreme Court explained:

     Zoning resolutions are in derogation of the common law and deprive a

     property owner of certain uses of his land to which he would otherwise be

     lawfully entitled. Therefore, such resolutions are ordinarily construed in

     favor of the property owner. Restrictions on the use of real property by

     ordinance, resolution or statute must be strictly construed, and the scope

     of the restrictions cannot be extended to include limitations not clearly

     prescribed.

(Emphasis added.) Id.




                                             6
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶19} A nonconforming use refers to a “use of property which was lawful

prior to the enactment of a zoning ordinance, and which use may be continued after

the effective date of the ordinance even though it does not comply with the applicable

use restrictions.” C.D.S., Inc. v. Village of Gates Mills, 26 Ohio St.3d 166, 168, 497

N.E.2d 295 (1986).

       {¶20} At the time the 2008 PUD application was filed, the billboard on the

property was too close to the road, and therefore not in compliance with existing

zoning regulations. Nevertheless, the billboard was built prior to the applicable

zoning regulations taking effect, and so Lamar’s continued use of the billboard was

permitted as a nonconforming use.

       {¶21} Nonconforming uses “may be regulated, and even girded to the point

that they wither and die.” City of Columbus v. Union Cemetery Assn., 45 Ohio St.2d

47, 49, 341 N.E.2d 298 (1976).

     Zoning     ordinances    contemplate      the   gradual     elimination   of

     nonconforming uses within a zoned area, and, where an ordinance

     accomplishes such a result without depriving a property owner of a

     vested property right, it is generally held to be constitutional.

(Emphasis in original.) City of Akron v. Chapman, 160 Ohio St. 382, 386, 116

N.E.2d 697 (1953). Thus, a political subdivision may deny the right to resume a

nonconforming use where that use was previously abandoned. Id. It may also deny

a request to extend or enlarge a nonconforming use, or to substitute or add buildings

to a nonconforming use. Id. at 386-387.

       {¶22} Lamar has property rights in the billboard, even though it is a

nonconforming use. See id. at paragraph two of the syllabus; R.C. 519.19. Also,




                                               7
                     OHIO FIRST DISTRICT COURT OF APPEALS



although the billboard was not marked on the overlay, the Township was, or at least

should have been, aware of its existence because it is clearly visible in photographs of

the property which were included in the staff report to the zoning commission as part

of the 2008 PUD.

       {¶23} The Township argues that the billboard was intentionally left out of the

2008 PUD, and that Lamar intended to forego future use of the billboard. However,

Lamar did not include any signs on the overlay—neither freestanding signs nor the

billboard—and yet was permitted to continue its use of one of the freestanding signs

on the front of the building.     The magistrate found that both Lamar and the

Township overlooked the continued existence of the billboard during the 2008 PUD

process, and that Lamar did not abandon its ownership rights in the billboard simply

because the billboard was not included in the 2008 PUD. These findings were

supported by a preponderance of the evidence.

       {¶24} The Township next argues that Lamar’s submission of the 2012 PUD

application enabled the Township to regulate the billboard, so as to cause it to

“wither and die.”    However, the Township overlooks the fact that its proposed

regulation requiring removal of the billboard would deprive Lamar of a property

right. Unlike the examples in City of Akron, Lamar never abandoned its use of the

billboard, nor did it seek to extend or enlarge its use of the billboard. In fact,

Lamar’s 2012 PUD application did not include any plans regarding the billboard.

Rather, Lamar merely marked the billboard on the overlay for the first time.

       {¶25} The Township points to Brown v. City of Cleveland, 66 Ohio St.2d 93,

420 N.E.2d 103 (1981), for the proposition that where an owner of a “non-

conforming use diversifies his product line and expands his services, the non-




                                              8
                      OHIO FIRST DISTRICT COURT OF APPEALS



conforming use can be regulated for the protection of the public health, safety and

general welfare of the community.” Id. at 96.

       {¶26} Brown is distinguishable from the present case. When the political

subdivision in Brown rejected the request for a zoning variance, it did so because the

variance would result in a violation of the parking provision of the zoning code, and

would affect the safety of the community. Id. In the present case, the Township

required removal of the billboard as a condition to approval of a PUD application

which in all respects was conforming, and did not result in any additional violations

of the zoning code. Also, there was no evidence presented that the billboard affects

the health, safety, or general welfare of the community.

       {¶27} The removal of the billboard was not “clearly prescribed” in the 2008

PUD. See Terry, 130 Ohio St.3d 125, 2011-Ohio-3364, 956 N.E.2d 276, at ¶ 19. The

only condition in the 2008 PUD which came close was condition six, which stated

that “the freestanding signs on the site will be removed with the final development

proposal and be replaced by signage that meets the regulations of the Anderson

Township Zoning Resolution.”       But, the Township’s own witness, Paul Drury,

admitted during a hearing on the 2012 PUD application that condition six did not

apply to the billboard.

       {¶28} A preponderance of the evidence supports the magistrate’s holding

that the omission of the billboard from the 2008 PUD was an oversight, and not an

intentional relinquishment of Lamar’s property rights in the billboard. None of the

examples in City of Akron or Brown apply, and Lamar maintained a property right

in the billboard through its continuous nonconforming use. By adding the condition

requiring removal while approving the 2012 PUD application, the Township




                                                9
                        OHIO FIRST DISTRICT COURT OF APPEALS



modified the written conditions of the 2008 PUD, thereby violating ATZR 4.1.I. The

Township’s second assignment of error is overruled.

                          Lamar’s First Assignment of Error

          {¶29} In its first assignment of error, Lamar argues that the trial court erred

in granting the Township’s motion for summary judgment on Lamar’s constitutional

claims.

          {¶30} We review a trial court’s decision to grant summary judgment de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996); Whitley

v. Progressive Preferred Ins. Co., 1st Dist. Hamilton No. C-090240, 2010-Ohio-356,

¶ 7.

          {¶31} Lamar first claims that the Township violated its constitutional rights

by substantially interfering with Lamar’s property. Lamar argues that it was entitled

to a writ of mandamus against the Township, because the Township used the PUD

process to substantially interfere with Lamar’s property, resulting in a taking of

Lamar’s property.

          {¶32} “Mandamus is the appropriate action to compel public authorities to

institute appropriation proceedings where an involuntary taking of private property

is alleged.” State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-

Ohio-2163, 826 N.E.2d 832, ¶ 11.          “To establish a taking, a landowner must

demonstrate a substantial or unreasonable interference with a property right.” State

ex rel. Hilltop Res. v. Cincinnati, 166 Ohio App.3d 171, 2005-Ohio-6817, 849 N.E.2d

1064, ¶ 22 (1st Dist.). “That interference may involve the actual physical taking of

real property, or it may include the deprivation of an intangible interest in the

premises.” Id.




                                                10
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶33} Lamar argues that the Township interfered with three types of

property interests: (1) the right to continue its use of the property, (2) rights to the

billboard and associated leasehold interests, and (3) rights to the billboard as

personal property.

       {¶34} The billboard stands to this day, and has been used by Lamar, without

interruption, during the pendency of the case. Therefore, there has been no physical

taking of Lamar’s property, nor has the Township substantially interfered with

Lamar’s right to continue using the billboard as it was used prior to the 2012 PUD.

The only remaining question is whether the Township’s actions demonstrated a

substantial or unreasonable interference with an intangible interest in the property,

such as the associated leasehold interests.

       {¶35} The billboard is located on the property pursuant to a long-standing

lease agreement between Lamar and EME. Lamar leases the billboard to various

entities for advertising. There is no indication that Lamar was financially affected by

the requirement that the billboard come down at the end of the lease. In February

2013, Ron Ehemann testified that the lease automatically renews every 15 years, and

that it was up for renewal in November 2017. The billboard continues to operate

today, presumably under a new 15-year lease which renewed in 2017. Lamar does

not claim that it was forced to lease the billboard from EME or to advertisers for a

different price or duration due to the Township’s actions. Lamar also does not claim

that it could not have sold the billboard in the intervening years since the 2012 PUD,

or at least that it would have had to sell it at a reduced price. There was no evidence

presented that it has lost any income that it would have otherwise collected had the

2012 PUD not required removal of the billboard.




                                              11
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶36} During oral argument, Lamar argued that the Township interfered

with an intangible property interest when it repeatedly denied EME’s requests for a

permanent certificate of occupancy in retaliation for Lamar appealing the zoning

commission’s ruling and filing its constitutional action. In his affidavit attached to

the motion for summary judgment, Ron Ehemann stated that the denials of the

permanent certificates of occupancy required EME to spend a total of $6,019.32

between 2012 and 2017 to obtain temporary certificates of occupancy in order to

remain in business. In 2017, the Township did grant EME a permanent certificate of

occupancy.

       {¶37} Although not addressed by the Township, we cannot say that the

certificates were denied for retaliatory purposes, and in fact may have been denied

for entirely proper reasons.     Moreover, that EME had to apply for temporary

certificates of occupancy from 2012 until 2017 was not such a “substantial” or

“unreasonable” interference with an intangible property right as to constitute a

taking. The trial court did not err in finding that a taking never occurred and that a

writ of mandamus was not warranted.

       {¶38} Lamar next argues that the trial court erred in denying its motion for

summary judgment on its second cause of action for a declaratory judgment. Lamar

contends that the 2012 PUD was unconstitutional because it was arbitrary and

unreasonable and had no relation to public health or safety.

       {¶39} Zoning laws are presumed constitutional. Goldberg Cos., Inc. v.

Richmond Hts. City Council, 81 Ohio St.3d 207, 209, 690 N.E.2d 510 (1998). A

zoning regulation is only unconstitutional if it is “clearly arbitrary and unreasonable,

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




                                              12
                     OHIO FIRST DISTRICT COURT OF APPEALS



welfare.” Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct.

114, 71 L.Ed. 303 (1926).     It is the burden of the party challenging the zoning

ordinance to prove “beyond fair debate, that the zoning classification is unreasonable

and not necessary to the health, safety and welfare of the municipality.” Goldberg at

212; Dover v. Village of Evendale, 1st Dist. Hamilton No. C-840658, 1985 WL

11469, *3 (Sept. 18, 1985).

       {¶40} Lamar argues that the Township’s 2012 decision was “a naked

property grab as part of an illegal attempt to remove billboards within Anderson

Township.” Lamar contends that the trial court’s finding that the 2012 PUD was

contrary to law established that the decision was arbitrary and unreasonable. This

argument is without merit. The 2008 PUD did not mention the billboard at all. The

trial court had to determine what the status of the billboard was when the 2008 PUD

was approved, and whether the billboard must be removed. The court noted that

“[t]his is not an easy question to answer.” Thus, while the Township’s decision

requiring removal of the billboard was ultimately found to be contrary to law, the

court never found the decision to be arbitrary or unreasonable. We also do not find

the decision to be arbitrary or unreasonable.

       {¶41} Lamar next points to the Township’s failure to show that the

regulation supports public health or safety. However, the burden was on Lamar to

show that the regulation was “unreasonable and not necessary to the health, safety

and welfare of the municipality.” See Goldberg at 212. As discussed above, it has

failed to do so.




                                                13
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶42} Next, Lamar argues that the trial court erred in denying Lamar’s

motion for summary judgment on its cause of action alleging that the Township

violated its substantive-due-process rights by requiring removal of the billboard.

       {¶43} This court has previously declined to review a plaintiff’s substantive-

due-process claim as it related to a denial of a request for a zoning variance. Blust v.

Blue Ash, 177 Ohio App.3d 146, 2008-Ohio-3165, 894 N.E.2d 89, ¶ 23 (1st Dist.).

     Substantive due process in general pertains only to liberty interests

     secured by the United States Constitution. Because property is an

     individual right secured by state law, property rights are protected only

     by procedural due process. Therefore, we reject the substantive-due-

     process claim.

Id.; 1946 St. Clair Corp. v. City of Cleveland, 49 Ohio St.3d 33, 35, 550 N.E.2d 456

(1990) (where the “claim asserted rests on the deprivation of a property interest

alone, the constitutional right invoked is the procedural due process right to notice

and hearing”).

       {¶44} However, in a subsequent case, this court seemed to indicate that a

substantive-due-process claim may be viable with regard to some property rights.

See Jones v. Norwood, 1st Dist. Hamilton No. C-120237, 2013-Ohio-350, ¶ 81

(holding that “Jones has not demonstrated a substantive fundamental right to

continued residency in her rented apartment”), citing Regents of Univ. of Michigan

v. Ewing, 474 U.S. 214, 229, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) (Powell, J.,

concurring) (“not every [property] right is entitled to the protection of substantive

due process. While property interests are protected by procedural due process even




                                              14
                     OHIO FIRST DISTRICT COURT OF APPEALS



though the interest is derived from state law rather than the Constitution,

substantive due process rights are created only by the Constitution.”).

       {¶45} The Township does not argue that this court cannot review Lamar’s

substantive-due-process claim. Rather, the Township contends that Lamar has not

made out a substantive-due-process claim.

       {¶46} Federal courts have entertained substantive-due-process claims with

regard to property rights. “Citizens have a substantive-due-process right ‘not to be

subjected to arbitrary or irrational zoning decisions.’ ” Braun v. Ann Arbor Charter

Twp., 519 F.3d 564, 573 (6th Cir.2008), quoting Pearson v. Grand Blanc, 961 F.2d

1211, 1217 (6th Cir.1992), citing Arlington Hts. v. Metro Hous. Dev. Corp., 429 U.S.

252, 263, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). A substantive-due-process claim in

the zoning context requires proof that “(1) a constitutionally protected property or

liberty interest exists, and (2) the constitutionally protected interest has been

deprived through arbitrary and capricious action.” White Oak Property Dev., LLC v.

Washington Twp., Ohio, 606 F.3d 842, 853 (6th Cir.2010), quoting Braun v. Ann

Arbor Charter Twp., 519 F.3d 564, 573 (6th Cir.2008). A local zoning ordinance

survives a substantive-due-process challenge if there exists a rational relationship

between the terms of the ordinance and a legitimate governmental purpose. White

Oak at 853.

       {¶47} Lamar cites EJS Properties, LLC v. City of Toledo, 698 F.3d 845, 856

(6th Cir.2012), for the proposition that it has a constitutionally protected property

interest in the existing zoning classification of the property. Thus, Lamar contends

that it has a property interest in the 2008 PUD, which rezoned the property, and

included the continued use of the nonconforming billboard.




                                              15
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶48} The Ohio Supreme Court has applied a standard similar to a federal

substantive-due-process challenge in Jaylin Invest., Inc. v. Moreland Hills, 107 Ohio

St.3d 339, 2006-Ohio-4, 839 N.E.2d 903. In that case, the court held that zoning is a

“valid legislative function of a municipality’s police powers,” and that “courts should

not interfere with zoning decisions unless the municipality exercised its power in an

arbitrary and unreasonable manner and the decision has no substantial relation to

the public health, safety, morals, or general welfare.” Id. at ¶ 10, citing Village of

Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 71 L.Ed. 303

(1926).

       {¶49} In State ex rel. Ridge Club v. Amberley Village, 1st Dist. Hamilton No.

C-070012, 2007-Ohio-6089, ¶ 36, this court applied the standard from Jaylin to the

plaintiff’s due-process claim. The court held that the plaintiff’s due-process rights

were violated where the ordinance was arbitrary and unreasonable, and had no

substantial relation to the public’s health, safety, and welfare. Id. at ¶ 39.

       {¶50} Lamar argues that the Township’s zoning decision as applied was

arbitrary and capricious and deprived Lamar of a constitutionally protected property

interest. Even if we consider Lamar’s substantive-due-process argument, it fails

under both the state and federal standards. Lamar has failed to show that it was

deprived of any property interest or that the Township’s ruling on the 2012 PUD

application was arbitrary or unreasonable. The fact that the Township’s ruling was

contrary to law is not sufficient to sustain a claim of violation of substantive due

process. See Ctr. for Powell Crossing, LLC v. City of Powell, Ohio, 173 F.Supp.3d

639, 669 (S.D.Ohio 2016) (holding that a mere error in the interpretation of state law

is not a violation of due process).




                                                16
                      OHIO FIRST DISTRICT COURT OF APPEALS



        {¶51} Finally, Lamar argues that the trial court erred by denying its motion

for summary judgment for damages and attorney fees under 42 U.S.C. 1983 and

1988.

        {¶52} 42 U.S.C. 1983 provides a method for vindicating violations of federal

rights. Denver v. Casbeer, 1st Dist. Hamilton No. C-050106, 2005-Ohio-5860, ¶ 10.

To succeed on its 1983 claim, Lamar was required to show that the Township’s

conduct deprived Lamar of rights, privileges, or immunities secured by the

Constitution or laws of the United States, and that the Township was acting under

color of state law. See id. 42 U.S.C. 1988(b) permits a party who prevails on its 1983

claim to recover reasonable attorney fees.

        {¶53} Lamar has failed to show that the Township violated its constitutional

rights. Therefore, Lamar is not entitled to damages under 42 U.S.C. 1983 or attorney

fees under 1988(b).

        {¶54} The trial court did not err in granting the Township’s motion for

summary judgment. Lamar’s first assignment of error is overruled.

                                     Conclusion


        {¶55} The Township’s assignments of error and Lamar’s first assignment of

error are overruled. Since we uphold the trial court’s judgment on the administrative

appeal, we do not address Lamar’s second assignment of error because it is moot.

The trial court’s judgment is affirmed.

                                                                 Judgment affirmed.



ZAYAS, P.J., and BERGERON, J., concur.




                                             17
                      OHIO FIRST DISTRICT COURT OF APPEALS


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




                                                18
