[Cite as Boice v. Ottawa Hills, 137 Ohio St.3d 412, 2013-Ohio-4769.]




BOICE ET AL., APPELLANTS, v. VILLAGE OF OTTAWA HILLS ET AL., APPELLEES.
      [Cite as Boice v. Ottawa Hills, 137 Ohio St.3d 412, 2013-Ohio-4769.]
Real property—Zoning—Variance—Amendment to minimum size requirement for
“buildable” lot enacted after purchase of vacant lot cannot be enforced to
prevent construction on lot after amendment.
   (No. 2012-0413—Submitted March 12, 2013—Decided November 7, 2013.)
                APPEAL from the Court of Appeals for Lucas County,
                           No. L-09-1253, 2011-Ohio-5681.
                                ____________________
        O’NEILL, J.
        {¶ 1} Plaintiffs-appellants, the Boices, owned a piece of real estate
adjacent to their suburban residence for over 30 years.                In 2004, defendant-
appellee village of Ottawa Hills denied their request for a variance seeking to
have the vacant 33,000-square-foot residential lot declared a “buildable” lot. The
zoning code at that time included a requirement that no structure could be built on
a lot smaller than 35,000 square feet, which was 2,000 square feet larger than the
lot owned by plaintiffs. This new size restriction was enacted in 1978, four years
after plaintiffs purchased the lot. When the lot was purchased in 1974, the
minimum buildable lot size was 15,000 square feet. Plaintiffs also owned the
adjoining lot, upon which their residence was situated. It is undisputed that other
landowners in the village built homes on lots smaller than 35,000 square feet
subsequent to the 1978 change in zoning regulations.
                           I. Facts and Procedural History
        {¶ 2} The two plaintiffs in this case, Willis and Annette Boice, purchased
two adjacent lots in the village of Ottawa Hills in 1974. One of the lots contained
a house, and the other was vacant. Plaintiffs lived in that house for the next 30
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years. The lot with the house was 57,000 square feet, and the vacant lot was
33,000 square feet.1 The minimum size for a buildable lot in 1974 was 15,000
square feet.
        {¶ 3} In 1978, the village amended its zoning requirements to increase the
buildable-lot size to 35,000 square feet. Then, in 2004, plaintiffs sold the lot
containing their residence. They sought approval from the village manager to
have the smaller lot declared a buildable lot so that they could sell that as well.
The village manager denied their request, informing them that because the lot was
smaller than 35,000 square feet, it was not a buildable lot. This decision was
reached despite the fact that there were other houses in plaintiffs’ plat that were
built on lots smaller than 35,000 square feet after the 1978 zoning amendment.
        {¶ 4} Plaintiffs appealed that decision to defendant-appellee Ottawa Hills
Zoning Commission, also seeking a variance, but their appeal and the variance
were denied. On October 20, 2004, plaintiffs filed an appeal pursuant to R.C.
2505.01 et seq. and 2506.01 et seq. in the Lucas County Common Pleas Court.
The court upheld the zoning commission’s decision, finding that the zoning
amendment was not unconstitutional, that there was no taking, and that the denial
of the variance was supported by the record. That decision was appealed to the
Sixth District Court of Appeals, which determined that the trial court had used the
incorrect standard in its regulatory-taking analysis and, therefore, reversed and
remanded for further proceedings. Boice v. Ottawa Hills, 6th Dist. Lucas No. L-
06-1208, 2007-Ohio-4471.
        {¶ 5} The matter went back to the trial court on remand to address the
issue of a regulatory taking. On August 28, 2009, the trial court determined that a
taking had not occurred because plaintiffs never took any affirmative steps to

1. The two lots in question were originally platted in 1926 as a 46,000-square-foot lot and a
44,000-square-foot lot. However, the size of each lot was adjusted by the previous owner in 1973
with the approval of the village.




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build a house on the lot. This decision was appealed to the Sixth District Court of
Appeals, which ultimately affirmed the decision. Boice v. Ottawa Hills, 6th Dist.
Lucas No. L-09-1253, 2011-Ohio-5681. The appellate court acknowledged that
plaintiffs had been paying property taxes on the lot as a buildable lot for over 30
years. It also recognized that in the middle of the present controversy, the Lucas
County auditor reappraised the property in 2006 and reduced the market value
from $233,500 to $23,400, presumably because the lot was no longer considered
buildable. Yet the trial court and the appellate court concluded that because the
plaintiffs had never used the vacant parcel as a buildable lot, they never acquired
a vested right to use the land as a buildable lot. For the following reasons, we
disagree.
       {¶ 6} The disparate treatment of the plaintiffs, combined with the de
minimis difference between the size of the lot and the minimum required size and
the provision in a village ordinance that requires the village to “grandfather in”
plaintiffs’ lot as a buildable lot lead us to the conclusion that the trial court’s
decision was unreasonable and arbitrary and, accordingly, was an abuse of
discretion. Hence, the decision of the appellate court must be reversed.
                                   II. Analysis
       {¶ 7} The trial court’s standard for reviewing an administrative appeal is
whether the administrative order is unconstitutional, illegal, arbitrary, capricious,
unreasonable, or unsupported by the preponderance of substantial, reliable, and
probative evidence in the record. Henley v. Youngstown Bd. of Zoning Appeals,
90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000); R.C. 2506.04. Then, on appeal,
an appellate court conducts a more limited review. The appellate court reviews
the trial court’s decision only on questions of law to determine whether the lower
court abused its discretion in finding that the administrative order was supported
by reliable, probative, and substantial evidence. Kisil v. Sandusky, 12 Ohio St.3d
30, 34, 465 N.E.2d 848 (1984).



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       {¶ 8} Plaintiffs have set forth two propositions of law, but the second one
is dispositive of this appeal and, accordingly, it will be addressed first. Plaintiffs
contend that they had a vested right in the lot’s status as buildable that continued
beyond the 1978 zoning amendment. We agree. This argument is, in reality, a
grandfathering-in claim.
       {¶ 9} Under the theory espoused by plaintiffs, the two lots they purchased
in 1974 were undisputedly buildable lots at the time of purchase. Whether or not
plaintiffs ever intended to build on the vacant lot is irrelevant. It was purchased as
a buildable lot, they paid for and received a buildable lot, and they paid taxes on it
for over 30 years as a buildable lot. In short, the village simply had a change of
heart in 1978 and decided to make this particular lot, as opposed to its neighbors,
worthless. For the Sixth District Court of Appeals to conclude that it was not a
buildable lot because plaintiffs never actually began construction on the lot
between the 1974 purchase and the 1978 zoning amendment is contrary to law. It
ignores well-settled land-ownership rights in this country.
       {¶ 10} In regard to the principles of zoning, this court has stated that,
generally, “[z]oning 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,” and, accordingly, “such resolutions are ordinarily construed in
favor of the property owner.” Saunders v. Clark Cty. Zoning Dept., 66 Ohio St.2d
259, 261, 421 N.E.2d 152 (1981). There is a balancing that takes place between
an owner’s use of his private property and the necessity of government to exercise
its power in the best interests of the public. In Gerijo, Inc. v. Fairfield, 70 Ohio
St.3d 223, 225, 638 N.E.2d 533 (1994), this court stated:


       [T]he Ohio Constitution explicitly subjects the right of an
       individual to use and enjoy his or her property to the legitimate
       exercise of local police power.        See Section 3, Article XVIII.




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       Inasmuch as the exercise of police power interferes with individual
       rights, the use of such power must bear a substantial relationship to
       a legitimate government interest and must not be unreasonable or
       arbitrary.


With this in mind, we will address the specific facts in the present case.
       {¶ 11} The lots in this section of Ottawa Hills were platted in 1926 when
the minimum square footage for a buildable lot was 15,000 square feet. In 1973,
prior to plaintiffs acquiring these lots, the previous owner transferred part of one
lot to the other lot to accommodate a driveway. This was done with the approval
of the village. The end result was that there were still two lots that exceeded the
15,000-square-foot requirement, thereby qualifying as buildable lots. Plaintiffs
purchased the two lots in 1974, and everyone agrees that the plaintiffs could have
built a house on the smaller lot, without seeking a variance, at any time up until
the zoning amendment in 1978, which increased the minimum buildable lot size
to 35,000 square feet.
       {¶ 12} After 1978, several property owners with lots that had been platted
in 1926 and that were smaller than 35,000 square feet built residences on their
lots. The only difference between plaintiffs’ lot and the others is that the other
lots were all unchanged since 1926, whereas plaintiffs’ parcel had been changed
in size in 1973. However, defendants are unable to explain why this fact justifies
the disparate treatment. Even with the changes approved by the village in 1973,
the lots that plaintiffs purchased in 1974 were platted, buildable lots, with no
cognizable differences from the other lots that had been platted 47 years earlier.
       {¶ 13} Yet the zoning commission, the trial court, and the Sixth District
concluded that the village had correctly denied plaintiffs’ request to have their lot
declared to be a buildable lot. In Kisil v. Sandusky, 12 Ohio St.3d 30, 465 N.E.2d
848, syllabus, this court held that the standard for granting a variance for area



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requirements is a lesser standard than when a use variance is at stake: the
applicant need only show practical difficulties rather than unnecessary hardship.
This court has stated:


               [T]he factors to be considered and weighed in determining
       whether a property owner seeking an area variance has
       encountered practical difficulties in the use of his property include,
       but are not limited to: (1) whether the property in question will
       yield a reasonable return or whether there can be any beneficial use
       of the property without the variance; (2) whether the variance is
       substantial; (3) whether the essential character of the neighborhood
       would be substantially altered or whether adjoining properties
       would suffer a substantial detriment as a result of the variance; (4)
       whether the variance would adversely affect the delivery of
       governmental services (e.g., water, sewer, garbage); (5) whether
       the property owner purchased the property with knowledge of the
       zoning restriction; (6) whether the property owner’s predicament
       feasibly can be obviated through some method other than a
       variance; (7) whether the spirit and intent behind the zoning
       requirement would be observed and substantial justice done by
       granting the variance.


Duncan v. Middlefield, 23 Ohio St.3d 83, 491 N.E.2d 692 (1986), syllabus.
       {¶ 14} When these questions are overlaid against the facts in this case, it
becomes evident that the plaintiffs demonstrated that they have encountered
practical difficulties as a result of the 1978 zoning amendment, and their request
for a variance should have been granted. Clearly, when, as here, a lot in a
residential neighborhood has been deemed unbuildable, the pool of potential




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buyers would almost certainly be limited to adjoining property owners, and its
value would be much reduced. Additionally, the variance is not substantial in that
the current lot minimum is 35,000 square feet, and plaintiffs’ lot is 33,000 square
feet, or 94 percent of the necessary square footage. Looking at the third factor,
the essential character of the neighborhood would not be substantially altered, as
there are numerous homes in the neighborhood that are built on lots smaller than
35,000 square feet. And as to the fourth factor, the granting of the variance would
have no effect on the delivery of governmental services such as water, sewer, or
garbage.
        {¶ 15} Under the fifth factor, it is undisputed that plaintiffs purchased the
lot before the enactment of the size restriction of 35,000 square feet. At the time
of purchase, plaintiffs’ lot was a buildable lot. With regard to the sixth factor,
plaintiffs’ predicament cannot be obviated through any means other than a
variance. Finally, whether the spirit and intent of the zoning requirement would
be observed by granting the variance is open to debate, but this factor is just one
of many in the nonexhaustive list set forth in the Duncan decision, and no single
factor is controlling. Id. at 86.
        {¶ 16} Thus, under the analysis that is applicable to determining whether a
variance should have been granted, the appropriate result would have been to
grant the variance in this case. The factors in favor of such a result heavily
outweigh those against.
        {¶ 17} We conclude that there are three pillars that support the reversal of
the Sixth District Court of Appeals’ decision. First, under a “grandfathering-in”
analysis, the lot in question was purchased as a buildable lot in 1974, and, when
the village decided to increase the minimum buildable lot size in 1978, this lot
should have been grandfathered in so as to remain a buildable lot. Under Ottawa
Hills Ordinance No. 78-5, the ordinance that increased the minimum lot size, “the
lawful use of * * * any land or premises existing at the time of the effective date



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of this ordinance * * * may be continued although such use does not conform to
the provisions hereof.” Article XIII, Section 13.1. If we were to accept the
village’s argument that until construction has begun on a lot, the lot has no legal
“use,” and the property owner can have no expectations about the future use of
the property, landowners in Ohio would hold title to vacant land at their own peril
subject to governmental regulations that can change overnight. This result would
eliminate the constitutional protections that people must be afforded with respect
to their own private property. See generally Norwood v. Horney, 110 Ohio St.3d
353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 34-38; Ohio Constitution, Article I,
Section 1. It is to be remembered that for 32 years plaintiffs were paying the
buildable-lot tax rate in this upscale neighborhood. Indeed, their investment had
grown to a nest egg approximating a quarter of a million dollars in value until the
village rendered it virtually worthless, causing the county to reduce its market
value to $23,400. It was clearly arbitrary for the village to single this lot out for a
denial of the grandfathering-in treatment enjoyed by similar lots in the same
neighborhood!
       {¶ 18} Under the second pillar, this situation involves a de minimis
difference. The current zoning calls for a minimum lot of 35,000 square feet, and
plaintiffs’ lot is 33,000 square feet. This difference is relatively small, and it is
patently unreasonable to hold otherwise.
       {¶ 19} Finally, there was disparate treatment of residents in the village
when it came to permitting houses to be built on lots smaller than 35,000 square
feet. In fact, the only residents who were denied this opportunity to have a
smaller lot deemed buildable were plaintiffs. All other property owners who
applied after the 1978 change in the ordinance were granted permission.
                                  III. Conclusion
       {¶ 20} Under these circumstances, we conclude that the Sixth District
Court of Appeals erred in upholding the decision of the Lucas County Common




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Pleas Court in this matter. Therefore, we reverse the judgment of the court of
appeals and remand the cause to the trial court for further proceedings consistent
with this opinion.
                                                                            Judgment reversed
                                                                         and cause remanded.
        PFEIFER, O’DONNELL, and KENNEDY, JJ., concur.
        O’CONNOR, C.J., and LANZINGER and FRENCH, JJ., dissent.
                                  ____________________
        LANZINGER, J., dissenting.
        {¶ 21} A review of the lengthy record of these proceedings shows that
only the regulatory-takings issue is before the court now, all other issues having
been waived. We accepted two propositions of law.2 But rather than answer the
question properly before us, the majority holds that the trial court abused its
discretion in upholding the zoning decision on grounds that the Boices received
disparate treatment, that the difference between the lot size and the minimum lot
required by the ordinance was de minimis, and that the variance should have been
granted as a “grandfathering-in” claim.
        {¶ 22} Because the majority opinion sidesteps well-established principles
for determining when a regulatory taking occurs and when vested rights exist, I
respectfully dissent and would affirm the judgment of the court of appeals.
                                    I. Procedural History
Arguments raised in initial trial briefs
        {¶ 23} The Boices have not been consistent in their positions, and a
procedural review must be undertaken to see which issues are properly before this
court. In their trial court brief, the Boices challenged the decision of the zoning

2. Proposition of Law One states: “Elimination of the only permissible use of a parcel of
residential property through regulation is a total regulatory taking.”
    Proposition of Law Two states: “The pre-existing vested rights in property exist independent of
a landowner’s intent to personally exercise those rights.”




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commission for two reasons. First, they argued that retroactive application of the
zoning amendment to their property “results in it having limited, if any,
economically viable use, and nominal fair market value, which constitutes a
taking without just compensation.”          Second, they argued that retroactive
application of the zoning amendment “violates the public purpose in that it is
unreasonable, arbitrary, capricious, and not supported by the preponderance of the
substantial, reliable, and probative evidence on the whole record.”
       {¶ 24} The Boices requested that the trial court issue an order (1)
reversing the zoning commission’s decision on grounds that it is an
unconstitutional taking without just compensation and ordering the granting of the
lot variance, (2) reversing the zoning commission’s decision on grounds that it is
an unconstitutional taking without just compensation and finding that the zoning
amendment cannot be applied to the lot, which remains a buildable lot, and/or (3)
finding that retroactive application of the zoning amendment violates the public
purpose of the statute and that the zoning amendment does not apply to the lot,
which remains a buildable lot.
Trial court and appellate court decisions
       {¶ 25} In reviewing the zoning board’s administrative action, the trial
court concluded that the zoning regulation as applied to the Boices’ property was
constitutional and that the Boices did not suffer a compensable taking of their
property. The Boices appealed to the Sixth District, setting forth two “issues for
review,” which the court construed as assignments of error:


               1. Whether the trial court erred as a matter of law by
       finding that there can be no regulatory taking as a result of a
       retroactive application of a new zoning statute that causes a
       substantial diminution in fair market value but not a total
       diminution in fair market value to the effected [sic] property.




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                                January Term, 2013




               2. Whether the trial court erred as a matter of law on
       appellant by not placing the burden on appellee to prove that the
       retroactive application of the zoning statute substantially advanced
       legitimate state interests.


Boice v. Ottawa Hills, 6th Dist. Lucas No. L-06-1208, 2007-Ohio-4471, ¶ 1-3.
Each of these assignments of error attacked the trial court’s reasoning in
concluding that no compensable taking had occurred.
       {¶ 26} The Sixth District, determining that the trial court had used the
incorrect standard of analysis for the regulatory-taking claim, remanded the case
to the trial court to redetermine that issue using the standard on partial regulatory
takings. Id. at ¶ 37. Ottawa Hills appealed the Sixth District’s judgment to this
court, but we declined to accept. Boice v. Ottawa Hills, 116 Ohio St.3d 1478,
2008-Ohio-153, 879 N.E.2d 785.
       {¶ 27} On remand, the trial court concluded that “no unconstitutional
taking has occurred with respect to [the lot] and the Boices have not established
[the lot’s] nonconforming use as a buildable lot” and accordingly entered
judgment in favor of Ottawa Hills. The Boices appealed that judgment and raised
six assignments of error. The fourth argued that the trial court erred by not
addressing their claim that they were subject to disparate treatment, while the
sixth raised a “grandfathering-in” claim.      No assignment of error raised an
argument that the variance request was de minimis because the lot in question is
substandard by only 2,000 square feet. Boice v. Ottawa Hills, 6th Dist. Lucas No.
L-09-1253, 2011-Ohio-5681, ¶ 14-19.
       {¶ 28} The Sixth District held that the Boices’ disparate-treatment claim
was beyond the scope of the remand and that the trial court therefore did not err in
failing to address the issue. Id. at ¶ 43. The court of appeals also rejected the
grandfathering-in claim after noting that the Boices never used the lot as a



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buildable lot and that they failed to request a variance or seek in any other way to
establish the lot as a valid nonconforming use upon the enactment of the zoning
regulation in 1978. Id. at ¶ 49.
       {¶ 29} In the case now before us, instead of analyzing the Boices’ taking
claim, the majority cites Duncan v. Middlefield, 23 Ohio St.3d 83, 491 N.E.2d
692 (1986), and redetermines whether a variance should have been granted. But
the point of this appeal is not whether the variance should have been granted. The
point is whether the denial of the variance effected a taking. For the first time, the
Boices claim that the denial of the variance was a total regulatory taking and
affected their “pre-existing rights.” The convoluted and conflicting arguments in
this case should not be the foundation upon which a drastic change in zoning law
is made.
                                   II. Majority Opinion
       {¶ 30} The three “pillars” supporting the majority opinion rest on
arguments that were either waived on appeal or properly dealt with by the court of
appeals.
“Grandfathering in” of a buildable lot
       {¶ 31} The Boices’ second proposition of law essentially argues that
because the Boices could have built a house on the lot when they purchased it had
they so desired, they forever preserved the right to build a house on the lot. Their
argument hinges upon how the word “use” is interpreted in the zoning
amendment, which provides that “the lawful use of * * * any land or premises
existing at the time of the effective date of this ordinance * * * may be continued
although such use does not conform to the provisions hereof.” (Emphasis added.)
Ottawa Hills Ordinance No. 78-5. The court of appeals correctly held that the lot
could not be “grandfathered in” as a buildable lot since the Boices never built
upon the lot and never requested a variance or sought to establish a valid
nonconforming use upon the enactment of the zoning regulation in 1978.




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       {¶ 32} Part of the confusion in this case relates to the characterization of
the Boices’ lot as “buildable.”      The ability to build upon a lot is a mere
expectation of a use—it is not a use in and of itself.
       {¶ 33} Until now, the term “nonconforming use” has referred to “a use of
property which was lawful prior to the enactment of a zoning ordinance” and
which “may be continued after the effective date of the ordinance even though it
does not comply with the applicable use restrictions. R.C. 713.15; State v. Pierce
(1956), 164 Ohio St. 482, 132 N.E.2d 102.” (Emphasis deleted.) C.D.S., Inc. v.
Gates Mills, 26 Ohio St.3d 166, 168, 497 N.E.2d 295 (1986). Since 1957, R.C.
713.15 has specified that to establish a valid nonconforming use, the property
must actually be used in that manner at the time of the enactment or amendment
of the zoning ordinance: “The lawful use of any dwelling, building, or structure
and of any land or premises, as existing and lawful at the time of enacting a
zoning ordinance or an amendment to the ordinance, may be continued, although
such use does not conform with the provisions of such ordinance or amendment
* * *.” (Emphasis added.)
       {¶ 34} The Boices never used this property as anything but a side yard for
their home. Mere characterization of a piece of property as “buildable” describes
a potential use, not an existing or actual use. It is simply a possibility for future
use of the property. The grandfathering clause of the ordinance states that “the
lawful use of * * * any land * * * existing at the time of the effective date of this
ordinance * * * may be continued although such use does not conform* * *.”
(Emphasis added.) The Boices could certainly have built a home on the property
between 1974, when they purchased the two parcels, and 1978, when the new
ordinance took effect. They provided no evidence of seeking a variance for their




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second parcel until 26 years after the ordinance’s enactment, when they decided
to sell their property.3
          {¶ 35} Contrary to the majority’s statement, the trial court did not
determine that “a taking had not occurred because plaintiffs never took any
affirmative steps to build a house on the lot.” Majority opinion at ¶ 5. Instead, the
court stated, “From 1974 until 2004, the only activity that took place on Parcel 3
was the Boices’ use of it as open space and for their driveway.” In other words,
the trial court found that the Boices did not establish an existing nonconforming
use that the ordinance would have allowed to be grandfathered in.
          {¶ 36} I disagree with the majority’s transformation of “expectations” into
a legally cognizable actual “use.” It is an overstatement to say that unless these
expectations are protected, “landowners in Ohio would hold title to vacant land at
their own peril subject to governmental regulations that can change overnight.”
Majority opinion at ¶ 17. This is not such a case. The Boices always used the
33,000-square-foot lot as a side lot for their 57,000-square-foot residence lot.
They offered the lots for sale together, applying for a variance in 2004. After the
variance was denied, they sold their residence lot separately, understanding that
the side lot was not buildable. Essentially, they argue that the minimum-area
ordinance should not be applied to them because when they bought the lot it was
buildable and they expected it always would be. But expectations are not vested
rights.
          {¶ 37} This reading of the zoning ordinance does not conflict with
Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115,
¶ 34-38.     While the right of property is a fundamental right and the rights
associated with property are strongly protected by Ohio law, citizens of this state
do not possess totally unfettered rights. One limitation is the ability of local

3. Moreover, the Boices never sought a reduction in their tax bill on the parcel based on its
reduction in value.




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                               January Term, 2013




governmental entities to enact zoning ordinances.         We have long held that
“ ‘[p]roperty is held subject to the valid exercise of the police power of the
State.’ ” Curtiss v. Cleveland, 166 Ohio St. 509, 521, 144 N.E.2d 177 (1957),
quoting Offutt v. Baltimore Cty. Bd. of Zoning Appeals, 204 Md. 551, 562, 105
A.2d 219 (1954).
       {¶ 38} To    avoid   enforcement      of   an   ordinance   on   grounds   of
“nonconforming use,” then, a property owner must establish that the use is
actually in existence. The Boices cite Negin v. Mentor Bd. of Bldg. & Zoning
Appeals, 69 Ohio St.2d 492, 433 N.E.2d 165 (1982), a plurality opinion, to
support the idea that a nonconforming use may exist when an owner of an empty,
undersized lot establishes that denial of a right to build would render the property
useless.    The concurring opinion in Negin, however, anticipated the present
question:


       How can there be a nonconforming use for home construction
       when the land is vacant? A nonconforming use means a use “* * *
       which existed at the time of the passage of the zoning ordinance
       and continued thereafter without interruption and without material
       change * * *.” Akron v. Chapman (1953), 160 Ohio St. 382, 116
       N.E.2d 697, paragraph three of the syllabus.


Id. at 498 (Celebrezze, C.J., concurring.) Furthermore, we have explained:


                Where no substantial nonconforming use is made of
       property, even though such use is contemplated and money is
       expended in preliminary work to that end, a property owner
       acquires no vested right to such use and is deprived of none by the




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       operation of a valid zoning ordinance denying the right to proceed
       with his intended use of the property.


(Emphasis added.) Smith v. Juillerat, 161 Ohio St. 424, 119 N.E.2d 611 (1954),
paragraph four of the syllabus.
       {¶ 39} In diverging from the established zoning law of this state, the
majority’s reading would seem to invalidate any zoning amendments that could
potentially affect existing property owners. This will profoundly damage the
ability of municipal corporations to enact zoning laws. I would adhere to our
previous zoning decisions and R.C. 713.15 in holding that the Boices cannot have
their property “grandfathered in” under the ordinance because there was no
existing nonconforming use to be grandfathered in.
De minimis argument
       {¶ 40} The majority’s “second pillar” supporting reversal is the belief that
this situation involves a de minimis difference between the minimum lot size
required by Ottawa Hills and the size of the Boices’ lot. Regardless of the
validity of this conclusion, this issue relates to whether Ottawa Hills properly
refused a variance for the property. This issue was not raised below, and it is not
raised in either proposition of law before this court. It is well established that we
will not consider arguments that have not been raised prior to appeal to this court.
State v. Wirick, 81 Ohio St. 343, 346-347, 90 N.E. 937 (1910). The Boices
waived this issue, and it should not form a basis for this court’s decision.
Disparate-treatment argument
       {¶ 41} The majority’s “third pillar” supporting reversal is that there was
disparate treatment of residents in the village when it came to permitting houses
to be built on lots smaller than 35,000 square feet. As noted, the Boices failed to
raise the issue of disparate treatment until their second appeal to the Sixth District
Court of Appeals. It is curious that the majority would base its decision upon an




                                         16
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issue that the court of appeals explicitly refused to address and that was not
appealed. As with the de minimis argument, the disparate-treatment argument
does not form a basis for reversal.
                               III. Regulatory Taking
       {¶ 42} The Boices’ first proposition of law before us states that
“[e]limination of the only permissible use of a parcel of residential property
through regulation is a total regulatory taking.” I would hold that this argument
fails for two reasons. First, the Boices are procedurally barred from claiming a
total regulatory taking. Second, even if we were to consider the Boices’ claim of
a total regulatory taking, none has occurred in this case.
Waiver of claim of total regulatory taking
       {¶ 43} The United States Supreme Court has recognized two types of
regulatory takings. State ex rel. R.T.G., Inc. v. State, 98 Ohio St.3d 1, 2002-Ohio-
6716, 780 N.E.2d 998, ¶ 39. Total regulatory takings must be compensated.
Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1026, 112 S.Ct. 2886,
120 L.Ed.2d 798 (1992). A total regulatory taking has occurred when a regulation
deprives the property owner of all economically beneficial uses of the land. See
R.T.G. at ¶ 37-39. If a regulation does not deprive property of all of its economic
value, then the taking is only partial, and the analysis to be applied is set forth in
Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57
L.Ed.2d 631 (1978). R.T.G. at ¶ 39.
       {¶ 44} On their initial appeal to the Sixth District, the Boices asked
whether a regulatory taking occurs when the retroactive application of a new
zoning statute causes a substantial—but not a total—diminution in fair market
value of the affected property. They also asked who had the burden of proving
that the retroactive application of the statute advanced legitimate state interests. In
their brief, the Boices argued that the trial court “completely ignored U.S.
Supreme Court decisions which provide that where governmental regulatory



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action reduces the value of real property, there still can be a regulatory taking
even though there has not been a total loss of value.”
       {¶ 45} In its decision, the court of appeals noted that the trial court viewed
the taking claim under Lucas’s total-taking standards. 6th Dist. Lucas No. L-06-
1208, 2007-Ohio-4471, ¶ 34. It then stated, “We find this to be in error because
appellants have never alleged a total regulatory taking. Rather, the facts of the
present case required an analysis under Penn Central and its progeny in that
appellants essentially asserted that the zoning ordinance interfered with distinct
investment-backed expectations.” (Emphasis added.) Id. The court concluded
that


       the trial court erred in finding that no taking had occurred in
       appellees’ enforcement of its zoning ordinance and denial of
       appellants’ variance request, without first evaluating the case
       pursuant to the United States Supreme Court’s standards set forth
       in Lingle [v. Chevron U.S.A., Inc., 544 U.S. 528, 125 S.Ct. 2074,
       161 L.Ed.2d 876 (2005)], supra and Penn Central, supra.


Id. at ¶ 35. It accordingly remanded the case for the trial court to reconsider the
regulatory-takings issue in light of these standards.
       {¶ 46} On remand, the trial court considered whether a partial regulatory
taking had occurred under Penn Cent. and found that no such taking had occurred.
In the second appeal, the Sixth District again viewed the allegations as asserting a
partial regulatory taking: “As we discussed in Boice I, the taking alleged in this
case falls under the category of regulatory takings challenges governed by the
standards set forth in Penn Central * * *.” 6th Dist. Lucas No. L-09-1253, 2011-
Ohio-5681, ¶ 33.




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                                     January Term, 2013




        {¶ 47} This procedural review reveals that the Boices never alleged a total
regulatory taking until they raised it before us in their first proposition of law.
This is not permitted. State v. Wirick, 81 Ohio St. at 346-347, 90 N.E. 937.
        {¶ 48} Because the Boices have thus waived any argument related to total
regulatory takings, I would affirm the judgment of the court of appeals.
No unconstitutional regulatory taking
        {¶ 49} Even if the issue had not been waived and we were to analyze this
case to determine whether a regulatory taking has occurred, the Boices still would
not prevail.
        {¶ 50} For a total regulatory taking to occur, the regulation must deny “all
economically beneficial or productive use of land.” Lucas, 505 U.S. at 1015, 112
S.Ct. 2886, 120 L.Ed.2d 798. Contrary to statements in the majority opinion, the
lot is not “worthless.” While it may be true that the ordinance decreased the
property’s market value by prohibiting construction, the trial court found the
testimony of the village’s expert more credible and valued the lot at $105,000,
while even the Boices’ own expert’s “guesstimate” was $38,000.4
        {¶ 51} In Negin, 69 Ohio St.2d at 496, 433 N.E.2d 165, a plurality of this
court concluded that a regulation that has the effect of rendering a lot useless for
any practical purpose totally restricts the property owner in the use of his property
“in violation of constitutional guarantees.”             The plurality concluded that an
ordinance’s requirement that a landowner purchase additional property before he
is permitted to improve a substandard lot rendered the substandard lot useless for
any practical purpose, even if the lot could be sold to an adjacent land owner. Id.


4. Contrary to the majority’s statement that the Boices’ “investment had grown to a nest egg
approximating a quarter of a million dollars in value until the village rendered it virtually
worthless, causing the county to reduce its market value to $23,400,” majority opinion at ¶ 17, the
record shows that the Lucas County Auditor’s valuation of the lot before it was reappraised in
2006 was $49,300. After the auditor reappraised the property at $233,500 in 2006, the Boices
requested informal review, and on October 23, 2006, the auditor reduced the estimated value to
$23,400. Thus, the Boices never paid property taxes on the inflated sum.




                                                19
                             SUPREME COURT OF OHIO




at 496-497. Negin does not, however, convince me that application of the zoning
amendment in this case amounted to a taking. As a plurality opinion, Negin is of
questionable precedential value because it “failed to receive the requisite support
of four justices of this court in order to constitute controlling law.” Kraly v.
Vannewkirk, 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994). Here, the zoning
amendment did not deny all economically beneficial use of the lot, and therefore
no total regulatory taking has occurred.
       {¶ 52} Furthermore, even if the Boices had requested that this court
review the Sixth District’s analysis of their partial regulatory taking claim, an
identical conclusion would be reached. In its opinion, the Sixth District had noted
that the Boices failed to establish a negative economic impact and interference
with distinct investment-backed expectations, two of the considerations, along
with the character of the governmental action that must be considered in
determining partial takings. State ex rel. Shelly Materials, Inc. v. Clark Cty. Bd.
of Commrs., 115 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d 59, ¶ 19.
       {¶ 53} I agree with the court of appeals’ explanation of its holding on the
issue of unconstitutional taking:


       With regard to distinct investment-backed expectations in the
       present case, * * * the record is clear. The only “use” appellants
       ever intended for Parcel 2 was to sell it for a profit. Accordingly,
       the only loss appellants’ [sic] have sustained from the zoning
       regulation and denial of variance, is the loss in market value.
       Because they themselves never intended to build a house on the
       property, they have not been denied an economically viable use.
       As noted above, “something more than the loss of market value or
       loss of the comfortable enjoyment of the property is needed to




                                           20
                               January Term, 2013




        constitute a taking.” State ex rel. Pitz [v. Columbus, 56 Ohio
        App.3d 37] at 41, [564 N.E.2d 1081 (1988)].
                We, therefore, conclude that the lower court did not err in
        finding appellants failed to establish an unconstitutional taking in
        the proceedings below * * *.


2011-Ohio-5681, ¶ 40-41.
                                  IV. Conclusion
        {¶ 54} The majority has reexamined the evidence before the zoning board
and determined that a property owner’s expectation of a parcel’s being a
“buildable lot” equates to a nonconforming use that vests rights in the owner.
This conclusion is unwarranted by precedent. Furthermore, the discussion of
disparate treatment and the de minimis difference in lot size rests on arguments
that were waived by the Boices, as was their claim of a total regulatory taking.
This court is not the place for new issues to be raised on appeal. I would affirm
the judgment of the Sixth District Court of Appeals.
        O’CONNOR, C.J., and FRENCH, J., concur in the foregoing opinion.
                             ____________________
        Barkan & Robon, Ltd., Marvin A. Robon, and Larry E. Yunker II, for
appellants.
        Maloney, McHugh & Kolodgy, Ltd., Sarah A. McHugh, and Emily C.
Zillgitt, for appellees.
        Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor
General, Michael J. Hendershot, Chief Deputy Solicitor, and Michael Stokes,
Principal Assistant Attorney General, urging affirmance for amicus curiae state of
Ohio.




                                        21
                           SUPREME COURT OF OHIO




      John Gotherman; and Ice Miller L.L.P., Stephen J. Smith, Philip
Hartmann, and Rebecca K. Schaltenbrand, urging affirmance for amicus curiae
Ohio Municipal League.
                         _________________________




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