Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Willis Boice, et al. v. Village of Ottawa Hills

November 4, 2011

WILLIS BOICE, ET AL. APPELLANTS/CROSS-APPELLEES
v.
VILLAGE OF OTTAWA HILLS, ET AL. APPELLEES/CROSS-APPELLANTS



Trial Court No. CI04-5482

The opinion of the court was delivered by: Pietrykowski, J.

Cite as Boice v. Ottawa Hills,

DECISION AND JUDGMENT

{¶1} This is an appeal and cross-appeal from judgments of the Lucas County Court of Common Pleas in an administrative appeal from a decision of appellee the Village of Ottawa Hills Zoning Commission. Appellees, the village of Ottawa Hills, its zoning commission and the commission's individual members (collectively referred to as "Ottawa Hills"), challenge the lower court's denial of their motion to dismiss. Appellants,

Willis and Annette Boice, challenge the lower court's judgment affirming the decision of the zoning commission and determining that appellees' application of Zoning Code Ordinance 2002-08 to appellants' real property located at 2570 Westchester Road, Ottawa Hills, Lucas County, Ohio, is not an unconstitutional taking of real property without just compensation.

{¶2} This is the second time this case has been before this court. In Boice v. Ottawa Hills, 6th Dist. No. L-06-1208, 2007-Ohio-4471 (Boice I), we remanded the case back to the lower court for a redetermination of the regulatory takings issue in light of the correct standards that we set forth in that decision. Nevertheless, for the sake of clarity, we will repeat herein the relevant undisputed facts of this case.

{¶3} In 1974, appellants purchased two adjoining lots in the village of Ottawa Hills. Parcel 1, located at 2570 Westchester Road, included a home that was built in 1941. Parcel 2, located at 2550 Westchester Road, was vacant. The home on Parcel 1, however, extended slightly onto Parcel 2. In approximately 1926, Parcel 1 and Parcel 2 were platted as two separate lots and the plat was filed and accepted by the village of Ottawa Hills. In 1973, Robert and Kate Foster, who then owned both properties, reconfigured the lots by detaching a portion of Parcel 2 and adding it to Parcel 1 so that the house no longer sat across the lot line, although a portion of the driveway did. Appellees the village of Ottawa Hills and its Zoning Commission approved the reconfiguration of the lot line. As a result of this reconfiguration, the square footage of Parcel 2 was reduced to approximately 33,000 square feet. When the parcels were reconfigured, and the following year when appellants purchased them, they were located in an A-4 zoning district. At that time, the minimum lot area requirement to build a single family residence in an A-4 district was 15,000 square feet. As such, when the lots were reconfigured and when appellants purchased them, Parcel 2 was a buildable lot.

{¶4} On May 15, 1978, the Council of the village of Ottawa Hills ("council") passed Ordinance 78-5, amending its zoning code. Under Article VII, Section 7.1 of Ordinance 78-5, the minimum lot area requirement to build a single family residence in an A-4 district was increased to 35,000 square feet. Subsequently, in 2002, the council again amended its zoning code. Through this amendment, Zoning Code Ordinance 2002-08, the council, in part, adopted a new district map which placed the two parcels at issue in a newly created A-12 zoning district. The minimum lot area requirement to build a single family residence in that district, however, remained 35,000 square feet.

{¶5} In 2004, appellants inquired of and were informed by the Ottawa Hills Village Manager that they could not build on Parcel 2 because the size of the lot did not meet the 35,000 square foot requirement. Appellants appealed that decision to the Zoning Commission of Ottawa Hills ("zoning commission"). They also requested a variance from the 35,000 square foot requirement or, if the variance was denied, a lot split which would reconfigure the line between Parcels 1 and 2 so as to increase the size of Parcel 2 to greater than 35,000 square feet. The zoning commission held a public meeting on August 19, 2004, at which they considered appellants' requests. A number of Ottawa Hills residents expressed their opposition to the variance request for a number of reasons, including fear that it would set a precedent, housing density, and the general aesthetics of the area. Appellants' son, on behalf of appellants, responded that the original 1926 plat of the area showed two separate lots, that there was no evidence that the original developers of the plat intended to restrict the lot size to 35,000 square feet, that it had consistently been their understanding that Parcel 2 was a buildable parcel, and that they had paid taxes on the property as if it were a buildable parcel for many years. Upon consideration, the commission voted unanimously to deny the variance request.

{¶6} The commission then proceeded to consider the request for a lot split that would increase the size of Parcel 2. Again, the request was opposed by a number of residents and again the request was denied. Members of the commission stated that the denial was based on the lot size, green space, lot frontage and the effect on the neighborhood. In particular, one commission member stated that the surrounding parcels on Westchester Road were substantially larger than the proposed parcel.

{¶7} On October 24, 2004, appellants filed a notice of administrative appeal with the Lucas County Court of Common Pleas to challenge the decisions of Ottawa Hills and its zoning commission. Appellants filed their appeal pursuant to R.C. 2505.01 et seq. and R.C. 2506.01 et seq. and asserted that the decision of the zoning commission was erroneous, an abuse of discretion, procedurally defective, illegal, void, arbitrary, capricious, unreasonable, and/or unsupported by the preponderance of any substantial, reliable, or probative evidence. They further asserted that the decision constituted an unconstitutional taking of real property without just compensation and that the 1978 zoning amendment was unconstitutional and unenforceable due to lack of proper notice. Appellants prayed for an order reversing the decision of the zoning commission, declaring that Parcel 2 is a buildable lot, and declaring that the decision of the zoning commission was unconstitutional, capricious, unreasonable and/or unsupported by a preponderance of substantial, reliable and probative evidence, and constituted an unlawful confiscation and taking of property.

{¶8} Upon review of the administrative record, the lower court determined that the decision of the Ottawa Hills Zoning Commission was not illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence. The court, however, further held an evidentiary hearing and allowed the parties to submit additional evidence on the constitutionality of the zoning amendment as applied to Parcel 2. On June 9, 2006, the lower court issued a decision and order affirming the decision of the zoning commission. The court held that Zoning Code Ordinance 2002-08 is not unconstitutional as applied to Parcel 2 and held that the application of Zoning Code Ordinance 2002-08 to Parcel 2 does not constitute a taking of real property.

{¶9} Appellants challenged that judgment in an appeal before this court. On August 31, 2007, we issued our decision in Boice I. Upon review we determined that the lower court had applied the wrong standards in evaluating appellants' regulatory takings claim. That is, we held that the lower 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 (2005), 544 U.S. 528, and Penn Central Transp. Co. v. City of New York (1978), 438 U.S.104. We therefore remanded the case to the lower court for a redetermination of the regulatory takings issue in light of the correct standards set forth in our decision.

{¶10} After the case had been returned to the lower court, appellees filed a motion to dismiss for lack of jurisdiction and a separate motion to dismiss on the ground that the applicable statute of limitations had run on appellants' action. In an order of November 24, 2008, the lower court denied both motions, finding them "clearly without merit."

{¶11} Thereafter, the case proceeded to the rehearing on appellants' takings claim. On August 28, 2009, the lower court issued an opinion and judgment entry with findings of fact and conclusions of law. In reviewing the testimony submitted by the parties, the lower court found that the testimony of appellees' expert appraiser, Kenneth Wood, was more persuasive than the testimony of appellants' expert appraiser, Robert Domini. Domini had valued the parcel at $38,000. In contrast, Wood had reviewed and considered for comparable value the sale of an unbuildable parcel one block from the Boices' property, for $100,000, and the sale of an another unbuildable parcel nearby for $176,000, to appraise the Boices' parcel at $105,000. The court noted Wood's testimony that while the Boices' lot was not a buildable parcel, the $105,000 appraised value amounted to a 17 percent annual appreciated value and that the application of Domini's value to the parcel would constitute only a 5 2/3 percent annual appreciation rate. The court further noted that the Boices did not offer any contrary testimony with respect to the annual appreciation rate.

{¶12} The court then concluded, after applying the Lingle and Penn Central factors, that the Boices had not established that the 1978 amendment to the zoning regulation, or the 2002 amendment retaining 35,000 square feet as the minimum building lot size, interfered with their distinct investment-backed expectations. The court further concluded that the Boices had not established the parcel's nonconforming use as a buildable lot. The court therefore held that the application of the Ottawa Hills Zoning Code to appellants' property did not constitute an unconstitutional taking of property without just compensation and affirmed the decision of the Zoning Commission of Ottawa Hills.

{¶13} Appellants now challenge that judgment through the following assignments of error:

{ΒΆ14} "[1.] The trial court erred when it ignored the evidence that was presented showing the only practical use for the Boice's [sic] residential lot was as a park or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.