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.

Parkstone Capital Partners v. City of Solon

Court of Appeals of Ohio, Eighth District

July 18, 2013

PARKSTONE CAPITAL PARTNERS, PLAINTIFF-APPELLEE
v.
CITY OF SOLON, OHIO, DEFENDANT-APPELLANT

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-674430.

ATTORNEYS FOR APPELLANT Thomas G. Lobe Thomas G. Lobe Co., L.P.A. Todd D. Cipollo Todd D. Cipollo Co., L.P.A.

ATTORNEY FOR APPELLEE: Kenneth J. Fisher Kenneth J. Fisher Co., L.P.A.

ATTORNEY FOR INTERVENORS Warner Mendenhall.

BEFORE: Stewart, A.J., S. Gallagher, J., and E.A. Gallagher, J.

JOURNAL ENTRY AND OPINION

MELODY J. STEWART, A.J.

{¶ 1} Plaintiff Parkstone Capital Partners ("Parkstone") brought this declaratory judgment action against the defendant city of Solon asking the court to declare that a single family residential zone in the city was unconstitutional as applied to a parcel of land that it owned, and rezone it to two-family residential. The court declared the zoning ordinance unconstitutional and ordered the city to conduct an election to approve the rezoning. After the electorate soundly voted against the zoning change, the court judicially ordered the zoning changed to two-family residential. The city appeals and offers four arguments in support of reversing the court's judgment: three procedural and one substantive. The procedural arguments claim that Parkstone failed to exhaust its administrative remedies when it dismissed an earlier action on the same zoning issue. The substantive argument is that the court had no authority to judicially rezone the land without a hearing.

I

{¶ 2} The parties stipulated the facts and do not otherwise contest the relevant procedural posture of the case.

{¶ 3} The property in question is unimproved land consisting of three permanent parcel numbers, none of which is one acre or more in size. It is located at the southeast quadrant of State Route 91 (SOM Center Road) and Miles Road, in a section of the city zoned R-l-D, single family residential. The R-l-D classification allows only single family residences on a minimum lot size of one acre and further requires a minimum road frontage of 90 feet. The southwest quadrant of the intersection is likewise zoned R-l-D single family residential while the remaining two quadrants (northeast and northwest) are zoned C-4 motor service commercial. The C-4 classification "is an intensive commercial district that permits a range of uses including gas stations, automobile sales, motels, fast food and sit-down restaurants, and office uses."

{¶ 4} Parkstone purchased the land in May 2006, aware that the land was zoned single family residential. It asked the city planning commission to rezone the property to C-4 motor service commercial. The city charter mandates that all zoning changes are subject to approval by a majority of the electors, so any requested zoning change is contingent upon the city council passing an ordinance to place the rezoning request on the ballot. In August 2008, the city council voted down an ordinance that would place Parkstone's rezoning request on the ballot.

{¶ 5} Parkstone filed an administrative appeal with the court of common pleas in Cuyahoga C.P. No. CV-669169. As that appeal was pending, Parkstone filed this declaratory judgment action, Cuyahoga C.P. No. CV-674430, in October 2008. This case was assigned to a different judge. The complaint sought a declaration that the R-l-D single family residential district zoning was unconstitutional as it applied to Parkstone's property because none of the approved uses for the property under the current zoning classification were "reasonable, practical or economically available for use on the Property" or would be so limiting that those uses would leave the property "undeveloped and void." Parkstone asked the court to rezone the property as C-4 motor service commercial.

{¶ 6} When the city sought to consolidate CV-674430 with CV-669169, Parkstone filed a Civ.R. 41(A) notice of voluntary dismissal without prejudice in CV-669169. The court then denied the motion to consolidate as moot.

{¶ 7} In July 2009, Parkstone filed its second amended complaint and changed its position regarding the rezoning classification it desired. While maintaining its previous position that the R-l-D single family residence zoning classification was unconstitutional as applied to the property, it abandoned its request that the court rezone the property to C-4 motor service commercial. Instead, it asked the court to rezone the property to an R-2 two-family residential classification.

{ΒΆ 8} After the court denied the city's motion for summary judgment, the parties offered the following ...


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.