What Happened on Remand: A Couple of Zoning Cases.

Moore v. Middletown

In 2012, in Clifton v. v. Blanchester, 2012-Ohio-780, the Supreme Court of Ohio held that a property owner outside the corporate limits of the village involved could not challenge the re-zoning of a contiguous business within the village limits, nor bring a regulatory-takings claim against the village.

The same day Clifton was argued, the Court heard Moore v. Middletown, which also involved a zoning challenge against a municipality by a landowner who didn’t live in the municipality.

The plaintiffs in the Moore case owned property in Monroe that bordered a parcel of land in Middletown known as the Martin-Blake property.  That 157 acre tract was zoned as low-density residential. Middletown re-zoned the Martin-Blake property to a general industrial classification and eliminated set-back requirements that were “incidental or ancillary” to the manufacturing process, in order to allow a coke plant to be built on the site.  According to the Moores, this zone change wasn’t for the benefit of the public, but solely for the benefit of the AK Steel Corporation, one of Middletown’s largest employers.  The Moores filed a declaratory judgment action challenging the constitutionality of the zoning ordinances and also a writ of mandamus seeking compensation for what they argued was clearly a taking of their property.

In Moore v. Middleton, 2012-Ohio-3897, a 4-3 decision, the Court held that while the Moores lacked standing to compel a takings claim (this part of the decision was unanimous) they could, as adjacent property owners, bring a declaratory judgment action to challenge the re-zoning of the Martin-Blake property on constitutional grounds, to try and prove the re-zoning violated their equal protection and due process rights, and was arbitrary and unreasonable, and not substantially related to the public health, safety, or general welfare.  The case was reversed and remanded to allow them to try. Read the analysis of the merit decision in Moore  here.

Case Syllabus

Property owners whose property is adjacent to property rezoned by a foreign municipality may use a declaratory-judgment action to challenge the constitutionality of the zoning action if the owner pleads that he has suffered an injury caused by the rezoning that is likely to be redressed.

What Happened on Remand

The Moores gave up, at least for now.

After the case was remanded, the Moores proceeded with their declaratory judgment action and writ of mandamus. This is what the Supreme Court majority had held they could do, on remand. On July 2, 2013, Middletown filed its answer, which included twenty different affirmative defenses, such as res judicata, statute of limitations, laches, and failing to exhaust administrative remedies.

On August 2, 2013, Butler County Judge Michael Sage filed a pretrial order scheduling the case for a bench trial on June 23, 2014. However, on January 8, 2014, the Moores filed a motion to dismiss the case without prejudice, splitting the costs with the Middletown.

Boice v. Ottawa Hills

Case background

This case involved a zoning dispute over one of two lots owned by Willis and Annette Boice in Ottawa Hills. When the Boices bought the lots in 1974, one of the lots was vacant; the other had a house on it. The lot with the house, where the Boices lived for thirty years, was 57,000 square feet. The vacant lot was 33,000 square feet. When originally platted in 1926, the lots were 46,000 and 44,000 square feet, but were adjusted with Village approval before the Boices bought them.

In 1974, the minimum buildable lot size in the Village was 15,000 square feet. In 1978, the Village amended its zoning code to increase the buildable lot size to 35,000 square feet. The new ordinance included a grandfathering provision for existing lawful uses of property.

In 2004, the Boices sold their house. They sought approval from the village manager to have the vacant lot declared a buildable lot so they could sell it as well. The village manager denied their request because of the lot size.

Procedural Posture

Many rounds of appeals occurred in this case. It went to the Sixth District Court of Appeals twice.  Simply put, the zoning commission, the trial court, and the appeals court all concluded the Village had correctly denied the Boices’ request for a variance.

Supreme Court Decision

On November 7, 2013, the Supreme Court of Ohio handed down a merit decision in Boice v. Ottawa Hills, 2013-Ohio-4769.  

In a 4-3 decision written by Justice O’Neill, the Supreme Court concluded that “three pillars” required reversal.  One was that this lot should have been grandfathered in to remain a buildable lot when the 1978 ordinance increased the buildable lot size.  The second was the de minimis difference in the square footage requirement involved. The third was disparate treatment.  All village residents other than the Boices who sought permission to build houses on lots smaller than 35,000 feet after the 1978 change in the ordinance were granted permission to do so.

The case was reversed and remand the cause to the trial court for further proceedings consistent with the Court’s opinion. Read the analysis of the merit decision here.

On Remand

On March 26, 2014, the parties entered into a stipulation, signed by the trial court, that the lot in question was to be deemed a buildable lot, subject to all other applicable zoning requirements. Read the Court’s order here.


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