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Wednesday, September 10, 2014

Village of Lodi, Ohio v. Sunset Estate Properties, LLC, et al., Case no. 2013-1856
Ninth District Court of Appeals (Medina County)

Timothy J. McGinty, Cuyahoga County Prosecutor v. J&C Marketing, LLC, Case no. 2013-1963
Eighth District Court of Appeals (Cuyahoga County)

Joseph W. Testa, Tax Commissioner of Ohio, Board of Education of the Columbus City School District, and Board of Education of the Dublin City School District v. Equity Dublin Associates and SHSCC #2 Limited Partnership, Case no. 2014-0168
Ohio Board of Tax Appeals

State of Ohio v. Shawn A. Ware, Case no. 2014-0425
Eleventh District Court of Appeals (Portage County)

Is Municipal Zoning Ordinance Addressing Nonconforming Use Unconstitutional?

Village of Lodi, Ohio v. Sunset Estate Properties, LLC, et al., Case no. 2013-1856
Ninth District Court of Appeals (Medina County)


At issue is Section 1280.05(a) of Lodi’s Planning and Zoning Code (L.Z.C.), which addresses the discontinuance of lawful nonconforming uses and precludes a property owner from re-establishing a nonconforming use after a specified period of nonuse. The zoning ordinance states:

Whenever a nonconforming use has been discontinued for a period of six months or more, such discontinuance shall be considered conclusive evidence of an intention to legally abandon the nonconforming use. At the end of the six-month period of abandonment, the nonconforming use shall not be re-established, and any further use shall be in conformity with the provisions of this Zoning Code. In the case of nonconforming mobile homes, their absence or removal from the lot shall constitute discontinuance from the time of absence or removal.

Lodi’s zoning code specifically designates an area of the village for manufactured homes (zone MH), as well as separate areas for single-, two-, or multiple-family dwellings (zone R-2). The mobile home parks owned by Sunset Estate Properties and Meadowview Village reside on land zoned R-2. Their manufactured-home parks were established before the local law was passed, so they were able to continue a nonconforming use on land zoned for other uses.

In each manufactured-home park, though, multiple lots stand empty. According to the law, once the lots are empty for at least six months, the permitted nonconforming use ends, and the lots cannot be re-established with mobile homes.

In November 2011, both the property owners and Lodi asked the Medina County Court of Common Pleas for summary judgment. The court ruled in favor of Lodi and declared its zoning ordinance to be neither unconstitutional nor in conflict with state law. The trial court also ruled the local ordinance is not a regulatory taking, so compensation was not necessary.

The property owners filed an appeal to the Ninth District Court of Appeals, which reversed the trial court’s decision and invalidated the zoning law as facially unconstitutional under the due process clauses of the U.S. Constitution and the Ohio Constitution.

Sunset and Meadowview maintain that the ordinance suppresses their ability to generate income if they cannot rent the lots, which amounts to a regulatory taking and requires monetary compensation. The village, however, maintains that the property owners can re-establish the land to its zoned residential use or sell the land to a developer. The owners, however, maintain the land is too small to conform to the zoned lot size for single-, two-, or multiple-family residences, preventing them from developing the land for the zoned use.

In addition, Sunset and Meadowview contest Lodi’s interpretation of how to apply L.Z.C. 1280.05(a), saying the ordinance’s abandonment language should apply to the manufactured-homes parks as a whole, rather than to individual mobile-home lots.

They also insist the Ninth District court reasonably found that Section 1280.05(a) “fails to pass rational basis scrutiny, as it treats prior nonconforming uses of land with manufactured homes differently than land with other types of housing without legitimate justification.”

The attorneys for Lodi, however, maintain that the Ninth District Court of Appeals “completely misinterpreted well-established precedent regarding the eradication of nonconforming uses. If permitted to stand, the Ninth District’s decision will create confusion among Ohio courts, municipalities, and property owners as to the validity of similar zoning ordinances.” Further, they contend, the appellate court’s ruling will negatively impact municipalities’ ability to exercise their police powers in enacting and enforcing zoning laws, “which have a substantial relationship to the public health, safety, morals and general welfare of their communities.”

The village points to R.C. 713.15, which they say authorizes a municipality to enact such an ordinance. Further, they argue, “… Ohio courts have consistently recognized that a municipality ‘may prohibit the expansion, or substantial alteration of a nonconforming use, in an attempt to eradicate that use.’”

Constitutional challenges
In its reply brief, the village insists that an Ohio Supreme Court determination that its ordinance is unconstitutional “will signify the end of, and wholly eradiate, nonconforming-use law that has existed in this state for more than sixty years.”

The village states that the Ninth District did not apply the correct standard when invalidating the disputed zoning ordinance as facially unconstitutional: “The United States Supreme Court and this Court have consistently applied the test set forth in 1926 in Euclid v. Ambler Realty Co. to determine the constitutionality of a zoning ordinance. Under this test, a zoning ordinance is constitutional unless its provisions are ‘clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.’”

Lodi maintains that the mobile-home parks’ owners failed to apply this standard, but rather focused on the economics of the situation, by stating, “[Appellees] argue that ‘Section 1280.05(a) is unconstitutional as applied to individual lots because it deprives [them] of the economically viable use of the property without just compensation.’ This Court has flatly rejected consideration of the economic viability of the subject property in connection with an ‘as applied’ constitutional challenge…. Economic viability of the subject property is relevant only when a party alleges that the zoning constitutes an unconstitutional taking.”

Sunset and Meadowview, however, state that the Ninth District properly invalidated the ordinance under a facial analysis and state, “If a zoning ordinance is deemed facially constitutional, then a court may consider whether the ordinance is invalid as applied to a particular property.” In addition, it stated, “Here the Ninth District properly analyzed Section 1280.05 as to all manufactured home parks – not simply Appellees’ particular properties – and found it facially unconstitutional.”

The village also asks the Supreme Court to address the issues of whether L.Z.C. 1280.05(a) was constitutional as applied and whether it gave rise to a compensable taking, even though the Ninth District did not rule on these issues. They ask the court “to address these issues in order to provide guidance to Ohio courts and litigants by comparing how these separate and distinct standards should be applied to the same municipal ordinance.”

Attorney general asks court not to decide constitutional questions unless necessary
The state attorney general, on behalf of the State of Ohio, filed an amicus curiae brief in support of neither party, arguing that a court should not decide constitutional questions unless necessary and that a court should not declare a law unconstitutional when there are other grounds to resolve the case. The state asks the Supreme Court to remand this case to the Ninth District so it may determine if the zoning ordinance is in conflict with state law and whether it applies to prevent the park owners from renting out vacant mobile-home lots. Its brief states, “The State of Ohio joins this case as amicus curiae because the Ninth District’s holding undermines principles of judicial restraint and elevates the scrutiny applied to legislation, including zoning ordinances.”

Two additional amicus briefs were filed in support of each party: from the Ohio Municipal League in support of the Village of Lodi; and from the Ohio Manufactured Homes Association in support of the manufactured-homes park owners.

- Carol Taylor

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Village of Lodi, Ohio: Irving Sugarman, 330.535.5711

Representing Sunset Estate Properties, LLC, and Meadowview Village, Inc.: John W. Monroe, 216.523.1500

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Can Information in Ongoing Undercover Criminal Investigation be Subject to Discovery in Civil Trial?

Timothy J. McGinty, Cuyahoga County Prosecutor v. J&C Marketing, LLC, Case no. 2013-1963
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Does the law enforcement investigatory privilege bar the discovery in a civil trial of information generated in an open and ongoing undercover operation?

At the beginning of 2012, law enforcement officers from various agencies were conducting an undercover criminal investigation in Cuyahoga County concerning “internet cafes.”  Law enforcement officials suspected that some of these internet cafes were attempting to conceal their illegal gambling activities by presenting the activities as “sweepstakes.” 

On May 30, 2012, a Cuyahoga County grand jury indicted ten individuals and seven companies for operating or working with a gambling system known as “VS2.” Other establishments, including J&C Marketing, that did not use the VS2 gambling system, but were also part of the investigation, were sent cease-and-desist letters. The letter sent to J&C Marketing directed the business to stop operations and threatened criminal prosecution if the business failed to comply.

J&C Marketing asked a trial court for a declaration that the business was not subject to prosecution. The county prosecutor requested that the court prohibit discovery that would divulge any substance of the undercover criminal investigation. (At the time, William Mason was the prosecuting attorney, but he has been succeeded by Timothy McGinty.) On July 2, 2012, the trial court, however, directed each party to answer all discovery requests, and to disclose every one of the investigating officers’ field reports and other information about the undercover criminal investigation.

The state appealed to the Eighth District Court of Appeals, which affirmed the trial court’s order to produce information concerning the undercover operation. While the appeals court described the case as a “unique discovery dispute,” it held that the information is subject to discovery in a civil action.

The appeals court focused on R.C 149.43, which defines “public records” that must be made available for inspection. While the statute is not directly applicable in this case, the court of appeals used it to show the context of the claimed privilege. The Supreme Court of Ohio in Henneman v. Toledo (1988) held that R.C. 149.43 does not protect exempt confidential law enforcement investigatory records from a proper discovery request in the course of civil litigation.

The appeals court found that some information the prosecutor’s office was ordered to provide was not relevant to the underlying action. Other information, however, was not privileged and had to be disclosed, the court concluded.

The state appealed to the Ohio Supreme Court, which agreed to hear the case.

Attorneys for the Cuyahoga County Prosecutor’s Office argue that the law enforcement investigatory privilege protects the integrity of criminal investigations by not subjecting records and information generated during the course of an open and ongoing criminal undercover operation to disclosure. They maintain this long-held common law principle requires a strong presumption against lifting the privilege, and J&C Marketing has not met the burden.

They contend that this type of information is exactly what kind the law enforcement investigatory privilege was intended to protect. The attorneys claim that disclosing information about the undercover operation would reveal law enforcement techniques and procedures, compromise the confidentiality of the sources, and expose the identity of witnesses, all of which would irreparably interfere with the investigation.

Because J&C Marketing did not submit a brief to the court, the company has waived its right to participate in oral arguments, according to a letter sent by the Supreme Court.

- Miriah Lee

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Timothy J. McGinty, Cuyahoga County Prosecutor: Charles Hannan, 216.443.7758

Representing J&C Marketing, LLC: Daniel Gourash, 216.566.8200

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Are Private Property Owners Entitled to Property Tax Exemptions for Land Leased to State Community Colleges?

Joseph W. Testa, Tax Commissioner of Ohio, Board of Education of the Columbus City School District, and Board of Education of the Dublin City School District v. Equity Dublin Associates and SHSCC #2 Limited Partnership, Case no. 2014-0168
Ohio Board of Tax Appeals

ISSUE: Can private property owners claim real property tax exemptions for property leased and used by a state community college for classes and administrative activities?

Columbus State Community College leased two pieces of property for classrooms, labs, office spaces, and other related school activities. One location was in Groveport, leased from SHSCC #2 Limited Partnership and within the Columbus city schools borders. Another location was leased in Dublin from Equity Dublin Associates (EDA).

In April 2004, Columbus State applied for tax exemptions for the properties it leased from EDA and SHSCC. After the college withdrew its applications because it is not the owner of the properties, EDA and SHSCC requested the same exemption, which covered tax years 2002 through 2005. Ohio’s tax commissioner denied the applications.

EDA and SHSCC appealed the decision to the Ohio Board of Tax Appeals (BTA), which granted tax exemptions to EDA and SHSCC. The appeals board ruled the properties are leased to Columbus State under R.C. 5709.07(A)(4), which allows an exemption when the property of a private for-profit company is “connected” to a community college. The tax commissioner and the school boards appealed the case to the Ohio Supreme Court.

The commissioner and the school boards argue that the Ohio General Assembly created a specific law to address real property tax exemptions for community colleges, R.C. 3354.15, and that the EDA and SHSCC were ineligible to claim a tax exemption under that law. The commissioner and boards point to the Supreme Court’s ruling in Athens County Auditor v Wilkins (2005). That case had to do with the rules governing tax exemptions for state technical colleges. The parties assert the community college language in the statute is practically identical and, therefore, the reasons the Supreme Court used to deny a property tax exemption to a private for-profit company in that case should be used to deny property tax exemptions to EDA and SHSCC.

Additionally, the commissioner and the boards maintain that the BTA wrongfully allowed the private property owners to rely on R.C. 5709.07(A)(4). The BTA along with EDA and SHSCC cited two other cases that indicate private property used by two universities is exempt from taxation. The commissioner and the boards counter that in those cases the universities, not the private property owners, claimed the property tax exemption, so EDA and SHSCC cannot claim the exemption under that law as well.

EDA and SHSCC state that the opponents insist the private property owners have no method to seek a property tax exemption for property used by a state community college to educate students. The property owners contend that the opponents wrongly believe that property ownership determines whether the facilities are exempt from tax. Rather, they maintain, the controlling factor is whether the facilities are “connected with” public colleges.

The property owners note that the BTA relied on the Supreme Court ruling in Cleveland State Univ. v. Perk (1971), which allowed the university to claim a tax exemption for modular classroom buildings the university leased for temporary classroom and office space. In addition, they indicate the BTA relied on a 1990 court of appeals decision that reinforces the ruling in Cleveland State.

They argue that the commissioner and the boards are wrong to rely on Athens because, in that case, the property for which an exemption was sought was being used by students who attended the technical college. While the college did some marketing and administrative work for the dormitories, it was not leasing the property or using it in a way that allows for an exemption, they conclude.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the Board of Education of the Columbus City School District and the Board of Education of the Dublin City School District: Kimberly Allison, 614.228.5822

Representing Joseph W. Testa, Tax Commissioner of Ohio: David Ebersole, 614.466.2941

Representing Equity Dublin Associates and SHSCC #2 Limited Partnership: Matthew Anderson, 614.221.7663

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May Courts Issue Hybrid Sentences With Mandatory and Non-Mandatory Prison Terms for Certain Felonies?

State of Ohio v. Shawn A. Ware, Case no. 2014-0425
Eleventh District Court of Appeals (Portage County)

ISSUE: When a mandatory prison term is required by statute for a specific felony offense, may a trial court impose a mandatory prison term less than the stated sentence for the offense?

Shawn A. Ware was indicted on drug charges in 2009 in Portage County. He pled guilty to trafficking less than one gram of cocaine in the vicinity of a juvenile and to trafficking between 10 and 25 grams of crack cocaine. The first offense was a fourth-degree felony. The other was a second-degree felony carrying a prison sentence from two to eight years and a fine between $7,500 and $15,000.

In April 2010, the trial court sentenced Ware to four years in prison for the second-degree crime and 18 months for the fourth-degree offense, to be served concurrently. The court noted that it would consider judicial release if Ware showed he was trying to change his life.

In one of Ware’s requests for judicial release, he claimed that the trial court’s sentencing entry did not state that his four-year prison term was mandatory, so he only had to serve the minimum mandatory term of two years. The trial court agreed and granted his release.

The state appealed to the Eleventh District Court of Appeals. The appellate court ruled in part that hybrid sentences including part mandatory prison term and part non-mandatory prison term are allowed. The appeals court also notified the Ohio Supreme Court that its decision conflicts with one from the Third District Court of Appeals. The Supreme Court agreed and accepted the case for consideration.

Attorneys from the Portage County Prosecutor’s Office assert that the trial court has no authority to create a sentence with mandatory and non-mandatory terms of imprisonment. Under the law in effect for a second-degree felony at the time of Ware’s sentencing, the court was to impose a mandatory prison term of two, three, four, five, six, seven, or eight years, the attorneys explain. The possible sentences are dictated by statute, they argue.

They maintain that while the court had the option of choosing any term between two and eight years, it decided to sentence Ware to four years in prison. They contend it did not have the power to impose a split sentence – two years mandatory and two years non-mandatory.

“The General Assembly provided for, ‘a definite prison term’ and limited the sentencing court to selecting ‘one’ term from among the range of years allowed for the various level of felonies,” they write in a brief to the court. “Therefore, R.C. 2929.14(A) expressly prohibits a sentencing court from imposing a (1) mandatory prison term and (2) a nonmandatory prison term for a single felony offense.”

They add that nothing in the legislative history of the judicial release statute indicates that the definition of which offenders are eligible for release was meant to allow multiple prison terms for a single felony offense. When the plain language of the law states that a trial court must impose a mandatory prison term, the term is mandatory for the entire length of time, they conclude.

Attorneys for Ware respond that a “definite” term of imprisonment is not equivalent to a “mandatory” one. They cite a 1999 Ohio Supreme Court opinion that states, “A definite sentence is one for a specific number of years of imprisonment, distinguished from an indeterminate sentence, which is a range defined by minimum and maximum terms.” They reason that a sentencing court uses the statutory sentencing guidelines to determine how many years of prison should be mandatory and how many should be for the “entire stated prison term.”

“‘Definite’ means so many years based upon the level of felony, and the mandatory amount of years may be any amount of years authorized based upon level of felony,” they write in the defendant’s brief to the court.

They contend that courts have two directives in the sentencing statutes – the range of prison terms for imposing definite sentences and the range of terms for mandatory sentences. Trial courts are permitted to impose prison sentences with a mandatory component that is less than the stated prison term, they argue, and allowing for differing definite terms preserves the discretion of the trial court while maintaining the goals of the sentencing statutes.

“At Ware’s sentencing hearing the trial court explicitly announced that Ware would have the opportunity to be afforded early release from his four year stated prison sentence if he rehabilitated himself to the satisfaction of the court,” they write. “The trial court in its enforceable sentencing order imposed a four year prison sentence but did not specify the term of the mandatory sentence which could be not less than two years under the levels of prison terms for a violation of a second degree felony statute. [Ware] was a first time offender and in the absence of an explicit mandatory prison sentence, together with the clear intent of the court to consider judicial release at some point, a mandatory prison term of less than four years was clearly evinced under law.”

An amicus curiae brief supporting the position of the State of Ohio has been submitted by the Ohio Prosecuting Attorneys Association.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the State of Ohio from the Portage County Prosecutor’s Office: Pamela Holder, 330.297.3850

Representing Shawn A. Ware: Terrence Kane, 330.296.3868

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

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