[Cite as Ehemann Real Estate, Ltd. v. Anderson Twp. Zoning Comm., 2020-Ohio-1091.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
EHEMANN REAL ESTATE, LTD., : APPEAL NOS. C-190002
C-190038
EME FENCE COMPANY, INC., : TRIAL NOS. A-1306230
A-1306651
and :
LAMAR ADVANTAGE GP COMPANY, : O P I N I O N.
L.L.C.,
:
Plaintiffs-Appellants/
Cross-Appellees, :
vs. :
ANDERSON TOWNSHIP ZONING :
COMMISSION,
:
and
:
ANDERSON TOWNSHIP BOARD OF
TRUSTEES, :
Defendants-Appellees/
Cross-Appellants. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: March 25, 2020
Strauss Troy Co., L.P.A., R. Guy Taft, Matthew W. Fellerhoff and Stephen E.
Schilling, for Plaintiffs-Appellants/Cross-Appellees,
Frost Brown Todd L.L.C., Thomas B. Allen and Benjamin J. Yoder, and The Law
Office of Gary E. Powell and Gary E. Powell, for Defendants-Appellees/Cross-
Appellants.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} The case before us concerns an administrative appeal of a zoning
dispute between plaintiffs-appellants/cross-appellees Ehemann Real Estate, Ltd.,
EME Fence Company, Inc., (“EME”) and Lamar Advantage GP Company, L.L.C.,
(collectively “Lamar”), and defendants-appellees/cross-appellants Anderson
Township Zoning Commission and Anderson Township Board of Trustees
(collectively “the Township”). Ehemann Real Estate owns property located at 5060
Batavia Pike in Hamilton County, Ohio, and leases the property to EME. EME leases
a small portion of the land to Lamar Advantage GP Company, on which Lamar has
been operating a legal nonconforming billboard. This case revolves around the
Township’s decision that the billboard must be taken down.
{¶2} The Township cross-appealed the trial court’s judgment on the
administrative appeal, and argues in two assignments of error that the court erred
when it reversed the Township’s decision that required the billboard to be taken
down.
{¶3} Lamar appealed the trial court’s judgment on its constitutional action,
and argues in two assignments of error that the court erred in denying Lamar’s
motion for summary judgment and granting the Township’s motion for summary
judgment on Lamar’s constitutional claims, and in denying Lamar’s motions to
present additional evidence under R.C. 2506.03 as part of the administrative appeal.
{¶4} We affirm the trial court’s judgment on the administrative appeal and
affirm its grant of summary judgment in favor of the Township on Lamar’s
constitutional claims. Therefore, we do not reach Lamar’s second assignment of
error as it is moot. All other assignments of error are overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
Factual Background
{¶5} A planned unit development (“PUD”) functions as an exception to
regular zoning ordinances. A PUD permits a “property to be used in a manner or
intensity not permitted as-of-right by the underlying district regulations.” Anderson
Township Zoning Resolution (“ATZR”) 4.1.A. When an applicant applies for a PUD,
the township zoning commission reviews the application and approves or denies it.
{¶6} In 2008, EME filed a PUD application to redevelop its property. The
2008 PUD application did not mention the nonconforming billboard, and the
billboard was not included on the overlay. However, the billboard was clearly visible
in several photographs which were part of the 2008 PUD application. The zoning
commission approved the 2008 PUD application and issued the 2008 PUD
resolution (“2008 PUD”). The 2008 PUD did not mention the billboard.
{¶7} In 2012, EME applied to the zoning commission for a modification to
the 2008 PUD. The 2012 PUD application included the billboard on the overlay.
Without conducting a hearing, the zoning commission approved the 2012 PUD
application, but on the condition that the billboard come down “at the end of the
lease term or earlier as may be necessitated by the construction of other approved
structures on the site.” Lamar appealed to the board of trustees, which remanded
the case to the zoning commission to conduct a hearing on the 2012 PUD
application. The commission conducted the hearing, and ruled the same way as
before, issuing the 2012 PUD resolution (“2012 PUD”), which approved the
application, but on the condition that the billboard come down at the end of the
lease. Lamar again appealed the decision to the board of trustees, which upheld the
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OHIO FIRST DISTRICT COURT OF APPEALS
zoning commission’s ruling. Lamar filed an administrative appeal with the trial
court, and the case was assigned to a magistrate.
{¶8} Lamar then filed a separate cause of action against the Township,
arguing violations of its constitutional rights and seeking a writ of mandamus and a
declaratory judgment. During the pendency of the administrative appeal, and the
pendency of Lamar’s action against the Township, the billboard remained in use, and
remains in use to this day.
{¶9} The trial court consolidated Lamar’s administrative appeal with
Lamar’s constitutional action against the Township. The magistrate reversed the
board of trustees’ decision on the 2012 PUD, holding that the Township’s condition
requiring removal of the billboard was contrary to law. The trial court adopted the
magistrate’s decision. The trial court then granted the Township’s motion for
summary judgment on Lamar’s constitutional claims.
The Township’s First Assignment of Error
{¶10} In its first assignment of error, the Township argues that the trial court
improperly reversed the Township’s zoning decision.
{¶11} A trial court’s review of a township’s zoning decision is limited. A
township’s zoning decision is “presumed to be valid, and the burden is upon the
party contesting the board’s determination to prove otherwise.” Klein v. Hamilton
Cty. Bd. of Zoning Appeals, 128 Ohio App.3d 632, 636, 716 N.E.2d 268 (1st
Dist.1998). “The scope of judicial review of the zoning board’s decision is very
limited and unusually deferential.” Id. The trial court reviews the decision only to
determine if it is “unconstitutional, illegal, arbitrary, capricious, unreasonable, or
unsupported by the preponderance of substantial, reliable, and probative evidence
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OHIO FIRST DISTRICT COURT OF APPEALS
on the whole record.” R.C. 2506.04. The trial court will not substitute its judgment
for that of the township so long as the township’s decision is supported by a
preponderance of reliable, probative, and substantial evidence. Klein at 636.
{¶12} Review of an administrative appeal is likewise limited for a court of
appeals—an appellate court may only reverse the trial court if it finds that, as a
matter of law, the trial court’s decision is not supported by a preponderance of
reliable, probative, and substantial evidence. Id. at 637.
{¶13} The central issue in this case is whether the 2008 PUD, which did not
mention the nonconforming billboard, required the billboard to be removed. The
Township contends that the magistrate improperly “reopened” the 2008 PUD and
made factual findings regarding the 2008 PUD, even though the 2008 PUD was
never appealed and was not before the trial court in this case.
{¶14} ATZR 4.1.I permits adjustments to an approved PUD only if there is
“no modification of recorded easements or written conditions of approval contained
in an Anderson Township Zoning Commission’s Resolution.” The magistrate
determined that the billboard was not required to be removed under the 2008 PUD,
and that by adding such a condition to the 2012 PUD, the Township modified the
written conditions of the 2008 PUD, thereby violating ATZR 4.1.I. The trial court
adopted the magistrate’s decision without further analysis.
{¶15} The Township agreed to make the record from the 2008 PUD part of
the record for the 2012 PUD appeal. In order to determine whether the condition in
the 2012 PUD requiring removal of the billboard was legal, the magistrate first had to
understand the 2008 PUD.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} It was unclear from the 2008 PUD whether the parties intended for
the billboard to remain in place. Paul Drury, the secretary for the zoning
commission, admitted as much when he testified during the hearing on the 2012
PUD application. Therefore, the magistrate reviewed the evidence presented in the
2008 PUD application to determine whether the parties intended for the billboard to
remain, or to be taken down, as part of the 2008 PUD. The magistrate did not
exceed his authority in considering the record from the 2008 PUD because it was
included in the record below. The Township’s first assignment of error is overruled.
The Township’s Second Assignment of Error
{¶17} In its second assignment of error, the Township argues that the 2008
PUD did not include a condition for the billboard, and so the continued use of the
billboard was not permitted because the billboard was a nonconforming use.
{¶18} Zoning resolutions are generally construed in favor of the property
owner. In Terry v. Sperry, 130 Ohio St.3d 125, 2011-Ohio-3364, 956 N.E.2d 276, ¶
19, the Ohio Supreme Court explained:
Zoning 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. Therefore, such resolutions are ordinarily construed in
favor of the property owner. Restrictions on the use of real property by
ordinance, resolution or statute must be strictly construed, and the scope
of the restrictions cannot be extended to include limitations not clearly
prescribed.
(Emphasis added.) Id.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} A nonconforming use refers to a “use of property which was lawful
prior to the enactment of a zoning ordinance, and which use may be continued after
the effective date of the ordinance even though it does not comply with the applicable
use restrictions.” C.D.S., Inc. v. Village of Gates Mills, 26 Ohio St.3d 166, 168, 497
N.E.2d 295 (1986).
{¶20} At the time the 2008 PUD application was filed, the billboard on the
property was too close to the road, and therefore not in compliance with existing
zoning regulations. Nevertheless, the billboard was built prior to the applicable
zoning regulations taking effect, and so Lamar’s continued use of the billboard was
permitted as a nonconforming use.
{¶21} Nonconforming uses “may be regulated, and even girded to the point
that they wither and die.” City of Columbus v. Union Cemetery Assn., 45 Ohio St.2d
47, 49, 341 N.E.2d 298 (1976).
Zoning ordinances contemplate the gradual elimination of
nonconforming uses within a zoned area, and, where an ordinance
accomplishes such a result without depriving a property owner of a
vested property right, it is generally held to be constitutional.
(Emphasis in original.) City of Akron v. Chapman, 160 Ohio St. 382, 386, 116
N.E.2d 697 (1953). Thus, a political subdivision may deny the right to resume a
nonconforming use where that use was previously abandoned. Id. It may also deny
a request to extend or enlarge a nonconforming use, or to substitute or add buildings
to a nonconforming use. Id. at 386-387.
{¶22} Lamar has property rights in the billboard, even though it is a
nonconforming use. See id. at paragraph two of the syllabus; R.C. 519.19. Also,
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OHIO FIRST DISTRICT COURT OF APPEALS
although the billboard was not marked on the overlay, the Township was, or at least
should have been, aware of its existence because it is clearly visible in photographs of
the property which were included in the staff report to the zoning commission as part
of the 2008 PUD.
{¶23} The Township argues that the billboard was intentionally left out of the
2008 PUD, and that Lamar intended to forego future use of the billboard. However,
Lamar did not include any signs on the overlay—neither freestanding signs nor the
billboard—and yet was permitted to continue its use of one of the freestanding signs
on the front of the building. The magistrate found that both Lamar and the
Township overlooked the continued existence of the billboard during the 2008 PUD
process, and that Lamar did not abandon its ownership rights in the billboard simply
because the billboard was not included in the 2008 PUD. These findings were
supported by a preponderance of the evidence.
{¶24} The Township next argues that Lamar’s submission of the 2012 PUD
application enabled the Township to regulate the billboard, so as to cause it to
“wither and die.” However, the Township overlooks the fact that its proposed
regulation requiring removal of the billboard would deprive Lamar of a property
right. Unlike the examples in City of Akron, Lamar never abandoned its use of the
billboard, nor did it seek to extend or enlarge its use of the billboard. In fact,
Lamar’s 2012 PUD application did not include any plans regarding the billboard.
Rather, Lamar merely marked the billboard on the overlay for the first time.
{¶25} The Township points to Brown v. City of Cleveland, 66 Ohio St.2d 93,
420 N.E.2d 103 (1981), for the proposition that where an owner of a “non-
conforming use diversifies his product line and expands his services, the non-
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OHIO FIRST DISTRICT COURT OF APPEALS
conforming use can be regulated for the protection of the public health, safety and
general welfare of the community.” Id. at 96.
{¶26} Brown is distinguishable from the present case. When the political
subdivision in Brown rejected the request for a zoning variance, it did so because the
variance would result in a violation of the parking provision of the zoning code, and
would affect the safety of the community. Id. In the present case, the Township
required removal of the billboard as a condition to approval of a PUD application
which in all respects was conforming, and did not result in any additional violations
of the zoning code. Also, there was no evidence presented that the billboard affects
the health, safety, or general welfare of the community.
{¶27} The removal of the billboard was not “clearly prescribed” in the 2008
PUD. See Terry, 130 Ohio St.3d 125, 2011-Ohio-3364, 956 N.E.2d 276, at ¶ 19. The
only condition in the 2008 PUD which came close was condition six, which stated
that “the freestanding signs on the site will be removed with the final development
proposal and be replaced by signage that meets the regulations of the Anderson
Township Zoning Resolution.” But, the Township’s own witness, Paul Drury,
admitted during a hearing on the 2012 PUD application that condition six did not
apply to the billboard.
{¶28} A preponderance of the evidence supports the magistrate’s holding
that the omission of the billboard from the 2008 PUD was an oversight, and not an
intentional relinquishment of Lamar’s property rights in the billboard. None of the
examples in City of Akron or Brown apply, and Lamar maintained a property right
in the billboard through its continuous nonconforming use. By adding the condition
requiring removal while approving the 2012 PUD application, the Township
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OHIO FIRST DISTRICT COURT OF APPEALS
modified the written conditions of the 2008 PUD, thereby violating ATZR 4.1.I. The
Township’s second assignment of error is overruled.
Lamar’s First Assignment of Error
{¶29} In its first assignment of error, Lamar argues that the trial court erred
in granting the Township’s motion for summary judgment on Lamar’s constitutional
claims.
{¶30} We review a trial court’s decision to grant summary judgment de novo.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996); Whitley
v. Progressive Preferred Ins. Co., 1st Dist. Hamilton No. C-090240, 2010-Ohio-356,
¶ 7.
{¶31} Lamar first claims that the Township violated its constitutional rights
by substantially interfering with Lamar’s property. Lamar argues that it was entitled
to a writ of mandamus against the Township, because the Township used the PUD
process to substantially interfere with Lamar’s property, resulting in a taking of
Lamar’s property.
{¶32} “Mandamus is the appropriate action to compel public authorities to
institute appropriation proceedings where an involuntary taking of private property
is alleged.” State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-
Ohio-2163, 826 N.E.2d 832, ¶ 11. “To establish a taking, a landowner must
demonstrate a substantial or unreasonable interference with a property right.” State
ex rel. Hilltop Res. v. Cincinnati, 166 Ohio App.3d 171, 2005-Ohio-6817, 849 N.E.2d
1064, ¶ 22 (1st Dist.). “That interference may involve the actual physical taking of
real property, or it may include the deprivation of an intangible interest in the
premises.” Id.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶33} Lamar argues that the Township interfered with three types of
property interests: (1) the right to continue its use of the property, (2) rights to the
billboard and associated leasehold interests, and (3) rights to the billboard as
personal property.
{¶34} The billboard stands to this day, and has been used by Lamar, without
interruption, during the pendency of the case. Therefore, there has been no physical
taking of Lamar’s property, nor has the Township substantially interfered with
Lamar’s right to continue using the billboard as it was used prior to the 2012 PUD.
The only remaining question is whether the Township’s actions demonstrated a
substantial or unreasonable interference with an intangible interest in the property,
such as the associated leasehold interests.
{¶35} The billboard is located on the property pursuant to a long-standing
lease agreement between Lamar and EME. Lamar leases the billboard to various
entities for advertising. There is no indication that Lamar was financially affected by
the requirement that the billboard come down at the end of the lease. In February
2013, Ron Ehemann testified that the lease automatically renews every 15 years, and
that it was up for renewal in November 2017. The billboard continues to operate
today, presumably under a new 15-year lease which renewed in 2017. Lamar does
not claim that it was forced to lease the billboard from EME or to advertisers for a
different price or duration due to the Township’s actions. Lamar also does not claim
that it could not have sold the billboard in the intervening years since the 2012 PUD,
or at least that it would have had to sell it at a reduced price. There was no evidence
presented that it has lost any income that it would have otherwise collected had the
2012 PUD not required removal of the billboard.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶36} During oral argument, Lamar argued that the Township interfered
with an intangible property interest when it repeatedly denied EME’s requests for a
permanent certificate of occupancy in retaliation for Lamar appealing the zoning
commission’s ruling and filing its constitutional action. In his affidavit attached to
the motion for summary judgment, Ron Ehemann stated that the denials of the
permanent certificates of occupancy required EME to spend a total of $6,019.32
between 2012 and 2017 to obtain temporary certificates of occupancy in order to
remain in business. In 2017, the Township did grant EME a permanent certificate of
occupancy.
{¶37} Although not addressed by the Township, we cannot say that the
certificates were denied for retaliatory purposes, and in fact may have been denied
for entirely proper reasons. Moreover, that EME had to apply for temporary
certificates of occupancy from 2012 until 2017 was not such a “substantial” or
“unreasonable” interference with an intangible property right as to constitute a
taking. The trial court did not err in finding that a taking never occurred and that a
writ of mandamus was not warranted.
{¶38} Lamar next argues that the trial court erred in denying its motion for
summary judgment on its second cause of action for a declaratory judgment. Lamar
contends that the 2012 PUD was unconstitutional because it was arbitrary and
unreasonable and had no relation to public health or safety.
{¶39} Zoning laws are presumed constitutional. Goldberg Cos., Inc. v.
Richmond Hts. City Council, 81 Ohio St.3d 207, 209, 690 N.E.2d 510 (1998). A
zoning regulation is only unconstitutional if it is “clearly arbitrary and unreasonable,
having no substantial relation to the public health, safety, morals, or general
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OHIO FIRST DISTRICT COURT OF APPEALS
welfare.” Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct.
114, 71 L.Ed. 303 (1926). It is the burden of the party challenging the zoning
ordinance to prove “beyond fair debate, that the zoning classification is unreasonable
and not necessary to the health, safety and welfare of the municipality.” Goldberg at
212; Dover v. Village of Evendale, 1st Dist. Hamilton No. C-840658, 1985 WL
11469, *3 (Sept. 18, 1985).
{¶40} Lamar argues that the Township’s 2012 decision was “a naked
property grab as part of an illegal attempt to remove billboards within Anderson
Township.” Lamar contends that the trial court’s finding that the 2012 PUD was
contrary to law established that the decision was arbitrary and unreasonable. This
argument is without merit. The 2008 PUD did not mention the billboard at all. The
trial court had to determine what the status of the billboard was when the 2008 PUD
was approved, and whether the billboard must be removed. The court noted that
“[t]his is not an easy question to answer.” Thus, while the Township’s decision
requiring removal of the billboard was ultimately found to be contrary to law, the
court never found the decision to be arbitrary or unreasonable. We also do not find
the decision to be arbitrary or unreasonable.
{¶41} Lamar next points to the Township’s failure to show that the
regulation supports public health or safety. However, the burden was on Lamar to
show that the regulation was “unreasonable and not necessary to the health, safety
and welfare of the municipality.” See Goldberg at 212. As discussed above, it has
failed to do so.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶42} Next, Lamar argues that the trial court erred in denying Lamar’s
motion for summary judgment on its cause of action alleging that the Township
violated its substantive-due-process rights by requiring removal of the billboard.
{¶43} This court has previously declined to review a plaintiff’s substantive-
due-process claim as it related to a denial of a request for a zoning variance. Blust v.
Blue Ash, 177 Ohio App.3d 146, 2008-Ohio-3165, 894 N.E.2d 89, ¶ 23 (1st Dist.).
Substantive due process in general pertains only to liberty interests
secured by the United States Constitution. Because property is an
individual right secured by state law, property rights are protected only
by procedural due process. Therefore, we reject the substantive-due-
process claim.
Id.; 1946 St. Clair Corp. v. City of Cleveland, 49 Ohio St.3d 33, 35, 550 N.E.2d 456
(1990) (where the “claim asserted rests on the deprivation of a property interest
alone, the constitutional right invoked is the procedural due process right to notice
and hearing”).
{¶44} However, in a subsequent case, this court seemed to indicate that a
substantive-due-process claim may be viable with regard to some property rights.
See Jones v. Norwood, 1st Dist. Hamilton No. C-120237, 2013-Ohio-350, ¶ 81
(holding that “Jones has not demonstrated a substantive fundamental right to
continued residency in her rented apartment”), citing Regents of Univ. of Michigan
v. Ewing, 474 U.S. 214, 229, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) (Powell, J.,
concurring) (“not every [property] right is entitled to the protection of substantive
due process. While property interests are protected by procedural due process even
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though the interest is derived from state law rather than the Constitution,
substantive due process rights are created only by the Constitution.”).
{¶45} The Township does not argue that this court cannot review Lamar’s
substantive-due-process claim. Rather, the Township contends that Lamar has not
made out a substantive-due-process claim.
{¶46} Federal courts have entertained substantive-due-process claims with
regard to property rights. “Citizens have a substantive-due-process right ‘not to be
subjected to arbitrary or irrational zoning decisions.’ ” Braun v. Ann Arbor Charter
Twp., 519 F.3d 564, 573 (6th Cir.2008), quoting Pearson v. Grand Blanc, 961 F.2d
1211, 1217 (6th Cir.1992), citing Arlington Hts. v. Metro Hous. Dev. Corp., 429 U.S.
252, 263, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). A substantive-due-process claim in
the zoning context requires proof that “(1) a constitutionally protected property or
liberty interest exists, and (2) the constitutionally protected interest has been
deprived through arbitrary and capricious action.” White Oak Property Dev., LLC v.
Washington Twp., Ohio, 606 F.3d 842, 853 (6th Cir.2010), quoting Braun v. Ann
Arbor Charter Twp., 519 F.3d 564, 573 (6th Cir.2008). A local zoning ordinance
survives a substantive-due-process challenge if there exists a rational relationship
between the terms of the ordinance and a legitimate governmental purpose. White
Oak at 853.
{¶47} Lamar cites EJS Properties, LLC v. City of Toledo, 698 F.3d 845, 856
(6th Cir.2012), for the proposition that it has a constitutionally protected property
interest in the existing zoning classification of the property. Thus, Lamar contends
that it has a property interest in the 2008 PUD, which rezoned the property, and
included the continued use of the nonconforming billboard.
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{¶48} The Ohio Supreme Court has applied a standard similar to a federal
substantive-due-process challenge in Jaylin Invest., Inc. v. Moreland Hills, 107 Ohio
St.3d 339, 2006-Ohio-4, 839 N.E.2d 903. In that case, the court held that zoning is a
“valid legislative function of a municipality’s police powers,” and that “courts should
not interfere with zoning decisions unless the municipality exercised its power in an
arbitrary and unreasonable manner and the decision has no substantial relation to
the public health, safety, morals, or general welfare.” Id. at ¶ 10, citing Village of
Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 71 L.Ed. 303
(1926).
{¶49} In State ex rel. Ridge Club v. Amberley Village, 1st Dist. Hamilton No.
C-070012, 2007-Ohio-6089, ¶ 36, this court applied the standard from Jaylin to the
plaintiff’s due-process claim. The court held that the plaintiff’s due-process rights
were violated where the ordinance was arbitrary and unreasonable, and had no
substantial relation to the public’s health, safety, and welfare. Id. at ¶ 39.
{¶50} Lamar argues that the Township’s zoning decision as applied was
arbitrary and capricious and deprived Lamar of a constitutionally protected property
interest. Even if we consider Lamar’s substantive-due-process argument, it fails
under both the state and federal standards. Lamar has failed to show that it was
deprived of any property interest or that the Township’s ruling on the 2012 PUD
application was arbitrary or unreasonable. The fact that the Township’s ruling was
contrary to law is not sufficient to sustain a claim of violation of substantive due
process. See Ctr. for Powell Crossing, LLC v. City of Powell, Ohio, 173 F.Supp.3d
639, 669 (S.D.Ohio 2016) (holding that a mere error in the interpretation of state law
is not a violation of due process).
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{¶51} Finally, Lamar argues that the trial court erred by denying its motion
for summary judgment for damages and attorney fees under 42 U.S.C. 1983 and
1988.
{¶52} 42 U.S.C. 1983 provides a method for vindicating violations of federal
rights. Denver v. Casbeer, 1st Dist. Hamilton No. C-050106, 2005-Ohio-5860, ¶ 10.
To succeed on its 1983 claim, Lamar was required to show that the Township’s
conduct deprived Lamar of rights, privileges, or immunities secured by the
Constitution or laws of the United States, and that the Township was acting under
color of state law. See id. 42 U.S.C. 1988(b) permits a party who prevails on its 1983
claim to recover reasonable attorney fees.
{¶53} Lamar has failed to show that the Township violated its constitutional
rights. Therefore, Lamar is not entitled to damages under 42 U.S.C. 1983 or attorney
fees under 1988(b).
{¶54} The trial court did not err in granting the Township’s motion for
summary judgment. Lamar’s first assignment of error is overruled.
Conclusion
{¶55} The Township’s assignments of error and Lamar’s first assignment of
error are overruled. Since we uphold the trial court’s judgment on the administrative
appeal, we do not address Lamar’s second assignment of error because it is moot.
The trial court’s judgment is affirmed.
Judgment affirmed.
ZAYAS, P.J., and BERGERON, J., concur.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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Ehemann Real Estate, Ltd. v. Anderson Twp. Zoning Comm.
Combined Opinion