City of Cleveland v. City of Shaker Heights

Herbert R. Brown, J.,

concurring in part and dissenting in part. The majority has properly noted that this appeal requires a determination of two issues. First, did Cleveland have standing to challenge the acts of Shaker Heights in barricading two streets and closing the entrance to another at the border between Cleveland and Shaker? Second, and if standing is found, is Cleveland entitled to injunctive rélief to stop the action taken by Shaker?

I agree with the majority’s determination that Cleveland has demonstrated standing to challenge Shaker’s traffic plan. The action by Shaker has an extraterritorial effect on Cleveland and the record supports the findings by the trial judge that Cleveland suffers engineering costs, signage costs, maintenance costs and snow plowing costs, as well as a total diversion of traffic on two Cleveland streets.

The condition where one municipality borders another has become commonplace as population growth has led to strip city development. Standing should be accorded to a municipality where damage has been *55done to that municipality by the act of its neighbor. In this interdependent context, the question of standing depends upon whether one municipality has alleged a stake (which I take to mean an interest of substance) in the act of its neighbor. Such could be described as the rule of extraterritorial effect.

Having resolved the standing issue, it is necessary to measure the action taken by Shaker. The majority, in stating the issues, presents the test as one of whether “the street closings were either clearly unreasonable, an abuse of discretion or taken in bad faith.” Clearly unreasonable, it seems to me, means without logical basis, i.e., conduct from which an arbitrary purpose may be inferred. I believe that such standard accurately reflects the law and due consideration to the Home Rule Amendment. Willott v. Beachwood (1964), 175 Ohio St. 557, 26 O.O. 2d 249, 197 N.E. 2d 201; Eastland Woods v. Tallmadge (1983), 2 Ohio St. 3d 185, 2 OBR 726, 443 N. E. 2d 972; Froelich v. Cleveland (1919), 99 Ohio St. 376, 124 N.E. 212; Union Sand & Supply Corp. v. Fairport (1961), 172 Ohio St. 387, 16 O.O. 2d 244, 176 N.E. 2d 224; Leslie v. Toledo (1981), 66 Ohio St. 2d 488, 20 O. O. 3d 406, 423 N.E. 2d 123; Refreshment Services Co. v. Cleveland (1980), 63 Ohio St. 2d 89, 17 O.O. 3d 54, 406 N.E. 2d 1115; Cincinnati v. Wegehoft (1928), 119 Ohio St. 136, 162 N.E. 389.

The standard used by the court of appeals (which affirmed the judgment of the trial court in granting injunctive relief to Cleveland) is unsatisfactory.4 The court of appeals errs when it opines that an ordinance which has an extraterritorial effect does not. come within the powers of self-government.

The action taken by Shaker is action taken within the municipal boundaries of Shaker. Regulation of the streets of a municipality is traditionally an internal affair of that municipality even though such regulation causes some circuity of route or inconvenience. Cincinnati Motor Transp. Assn. v. Lincoln Hts. (1971), 25 Ohio St. 2d 203, 54 O.O. 2d 317, 267 N.E. 2d 797. Examples would include one-way streets, limitations of through traffic and regulations to change traffic patterns.

Where, as here, the actions of the municipality have an extraterritorial effect upon another municipality, that other municipality has standing. In other words, the courthouse door is open to the other municipality. However, it does not follow that the existence of an extraterritorial effect deprives the acting municipality of the benefit of the Home Rule Amendment as suggested by the court of appeals. Our holding in Beachwood v. Bd. of Elections of Cuyahoga Cty. (1958), 167 Ohio St. 369, at 371, 5 O.O. 2d 6, at 7, 148 N.E. 2d 921, at 923, contains language that may have led *56the court of appeals to the above determination,5 and must be distinguished. In Beachwood, the boundary of a municipality was changed, thus altering the boundary of its neighbor. Such action clearly imposes a dominion over the adjoining territory which is distinguishable from, and beyond the extraterritorial effect of, such actions as were taken by Shaker. Absent such an assertion of dominion over adjoining territory, the concept of extraterritorial effect is one limited to the issue of standing.

As stated previously, I believe the correct standard is, as enunciated by the majority, one of whether the street closings were clearly unreasonable, an abuse of discretion or taken in bad faith. However, it is necessary to examine the decision of the trial court to determine whether the findings meet that standard. This the majority fails to do.

The trial court détailed sixty separate findings of fact, including the following: that the streets in Cleveland which connect with the streets in Shaker have been dedicated since the 1920s and have been interconnected and paved since 1949; that Shaker acted without effort to collect data in Cleveland or to collect data jointly with Cleveland; that Shaker at no time studied the extraterritorial effects of its plan; that no recognized standard traffic engineering criteria were used to evaluate its plan; that Shaker did not make a traffic engineering decision in closing the three streets; that Shaker’s designation of problem streets had no factual traffic engineering basis; that all professional traffic engineers agreed that paired one-way streets would have solved any perceived problem; and that all professional traffic engineers recommended improving arterial roadways before looking at more restrictive measures.

From those findings a determination can be made that the action of Shaker was clearly unreasonable or arbitrary.

It is axiomatic that the trier of fact, and not this court, should make determinations of fact (unless the evidence of record fails to support such determinations). Gates v. Bd. of Edn. of River Local School Dist. (1967), 11 Ohio St. 2d 83, 40 O.O. 2d 91, 228 N.E. 2d 298; Ross v. Ross (1980), 64 Ohio St. 2d 203, 204, 18 O.O. 3d 414, 415, 414 N.E. 2d 426, 428; C. E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St. 2d 279, 280, 8 O.O. 3d 261, 262, 376 N.E. 2d 578, 579; Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St. 2d 41, 45, 23 O.O. 3d 57, 60, 430 N.E. 2d 468, 471.

While it is clear that the findings made by the trial court could support a conclusion that would warrant injunctive relief against Shaker, it is not apparent that the trial judge utilized a proper standard of law. The trial court specifically rejected proposed findings of law that Shaker’s scheme was unreasonable as a matter of law and that Shaker’s scheme constituted *57an abuse of corporate power. Instead, the trial court found that the actions of Shaker were: (1) unreasonable and (2) detrimental to the general interest. Such standards are less than those to which Shaker is entitled.

Accordingly, I would reverse the determination by the court of appeals and remand this action to the common pleas court for further proceedings.

Holmes, J., concurs in the foregoing opinion.

The court of appeals held:

“The trial court properly applied the commonly accepted standards of good cause, detriment to the general interest, and reasonableness in determining whether Shaker’s acts, with extraterritorial effects, were proper.”

“Where a proceeding is such that it affects not only the municipality itself but the surrounding territory beyond its boundaries, such proceeding is no longer one which falls within the sphere of local self-government but is one which must be governed by the general law of the state.”