City of Cleveland v. City of Shaker Heights

Sweeney, J.,

dissenting. While the majority correctly asserts that the cities of Cleveland and Warrensville Heights possessed the requisite standing to maintain this action, see Middletown v. Ferguson (1986), 25 Ohio St. 3d 71, 25 OBR 125, 495 N.E. 2d 380, I believe that the holding herein establishes a dangerous precedent that may seriously undermine the manner in which adjacent cities cooperate with one another in all aspects of daily living. In particular I am troubled by this court’s sanctioning of the barricades erected by the appellant city of Shaker Heights, as well as the manner in which the majority analyzes this cause in order to arrive at'its decision.

Since the instant cause is unquestionably one of first impression, I find it curious that the majority opinion challenges the courts below for failing or ignoring to ask the “critical question” posed in Willott v. Beachwood (1964), 175 Ohio St. 557, 26 O.O. 2d 249, 197 N.E. 2d 201. Assuming arguendo that the lower courts were remiss in answering this question, a simple explanation for the lower court’s supposed failure is that the Willott case is inapposite to the cause before this court. Willott concerned zoning and the power of municipalities to establish zoning districts. No such issues are involved in the cause subjvdice. As it applies to the instant cause, Willott, supra, is at best irrelevant to the important issues posed herein. Likewise, Eastland Woods v. Tallmadge (1983), 2 Ohio St. 3d 185, 2 OBR 726, 443 N.E. 2d 972, is of little or no value to the determination of the instant case, because that decision concerned a street vacation implemented pursuant to standards set forth in R.C. 723.04 and 723.05. Any similarities existing between the cause herein and Eastland Woods, supra, are readily distinguishable as to the facts and the law.

I am also troubled by the majority’s method of endorsing the actions undertaken by Shaker Heights, by creating a “straw man” argument to defeat appellees’ argument concerning the term “open” as contained in R.C. 723.01. In my opinion, appellees’ contention that Shaker Heights’ actions violate R.C. 723.01 raises a legitimate argument that should be seriously considered by this court. The majority’s assertion that appellees’ R.C. 723.01 argument “taken to its logical extreme, leads to the conclusion that all streets must remain open to two-way traffic and cannot be converted into one-way avenues * * *” is patently absurd. To reject appellees’ argument in this vein, based on some unfounded fear that cities would become powerless to change traffic patterns on their thoroughfares, *58ignores the true thrust of the argument advanced by appellees, and determines the issue on factors or considerations that are not germane to the cause before us. I believe that a careful review of the record reveals that Shaker Heights undertook the extreme remedy of barricading the streets in issue because it could not satisfy the requirements of street vacation set forth in R.C. 723.04 et seq.

In my view, while the new standard adopted by the majority provides, at the very least, a somewhat facially acceptable attempt to arrive at a fair judicial resolution of this matter, a more appropriate guideline would be one that weighs public policy considerations in conjunction with the grants and limits of authority set forth in R.C. 723.01. As this court noted in Chickerneo v. Society National Bank (1979), 58 Ohio St. 2d 315, at 320, 12 O.O. 3d 298, at 300-301, 390 N.E. 2d 1183, at 1186:

“Public policy is a legal principle which declares that no one can lawfully do that which has a tendency to be injurious to the public welfare. The principle must be applied with caution and limited to those circumstances patently within the reasons upon which the doctrine rests. Lamont Building v. Court (1946), 147 Ohio St. 183, 185; Gugle v. Loeser (1944), 143 Ohio St. 362, 367.”

Given the unusual nature of the actions propounded by appellant, along with the utter dearth of precedent to guide courts in the instant factual context, I believe that a standard that employs public policy considerations would be a fairer and more equitable approach.

In any event, I am of the opinion that the application of either the majority’s standard or the one proposed herein would compel an affirmance of the court of appeals’ decision in this case. For these reasons, I must respectfully dissent.

*59APPENDIX

[[Image here]]