dissenting. The majority uses an overly generous test to determine the constitutionality of the Fairfield zoning ordinance. When the correct analysis is applied, the ordinance fails to pass constitutional scrutiny.
I
Columbia Oldsmobile, Inc. v. Montgomery (1990), 56 Ohio St.3d 60, 564 N.E.2d 455, delineates the rule at issue in this case. In Columbia Oldsmobile, we held that “ ‘[i]n order to invalidate a zoning regulation on constitutional grounds, the parties attacking it must demonstrate, beyond fair debate, that the zoning classification denies them the economically viable use of their land without substantially advancing a legitimate interest in the health, safety, or welfare of the community. * * *’ ” (Citations omitted and emphasis added.) Id. at 62, 564 N.E.2d at 457. The majority holds that the word “without” means “and.” Thus, in order to invalidate a zoning ordinance on constitutional grounds a plaintiff must prove both elements of the test. It is hard to imagine a zoning scheme that would not pass the majority’s conjunctive test. Fortunately, the United States Supreme Court has provided a test that provides affected landowners with refuge from unreasonable governmental action.
The United States Supreme Court in Agins v. Tiburon (1980), 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106, unanimously concluded that a disjunctive test should be used when scrutinizing a zoning ordinance. The Agins court stated that “[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests * * *, or denies an owner economically viable use of his land.” (Citations omitted and emphasis added.) Id. at 260, 100 S.Ct. at 2141, 65 L.Ed.2d at 112.
In the present case, a disjunctive test should also be used.
II
In applying the disjunctive test used in Agins to the present case, we should conclude that the Fairfield zoning ordinance is unconstitutional because the evidence presented at trial supports the trial court’s conclusion that the ordinance *232does not substantially advance a legitimate interest in health, safety or welfare of the community.
The ordinance is arbitrary and indefensible. The city of Fairfield’s 1979 land use plan confined all industrial zones to the east side of Route 4. At that time, Gerijo’s land was zoned multifamily residential. In 1989, the city passed a new land use plan which designated Gerijo’s property, which lies to the west of Route 4, as light industrial even though the surrounding area was residential. The residential districts in Fairfield shape a horseshoe enveloping Gerijo’s property. The city alleges that the 1989 land use plan attempted to establish a ratio of seventy percent single-family residences to thirty percent multifamily residences. The zoning change of Gerijo’s property from a multifamily designation to industrial designation purportedly facilitated this goal. As the trial court concluded, however, evidence at trial showed that Fairfield had permitted other multifamily residential projects since the land use plan was adopted. At trial, Fairfield’s planning director testified that the current ratio of single-family to multifamily land use was closer to a fifty-fifty ratio. In sum, the city of Fairfield unfairly singles out the Gerijo property to be a victim of an arbitrary scheme.
The judgment of the court of appeals should be affirmed.
A.W. Sweeney and Wright, JJ., concur in the foregoing dissenting opinion.