dissenting.
{¶ 31} All the Geisingers want is to develop their 50-acre tract of land. In 1969 the Miami County Planning Commission conditionally approved their plan to develop 53 residential lots. Since then, the Miami County Board of Commissioners has approved a modified land-use development plan several times. Each time, the residents of Concord Township filed referendum petitions and voted to reverse the approval of the board.
{¶ 32} The issue in this case is whether these repeated referenda constitute a taking. “ ‘The 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 * * *.’ ” Goldberg Cos., Inc. v. Richmond Hts. City Council (1998), 81 Ohio St.3d 207, 211, 690 N.E.2d 510, quoting Agins v. Tiburon (1980), 447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106.
{¶ 33} Today, the majority relies on res judicata to reject the Geisingers’ claims, determining that their claims are precluded because they have already been decided based on the Agins test. I might agree with the majority if the claims had been litigated after our decision in State ex rel. Shemo v. Mayfield Hts. (2002), 95 Ohio St.3d 59, 765 N.E.2d 345. In Shemo, however, we stated that the Agins test is “disjunctive,” even though “in previous cases we have applied the test in a conjunctive fashion.” Id. at 63, 765 N.E.2d 345. The Geisingers’ claims were decided before we determined that a disjunctive test is the proper test to determine whether a compensable taking has occurred. Accordingly, I reject the res judicata rationale underpinning the majority’s decision.
{¶ 34} I would reach the merits and apply the Agins test to the facts before us. In affidavits, the Miami County residents provided five reasons for opposing the rezoning, including concerns regarding “increased traffic, noise, and pollution necessarily accompanying increased residential development,” the “increased burden on the local water supply,” and “the increased burden on local governmental services, including emergency services and schools.” These concerns are legitimate state interests; they are not, however, unrebutted. The majority opinion states that “[i]n its 1997 resolution approving Trafalgar’s request for the zoning change, the board noted that ‘previous findings acknowledge that the area can be served with water and sewer services; the proposed zoning of R-1AA is consistent with surrounding zoning patterns; the use of the property for single *357family residential is compatible with surrounding land us[e] patterns; and, neither the transportation network nor other supportive services will be over burdened by this zoning change and possible development.’ ” I conclude that this statement, at the very least, is enough to enable the Geisingers to survive summary judgment.
Leppla Associates and Gary J. Leppla, for appellants. Isaac, Brant, Ledman & Teetor, L.L.P., Steven G. LaForge and Aaron M. Glasgow, for appellee.{¶ 35} The residents put forth two additional reasons for opposing the rezoning, the “[preservation of farmland from the encroachment of residential and urban growth from the City of Troy” and the “[preservation of the rural aesthetic * * * that is inconsistent with increased residential housing.” I suspect that these concerns are the true motivation behind the opposing residents. The residents benefit from the bucolic setting provided unwillingly by the Geisingers, and they have no intention of giving it up. This is classic tyranny of the majority, and this court ought not to countenance it.
{¶ 36} This case is so tangled up in process — six times the board has approved the rezoning, six times a referendum has rejected the approval, and several cases and writs have been litigated — that at this time no court is willing to look at the merits. I consider the issue too important to be decided by summary process. I would request full argument from the parties and decide the merits. To do otherwise is to invite more constructive takings.
{¶ 37} Based on the limited information before us, I conclude that the opponents of the rezoning did not substantially advance legitimate state interests, thereby failing the first prong of the disjunctive Agins test. Id., 447 U.S. at 260, 100 S.Ct. 2138, 65 L.Ed.2d 106. Further, Mark Geisinger stated in an affidavit that the current use of the property is barely sufficient to cover the cost of the real-estate taxes. That statement, viewed in a light most favorable to the Geisingers, is enough for them to survive summary judgment with respect to the second prong of the Agins test, i.e., that the Geisingers have been denied an economically viable use of their land. Id. I dissent.