Stewart v. City of Bay Village

Hofstetter, Judge. Appellees, Lawrence E. Stewart and Barbara M. Stewart, brought suit against appellant, the city of Bay Village, and requested a preliminary and permanent injunction to prohibit appellant from either assessing appellees for the cost of the construction of a sidewalk in the right of way adjacent to appellee’s property or ordering appellees to build it. After a trial to the bench, the trial court granted a permanent injunction. Appellees own and live at a parcel of land on the southwest corner of Walker Road (running east-west) and Plymouth Road (running north-south). Appellant passed a resolution which ordered appellees to construct a sidewalk along the eastern edge of appellee’s property. The parties agree that the sidewalk would cost $3,008. Appellant raises two assignments of error. I “The trial court’s decision to enjoin appellant from imposing a special assessment upon appellees for a sidewalk improvement was against the manifest weight of the evidence and contrary to law. *819 “A. The trial court erred by applying need/necessity rather than special benefit as the foundation for determining the propriety of the subject assessment. “B. The trial court erred by failing to find that appellees did not meet their burden of proving lack of enhancement in property value.” The trial court discussed the need for sidewalks in terms of a benefit to others or the community when the actual test is to what extent the construction will enhance the value of the lot. “[Assessment] is not a necessity to municipal corporations * * * [but] if a municipal corporation sees proper to avail itself of the assessment mode of taxation * * * it is but just that such property should pay toward the cost of the improvement a sum that is equal to the value of the special benefits conferred.” Chamberlain v. Cleveland (1878), 34 Ohio St. 551, 561, 562. The issue is the benefit to the property owner, not the community. “The enhancement in the value of property that results from a public improvement is the special benefit that will support an assessment against that property to pay for the improvement. Such enhancement in value of such property is a benefit to its owner that accrues to him and not to the public or to the rest of the community.” Schiff v. Columbus (1967), 9 Ohio St.2d 31, 38 O.O.2d 94, 223 N.E.2d 54, paragraph four of the syllabus. “[L]egislative determinations for such improvements and the procedures for such assessments may be presumed to be valid until a showing is made to the contrary.” Wolfe v. Avon (1984), 11 Ohio St.3d 81, 83, 11 OBR 324, 326, 463 N.E.2d 1251, 1254. “ ‘A purported assessment for a public improvement levied against private property, which is substantially equal to or greater than the value of the property after the improvement is made, constitutes the taking of property for public use without compensation, in contravention of Section 19, Article I of the Constitution of Ohio, and the owner may enjoin its collection in a court of equity upon the ground of invalidity.’ ” Id., quoting Domito v. Maumee (1942), 140 Ohio St. 229, 23 O.O. 434, 42 N.E.2d 984, paragraph one of the syllabus. Wolfe concluded that the Domito test was subsequently refined in Schiff v. Columbus, supra, as follows: “ Tn order to be entitled to an injunction against any part of an assessment for the cost of a public improvement against a lot, the owner thereof has the burden of proving that the lot was not enhanced in value as a result of the improvement in an amount equal to the amount of the assessment.’ ” Wolfe, supra, 11 Ohio St.3d at 84, 11 OBR at 327, 463 N.E.2d at 1254, quoting Schiff, *820 supra, at paragraph five of the syllabus. Thus, the burden of proof is on the owner. “[T]he landowner must offer sufficient proof of the value of his property before and after the alleged improvement. If the evidence adduced does not sustain the property owner’s claim of no enhancement of value, then he fails in his bid for an injunction and the city may proceed to collect the assessment.” (Emphasis added.) Wolfe, supra, 11 Ohio St.3d at 84,11 OBR at 327, 463 N.E.2d at 1254. However, “presumptions of reasonableness and enhancement to the property are in favor of the city.” Id. In Wolfe, the owner’s evidence consisted of his testimony and an affidavit from an expert. The court concluded that “[t]he evidence submitted by the appellant must be given weight on the issue of enhanced value * * Id. This conclusion was not limited to the affidavit. Id. The summary judgment for the city was reversed even though there was no testimony concerning the value in dollars and cents. Appellees had to produce sufficient evidence to rebut the presumption of enhancement. See Wolfe, supra, 11 Ohio St.3d at 84, 11 OBR at 327, 463 N.E.2d at 1254, and Glass v. Dryden (1969), 18 Ohio St.2d 149, 153, 47 O.O.2d 313, 315, 248 N.E.2d 54, 57: “[Ajppellee failed to adduce sufficient evidence * * * to support a finding of absence of benefits or of cost in excess of benefit * * *.” (Emphasis sic.) Dollar values are not essential. See, e.g., Wolfe, supra. Appellee’s testimony can be paraphrased as follows: His home was built in 1860 and has been designated by the Bay Village Historical Society as a “century home.” He restored the house and has maintained the property as a Western Reserve, New England architecture-style home with primitive antiques. He wants to maintain the house in its original form. Other properties near him would benefit but he would derive no benefit. The driveway is on Walker, not on the side which appellant requires have a sidewalk (Plymouth). People that come to his home park in his driveway, which will accommodate a dozen cars. The visitors don’t park on Plymouth. No parking is allowed on Walker. Delivery persons and meter readers come up the driveway. He did not think that the mailman comes along Plymouth. A sidewalk might increase his chances of legal liability since improper maintenance of a sidewalk can result in a nuisance action. His property might be more difficult to subdivide. The sidewalk could actually decrease the value of his property. *821 Appellee presented sufficient evidence that the lot was not enhanced in the value as a result of the improvement in an amount equal to the amount of the assessment. Visitors and business invitees might find access easier but access is presently not impossible or intolerably restricted. Appellee is not discomfited by any limitation. Against the minimal benefit in enhanced access we must weigh the loss to the property. Appellee’s property is unique in that he has maintained the exterior of the home and the land in the condition in which it was found in 1860. He stands to lose a portion of the value he has in the property. That loss is greater than the minimal benefit appellee will receive. We affirm the decision of the trial court albeit for other reasons. Assignment of Error No. I is overruled. “The trial court erred as a matter of law in finding sidewalk construction and assessment in the instant matter to be an unreasonable and arbitrary exercise of police power.” The trial judge stated as follows: “It is agreed that defendant City has the authority to exercise its police powers via legislation to promote the general welfare and public safety of its citizens. However, the exercise of such power must be reasonable and not arbitrary or aggressive, and the means selected shall have a real and substantial relation to the object sought to be attained, so as to avoid a taking of property without due process of law.” The trial judge erred in holding that the order to construct a sidewalk was an unreasonable and arbitrary exercise of police power. The resolution was promulgated under the authority of R.C. 729.01. This court has previously discussed the nature of the action taken and the standard to be applied: “Relative to this claim, we think it should be noted that a distinction must be made between the class of cases which involve solely the police power of the municipality and the class of cases involving what is commonly referred to as a governmental purpose in the public interest. it * * * “[T]here is a real difference between a court’s examination of a legislative determination to see if it is ‘clearly erroneous’ as in police power cases, and the substitution of its judgment for that of the legislative body on a showing of fraud or gross abuse of discretion when passing upon the validity of legislative action to carry on public improvements in the interest of public welfare.” Grisanti v. Cleveland (App.1962), 89 Ohio Law Abs. 1, 6-7, 181 *822 N.E.2d 299, 303, appeal dismissed (1962), 371 U.S. 68, 83 S.Ct. 111, 9 L.Ed.2d 119, citing Benjamin v. Columbus (1957), 167 Ohio St. 103, 4 O.O.2d 113, 146 N.E.2d 854; Kittel v. Bigelow (1941), 138 Ohio St. 497, 21 O.O. 380, 37 N.E.2d 41; and Railroad Co. v. Defiance (1895), 52 Ohio St. 262, 40 N.E. 89. An abuse of discretion is more than an error of law or judgment; it connotes an unreasonable, arbitrary or unconscionable attitude. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 5 OBR 481, 450 N.E.2d 1140. Thus, the trial court’s conclusion that the appellant’s decision was unreasonable and arbitrary did not exceed the scope of possible conclusions even though it erroneously referred to an exercise of police power. It did not apply the “clearly erroneous” standard used in police power cases. The trial court stated that the order was unreasonable and arbitrary because appellant did not conduct studies to show the need for the sidewalks. As noted the necessity of the change is not the standard. “[Pjresumptions of reasonableness and enhancement to the property are in favor of the city.” Wolfe, supra, 11 Ohio St.3d at 84, 11 OBR at 327, 463 N.E.2d at 1254. There is no allegation of fraud. The trial court properly concluded that the appellant acted arbitrarily and unreasonably, i.e., abused its discretion. Appellant assessed appellees for an improvement that might benefit others rather than because it would benefit appellees. After the fact appellant tried to argue that visitors to appellees’ property would have improved access. However, it is apparent that the benefit to the community was the motivating factor and that the impact on appellees’ property was not considered. Assignment of Error No. II is overruled. The decision of the trial court is affirmed. Judgment affirmed. Ann McManamon, J., concurs. Krupansky, P.J., dissents. Edwin T. Hofstetter, J., retired, of the Eleventh Appellate District, sitting by assignment.