IN THE SUPREME COURT OF OHIO

IN THE SUPREME COURT OF OHIO APPLE GROUP LTD., vs. Appellant BOARD OF ZONING APPEALS, GRANGER TOWNSHIP, OHIO, et al. Appellees SUPREME COURT CASE NO. 2014-0301 ON APPEAL FROM THE COURT OF APPEALS NINTH APPELLATE DISTRICT MEDINA COUNTY, OHIO CASE NOS. 12 CA 0068-M and 12 CA 0065-M MERIT BRIEF OF APPELLEE BOARD OF ZONING APPEALS GRANGER TOWNSHIP, OHIO, GRANGER TOWNSHIP BOARD OF TRUSTEES AND ZONING INSPECTOR DEAN HOLMAN Medina County Prosecutor Sheldon Berns (0000140) Benjamin J. Ockner (0034404) Gary F. Werner (0070591) BERNS, OCKNER & GREENBERGER, LLC 3733 Park East Drive, Suite 200 Beachwood, Ohio 44122-4334 Tel: (216) 831-8838 Fax: (216) 464-4489 sberns@bernsockner.com bockner @ bernsockner. corn gwert.ter @bez-n.sockner. coni Attorneys for PlaintifflAppellant Brian M. Richter (0040409) Assistant Prosecuting Attorney 72 Public Square Medina, Ohio 44256 Tel: (330) 723-9539 Fax: (330) 764-8400 brichter @medinaco,or6 Attorney for DefendantsfAppellees Granger Township Board of Zoning Appeals, Board of Trustees, and Zoning Inspector f # G"" 9.'.3^ t

TABLE OF CONTENTS TABLE OF AUTHORITIES... ii Page I. STATEMENT OF FACTS A. Introduction... 1 B. Statement of Facts... 1 II. ARGUMENT........................................................................... 17 Proposition of Law No. 1 For purposes of a township's exercise of its statutory zoning power the "zoning plan" that R.C. chapter 519 empowers townships to adopt by resolution, which includes the zoning regulations and a zoning map, is not identical to or a substitute for the "comprehensive plan identified in R.C. 519.02, with which R.C. 519.02 requires the "zoning plan" to be in accordance.... 24 Proposition of Law No. 2 A township's zoning plan, adopted by resolution under R.C. Chapter 519, is standing alone, insufficient as a matter of law to establish that the regulations in such plan are "in accordance with a comprehensive plan," as R.C. 519.02 requires.... 32 CONCLUSION.............................................................................. 39 CERTIFICATE OF SERVICE............................................................ 40 APPENDIX Appx. Page R.C. 519.02 Pre Senate Bill 18..... Granger Township Zoning Regulations (August 8, 2007)...... 2-109 i

TABLE OF AUTHORITIES Cases Page Akron Metro. Hous. Auth. Bd. of Trs. v. State, 2008 Ohio 2836, (Ohio Ct. App., Franklin County June 12, 2008)... 24 Belden v. Union Central Life Ins. Co. (1944), 143 Ohio St. 329, 28 Ohio Op. 295, 55 N.E. 2d 629.................................................................................. BGC Props. v. The Township of Bath, Ohio, 1990 Ohio App. LEXIS 1026............ B.J. Alan Co. v. Congress Twp. Board of Zoning Appeals, 2007 Ohio 7023, 2007 Ohio App. LEXIS 6171............ B.J. Alan Co. v. Congress Twp. Board of Zoning Appeals, 124 Ohio St.3d 1, 2009-Ohio-5863, 918 N.E. 2d 501... B.J. Alan Co. v. Congress Twp. Bd. of Zoning Appeals, 191 Ohio App.3d 552, 2010-Ohio-6449, 946 N.E. 2d 844...... 17 20 26, 32, 33 26, 27, 28, 32, 33 27, 33, 34 Board of Trustees, Howland Township, Ohio v. Dray, et al., 2006 Ohio 3402, 2006 Ohio App. LEXIS 3353... 29-30 Board of Township Trustees Ridgefield Township v. Ott, 1994 Ohio App. LEXIS 114... 38 Cassell v. Lexington Twp. BZA (1955), 163 Ohio St. 340, 127 N.E. 2d 11... Central Motors Corp. v. City of Pepper Pike, ( 1995), 73 Ohio St.3d 581, 1995 Ohio 289, 653 N.E. 2d 639... Euclid v. AmblerRealty Co. (1926), 272 U.S. 365, 47 S.Ct. 114,71 L.Ed. 303, 4 Ohio Law Abs. 816............................................................................. Goldberg Companies, Inc. v. Richmond Hts. City Council (1998), 81 Ohio St. 3d 207, 1998 Ohio 456, 690 N.E. 2d 510......... 7, 23, 30, 32, 33, 34 21 25 18, 21 ii

Cases Jaylin, Investment, Inc., v. Village of Moreland Hills (2004) 107 Ohio St. 3d 334, 2006 Ohio 4..... Karches v. Cincinnati (1988), 38 Ohio St. 3d 12, 526 N.E. 2d 1350... Ketchel v. Bainbridge Township, 52 Ohio St. 3d 239, 557 N.E. 2d 779... Living Trust v. Concord Twp., 2012 Ohio 981, 2012 Ohio App. LEXIS 875... Meeks v. Papadopulos (1980), 62 Ohio St. 2d 187, 404 N.E. 2d 159... Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St. 2d 23, 67 0.O.2d 38, 209 N.E. 2d 900................................................................................. Reese v. The Board of Trustees of Copley Township, et al., 129 Ohio App. 3d 9, 716 N.E. 2d 1176.................................................................................. Ryan v. Board of Township Trustees, 1990 Ohio App. LEXIS 5519 (Ohio Ct. App., Franklin County Dec. 11, 1990).......................................... Shemo v. Mayfield Hts. (2000), 88 Ohio St. 3d 7, 2000 Ohio 258, 722 N.E. 2d 1018... State v. Beckley (1983), 5 Ohio St. 3d 4, 448 N.E. 2d 1147... State ex rel. Bray v. Russell (2000), 89 Ohio St. 3d 132, 2000 Ohio 116, 2000 Ohio 117, 2000 Ohio 119, 729 N.E. 2d 359...... Symmes Township v. Smyth, et al., 87 Ohio St. 3d 549, 721 N.E. 2d 1057......... White Oak Property Development, LLC vs. Washington Township, 2012 Ohio 425, 2012 Ohio App. LEXIS 354... Yajnik v. Akron Dep't. of Healtla, Hous. Div., 101 Ohio St. 3d 106, 2004 Ohio 357, 802 N.E. 2d 632................................................................................. Yorkavitz v. Bd. of Trustees of Columbia Twp. (1957), 166 Ohio St. 349, 2 O.O. 2d 255, 142 N.E. 2d 655... Page 18-19, 19, 20, 21, 22 21 26 1, 24 32 21 20, 29 28 21 18 17-18 32 28, 29, 30 18 26 iii

CONSTITUTIONAL PROVISIONS; ORDINANCES; STATUTES: Ohio Constitution, Article I, Section 19... R.C. 519.02... R.C. 519.12... R.C. 6117.01... Zon. Res. 103................................................................................... Zon. Res. 301... Zon. Res. 301.A...... Zon. Res. 301.C.1... Zon. Res. 307... Zon. Res. 501... 25 1, 17, 23, 24, 25, 26, 27, 28, 31, 32, 38, 39 4 6 1,2-3, 17, 27, 32 2,3,8 3, 8 2 29 29 lv

I. STATEMENT OF FACTS A. Introduction The real issue in this is case whether a developer Apple Group, Ltd. ("Apple") can find a way to develop a piece of property in accordance with its own objective and in violation of the valid Granger Township Zoning Resolution. This matter started out as a zoning variance request and has now morplied into a mischaracterization of the long standing law in Ohio in an attempt by Apple to develop as it sees fit. Townships in Ohio pursuant to R.C. 519.02, "... may, in accordance with a comprehensive plan, regulate by resolution." See also, generally, Living Trust v. Concord Twp., 2012 Ohio 981, 2012 Ohio App. LEXIS 875. Granger Township ("Granger") has enacted its Zoning Resolution in accordance with its comprehensive plan and R.C. 519.02. Contrary to Apple's assertion, R.C. 519.02 does not require a township's comprehensive plan to be a "separate" document. Consequently, Granger Township's Zoning Resolution has been enacted to serve as the comprehensive plan as well as the zoning regulations as specifically indicated in, Section 103 of Granger's Zoning Regulations which states in part: "...the Board of Trustees has found it necessary and advisable to adopt these tioning regulations as a comprehensive plan ofzoning....[emphasis added] (See, Appx. p. 5.) B. Statement of Facts Apple purchased approximately 88 acres of undeveloped land ("land") in Granger Township in 2006. At the time of purchase, the subject land was zoned as R-1 residential. The zoning of the land remains the same today. 1

Granger's R-1 District is zoned for single-family and two-family homes, requiring a minimum lot size of two acres, per 301 of the Township Zoning Resolution. (Mag. Dec. 2/2/2012 p. 2 and Appx. p. 21.) The R-1 district sets the following dimensional standards: The minimum lot area shall be two (2) acres. Each lot shall have a minimum of one hundred seventy-five (175) feet continuous frontage on a public or approved private street, and a minimum of one hundred seventyfive (175) feet of continuous lot width on and from the street right-of-way to the setback line. (Zon. Res., 301.C.1, Appx. p. 22.) Apple's land is located on the east side of Beach Road, about 1,000 feet north of State Route 18, Granger's main commercial district, which is zoned as C-2. (Tr. p. 108:8-109:18; Plaintiff's Trial Ex. 7.) Part of the land is wooded and contains five acres of wetlands and a stream which cuts through the northwest corner. The rest of the property consists of farmed fields. (Mag. Dec. 2/2/2012 p.5.) Apple seeks to develop a subdivision consisting of 44 single-family homes. Each home would be situated on a one-acre lot, in violation of Granger's two-acre minimum. The proposed use is essentially a cluster development, placing dwelling units on the smaller, one-acre lots. (See, Plaintiff's Trial Ex. 1-B.) Simply, Apple proposes a use that it is not compliant with Granger's zoning, as it violates the minimum lot size and minimum width requirements. (Mag. Dec. 2/2/2012 p.6.) 2007, states: Section 103 of the Granger Township Revised Zoning Resolution, effective August 8, In order to promote the health, safety, morals and welfare of the residents of the unincorporated area of Granger Township and to conserve and protect property and property values, and to provide for the maintenance of the rural character of Granger Township, and to manage orderly growth and development in said Township, the Board of Trustees has found it necessary and advisable to adopt these zoning regulations as a 2

comprehensive plan of zoning which will regulate the location, height, bulk, number of stories and size of buildings and other structures, percentages of lot areas which may be occupied, building setback lines, size of yards, and other open spaces and density of population, the uses of buildings and other structures and the uses of the land for trade, industry, residence, recreation, or other purposes; and for such purposes to divide the unincorporated area of Granger Township into zoning districts and to provide for the administration and enforcement of such regulations. All regulations shall be uniform for each class or kind of building or other structure or use throughout any district or zone, but the regulations in one district or zone may differ from those in other districts or zones. (See, Appx. p. 5.) The purpose of the R-1 district is to "manage low-density residential development that will preserve the rural residential character of Granger Township." (Zon. Res., 301.A). Granger's zoning resolution defines "rural" as "[l]ow density housing, country/agrarian uses, and green space." (See, Appx. p. 97.) Under its Statement of Facts, Apple simply alleges incorrect propositions, as follows: A. The Township thwarted Apple's administrative and legislative efforts to facilitate the Proposed users [sic] development on the Property; and B. The court's below overlooked manifold evidence, including the Township's own, that proved that even were it permissible for a zoning resolution to double as a "comprehensive plan" under R.C 519.02, the Township's Zoning Resolution lacked the hallmark features of a comprehensive plan. (See Apple's Brief y[y['s 3 & 6.) Apple now attests that it knew at the time it purchased the land Granger had an R-2 district which permits higher density residential development. (See, Apple's Brief p. 4.) Nonetheless, Apple chose to purchase property in a different district R-1. However, it must be noted that when Apple purchased the land in May 2006, Granger's R-2 district "allowed one- 3

acre minimum lot sizes for single-family homes and duplexes serviced by central water and sanitary sewers." (See, Apple's Brief p. 4.) Apple's original proposal to the Granger Township Board of Zoning Appeals ("BZA") was a request for 176 variances; four variances for each of 44 clustered home lots it sought to develop. However, the BZA found that proposal was tantamount to a request for a zoning map amendment. In actuality, Apple was attempting to change the R-1 district to an R-2 district. Ohio Revised Code 519.12, which establishes the jurisdiction and purposes of a Board of Zoning Appeals does not give authority to grant a map amendment. Contrary to Apple's assertions, its efforts were not thwarted in any way. Apple knew what zoning district the property was in when they purchased it, and Granger simply applied its Zoning Resolution consistently to the law. Apple appealed the BZA's decision to the Court of Common Pleas where the decision was upheld. Apple also attacked the Granger Township Zoning Resolution on a constitutional basis. Apple argued an "as applied" standard at the trial and appellate court level. However, Appellant's argument in this Court seems to be that Granger Township Zoning Resolution is unconstitutional on its face. Apple's administrative appeal asked the Trial Court to reverse the BZA's denial of the 176 requested variances. In so doing, Apple contended that the BZA's decision was arbitrary, capricious, unreasoilable, and unsupported by a preponderance of the evidence. (Mag. Dec. 2/2/2012 p.2.) The administrative appeal issues and constitutional issues were bifurcated. (See, Journal Entry of July 15, 2008.) On October 3, 2008, the Trial Court affirmed the BZA's decision, finding that the decision was supported by a preponderance of the evidence and that the 4

request for variances was, in reality, an attempt to rezone the land to fit Apple's plans. (See, Journal Entry, October 3, 2008.) As an alternative attempt to bring its development plans to fruition, Apple filed a complaint for declaratory judgment, seeking a declaration that the R-1 zoning classification, as applied to Apple's property and the proposed use, is not substantially related to Granger's health, safety, convenience, prosperity, or general welfare, that it is arbitrary, capricious, and unreasonable, and that it is therefore unconstitutional and beyond Granger's authority as delegated under Chapter 519 of the Ohio Revised Code. (Mag. Dec. 2/2/2012, p.3.) The case was referred to the Trial Court's Magistrate and the constitutional issues were tried on November 16-19, 2009. The Magistrate issued her decision on February 2, 2012, denying all relief that Apple sought. In that decision, the Magistrate arrived at the following seminal conclusions of law: "Granger Township's desire to maintain the rural character of its land is a legitimate governmental goal, which may be regulated by its zoning resolution." (Mag. Dec. 2/2/2012 p. 5.) Furthermore, the Magistrate concluded that, "[t]he Zoning Resolution of Granger Township is a comprehensive plan which is a valid exercise of the township's legislative authority pursuant to R.C. 519.02." (Mag. Dec. 2/2/2012, p. 5.) Importantly, the Magistrate found that: Granger Township's failure to have a comprehensive zoning plan, which is separate and distinct from its zoning resolution, does not mandate a conclusion that the zoning resolution is unconstitutional. The zoning resolution itself meets the statutory requirement of a comprehensive plan, because it has the essential characteristics of a comprehensive plan; it encompasses all geographic parts of the community and integrates all functional elements. (Mag. Dec. 2/2/2012, p. 5.) The Court found, that on September 20, 2007, Apple applied to the Granger Township Board of Zoning Appeals (hereafter "BZA") for 176 variances; four variances for each of the 44 5

lots. (Mag. Dec. 2/2/2012 p. 2.) After three separate days of public hearing, the BZA denied Apple's application for the variances. (Mag. Dec. 2/2/2012 p. 2.) The variances would have allowed Apple to build homes on lots of about one acre per home, rather than two, as Granger's zoning resolution requires. (Mag. Dec. 2/2/2012 p. 6.) Additionally, the variances would allow the lot frontage to be reduced to about 108 feet instead of the required 175 feet, and the side yard set-back would be only 15 feet. (Mag. Dec. 2/2/2012, p.6.) The BZA found in part that the street view of Apple's proposed use would conflict with Granger's goal of maintaining its rural character, as there would be only 30 feet between the homes, which would exist on one-acre lots instead of the requisite two-acre lots. As Apple has indicated, the 88 acres is in the Granger Township R-1 District. In addition, Apple states that it knew the property had previously been approved for a school building to be served by central water and sewer services. However, the record reflects that their proposal is a residential development and is much different than a school building located on a portion of the property. Furthermore, there was testimony at the Board of Zoning Appeals level indicating that sewer lines were in the area. However, the sewer system that Apple implies is available to connect to 44 one acre lots, is under the control of the Medina County Board of Commissioners. (See, R.C. 6117.01.) Other than comments from the Medina County Sanitary Engineer that a sewer line is in the commercial district and space is available, Apple did not present evidence that the County Commissioners ever approved such a connection. From the time it first went before the BZA and during its appeals, Apple has gone from one extreme to the other during this litigation. At one time Apple insisted that it is not arguing that two separate documents are necessary. (See, Apple's Appellate Brief, p. 17.) Yet now, Apple comes before this Honorable Court claiming that all of the courts which have interpreted 6

this Court's ruling in Cassell v. Lexington Twp. BZA (1955), 163 Ohio St. 340, 127 N.E. 2d 11 ("Cassell") over the last fifty-nine (59) years have interpreted the case incorrectly. However, Apple is the party misinterpreting the precedent and mischaracterizing the facts. Granger's trustee, John Ginley, testified, the two-acre lot size requirement serves Granger's objective of avoiding cluster developments like Apple's proposed use. (Tr. p. 477:21; p. 479:8.) As evidence of Granger's residential zoning objective, Granger eliminated its R-2 zoning district, which allowed two family cluster homes on lots smaller than two acres, eighteen months after Apple acquired the property at issue. (Tr. p. 67:24; p. 68:3.) (Tr. p. 334:19; p. 335:6.) This zoning change is consistent with Granger's stated vision and priorities. Apple's planning expert, David Hartt, testified that a sanitary sewer line enters the property on its southern border and would have the capacity to serve the 44 units in Apple's proposed use. (Mag. Dec. 2/2/2012 p.12.) He stated that if sewers are not available for a subdivision, there must be a two-acre minimum lot size to install a septic system. (Mag. Dec., 2/2/2012 p. 12.) However, because there was a sewer line available to the property, the two acre minimum lot size was not necessary, in Hartt's opinion. (Mag. Dec. 2/2/2012, p. 13.) Mr. Hartt went on to say that Apple's cluster developnient would also lessen the adverse impact caused by the commercial property located south of the parcel, because it allows for greater distance (350 feet) between the homes and commercial district. (Mag. Dec. 2/2/2012 p. 13.) Despite Apple's claim, the evidence did not substantiate that Apple would be allowed to tie into the sewer system owned by Medina County. In addition, as Granger Trustee Mr. Ginley expressed, the community's vision of maintaining a rural atmosphere is achieved by having more distance between the homes which the two-acre minimum lot size would provide; thus, 7

substantiating the argument that the two-acre minimum is an acceptable means to achieving Granger's zoning goals. On the issue of the fit between Granger's resolution and its stated goals, Mr. Hartt expressed that prohibiting Apple's proposed use fails to protect Granger's interests in preserving green space, open space, and managing low-density residential development. (Tr. p. 357:22-359:18.) On this count, Apple devoted rnuch time eliciting testimony comparing the hypothetical duplex plan as displayed in Plaintiff's Trial Ex. 2-B, to Apple's proposed use. The duplex plan would contain 88 families (44 duplexes) on 44 two-acre lots, or 88 families on 88 acres. However, the duplex plan would permit only 44 duplex dwelling units on the 88 acres, remaining compliant with the two-acre minimum lot size. But, the relationship of units-to-acres, not families-to-acres, is the focal point of the R-1. purpose statement's second clause the preservation of rural character. (See, Zon. Res., 301.A, Appx. 21.) Susan Hirsch of the Medina County Department of Planning Services testified that the hypothetical duplex plan was consistent with the R-1 district's regulations. (Tr. p. 893:2-894:14.) However, Ms. Hirsch stated that the duplex plan countered Granger's vision of preserving its rural character, despite the notion that the R-1 regulations permitted the duplex plan. (Tr. p. 895:19; p. 897:19; p. 905:17-906:14.) Regardless, Apple's proposed use varies from the duplex plan in that the duplex plan honors the two-acre minimum, where Apple's proposed use does not. Furthermore, Ms. Hirsch was clear that the two-acre lot size minimum, which provides for increased green/open space, is what Granger perceived to embody a rural character, and that Apple's proposed use fell short of this clear limitation. (Tr. p. 907:18; p. 908:12.) 8

Ms. Hirsch was equally clear that in this matter Granger's Zoning Resolution serves as the Township's Comprehensive Plan. Apple's expert, David Hartt, stated on direct examination that Granger did not have a comprehensive plan. (Tr. p. 408:11-13.) Mr. Hartt however, asserted so without any elaboration or rationale for his opinion. (Tr. 408:11-13.) Contrary to Apple's self-serving analysis of Ms. Hirsch's testimony, Ms. Hirsch did not aver that Granger does not have a comprehensive plan. Instead, she testified that Granger does not have a traditional comprehensive plan; a separate document. Ms. Hirsch went on to state that a traditional comprehensive plan is preferable, however, in her expert opinion, a township zoning resolution itself could serve as a comprehensive plan (Tr. p. 863:10-13.) In this case, Granger's resolution does operate as a comprehensive plan itself. (Tr. p. 864:12-18.) Apple filed objections to the Magistrate's decision. However, on April 25, 2012, the Trial Court overruled all of Apple's objections and adopted the Magistrate's decision. (See, Journal Entry of Apri125, 2012.) Apple has changed its arguments throughout this process to serve its purpose. In its Court of Appeals Brief Apple states:... Compounding that error, however, the Magistrate also misstated Apple's argument by saying that "[i]n Apple Group's view Granger Township must have a comprehensive plan separate and apart from the Zoning Resolution" to comply with R.C. 519.02 (2/2/12 Mag. Dec., pp. 19-20). Rather, Apple contends that the opposite legal standard for assessing "comprehensive", which was not applied below, exposes the Resolution as not "comprehensive" regardless of how the R.C. 519.02 "comprehensive plan" upon which Granger Township's zoning relies is documented. (See, Apple's Appellate Brief p. 17.) In this Court, Apple has changed course again and is now arguing that a separate comprehensive plan is necessary and that the testimony and case law supports that conclusion. Yet, testimony at the trial court level indicated as follows: 9

BY MR. WERNER: Q. Okay. The department of planning services tracks which townships in Medina Coimty have comprehensive plans? A. Uh-huh. Q. According to the department of planning services, Granger Township does not have a comprehensive plan; isn't that true? A. In the traditional sense, yes. Q. Well, in the sense that you've defined a comprehensive plan, they do not have one? A. Correct. (Trial Transcript 864; 8-18.) Q. Ms. Hirsch, you work for the Medina County Departrrient of Planning Services? A. Correct. Q. And they do newsletters and updates for various interested folks in the county? A. Yes. Q. Do you participate in preparing those newsletters? A. Yes, I do. Q. Okay. And you are familiar with the comprehensive planning process? A. Yes. Q. Can you tell us what is ordinarily in a comprehensive plan? A. Let's see. It's a - first of all, there will be a description of tlie, you know, current - what it looks like now, both physically and the population, the land use and so forth. Often there is a history. There is a process it goes through with meeting with the public and getting public input and that's usually part of it, and then there's elements like housing, economic development, parks and recreation, agriculture, those kinds of elements, public facilities, transportation, those kinds of things and then also - 10

THE COURT: available for the area? So you describe what public facilities and transportation is THE WITNESS: Yes. THE COURT: Okay. THE WITNESS: And then based on the population data, you would say what would be needed in the future. Usually a comprehensive plan is for 20 years, looking 20 years in to the future somewhere, you know, around 20 years. BY MR. WERNER: Q. Okay. A. Goals and objectives for the community and then the implementation portion, how you would implement those goals and objectives. (Trial Transcript p. 861 & 862.) BY MS. DEVANNEY: Q. The Granger Township zoning resolution also states on the first page that it does act like a comprehensive plan, correct? A. I think the word is comprehensive plan for zoning. Q. In fact, if you don't mind - A. Wait a minute. I can tell you exactly. Adopt zoning regulations as a comprehensive plan of zoning. Q. So why not establish an ideal method of a comprehensive plan, and certainly through your testimony, not your preference of a comprehensive plan, the zoning resolution could act as a comprehensive plan, couldn't it? A. Yes. Q. Okay. THE COURT: But you're not saying that these zoning regulations are a comprehensive plan, are you? I1

THE WITNESS: I'm saying they could function as a comprehensive plan. THE COURT: But you said in your report that Granger Township does not have a comprehensive plan? THE WITNESS: Correct. They don't have a traditional cornprehensive plan, a separate document. (Trial Transcript pp. 925, 926.) BY MR. WERNER: Q. So you do not see listed among these the various features that you say characterize your typical comprehensive plan? A. Correct. Q. And have you reviewed this zoning resolution prior to today? A. Yes. Q. Have you reviewed it fairly thoroughly? A. Yes. Q. Okay. Are the elements that you've described as characterizing a comprehensive plan in here in terms of demographics, transportation, survey, implementation strategy, future goals and objectives, are those in this zoning resolution? A. In part in the purpose statement for the different districts, I think you get in to some of the goals and objectives of the - or goals of the Township. A. Correct. (Trial Transcript pp. 865-866) BY MS. DEVANNEY: Q. There has been a great deal of discussion as to whether or not Granger Township has a comprehensive plan. Can you tell me what a comprehensive plan is? A. It's basically a document that is a guide for a community's growth and development and it can be many things often incorporating maps and charts and 12

showing the future growth for the entity and also often has a history, various elements. Q. There's no set definitions for a comprehensive plan though, is there? A. There are many definitions I guess, yeah. Q. All right. Within your industry, is there one that is accepted above all others? A. No. (Trial Transcript pp. 795-796.) BY MS. DEVANEY: Q. Can a zoning resolution also function as a comprehensive plan in your opinion? A. Yes. Q. Does Granger Township's zoning resolution function as a comprehensive plan in your opinion? A. Yes. (Trial Transcript p. 797) Utilizing that evidence, the Trial Court came to the correct conclusion in favor of Granger. Upon considering the record in whole the Ninth District Court of Appeals affirmed the Trial Court's decision on September 30, 2013, applying the law correctly. Apple, however, is relying on the Honorable Judge Belfance's dissent to argue that a comprehensive plan and zoning resolution must be separate documents. Although, Judge Belfance did not indicate any such thing. (J.E., at 19['s 32-39.) The Ninth District Court of Appeals was very clear in its decision that the law does not require a separate comprehensive plan indicating that: Apple argues that, because the Township does not have a comprehensive plan that is separate from its zoning resolution, the resolution is invalid. 13

(J.E. at 9[9['s 9-10) Whether a zoning resolution complies with Section 519.02 is a question of law that this Court reviews de novo. B.J. Alan Co. v. Congress Twp. Bd. of Zoning Appeals, 191 Ohio App.3d 552, 2010-Ohio-6449, y[7 (9h Dist.) (B.J. Alan III). Contrary to Apple's argument, this Court has held that a township's failure to have a comprehensive plan "which is separate and distinct from a zoning ordinance does not render unconstitutional a zoning ordinance." Reese v. Copley Twp. Bd. of Trustees, 129 Ohio App. 3d 9, 15 (9th Dist. 1998); BGC Props. V. Bath Twp., 9th Dist. Summit No. 14252, 1990 WL 31789 *4 (Mar. 21, 1990) ("Ohio law does not require a township to adopt a comprehensive zoning plan as a condition precedent to the enactment of zoning legislation."). In Reese and BGC Properties, this Court noted its agreement with the Eighth District Court of Appeal's decision in Central Motors Corp. v. City of Pepper Pike, 63 Ohio App. 2d 34, 65 (8th Dist. 1979), in which the Eighth District explained that, "although a comprehensive plan is usually separate and distinct from a zoning ordinance, it is possible for an ordinance in and of itself to be a comprehensive plan***." See also, Columbia Oldsmobile, Inc. v. City of Montgomery, 56 Ohio St. 3d 60, 67 (1990) (Brown, J., concurring) ("As many courts (including our own) have recognized, a well-drafted zoning ordinance can, by itself, constitute the `comprehensive plan"'). Accordingly, the fact that the Township does not have a separately designated "comprehensive plan" does not mean that it did not have authority to create a zoning resolution. Contrary to Apple's claim, the Ninth District Court of Appeals thoroughly analyzed the record indicating that: This Court's analysis is also guided "by the broad principles outlined by the Supreme Court of Ohio," which includes "that a person should be able to examine a zoning resolution in its entirety and ascertain to what use property may be put." B.J. Alan III, 191 Ohio App. 3d 552, 2010-Ohio- 6449 at 114. Accordingly, the resolution must "define with certainty the location, boundaries and areas of the *** districts[.]" White Oak Prop. Dev., L.L.C. v. Washington Twp., 12t' Dist. Brown'No. CA2011-05-011, 2012-Ohio-425, 9[16, quoting Village of Westlake v. Elrick, 52 Ohio Law Abs. 538, 541 (8' Dist. 1948). In White Oak, the Twelfth District Court of Appeals determined that a township zoning resolution set forth a comprehensive plan because the resolution and accompanying map: "(1) reflect current land uses; (2) allow for change; (3) promote public health and safety; (4) uniformly classify similar areas; (5) clearly define district 14

locations and boundaries; and (6) identify the use(s) to which each property may be put." Id. At 146. In the instant case, the trial court adopted the decision of the magistrate, who concluded that the Township's zoning resolution had been made in accordance with a comprehensive plan. In her decision, the magistrate considered She found: 1) Whether an individual is able to examine the zoning resolution and ascertain to what use the property may be put; 2) whether the text of the zoning resolution is consistent with the zoning map which shows the location of the various zoning classifications, and 3) whether the zoning plan includes business or industrial zoning districts. [T]he Granger Township zoning resolution functions as a comprehensive plan. A review of the resolution shows that it covers many factors, including, but not limited to land use, conunercial development and conditional zoning terms. It sets forth specific goals and embodies the vision of the residents of the township for future development. The goal of the resolution is "to promote and protect the health, safety, morals and welfare of the residents of the unincorporated area of Granger Township * * * and to conserve and protect property and property values, and to provide for the maintenance of the rural character of [the] Township, and to manage orderly growth and development in said Township" while allowing for "reasonable flexibility for certain kinds of uses." She also found that the Resolution is general in nature but it also contains specific zoning districts to manage growth and ret[ain] the rural character of the township. The resolution provides the information needed for property owners to make decisions about public and private investment. It also provides a basis for zoning and conditional use decisions which will control spot zoning." The trial court adopted the magistrate's findings, finding them to be "correct." (See, J.E. at 19['s 16-1.7.) 15

The Court of Appeals then went on to indicate that: The Township's zoning resolution and map divides the Township into six different districts: two residential, three commercial, and one industrial. There is also a planned development district that overlays part of the R-1 residential and C-2 general commercial districts. For each district, the zoning resolution sets out use, height, and area restrictions. It defines with certainty the location and boundaries of each zone. The zoning resolution also provides separate regulations regarding the placement of signs and wireless telecommunication towers. (See, J.E. at 11's 19 & 20.) The zoning resolution addresses the entire geographic area of the Township, is all-encompassing in that it addresses use, height, and area, and it is intended to operate on a permanent basis to manage the long-term growth and development of the Township. In addition, a person examining the "zoning resolution in its entirety [can] ascertain to what use property may be put." B.J. Alan III, 191 Ohio App. D 552, 2010-Ohio- 6449 at 114. Further, the county's deputy planning director testified that, even though the township does not have a separate comprehensive plan, the zoning resolution functions as a comprehensive plan. We, therefore, conclude that the court's decision is not against the manifest weight of the evidence. The trial court correctly determined that the zoning resolution was adopted "in accordance with a comprehensive plan" under Section 519.02. that: In affirming the Trial Court's decision, the Ninth District Court of Appeals concluded (See, J.E. at 9[30.)...the trial court correctly determined that the Township's zoning resolution was constitutional as applied to Apple's property. The lot size, frontage and setback requirements reasonably advance the Township's legitimate goal of maintaining its rural character. Apple's plan to cluster homes on less-than-one-acre lots conflicts with the Township's vision of what constitutes low-density housing and its vision of what constitutes a rural landscape. The Honorable Judge Belfance's dissent is contrary to established case law, which she clearly recognized by stating: While it would seem that the legislature envisioned a separate and comprehensive planning process culminating in a separate document 16

(See, J.E. at q[38.) called a comprehensive plan, I recognize the current state of this Courk's precedent. Respectfully, Judge Belfance ignores the law with regard to whether Granger must have a comprehensive plan separate from the Zoning Resolution. Furthermore, she overlooks the fact that Granger clearly indicates within the Resolution in Section 103 that the regulations also serve as a comprehensive plan of zoning. Ohio Revised Code 519.02 pre Senate Bill 18 never uses the word "separate" when indicating that; "...the board of township trustees may, in accordance with a comprehensive plan, regulate by resolution..." (See, Appx. p. 1.) As such, consistent with the long standing law, the Ninth District Court of Appeals affirmed the Trial Court's decision. Respectfully, this Court should do the same as Apple is misinterpreting and twisting the law to obtain its goal. II. ARGUMElaTT Apple's contention has previously been that Granger's Zoning Resolution is unconstitutional as applied to Apple's property. In reference to a constitutional question a zoning regulation may be challenged, as Apple has done, under a declaratory judgment action in two different ways. One challenge may be that a zoning resolution is "unconstitutional on its face," the second is that the zoning resolution is unconstitutional "as applied to a particular set of facts." Belden v. Union Central Life Ins. Co. (1944), 143 Ohio St. 329, 28 Ohio Op. 295, 55 N.E. 2d 629, paragraph four of the syllabus. In a facial challenge to a zoning ordinance, the challenger alleges that the overall ordinance, on its face, has no rational relationship to a legitimate governmental purpose and it may not constitutionally be applied under any circumstances. State ex rel. Bray v. Russell (2000), 89 Ohio St. 3d 132, 137, 2000 Ohio 116, 17

2000 Ohio 117, 2000 Ohio 119, 729 N.E. 2d 359. See, also State v. Beckley (1983), 5 Ohio St. 3d 4, 7, 448 N.E. 2d 1147. Apple did not bring the action before this Court on a facial challenge. In the second method, or "as applied" challenge to a zoning ordinance as Apple has repeatedly made clear it is doing, the landowner questions the validity of the ordinance only as it applies to a particular parcel of property. If a Court finds the ordinance to be unconstitutional, as applied under those limited circumstances, it nevertheless will continue to be enforced in all other instances. Yajnik v. Akron Dep't. of Health, Hous. Div., 101 Ohio St. 3d 106, 2004 Ohio 357, 802 N.E. 2d 632. A land owner may also allege that the regulation so interferes with the use of the property that, in effect, it constitutes a taking of the property. See, Goldberg Companies, Inc. v. Richmond Hts. City Council (1998), 81 Ohio St. 3d 207, 210, 1998 Ohio 456, 690 N.E. 2d 510. Again, Apple ha.s not made any claim or allegation that the Township's Zoning effects a taking. The Trial Court weighed the record and Magistrate's Decision and determined correctly that Granger's Zoning Resolution as applied to prohibit Apple's proposed use has a rational relationship to the legitimate purpose of the public health safety and welfare. The Ninth District Court of Appeals, further indicated that: "[u]pon review of the record, we conclude that the trial court correctly determined that the Township's zoning resolution was constitutional as applied to Apple's property." Decision at 130. This Court in Jaylin, Investments, Inc. v. Village of Moreland Hills (2004) 107 Ohio St. 3d 334, 2006 Ohio 4, stated that: In Goldberg, we reaffirmed the standard in Euclid v. Ambler Realty Co., as the appropriate test in a constitutional challenge to zoning regulation in Ohio when the landowner does not allege a taking, Goldberg at 210, 690 N.E.2d 510. Goldberg held that "[a] zoning regulation is presumed to be constitutional unless determined by a court to be clearly arbitrary and unreasonable and without substantial relation to the public health, safety, morals, or general welfare of the community." Id. at syllabus. "The burden of proof remains with the party challenging an ordinance's constitutionality, and the standard of proof remains 18

Jaylin at 9113. `beyond fair debate.' "Id., 81 Ohio St.3d at 214, 690 N.E.2d 510. See Shemo v. Mayfield Hts. (2000), 88 Ohio St.3d 7, 10, 2000 Ohio 258, 722 N.E.2d 1018; Cent. Motors Corp: v. Pepper Pike (1995), 73 Ohio St.3d 581, 584, 1995 Ohio 289, 653 N.E.2d 639. Apple simply did not meet its burden. Jaylin, Id., is a case previously decided by this Court which has very similar facts to the current matter. In Jaylin, Id, a developer wanted to place a subdivision of half acre lots on property within the Village of Moreland Hills that was zoned for two acre lots. The Village denied the request in large part because of the half acre lot size. The Developer filed a declaratory action against the Village seeking an order requiring the development. The trial court agreed with the Developer. However both the Eighth District Court of Appeals as well as this Court disagreed finding that the land owner failed to meet its burden of proof. This Court determined that the focal point of the analysis should be the zoning regulation, rather than the landowner's proposed use of the property. As the landowner did not provide evidence to overcome the presumption that the zoning regulation, as applied, was a valid exercise of the village's police powers, the landowner was therefore not entitled to relief. He simply did not show that the minimum lot size was arbitrary and unreasonable or substantially unrelated to the public health, safety, morals, or general welfare of the community. Likewise, Apple failed to meet its burden at the trial level and the Court of Appeals agreed. This Court in Jaylin, Id., stated that the object of scrutiny is the government's action. "[T]he state or local law or regulation is the focal point of the analysis, not the property owner's proposed use." Jaylin, Id., at 12. Just as in Jaylin, Id., the focal point of the case was the zoning regulation, rather than Apple's proposed use of the subject property. 19

Additionally, just as in.iaylin, Id., Apple is not entitled to relief as they did not meet their burden of proof showing that the Granger Township minimum lot size was arbitrary, unreasonable or substantially unrelated to the public health, safety, morals, or general welfare of the community. Likewise, Apple is not entitled to relief based upon their comprehensive plan argument. In BGC Properties v. The Township of Bath, Ohio, 1990 Ohio App. LEXIS 1026 the Court stated: Ohio law does not require a township to adopt a comprehensive zoning plan as a condition precedent to the enactment of zoning legislation. Central Motors Corp. v. Pepper Pike (1979), 63 Ohio App. 2d 34, 65. Failure to have a zoning plan which is separate and distinct from a zoning ordinance does not render a zoning ordinance unconstitutional. Id. If the validity of the legislative classification for zoning purposes is fairly debatable, the legislative judgment must be allowed to control. Euclid v. Ambler Realty Co. (1926), 272 U.S. 365. The regulation must be rationally related to the legitimate public purpose sought to be achieved. Id. BGC Properties at *10. Furthermore, in Reese v. The Board of Trustees of Copley Township, et al., 129 Ohio App. 3d 9, 716 N.E. 2d 1176, the Court stated; A township's failure to have a comprehensive zoning plan which is separate and distinct from a zoning ordinance does not render unconstitutional a zoning ordinance. BGC Properties v. Towrtship of Batlt (March 21, 1990), 1990 Ohio App. LEXIS 1026, Summit App. No. 14252, unreported, at 8; see, also, Central Motors Corp. v. Pepper Pike (1979), 63 Ohio App. 2d 34, 65, 409 N.E. 2d 258. It follows that a township zoning board's decision to uphold a zoning ordinance cannot be invalidated merely because the township does not have a comprehensive zoning plan. Reese at * 115. Apple's real argument is that their plan is better than Granger's, as evidenced by their "as applied" constitutional challenge. However, Apple is not entitled to relief as they did not meet 20

their burden of proof showing that the Granger Township minimum lot size was arbitrary, unreasonable or substantially unrelated to the public health, safety, morals, or general welfare of the community. The Courts in both Jaylin, Id., and Goldberg, Id., held "[a] zoning regulation is presumed to be constitutional unless determined by a court to be clearly arbitrary and unreasonable and without substantial relation to the public health, safety, morals, or general welfare of the community." See, Jaylin, Id., at 9113, Goldberg, Id., at 214. "The burden of proof remains with the party challenging an ordinance's constitutionality, and the standard of proof remains "beyond fair debate." See, Goldberg, Id., at 214, see also, Shemo v. Mayfield Hts. (2000), 88 Ohio St. 3d 7, 10, 2000 Ohio 258, 722 N.E. 2d 1018; Central Motors Corp. v. Pepper Pike (1995), 73 Ohio St. 3d 581, 584, 1995 Ohio 289, 653 N.E. 2d 639. This Court stated that there is little difference between the "beyond fair debate" standard and the "beyond a reasonable doubt" standard. Central Motors Corp, Id. at 584, citing Karches v. Cincinnati (1988), 38 Ohio St. 3d 12, 19, 526 N.E. 2d 1350, 1357, fn. 7. Therefore, in order to invalidate Granger Township's R-1 zoning/ppd overlay on the subject property, Apple was required to prove to the Trial Court beyond fair debate that the Granger's zoning is clearly arbitrary and unreasonable and without substantial relation to the public health, safety, morals, or general welfare of the community. The challenge must focus on the constitutionality of the ordinance as applied to prohibit the proposed use, not the reasonableness of the proposed use. See, Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St. 2d 23, 67 0.O.2d 38, 209 N.E. 2d 900. Provided that Granger does not deny an economically viable use of the land and provided it advances a legitimate government interest Grariger is entitled to its vision. The Trial Court testimony and evidence presented 21

makes it abundantly clear that Granger's resolution advances a legitimate interest. Further, it is plain to see that Apple's purchase is still economically viable if it would just comply with Granger's fair and reasonable zoning regulations. Just as in the Jaylin, Id., case, the Trial Court was being asked to back step its way into a constitutional analysis. That being, if the proposed use meets the government's legitimate goals underlying the zoning, the township cannot prohibit it. This Court in Jaylin, Id., specifically rejected this type of argument stating instead that; "...in a constitutional analysis, the object of scrutiny is the legislative action." Jaylin, Id., at 118. Ftirther this Court stated that: The zoning ordinance is the focal point of the analysis, not the property owner's proposed use, and the analysis begins with a presumption that the ordinance is constitutional. The analysis focuses on the legislative judgment underlying the enactment, as it is applied to the particular property, not the municipality's failure to approve what the owner suggests may be a better use of the property. Jaylin, Id., at 118. To modify the rule as Apple has advocated, would effectively eliminate the initial presumption that zoning is constitutional, as "Opposing parties would merely argue over who presents the better use of the property." Jaylin, Id., at 121. However, this Court in Jaylin, Id., specifically rejected that argument. Apple before this Court makes no argument as to the failure of the Zoning Resolution to provide for the public health, safety, convenience, comfort, prosperity or general welfare, but relies solely on its contention that without a separate Comprehensive Plan the Zoning Resolution is void and unconstitutional. Apple's contention herein is that the law dictates that Granger's comprehensive plan must be a separate document from Granger's Zoning Resolution and because they are not separate the Zoning Resolution is a nullity. Consequently, Apple is free to develop the subject land at its 22

discretion without regulation by the Township. Apple's proposition is convoluted and adverse to the clear mandates of R.C. 519.02, and well settled case law in Ohio. Contrary to Apple's assertion, in conformance with Ohio law, Granger Township has enacted its Zoning Resolution absolutely in accordance with a comprehensive plan. Apple's view is not supported by any case or the Ohio Revised Code. Instead, Courts have interpreted the case of Cassell v. Lexington Twp. BZA (1955), 163 Ohio St. 340, 127 N.E. 2d 11 for fifty-nine (59) years, to stand for the proposition that Granger does not need a separate comprehensive plan. Consequently, Apple has not been able to cite a case that indicates otherwise. The fifty-nine (59) years of case law is not "...facially contradictory of R.C. 519.02's explicit demand for "accordance" between the township's "zoning resolution" and the "comprehensive plan"..." as Apple has argued. (See, Apple's Brief, p. 15). Neither R.C. 519.02 nor case law indicate in any way that a "separate" comprehensive plan is required of Granger. Apple claims that, See, Apple's Brief p. 15. By promulgating the propositions of law submitted here, this Court will restore uniformity, predictability, and rationality to land uses throughout Ohio's 1,300 + townships, and, importantly, will more closely conform the local exercise of township zoning powers to the General Assembly's clearly expressed intentions. That claim is far from accurate. Inserting the word "separate" into the statute changes the legislative intent. Furthermore, it creates an untenable situation for the countless townships that have followed the last fifty-nine (59) years of precedent and have zoning resolutions and comprehensive plans in the same document. 23

Proposition of Law No. 1 For purposes of a township's exercise of its statutory zoning power the "zoning plan" that R.C. chapter 519 empowers townships to adopt by resolution, which includes the zoning regulations and a zoning map, is not identical to or a substitute for the "comprehensive plan identified in R.C. 519.02, with which R.C. 519.02 requires the "zoning plan" to be in accordance. Granger must first note that Apple consistently cites the incorrect version of R.C. 519.02. (See generally, Apple's Brief on p. 16, Appx. p.l.) The Ohio General Assembly illegally changed R.C. 519.02 in 2004. The Akron Metropolitan Housing Authority ("AMHA") and the boards of trustees of 24 townships located in Medina and Lorain Counties, including Granger Township, sought declaratory relief by filing a complaint in the Franklin County Court of Common Pleas against the State and the General Asseynbly. The Franklin County Court of Appeals determined that; "[b]ecause severability is not an option in this case, we must hold Am.Sub.S.B. No. 18 unconstitutional in toto due to its manifestly gross and fraudulent violation of the one-subject rule of Section 15(D), Article II of Ohio's Constitution." Akron Metro. Hous. Auth. Bd. of Trs. v. State, 2008 Ohio 2836, (Ohio Ct. App., Franklin County June 12, 2008) at 128. The Akron Metro, Id., Court went on to state that; "[m]oreover, because Am.Sub.S.B. No. 18 is unconstitutional in its entirety under the one-subject rule, and no portion of the bill remains valid through severance, the state's final assignment of error is rendered moot." Akron Metro. at 128. The matter was not appealed to the Supreme Court of Ohio. W'hile the amended language listed in S.B. 18 has not been removed or changed in the Revised Code, R.C. 519.02 retains its original language including the ability for a township to "... in accordance with a comprehensive plan, regulate by resolution..." for the purpose of general welfare. See also, Living Trust v. Concord Twp., 2012 Ohio 981, 2012 Ohio App. LEXIS 875. The R.C. 519.02 wording that should be applied is as follows: 24