Shemo & Oakwood: Very Different!

The Shemo case, that pertains to the Costco built in Mayfield Heights, has been brought up by First Interstate and South Euclid and Cleveland Heights and University Heights city officials in relation to Oakwood.

This has both a chilling effect and a dumbing down effect on the public discourse necessary to make the best decisions about land use in our community.

We asked our brilliant legal team to weigh in and they produced the document below.. There is also a printable version attached; please distribute it to your friends and family in South Euclid so they make an informed decision about voting No on 96!

Please consider forwarding this email to pertinent government officials so they do not continue to distort the discussion about Oakwood.
Thank you.

Shemo & Oakwood: Very Different!
The Plain Dealer's recent comparison of Oakwood to the facts in Shemo v. Mayfield Heights was seriously flawed.  In addition to containing factual inaccuracies which the Plain Dealer later acknowledged, the article stated there was a "good chance" the ruling in Shemo could render useless the referendum to overturn the City of South Euclid's rezoning of the Oakwood property.  In fact, Shemo was an unusual case and unlike Oakwood.
 
While it is possible for any property owner to challenge, as the developer in Shemo did, the constitutionality of a property’s zoning, the property owner faces a significant hurdle in doing so. Courts start with the presumption that a city’s zoning ordinance is constitutional. To overcome this, an owner must show “beyond fair debate” that the zoning ordinance is "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare" (quoting directly from the standard used in the Shemo opinion). If the rezoning of Oakwood as commercial property is overturned by referendum, the developer would need to show that Oakwood's residential zoning is irrational and baseless. The facts don't support this type of a claim. Consider the differences:
 
Shemo
Shemo’s land was essentially useless when zoned as residential.   Why?
o   The property was very close to Interstate I-271, subjecting it to extreme noise, pollution and 24 hour a day, high-intensity lighting.
o   6 CEI high-tension electrical power poles and lines ran along its entire eastern border.
o   It had an irregular shape, was small and was graded even to the highway.
o   There was approximately three-quarter million square feet of high density retail space adjacent to and in the vicinity of the property.
The Shemo court used these facts to deem this property clearly unsuitable for residential development.
 
Oakwood
o   Oakwood has been zoned residential for a long time without challenge or question.
o   It is virtually surrounded by residential neighborhoods.
o   The property contains no natural or man-made barriers to residential development.
o   The developer has already announced it will develop a portion of the Oakwood property as residential. This would undermine any claim that residential zoning denies the developer use of the property.
 
Any mention of Shemo also invokes the millions of dollars of legal fees and years of litigation faced by the City of Mayfield Heights.  This shouldn’t be a concern to South Euclid voters. Why?
           
o   Even after agreeing that the original residential zoning for the Shemo property was invalid, the City of Mayfield Heights re-zoned the property as another class of residential property.
o   Even after an Ohio Supreme Court case declared this re-zoning unconstitutional, the City put up numerous legal and administrative hurdles that interfered with the developer’s use of the property.
o   The City of Mayfield Heights fought Shemo ‘tooth and nail’ pursuing multiple appeals and multiple legal maneuvers over more than a decade.
o   In Oakwood, the City of South Euclid has cooperated with and even encouraged the developer. While litigation over the zoning ordinance could involve some costs to the City, there is nothing to suggest that South Euclid would pursue anything close to a Shemo-like strategy.

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