[Cite as Stephan v. State,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY

ROBERT L. STEPHAN, et al. : : Plaintiffs-Appellants : C.A. CASE NO. 2015-CA-15 : v. : T.C. NO. 13-85 : THE STATE OF OHIO, et al. : (Civil appeal from : Common Pleas Court) Defendants-Appellees : :

...........

OPINION

Rendered on the ___30th___ day of _____October_____, 2015.

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JOHN E. FULKER, Atty, Reg. No. 0003295, P. O. Box 8, 12 S. Cherry Street, Troy, Ohio 45373 Attorney for Plaintiffs-Appellants

MICHAEL E. GUTMANN, Atty. Reg. No. 0020511 and FRANK J. PATRIZIO, Atty. Reg. No. 0055468, 123 Market Street, P. O. Box 910, Piqua, Ohio 45356 Attorneys for Defendants-Appellees

.............

DONOVAN, J.

{¶ 1} This matter is before the Court on the May 27, 2015 Notice of Appeal of

Robert L. Stephan, David B. Corfman, Robert R. Bowman, Jr., Sheila K. Bowman, Elmer

Deitering, Greg. D. Lowery, Norman R. Seipel, Gaye E. Cavender, Scott R. Seipel, and -2-

Brian L. Seipel (collectively, “Plaintiffs”). Plaintiffs appeal from the April 28, 2015

“Decision and Judgment Entry Granting Motion to Dismiss Filed by the Defendant, State

of Ohio, Granting Defendants’ Motion for Summary Judgment, Denying Plaintiff’s Motion

for Summary Judgment and Dismissing Complaint.” Therein the trial court found that

multiple Defendants were entitled to the continued enforcement of a covenant restricting

the use of the parties’ real property, located in the Recker Heights Subdivision, to

residential use. We hereby affirm the judgment of the trial court.

{¶ 2} On February 6, 2013, Robert L. Stephan filed a Complaint for Declaratory

Judgment against the State of Ohio and multiple Defendants. Stephan alleged in his

“First Claim” that he owns the following real estate: “Situate in the City of Piqua, County

of Miami and State of Ohio, bounded and described as follows: Being Lots numbered

7569 and 7570 in said City of Piqua as reflected at Book 14, Page 70 of the Plat Records

of Miami County, Ohio.” Stephan asserted as follows:

Plaintiff Stephan’s properties were formerly designated Lots

numbered 5 and 6 of * * * [the] Recker Heights Subdivision, fronting on U.S.

Route 36 at the intersection of * * * Route 36 with Looney Road; the State

of Ohio has now taken title, for highway purposes, to a strip of ground off

the Southern end of * * * former Lot 5, and a portion of both the southern

and eastern sides of former Lot 6. Said lots have now been annexed to

the City of Piqua and the remaining parts of the same have been re-

numbered Inlots numbered 7569 and 7570 and re-zoned for commercial

usage. Said real estate lies almost directly adjacent to the entrance to the

northbound entrance ramp of Interstate 75. -3-

{¶ 3} Stephan sought relief from restrictive covenants contained in deeds to his

two lots that require the land to be used for residential purposes only. Stephan asserted

that “a vast number of changes of circumstances concerning the area surrounding

Plaintiff’s lots and all other lots within the subdivision have occurred.” The Complaint

provides that Stephan’s lots, due to the “intensive commercialism of the surrounding area,

have come to constitute a tiny semi-residential island in the middle of a virtual sea of

commercial enterprises.” Stephan asserted that “in view of the unforeseen changes in

the design and layout of the intersection of Piqua’s main traffic arteries, U.S. 36 and

Interstate 75, and the extensive change in the essential character of the surrounding area,

the restrictions against any usage other than residential within the Recker Subdivision

have become a glaring anachronism.” Stephan asserted that enforcement of the

restriction has “prevented the Plaintiff’s lots, and that of the other owners of lots within

said subdivision, from putting their respective properties to their highest and best uses,

and has thereby diminished, and continues to diminish the values of all such properties.”

{¶ 4} In his “Second Claim,” Stephan asserted that in a previous case in the Miami

County Court of Common Pleas, brought by him and others against their predecessors in

title, the trial court declared the residential use restrictions to be invalid and

unenforceable. A copy of Stephan v. Hartzell, Miami C.P. No. 80-1 (March 17, 1980), is

attached to the complaint. The decision provides as follows:

This matter having come on before the Court for hearing on the

Complaint and the Entry of Appearance and Consent of Defendant

Rosemary Stephan Driver; the Court finds that all parties have been duly

and properly served in accordance with the provisions of the Ohio Rules of -4-

Civil Procedure and are therefore properly before the Court. The Court

further finds that all parties defendant other than Rosemary Stephan Driver

are in default for appearance, motion, answer and other pleadings.

The Court therefore finds the issues in favor of the Plaintiffs and finds

the allegations contained in the Complaint to be true.

It is, therefore, accordingly declared, as the judgment of this Court,

that the covenants and restrictions referred to and set forth in Plaintiffs’

Complaint are invalid and unenforceable as to Plaintiffs’ respective tracts of

real estate, * * * and any cloud created by said covenants and restrictions

is hereby declared to be removed from Plaintiffs’ title to and respective

tracts of real estate; it is further ordered that the Defendants be, and they

are, hereby, forever enjoined from interfering, or attempting to interfere, with

the peaceful use and enjoyment of said premises by the Plaintiffs and their

respective heirs and assigns.

{¶ 5} Stephan asserted in his “Third Claim” that at the time the Defendants and

their predecessors in title “acquired their respective tracts of real estate within said

subdivision, there existed a commercial enterprise known and operated as The Hunt

Beverage Company on Lots No. 7 and 8 in said subdivision, which lots directly abut

Plaintiff’s property, formerly designated Lots 5 and 6 of said subdivision.” Stephan

asserted that the business was in operation from 1963 until 1985, and that it “was

thereafter sold to other persons who continued the business at the same location for an

additional period of time.” Stephan asserted that the former Hunt Beverage Company

was “utilized by a construction company for a short time and is presently being utilized by -5-

Ambassador TV & Electronics, a commercial enterprise specializing in the sale and repair

of used television sets. As of the date of filing this Complaint, arrangements are in

process for the establishment of both a beauty shop and a drive-thru coffee shop at the

same location.” According to Stephan, due to “the acquiescence of the Defendants

and/or their predecessors in title, with respect to the open and obvious violation of the

aforesaid restriction against any usage other than residential,” the Defendants “are

deemed to have waived any such violation and are presently estopped from insisting on

the continued viability of the restriction.”

{¶ 6} On February 19, 2013, the State of Ohio filed a motion to dismiss “for the

reason that the State of Ohio does not assert any interest it seeks to protect and will not

otherwise participate in the litigation herein.” On March 6, 2013, the “Answer of Certain

Defendants to Plaintiff’s Complaint for Declaratory Judgment” was filed by 32 Defendants,

and on March 12, 2013, another Defendant filed an Answer. Over the next couple of

months, the above named Plaintiffs filed notices of joinder as additional party plaintiffs.

On August 14, 2013, a “Stipulation of Counsel” was filed, signed by counsel for Plaintiffs

and Defendants.

{¶ 7} On November 20, 2013, Defendants’ Motion for Summary Judgment was

filed. The Defendants noted that this “case marks the fifth time that the issue of the validity

and enforceability of restrictive covenants in the deeds to lots in the Recker Heights

Subdivision [have] been brought before this court.” Defendants further noted that

Stephan “and/or his predecessors in title were parties to each of the four earlier cases.”

According to Defendants, the attached affidavits and exhibits show that “there have been

minimal changes in the Recker Heights Subdivision and none which have changed its -6-

status as a residential subdivision. The restrictive covenant as to residential use * * *

has been and remains to be of substantial benefit to Defendants.” Defendants asserted

that, as determined in the previous actions involving the covenants, they “are entitled to

enforce such restrictions against all other lot owners. Any changes outside of the

subdivision are consequently immaterial.” Defendants asserted that in the absence of a

genuine issue of material fact, they were entitled to summary judgment as a matter of

law.

{¶ 8} Attached to Defendants’ summary judgment motion, inter alia, are several

affidavits which provide that the affiants purchased their lots in the Recker Heights

Subdivison in agreement with the covenant that defines and preserves the Recker

Heights Subdivision as a residential neighborhood. They aver that four new homes have

been built in the subdivision since 1986. The affiants aver that neither their reasons for

residing in the subdivision, nor the residential nature of the subdivision, has changed.

{¶ 9} The affiants detail improvements that have been made to their properties as

follows: Juanita Anderson (roof replacements, window replacement, painting, door

replacement, spouting replacement, trees trimmed/removed and landscaping

improvements, sidewalk replacement, remodeled kitchen, new furnace); William and

Pamela Clark (2,200 square foot addition to their home with a large wooden deck);

Dorothy Douglas (general maintenance); Jodelle L. (Boltin) Fair (painting house and

garage, roof replacement, landscaping, new patio, basement waterproofing, remodeled

kitchen and bathroom, new carpet); Daniel E. Francis (new vinyl roof on attached garage,

replacement of five basement windows and partially renovated basement); Timothy and

Mary Beth Gicale (added central air, upgraded furnace to high efficiency model, added -7-

chimney liner, replaced septic tank, drilled new well, added sump pump and surface water

drainage system, replaced and upgraded hot water heater and water softener, replaced

30% of original water pipes and replaced roof, etc.); James Hannahs (carpeted basement

stairs and front porch, added storage shed for tools, leaf guards for gutters, new awnings

and landscaping, shelving in garage, etc.); Jerry and Helen Hicks (new roof on house and

over back porch, central air and furnace replaced, new kitchen counter, new windows and

wheel chair ramp, etc.); David and Kathleen Hirt (new two car garage, new roof, new

kitchen, new patio with roof, new windows, etc.); Frances Kay Jackson (new spouting,

new rubber roof on porch, new roof on house, updated kitchen, landscaping, new doors,

new bathroom flooring, etc.); Katie Pawlacyk (new furnace, new fuse panel, new energy

efficient windows, new family room, replaced asphalt driveway with concrete, new

landscaping, fenced backyard); Samuel and Anna Poplin (landscaping, new furnace and

air conditioner, new shed, interior remodeling, new doors, roof and deck); Mary Sargent

(new furnace, hot water heater, water softener, landscaping); Margaret A. Smith (added

second garage, new siding, new furnace and central air, new windows, new blacktop

driveway); Brian and Cindy Snapp (“purchased land and cleared land to build new home

in this quiet, secluded area”); Michael and Carol Thomas (front porch with new roof,

concrete driveway, “8 foot addition on both ends of house,” new doors and storm doors,

gutters, central air and furnace, etc.); Rick Voisard (enclosed patio, new concrete

driveway, new windows and doors, roof, etc.); Jerrold L. Voisinet (tiled kitchen floor,

remodeled master bedroom and bath, driveway sealed, removed 25 dump truck loads of

brush from property, etc.); and Dixie L. Wyan (enlarged home by adding 2-car garage

and 2 decks and outbuilding). Affiants further assert that they believe that in the absence -8-

of the restrictive covenant, they will lose the peaceful and quiet environment they currently

enjoy.

{¶ 10} Plaintiffs filed their motion for summary judgment three months later.

After noting that “Counsel for the Defendants has asserted that changes in the character

of the areas merely surrounding the subdivision are irrelevant,” Plaintiffs argued that “if

the situation were reversed, i.e., if the area immediately surrounding the Defendants’

subdivision consisted principally of strip-clubs, bordellos, bootleg joints, flop-houses and

junkyards,” the Defendants “would consider the nature and characteristics of the

surrounding neighborhood to be quite relevant to their personal sensitivities and to the

values of their own individual lots.”

{¶ 11} Plaintiffs asserted that their complaint was not barred by res judicata and

collateral estoppel because “a vast number of events which affect the restrictive

covenants have occurred * * *. For example, it is undisputed that some 74 new building

and zoning permits for new or relocated commercial uses in ‘the area roughly defined as

U.S. Rt. 36 at I-75 from the Mall to Looney Road’ have been issued.” Plaintiffs asserted

that “most significantly, in the spring of this year, Lot No. 7 and Lot No. 8 of the Recker

Heights Subdivision were annexed to the City of Piqua and, after public hearing,

unanimously zoned commercial to accommodate a Winan’s drive-thru coffee shop, a hair-

styling business and other storefronts intended for commercial usages.”

{¶ 12} Plaintiffs asserted that “as early as 1957, the voters of Springcreek

Township adopted a zoning plan under which a substantial portion, if not all, of the Recker

Heights lots could be used for business or commercial purposes; then, in 1986, the City

of Piqua annexed a portion of said subdivision, including” Stephan’s “lots, and zoned it -9-

as B-2 (Neighborhood Business).” Plaintiffs asserted that “in 2007, a Comprehensive

Plan Update (of Piqua’s 1970 Comprehensive Plan), prepared for, and in conjunction with

City of Piqua officials and staff, identified Plaintiffs’ lots as an area ‘targeted for

redevelopment’ for Piqua’s ‘Commercial/Industrial’ usage,” citing the Stipulation of

Counsel.

{¶ 13} Plaintiffs directed the court’s attention to the affidavit and attached report of

David Hartt, a “professional planner.” According to Hartt’s report, in “1946 private

development restrictions were imposed on Recker Heights Subdivision,” and the property

“is now in a commercial environment and it is no longer a reasonable regulatory policy to

confine this site to the residential only restrictions.” Hartt’s report provides that the “area

surrounding the Recker Heights Subdivision has changed dramatically since the

restrictions were first imposed with respect to land use and development; highway

construction; traffic; annexation; and public regulatory policy.” He noted that “most of the

Recker Subdivision was * * * rezoned in 1957 to permit commercial uses. This zoning

policy * * * recognizes the changing conditions and that commercial development of the

area, including the subject site, is now in the public interest.”

{¶ 14} Citing the Hunt Beverage Company, Plaintiffs asserted that for “more than

50 years the owners of lots within the Recker Heights Subdivision, and their predecessors

in title, have, individually and collectively, slept on their rights to enforce the ‘residential

usage only’ restriction against the successive owners of Lots 7 and 8 who have, for that

entire period of time, conducted open and obvious commercial activities” on those lots.

{¶ 15} Regarding the value of the restrictive covenant to the remaining lots in the

subdivision, Plaintiffs asserted that “value, like beauty, is in the eye of the beholder, and -10-

as will appear from the contending affidavits, * * * there are different criteria and/or metrics

by which to determine the value of the lots in the Recker Heights Subdivision.” Plaintiffs

asserted that the value of the lots “would have an exponentially greater market value

without the restriction.” Plaintiffs urged comparison of the value of the lots at the time

the restriction was created, when the area was rural in nature, to the present situation

and the effect of the surrounding commercial development. Plaintiffs directed the court’s

attention to Olberding v. Smith,

,

(1st Dist. 1934), and

Hayslett v. Shell Petroleum Corp., 38 Ohio App.164,

(8th Dist. 1930).

{¶ 16} Robert Stephan’s attached affidavit provides that he has resided on his

property his entire life, located on 1035 West U.S. Route 36, in Piqua, having “acquired

the same from his parents.” He averred that “when he was a young boy, the Recker

Heights area was in the early stages of development as a residential plat and the

surrounding area was predominantly agrarian in nature; Route 36 was a two-lane country

road and I-75 did not exist and could not have possibly been foreseen.” Stephan asserts

that “during the period of his parents’ ownership, the State of Ohio took title, for highway

purposes, to a strip of ground off the southern end of former lot 5, and a portion off both

the southern and eastern sides of lot 6.” Stephan asserts that as a result, “he no longer

has direct access to U.S. Route 36 and said real estate has been ‘fenced off’ from, and

no longer ‘fronts’ on, said road. His sole means of ingress and egress to and from his

lots is via an easement to Looney Road created by the State.” Stephan asserts that his

lots are “almost directly adjacent to the northbound entrance ramp to Interstate 75 from

U.S. Route 36.”

{¶ 17} Stephan asserted that as part of a “ ‘beautification project,’ ” fencing from -11-

the State right-of-way has been removed, and the City of Piqua “is in the process of

installing a series of tall, prominent and bright lights along said right-of-way.” According

to Stephan, as a result of the removal of the fencing, “his property has been continuously

littered with paper trash blown in from the Mall area directly across Looney [R]oad, as

well as trash of all kinds from passersby. In addition, both pedestrian and biker traffic

now routinely traverse the corner of his property as a shortcut from Looney Road to U.S.

Route 36, leaving ruts in the ground and trash items throughout the area.” Stephan

averred that vehicular traffic, with nighttime headlights at the intersection of Route 36 and

Looney Road, “is intense” and “has become an impediment to his quiet enjoyment of his

residence.” Finally, Stephan averred that surface water run-off “has caused occasional

flooding of his property and has impeded his ability to properly maintain his lawn areas.”

{¶ 18} The attached affidavit of Robert and Sheila Bowman provides that they

reside at 8060 Looney Road, on .78 of an acre between Stephan’s property “and that

owned by Robin and Julie Alexander (the property formerly utilized by the Hunt Beverage

Plant and currently utilized as a Winans Fine Chocolates & Coffee drive-thru coffee shop

and beauty salon as two of a potential four spaces).” The Bowmans asserted that

despite maintaining their home, “the same has diminished in value by reason of the

intensive commercialization of the neighborhood.” The Bowmans aver that light from

“four 4000-watt fixtures” located at Winans shines directly into their bedroom and

bathroom windows, and that the drive-thru customers “constantly drive across their

adjacent circular driveway.” They averred that their “back-porch has become virtually

unusable because of the 4000-watt lights and the customer overflow from the coffee

drive-thru and the beauty shop.” The Bowmans aver that commercial “traffic from the -12-

huge shopping Mall, located across Looney Road exits the Mall area directly opposite

their residence and the headlights of exiting shoppers shine directly into their living room

and front door area.” The Bowmans aver that the restrictive covenant is of no value to

them or “the other lot owners within their neighborhood, especially those which front on

Looney Road or the East side of Woodlawn Drive.”

{¶ 19} Greg D. Lowery’s affidavit provides that he owns a lot in the Recker

Heights Subdivision located at 8200 Looney Road, “just 3 lots North of the old Hunt

Beverage Company Building.” Lowery avers that he initially intended to use the lot for

occasional residential purposes, and that he “has since deemed the same to be

unsuitable for that purpose and currently utilizes the property as a rental.” He avers that

the residential covenant is no longer of value to lot owners in the subdivision.

{¶ 20} David B. Corfman avers that he resides at 8245 Woodlawn Drive, Piqua,

and that he owns “Lot Numbered 22 and the West half of Lot Numbered 21 in the Recker

Heights Subdivision, which property is located at the Southeast corner of the intersection

of Woodlawn Drive and Schulz Drive.” According to Corfman, “during his occupancy of

said property, and upon the occurrence of rainstorm activity, his basement has been

repeatedly flooded by storm waters backing up through his basement drain at a rate far

above that which his sump pump could evacuate,” costing him in excess of $10,000.00.

Corfman avers that he “has reason to believe that excessive storm waters flowing from

the Mall areas across Looney [R]oad through an inadequate drainage tile have been

forced upstream into his own drainage system.” Corfman avers that as a result of the

flooding, he “has had serious outcroppings of mold throughout his residence.” He avers

that the restrictive covenant is of no value to him “or the other lots and owners within his -13-

immediate neighborhood, all of which have had similar problems with surface and flood

waters and mold.”

{¶ 21} Scott and Norman Seipel and Gaye Cavender aver that they, along with

their brother Brian, own lots 32, 33 and 34 of the subdivision, “having inherited the same

from their mother, Faye Ellen Seipel, who died on May 8, 2013.” The four descendants of

Faye Seipel do not reside in the subdivision, according to the affidavit. Affiants aver that

their three lots “are situated at the southern end of the terminated Woodlawn Drive and

lie directly adjacent to the lots owned by Plaintiffs [Stephan, the Bowmans,] and the lots

owned by Defendants Robin and Julia Alexander (which has been utilized for business

purposes for some 60 years.).” According to Affiants, their mother, “had resisted prior

attempts to invalidate” the restrictive covenant, but “had recently expressed her opinion

that due to the changes in circumstances pertaining to the immediate neighborhood and

the intensive commercialization of the surrounding area, the restriction had become an

anachronism and was no longer a benefit to the residents” of the subdivision. The

affiants aver that they “concur with their mother’s expressed opinions.”

{¶ 22} Elmer Deitering avers that his residence is not in the subdivision, but that

he owns “an undivided one-half interest in Lot No. 7568 * * * which lot was initially part of

Lot 4” of the subdivision. Deitering avers that his lot is “located on the East side of

Woodlawn Drive, on the South end of said Woodlawn Drive, directly adjacent to the

southern terminus thereof, and adjacent to the lots” owned by Stephan. Deitering avers

that there “are no buildings or other improvements on said lot nor any intention to make

any improvements thereon because of the location of the lot in a portion of said

subdivision where the homes have been run-down, poorly maintained and [are] of little or -14-

no market value.” Deitering avers that the restrictive covenant was of no value “to me or

most of the other lot-owners in the immediate area surrounding my property.”

{¶ 23} Plaintiffs responded to Defendants’ motion for summary judgment on

December 2, 2013, and Defendants responded to Plaintiffs’ summary judgment motion

on January 8, 2014. Plaintiffs replied to Defendants’ response, and “Defendants’

supplemental Memorandum in Support of Motion for Summary Judgment” was filed.

Plaintiffs filed a response on February 27, 2014.

{¶ 24} Prior to addressing the merits of the summary judgment motions, the trial

court by way of background reviewed the prior litigation1 involving the Recker Heights

Subdivision as follows:

The pending action is the fifth in a series of legal proceedings over

the restrictive covenants sought to be invalidated by plaintiffs. In each

case, the plaintiff was Robert L. Stephan or a predecessor in interest to Mr.

Stephan. In Glassburn v. Fair, Case No. 38286, (1958), the court held the

restrictions were valid and were “operative upon all lots in the Subdivision.”

In Glassburn v. Fair, Case No. 42056, (1965), the court again upheld the

validity of the restrictive covenants and found them binding upon the lots

owned by the plaintiffs and their successors in interest. The court also

found the covenants enforceable by all lot owners in the subdivision. In an

appeal by the plaintiff, the Court of Appeals held that the issue regarding

the existence of a uniform plan “was resolved in the former suit and cannot

1 We note that copies of the prior decisions cited by the trial court are attached to Defendants’ Motion for Summary Judgment. -15-

properly be raised again in the present action.”

{¶ 25} The trial court noted the following analysis from this Court’s prior decision

on the issue of whether the character of the land in the area of the subdivision has

changed to such a degree as to render the covenants unenforceable:

In this regard, the record reflects substantial evidence that there has

been a gradual development of the general area for business use. The

evidence also discloses that the installation of four-lane highways near the

lots owned by the plaintiff, particularly Lot No. 3, has reduced their value for

residential use. However, the bulk of the lots contained in the subdivision

continue to be suitable for and devoted to residential purposes, and there

appears to be little doubt that the general plan of the original grantors was

that all the lot owners were to be beneficiaries of the restrictions. See

Berger v. Van Sweringen Co. (1966),

,

.

Ordinarily, where a covenant is still of considerable value to the other

lot owners, relief from such a restriction is not available. [Brown v. Huber]

(1909), 80 Ohio St.183,

; [Winfrey v. Marks] (1968),

,

; [Romig v. Modest] (1956),

,

. * * *

Glassburn v. Fair,

,

(2d Dist. 1970).

{¶ 26} The trial court continued as follows:

Robert Stephan, et al v. Patricia Hartzel, et al, Case No. 80-1, (1980),

was an action in which plaintiffs were the owners of lots 5 and 6 in the

subdivision and the defendants were “. . . all the prior grantors, mesne -16-

conveyancers, as well as their spouses, devisees at law, and next of kin,

with regard only to Lots No. 5 & 6. None of the owners of the lots within

the Subdivision as of the filing of this action in 1980 were named as

defendants in this suit.” [quoting the Stipulation of Counsel]. Service was

by publication and the court entered a default judgment declaring the

restrictive covenants to be invalid and unenforceable.

Robert D. Stephan, et al v. Phyllis J. Steiner, et al, Case No. 86-152

(1986) was a declaratory judgment action similar to the 1980 case, except

that all property owners in the subdivision were named as defendants (as

was the case in prior Glassburn cases in 1958 and 1965). The defendants

moved for summary judgment in the 1986 case, asserting that, despite the

substantial commercial development around the subdivision since its initial

platting in 1952, the residential character within the subdivision had

remained unchanged. The defendants also asserted that the changes

outside of the subdivision had no relevance to the continuing validity and

enforceability of the restrictive covenants. [citing the Stipulation of Counsel].

In his decision in the 1986 case, Judge Kistler noted that when

plaintiffs and defendants had purchased their parcels of real estate, there

was a commercial enterprise then known as Hunt Beverage which operated

within the subdivision on its eastern border on Looney Road. The parties

were aware of its existence when they purchased their property. Judge

Kistler also found that the commercial development which occurred in the

vicinity of the subdivision could not have been contemplated by the original -17-

grantors, and that the lot owners acquired their property with knowledge of

and in reliance upon the restrictive covenants. In upholding the validity and

enforceability of the restrictive covenants, the court held that there had not

been such a change in the character of the subdivision as to make it no

longer suitable for residential use or to defeat the original purpose of the

restrictive covenants.

Judge Kistler also ruled that the issue as to a general plan of

development is res judicata, and that plaintiffs could prevail only if they

could show that because of changed conditions the restrictions had become

generally valueless to the lot owners. * * *

{¶ 27} The trial court noted that Judge Kistler made the following conclusions of

law in the 1986 case:

• Where a covenant or restriction is still of substantial value to the

dominant lots notwithstanding the changed condition of the neighborhood

in which the lot is situated, a court of equity will restrain its violation.

• It is not sufficient that plaintiffs establish that their properties would have

a greater value or could be used more extensively if the burden of the

restrictions were removed, or that plaintiffs establish that said properties

have a diminished value for residential purposes because of the restrictions.

• The crucial finding is the value of the restrictions to the other lot owners

in the subdivision. In order for the plaintiffs to prevail, they must show by

clear and convincing evidence that there has been substantial change in

the neighborhood to such an extent that the restrictive covenants have lost -18-

their value to the other lot owners.

• The restrictive covenants continue to be of substantial value to the lot

owners in maintaining the residential character of the subdivision and all

owners of lots within the subdivision were entitled to enforce the covenants.

[citing Stipulation of Counsel].

{¶ 28} In addressing Plaintiffs’ “First Claim,” the court noted that “Ohio courts

consistently have upheld that a court of equity will not restrain the enforcement of a

restrictive covenant were the covenant is still of substantial value.” The court noted that

as “the persons asserting the invalidity of the restrictive covenant, plaintiffs bear the

burden of setting forth facts which could demonstrate by clear and convincing evidence

that the covenants have ‘lost their value’ to the other lot owners.” The court noted that

“the passage of a zoning ordinance has no effect on existing restrictions confining land to

residential use,” and that where “there has been no actual change in the residential

character of the lots subject to a valid restrictive covenant, a zoning change allowing

commercial uses does not nullify a covenant permitting only residential uses.”

{¶ 29} The following stipulation was significant to the court: “ ‘[m]ost, but not all,

of the foregoing changes have occurred prior to this Court’s Decisions and Orders in

previous cases filed by the Plaintiff or by his predecessors in title.’ ” The court noted,

“[m]ore significantly, the plaintiffs do not point to any changes or effects within the

subdivision which result from the post 1987 changes in the surrounding commercial

environment.” The court noted the additional stipulation as follows: “ ‘Also, the

subdivision itself remains residential and has not changed in character since the

prior decisions establishing and upholding the restrictive covenants for the subdivision.’ ” -19-

{¶ 30} The court found that “Defendants have also supported their motion for

summary judgment with affidavits that demonstrate that the residential nature of the

subdivision has not changed since the prior court decision. It is undisputed that, since

the prior hearing, four new homes have been built in the subdivision and that many of the

residents have made improvements to their homes.”

{¶ 31} The court noted that, while the Plaintiffs argued that the restrictive covenant

“cannot conceivably be of any substantial value to the defendants,” the cases upon which

plaintiffs relied, namely Olberding v. Smith, and Hayslett v. Shell Petroleum Corp., did not

involve restrictive covenants “which were part of a uniform plan for the development of a

subdivision, a fact which limits their applicability to the determination of the value of the

restrictions in the case at bar.” The court noted that Plaintiffs did not provide “any

evidence which demonstrates that the restrictive covenants have ‘no substantial value’ or

are ‘valueless’ to the other lot owners.”

{¶ 32} In addressing Plaintiffs’ “Second Claim,” the court noted that in Stephan v.

Hartzell, Case No. 80-1, Robert Stephan “obtained declaratory relief by default against

his predecessors in title. The case did not involve any of the defendants herein or any

of their predecessors in interest. The defendants assert, and the plaintiffs do not dispute,

that Case No. 80-1 does not invalidate the restrictive covenants or their enforceability by

the defendants.” The court noted that Stephan v. Hartzell, Case No. 80-1, further does

not “disturb the prior rulings which found the covenants to be part of a uniform plan for a

subdivision.”

{¶ 33} In addressing the plaintiffs’ “Third Claim,” the court noted that the existence

of the Hunt Beverage Company, “on lots facing Looney Road on the eastern edge of the -20-

Subdivision,” was addressed in Stephan v. Steiner. The court noted as follows:

Although the Hunt Beverage Company has ceased to exist, Lots 7

and 8 have been continuously used for commercial purposes. Current and

anticipated uses for the lots include a beauty shop and a drive-through

coffee shop. The plaintiffs do not assert in the complaint or the motion for

summary judgment, that the post 1987 changes in the uses of Lots 7 and 8

have had any effect on the residential character of the subdivision or of the

value of the restrictions to the lot owners in the subdivision.

In the motion for summary judgment and in the ensuing reply filed by

plaintiffs, it is argued that the continued existence of a commercial

enterprise on lots 7 and 8 in the subdivision constitutes “a waiver and

acquiescence” of the right of the defendants to enforce the restrictive

covenants. The plaintiffs cite Santora v. Schalabba, [8th Dist. Cuyahoga

No. 80291,

], which acknowledges that a restrictive

covenant can become unenforceable when there has been a waiver or

abandonment of the restrictions. In Santora, the court refused to uphold a

restrictive covenant which prohibited the erection of fences on the

residential lots in the subdivision where twenty percent of the homes in the

subdivision had constructed fences. The court found that a waiver of the

restriction occurred because the restriction had become valueless to the

property owners.

Plaintiffs also cite Romig v. Modest, [

,

(2d Dist. 1956)], which is also cited by the Santora court. In Romig, -21-

the court was also faced with a restriction concerning fences in a

neighborhood. The court framed the issue in these terms: “Did erection

of the fences of various descriptions on at least 14 lots out of a total of 53

lots on the plat constitute a waiver or an abandonment of the restriction?”

The court then analyzed the standard to be applied to answer the question:

The test applied is whether the character of the neighborhood has

been changed by reason of the failure to object to previous violations.

Applying the test to the facts in the instant case, we are required to

determine whether the erection of the fences of various kinds changed the

character of the neighborhood. (Emphasis added).

{¶ 34} The trial court noted that this Court “found that the erection of a few side

line fences did not render the enforcement of the restriction of no substantial value to the

property owners,” and that “ ‘[w]here such restriction is still of substantial value to the

dominant estate, the plaintiffs herein, a court of equity will restrain its violation.’ ” The court

noted that Plaintiffs failed to address the test set forth in the cases they cited, namely

“whether the character of the neighborhood has been changed by the failure to object to

the commercial use of lots 7 and 8.” The court found that the stipulation regarding the

unchanged character of the subdivision “demonstrates that, since the prior court rulings,

the neighborhood has retained its residential character.”

{¶ 35} The trial court concluded that the Defendants rely upon the covenants to

maintain the residential character of the subdivision, and that with the exception of the

commercial development on Lots 7 and 8, there has been no further commercial

development in the subdivision. The court noted that many homeowners improved their -22-

residences, and that four new homes were built. The court found that there “has not

been such a change in the character in the subdivision as to no longer make it suitable

for residential use,” or to defeat the purpose of the covenants. The court found that the

Defendants did not waive their right to enforce the covenants, and that the covenants

“have been and continue to be of substantial value to the defendants and all of the lot

owners in the Recker Heights subdivision.”

{¶ 36} Appellants assert five assignments of error herein, the first two of which we

will consider together. They are as follows:

THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS’

MOTION FOR SUMMARY JUDGMENT IN THE ABSENCE OF ANY

EVIDENCE THAT THE DEFENDANTS HAVE CONTINUED TO RELY

UPON THE RESTRICTIVE COVENANTS TO INSURE THAT THE

SUBDIVISION WOULD REMAIN RESIDENTIAL IN CHARACTER.

And,

THE TRIAL COURT ERRED IN FINDING THAT THE RESTRICTIVE

COVENANTS HAVE BEEN AND CONTINUE TO BE OF SUBSTANTIAL

VALUE TO THE DEFENDANTS AND ALL OF THE LOT OWNERS IN THE

RECKER HEIGHTS SUBDIVISION.

{¶ 37} Plaintiffs again rely upon the opinion of David Hartt and assert that his

opinion is “dispositive of the issue.” Plaintiffs assert that “there are different criteria

and/or metrics by which to determine the value of the lots in the Recker Subdivision.”

They assert that the lots would have greater market value in the absence of the restriction, -23-

given the commercial development around the subdivision. According to Plaintiffs, the

lots were initially “rural and/or suburban in nature, with minimal traffic and surrounded by

undeveloped farm land; currently, they are subject to heavy traffic, noise, highway and

supermarket lighting around the clock, excessive surface run-off, and dire potentials

because of their limited access * * *.” Plaintiffs assert that several of the residences have

deteriorated and been abandoned. Plaintiffs assert that while Defendants argue that the

layout of the subdivision insulates them from noise and traffic, in fact it is the “devalued

lots” owned by Plaintiffs that shield the properties of the Defendants and “act as a

protective buffer to the residential value of their own properties.” Plaintiffs dispute that

the covenants are of substantial value to all of the lot owners in the subdivision. Plaintiffs

direct our attention to Olberding and Hayslett.

{¶ 38} Defendants respond that “some of the defendants in this case, and many of

their predecessors in title, have opposed the action of Plaintiff Stephan, and his

predecessors in title, in three separate lawsuits filed in 1958, in 1965, and in 1986, the

substance of which has been well documented in the motion and stipulations filed herein.”

Defendants assert that Plaintiffs “have not presented any evidence that the restrictive

[covenant] as to residential use is no longer of value to the defendants who have

submitted their affidavits, all of which expressly state that each lot owner strongly believes

that ‘if the restrictive covenants are not upheld, we will no longer have the peaceful and

quiet environment we now have.’ ”

{¶ 39} Regarding the opinion of David Hartt, Defendants assert that the trial court

“found that the passage of a zoning ordinance has no effect on existing restrictions

confining land to residential use,” and that Hartt “could not and did not explain why the -24-

restriction is of no value to the defendants, who are the dominant lot owners in this

matter.” Regarding Plaintiffs’ argument that “as it pertains to real estate, value, like

beauty, is in the eye of the beholder,” Defendants assert that such an assertion “is

certainly not a legal argument and the statement is controverted by the actual affidavits

signed by twenty-seven defendants, being the owners of twenty residential parcels in the

subdivision. The value of the residential restriction is real and tangible to those persons

and families residing in those homes.” Defendants direct our attention to Exhibit H of

their motion for summary judgment, which is an “aerial photograph of the subdivision as

obtained from the Miami County Engineer’s Tax Map Office, showing a residential

subdivision with limited access streets, single family homes, trees, and green space. * *

* The plat is devoid of signs of commercialization (except for the one parcel with the coffee

shop and salon).”

{¶ 40} In Reply, Plaintiffs assert it “cannot fail to appear that the central issue in

the case concerns the matter of the continuing value of the restriction to the other lot

owners within the plat. And that issue is undeniably a question of disputed fact.”

{¶ 41} As this Court has previously noted:

When reviewing a summary judgment, an appellate court conducts

a de novo review. Village of Grafton v. Ohio Edison Co.,

,

(1996). “De Novo review means that this court uses

the same standard that the trial court should have used, and we examine

the evidence to determine whether as a matter of law no genuine issues

exist for trial.” Harris v. Dayton Power & Light Co., 2d Dist. Montgomery No.

25636, 2013–Ohio–5234, ¶ 11 (quoting Brewer v. Cleveland City Schools -25-

Bd. [o]f Edn.,

,

(8th Dist. 1997)

(citing Dupler v. Mansfield Journal Co .,

,

(1980)). Therefore, the trial court's decision is not granted any deference by

the reviewing appellate court. Brown v. Scioto Cty. Bd. Of Commrs.,

,

(4th Dist. 1993).

Civ. R. 56 defines the standard to be applied when determining

whether a summary judgment should be granted. Todd Dev. Co., Inc. v.

Morgan,

,

(2008). Summary

judgment is proper when the trial court finds: “(1) that there is no genuine

issue as to any material fact; (2) that the moving party is entitled to judgment

as a matter of law; and (3) that reasonable minds can come to but one

conclusion, and that conclusion is adverse to the party against whom the

Motion for Summary Judgment is made, who is entitled to have the

evidence construed most strongly in his favor.” Fortune v. Fortune, 2d Dist.

Greene No. 90–CA–96,

, *1 (May 3, 1991) (quoting Harless

v. Willis Day Warehouse Co.,

,

(1978)).

The initial burden is on the moving party to show that there is no genuine

issue of material fact. Dresher v. Burt,

, 292–93,

(1996). Once a moving party satisfies its burden, the nonmoving

party may not rest upon the mere allegations or denials of the party's

pleadings. Dotson v. Freight Rite, Inc., 2d Dist. Montgomery No. 25495,

2013–Ohio–3272, ¶ 41 (citation omitted).

Cincinnati Ins. Co. v. Greenmont Mut. Hous. Corp., 2d Dist. Montgomery No. 25830, -26-

.

{¶ 42} Regarding Plaintiffs’ reliance upon Hartt’s opinion, as previously noted,

“the zoning of land for business has no effect on existing restrictions confining the use of

land to residential purposes, which restrictions arise from private deeds or private

agreements.” Willott v. Village of Beachwood,

,

(1964).

As this Court noted in Glassburn v. Fair,

,

(2d Dist.

1970), “where a covenant is still of considerable value to the other lot owners, relief from

such a restriction is not available. * * * .”

. “The fact that the

servient estate could be used more extensively if it were free of the burden, or would have

greater value, is not a basis for removing the burden.” Kokenge v. Whetstone, 60 Ohio

App.302,

(1st Dist. 1938).

{¶ 43} We note that of the affidavits submitted by Plaintiffs, only Stephan, the

Bowmans, and Corfman aver that they reside in the subdivision. Contrary to Plaintiffs’

assertion, Defendants submitted substantial evidence in the form of multiple detailed

affidavits. The affiants aver that in maintaining and improving their homes, they have

continued to rely upon the restrictive covenant to insure that the Recker Heights

Subdivision remains residential, and that the restrictive covenant is accordingly of

substantial value to them. Exhibit H to the Defendants’ summary judgment motion, the

aerial photograph of the subdivision, is consistent with the Defendants’ description of the

area as primarily residential, with green space and vegetation.

{¶ 44} Finally, we conclude that Plaintiff’s reliance upon Olberding and Hayslett is

misplaced, in that the facts in those cases are dissimilar to those herein. In Olberding,

the defendant sought to erect a building for business use on his lot, “the lot against which -27-

the original owner for a consideration placed a restriction against use for business

purpose.”

34 N.E.2d at 297. The plaintiff relied upon the restrictive covenant

prohibiting such use, and the First District determined that while the “locality involved here

originally was very thinly settled,” today “it is almost entirely devoted to business

purposes,” and the “changes have all occurred since making the original covenant. It is

obvious that the only ‘value’ remaining in the holder of the restrictive covenant is one of

duress, that is, to compel the payment of a consideration for its release.” Id., at 298. It

was significant to the court that “[t]his is not a case involving a general scheme of limitation

applicable to a subdivision * * *”, as is the matter herein. Id., at 297; Glassburn v. Fair,

(finding the Recker Heights Subdivision lots are part of a uniform

plan for the development of the subdivision, and “this issue was resolved in the former

suit and cannot properly be raised again in the present action. * * * It became res judicata.*

* *.”) In other words, the value to the Defendants herein is not “one of duress” but is one

to be protected.

{¶ 45} In Hayslett, the plaintiff claimed that the defendant had constructive notice

of a restriction limiting the use of his lot to single family residences only, and the Eighth

District determined as follows:

We hold that, because there was no general plan which affected all

property in the allotment alike, and because there were no restrictions

written in the recorded plat, and none in the deed to defendants, and

because they had no notice either actual or constructive of any restrictions

affecting the Euclid Avenue frontage of the Sheldon allotment, or of any

such plan which may have been in the mind of the original allotment owner, -28-

the alleged restrictions have no binding effect on the defendants.

. Like Oberding, Hayslett did not involve a general scheme

applicable to all property involved, and the defendants therein lacked notice of the

restriction; Hayslett does not support the Plaintiffs’ argument.

{¶ 46} Having construed the evidence in a light most favorable to Plaintiffs, we

conclude that the trial court did not err in granting Defendants’ motion for summary

judgment, since no genuine issue of material fact remains regarding the substantial value

of the restrictive covenant to Defendants. The first and second assignments of error are

overruled.

{¶ 47} Plaintiffs’ third assigned error is as follows:

THE TRIAL COURT ERRED IN FINDING THAT THERE HAS NOT

BEEN SUCH A CHANGE IN THE CHARACTER OF THE SUBDIVISON AS

TO MAKE IT NO LONGER SUITABLE FOR RESIDENTIAL USE.

{¶ 48} Plaintiffs assert that Defendants in their affidavits “have described their

respective area within the subdivision in glowing terms, i.e. secluded, private, peaceful

and quiet; removal of the restriction will not change their circumstances in the slightest;

they can simply remain in status quo.” Plaintiffs point to the affidavits attached to their

motion for summary judgment and assert that in contrast, there has been a “total erosion

of the values of their properties.” Plaintiffs assert as follows:

Counsel for Defendants have argued that none of the changes

wrought by the continuing commercialization of the area have occurred

within the subdivision itself. That argument ignores the fact that a portion of

the subdivision has been taken over for highway purposes, that access to -29-

the Subdivision via Woodlawn Drive has been terminated, that direct access

to State Route 36 has been foreclosed, that surface water runoff from the

East Mall directly across Looney Road has caused flooding of lots within

the subdivision, that intense lighting from the adjacent commercial areas

and from the city’s newly installed highway lights has blighted the homes in

the immediate area – together with the myriad other conditions described in

the affidavits of Plaintiff lot owners. All of such conditions and changes

exist within the subdivision.

{¶ 49} Regarding the termination of access to the subdivision via Woodlawn Drive

and the lack of direct access from the subdivision to U.S. 36, Defendants respond that

“those changes were made in the 1970s and were considered in the Stephan v. Steiner

case. Defendants respond that such changes to those streets have had beneficial

impact on the character of the subdivision, by limiting through traffic and eliminating some

of the excess noise that would otherwise occur.”

{¶ 50} In addition to the Defendants’ affidavits, we note the parties’ Stipulation

of Counsel that “for a period of at least sixty years, changes of circumstance concerning

the area surrounding Plaintiffs’ lots and all other lots contained within the subdivision have

occurred.” As Defendants assert, in Stephan v. Steiner, the trial court made the following

findings of fact regarding the lack of access from the subdivision to U.S. 36 and the

termination of Woodlawn Drive within the subdivision:

***

8. Plaintiffs’ parcels of real property lie on the southern edge of

Recker Heights Subdivision along U.S. Route 36. -30-

9. Because of improvements made to U.S. Route 36 between 1969

and the present, access to Plaintiff’s property is from Looney Road, which

runs north and south on the eastern edge of Recker Heights Subdivision.

10. In order to have access to his home, Plaintiff, Robert D.

Stephan must maintain a driveway, provided by the State of Ohio, which

runs across the property of his mother, Margaret C. Stephan, to Looney

Road on the East.

11. Because of the improvements made to U.S. Route 36,

Woodlawn Drive, a public thoroughfare, running north and south through

the center of Recker Heights Subdivision was terminated at its southern

edge, thereby preventing through traffic from going through the subdivision.

{¶ 51} Based upon the foregoing, and construing the evidence in a light most

favorable to Plaintiffs, we conclude that the trial court did not err in finding that there has

not been such a change in the character of the subdivision as to make it no longer suitable

for residential use. Accordingly, in the absence of a genuine issue of material fact as to

the ongoing residential character of the subdivision, Plaintiffs’ third assigned error is

overruled.

{¶ 52} Plaintiffs’ fourth assignment of error is as follows:

THE TRIAL COURT ERRED IN FINDING THAT THE

DEFENDANTS HAVE NOT WAVIED THEIR RIGHT TO ENFORCE THE

RESTRICTIVE COVENANTS.

{¶ 53} Plaintiffs argue, quoting the Stipulation of Counsel, that on “February 19,

2013, just after the filing of the Complaint in this action, [Lots No. 7 and 8 were] annexed -31-

to the City of Piqua ‘in response to OEPA orders concerning septic system deficiencies.

. .’ and zoned ‘B General Business Zoning.’ ” Plaintiffs assert that “the owners of said

Lots 7 and 8 have re-habilitated and remodeled the same to accommodate a Winans Fine

Chocolates & Coffee drive thru coffee shop, a beauty salon and two other storefronts.”

According to Plaintiffs, no one “ever objected or even complained about those successive

– and continuing – commercial usages of those Lots 7 and 8, and while prior decisions of

this Court have alluded to that fact, there has been no discussion or question as to

whether the acquiescence by any or all of the other lot owners constitutes a waiver” of

the restrictive covenant or “an estoppel to resist the judicial invalidation of the ‘residential

use only’ restriction.” Plaintiffs assert that the restriction denies them, and especially

Stephan, whose lots abut Lots 7 and 8, equal protection, and that “fairness would seem

to mandate judicial intervention to vouchsafe to a plaintiff the same right to utilize his own

property in the same manner as his next-door-neighbor.” Plaintiffs assert that

Defendants have slept on their rights.

{¶ 54} Defendants respond that the parties “stipulated to the fact that when the

parties to this action, and/or their predecessors in title, acquired their respective lots, there

existed a commercial building know[n] and operated as the Hunt Beverage Company.”

Defendants note that the “existence of the building was acknowledged by the Stephan v.

Steiner court” and the court “held that such use did not represent such a change in the

neighborhood as to cause the covenants to have lost their value to Defendants.”

Defendants assert that the “renovation and aesthetic enhancements by the owners of the

new establishment [on Lots 7 and 8] are an improvement to the subdivision and do not

detract from the market value of defendants’ residences.” According to Defendants, the -32-

Plaintiffs bear the burden of showing waiver, and the “Plaintiffs only established that * * *

there was a continuous commercial use of those lots.” Pursuant to Santora and Romig,

Defendants assert that the Plaintiffs “do not provide any evidence of changes in the

character of the subdivision that resulted from the failure to enforce a violation of the

covenant as to those two lots.”

{¶ 55} “In Ohio, restrictive covenants become unenforceable when there has

been a waiver or abandonment of the restrictions. Romig v. Modest (1956),

,

.” Santora,

at ¶ 10. “The test applied is

whether the character of the neighborhood has been changed by reason of the failure to

object to previous violations.” Romig,

.

{¶ 56} As Defendants assert, the trial court addressed the commercial usage of

Lots 7 and 8 in Stephan v. Steiner in its factual findings. The court found that at “the time

when Plaintiffs and Defendants purchased their parcels of real estate, there existed in

Recker Heights Subdivision on Looney Road, a commercial enterprise known as Hunt

Beverage, and each of the Defendants who testified during the trial of this cause

purchased his or her property with full knowledge of its existence.”

{¶ 57} Construing the evidence in a light most favorable to Plaintiffs, and having

determined above that the restrictive covenant is still of value to the Defendants, and that

the residential character of the subdivision has not changed, we conclude that no genuine

issue of material fact remains, and that Defendants have not waived their right to enforce

the restrictive covenant. Plaintiffs’ fourth assigned error is overruled.

{¶ 58} Plaintiffs’ fifth assigned error is as follows:

THE TRIAL COURT’S REFUSAL TO DECLARE THE -33-

RESTRICTION INVALID EFFECTIVELY MAKES THE PLAINTIFFS

HOSTAGE TO THE DEFENDANTS.

{¶ 59} Plaintiffs again direct our attention to Olberding. Based upon the

foregoing, we conclude that Plaintiffs’ fifth assigned error lacks merit; there is still a

substantial value in the restriction to the Defendants, the residential character of the

subdivision is unchanged, and the Defendants did not waive their right to enforce the

covenant. In the absence of a genuine issue of material fact, Plaintiffs’ fifth assigned

error is overruled, and the judgment of the trial court is affirmed.

..........

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

John E. Fulker Michael E. Gutmann Frank J. Patrizio Hon. Christopher Gee