## Facts

- William Karches and Emil Flerlage owned riverfront properties in Cincinnati originally zoned “Business B,” allowing commercial uses.
- In 1963, the City reclassified both parcels to “RF-1 Riverfront” as part of riverfront planning.
- In the early 1970s, Flerlage attempted to operate a marina but was unable to do so because of zoning and regulatory barriers.
- In 1977, Karches sought rezoning from RF-1 to RF-2 to operate an aggregate storage terminal; the City denied the request.
- The owners pursued discussions and efforts to obtain more permissive zoning, without success.
- In 1980, the owners sued, alleging RF-1 was unconstitutional as applied and amounted to a taking requiring compensation.
- The City represented that a planned 1983 amendment would address problems with RF-1; the owners dismissed their first action in reliance on that representation.
- The City amended RF-1 in 1983; the owners contended the amended ordinance still unreasonably restricted development and filed a second action seeking declaratory and injunctive relief.

## Issues

1. Whether an as-applied constitutional challenge to a zoning ordinance in a declaratory judgment action is ripe absent a denied building permit or new, specific development proposal.
2. Whether property owners may challenge the constitutionality of a zoning ordinance as applied through declaratory judgment, rather than being limited to an administrative appeal under Ohio Rev. Code Chapter 2506.
3. Whether the RF-1 zoning classification, as applied to the owners’ properties, was arbitrary, unreasonable, or confiscatory in violation of constitutional protections.

## Decision

- The Supreme Court of Ohio reversed the court of appeals, holding the owners’ declaratory judgment action was ripe.
- The court held that a denied permit or denial of a specific proposed use is not required if the City has otherwise taken a final, definitive position on the ordinance’s application to the property.
- The court held that constitutionality of a zoning ordinance may be challenged either by administrative appeal under R.C. Chapter 2506 or by declaratory judgment under R.C. Chapter 2721, in addition to or as an alternative to one another.
- Reaching the merits after finding ripeness, the court reinstated the trial court’s determination that RF-1, as applied, was unconstitutional and upheld relief requiring the City to rezone the properties.

## Legal Principles

- A zoning ordinance’s constitutionality may be challenged via (1) administrative appeal under R.C. Chapter 2506 and/or (2) a declaratory judgment action under R.C. Chapter 2721.
- A declaratory judgment action requires an actual controversy, which in zoning disputes requires a final decision regarding how the regulation applies to the specific property.
- Finality for ripeness purposes does not mechanically require a denied building permit or a fresh application where the municipality’s course of conduct and prior decisions establish a final, definitive position on permissible use.
- As applied, zoning that is arbitrary, unreasonable, or confiscatory and not substantially related to public health, safety, or general welfare may be declared unconstitutional, with courts able to grant declaratory and injunctive relief, including rezoning orders.

## Conclusion

The Ohio Supreme Court held that the owners’ as-applied constitutional challenge to Cincinnati’s RF-1 riverfront zoning was ripe based on the City’s established position over time, confirmed declaratory judgment as an available vehicle to attack zoning constitutionality, and reinstated relief invalidating RF-1 as applied and requiring rezoning.


Karches v. Cincinnati, 38 Ohio St. 3d 12, 526 N.E.2d 1350 (Ohio 1988)