[Cite as MK&K Realty, Inc. v. Worthington City Council, 2013-Ohio-5400.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

MK&K Realty, Inc., : 

 Appellant-Appellant, : 

v. : No. 13AP-375 

 (C.P.C. No. 12CV-12692) 

Worthington City Council, : 

 (REGULAR CALENDAR) 

 Appellee-Appellee. : 

 

D E C I S I O N 

Rendered on December 5, 2013 

 

Plank Law Firm, LPA, and David Watkins, for appellant. 

BakerHostetler, Daniel J. Guttman and Robert J. Tucker, for 

appellee. 

 

APPEAL from the Franklin County Court of Common Pleas 

TYACK, J. 

{¶ 1} MK&K Realty, Inc. ("MK&K") is appealing from the decision of the Franklin 

County Court of Common Pleas which in turn affirmed the decision of the Worthington 

City Council blocking MK&K from modifying plans for the development of two lots in 

Worthington, Ohio. MK&K assigns two errors for our consideration: 

ASSIGNMENT OF ERROR I: THE TRIAL COURT ERRED BY 

AFFIRMING THE DECISION OF CITY COUNCIL, WHEN 

THE DECISION ACTED AS AN UNCONSTITUTIONAL 

DEPRIVATION OF MK&K'S PROPERTY RIGHTS. 

ASSIGNMENT OF ERROR II: THE TRIAL COURT ERRED 

BY AFFIRMING THE DECISION OF CITY COUNCIL, WHEN 

THE CITY COUNCIL FAILED TO FOLLOW THE LAW AS 
No. 13AP-375 2 

SET FORTH IN THE CODIFIED ORDINANCES OF 

WORTHINGTON, OHIO. 

{¶ 2} In 2007, the Worthington City Council approved plans to allow CVS 

Pharmacy ("CVS") to build a new store and to erect two other buildings. CVS erected the 

building that was to be its new store, but never constructed the two other buildings. 

{¶ 3} MK&K reacquired the rights to erect the two additional buildings, but did 

not want to build them in the manner originally planned. Specifically, MK&K did not 

wish for the two new buildings to contain residential space on the upper floor. Instead, 

MK&K wished for the buildings to be used solely for commercial purposes. 

{¶ 4} MK&K's new plans for the buildings were submitted to the Worthington 

Architectural Review Board, which approved the plans with only minor modifications. 

{¶ 5} The next step for the plans was the Worthington Planning Commission, 

which submitted the plans to the Worthington City Council for approval. 

{¶ 6} The plans were submitted to the Worthington City Council, which refused to 

adopt a resolution granting the modifications. 

{¶ 7} MK&K then pursued an appeal under the authority of R.C. 2506.01. The 

Franklin County Court of Common Pleas affirmed the decision of the Worthington City 

Council. 

Standard of Review

{¶ 8} R.C. 2506.04 controls the scope of review for the court of common pleas. In 

such an appeal, the common pleas court considers the whole record, and determines 

whether the administrative order is unconstitutional, illegal, arbitrary, capricious, 

unreasonable or unsupported by the preponderance of substantial, reliable, and probative 

evidence. 

{¶ 9} This court's standard of review is more limited than that of the court of 

common pleas. We review the judgment of the common pleas court on questions of law. 

An abuse of discretion is within the ambit of questions of law within the meaning of 

R.C.2506.04. Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 148 

(2000). 

{¶ 10} On appeal to this court, MK&K contends that the decision of the 

Worthington City Council mandated that the property be put to a particular use, namely 
No. 13AP-375 3 

residential use on the second floors of the two buildings. MK&K claims that the decision 

constituted an unpermitted taking in violation of the constitutions of Ohio and the United 

States. MK&K argued that its plans for building were permitted and lawful as part of a 

C-2 District without the residential units. MK&K further argued that it would be 

economically unfeasible to construct the residential units, and therefore the City of 

Worthington deprived MK&K of all economically viable uses of the property. 

{¶ 11} The Supreme Court of Ohio has stated that those government actions that 

cause an owner to suffer a permanent physical invasion of property, and government 

regulations that completely deprive an owner of all economically beneficial uses of the 

property, are per se takings for Fifth Amendment purposes. State ex rel. Shelly 

Materials, Inc. v. Clark Cty Bd. of Commrs., 115 Ohio St.3d 337, 341, 2007-Ohio-5022, ¶ 

18, 20. In Shelly, Shelly Materials purchased a 306-acre tract of land to mine sand and 

gravel deposits below the surface. The property was zoned A-1 as an agricultural district. 

Resource and mineral extraction was an allowed conditional use in an A-1 Agricultural 

District provided that the county board of zoning appeals approved the application for a 

permit as a conditional use. Shelly had purchased the property with the knowledge that a 

conditional use permit was required to mine sand and gravel. An examination of the 

property as a whole showed that when the permit application was denied, not all 

economically beneficial use was lost, and therefore, no compensable taking occurred. 

{¶ 12} We are unable to see how Worthington City Council's decision to refuse to 

change the restrictions on the development violated MK&K's property rights. The flaw in 

MK&K's argument is that the restriction was there when MK&K reacquired the rights to 

develop the lots. The Worthington City Council was under no duty to change the 

requirements for the development of the lots to accommodate MK&K's ideas for what 

constituted a better development of the lots. 

{¶ 13} MK&K knew about the restrictions and the requirement for residential 

space in the new buildings. The "bundle of rights" that MK&K reacquired from CVS did 

not include the right to develop the lots without any residential housing. MK&K acquired 

the right to develop the parcel subject to the same restrictions that were on the property 

when CVS held the rights. Having failed to show that it had a legally cognizable interest in 

the property without residential housing, there could not have been a taking of that 
No. 13AP-375 4 

property interest. Worthington City Council did not engage in the taking of any property 

rights when it left the property right acquired by MK&K in place. The Worthington City 

Council could not deprive MK&K of a right it never had. MK&K was deprived of nothing 

except its hopes for a more profitable development of the land left vacant after the CVS 

store was built and occupied. 

{¶ 14} The first assignment of error is overruled. 

{¶ 15} In its second assignment of error, MK&K argues that the Worthington City 

Council did not abide by its own city ordinances when it did not allow MK&K to change 

the plans for the development of the vacant land. Specifically, MK&K argues that the 

Worthington City Council could not legally disapprove the decision of the Worthington 

Municipal Planning Commission. The Worthington City Council responds that the 

Worthington Planning Commission recommended approval to the Worthington City 

Council, but did not literally approve the resolution itself. The Worthington City Council 

also responded with a detailed discussion of the history of the development of the two 

lots, with the requirement for residential space being permanently fractured. 

{¶ 16} Section 1175.01(f)(1) of the code provides in pertinent part: 

After the final development plan has been approved by [City] 

Council, a request for the change, adjustment, or 

rearrangement of buildings, parking areas, entrances, heights, 

or yards shall be submitted to the Clerk of the Municipal 

Planning Commission for a determination as to whether a 

review of such change, adjustment, or rearrangement by the 

Planning Commission is required. If the proposed 

amendment otherwise complies with this Planning and 

Zoning Code, contains changes that do not conflict with the 

standards established by the final development plan, and 

maintains the character and integrity of the original 

development, then such an amendment may be approved by 

the Clerk of the Planning Commission without further review. 

MK&K sought to avail itself of the above written passage. 

{¶ 17} Section 1175.01(f)(3) goes on to state: 

The Planning Commission may disapprove such proposed 

amendment, but may recommend a further review by Council 

for any reason, in which case a report and recommendation 

shall be forwarded to Council. Council shall hold a public 

hearing on the proposed amendment, and, if thereafter, 
No. 13AP-375 5 

Council determines such proposed amendment substantially 

conforms to the standards established in the final 

development plan and complies with this Planning and 

Zoning Code, such amendment may be authorized by Council, 

by resolution or ordinance. 

(4) The Planning Commission may: 

A. Disapprove such proposed amendment with no further 

review by Council; or 

B. Approve such proposed amendment with no further review 

by Council if it determines that the amendment substantially 

conforms to the standards established by the final 

development plan and complies with this Planning and 

Zoning Code. 

{¶ 18} MK&K argues that under this provision the Planning Commission can do 

only one of three things: 1) disapprove the proposed amendment, but recommend further 

review by City Council; 2) disapprove the proposed amendment with no further review by 

City Council; or 3) approve the proposed amendment with no further review by Council. 

MK&K contends that the section of the code does not permit the Planning Commission to 

send an approved amendment to a final development plan to City Council to approve or 

disapprove. 

{¶ 19} MK&K argues that Worthington's code does not provide the Planning 

Commission with the option of approving a proposed amendment to a development plan 

and then sending it to City Council for review. However, MK&K never raised the 

argument before City Council and thus waived the argument. 

{¶ 20} Regardless of whether the issue was waived, we find no legal flaw in the 

process used in Worthington. The Worthington Metropolitan Planning Commission 

clearly knew that the modification requested by MK&K would generate significant public 

discussion and felt that the Worthington City Council was the preferable group to conduct 

the proceedings. The development coordinator for the City of Worthington stated at the 

hearing, all amendments to development plans can be approved either by the Planning 

Commission or go before Council. Typically, if it is a major development or a situation 

involving variances, it is sent to Council. 
No. 13AP-375 6 

{¶ 21} Here, the Planning Commission believed approval was warranted, but it 

stopped short of approving the plan, instead sending the proposal to City Council for a full 

hearing. In all likelihood, this was because of the long and contentious history of the plots 

and the expressed interest of the Council in having residential space downtown. 

{¶ 22} We find no restriction in the Worthington City Code to prevent the 

Metropolitan Planning Commission from deferring to the City Council. 

{¶ 23} The second assignment of error is overruled. 

{¶ 24} Both assignments of error having been overruled, the judgment of the 

Franklin County Court of Common Pleas is affirmed. 

Judgment affirmed. 

KLATT, P.J., and T. BRYANT, J., concurs. 

T. BRYANT, J., retired, of the Third Appellate District, 

assigned to active duty under the authority of Ohio 

Constitution, Article IV, Section 6(C). 

 

KLATT, P.J., concurring. 

{¶ 25} I agree with the majority decision. I write separately to emphasize two 

points: (1) there is no unconstitutional taking in this case because the Worthington City 

Council did not deprive MK&K of all economic value of the subject real property; and (2) 

MK&K's deletion of the residential units from the final development plan constituted a 

substantial change in that plan, which required Worthington City Council's approval. 

Therefore, there was no procedural error when the planning commission referred the 

issue to the Worthington City Council for consideration. For these specific reasons, I 

agree with the majority's decision to affirm the judgment of the trial court.