BP Oil Co. v. Dayton Bd. of Zoning Appeals, CA

Citation109 Ohio App.3d 423,672 N.E.2d 256
Decision Date16 February 1996
Docket NumberNo. CA,CA
PartiesBP OIL COMPANY et al., Appellants, v. CITY OF DAYTON BOARD OF ZONING APPEALS et al., Appellees. * 15366.
CourtUnited States Court of Appeals (Ohio)

Strauss & Troy, Leon L. Wolf and Charles C. Ashdown, Cincinnati, for appellants.

J. Anthony Sawyer, Dayton Director of Law, and Steven R. Milby, Senior City Attorney, for appellees.

FREDERICK N. YOUNG, Judge.

This is an appeal from a decision issued by the Dayton Board of Zoning Appeals ("BZA") granting BP Oil Company's conditional use permit. The land subject to the permit is a BP-owned automobile service station and convenience store, located at 500 Salem Avenue. This land is situated in a B-2 Community Business District.

I

In August 1993, BP applied to the zoning administrator for an occupancy certificate to add to and remodel the service station and convenience store. 1 On August 19, 1993, the zoning administrator issued a formal decision, denying the certificate on the following grounds:

" § 150.183(E) The subject use, automobile service station, is a conditional use in the B-2 Zoning District.

§ 150.11 The proposed alteration requires an approval from the Board of Zoning Appeals."

Thereafter, BP applied to the BZA for a conditional use permit to expand and remodel the service station and convenience store. On October 26, 1993, the BZA conducted its first hearing on BP's conditional use application. At the hearing, various witnesses testified that the BP station had problems with loitering, security, and other breaches of the peace. There was also evidence presented that, as far back as 1991, BP had met with the police department, community group representatives, and the zoning planning development staff to discuss problems of loitering and individuals engaging in disorderly conduct on the BP premises. At the close of the meeting, the BZA determined that the matter needed further attention and scheduled another meeting on November 16, 1993.

At the November 16th meeting, several witnesses again expressed their concern about crime and loitering surrounding the BP station. Furthermore, some witnesses thought that selling food from the station would encourage such activities. Based upon the testimony and evidence presented at the two hearings, the BZA issued a finding of fact in which it stated:

"This site has been used as a service station for many years. The design of the site and area itself has attracted negative elements in the past, such as loitering in parking lot, and general disorderly behavior. The new use should, with minimal conditions, be in harmony with orderly development of the district."

The BZA concluded that the proposed use would comply with the conditional use regulations set out in Section 150.457 and could be approved if it were subject to several conditions, including the conditions that the restrooms would be available to the public during business hours (6:00 a.m. to 10:00 p.m.) and that the retail sales of nonpetroleum products would be prohibited between the hours of 10:00 p.m. and 6:00 a.m. The matter was then continued until December 7, 1993, when the BZA held another public hearing on the matter.

Immediately before the BZA's final proceedings, it received letters from the Northwest Office of Neighborhood Affairs, Dayton View Historic Association, and University Row Neighborhood Association expressing their concern about the sale of nonpetroleum and nontobacco products after 10:00 p.m. These concerns were echoed by witnesses at the December 7 meeting. In response to those concerns, BP offered to close off the entrance to the store between 10:00 p.m. and 6:00 a.m. and sell grocery items only through the pass-through window to minimize any loitering stemming from the sale of food products. BP argued that that compromise should be adopted because a complete cessation of nonpetroleum sales would be too harsh and would injure the station financially.

Based upon information from the staff report, testimony, and correspondence, the BZA issued its final decision and order containing some compromises in favor of BP. In particular, the BZA extended normal business hours of the convenience store to 11:00 p.m. and allowed tobacco products along with petroleum products to be sold after 11:00 p.m. The BZA also required that the restrooms be available to the public during business hours, which were defined as 6:00 a.m. to 11:00 p.m.

BP appealed the BZA's decision to the Montgomery County Common Pleas Court. On May 20, 1994, BP filed a motion for leave to present additional evidence. On June 13, 1994, the trial court summarily overruled BP's motion. After hearing the merits of the claim, the trial court found that the BZA's decision was not arbitrary or capricious and that it was supported by substantial, reliable, and probative evidence on the record as a whole. This timely appeal followed.

II Standard of Review

Before we address the substance of BP's arguments, we must first consider our standard of review. R.C. 2506.04 sets forth the parameters of the common pleas court's reviewing function. The statute provides "The court may find that the order, adjudication, or decision [of an administrative agency] is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the record as a whole. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication, or decision, or remand the cause to the officer or body appealed from within instructions to enter an order, adjudication, or decision consistent with the findings or opinion of the court. * * * "

In an appeal of a zoning determination, the common pleas court must act under a presumption that the determination of the BZA is valid. C. Miller Chevrolet, Inc. v. Willoughby Hills (1974), 38 Ohio St.2d 298, 67 O.O.2d 358, 313 N.E.2d 400, at paragraph two of the syllabus. The burden of overcoming this presumption and showing invalidity rests upon the party opposing the determination. Id. The test to be applied by the common pleas court is not whether any legal justification exists, but whether the ordinance bears a reasonable relationship to the public health, safety, welfare, or morals. Cincinnati Bell, Inc. v. Glendale (1975), 42 Ohio St.2d 368, 370, 71 O.O.2d 331, 332-333, 328 N.E.2d 808, 809.

The decision of the common pleas court is appealable to the courts of appeal on questions of law. R.C. 2506.04. However, an appeals court's standard of review is more limited than that of the common pleas court. Rotellini v. W. Carrollton Bd. of Zoning Appeals (1989), 64 Ohio App.3d 17, 20, 580 N.E.2d 500, 502. Our standard of review is whether, as a matter of law, the decision of the common pleas court is not supported by a preponderance of reliable, probative, and substantial evidence. Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, 12 OBR 26, 29-30, 465 N.E.2d 848, 851-852. This standard, on its face, seems to be the same standard used in the trial court, but as the court in Kisil, supra, elaborated:

"This statute [R.C. 2506.04] grants a more limited power to the court of appeals to review the judgment of the common pleas court only on 'questions of law,' which does not include the same extensive power to weigh 'the preponderance of substantial reliable and probative evidence,' as is granted to the common pleas court. Within the ambit of 'questions of law' for appellate court review would be abuse of discretion by the common pleas court." (Emphasis added.) Id.

With this standard of review in mind, we will begin addressing BP's assignments of error.

III Assignments of Error

BP presents three assignments of error for this court to review. In its first assignment of error, BP asserts:

"The trial court erred by affirming the BZA's imposition of conditions beyond the scope of the BZA's authority."

BP argues that the BZA exceeded its authority because the conditions were placed upon a permitted use, the sale of convenience food items. Furthermore, BP argues that the hour restrictions impermissibly constitute a prohibition by the BZA on the sale of beer during the restricted hours. Finally, BP claims that the BZA overreached its authority because it placed a condition upon the availability of the restrooms, the regulation of which is within the exclusive province of the Department of Buildings.

A Convenience Sales

Both parties in the present case agree that convenience food sales are a permitted use in the B-2 District under the Dayton Revised General Ordinances. The ordinance does not specifically state that convenience food sales are a permitted use, but it does provide that the following retail sales are permissible: candy, confectionery, cigars, cigarettes, tobacco, dairy products, grocery, meat, fish, magazines, pet supplies, newspapers, and drugs. Conversely, gas stations are explicitly listed in Section 150.183 as a conditional use in the B-2 District. Section 150.183 provides that a gas station may be allowed "only after having complied with the requirements and approval procedures specified in §§ 150.453 to 150.460, inclusive of this chapter."

The city claims that the BZA had the authority to place the conditions on the sale of food pursuant to Section 150.458 of those conditional use compliance requirements. Section 150.458 provides:

"In granting a conditional use, the Board may impose such conditions, safeguards, and restrictions upon the premises benefitted by the conditional use as may be necessary to comply with the standards set out in § 150.457, and to reduce or minimize any potentially injurious effect of such conditional uses upon other property in the neighborhood and to carry out the general purpose and intent of this chapter." (Emphasis added.)

The city asserts that the broad language "upon the premises" used in that section gives the BZA...

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