Brown v. City of Cleveland

Decision Date29 April 1981
Docket NumberNo. 80-789,80-789
Citation420 N.E.2d 103,66 Ohio St.2d 93,20 O.O.3d 88
Parties, 20 O.O.3d 88 BROWN, Appellant, v. CITY OF CLEVELAND et al., Appellees.
CourtOhio Supreme Court

Weiner, Orkin, Abbate & Suit Co., L. P. A., Louis H. Orkin, Beachwood, and Mitchell L. Alperin, Cleveland, for appellant.

Thomas E. Wagner, Director of Law, Robert McCarthy and John S. Polito, Cleveland, for appellees City of Cleveland and Board of Zoning Appeals.

PER CURIAM.

Appellant contends, in essence, that (1) his property is immune from governmental regulation because he is adding a permitted use to a non-conforming use; (2) the trial court committed reversible error by suppressing allegedly relevant, probative evidence; and (3) he has been unconstitutionally denied equal protection of the law since the city of Cleveland permits similarly-situated property owners to operate gasoline service stations and grocery stores at one site.

It is imperative to note, that in arriving at our decision today, we are guided by an overriding, fundamental principle of Ohio zoning law. Appellant, the party challenging the relevant provisions of the Cleveland Zoning Code, has had, at all stages of this litigation, the burden of demonstrating that portions of the zoning code are either facially unconstitutional or unconstitutionally applied to him. Hilton v. Toledo (1980), 62 Ohio St.2d 394, 405 N.E.2d 1047. See, generally, Willott v. Beachwood (1964), 175 Ohio St. 557, 197 N.E.2d 201. At this stage of Ohio jurisprudence, it would almost seem unnecessary to state that zoning ordinances which are enacted pursuant to a municipality's police powers are presumed valid until the contrary is clearly shown by the party attacking the ordinance. See State v. Renalist, Inc. (1978), 56 Ohio St.2d 276, 278-279, 383 N.E.2d 892. See, generally, Garcia v. Siffrin (1980), 63 Ohio St.2d 259, 407 N.E.2d 1369; Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St.2d 23, 309 N.E.2d 900; Village of Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303.

Appellant contends that his property is immune from further municipal regulation because he is adding a permitted use, a grocery store, to a non-conforming use, a gasoline service station. We find that the mere statement of such a proposition should be, and is, self-refuting. Under the unique facts of this case, where the owner of a non-conforming use diversifies his product line and expands his services, the non-conforming use can be regulated for the protection of the public health, safety and general welfare of the community. As we stated in Columbus v. Union Cemetery (1976), 45 Ohio St.2d 47, 49, 341 N.E.2d 298:

"Uses which do not conform to valid zoning legislation may be regulated, and even girded to the point that they wither and die. Akron v. Chapman (1953), 160 Ohio St. 382, 116 N.E.2d 197, paragraph one of the syllabus; Curtiss v. Cleveland (1959), 170 Ohio St. 127, 163 N.E.2d 682; Davis v. Miller (1955), 163 Ohio St. 91, 95-97, 126 N.E.2d 49, Taft, J. concurring."

See, also, State ex rel. Keener v. Serr (1976), 53 Ohio App.2d 143, 372 N.E.2d 360.

While it is evident, as appellant intimates, that Section 359.01(a) of the Cleveland Zoning Code permits a non-conforming use to be expanded through the addition of a conforming, permitted use, Section 359.01(a) sanctions such an addition " * * * only if the Board finds after public hearing that such substitution or other change is no more harmful or objectionable than the previous non-conforming use in floor and other space occupied, in volume of trade or production, in kind of goods sold or produced, in daily hours or other period of use, in the type or number of persons to occupy or to be attracted to the premises or in any other characteristic of the new use as compared with the previous use."

In the case sub judice, the commissioner of buildings, the board of zoning appeals, the trial court and the Court of Appeals each found that appellant's new venture required additional parking, which appellant failed to prove he could safely accommodate. The accessory off-street parking requirements of Section 349.04(f) of the Cleveland Zoning Code are rationally related to several safety hazards which the city may lawfully regulate pursuant to its police powers: protection of pedestrians and drivers, elimination of traffic congestion and reduction of air and noise pollution. See, generally, State ex rel. Assoc. Land & Investment Corp. v. Lyndhurst (1958), 168 Ohio St. 289, 154 N.E.2d 435; Annotation, 74 A.L.R.2d 418.

Thus, appellant's non-conforming use is not immune from compliance with the foregoing parking provisions of the zoning code. Appellant's immunity argument runs contrary to the prevailing law.

Furthermore, appellant asserts that the trial judge erred by not permitting appellant to introduce evidence which appellant claims is relevant. We have carefully examined the entire record in this case and find that the excluded evidence was logically and legally irrelevant.

To be relevant, evidence must tend to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. See Evid.R. 401. See, generally, Whiteman v. State (1928), 119 Ohio St. 285, 164 N.E.2d 51; Barnett v. State (1922), 104 Ohio St. 298, 135 N.E.2d 647. In the case at bar, the critical considerations were the size of the lot and building, the nature of the non-conforming use and the number of parking spaces that could be safely accommodated on the lot. None of the excluded evidence, which according to appellant's counsel would have shown that appellant had secured a vendor's license to sell food and cigarettes and that appellant had been certified to participate in the food stamp program by the United States Department of Agriculture, addresses the aforementioned disputed issues. Finally, as we will demonstrate, appellant failed to establish the proper foundation for the introduction of photographs of the purportedly "similar stations." Accordingly, we find that appellant, suffered no prejudice from the exclusion of the foregoing evidence.

Finally, appellant argues that he has been unconstitutionally denied equal protection of the law since the city permits similarly-situated property owners to operate gasoline service stations and grocery stores at a single site. As we indicated above, it is the appellant who has the burden of proof on this issue. In an attempt to meet this burden, appellant merely proffered eight photographs of what he claimed were four similarly-situated properties. Conspicuous by its absence from this proffer, however, was any foundation indicating the zoning district, size and parking potential of these purportedly similar sites. Having failed to establish such proper foundation, appellant has thus failed to prove, with adequate documentation, the existence of any equal protection violation. As an appellate court, we are limited by the record before us. While we acknowledge the need for a court, on occasion, to take judicial notice of undisputed facts (see Evid.R. 201; Morgan, Judicial Notice, 57 Harvard L.Rev. 269), we cannot engage in crystal-ball analysis as to the status of these other properties.

At this stage in the litigation, appellant's case has undergone extensive review. The commissioner of buildings, the board of zoning appeals, the trial court and a unanimous Court of Appeals have all denied appellant's application to operate his structure in the dual capacity of a gasoline service station and a grocery store, in order to protect the health, safety and general welfare of the people of the community. We find that such denial is supported by the preponderance of the substantial, reliable and probative evidence on the whole record. This is precisely the situation where public safety must prevail over private profit.

As Justice (later Chief Justice) O'Neill persuasively stated in Willott v. Beachwood, supra (175 Ohio St. 557), at 560, 197 N.E.2d 201:

"The determination of the question of whether regulations prescribed by a zoning ordinance have a real or substantial relation to the public health, safety, morals or general welfare is committed, in the first instance, to the judgment and discretion of the legislative body. Where such a judgment deals with the control of traffic, volume of traffic, burden of traffic, effect upon valuation of property, municipal revenue to be produced for the city, expense of the improvement, land use consistent with the general welfare and development of the community as a whole, or, in short, where the judgment is concerned with what is beneficial or detrimental to good community planning, it is in the first instance a legislative and not a judicial matter. The legislative, not the judicial, authority is charged with the duty of determining the wisdom of zoning regulations, and the judicial judgment is not to be substituted for the legislative judgment in any case in which the issue or matter is fairly debatable.

"Even though the court, on the facts presented, might decide otherwise than did council, so long as the matter is reasonably debatable, the court has no authority to interfere. The power of a municipality to establish zones, to classify property, to control traffic and to determine land-use policy is a legislative function which will not be interfered with by the courts unless such power is exercised in such an arbitrary, confiscatory or unreasonable manner as to be in violation of constitutional guaranties."

See, generally, Dudukovich v. Housing Authority (1979), 58 Ohio St.2d 202, 389 N.E.2d 1113.

For all the foregoing reasons, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

CELEBREZZE, C. J., and WILLIAM B. BROWN, SWEENEY, LOCHER and VICTOR, JJ., concur.

PAUL W. BROWN and CLIFFORD F. BROWN, JJ., dissent.

VICTOR, J., of the Ninth Appellate District, sitting for HOLMES, J.

PAUL...

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