Franchise Developers, Inc. v. City of Cincinnati

• Decision Date: 08 April 1987
• Docket Number: No. 86-513,86-513
• Citation: 505 N.E.2d 966,30 Ohio St.3d 28,30 OBR 33
• Parties: , 30 O.B.R. 33 FRANCHISE DEVELOPERS, INC. et al., Appellees, v. CITY OF CINCINNATI et al., Appellants.
• Court: Ohio Supreme Court

Page 28

30 Ohio St.3d 28

505 N.E.2d 966, 30 O.B.R. 33

FRANCHISE DEVELOPERS, INC. et al., Appellees, v. CITY OF CINCINNATI et al., Appellants.

No. 86-513.

Supreme Court of Ohio.

April 8, 1987.

Syllabus by the Court

1. Although a case may be moot with respect to one of the litigants, this court may hear the appeal where there remains a debatable constitutional question to resolve, or where the matter appealed is one of great public or general interest.

2. There is a legitimate governmental interest in maintaining the aesthetics of the community and, as such, aesthetic considerations may be taken into account by the legislative body in enacting zoning legislation. (Hudson v. Albrecht, Inc. [1984], 9 Ohio St.3d 69, 9 OBR 273, 458 N.E.2d 852, approved and followed.)

Under Chapter 34 of the Cincinnati Municipal Code ("CMC"), the city council of defendant-appellant city of Cincinnati is empowered to create "environmental quality districts" ("EQD's") to " * * * assist the development of land and structures to be compatible with the environment and to protect the quality of the urban environment in those locations where the characteristics of the environment are of significant public value and are vulnerable to damage by development permitted under conventional zoning and building regulations." CMC Section 3400.2. Such additional zoning regulation in this context is more commonly known as "overlay" zoning.

The record indicates that during 1975, the defendant-appellant Clifton Town Meeting (a neighborhood group) successfully opposed the development of a "Burger Chef" restaurant on Ludlow Avenue in the city of Cincinnati on the basis that such a restaurant would have a destabilizing effect on the Ludlow Avenue business district.

On September 27, 1978, Cincinnati City Council adopted Ordinance No. 398-1978 which created an environmental quality-urban design zone district ("EQ-UD") over the existing zone district in the vicinity of Clifton and Ludlow Avenues in the city of Cincinnati. Incorporated within this ordinance was a Development Guidelines Report ("DGR") which provided in guideline III A 2:

"New businesses should contribute to the desired mix of commercial activities; franchise type establishments are acceptable provided that they are primarily pedestrian and not automobile oriented." (Emphasis added.)

In 1982, plaintiff-appellee Alvin Lipson purchased a theatre located at 320 Ludlow Avenue within the subject EQ-UD. In 1984, the theatre was leased to plaintiff-appellee Franchise Developers, Inc. ("FDI"). Early in 1984, FDI applied for a building permit to remodel the theatre for use as a "Wendy's" restaurant.

As part of the building permit application process, defendant-appellant James R. Krusling, Director of Buildings and Inspections for the city of Cincinnati, served as hearing examiner and conducted a hearing with respect to FDI's application. As a result of the hearing, Krusling recommended approval of the application over the strong objections raised by Clifton Town Meeting. Subsequently, Clifton Town Meeting appealed Krusling's decision to Cincinnati City Council pursuant to CMC Section 3405.3.

A hearing was held by city council with respect to FDI's application, whereupon council reversed Krusling's decision and directed that the permit application be denied. In so doing, the council adopted separate findings of fact and conclusions of law. ¹

The matter was then appealed by FDI and Lipson to the court of common pleas, where they sought a declaratory judgment against the city, Krusling and Clifton Town Meeting that Ordinance No. 398-1978 and its incorporated DGR are unconstitutional. Upon motions for summary judgment filed by all the parties, the trial court granted summary judgment in favor of the defendants, thereby affirming the decision of city council to deny the permit application.

Upon further appeal, the court of appeals reversed and reinstated the decision of the hearing examiner that granted the permit application. The appellate court narrowed the issue to whether DGR III A 2 is a constitutionally acceptable expression of governmental judgment upon which city council was entitled to rely, when it addressed the merits of FDI's application in light of the overlay zoning regulations contained in CMC Chapter 34. The court of appeals opined that the regulation of land use apart from the underlying provisions of the zoning code is clearly prohibited, and that any regulatory action taken in connection with the creation of an environmental quality district is confined to only the physical or aesthetic aspects of property development. The appellate court held that DGR III A 2, standing alone, cannot withstand constitutional scrutiny due to the inherent vagueness of its terms.

The cause is now before this court upon the allowance of a motion to certify the record.

Graydon, Head & Ritchey, Anthony G. Covatta and David E. Fowler, Cincinnati, for appellees.

Richard A. Castellini, City Sol., Ely M.T. Ryder and Daniel J. Schlueter, Cincinnati, for appellants City of Cincinnati and James R. Krusling.

Beckman, Weil, Shepardson & Faller and Sidney Weil, Cincinnati, for appellant Clifton Town Meeting.

SWEENEY, Judge.

Subsequent to the decision rendered by the court of appeals, it was adduced in oral argument that the theatre property which is the subject of this litigation was obtained by the city of Cincinnati and was then transferred to a non-profit organization which plans to operate the property as a theatre again. Therefore, FDI and Lipson waived oral argument before this court since the issues involved in this cause are moot with respect to their interests. Given this set of circumstances, our first inquiry is whether the instant cause should be dismissed on grounds of mootness.

Upon a careful review of the entire record, we believe that although the instant matter is technically moot with respect to the plaintiffs, there still remains a debatable constitutional question for this court to resolve. See Wallace v. University Hospitals of Cleveland (1961), 171 Ohio St. 487, 14 O.O.2d 383, 172 N.E.2d 459. In addition, we believe that the cause sub judice involves matters of great public interest, thereby vesting this court with jurisdiction to entertain this appeal, even though the controversy is moot with respect to the plaintiffs. See Wallace, supra; In re Popp (1973), 35 Ohio St.2d 142, 64 O.O.2d 84, 298 N.E.2d 529; and State, ex rel. Rudes, v. Rofkar (1984), 15 Ohio St.3d 69, 15 OBR 163, 472 N.E.2d 354. Thus, we proceed to resolve this matter under the standard that although a case may be moot with respect to one of the litigants, this court may hear the appeal where there remains a debatable constitutional question to resolve, or where the matter appealed is one of great public or general interest.

In our view, the decision of the court of appeals is clearly erroneous as a matter of law and, therefore, for the reasons that follow, we reverse the judgment of the appellate court below which held DGR III A 2 to be unconstitutionally vague.

Our review of the city of Cincinnati zoning provisions embodied in CMC Chapter 34 reveals that these regulations provide a comprehensive framework over and above the conventional zoning regulations that attempt to preserve and revitalize certain neighborhoods which the city itself deems worthy of special consideration.

In analyzing the constitutionality of the zoning provision in issue, DGR III A 2, we necessarily begin with the strong presumption that the ordinance which incorporated such provision is indeed valid, unless the party attacking the ordinance can overcome the strong presumption of validity. See, e.g., Leslie v. Toledo (1981), 66 Ohio St.2d 488, 20 O.O.3d 406, 423 N.E.2d 123; Hudson v. Albrecht, Inc. (1984), 9 Ohio St.3d 69, 9 OBR 273, 458 N.E.2d 852. See, also, Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303.

The appellate court below opined that the provision in issue cannot withstand constitutional scrutiny because of the inherent vagueness of its terms. While we are of the opinion that the court of appeals did not give the provision in issue the presumption of validity that it deserves, we also reject its holding for several compelling reasons.

First, the court of appeals below reviewed the constitutionality of the provision in issue solely by its own terms without reference to the context of the provision or its relation to the other provisions of the ordinance in which it is found. In our view, the particular provision in issue is so inextricably interwoven into the other relevant provisions of the ordinance, that a fair reading of this provision cannot be accomplished unless such provision is read in pari materia with the other provisions of the DGR, as well as the Urban Design Plan adopted June 7, 1978, and the Coordinated City Plan which Cincinnati City Council found to specifically provide that "[d]rive-in restaurants and fast food restaurants are not appropriate along Ludlow Avenue."

Second, we find that the court below applied an incorrect standard in holding the instant DGR guideline to be unconstitutionally vague. As the court noted in Rumpke Waste, Inc. v. Henderson (S.D.Ohio 1984), 591 F.Supp. 521, the unconstitutionally vague argument is usually applicable only to criminal ordinances...