Summary
applying Mobil Oil in a case challenging the constitutionality of a township zoning resolution
Summary of this case from Apple Grp. Ltd. v. Bd. of Zoning Appeals Granger Twp.Opinion
No. 87-1718
Submitted June 8, 1988 —
Decided August 17, 1988.
Townships — Zoning — Conditional zoning certificate subject to minimum setback authorized by zoning resolution — Condition not confiscatory, when.
O.Jur 3d Buildings etc. § 279.
Where a conditional zoning certificate is subject to conditions authorized by the township's zoning resolution, and one such condition places a minimum setback distance for particular uses, such condition is not confiscatory if the property could be used in a manner permitted by the zoning resolution, and would not deny the owner reasonable use of his land.
APPEAL from the Court of Appeals for Geauga County, No. 1323.
On July 20, 1984, the appellee, Valley Auto Lease of Chagrin Falls, Inc., filed an application for a conditional zoning certificate with the appellant Auburn Township Board of Zoning Appeals (hereinafter "board"). The application requested that a certificate be issued allowing for the sale and lease of motor vehicles on property which is located in a general business (B-1) zoning district of Auburn Township.
The board held a public hearing on August 8, 1984. At that hearing, Thomas P. Kenen, the appellee's president, explained that the proposed business would contain seven hundred to seven hundred fifty square feet of office space to operate the automobile leasing business and a paved area to display cars. Residents of the Auburn Lakes Condominium Association, which is located across the street from the appellee's proposed use, voiced their objection to the appellee's application and presented a petition signed by twenty-six residents. After the hearing the board denied the appellee a conditional zoning certificate.
On September 7, 1984, the appellee appealed to the court of common pleas pursuant to R.C. Chapter 2506. The court reversed the decision of the board and remanded the case so that the board could issue the appellee a conditional zoning certificate for its proposed use subject to reasonable conditions as the board may impose thereon.
On April 24, 1985, the board issued the appellee a conditional zoning certificate subject to certain conditions which were set forth in the Auburn Township Zoning Resolution.
On May 2, 1985, the appellee filed another appeal to the court of common pleas pursuant to R.C. Chapter 2506. The trial court found that the five-hundred-foot setback condition contained in Section 5.03(d)(1) of the Auburn Township Zoning Resolution was unconstitutional as applied to appellee's property. The court remanded the case to the board to issue a certificate with reasonable conditions to permit the appellee to use the property it leases for the sale of used automobiles.
The court of appeals affirmed the judgment of the trial court.
This cause is now before this court pursuant to the allowance of a motion to certify the record.
Kenen Snider Co., L.P.A., and R.L. Kenen, for appellee.
Kent W. Penhallurick, chief assistant prosecuting attorney, for appellants.
The issue before us is whether Section 5.03(d)(1) of the Auburn Township Zoning Resolution is unconstitutional as applied.
Section 5.03, at the time relevant herein, read in part:
"Conditional Uses: Only those conditional uses defined in this Resolution and specified under a given district on the District Schedule (4.03) may be approved in that district. In addition, the following regulations related to particular categories of conditional uses shall apply.
"* * *
"(d) Conditional Businesses:
"(1) Location and Access: These uses shall be located at least 500 feet from any R-1 or PUD District, dwelling, public facility, cemetery or church. Direct access to or from local residential streets shall be prohibited; and all points of access shall be located at least 100 feet from any street intersection. Preferable locations are at major intersections or adjacent to other compatable [ sic] uses which offer the opportunity for joint parking facilities and a coordinated circulation system."
Subsequently, Section 5.03(d)(1) was amended to decrease the distance required from five hundred feet to three hundred feet.
It is firmly established that legislative enactments have a strong presumption of constitutionality. Benevolent Assn. v. Parma (1980), 61 Ohio St.2d 375, 377, 15 O.O. 3d 450, 451, 402 N.E.2d 519, 521. It is fundamental principle of Ohio zoning law that the party challenging the validity of a zoning classification has the burden of demonstrating the unconstitutionality or unreasonableness of the zoning resolution. Leslie v. Toledo (1981), 66 Ohio St.2d 488, 489, 20 O.O. 3d 406, 407, 423 N.E.2d 123, 124; Brown v. Cleveland (1981), 66 Ohio St.2d 93, 95, 20 O.O. 3d 88, 89, 420 N.E.2d 103, 105. "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." Willott v. Beachwood (1964), 175 Ohio St. 557, 560, 26 O.O. 2d 249, 251, 197 N.E.2d 201, 204. In an appeal that challenges the constitutionality of a zoning ordinance as applied, the issue for determination is whether the ordinance, in proscribing a landowner's proposed use of his land, has any reasonable relationship to the legitimate exercise of police power by the municipality. Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St.2d 23, 67 O.O. 2d 38, 309 N.E.2d 900, syllabus.
R.C. 519.14(C) authorizes a township board of zoning appeals to grant conditional zoning certificates for specific uses which are provided for in the zoning resolution. Section 2.07(b)(4) specifies automobile sales establishments as conditional uses in the general business district of Auburn Township. In issuing a conditional zoning certificate, the board of zoning appeals is governed by whatever terms and conditions are imposed by the resolution. Nunamaker v. Bd. of Zoning Appeals (1982), 2 Ohio St.3d 115, 118, 2 OBR 664, 667, 443 N.E.2d 172, 175.
R.C. 519.14 states in part:
"The township board of zoning appeals may:
"* * *
"(C) Grant conditional zoning certificates for the use of land, buildings, or other structures if such certificates for specific uses are provided for in the zoning resolution."
Section 2.07(b) reads in part:
"Conditional uses: Uncommon accessory or main uses which may be approved in certain locations according to the provisions of this Resolution.
"* * *
"(4) Conditional Businesses: One or more of the following uses.
"a. Automotive repair, service and sales establishments such as automobile repair garages, car washes, service stations and automobile, boat, farm equipment and motorcycle dealerships excluding automotive wrecking or junk yards."
In the instant case, all the conditions imposed by the board in the conditional zoning certificate are specifically set forth in the Auburn Township Zoning Resolution. The listed conditional businesses are more intensive businesses and would have a greater impact on the surrounding residential or PUD area. Thus, the condition imposed by Section 5.03(d)(1) of the zoning resolution is reasonably justified by the nature of the conditional uses themselves.
Those conditions imposed by the board were authorized by Sections 4.03, 5.02, and 5.03(d) of the Auburn Township Zoning Resolution.
However, the court found that regulation as applied to the appellee to be confiscatory.
The general scheme of zoning may be valid, yet when applied to a particular property and a particular set of facts the regulation may result in a unconstitutional confiscation if the regulation restricts the use of the land as to render it valueless, the permitted uses are not economically feasible, or the regulation permits only uses which are highly improbable or practically impossible under the circumstances. The showing of diminution of land value due to a zoning regulation, taken alone, is insufficient to invalidate the existing zoning. See C. Miller Chevrolet v. Willoughby Hills (1974), 38 Ohio St.2d 298, 67 O.O. 2d 358, 313 N.E.2d 400.
Hence, where a conditional zoning certificate is subject to conditions authorized by the township's zoning resolution, and one such condition places a minimum setback distance for particular uses, such condition is not confiscatory if the property could be used in a manner permitted by the zoning resolution, and would not deny the owner reasonable use of his land.
In the case sub judice, the subject property will also be used for a car repair shop, and is being used for the rental of two apartments. The property could be used in a manner permitted by the Auburn Township Zoning Resolution. The zoning regulation at issue in this case is not unconstitutionally confiscatory since it does not deny the appellee a reasonable use of its land.
The judgment of the court of appeals is reversed.
Judgment reversed.
MOYER, C.J., LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.
MARY CACIOPPO, J., of the Ninth Appellate District, sitting for SWEENEY, J.