Summary
In Franchise Developers, a developer applied for and was denied a building permit for a theater it wanted to remodel for use as a restaurant, and it challenged the denial by city council, arguing the city development guidelines were unconstitutional.
Summary of this case from State v. CuppOpinion
No. 86-513
Decided April 8, 1987.
Appellate procedure — Mootness as to one of the litigants — Supreme Court may hear appeal as to other litigants, when — Zoning — Aesthetic considerations may be considered, when — "Overlay" zoning and "environmental quality districts," examined.
O.Jur 3d Appellate Review §§ 478, 482, 522.
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.
O.Jur 3d Buildings etc. § 172.
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., 9 Ohio St.3d 69, 9 OBR 273, 458 N.E.2d 852, approved and followed.)
APPEAL from the Court of Appeals for Hamilton County.
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.
Some of the conclusions of law adopted by Cincinnati City Council were the following:
"1. The proposed fast food restaurant at 320 Ludlow Avenue would be a valid use of the property under the B-2 Community Business District Regulations, Chapter 21, of the Zoning Code. Pursuant to the provisions of § 102.5 of the Zoning Code, such property may, however, be subject to additional regulations.
"2. The subject address is part of an Environmental Quality District, created by Ordinance 398-1978 of the Council of the City of Cincinnati, and thus subject to the provisions of Chapter 34 of the Zoning Code, the provisions of which, pursuant to § 3401.1, prevail over any conflict with the B-2 underlying zone regulations.
"3. There is a substantial City interest in protecting the stability of neighborhoods and neighborhood business districts, and Ordinance No. 398-1978 is a valid exercise of the legislative authority of the Council of the City of Cincinnati.
"4. The Council may validly provide for land use regulations in ordinances establishing Environmental Quality District Regulations, pursuant to the provisions of Zoning Code § 3400.2.
"5. The phrase `fast food restaurant' is not defined in any provision of the Zoning Code. It must be defined in accordance with the ordinary and usual meaning of the phrase, as well as by the usage given such phrase by the public and the industry involved.
"6. The provision of the Clifton Community Plan (as approved by the Planning Commission and adopted as part of the Coordinated City Plan) to the effect that fast food restaurants are not appropriate along Ludlow Avenue is a valid expression of the mutual desire of the Clifton neighborhood and the City of Cincinnati.
"7. Inasmuch as the proposed use fails to contribute to the desired mix of commercial activity on Ludlow Avenue, for the reason set forth above, it fails to comply with the provisions of Ordinance No. 398-1978, and is not a permitted use under the Zoning Code of the City of Cincinnati."
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, for appellees.
Richard A. Castellini, city solicitor, Ely M.T. Ryder and Schlueter, for appellants city of Cincinnati and James R. Krusling.
Beckman, Weil, Shepardson Faller and Sidney Weil, for appellant Clifton Town Meeting.
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.
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 which fail to put persons on notice as to what conduct is prohibited. Such an argument is inherently deficient in a zoning case where the zoning resolution, by its very nature, puts a property owner on notice that use of the property is subject to regulation. Id. at 529-530. In the cause sub judice, it appears that the property owner was on notice of the overlay zoning restrictions placed on his property. See Consolidated Mgmt., Inc. v. Cleveland (1983), 6 Ohio St.3d 238, 6 OBR 307, 452 N.E.2d 1287.
In addition, we believe the court of appeals erred in finding that land use regulations are clearly prohibited in the instant overlay zoning scheme. In this regard, the appellate court stated that "the cumulative effect of the * * * [Chapter 34] ordinances is to confine any regulatory action taken in connection with the creation of an EQD only to the physical or aesthetic aspects of property development; [and that] the regulation of land use apart from the underlying provisions of the zoning code is, quite clearly, prohibited." However, we believe that a close reading of the pertinent provisions of the Cincinnati Municipal Code indicates a clearly contrary conclusion of the legislative goal intended. CMC Section 3401.1 provides:
"Except as otherwise provided herein and in other parts of this zoning code, all regulations of the underlying zone districts shall apply to and control property in an EQ district; provided, however, that in the case of conflict between the provisions of an underlying zoning district and an EQ district, the provisions of the EQ district shall prevail." (Emphasis added.)
Moreover, CMC Section 3400.2 provides that one of the purposes of the overlay zoning scheme is "* * * to protect the public and property owners in the district: (a) From blighting influences which might be caused by the application of conventional land use regulations to properties and areas of sensitive environmental qualities; * * *." (Emphasis added.)
Thus, we find that part of the intent of Cincinnati City Council in enacting this overlay zoning scheme was to promote flexibility in environmental quality districts and to prohibit certain land uses that are otherwise permitted in the underlying zoning regulations. Therefore, the appellate court's observation that land use regulations are not a proper subject of the instant overlay zoning provisions is puzzling at best.
Based on the foregoing analysis, we find that the overlay zoning scheme presented here constitutes a proper exercise of the city's zoning authority in its attempt to preserve and protect the character of certain neighborhoods that the city deems important, in order to promote the overall quality of life within the city's boundaries. In this vein, we reaffirm our holding in Hudson, supra, where we stated in paragraph one of the syllabus:
"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."
In closing, given the posture of the proceedings below, we wish to reemphasize the due deference courts must afford legislative bodies that promulgate zoning regulations such as those we have considered herein. As this court cogently stated in Willott v. Beachwood (1964), 175 Ohio St. 557, at 559-560, 26 O.O. 2d 249, at 251, 197 N.E.2d 201, at 203-204:
"The power of the court in such matters as this is extremely limited, and the court cannot usurp the legislative function by substituting its judgment for that of the council. Municipal governing bodies are better qualified, because of their knowledge of the situation, to act upon these matters than are the courts.
"* * *
"* * * 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."
Accordingly, since we find that the DGR III A 2 does not run afoul of either the state or federal Constitutions, the judgment of the court of appeals is hereby reversed.
Judgment reversed.
MOYER, C.J., LOCHER, HOLMES, DOUGLAS and BROGAN, JJ., concur.
WRIGHT, J., concurs in part and dissents in part.
BROGAN, J., of the Second Appellate District, sitting for H. BROWN, J.
In my view this case has little public or general interest since it involves a "one of a kind" situation vis-a-vis the appellees and the city of Cincinnati which effectively resolved the controversy by purchasing appellee Lipson's property. The facts in the case when viewed in toto as opposed to the precis form presented by the majority negate the possibility that this case can be treated as authority for anything aside from the broad propositions contained in the syllabus which are universally accepted law.
Thus, while I concur in the syllabus law promulgated in the majority opinion, I respectfully suggest that this appeal should have been dismissed as moot when appellees noticed this court that they were withdrawing from this appeal.