COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59022 : SUDAN INC. ET AL. : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : THE VILLAGE OF CHAGRIN FALLS ET AL.: : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 10, 1991 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 59022 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHEN G. THOMAS JOSEPH W. DIEMERT, JR. THOMAS & BOLES Director of Law 36 So. Franklin Street Village of Chagrin Falls Chagrin Falls, Ohio 44022 1360 S.O.M. Center Road Cleveland, Ohio 44124 -2- PATRICIA A. BLACKMON, J.: The Village of Chagrin Falls, appellant, timely appeals the decision of the trial court that declared its zoning ordinance 1137.02(A)(6), overall unconstitutional. For the reasons that follow, we affirm. The instant action arose as a result of an application for a zoning variance by Sudan, Inc., d.b.a. Nutri-System Weight Loss Centers ("Sudan"). The application requested that Sudan be allowed to conduct weight loss classes on the ground floor level of appellee Marilyn Groth's property located in appellant's retail business district. Appellant's Board of Zoning Appeals denied the application pursuant to 1137.02(A)(6), and the counsel confirmed the denial on May 11, 1987./1\ /1\ 1137.02 of this ordinance provides, in pertinent part, that: In a retail business district, buildings and land shall be used by right for only the main and accessory uses set forth below, *** (a) (3) Retail Services. Establishments engaged primarily in the retail provision of services, as delineated below. *** (a) (5) Recreation and Entertainment Uses. Athletic clubs, racquet clubs, bowling alleys, community centers, party centers, dance halls, indoor theaters, and similar uses conducted wholly within buildings sufficiently sound-insulated to confine all noise to the premises. *** (a) (6) Trade Schools, etc. Trade and business schools and private establishments offering classes in such areas as self-improvement, -3- After the application was denied several court actions were filed by the respective parties. Initially, appellee and Sudan filed a complaint in the Court of Common Pleas seeking an injunction against appellant from enforcing the zoning restriction. The parties entered into an agreed entry dismissing the complaint and allowing Sudan to occupy the premises and carrying on the retail sale of its food products, but specifically forbidding the weight loss classes on the first floor of the building. On May 20, 1987, appellee and Sudan timely filed a notice of appeal challenging the Board of Zoning Appeals' decision that denied their application for the variance. The appeal was filed pursuant to R.C. Chapter 2506. At the same time appellee and Sudan filed a complaint for declaratory judgment challenging the zoning ordinance 1137.02(A)(6) unconstitutional. Appellee and Sudan filed their assignments of error supporting the administrative appeal and also filed a motion for summary judgment asking the court for relief pursuant to the declaratory judgment action. Appellant responded by filing an answer and counterclaim requesting that the court grant its declaratory judgment finding the ordinance valid. Appellant also moved to dismiss appellee's dance, exam preparation and weight loss, provided that no such use shall occupy a ground floor space with frontage on a public street from which that space has access. -4- and Sudan's declaratory judgment action, which was not ruled on until after the first appeal. Appellee and Sudan countered with corresponding motions to dismiss appellant's counterclaim, which was denied. Thereafter, the appellant filed a brief opposing appellee's and Sudan's motion for summary judgment but failed to file opposing affidavits. Subsequently, appellant moved for leave to file a motion summary judgment which was never filed. The trial court denied appellee's and Sudan's administrative appeal and affirmed the Board of Zoning Appeals' denial of the variance. The trial court failed to rule on the constitutionality of the zoning ordinance raised in appellee's and Sudan's declaratory judgment action. Thereafter, the trial court filed a second journal entry declaring that there was no just reason for the delay in enforcing its decision, and Marilyn Groth, appellee, filed an appeal. Although Sudan was initially a co-plaintiff in the original action, it did not join appellee in the appeal. Ultimately, this court reversed and remanded the decision to the trial court. See Sudan, Inc. v. Village of Chagrin Falls (May 11, 1989), Cuyahoga App. No. 55238, unreported. On remand the trial court granted appellee's summary judgment and declared the ordinance overall unconstitutional. The only facts before the court were the affidavits filed by appellee in support of its motion for summary judgment. -5- The affidavits in substance averred that: The Village of Chagrin Falls' business district is comprised of businesses selling primarily retail products and retail services; that eighty percent of the revenue of Sudan's business is generated from the sale of retail products; that only twenty percent of its revenues are derived from the classes in weight loss. The trial court relied on these affidavits to the extent that they were helpful in resolving the validity of the zoning restriction. Appellant presented no evidence to the court by way of opposing affidavits. The trial court ruled that the ordinance was unconstitutional to the extent that it "prohibits specified retail service uses from occupying ground floor space with frontage on a public street in the retail business district." The trial court also denied motions of the parties to strike certain pleadings. The trial court further found that both the parties' claims for damages were voluntarily dismissed without prejudice. Finally, the administrative appeal was denied as moot, since Sudan withdrew from the case. In reviewing the motion for summary judgment this court confines itself to the facts supported by affidavit. Civ. R. 56(E) requires that motions for or against summary judgment be supported by affidavit. A party may not rely on his pleadings in a summary judgment motion. See, State, ex rel. Corrigan v. Seminatore (1981), 66 Ohio St. 2d 459. Neither may a party rely -6- on a rebuttable presumption. See, City of Pepper Pike v. Landskroner (1977), 53 Ohio App. 2d 63. (Emphasis added.) In the instant case, only the appellee presented evidence in compliance with Civ. R. 56(E). The appellant for their appeal assigned two errors for this court's review. Appellant's first assignment of error is as follows: THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW IN HOLDING CHAGRIN FALLS ORDINANCE 1137.02 INVALID AND AN UNREASONABLE USE OF PUBLIC POWER. Civil Rule 56(C) provides, in pertinent part, that: A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. In a valid summary judgment the moving party must show no genuine issue exists as to any material fact. Harless v. Warehousing Co. (1978), 54 Ohio St. 2d 64. In applying this standard to the instant case, it is necessary for this court to review the applicable law used in Ohio to determine the constitutionality of zoning ordinances. An attack of a zoning ordinance on constitutional grounds must demonstrate "beyond fair debate" that a zoning classifica- tion is unreasonable and not necessary to the health, safety and welfare of the municipality in order to prevail. Karches v. Cincinnati (1988), 38 Ohio St. 3d 12. Zoning ordinances are -7- presumed valid until the plaintiff proves otherwise. Leslie v. Toledo (1981), 66 Ohio St. 2d 488. In order to rebut this presumption the record must demonstrate that the ordinance denies the plaintiff the economically viable use of their land without substantially advancing a legitimate government interest. Karches at 19. In application, a zoning ordinance must bear a real and substantial relation to the public health, safety, morals or general welfare to advance a legitimate governmental interest. Westlake v. Given (May 12, 1983), Cuyahoga App. No. 45407, unreported. If it does not bear such a relationship beyond fair debate, it must be declared unconstitutional. In Westlake , the zoning ordinances prohibited the storage of recreational vehicles outdoors but permitted the storage of roofing trucks outdoors Id. This court declared this zoning structure unconstitutional because of the "disparate treatment" between the two types of vehicles without a rational basis for the distinction. Id. at 5. This court maintained that "where that zoning code treats a similar class of acts in dissimilar ways for no legitimate reason, that zoning code is arbitrary and unreasonable. Id. at 5. A careful review of the record revealed that appellee over- came the presumption of validity of the ordinance and demonstrated the arbitrary and unreasonable nature of the restriction on weight loss centers. Sudan's business generated eighty percent of its revenues from the sale of retail food -8- products and the remainder from its retail service of weight loss classes. Appellant's business district is zoned with, among others, the stated purposes of "preserving the pedestrian-oriented retail character of the commercial street frontage" and complementing "the historic and small scale character" of the retail business district. Chagrin Falls Ordinance, 1137.01(c) and (d). These goals are not inconsistent with the intent of Sudan or the appellee. There was no evidence presented in summary judgment to demonstrate that Sudan's 80% retail products business is any less consistent with the appellant's intent than the numerous 100% retail businesses with ground floor frontage in its business district. Appellant failed to present any evidence to support its brief in opposition to the appellee's motion for summary judgment. Therefore, we must conclude beyond fair debate that the disparate treatment of Sudan's and appellee's interest was arbitrary and unreasonable. Moreover, the zoning ordinance did not advance the interest expressed by appellant's ordinances. Since there is no issue of a material fact as to the arbitrary and unreasonable application of appellant's ordinance to Sudan and appellee, the trial court was proper in granting summary judgment in favor of appellee. Appellant's first assignment of error is not well taken. Appellant's second assignment of error is as follows: -9- THE TRIAL COURT'S DECISION WAS CLEARLY ERRONEOUS AS THE JUDGMENT WAS OVERLY BROAD. Appellant's second assignment of error raises an issue that requires a review of the difference between a declaratory relief action pursuant to an appeal from an administrative decision and one challenging the overall constitutionality of the statute when the issue is one of land use. In an appeal from a final administrative decision, pursuant to R.C. Chapter 2506, the task of the court is to determine whether the prohibition against the specific proposed use is constitutional in light of the variance request. Karches at 16. In contrast, a declaratory judgment action filed pursuant to R.C. Chapter 2721, challenges constitu- tionality of the overall ordinance as applied to the use of a particular parcel of property. Id. An administrative appeal action may declare only the application of a zoning ordinance unconstitutional, without affecting the overall constitutionality of the statute. Whereas, a declaratory relief action adjudicates the validity of the ordinance itself. Id. In the instant case, appellee sought both an administrative appeal and an action for declaratory judgment. When Sudan, Inc. v. Village of Chagrin Falls, supra, was remanded to the trial court, both the administrative appeal and the declaratory judgment action were within its jurisdiction. Accordingly, appellant's second assignment of error is not well taken. Judgment affirmed. -10- It is ordered that appellee recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DAVID T. MATIA, P.J., and SPELLACY, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .