COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61164 : METRO-PETROLEUM, INC., ET AL. : : : JOURNAL ENTRY Plaintiff-Appellants : : and -vs- : : OPINION CITY OF WARRENSVILLE HEIGHTS : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 24, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 189607 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellants: For Defendant-Appellee: TIMOTHY H. HANNA, ESQ. ROSS S. CIRINCIONE, ESQ. NICKOLAS P. ANDREEFF, ESQ. Mandanici & Cirincione JOHN R. KASSINGER, ESQ. Castleton Building Amer Cunningham Brennan 5306 East 98th Street Co., L.P.A. Garfield Heights, OH 44125 600 Society Buildidng Akron, OH 44308 - 2 - HARPER, J.: Plaintiffs-appellants, Metro-Petroleum, Inc. ("Metro"), James Savnik and James Wilson (collectively "appellants") appeal from the granting of summary judgment in favor of defendant- 1/ appellee, the city of Warrensville Heights ("the city") by the Court of Common Pleas of Cuyahoga County. Metro assigns two errors for review which challenge the order and the trial court's journal entry setting forth the order. We hold these claims are well taken in part, requiring a reversal and remand of this action. Metro is the lessee and operator of an automobile service station located at 23005 Miles Road, Warrensville Heights, Ohio. James Wilson was employed by Metro as the manager of the station. Metro also employed James Savnik as a district manager. On January 23, 1990, Albright Tate, a housing inspector for the city, filed criminal complaints in the Bedford Municipal 2/ Court against Savnik and Wilson. The complaints alleged that the two men "*** did fail to discontinue the sale of any item not specifically related to service or repair of motor vehicles at 23005 Miles Road, Warrensville Heights, Ohio, contrary to the form of an ordinance, section 1145.05(a)(4) [sic][section 1141.05(a)(4)(B)] & 1123.10 of the codified ordinances of the City of Warrensville Heights, a misdemeanor of the first degree, in such 1/ Defendants, Raymond Grabon, Mayor of the city of Warrensville Heights; Howard Stern, the City Prosecutor; and Albright Tate, the city's Building and Zoning Inspector, were voluntarily dismissed from the action. 2/ On May 25, 1990, Savnik and Wilson filed a motion to stay the criminal proceedings, said motion subsequently being granted by Bedford Municipal Court. - 3 - cases made and provided and against the peace and dignity of the City of Warrensville Heights, Ohio." Section 1141.05(a) of the Codified Ordinances of the city of Warrensville Heights provides: "Section 1141.05 CLASS U-4 USES (LOCAL RETAIL STORE) "(a) Retail stores and services conducted wholly within enclosed buildings, devoted to supplying new products for community needs and limited to the following main uses: "(1) The sale of all foods; "(2) The sale of all hardware, appliances, china, furniture, floor and wall covering, business equipment, radios and televisions (provided no loud speakers broadcast onto the street); "(3) The sale of drugs, gifts, antique and art goods, flowers, books, periodicals, tobacco, sporting and athletic goods; "(4) Automotive service stations, limited to: "A. The sale of motor fuel and motor oil in open yards only; "B. The sale of batteries, brake fluid, fan belts, grease lubricants, light bulbs, radiator hoses, spark plugs, tires and similar accessories and the installation thereof in an enclosed building only; "C. The minor servicing and repair solely by the owner, operator and/or employee of the automotive service station, of and to brakes, carburetor, fuel systems, radiators, tires and similar minor servicing and repairs in an enclosed building only, and expressly excluding without limitation, body work and major motor repairs and overhauls. "D. The bulk storage of petroleum products shall be entirely underground and the tanks shall not exceed 10,000 gallons individual or 24,000 gallons aggregate capacity. "E. Such station shall be located not less than 1,000 feet from any other such station, unless - 4 - such station shall be separated from any other such station by a duly dedicated street; and "F. The minimum lot size shall be not less than 22,500 square feet and shall have a frontage of not less than 150 feet; and, "G. There shall be no overnight vehicle parking of any kind on the premises and all parking at any time shall be limited to such as is accessory to the permitted use. "(5) Personal services such as bakeries, dry cleaning, laundries and shops for custom work, provided that the articles produced or the services performed on the premises are not sold at retail outlets elsewhere and that not more than fifty percent of the floor area of the establishment shall be devoted to such work." In addition, sections 1141.01 and 1121.02 of the Codified Ordinances of the city of Warrensville Heights respectively provide: "1141.01 RESTRICTIONS IN USE DISTRICTS. *** "(b) There shall be solely one main use on a lot, and an accessory use customarily incident thereto upon the same lot with the building or use to which it is accessory. "1121.02 ACCESSORY USE OR BUILDING. "'Accessory use or building' means a use or building, respectively, customarily incident to and located on the same lot with another use or building." Finally, section 1145.01(d) of the Codified Ordinances of the city of Warrensville Heights sets forth that: "(d) Vending machines, not to exceed 200 cubic feet in dimension, may be installed within the City as an accessory use in a Class U-4 District." Howard S. Stern, the city's prosecutor, admitted that the sale of certain food items, including soda, candy, potato chips, - 5 - pretzels, etc., at automotive service stations was a technical violation of section 1141.045(a). The sale of these items was nevertheless tolerated as an "accommodation to the motoring public." However, the complaints were issued against Savnik and Wilson because the items sold at Metro, prepackaged bakery products, milk, eggnog, and orange juice, did not fall into the category of "tolerated" sale merchandise. The instant declaratory judgment action involved a challenge by appellants to the enforcement and constitutionality of section 1141.05(a)(4). Metro alleged that it is highly dependent on the incidental sale of food to the motoring public with 85% to 90% of its food sales made to gasoline customers. The city responded that the restrictions on the type of food items to be sold at gasoline stations is a valid exercise of its zoning power. Both parties filed a motion for summary judgment on December 3, 1990. On December 24, 1990, the trial court granted the city's motion for summary judgment. For their second assignment of error, appellants complain that: "THE TRIAL COURT ERRED BY JOURNALIZING AN ENTRY MERELY SUSTAINING APPELLEE'S MOTION FOR SUMMARY JUDGMENT WITHOUT DECLARING THE RIGHTS OF THE PARTIES." The trial court issued the following two journal entries: "Plaintiffs Motion for Summary Judgment, filed 12-3- 90, hereby denied. "Motion for Summary Judgment of Defendant City of Warrensville Heights, filed 12-3-90, hereby granted. Final." - 6 - Appellants requested inter alia pursuant to its complaint that the trial court determine whether the ordinance at issue was unconstitutional. They now argue that the trial court did "*** not fulfill its role in a Declaratory Judgment Action when it merely sustains or overrules a Motion For Summary Judgment in a one line Judgment Entry without setting forth a declaration of the rights of the parties as requested in the Complaint." Appellants' argument is correct. The trial court should have expressly declared the rights of the parties when it disposed of the issues by journalizing the above quoted entries. See Waldeck v. North College Hill (1985), 24 Ohio App.3d 189; Seawright v. Liberty Mutual Insurance Company (Oct. 1, 1987), Cuyahoga App. No. 52670, unreported. "'*** As a general rule, a court fails to fulfill its function in a declaratory judgment action when it disposed of the issues by journalizing an entry merely sustaining or overruling a motion for summary judgment without setting forth any construction of the document or law under consideration. ***'" Waldeck, supra, quoting Kramer v. West American Ins. Co. (Oct. 6, 1982), Hamilton App. Nos. C-810829 and 810891, unreported. Appellants' second assignment of error is thus sustained. Appellants' first assignment of error provides: "THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT." Appellants contend that the trial court erred in granting the city's motion for summary judgment. It presents a four-part justification for this contention: 1) Metro's food sales do not constitute a violation of the ordinance; 2) the ordinance is - 7 - unconstitutional because it is not based on a valid enforcement of police power; 3) the city's construction and enforcement of the ordinance are unconstitutional; and 4) the principle of exhaustion of administrative remedies does not bar the relief requested by Metro. Our ruling on appellants' second assignment of error renders this alleged error as moot. However, appellants' assertions compel us to remind the trial court of the following distinction between declaratory relief actions pursuant to an appeal from an administrative decision and one which challenges the overall constitutionality of an ordinance when the issue revolves around land use. A trial court determines whether the prohibition against a specific proposed use is constitutional when presented with an appeal from a final administrative decision pursuant to R.C. Chapter 2506. Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 16. In contrast, a declaratory judgment action filed pursuant to R.C. Chapter 2721, challenges the constitutionality of the ordinance as applied to the particular piece of property. Id. The former only declares the application of a zoning ordinance unconstitutional and does not, therefore, affect the ordinance's overall constitutionality. A declaratory relief action, however, adjudicates the overall validity of the ordinance. Id. We reverse the trial court's ruling in favor of the city due to the imperfection in the court's entries and remand this cause for further proceedings including the declaration of the rights - 8 - of the parties under section 1141.05(a) of the Codified Ordinances of the city of Warrensville Heights. Ordinances of the city of Warrensville Heights. It is, therefore, considered that said appellants recover of said appellee their costs herein. It is ordered that a special mandate be sent to said 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. PARRINO, J.*, CONCURS; LEO SPELLACY, P.J., CONCURS IN JUDGMENT ONLY. SARA J. HARPER JUDGE *Judge Thomas J. Parrino, Retired, of the Eighth District Court of Appeals, sitting by assignment. 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .