COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68291 and 68292 GOLDBERG COMPANIES, INC., : TRUSTEE : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION COUNCIL OF THE CITY OF RICHMOND : HEIGHTS : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 16, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case Nos. CV-243146 and CV-245541 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: SHELDON BERNS BENJAMIN J. OCKNER Kahn, Kleinman, Yanowitz & Arson Co., L.P.A. 2600 Tower at Erieview Cleveland, Ohio 44114-1824 For Defendant-Appellee: R. TODD HUNT Walter & Haverfield 1300 Terminal Tower 50 Public Square Cleveland, Ohio 44113 - 3 - O'DONNELL, J.: Goldberg Companies, Inc. appeals the decisions of the trial court declaring both that Richmond Heights Ordinance 1175.05 constitutional as applied to the Goldberg property, and declaring that Richmond Heights Council's decision to deny a parking variance was not illegal, arbitrary, capricious or unreasonable. Goldberg Companies, Inc. owns a parcel of land containing approximately 7.67 acres located at the northwest corner of the intersection of Richmond Road and Hillary Lane in the City of Richmond Heights. The property is zoned B-1 - Neighborhood Business District. In 1992 Goldberg proposed to develop the property into a retail plaza comprised of two buildings -- one containing 56,000 square feet of retail space including 30,000 square feet to be used by Marc's discount drugstore, and a separate 6,000 square foot retail building. In furtherance of this development, Goldberg filed an application for a parking variance with the City's Board of Zoning Appeals and an application for site plan approval with the City's Planning Commission. Goldberg sought the parking variance because Section 1175.05 of the City's Codified Ordinances requires off-street parking at a rate of 10 spaces for every 1000 square feet of "usable floor area." Accordingly, Goldberg's proposed plaza would require 620 - 4 - parking spaces to accommodate its 62,000 square footage. Goldberg sought the variance to reduce the requirement to 372 spaces because it wanted to preserve mature trees on the western end of the parcel. The Board of Zoning Appeals recommended approval of the requested variance. Goldberg submitted two site development plans to the City's Planning Commission. SD1 consisted of the Goldberg's proposed plaza with 372 parking spaces. As an alternative, Goldberg presented SD1A consisting of a smaller 59,400 square foot plaza and the removal of enough trees to accommodate its parking in compliance with 1175.05 requirements. The Planning Commission tabled site plan SD1A, evaluated site plan SD1, and recommended approval of site plan SD1. However, on October 27, 1992, the City Council rejected the variance request, finding no special hardships, and also rejected site plan SD1, finding the proposed use, including a large Marc's store, did not fit within the existing B-1 zoning classification. Goldberg then appealed those decisions to Common Pleas Court and also filed a declaratory judgment action requesting declarations that the parking ordinance is unconstitutional and that SD1 is a permitted use under the ordinances of Richmond Heights. During trial, however, Goldberg informed the Court that Marc's drugstore had withdrawn as a tenant in the proposed plaza. Following trial on the merits, the trial court declared existing ordinance 1175.05 requiring ten parking spaces per - 5 - 1,000 square feet of space was not unconstitutional because it did not deny Goldberg the economic viable use of its land. Furthermore, the trial court declared the denial of Goldberg's variance request was not unconstitutional as applied to Goldberg's property because it was not illegal, arbitrary, capricious or unreasonable. Goldberg now appeals and assigns four errors for our review. In its first assignment of error, Goldberg states: I. THE DECISION OF THE COMMON PLEAS COURT DENYING THE APPEAL OF THE PLAINTIFF-APPELLANT GOLDBERG COMPANIES, INC., TRUSTEE FROM THE REFUSAL OF DEFENDANT-APPELLEE COUNCIL OF THE CITY OF RICHMOND HEIGHTS TO GRANT GOLDBERG A VARIANCE FROM THE REQUIREMENT OF 1175.05 OF THE CODIFIED ORDINANCES OF THE CITY OF RICHMOND HEIGHTS IS ERRONEOUS. Goldberg contends the evidence presented to Council overwhelmingly supports its contention that a variance should have been granted. Goldberg's expert testified to the Board of Zoning Appeals and to Council that 372 spaces provided sufficient parking for its proposal. Its expert further testified that the City's ten space per thousand square foot parking requirement was almost double the nationally accepted standard for a plaza like the one Goldberg proposed. The City, on the other hand, defends the denial of the variance arguing that Goldberg's evidence merely asserted that other municipalities use different parking ratios, and that - 6 - Goldberg failed to demonstrate sufficient practical difficulties in developing its property without a variance. In order to decide whether the court ruled correctly, then, we must examine the law on entitlement to a variance. In Kisil v. Sandusky (1984), 12 Ohio St.3d 30 at 35, the Ohio Supreme Court, in dealing with a case involving renovation of a single family residential property, set forth the following in the syllabus: The standard for granting a variance which relates solely to area requirements should be a lesser standard than that applied to variances which relate to use. An application for an area variance need not establish unnecessary hardship; it is sufficient that the application show practical difficulties. And in Duncan v. Middlefield (1986), 23 Ohio St.3d 83 at 86, the Ohio Supreme Court further defined how to determine practical difficulties: The factors to be considered and weighed in determining whether a property owner seeking an area variance has encountered practical difficulties in the use of his property include, but are not limited to: (1) whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance; (2) whether the variance is substantial; (3) whether the essential character of the neighborhood would be substantially altered or whether the adjoining properties would suffer a substantial detriment as a result of the variance; (4) whether the variance would adversely affect the delivery of governmental services (e.g. water, sewer, garbage); (5) whether the property owner purchased the property with knowledge of the zoning restriction; (6) whether the property owner's predicament feasibly can be obviated through some method other than variance; (7) whether the spirit - 7 - and intent behind the zoning requirement would be observed and substantial justice done by granting the variance. [citations omitted.] In this case, Goldberg presented evidence through its expert witness that the existing parking space requirement was excessive and contrary to ratios used in other communities in Ohio and throughout the nation, as well as additional evidence that a similar variance had been granted to a Finast supermarket in Richmond Heights. However, Goldberg presented limited evidence on why a variance was necessary, that is, what practical difficulties created the need for the variance, other than the desire to salvage trees on the property. Thus, Goldberg's evidence did not demonstrate any of the factors suggested by the court in Duncan for determining practical difficulties. Since Goldberg did not demonstrate these practical difficulties, we conclude the trial court's decision denying the appeal was not erroneous. Therefore, the first assignment of error is without merit. Goldberg contends in assignments of error two and four: II. THE DECISION OF THE COMMON PLEAS COURT DENYING GOLDBERG'S APPEAL OF THE REFUSAL OF THE CITY COUNCIL TO APPROVE THE SITE PLAN SUBMITTED BY GOLDBERG TO CITY COUNCIL FOR THE DEVELOPMENT OF GOLDBERG'S PROPERTY IS ERRONEOUS. IV. THE DECISION OF THE COMMON PLEAS COURT DENYING GOLDBERG A DECLARATORY JUDGMENT THAT SITE PLAN SD1 COMPLIES WITH ALL LAWFUL ORDINANCES OF CITY, AND THAT GOLDBERG IS ENTITLED TO DEVELOP ITS PROPERTY IN COMPLIANCE THEREWITH IS ERRONEOUS. - 8 - Goldberg argues site plan SD1 complies with the ordinances of the City of Richmond Heights. It claims the plaza falls under the definition of "neighborhood center" contained in 1155.03 of the Richmond Heights Ordinances and further complies with 1155.01 in that it has frontage on a major or secondary thoroughfare. The city contends the Council properly rejected site plan SD1 because the development as proposed planned to house tenants not considered "neighborhood businesses" under the B-1 zoning classification. In this case, SD1 consisted of a Marc's store. However, at trial Goldberg informed the court that Marc's no longer would be a tenant in the plaza. Therefore, the trial court could not declare that such a proposal complied with the ordinances because the withdrawal of Marc's as a tenant rendered moot the proposal as presented. Accordingly, we conclude the trial court did not err in failing to rule on the Goldberg plan since the issue became moot at trial. Accordingly, the second and fourth assignments of error are without merit. In its third assignment of error Goldberg states: III. THE DECISION OF THE COMMON PLEAS COURT DENYING GOLDBERG A DECLARATORY JUDGMENT THAT 1175.05 OF THE CODIFIED ORDINANCES OF THE CITY IS UNCONSTI- TUTIONAL AS APPLIED TO GOLDBERG'S PROPERTY IS ERRONEOUS. - 9 - Goldberg argues the trial court erred in failing to declare the ordinance unconstitutional contending the Court improperly applied the standard announced in Gerijo, Inc. v. Fairfield (1994), 70 Ohio St.3d 223, because Goldberg believes that the conjunctive test of Gerijo applies only to constitutional questions involving zoning classifications and not to constitutional questions involving area requirements. The city argues the Gerijo test applies to the city's ordinance, and believes the trial court properly found the ordinance constitutional because the ordinance did not deny Goldberg economically viable use of its property. The issue here, then, we need to decide is whether Gerijo applies to zoning area requirements. In deciding Gerijo, the Ohio Supreme Court announced a dual- standard conjunctive test for declaring a zoning ordinance unconstitutional. The court stated: In Columbia Oldsmobile, Inc. v. Montgomery (1990), 56 Ohio St.3d, 564 N.E.2d 455, this court held that in order to invalidate a zoning ordinance on constitutional grounds, the party attacking the regulation must establish, beyond fair debate, that the zoning classification denies him or her an economically viable use of the zoned property without substantially advancing a legitimate interest in the health, safety or welfare of the community. *** (W)e find that a plaintiff must prove both prongs in order to invalidate a zoning ordinance. The Supreme Court announced its decision in Gerijo, a case which involved declaring a zoning ordinance unconstitutional. Accordingly, under the doctrine of stare decisis, we are bound to - 10 - follow Gerijo in this case. If the Ohio Supreme Court modifies Gerijo or creates a different test to determine constitutionality of zoning area requirements, we will, of course, follow such ruling. Until that time, however, we are constrained by the holding of Gerijo and conclude that in order to declare a zoning ordinance unconstitutional, the party seeking to invalidate the ordinance must demonstrate both that the ordinance denies the property owner an economically viable use of the property, and that it does not advance a legitimate governmental interest. Here, then, we conclude that the trial court did not err in applying the Gerijo standard and the third assignment of error is without merit. Therefore, the judgment of the trial court is affirmed. - 11 - It is ordered that appellee(s) recover of appellant(s) 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. JAMES D. SWEENEY, P.J., DAVID T. MATIA, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- .