COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70011 CITY OF STRONGSVILLE : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MICHAEL S. O'DONNELL : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 5, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-277042. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: John D. Ryan, Esq. 14650 Detroit Avenue Suite 300 Cleveland, OH 44107 For Defendant-Appellant: Nancy F. Zavelson, Esq. William V. Valis, Esq. Reminger & Reminger 113 St. Clair Building Cleveland, OH 44114 -2- DAVID T. MATIA, J.: Michael O'Donnell, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, General Division, which enjoined defendant-appellant from using the lot located at 7908 West 130th Street, Strongsville, Ohio for the business of truck rental, repair and storage in violation of the City of Strongsville zoning ordinances. Defendant-appellant assigns one error for this court's review. For the following reasons, defendant-appellant's appeal is not well taken. I. THE FACTS Michael O'Donnell, defendant-appellant, is the owner of a parcel of land located at 7908 West 130th Street on the southwest corner of the intersection of Sprague Road and West 130th Street in the City of Strongsville, Ohio. Defendant-appellant purchased the property on August 25, 1989. During the first four years at this location, defendant-appellant operated a Marathon Service Station exclusively. The property in question is zoned as a Local Business District under the Strongsville Zoning Code. Section 1258.02 of the Zoning Code enumerates uses which are permitted for property located within a Local Business District as follows: 1258.02 Use Regulations: Local Business District. Buildings and land shall be used, and buildings shall be designed, erected, altered, moved or maintained in whole or in part, in Local Business Districts, only for -3- the uses set forth in the following schedules and regulations: (a) Main Building and Uses Permitted. (1) Buildings and uses of the type permitted and as regulated in the nearest adjacent Residential District; (2) Office buildings and offices, including professional, financial, governmental, public utility, sales, executive and administrative; (3) Retail stores and services conducted wholly within enclosed buildings and devoted to supplying neighborhood needs to the following limited extent: A. Retail sales. 1. The sale of baked goods, confectionery, groceries, meats, fruits, vegetables, dairy products and packaged beverages; 2. The sale of drugs, gifts, antique and art goods, flowers, periodicals, musical instruments and supplies (provided that no landspeakers broadcast onto the street) and sporting and athletic goods; 3. The sale of wearing apparel, shoes and hats; variety stores; 4. The sale of hardware, tools, paint, garden supplies and household appliances; and 5. The sale, serving and consumption of food, soft drinks, juices and ice cream in carry-out and sit down restaurants whenever such use is within a business building located adjacent to another business building having one or more party walls and a common roof with one or more similar business buildings, but not as a separate business building use; -4- -5- B. Services. 1. Personal services such as beauty and barber shops; interior decorating; 2. Laundry agencies and laundromat; tailor, pressing and drug cleaning shops in which only nonexplosive nonflammable solvents are used provided that no work shall be done on the premises for retail outlets elsewhere; and 3. Repair services such as shoe and hat, radio and television, household appliances. 4. Retail sales in open yards to the following limited extent: Garden equipment and supplies, garden furniture, nursery stock and monuments may be sold on an open lot provided the operation is in connection with an established related business conducted within a store building or retail greenhouse, not more than 150 feet therefrom, and provided the sales in open yards comply with the setbacks established in Section 1258.11 of this Zoning Code. (b) Similar Main Uses Permitted. Any other neighborhoods retail store, shop or service not listed above or in any subsequent use classification, and determined as similar by the Planning Commission in accordance with the standards set forth in Section 1242.08 of this Zoning Code. Main uses enumerated in a General Business District, except motels, assembly halls, mortuaries, bus passenger stations and hotels, may be permitted in a Local Business District, provided a conditional use permit is granted in accordance with the standards set forth in Section 1242.07 of this Zoning Code. -6- (c) Accessory Uses Permitted. Any accessory use such as storage of goods or processing operations which are clearly incidental to conducting a retail business, office or service establishment, which is permitted as a main use, provided that such a use has no injurious effect on adjoining Residential Districts: (1) Accessory off-street parking and loading facilities as required in Chapter 1270 of this Zoning Code; and (2) Signs; business, professional, nameplate, directional, real estate and project, subject to the regulations set forth in Chapter 1272 of this Zoning Code. (Ord. 1987-112. Passed 10-19-87.) Clearly, Section 1258.02 of the Zoning Code does not permit automotive service stations or truck rental agencies in a Local Business District. However, since defendant-appellant's property had been used as an automotive service station prior to the enactment of Section 1258.02, defendant-appellant's use of the lot in question as an automotive service station constituted a lawful prior existing nonconforming use pursuant to Section 1129.02 of the Strongsville Zoning Code which stated in pertinent part: Automotive services limited to lubrication and minor repairing to tires, batteries, ignition and cooling system may be permitted provided: a conditional use permit is granted in accordance with the standards set forth in Section 1137.07 of this Zoning Code, and compliance with Section 1129.12 (Supplemental Regulations for Automotive Service Stations). Service station is defined in the Strongsville Zoning Code as follows: -7- "Service station" means a building and land, including pumps, tanks and grease racks, used for the retail sale of gasoline, lubricants, batteries, tires and other automobile accessories, and in or on which minor services and repairs are performed. (C.O. section 1240.08(c)(2)(G) formerly 1121.04(g)). In September, 1993, approximately four years after defendant- appellant purchased the property in question, defendant-appellant began operating a Ryder Truck Rental Agency out of the property in addition to the automotive service station. Defendant- appellant did not, at any time, make an application to the City of Strongsville for the new use of the property. On or about September 7, 1993, defendant-appellant received written notice from the City of Strongsville Building Commissioner that the use of the Zoning Lot for a Ryder Truck Rental Agency was prohibited by the Strongsville Zoning Code. The notice requested that defendant-appellant immediately discontinue the rental and storage of equipment at that location. No administrative appeal was taken from the Building Commissioner's notice and order. Defendant-appellant continued to operate a Ryder Truck Rental Agency at the location in spite of the notice and order. Since all administrative enforcement efforts had proven unsuccessful, the City of Strongsville initiated the underlying action for injunctive relief alleging that defendant-appellant had expanded, extended and changed a nonconforming use of land from its prior use solely as an automotive service station to -8- include the business of Ryder Truck rental to the general public. The City of Strongsville sought injunctive relief pursuant to R.C. 713.13. Defendant-appellant maintained that no unlawful expansion or extension of the nonconforming use had occurred but rather a mere continuation of activities which had always taken place on the property in question. The trial court conducted a hearing on November 9, 1995. On December 11, 1995, the trial court issued its judgment entry and order in which the trial court held in pertinent part: The Court finds that the Defendant's use of the Zoning Lot as a gasoline service station is permitted as a valid nonconforming use for those limited uses previously permitted under the former Strongsville Codified Ordinance Section 1129.02 as adopted on February 6, 1967, even though the Zoning lot is no longer zoned to permit the operation of a service station. The Court also finds that while it is true that O'Donnell may enjoy the nonconforming use of the Zoning Lot for those previously permitted gasoline service station uses, that does not permit a second or new use which does not conform or comply with the provisions of the Strongsville Zoning Code. The use of O'Donnell's Zoning Lot for truck rental, repair and storage is not a permitted use in a Local Business District and is an unauthorized extension, expansion and change under the foregoing provisions of the Strongsville Zoning Code. The trial court then ordered that defendant-appellant be enjoined from using the Zoning Lot located at 7908 West 130th Street, Strongsville, Ohio for the business of truck rental, repair and storage in violation of the Zoning Ordinances of the City of Strongsville. -9- Defendant-appellant filed a timely notice of appeal from the judgment of the trial court. II. ASSIGNMENT OF ERROR Michael O'Donnell's, defendant-appellant's sole assignment of error states: THE TRIAL COURT ERRED IN ENJOINING APPELLANT FROM USING THE ZONING LOT AT 7908 WEST 130TH STREET, STRONGSVILLE, OHIO, FOR THE BUSINESS OF TRUCK RENTAL, REPAIR AND STORAGE IN VIOLATION OF THE ZONING ORDINANCES OF THE CITY OF STRONGSVILLE. A. THE ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN ENJOINING DEFENDANT-APPELLANT. Defendant-appellant argues, through his sole assignment of error, that the trial court erred in enjoining his use of the Zoning Lot for the business of truck rental, repair and storage. Specifically, defendant-appellant maintains that the Ryder Truck Rental Agency is not an unauthorized extension, expansion and change in the prior nonconforming use but is, in reality, a continuation of past business practices as they have been conducted at that location for approximately twenty years. Defendant-appellant bases this assertion on the argument that, in the past, the owners of the automotive service station maintained a fleet of tow trucks as well as repaired numerous commercial trucks which were stored on the premises while being repaired. Defendant-appellant argues further that the automotive service -10- station always maintained a policy of loaning out vehicles free of charge to customers whose vehicles were being repaired. Defendant-appellant maintains that this past policy is analogous to the business of a truck rental agency. Defendant-appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW FOR ZONING. In order to successfully challenge a zoning classification, the complaining party must demonstrate beyond fair debate, that the zoning classification is unconstitutional, unreasonable and not substantially related to the public health, safety, morals or general welfare. Mobile Oil Corp. v. Rocky River (1974), 38 Ohio St.2d 23; Central Motors Corp. v. Pepper Pike (1979), 63 Ohio App.2d 34, 50. In order for an appellate court to reverse the decision of the trial court regarding a zoning determination, a complainant must demonstrate that there is no competent, credible evidence supporting the trial court's decision. Metro-Petroleum, Inc., et al. v. City of Warrensville Hts., (April 28, 1994), Cuyahoga App. No. 64971, unreported. In Ohio, a strong presumption exists in favor of the validity of a zoning ordinance enacted pursuant to a city's police power. Village of Hudson v. Albrecht Inc. (1984), 9 Ohio St.3d 69; Downing v. Cook (1982), 59 Ohio St.2d 149. A municipality may lawfully restrict the use of land within its boundaries by reasonable, non-arbitrary, legislatively created zoning ordinances. Euclid v. Amber Realty Co. (1926), 272 U.S. 365. -11- In Karches v. Cincinnati (1988), 38 Ohio St.3d 12, the Ohio Supreme Court set forth the standard for review: In reviewing the Court's judgment, we are guided by the principle that judgments supported by competent, credible evidence going to all the material elements of the case must not be reversed, as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279. Every reasonable presumption must be made in favor of the judgment and the findings of facts. Sesons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. Finally, if the evidence is susceptible of more than one construction, we must give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the trial court's verdict and judgment. Seasons Coal Co.; Gates v. Bd. of Edn. of River Local School Dist. (1967), 11 Ohio St.2d 83; Ross v. Ross (1980), 64 Ohio St.2d 203, 204. In Mayfield-Dorsch, Inc. v. South Euclid (1981), 68 Ohio St.2d 156, the Ohio Supreme Court stated: It is a fundamental principle of Ohio zoning law *** the parties challenging the validity of a zoning classification, have, at all stages of this litigation, the burden of demonstrating the unconstitutionality or unreasonableness of the zoning code. Id. at 157 citing Leslie v. Toledo (1981), 66 Ohio St.2d 488, 489; Brown v. Cleveland (1981), 66 Ohio St.2d 93, 95; Hilton v. Toledo (1980), 62 Ohio St.2d 394, 396. C. THE TRIAL COURT DID NOT ERR IN ENJOINING DEFENDANT-APPELLANT FROM CONDUCTING THE RYDER TRUCK RENTAL AGENCY. In the case sub judice, a review of the record demonstrates that the trial court correctly determined that defendant- appellant's use of the Zoning Lot located at 7908 West 130th -12- Street, Strongsville, Ohio for a Ryder Truck Rental Agency was a violation of Strongsville's Zoning Code and should be discontinued. As previously set forth, defendant-appellant's Zoning Lot is located within a Local Business District. Automotive service stations are not permitted in a Local Business District with the exception of those that qualify as a prior existing nonconforming use. Since defendant-appellant's business, as well as preceding automotive service stations, have existed on the property in question prior to the enactment of Section 1258.02 of the Strongsville Zoning Code, the trial court properly determined that defendant-appellant's automotive service station qualified as a prior nonconforming use. Section 1240.08 of the Strongsville Zoning Code defines nonconforming use as follows: "Nonconforming Use" means the use of a building or land, existing lawfully at the time this Zoning Code, or an amendment thereto, became effective, but which does not conform to the use regulations, off-street parking and loading requirements, performance standards or other use regulations of the district in which it is located. Section 1274.07 of the Strongsville Zoning Code, which deals with changes in prior nonconforming uses, states: The use of nonconforming building or lot may be changed only to conform to the regulations of the district in which the building or lot is located, and only if approved by the Planning Commission, after a public hearing. Thereafter, it shall not be changed back to the former nonconforming status. -13- Contrary to defendant-appellant's position, the storage, maintenance and rental of Ryder trucks does not merely constitute a lawful extension of services provided by an automotive service station but rather, a separate business entity independent from and in addition to the prior nonconforming use permitted under the Zoning Code. Since this additional use is not permitted by the Zoning Code in a Local Business District and defendant- appellant failed to make any application to the City of Strongsville for approval of a truck rental agency on the Zoning Lot in question, the trial court properly enjoined defendant- appellant from operating such a business. Defendant-appellant's contention that there is no visible difference between the automotive service station presently and prior to the time he began renting Ryder trucks is irrelevant to whether such use is permitted under the Zoning Code. Similarly, the fact that defendant-appellant possibly improved the outward appearance of the automotive service station since purchasing the Zoning Lot does not provide defendant-appellant with the unrestricted opportunity to operate a new business out of the Zoning Lot which is in direct conflict with the City of Strongsville's Zoning Code. See, Beck v. Springfield Twp. Bd. of Zoning Appeals (1993), 88 Ohio App.3d 443. Accordingly, this court finds that the judgment of the trial court which enjoined defendant-appellant from operating a Ryder Truck Rental Agency in a Local Business District is based upon competent credible evidence going to all the essential elements -14- of the case and is not against the manifest weight of the evidence. Defendant-appellant's sole assignment of error is not well taken. Judgment of the trial court is affirmed. -15- It is ordered that appellee recover of appellant its 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. SPELLACY, C.J. and PATTON, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .