COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71242 NORMAN J. KOTOCH : : Appellee : : JOURNAL ENTRY -vs- : AND : OPINION BOARD OF BUILDING AND ZONING : APPEALS OF THE CITY OF HIGHLAND : HEIGHTS, OHIO : : Appellant : : DATE OF ANNOUNCEMENT OF DECISION SEPTEMBER 4, 1997 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 298591 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Appellee: For Appellant: TIMOTHY J. GRENDELL, ESQ. TIMOTHY G. PALUF, ESQ. KATHLEEN M. BLOOD, ESQ. 410 Leader Building Taft, Stettinius & Hollister 526 Superior Avenue 1300 East 9th Street Cleveland, Ohio 44114 Sixth Floor Cleveland, Ohio 44114 - 2 - JAMES M. PORTER, P.J., Appellant Board of Zoning Appeals of the City of Highland Heights, Ohio ("Board") appeals from the decision of the Common Pleas Court reversing the decision of the Board which refused to approve appellee Norman J. Kotoch's site plan for use of five acres of land near the Cuyahoga County Airport to erect a mini-storage facility for lease of self-contained compartments to the public. The Board contends that the trial court erred, as a matter of law, in holding that the City had the burden of refuting appellee's evidence, in finding that the City's evidence did not support the denial of appellee's site plan, and abused its discretion by substituting its judgment for that of the Board. We find no merit to the appeal and affirm. Appellee owns property at 355 Bishop Road, Highland Heights, Ohio and the contractual rights to purchase adjacent property at 351 Bishop Road. The two parcels are each 75 feet wide and are zoned for Park-Commercial Light-Manufacturing (PCM) use. On August 21, 1995, appellee, an experienced real estate developer, submitted to the Highland Heights Planning and Zoning Commission ("Commission") a preliminary site plan to develop the two Bishop Road lots for a mini-storage facility for lease of self- serve units to customers to store personal or household goods. In opposition to the plan, the City contended that the PCM zoned property could not be used for the erection of a storage facility and that such a retail use is explicitly prohibited by Zoning Code - 3 - Section 1131.04(f). In addition to the prohibited use, the Zoning Code states that PCM lots must have frontage requirements on Bishop Road of 220 feet (Section 1143.02). Appellee Kotoch's two 75 foot lots could not, even if combined, meet those requirements and the 150 foot frontage would require a 70 foot variance. At a Planning and Zoning Commission public meeting on October 9, 1995, the Commission took up the issue of whether variances should be allowed under the frontage requirements and the use restrictions of Section 1131.04(f), which stated in full text as follows: 1131.04 USE REGULATIONS Buildings and land shall be used, and buildings shall be designed, erected, altered, moved or maintained in whole or in part only for the main or accessory uses set forth in the following schedules and regulations: *** (f) Park-Commercial-Light Manufacturing Districts. (1) Main buildings and uses: A. Offices and laboratories as permitted in an Office Building District. B. Production, metal: cutting, casting, stamping, electric, gas and ultrasonic welding, grinding, machining and finish- ing as incidental component operations (but not as a single operation), only in the production and/or assembly of products which has a high value in relation to bulk, such as: Automotive and aircraft parts. Electrical and electronic equipment, motors. Electrical appliances: lamps, fixtures and clocks. Hardware, cutlery, kitchen utensils. Instruments: musical and scientific. - 4 - Instruments and equipment: medical, orthopedic and photographic. Sporting goods, athletic equipment, toys. The above listed products are intended to be exemplary but not all-inclusive. C. Production, nonmetal: Clothing and other textile products. Pharmaceutical products: compounding of cosmetics, drugs and toiletries. Plastics: extrusion, molding and fabrica- ting of panels, sheets, tubes and rods. Printing, publishing and engraving. Wood: fabrication of furniture, cabinets and other wood products. D. Distribution operations: The storage and distribution of those products which may be produced in this district, and the storage and distribution of foods and beverages. Other products as approved by the Commission, provided the Commission finds the products to be similar and conforms with the basic characteristics of the enumerated permitted uses, and approves inclusion of the product. E. Other main buildings and uses: Postal stations; telephone exchange, electrical distribution substation. (2) Accessory buildings and uses: A. Off-street parking and loading facilities, parking garages. B. Maintenance and storage within wholly enclosed buildings. (Ord. 21-1963. Passed 7-9-63.) (3) Retail sales and services are strictly prohibited. Distribution incident to manufacturing and production are permitted as well as wholesale sales. (Ord. 19-1972. Passed 10-24-72; Ord. 34-1974. Passed 5-13-75.) - 5 - Appellee contended that Subsection (1)(D) permitted the storage facility and no variance was needed. The City argued that the main building use permitted by Subsection (1)(D) ("the storage and distribution of those products which may be produced in this district ***") was that of a distribution center and the permitted storage of products was only ancillary to such distribution. The appellee's proposed use of the facility was for storage per se, that is, the rental of space within the facility to customers to store their goods, not to distribute them. No main building use as a distribution center was proposed. Appellee's request for the site plan approval was administratively denied by the Commission as a prohibited use under the Zoning Code, but his request for a 70 foot variance from the 220 foot frontage requirement was granted based upon the "practical difficulties" standard for area variances. On November 9, 1995, the Board of Building Standards and Zoning Appeals ("Board") heard neighboring residents' objections to the 70 foot frontage variance and Mr. Kotoch's appeal from the denial of the site plan by the Commission. George Smerigan, President of Northstar Planning & Design Inc., an experienced planning consultant, testified at length on behalf of Kotoch. Smerigan testified that a mini-storage facility on Kotoch's property was a permitted use under Section 1131.04(f)(1)(D) and, in fact, was the only zoning classification under the Zoning Code that allowed such storage use. (Tr. 124). - 6 - He also testified that leasing storage space to individuals did not constitute "retail sales or service," as the Commission had found under Subsection (f)(3). (Tr. 125-127). Neither the City nor the Board offered any planning or building evidence to rebut Smerigan's testimony. (Tr. 95-171). In the alternative, Smerigan testified that a controlled mini- storage facility as Kotoch proposed was permitted as a Similar Use in the PCM district under Section 1113.09 of the Zoning Code which prescribed the following standards: (a) Such use is not listed in any other classification of permitted buildings or uses; (b) Such a use is more appropriate and conforms to the basic characteristic of classification to which it is to be added than in any other classification; (c) Such a use does not create dangers to health and safety, and does not create offensive noise, vibration, dust, heat, smoke, odor, glare or other objectionable influences to an extent greater than normally resulting from other uses listed in the classification to which it is to be added, and; (d) Such a use does not create traffic substantially greater than the other uses listed in the classification to which it is to be added. Applying the Similar Use Standards, Smerigan testified that "this [PCM district] is in fact the most appropriate district in which to place the mini-storage. It certainly belongs more appropriately in this district than any other district that are presently in the code." (Tr. 129). He also found the facility was - 7 - consistent with the uses provided for in the PCM zoning as evidenced by the next door UPS facility. (Tr. 107). Smerigan also testified that a mini-storage facility would not pose any health, welfare, or safety problems, nor would it create increased nuisances (none more than already emanating from other uses permitted in Section 1131.04(f)(1)). (Tr. 129). The Board members and neighboring residents raised concerns regarding safety issues that the storage facility presented (including but not limited to, burglaries and fire hazards), declining property valuations, and those associated with the strict prohibition of retail sales in the PCM District. Following this lengthy hearing, the Board voted three to one to deny appellee's request for site plan approval, but approved the 70 foot frontage variance. On November 17, 1995, appellee filed an administrative appeal in the Cuyahoga County Common Pleas Court pursuant to R.C. Chapter 2506. The matter was heard on the original administrative record without additional evidence. On August 23, 1996, the trial court reversed the Board's decision to deny appellee's site plan approval and entered judgment in favor of appellee. Thereafter, the trial court issued its Opinion and Order which stated in pertinent part: At the hearing before the BBZA [Board], the Appellant presented a substantial amount of evidence, primarily in the form of expert testimony, to support his position that parcels of land on Bishop Rd. would be an appropriate location for the proposed mini-storage facility and that such use was permissible under the existing zoning ordinances of the City of - 8 - Highland Heights. However, there was virtually no evidence presented by the City of Highland Heights to rebut the evidence presented by the Appellant or to support the City's position that the storage facility would create objectionable influences (crime, traffic, etc...) to an extent greater than already created by other uses in the area. For these reasons it is the finding of this Court that the decision of the BBZA was unreasonable and was not supported by a preponderance of reliable and probative evidence. The decision of the BBZA is reversed and the BBZA is hereby ordered to approve the site-plan for a mini-storage facility submitted by the Appellant. From the decision of the trial court, this timely appeal ensued. Assignments of error I and II state as follows: I. THE TRIAL COURT ERRED AS A MATTER OF LAW, PREJUDICIAL TO THE CITY, BY PLACING A BURDEN OF REBUTTAL ON THE CITY AND BY REVERSING THE HIGHLAND HEIGHTS BOARD OF BUILDING AND ZONING APPEALS BECAUSE THE DECISION OF THE BZA TO AFFIRM THE DENIAL OF THE SITE PLAN IS SUPPORTED BY SUFFICIENT EVIDENCE, IS NOT ARBITRARY, CAPRICIOUS OR UNREASONABLE, AND IS RATIONALLY RELATED TO LEGITIMATE HEALTH, SAFETY AND WELFARE CONCERNS. II. THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO UPHOLD THE DECISION OF THE HIGHLAND HEIGHTS BOARD OF BUILDING AND ZONING APPEALS AND BY SUBSTITUTING ITS JUDGMENT FOR THAT OF THE ADMINISTRATIVE BODY AND NOT GRANTING THE BZA DUE DEFERENCE. This case presents for our review an appeal from a trial court's disposition of a R.C. Chapter 2506 administrative appeal from a Board of Zoning Appeals. The constitutionality of the Highland Heights Zoning Code is not at issue. The scope of review - 9 - both at the trial court and appellate level was well established in Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34: When a zoning ordinance is enforced in an unreasonable and arbitrary manner, as in this case, it is the responsibility of the trial court, reviewing the action pursuant to R.C. Chapter 2506, to reverse the findings of the board of zoning appeals. The scope of review by the trial court is set forth in R.C. 2506.04, which requires the court to examine the "substantial, reliable and probative evidence on the whole record." This court has noted in Cincinnati Bell v. Glendale (1975), 42 Ohio St.2d 368, 370 [71 O.O.2d 331], that "*** [a]lthough a hearing before the Court of Common Pleas pursuant to R.C. 2506.01 is not de novo, it often in fact resembles a de novo proceeding. R.C. 2506.03 specifically pro- vides that an appeal pursuant to R.C. 2506.01, 'shall proceed as in the trial of a civil action,' and makes liberal provision for the introduction of new or additional evidence." A court of common pleas should not substitute its judgment for that of an administrative board, such as the board of zoning appeals, unless the court finds that there is not a preponderance of reliable, probative and substantial evidence to support the board's decision. This court pointed out in Dudukovich v. Housing Authority (1979), 58 Ohio St.2d 202, 207 [12 O.O.3d 198], "[t]he key term is 'preponderance.'" The court went on further to explore the scope of review by the appellate courts and found, "[i]n determining whether the standard of review prescribed by R.C. 2506.04 was correctly applied by the Court of Common Pleas, both this court [the Supreme Court] and the Court of Appeals have a limited function." Id. In an R.C. Chapter 2506 administrative appeal of a decision of the board of zoning appeals to the common pleas court, the court, pursuant to R.C. 2506.04, may reverse the board if it finds that the board's decision is not supported by a preponderance of reliable, probative and substantial evidence. An appeal to the court of appeals, pursuant to R.C. 2506.04, is more limited in scope and requires - 10 - that court to affirm the common pleas court, unless the court of appeals finds, as a matter of law that the decision of the common pleas court is not supported by a preponderance of reliable, probative and substantial evidence. Appellant has incorrectly stated the standard of review for an administrative appeal under the circumstances presented. Appellant erroneously cites to the two-pronged "beyond fair debate" test cited in Columbia Oldsmobile, Inc. v. City of Montgomery (1990), 56 Ohio St.3d 60. (Aplt's Brf. p. 8-14). These involve declaratory judgment actions raising constitutional challenges. This case, however, concerns an R.C. Chap. 2506 administrative appeal, not a constitutional challenge to the City's Zoning Code. The proper standard of review is whether, as a matter of law, the decision of a common pleas court is supported by a preponderance of reliable, probative and substantial evidence, not the two-pronged "beyond fair debate" test. We must, in the first instance, review the zoning ordinance at issue to determine whether the mini-storage facility proposed by appellee was a permitted use within the PCM District under Section 1131.04(f)(1)(D) as appellee contends or the Similar Use Provision of Section 1113.09. As a matter of construction, we are compelled to agree with the Board that the proposed use is not literally a permitted use under Section 1131.04(f)(1)(D). In construing a zoning ordinance, it is our purpose to determine the intent of the legislative body, giving full effect to the intention expressed and the normal meaning of the words used. "Courts are reluctant to - 11 - interfere with the interpretations of a local ordinance and are inclined to defer to the judgment of the municipal body so long as the ordinance bears a substantial relation to public health morals, safety or welfare and is not arbitrary or unreasonable." Mayfield Hts. v. Cardarelli (1989), 63 Ohio App.3d 812, 817. Where an ordinance is plain and unambiguous and conveys a clear and definite meaning, a court is to apply that interpretation. BP Oil Co. v. Dayton Bd. of Zoning Appeals (1996), 109 Ohio App.3d 423, 430. This Court finds that the plain meaning of Section 1131.04(f)(1)(D) is that storage is permitted on property in the PCM District in collaboration with a main building and use dedicated to distribution operations. A permitted use is then allowed for "storage and distribution of those products which may be produced in this district, and the storage and distribution of foods and beverages." The proposed use of leasing self-serve compartments to members of the public for storage of personal or household goods does not fall within the permitted use specified by the Subsection (1)(D). However, we do find that application of the Similar Use Section of the Code (1113.09) does operate to allow construction of the mini-storage facility in the PCM District. The same standard of review of the trial court and zoning board stated above applies to this determination. See Amser Corp. v. Village of Brooklyn Heights (May 6, 1993), Cuyahoga App. No. 62140, unreported at 15- 16. - 12 - When a zoning code does not specifically permit a use anywhere within the municipality, resort may be had to a catch-all similar use classification to determine a permitted use by analogy. Since a stand-alone storage facility is nowhere specifically permitted or even referenced in the Highland Heights Zoning Code, "such use is not listed in any other classification of permitted buildings or uses" within the meaning of the Subsection (a) of the Similar Use Section 1113.09. The unrebutted evidence offered by appellee, primarily through the testimony of expert planning consultant Smerigan, was also sufficient to satisfy the other Similar Use requirements of Subsections (b),(c) and (d). That is, the mini- storage facility "is more appropriate and conforms to the characteristics [of the PCM District] more than any other"; such a use does not create dangers to health and safety, objectionable environmental influences, or traffic congestion beyond those already allowed in the district to which the Similar Use is proposed. Since the UPS facility which would exist next door to the mini-storage facility far exceeds the nuisance and disruptive potential that a mini-storage facility would offer, we find that its construction and operation is a permitted use under the Similar Use exception in the Highland Heights Zoning Code. An administrative denial of a permitted use amounts to unlawful rezoning without legislative action. Hydraulic Press Brick Co. v. Council of City of Independence (1984), 16 Ohio App.3d 204, 208; Gillespie v. Stow (1989), 65 Ohio App.3d 601, 607; Amser Corp. v. - 13 - Village of Brooklyn Heights (May 6, 1993), Cuyahoga App. No. 62140, unreported at 24. Contrary to appellant's contentions, the trial court properly placed the burden upon the City to rebut the extensive expert testimony presented by Kotoch. Amser Corp. v. Village of Brooklyn Heights (May 6, 1993), Cuyahoga App. No. 62140, unreported at 25 ("*** the burden of proving that the Village's decision is not supported by a preponderance of reliable and probative evidence is upon appellants. However, once appellants have met their burden, the Village must present some evidence to the contrary."). Although Smerigan was questioned by the Board members and affected neighbors, it is fair to say that no concrete evidence was offered in rebuttal. The City did raise three possible health, safety and welfare concerns that it associated with a controlled mini-storage facility: (1) potential break-ins; (2) inadequate waste removal; and (3) storage of dangerous materials. (Aplt's Brf. p. 8). However, it was apparent from the evidence below that the risk of these concerns was minimal or non-existent. Smerigan testified that storage facilities were not any more susceptible to break-ins than facilities under other permitted uses. Evidence was also presented that trash would be removed on a weekly basis and the possibility of something exploding was speculative, since it was contrary to the lease terms Kotoch would use. The record clearly demonstrated that Kotoch's proposed mini-storage facility posed no - 14 - significant health, safety and welfare concern to the City or its residents. Kotoch's expert testimony established that the massive UPS trucking and distribution facility directly next door to Kotoch's property presented a far more hazardous and unpleasant site condition than the proposed mini-storage facility. The UPS facility contains on-site gasoline tanks, emits noxious fumes and generates large volumes of daily traffic from semi-trailers and panel trucks. (Tr. 186). Appellant contends that the Board excluded Kotoch's mini- storage facility "for the good of the community and for the general protection of land value in the City." (Aplt's Brf. p. 10). We fail to see that the use of the property as a mini-storage facility would detrimentally affect the surrounding property values in comparison to that of the UPS facility. Under 1131.04(f)(1), PCM district permitted uses also include the manufacturing of metal and nonmetal products, distribution operations, etc. It is unreasonable for the City to maintain that a controlled mini- storage facility would somehow be more detrimental to the surrounding residential area than a manufacturing facility or the current UPS facility. Failing to substantiate the denial of the proposed mini-storage facility, the City did not base its decision upon substantial, reliable and probative evidence. The City failed to advance any meaningful health, safety and welfare issues or produce material evidence to support its denial - 15 - of appellee's site plan. We find no error in the trial court's ruling, as it is supported by reliable, probative and substantial evidence. Assignments of Error I and II are overruled. III. THE TRIAL COURT ERRED AS A MATTER OF LAW, PREJUDICIAL TO THE CITY, BY REFUSING TO ACKNOWLEDGE THAT APPELLEE RELIED ON SELF- IMPOSED HARDSHIPS TO ACQUIRE SITE PLAN APPROVAL. As discussed above, the intended use was permitted under the Similar Use provision of the zoning code. Kotoch never applied for a use variance, contending instead that his use was permitted. It is when a property owner applies for a use variance due to the fact his proposed use is not permitted that the self-imposed hardship analysis comes into play. See Consolidated Mgmt., Inc. v. Cleveland (1983), 6 Ohio St.3d 238, 242 ("Where a purchaser of commercial property acquires the premises with knowledge of the zoning restrictions, he has created his own hardship and generally cannot thereafter apply for a zoning variance based on such hardship."); FRC of Kamms Corner v. Bd. of Appeals (1984), 14 Ohio App.3d 372, 375 (property owner creating own hardship cannot thereafter apply for a variance based on that hardship). Therefore, since no variance was applied for or needed in this case, whether the appellee relied on a self-imposed hardship or not, is irrelevant since his intended use is permitted under the code. Assignment of Error III is overruled. - 16 - Judgment affirmed. - 17 - It is ordered that appellee recover of appellant his 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 Court of Common Pleas 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. O'DONNELL, J., and KARPINSKI, J., CONCUR. JAMES M. PORTER PRESIDING 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 of decision by the .