[Cite as Abdelqader Holdings, L.L.C. v. Akron Bd. of Zoning Appeals, 2020-Ohio-1195.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

ABDELQADER HOLDINGS, LLC                                  C.A. No.         29342

        Appellant

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
AKRON BOARD OF ZONING APPEALS                             COURT OF COMMON PLEAS
                                                          COUNTY OF SUMMIT, OHIO
        Appellee                                          CASE No.   CV-2018-08-3307

                                DECISION AND JOURNAL ENTRY

Dated: March 31, 2020



        TEODOSIO, Presiding Judge.

        {¶1}    Abdelqader Holdings, LLC, appeals the judgment of the Summit County Court of

Common Pleas affirming the decision of the Akron Board of Zoning Appeals. We affirm.

                                                     I.

        {¶2}    In May 2018, Abdelqader Holdings, LLC, (“Abdelqader”) was issued an Order to

Comply for violating Section 153.280(G) of the Akron Code by operating a tire sales business at

1428 Copley Road, Akron, Ohio. The 12,902 square foot parcel sits within two different zoning

districts. The eastern portion of the property, which is slightly more than half, is within a Class

U3 retail business district, while the western portion of the property is within a Class U4

commercial district. The structure from which Abdelqader operates its business is predominantly

situated on the eastern portion of the property. Tire sales are recognized as a “commercial use”

under Section 153.285 of the Akron Code and qualify as a restricted use violation within a Class

U3 (Retail Business) District.
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       {¶3}    Abdelqader appealed the Order to Comply to the Akron Board of Zoning Appeals

(“the Board”), which heard and denied the appeal. Abdelqader subsequently appealed to the

Summit County Court of Common Pleas, which affirmed the Board’s decision. Abdelqader now

appeals to this Court, raising two assignments of error.

                                                II.

                                ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ABUSED ITS DISCRETION BECAUSE ITS DECISION
       IS NOT SUPPORTED BY A PREPONDERANCE OF RELIABLE, PROBATIVE
       AND SUBSTANTIAL EVIDENCE.

       {¶4}    In its first assignment of error Abdelqader argues that the trial court abused its

discretion because its decision was not supported by a preponderance of reliable, probative, and

substantial evidence. We disagree.

       {¶5}    Under R.C. 2506.04, a trial court considering an administrative appeal reviews the

order at issue to determine whether it is “unconstitutional, illegal, arbitrary, capricious,

unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence

on the whole record.” The scope of this Court’s review of the trial court decision, however, is

“narrower and more deferential”: “[T]he standard of review for courts of appeals in administrative

appeals is designed to strongly favor affirmance. It permits reversal only when the common pleas

court errs in its application or interpretation of the law or its decision is unsupported by a

preponderance of the evidence as a matter of law.” Cleveland Clinic Found. v. Cleveland Bd. of

Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, ¶ 25, 30. When reviewing a trial court’s

decision in an administrative appeal, this Court must determine whether, as a matter of law, the

trial court's decision is unsupported by a preponderance of reliable, probative, and substantial
                                                   3


evidence. Independence v. Office of Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-

4650, ¶ 14, citing Kisil v. Sandusky, 12 Ohio St.3d 30, 34 (1984).

        {¶6}    In its order affirming the decision of the Board, the trial court made the following

findings as to the facts:

        The Property is split between two zoning classifications. The eastern portion of the
        Property, slightly more than half, is zoned U3 for retail use. The western portion
        of the Property, slightly less than half, is zoned U4 for commercial use. There is a
        building on the Property, which sits primarily on the eastern portion zoned U3.
        Retail use is permitted in U4 zoning; however, commercial use in not permitted in
        U3 zoning. Selling tires is considered commercial use. Abdelqader does not
        dispute that it has been selling tires from the eastern portion of the Property.

The trial court went on to determine:

        The Board did not apply U3 retail zoning to the entire parcel; rather, it found that
        Abdelqader was selling tires on the portion of the Property zoned U3 retail. There
        is no ambiguity as to the zoning of the property. The eastern portion is zoned U3
        retail, and the western portion is zoned U4 commercial.

        {¶7}    Abdelqader contends the trial court “fail[ed] to consider, as a practical matter, the

effect of such enforcement * * * [and that it] belie[d] reality to suggest that tire sales on the western

half of the Property, a permissible use since it is zoned U4 commercial, would have a different

impact, if any, on the surrounding properties than sales on the eastern portion.” Abdelqader goes

on to list evidence that it believes the trial court failed to consider: the Summit County Fiscal

website lists the property as U4 commercial zoning; no opponents appeared at the Board hearing

to speak against Abdelqader’s appeal; there were no complaints by the public in response to the

city’s mailers; the matter came to the attention of the city by way of a competitor; the councilman

who received the complaint was absent from the hearing; and the City could only speak to a

supposed unnamed neighbor with unspecified concerns.

        {¶8}    Abdelqader fails to indicate the relevance of any of this evidence in the

determination that the selling of tires was a commercial use that was not permitted on land zoned
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U3 for retail use. Moreover, the trial court’s determination is supported by a preponderance of

reliable, probative, and substantial evidence; such evidence consisting of facts not in dispute, as

described above.

       {¶9}    Finally, we find no merit to Abdelqader’s argument that “enforcing the more

restrictive U3 retail zoning classification on a single use parcel of property * * * is inherently

ambiguous.” (Emphasis sic.) Abdelqader may disagree with the usefulness of such enforcement,

but it fails to persuade us of its ambiguity, and we cannot conclude that such enforcement is in any

way ambiguous.

       {¶10} Abdelqader’s first assignment of error is overruled.

                                ASSIGNMENT OF ERROR TWO

       THE TRIAL [COURT] ERRED AS A MATTER OF LAW BY FAILING TO
       FIND THAT ENFORCEMENT OF THE CITY’S SPLIT-ZONING
       CLASSIFICATION SCHEME TO A SINGLE PARCEL OF PROPERTY IS
       UNCONSTITUTIONAL AS APPLIED.

       {¶11} In its second assignment of error, Abdelqader argues the trial court erred by failing

to find that enforcement of the city’s split-zoning classification to a single parcel of property was

unconstitutional as applied. We disagree

       {¶12} “Zoning is a valid legislative function of a municipality's police powers.” Jaylin

Invests., Inc. v. Moreland Hills, 107 Ohio St.3d 339, 2006–Ohio–4, ¶ 10. “A zoning regulation is

presumed to be constitutional unless determined by a court to be clearly arbitrary and unreasonable

and without substantial relation to the public health, safety, morals, or general welfare of the

community.” Goldberg Cos., Inc. v. Richmond Hts. City Council, 81 Ohio St.3d 207 (1998),

syllabus. “The burden of proof remains with the party challenging an ordinance's constitutionality,

and the standard of proof remains ‘beyond fair debate.’” Id. at 214. “[T]here is little difference
                                                    5


between the ‘beyond fair debate’ standard and the ‘beyond a reasonable doubt’ standard.” Cent.

Motors Corp. v. Pepper Pike, 73 Ohio St.3d 581, 584 (1995).

        {¶13} Abdelqader first argues that the trial court applied the incorrect standard of review.

In its analysis of Abdelqader’s unconstitutionality argument, the trial court set forth the following

standard:

        “Zoning ordinances are presumed constitutional.” Goldberg Cos. V. Council of
        Richmond Heights, 81 Ohio St.3d 207, 209, 1988-Ohio-456. “The party
        challenging the constitutionality of a zoning ordinance bears the burden of proof
        and must prove unconstitutionality beyond fair debate.” Id. “To strike a zoning
        ordinance on constitutional grounds [a party] must demonstrate, beyond fair debate,
        that the zoning classification is unreasonable and not necessary to the health, safety
        and welfare of the municipality.” [Karches v. City of Cincinnati, 38 Ohio St. 3d 12,
        19.]

        {¶14} This is an accurate recitation of the law. Although Abdelqader is correct in noting

that earlier in its judgment entry, the trial court stated a standard of review indicating deference to

the administrative agency’s resolution of evidentiary conflicts, the trial court also acknowledged

that the Board did not consider the constitutional claim, nor did it have authority to render a

decision on such a claim. See Reading v. Pub. Util. Comm., 109 Ohio St.3d 193, 2006-Ohio-2181,

¶ 15. Consequently, there was no deference to be given; Abdelqader fails to identify any actual

improper application of deference, and this Court likewise finds no improper application.

Moreover, the trial court’s ultimate determination is based upon Abdelqader’s failure to meet its

burden, and not upon any evidentiary conflict.

        {¶15} With regard to evidence, Abdelqader further argues that the trial court erred by

striking its exhibits, attached to its brief to the trial court, containing additional evidence. The trial

court correctly noted that in hearing the administrative appeal, “the court shall be confined to the

transcript filed under section 2506.02 of the Revised Code unless it appears, on the face of that

transcript or by affidavit filed by the appellant, that one of [several specific exceptions] applies *
                                                  6


* *.” The trial court also noted the requirements of Loc.R. 19.04 of the Court of Common Pleas

of Summit County, General Division:

       In all appeals where the submission of additional evidence is required or permitted
       by law, a motion to supplement the record shall be filed within fourteen (14) days
       after the filing of the record of proceedings, supported by affidavit requesting the
       submission of additional evidence and specifying the nature and type of additional
       evidence to be submitted and the reasons therefor.

       {¶16} In striking the exhibits, the trial court found that Abdelqader had failed to properly

move to supplement the record with exhibits six through fifteen, and that it did not offer an affidavit

or otherwise argue the requirements of R.C. 2506.03. Abdelqader had failed to show any error

with regard to this ruling.

       {¶17} Abdelqader next argues that the zoning division is arbitrary and unreasonable

because it splits a 12,902 square foot parcel of land into two nearly equal zones. Abdelqader

argues that as a consequence, even though nearly half of the property is zoned for commercial use,

it cannot operate its automotive tire sales business because most of the structure from which it

operates is located on the portion of the property zoned for retail use, and that the restriction is a

“de facto rezoning of the Property as U3 retail in its entirety.”

       {¶18} In making its constitutionality argument, Abdelqader relies upon Nectow v. City of

Cambridge, 277 U.S. 183 (1928). In Nectow, the appellant was the owner of a tract of land when

a zoning ordinance was enacted by the City of Cambridge, Massachusetts. Id. at 186. Appellant’s

land was placed into a zoning district that “permitted only dwellings, hotels, clubs, churches,

schools, philanthropic institutions, greenhouses and gardening, with customary incidental

accessories.” Id. at 185. Appellant argued that the application of the ordinance “deprived him of

his property without due process of law in contravention of the Fourteenth Amendment.” Id. In
                                                   7


reversing judgment, the Supreme Court determined there was an insufficient basis for the

restriction on the appellant’s land. Id. at 188.

       {¶19} Unlike Nectow, however, there is no evidence or indication that Abdelqader was

the owner of, or held any interest in, the parcel in question at the time the zoning was enacted.

Likewise, there was no indication that zoning was enacted after Abdelqader started using the

property for the sale of automotive tires, which contravenes its argument that the restriction acted

as a “de facto rezoning.” We note, however, these are distinguishing factors, and not dispositive.

       {¶20} The trial court found as follows:

       [T]he record contains little information as to the health, safety, and welfare of the
       municipality. The parcel to the immediate north of the Property is zoned
       residential, the parcel to the immediate east is zoned U3 retail and used as a
       convenience store, the parcel to the immediate west is zoned U4 commercial but
       used as retail, and the property to the immediate south is zoned U4 commercial but
       used as retail. U3 retail is permitted within U4 commercial zoning; therefore, it is
       undisputed that Abdelqader is permitted to use the entire Property for retail use.

       The [c]ourt finds that Abdelqader has failed to meet its burden to establish that the
       Board’s decision is unconstitutional. Notably, the Board’s decision does not
       indicate that Abdelqader cannot use the western portion of the Property for
       commercial use; rather the evidence indicates that Abdelqader is using the eastern
       portion of the Property, zoned U3 retail, for commercial use. The Court finds that
       preventing a commercial use on this portion of the Property is not unreasonable or
       arbitrary, given that the Property abuts residential and retail use.

       {¶21} As noted by the trial court, Abdelqader did not meet its burden of proof to establish

that the zoning was clearly arbitrary and unreasonable. In essence, Abdelqader argues that because

it cannot use the structure located within the U3 zone for commercial use, the division is arbitrary

and unreasonable. Abdelqader fails to provide any authority to support the notion that the

property’s division into two separate and different zoning classifications is arbitrary and

unreasonable.
                                                 8


       {¶22} Although the placement of the structure on the parcel may make commercial use of

the property impractical, such inconvenience does not necessarily lead to the conclusion that the

restriction is arbitrary and unreasonable. Zoning regulations are inherently restrictive in purpose.

And that is where Abdelqader’s argument falls short; evidence of a hindrance is not proof of

unconstitutionality.

       {¶23} Abdelqader’s second assignment of error is overruled.

                                                III.

       {¶24} Abdelqader’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.
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      Costs taxed to Appellant.




                                           THOMAS A. TEODOSIO
                                           FOR THE COURT



SCHAFER, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

JACK MORRISON, JR., THOMAS R. HOULIHAN, THOMAS A. MARINO, II, and JOSHUA
VAUGHAN, Attorneys at Law, for Appellant.

EVE V. BELFANCE, Director of Law, and BRIAN D. BREMER and JOHN R. YORK, Assistant
Directors of Law, for Appellee.
