[Cite as Speedway, L.L.C. v. Berea Planning Comm., 2013-Ohio-3433.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 99341




                           SPEEDWAY L.L.C., ET AL.
                                                                      PLAINTIFFS-APPELLANTS

                                                   vs.

           PLANNING COMMISSION CITY OF BEREA
                                                                      DEFENDANT-APPELLEE



                                  JUDGMENT:
                            REVERSED AND REMANDED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CV-780197

        BEFORE: Rocco, J., Stewart, A.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED: August 8, 2013
ATTORNEYS FOR APPELLANTS

Anthony J. Coyne
Tracey S. McGurk
Bruce G. Rinker
Mansour, Gavin, Gerlack & Manos
55 Public Square
Suite 2150
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Anthony R. Vacanti
John P. Slagter
Buckingham, Doolittle & Burroughs
1375 East Ninth Street
Suite 1700
Cleveland, Ohio 44114

James N. Walters, III
31 East Bridge Street, Suite 302
P.O. Box 297
Berea, Ohio 44017
KENNETH A. ROCCO, J.:

      {¶1} After purchasing real estate from Westbridge L.L.C., Speedway L.L.C.

(“Speedway”) (collectively “appellants”) submitted an application to the Planning

Commission, city of Berea (“Planning Commission”) seeking approval to build a gasoline

station in the city of Berea (“the City”) at 880 North Rocky River Drive (“the Site”). The

Planning Commission denied Speedway’s application. Appellants appealed the decision

in the court of common pleas.         The common pleas court upheld the Planning

Commission’s ruling. Appellants now appeal to this court, asserting that the common

pleas court erred in upholding the Planning Commission’s decision. We agree with

appellants and so we reverse and remand the final judgment.

      {¶2} At the time that Speedway proposed to build the gas station in October 2011,

the Site was zoned General Commercial.     According to

§ 300.5(a)(iii) of the Berea Zoning Code (“the Zoning Code”), gas stations were a

permitted use on land zoned General Commercial.         The City was in the process of

updating its zoning map when it received Speedway’s application, and the City planned to

rezone the area where the Site was located.   Under the yet-to-be-enacted revisions to the

Zoning Code, a gas station would be a prohibited use on the Site.

      {¶3} Speedway sought a number of approvals from the Planning Commission:

the Site-plan approval; approval to demolish the existing structures on the Site; approval

of two height variances; approval of two different signs; landscaping approval; and
lighting approval. The Planning Commission first considered the approvals on January 5,

2012, and voted to deny the Site-plan approval. The Planning Commission later agreed to

Speedway’s request to reconsider its application.

       {¶4} At the reconsideration hearing on March 1, 2012, the Planning Commission

approved Speedway’s request to demolish the existing structures on the Site, and its

request for the two height variances. The Planning Commission tabled consideration of

the other items, including Site-plan approval.

       {¶5} On March 15, 2012, the Planning Commission again denied Speedway’s

motion for Site-plan approval. The Planning Commission’s decision was memorialized

in a document that was filed in the common pleas court, entitled “Conclusions of Fact.”

       {¶6} Appellants filed an administrative appeal in the common pleas court,

challenging the Planning Commission’s decision.          In its cursory order denying the

appeal, the court of common pleas did not cite to any evidence in the record, nor did it

articulate any supporting rationale based on the record.     Appellants filed their notice of

appeal in this court, setting forth four assignments of error for our review:

       I. The Planning Commission’s decision to deny Speedway’s application is
       unconstitutional, illegal, arbitrary, capricious, and unreasonable based upon
       the record and warrants reversal on the merits.

       II. A preponderance of substantial, reliable, and probative evidence, taken
       as a whole, does not support the common pleas court’s decision to affirm
       the Planning Commission’s ruling.

       III. The common pleas court erred in summarily denying Appellants’
       request to present additional evidence to the common pleas court in support
       of its argument that the Planning Commission’s ruling violated Appellants’
       constitutional rights.
       IV. Appellants’ constitutional right to due process was violated because the
       City’s Law Director exceeded his powers granted by Municipal Charter,
       and the common pleas court committed reversible error by refusing to
       review the merits of this argument de novo.

       {¶7} We address the first two assignments of error together, because they involve

the same analysis and are dispositive. When reviewing an administrative appeal, the

common pleas court first evaluates the administrative body’s decision, weighing the

evidence in the record and determining whether the administrative order is

unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the

preponderance of substantial, reliable, and probative evidence in the record. Henley v.

Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000).

Our review is more limited; our task is to determine whether the common pleas court

abused its discretion in finding that the administrative order was supported by reliable,

probative, and substantial evidence. CBS Outdoor, Inc. v. Cleveland Bd. of Zoning

Appeals, 8th Dist. Cuyahoga No. 98141, 2013-Ohio-1173, ¶ 31-32, citing Wolstein v.

Pepper Pike City Council, 156 Ohio App.3d 20, 2004-Ohio-361, 804 N.E.2d 75, ¶ 21-22

(8th Dist.).

       {¶8} When taken together, the first two assignments of error allege that the

common pleas court abused its discretion in upholding the Planning Commission’s

decision to deny the Site permit, because that decision was unconstitutional, illegal,

arbitrary, capricious, and unreasonable and was not supported by reliable, probative, and

substantial evidence.   We agree.
       {¶9} We start with the well-settled principle that because zoning restrictions “are

in derogation of the common law and deprive a property owner of certain uses of his land

to which he would otherwise be lawfully entitled,” such restrictions are “ordinarily

construed in favor of the property owner.” (Citations omitted.)      Saunders v. Clark Cty.

Zoning Dept., 66 Ohio St.2d 259, 261, 421 N.E.2d 152 (1981). Zoning restrictions

“cannot be extended to include limitations not clearly prescribed.” Id. A property

owner’s right to an existing zoning classification vests upon the submission of its

application for a zoning permit. Gibson v. Oberlin, 171 Ohio St. 1, 5-6, 167 N.E.2d 651

(1960).

       {¶10} Generally, zoning ordinances provide for two types of uses: permitted (or

principal) uses and conditional uses.       A permitted or principal use is one that is

“‘allowed as of right, provided the landowner meets all other requirements, e.g., building

code requirement.’” Dinardo v. Chester Twp. Bd. of Zoning Appeals, 186 Ohio App.3d

111, 2010-Ohio-40, 926 N.E.2d 675, ¶ 23 (11th Dist.), quoting Meck and Pearlman, Ohio

Planning and Zoning Law, § 9:11, 387 (2004 Ed.). “The city should not consider

general aspirations in deciding whether a specific use contravened legislatively adopted

standards for a generally permitted use.” Hydraulic Press Brick Co. v. Independence, 16

Ohio App.3d 204, 208, 475 N.E.2d 144 (8th Dist. 1984). Regardless of whether an

administrator is dissatisfied with existing zoning laws in a district, “[u]nless the city

rezones that area, it must authorize uses consistent with its existing zoning code.” Id.

       {¶11}   It is uncontroverted that the Site was zoned General Commercial at the
time that Speedway submitted its application for a zoning permit. Zoning Code Chapter

301 governed permitted uses in a district zoned General Commercial.      The City does not

dispute appellants’ contention that, under §§ 301.1 and 301.5 of the Zoning Code, a gas

station was listed as a principal, permitted use in a General Commercial district.

Appellants argue that Speedway’s proposed land use and the proposed physical

construction conformed with the requirements for General Commercial zoning except that

Speedway needed two height variances. The Planning Commission granted the height

variances.   According to appellants, once the variances were granted, Speedway satisfied

the specific Zoning Code criteria and was entitled to Site-plan approval by the Planning

Commission.

       {¶12} The Planning Commission’s decision rejecting Site-plan approval does not

reference §§ 301.1 and 301.5 of the Zoning Code. Instead, the Planning Commission

relied on subjective criteria, supporting its decision by reference to generic, aspirational

language found in §§ 805.7(b), 100.1, and 300.1 of the Zoning Code as well as the 2010

Berea Master Plan (“Master Plan”). The Planning Commission was not permitted to

ignore specific and relevant Zoning Code provisions in rendering its decision regarding

the Site plan.

       {¶13} In denying the Site plan, the Planning Commission improperly relied on §

805.7(b) of the Zoning Code that pertains to building permits and occupancy permits, not

to site permits. Section 805.7(b) provides in pertinent part:

       The Planning Commission shall review each application for a building
       permit and/or occupancy permit * * * to determine whether:
       (b) If such application is for a permit for a permitted principal use for which
       approval of a Preliminary Plan has been requested * * * that such use as
       proposed by the application for such zoning lot complies with the purpose
       and intent and basic planning objectives of this Code, the planning
       objectives for the district and the standards expressed in Section 500.2, and
       complies with (or is deemed to comply by reason of satisfying the planning
       objectives of) all substantive requirements of this Code applicable to such
       use
        ***.

Although Chapter 602 of the Zoning Code applies to the preliminary plan review process

for Site-plan approval, the Planning Commission’s conclusion of facts does not once refer

to this section of the Zoning Code.

       {¶14} Relying on language in § 805.7(b) pertaining to “purpose and intent” and

“planning objectives,” the Planning Commission then turned to § 100.1 of the Zoning

Code. Section 100.1 is entitled “Statement of Purpose and Intent, and Basic Planning

Objectives.”   This provision states that the purpose of the Zoning Code “can be attained

and [its] intent implemented, through the adoption and application of zoning standards,

regulations, controls and procedures which recognize * * * the basic planning objectives

for the City.” The provision then goes on to list those “basic planning objectives.”

Section 100.1 does not set forth the actual “zoning standards, regulations, controls and

procedures”; rather, this provision serves as a preamble in that it “explain[s] the [Code’s]

basis and objective.” 73 American Jurisprudence 2d, Statutes, Section 44. By its plain

language, section 100.1 does not provide additional criteria for the Planning Commission

to consider.   Instead, it makes clear that the basic planning objectives are “recognize[d]”

in the specific “standards, regulations, controls and procedures” that appear elsewhere in
the Zoning Code.

      {¶15} Relying on § 100.1, the Planning Commission determined that Speedway’s

Site proposal “does not preserve and strengthen the primary residential character of the

City, * * * does not preserve and strengthen the City’s tradition of self-identity,” and

“would be incompatible with and detrimental to adjacent uses.” Conclusion of fact at ¶

49-50. The Planning Commission’s reliance on this prefatory language runs afoul of the

law. To allow the Planning Commission to rely on the general aspirations set forth in §

100.1 would effectively abrogate the specific provisions that follow, and would grant the

Planning Commission the ultimate authority to determine City planning, with no

guidelines to inform its decisions. See S. Park, Ltd. v. Council of the City of Avon, 9th

Dist. Lorain No. 05CA008737, 2006-Ohio-2846, ¶ 16 (finding same on similar facts).

See also Hydraulic Press Brick Co., 16 Ohio App.3d at 208, 475 N.E.2d 144.

      {¶16} The Planning Commission’s reliance on § 300.1 is comparable. Citing to

this provision, the Planning Commission concluded that the gas station would be

“inconsistent with the City’s primarily residential character and the purpose, intent, and

basic planning objectives of the Zoning Code generally and the commercial district

regulations specifically.” Conclusion of fact at ¶ 53. On the other hand, the Planning

Commission does not once refer to § 301.1, which governs the permitted uses enumerated

in Chapter 301 regarding commercial districts. Because this is the relevant provision

governing whether a gas station is a permitted use on a site zoned General Commercial, it

was unreasonable for the Planning Commission to utterly ignore § 301.1. Further, it is
hard to fathom how the Planning Commission could conclude that a gas station would be

“inconsistent with the purpose, intent, and basic planning objectives of * * * the

commercial district regulations specifically,” when a gas station is an expressly permitted

use in the General Commercial district. The Planning Commission’s decision sheds no

light on how it reached this conclusion.

       {¶17} The Planning Commission’s decision also improperly elevated the goals set

forth in the master plan above specific and relevant Zoning Code provisions.      When a

master plan is not incorporated into a city’s zoning code, “courts have held that the city

should not consider these general aspirations in evaluating whether a proposed use

complies with the city’s standards for permitted use.” Gross Builders v. Tallmadge, 9th

Dist. Summit No. 22484, 2005-Ohio-4268, ¶ 45. The master plan was approved and

adopted by ordinance, but it was never explicitly incorporated into the Zoning Code.

Section 100.4 of the Zoning Code states that, save one exception that is not pertinent to

this case, “[w]hen a provision of this Code conflicts with a provision of any other * * *

Ordinance of the City, this Code shall prevail and be controlling * * *.” The master plan

could serve as a reference for the Planning Commission, but it could not supplant relevant

and binding Zoning Code provisions. To the extent that the Planning Commission relied

on the master plan and simultaneously ignored relevant Zoning Code provisions, the

Planning Commission acted unlawfully.

       {¶18} In short, in rejecting the Site-plan application, the Planning Commission

unlawfully relied on generalized “intentions” and “purposes” contained in the
introduction to the Zoning Code itself, parallel language contained in the introduction to

the Commercial District regulations, and the master plan. Instead of pointing to the

specifics of the codified permitted uses, the Planning Commission improperly ignored

relevant Zoning Code provisions in favor of general and subjective goals and aspirations.

 See S. Park, 2006-Ohio-2846, ¶ 16. As the Zoning Code specifically permits gas

stations in the General Commercial district, the Planning Commission’s reliance on

general aspirations was erroneous as a matter of law. See id. at ¶ 12.               The common

pleas court abused its discretion in affirming the Planning Commission’s decision.

       {¶19} The record makes clear that at the time that Speedway applied for the Site

permit, the City had plans to rezone the district where the Site was located and that the

new zoning plan would prohibit gas stations in the newly mapped district. While we are

sympathetic to the City’s efforts, the Planning Commission was not at liberty to ignore its

own relevant Zoning Code provisions in order to appease its future aspirations for the

parcel in question. See S. Park at ¶ 16. Timing is everything.1 We sustain the first

and second assignments of error, we reverse the judgment of the common pleas court, and

we remand for further proceedings consistent with this opinion.

       {¶20} We decline to address the remaining assignments of error because              they are

now moot.

       {¶21} It is ordered that appellants recover from appellee costs herein taxed.


       1
         The parcel in question was vacant for three years.   That was more than enough time for the
City to change its zoning classification.
      The court finds there were reasonable grounds for this appeal.

      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.



__________________________________________
KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, A.J., and
EILEEN A. GALLAGHER, J., CONCUR
