Steen, J.
The basic question raised here concerns the proper formulation of the issue that is presented to a trial court in an appeal, pursuant to R. C. Chapter 2506, which challenges the constitutionality of a zoning ordinance as applied. Our decision in State, ex rel. Sibarco Corp., v. City of Berea (1966), 7 Ohio St. 2d 85, 218 N. E. 2d 428, made it clear that zoning restrictions may be constitutionally questioned by a landowner who appeals an adverse administrative decision to the Court of Common Pleas.. It is not fatal to such an appeal that the constitutional claim was not initially argued before the administrative officer or board, for the issue of constitutionality can never be administratively determined. Nor is it fatal that the adverse decision appealed from was non-discretionary or ministerial, since it is the validity of the underlying ordinance, insofar as it has compelled that administrative decision, which is being challenged.
In the present case, appellee’s appeal stems from the denial of the requisite building permit. The building commissioner exercised no discretion in refusing appellee’s request; his action was mandated by the zoning ordinance under which he operated. The Rocky River Board of Zoning and Building Appeals was, likewise, without power to vary the strict letter of that ordinance. Its consequent decision, which effectively upheld the building commissioner’s action, involved no discretionary judgment. Thus, although any allegation by appellee in the Common Pleas Court of abuse of discretion was unfounded, appellee was entitled to challenge the constitutionality of the zoning ordinance as it had been applied to its property.
The trial court and the Court of Appeals had divergent views as to the correct formulation of the issue involv[27]*27ed. The former believed that the zoning ordinance conld only be struck down if its proscription of a gasoline service station was found: unconstitutional, while the latter believed the ordinance would be invalid if its single-family use restriction on appellee’s property was not reasonably related to the public health, safety or welfare. The Court of Appeals thus viewed appellee’s proposed use, i. e., a gasoline service station, as being a matter of relief only, and essentially irrelevant to the constitutional issue involved.
Both parties have drawn our attention to a number of analogous Illinois cases. Since the Illinois courts do handle a prodigious amount of zoning litigation, a review of their approach will be helpful.
In Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 167 N. E. 2d 406, the Supreme Court of Illinois discussed what relief would be appropriate in a declaratory judgment action, once a litigant had1 successfully demonstrated the unconstitutionality of the zoning restrictions on his land. The court, at page 378, observed:
“ * * * Normally the land owner is interested particularly in a specific use which he proposes, and so it is natural that he will try the case and the judge will reach his decision in terms of the reasonableness of excluding that specific use.”
With that in mind, the court went on to criticize the potential results of a judgment that merely declared the existent zoning invalid, thereby leaving the property “unzoned,” stating:
“ * * * two equally undesirable consequences may ensue * * * The municipality may rezone the property to another use classification that still excludes the one proposed, thus making litigation necessary as to the validity of the new classification * * * [or] a decree which was induced by evidence which depicted a proposed use in a highly favorable light would not restrict the property owner to that use, and he might thereafter use the property for an entirely different purpose. ’ ’
The court then concluded that, to avoid those difficulties, a trial court should frame its decree in terms of the [28]*28record before it, and the nse contemplated by the landowner.
Appellee has cited a number of Illinois decisions which apply the Sinclair rationale to fact patterns unlike the one before us. However, Shultz v. Village of Lisle (1972), 53 Ill. 2d 39, 289 N. E. 2d 614, involved facts that are strikingly similar to those presented by the instant controversy. There, plaintiffs sought a declaration that the local zoning ordinance, as applied to their property, was null and void. Their prayer for relief asked the court to order issuance of a permit to construct a gasoline service station. At trial the village admitted that the single-family use restriction on the property was not proper, but argued that neither was plaintiffs ’ proposed use. The trial court first held the zoning restriction to be unconstitutional, then found the plaintiffs’ proposed use reasonable and granted the requested relief. This judgment was affirmed on appeal, but was reversed by the Illinois Supreme Court as being a misapplication of Sinclair, sufra. The court made clear that plaintiffs’ proposed use was integrally related to a determination of constitutionality of the zoning ordinance :
At pages 42, 43, the court said:
‘ ‘ * * * In testing the validity of the zoning ordinance in this case we are only concerned with the validity of the ordinance insofar as it prohibits this proposed use.
i i # # #
“Shaping the order of the court to the facts of the particular case * * * we hold that the prohibiting of the use of plaintiffs ’ property for a gasoline service station is reasonably related to the public health, safety, morals and welfare * * (Emphasis added.)
The rationale employed by the Illinois Supreme Court in Shultz is compelling, although we note that all Illinois cases either cited by appellee, or discussed above, involved actions for declaratory judgments. The difference between such actions, and the one now before us, is that an appeal from the denial of a building permit, pursuant to R. C. Chapter 2506, necessarily involves some particular use which has been denied a landowner. In such an administra[29]*29tive appeal, where a landowner attacks the constitutionality of a zoning ordinance as applied, the words “as applied” have a specific connotation; i. e., as applied to prevent the landowner from using his property in the way in which he has requested. This approach is wholly consonant with sound judicial practice, which requires that constitutional issues he as precisely and narrowly framed as possible.
Appellee wishes to construct a gasoline service station on land zoned for single-family residential use. The city of Rocky River, as noted by the trial court, is zoned into nine use districts.1 The inclusion of specified uses in each district also indicates a legislative judgment to exclude other uses. It is the constitutionality of the legislative decision, as embodied in Rocky River’s zoning ordinance, to exclude gasoline service stations from appellee’s property that is here in question. Thus, the issue should be framed: “Whether the Rocky River zoning ordinance, insofar as it prohibits appellee from constructing a gasoline service station on the subject parcel, has any reasonable relationship to the legitimate exercise of police-power by the municipality.”2
Free access — add to your briefcase to read the full text and ask questions with AI
Steen, J.
The basic question raised here concerns the proper formulation of the issue that is presented to a trial court in an appeal, pursuant to R. C. Chapter 2506, which challenges the constitutionality of a zoning ordinance as applied. Our decision in State, ex rel. Sibarco Corp., v. City of Berea (1966), 7 Ohio St. 2d 85, 218 N. E. 2d 428, made it clear that zoning restrictions may be constitutionally questioned by a landowner who appeals an adverse administrative decision to the Court of Common Pleas.. It is not fatal to such an appeal that the constitutional claim was not initially argued before the administrative officer or board, for the issue of constitutionality can never be administratively determined. Nor is it fatal that the adverse decision appealed from was non-discretionary or ministerial, since it is the validity of the underlying ordinance, insofar as it has compelled that administrative decision, which is being challenged.
In the present case, appellee’s appeal stems from the denial of the requisite building permit. The building commissioner exercised no discretion in refusing appellee’s request; his action was mandated by the zoning ordinance under which he operated. The Rocky River Board of Zoning and Building Appeals was, likewise, without power to vary the strict letter of that ordinance. Its consequent decision, which effectively upheld the building commissioner’s action, involved no discretionary judgment. Thus, although any allegation by appellee in the Common Pleas Court of abuse of discretion was unfounded, appellee was entitled to challenge the constitutionality of the zoning ordinance as it had been applied to its property.
The trial court and the Court of Appeals had divergent views as to the correct formulation of the issue involv[27]*27ed. The former believed that the zoning ordinance conld only be struck down if its proscription of a gasoline service station was found: unconstitutional, while the latter believed the ordinance would be invalid if its single-family use restriction on appellee’s property was not reasonably related to the public health, safety or welfare. The Court of Appeals thus viewed appellee’s proposed use, i. e., a gasoline service station, as being a matter of relief only, and essentially irrelevant to the constitutional issue involved.
Both parties have drawn our attention to a number of analogous Illinois cases. Since the Illinois courts do handle a prodigious amount of zoning litigation, a review of their approach will be helpful.
In Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 167 N. E. 2d 406, the Supreme Court of Illinois discussed what relief would be appropriate in a declaratory judgment action, once a litigant had1 successfully demonstrated the unconstitutionality of the zoning restrictions on his land. The court, at page 378, observed:
“ * * * Normally the land owner is interested particularly in a specific use which he proposes, and so it is natural that he will try the case and the judge will reach his decision in terms of the reasonableness of excluding that specific use.”
With that in mind, the court went on to criticize the potential results of a judgment that merely declared the existent zoning invalid, thereby leaving the property “unzoned,” stating:
“ * * * two equally undesirable consequences may ensue * * * The municipality may rezone the property to another use classification that still excludes the one proposed, thus making litigation necessary as to the validity of the new classification * * * [or] a decree which was induced by evidence which depicted a proposed use in a highly favorable light would not restrict the property owner to that use, and he might thereafter use the property for an entirely different purpose. ’ ’
The court then concluded that, to avoid those difficulties, a trial court should frame its decree in terms of the [28]*28record before it, and the nse contemplated by the landowner.
Appellee has cited a number of Illinois decisions which apply the Sinclair rationale to fact patterns unlike the one before us. However, Shultz v. Village of Lisle (1972), 53 Ill. 2d 39, 289 N. E. 2d 614, involved facts that are strikingly similar to those presented by the instant controversy. There, plaintiffs sought a declaration that the local zoning ordinance, as applied to their property, was null and void. Their prayer for relief asked the court to order issuance of a permit to construct a gasoline service station. At trial the village admitted that the single-family use restriction on the property was not proper, but argued that neither was plaintiffs ’ proposed use. The trial court first held the zoning restriction to be unconstitutional, then found the plaintiffs’ proposed use reasonable and granted the requested relief. This judgment was affirmed on appeal, but was reversed by the Illinois Supreme Court as being a misapplication of Sinclair, sufra. The court made clear that plaintiffs’ proposed use was integrally related to a determination of constitutionality of the zoning ordinance :
At pages 42, 43, the court said:
‘ ‘ * * * In testing the validity of the zoning ordinance in this case we are only concerned with the validity of the ordinance insofar as it prohibits this proposed use.
i i # # #
“Shaping the order of the court to the facts of the particular case * * * we hold that the prohibiting of the use of plaintiffs ’ property for a gasoline service station is reasonably related to the public health, safety, morals and welfare * * (Emphasis added.)
The rationale employed by the Illinois Supreme Court in Shultz is compelling, although we note that all Illinois cases either cited by appellee, or discussed above, involved actions for declaratory judgments. The difference between such actions, and the one now before us, is that an appeal from the denial of a building permit, pursuant to R. C. Chapter 2506, necessarily involves some particular use which has been denied a landowner. In such an administra[29]*29tive appeal, where a landowner attacks the constitutionality of a zoning ordinance as applied, the words “as applied” have a specific connotation; i. e., as applied to prevent the landowner from using his property in the way in which he has requested. This approach is wholly consonant with sound judicial practice, which requires that constitutional issues he as precisely and narrowly framed as possible.
Appellee wishes to construct a gasoline service station on land zoned for single-family residential use. The city of Rocky River, as noted by the trial court, is zoned into nine use districts.1 The inclusion of specified uses in each district also indicates a legislative judgment to exclude other uses. It is the constitutionality of the legislative decision, as embodied in Rocky River’s zoning ordinance, to exclude gasoline service stations from appellee’s property that is here in question. Thus, the issue should be framed: “Whether the Rocky River zoning ordinance, insofar as it prohibits appellee from constructing a gasoline service station on the subject parcel, has any reasonable relationship to the legitimate exercise of police-power by the municipality.”2
After a careful reading of the trial court’s opinion, we believe due consideration was given to appellee’s constitutional attack. In phrasing the issue, the trial court said, “Is the failure of the Council of the City of Rocky River to zone the subject property so that a gasoline service station [30]*30may be constructed thereon * * * [unconstitutional] ? ’ ’ The Court of Appeals construed these words to mean that the trial court was reviewing the February 15, 1971, action of Rocky River City Council.
While it is true that legislative action cannot be appealed under R. C. 2506.01. (Tuber v. Perkins [1966], 6 Ohio St. 2d 155, 216 N. E. 2d 877), we disagree with the Court of Appeals’ characterization of the trial court’s language. It is curious that the trial court used the word “zone” rather than “rezone” in its above-quoted statement. If the intended reference had been to city council’s action, the word “rezone” would have been far more appropriate. In addition, contrary to the Court of Appeals ’ statement in its opinion, the trial court did not base its judgment upon a holding that “it had no jurisdiction to review legislative actions of municipalities.” The trial court fully considered appellee’s claim, and concluded':
“ * * * The wisdom of whether the comprehensive zoning ordinance of Rocky River should permit the installation of a gasoline service station at the southeast corner at Spencer and Center Ridge Road is, at most, under the facts presented herein, a fairly debatable one and it cannot be seriously contended here that its action [that of the zoning ordinance] was so arbitrary, confiscatory and unreasonable so as to be in violation of constitutional rights.”
We conclude that the trial court correctly, albeit un-artfully, framed the issue. Any constitutional assault on a zoning ordinance implicitly questions legislative judgment. This best explains why the trial court spoke in terms of failure of Rocky River City Council to zone appellee’s property to permit a gasoline service station.
We conclude further that the trial court’s judgment is sufficiently supported by the evidence.
For the foregoing reasons, the judgment of the Court of Appeals is reversed.
Judgment reversed„
O’Neill, G. J., Herbert, Celebbezze and W. Brown, JJ., concur.
CoRRIgan and P. Brown, JJ., concur in the judgment,