Morse Rd. Dev., L.L.C. v. Centerville

2025 Ohio 5066

• Court: Ohio Court of Appeals
• Decided: November 7, 2025
• Docket: 30387
• Status: Published

Opinion

[Cite as Morse Rd. Dev., L.L.C. v. Centerville, 2025-Ohio-5066.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

MORSE ROAD DEVELOPMENT LLC, : ET AL. : C.A. No. 30387 : Appellees : Trial Court Case No. 2023 CV 06256 : v. : (Civil Appeal from Common Pleas : Court) CITY OF CENTERVILLE OHIO, ET AL. : : FINAL JUDGMENT ENTRY & Appellant : OPINION

...........

Pursuant to the opinion of this court rendered on November 7, 2025, the judgment of

the trial court is affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately

serve notice of this judgment upon all parties and make a note in the docket of the service.

Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified

copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note

the service on the appellate docket.

For the court,

MICHAEL L. TUCKER, JUDGE

EPLEY, P.J., and HANSEMAN, J., concur. OPINION MONTGOMERY C.A. No. 30387

JESSICA E. SALISBURY-COPPER, JAMAR T. KING, and JUSTIN T. ELKIN, Attorneys for Appellant

DEREK L. MUNCY, JAMES H. GREER, and JAREN A. HARDESTY, Attorneys for Appellees

TUCKER, J.

{¶ 1} Graceworks Lutheran Services appeals from the trial court’s reversal of the

Centerville City Council’s denial of a site-plan application filed by appellees Morse Road

Development, LLC, Sheetz, Inc., and Hemmert Far Hills Properties, LLC.

{¶ 2} The site-plan denial prevented the appellees from constructing a combination

Sheetz gas station, convenience store, and restaurant on commercial property in

Centerville. The trial court reversed the City Council’s decision and remanded with

instructions to approve the application.

{¶ 3} Graceworks contends the trial court applied an incorrect definition of

“surrounding properties” to find that the proposed facility would be consistent with the use

and character of those properties. Graceworks also claims the trial court applied an incorrect

standard of review to find that the proposed facility was consistent with the use and character

of surrounding properties. Finally, Graceworks asserts that the trial court erred in reversing

the City Council’s decision where the site-plan application failed to satisfy other requirements

in the applicable ordinance.

{¶ 4} For the reasons set forth below, we find Graceworks’ arguments to be

unpersuasive. Accordingly, the trial court’s judgment is affirmed.

2 I. Background

{¶ 5} Graceworks operates a large retirement community on Far Hills Avenue in

Centerville. Sheetz is a corporation that owns combined gas stations, convenience stores,

and restaurants. Morse Road Development is a land developer. Hemmert Far Hills

Properties owns real estate located at 6318 Far Hills Avenue in Centerville. In the summer

of 2022, Sheetz contracted with Hemmert to purchase the real estate, which is directly east

of Graceworks’ retirement community across Far Hills Avenue. Sheetz intended to raze the

existing Elsa’s restaurant on the property and redevelop it with a Sheetz facility.

{¶ 6} The property at issue sits at the southern end of a “B-2” General Business

District. Centerville’s applicable code, the Unified Development Ordinance (“UDO”),

provides that “[t]he intent of the General Business District is to provide an appropriate

location for retail, office, service and administrative establishments required to satisfy the

needs of the overall community.” The B-2 zoning district also is “intended to provide

accommodations, supplies, sales and services to the motoring public.” All of Sheetz’s

planned uses of the subject property were allowed under the UDO. “Permitted uses” are

allowed in a zoning district “subject to the restrictions applicable to that zoning district.” The

code provides that a permitted use “shall be allowed as a matter of right in a zoning district.”

{¶ 7} While Sheetz’s planed uses were allowed in a B-2 zoning district, the UDO also

required submission and approval of a “major site-development plan.” In late 2022, the

appellees submitted their plan to the Centerville Planning Commission. The proposed site

plan provided for demolition of the existing building and redevelopment with a convenience

store, restaurant, and gas pumps. Under UDO 5.09(N)(2), the Planning Commission was

required to evaluate the site plan to determine six things:

a. That it fully complies with all applicable requirements of the UDO;

3 b. That it fully complies with an approved Final Development Plan, if

applicable;

c. That it adequately protects other property or residential uses located on

the same property from the potential adverse effects of a non-residential use;

d. That it is consistent with the use and character of surrounding properties;

e. That it provides safe conditions for pedestrians or motorists and prevents

the dangerous arrangement of pedestrian and vehicular ways; and

f. That it provides safe ingress and egress for emergency services.

{¶ 8} After reviewing the appellees’ submission and a detailed staff report, the

Planning Commission voted 5-0 to approve the site-plan application with 15 conditions. The

staff report upon which the Planning Commission relied addressed each of the six criteria.

Regarding the fourth consideration, that Sheetz’s facility be “consistent with the use and

character of surrounding properties,” the staff report concluded:

The area along Far Hills Avenue between Loop Road and North Village

Drive is characterized as a heavily trafficked mixed-use corridor comprised of

commercial, residential (multi-family), and institutional uses. The area north of

Fireside Drive is characterized by auto-oriented uses like McDonald’s, Mike’s

Car Wash, and a future Valvoline, along with restaurants like Jimmy John’s

and the former Hot Head Burritos and future Huey Magoo’s. The subject

property is located south of Fireside Drive, and this area’s commercial uses

are less auto-oriented and include residential and community-based uses.

Adding a Sheetz on the subject property will introduce an auto-oriented

commercial use to the southern portion of the mix-use corridor; however, as

shown in Exhibit O, the properties along the west side of Far Hills Avenue are

4 all zoned B-2. The B-2 zoning district’s intent and purpose is to provide

“accommodations, supplies, sales, and services to the motoring public” (UDO

7.11(A)(2)).

The proposed Sheetz is consistent with the commercial uses north of

Fireside Drive. To that point, the Sheetz’s architecture and scale will be

consistent with those same commercial uses, but less so with the institutional

and residential uses to the east and south. The proposed Sheetz is less

consistent with the neighboring institutional and residential uses south of

Fireside Drive, but the subject property is approximately 3.7 acres and should

be able to provide adequate screening so that it can coexist harmoniously with

its neighbors. The proposed building footprint is 6,139 square feet and 29’ 6”

in height and is similar in size and scale to neighboring and nearby buildings.

The fueling station canopy will be the first of its kind along this corridor within

the City of Centerville but is still a permitted use in the B-2 zoning district. The

subject property’s size and proposed landscaping should help screen the

canopy from neighboring properties. There is a new United Dairy Farmers at

5980 Far Hills Avenue (corner of East Whipp Road) that has a fueling station

canopy, but this property is in Washington Township. The submitted

architectural elevation drawings comply with the architectural standards set

forth in UDO 9.53(C).

August 25, 2023 Planning Commission Staff Report, p. 10-11.

{¶ 9} Nearby residents and property owners filed separate appeals from the Planning

Commission’s decision to the Centerville City Council. The UDO authorized the City Council

to review the Planning Commission’s site-plan approval to determine whether it complied

5 with the criteria in UDO 5.09(N)(2). Following a public hearing, the City Council unanimously

reversed the Planning Commission’s decision and denied site-plan approval. In its written

decision, the City Council made the following factual findings:

1. The property in question is located at 6318 Far Hills Avenue (the

“Property”).

2. The Property is located at the southern end of a B-2 Commercial Zoning

District in the City.

3. Immediately South of the Property is the Appellant Epiphany Church,

which also runs a preschool on site and has an outdoor worship area and a

memorial garden.

4. Appellant Bethany Village, residential senior retirement community, is the

first property located to the West of the Property.

5. A Class One sit-down restaurant oriented to indoor dining customers,

China Cottage, is the first property located to the North of the Property.

6. A residential apartment complex, the Villager Apartments, is the first

property located to the East of the Property.

7. Epiphany Church, Bethany Village, China Cottage, and the Villager

Apartments are the properties that surround the Property (the “Surrounding

Properties”).

8. The Major Site Plan Applicant intends to develop the Property as a Sheetz

convenience store, with a Class Three drive thru/sit-down restaurant and a

fourteen-pump fueling station (a “Sheetz”).

9. The Major Site Plan Applicant’s representatives stated that the site would

bring in approximately 3,000 distinct consumer visits daily, in addition to 12-15

6 gasoline delivery truck trips to the site per week.

10. Impacted streets are used for school bus stops and pedestrian traffic.

11. Major site plan applicant’s proposed uses (fuel pumps, convenience store,

and drive-thru/sit down restaurant) cater to the motoring public and are auto

oriented uses.

12. The Sheetz would operate 24 hours a day, 7 days a week (“24/7”).

13. None of the Surrounding Properties, and no property within the City along

State Route 48 from Interstate 675 to Whipp Road actively operate and are

open to the public on a 24/7 basis.

{¶ 10} After reciting its factual findings, the City Council referenced the site-plan

approval criteria in UDO 5.09(N)(2), focusing exclusively on the need for a proposed use to

be “consistent with the use and character of surrounding properties.” As relevant here, the

City Council found as follows in its conclusions of law:

2. The Major Site Plan Application is not consistent with the use and

character of the surrounding properties as required under UDO Article

5.09(N)(2)(d) as reflected in the presentations (including statements, exhibits,

and arguments and other submissions) of Staff, the Appellants, the Applicant,

and persons offering public comment. These inconsistencies include, but are

not limited to, the 24/7 operation of the Sheetz on the Property, and the use

being the only auto oriented use south of Fireside Drive; such uses being in

contrast to the primarily institutional, residential, and Class One indoor sit-

down restaurant uses of the four (4) Surrounding Properties.

3. In reaching conclusion No. 2 above, Council concludes that the 24/7

operation of the Sheetz, by itself and not in combination with any other aspect

7 of the Major Site Plan Application, is sufficient to render the application

inconsistent with the use and character of the Surrounding Properties.

{¶ 11} The City Council voted 7-0 to reverse the Planning Commission’s approval of

Sheetz’s site-plan application. The City Council denied the application on the grounds that

the proposed development was “not consistent with the use and character of surrounding

properties,” as required under UDO 5.09(N)(2)(d).

{¶ 12} Morse Road Development, Sheetz, and Hemmert appealed from the City

Council’s decision to the trial court under R.C. Chapter 2506. Upon review, the trial court

rejected the City Council’s definition of “surrounding properties” to mean only the four

properties adjacent to the subject property. The trial court defined “surrounding properties”

more broadly “to include not only the properties that are adjacent to the Property on all sides

but also the properties along State Route 48 between Interstate 675 and Whipp Road.”

{¶ 13} After defining the relevant area, the trial court held that the City Council could

not rely on Sheetz’s intended 24/7 operation to find the proposed use inconsistent with the

use and character of surrounding properties. The trial court noted that Centerville’s code did

not prohibit businesses in a B-2 District from operating 24/7. It also cited case law for the

proposition that land-use restrictions cannot be extended to include limitations not found in

an ordinance. Therefore, the trial court reasoned that the City Council’s decision unlawfully

placed a new hours-of-operation limitation on Sheetz’s proposed facility.

{¶ 14} The trial court next examined the City’s Council’s other justification for denying

site-plan approval, namely Sheetz’s status as the only “auto-oriented use” south of Fireside

Drive. The trial court observed that the phrase “auto-oriented use” was coined by the

Planning Commission and relied on by the City Council but not defined in the UDO. The trial

court noted, however, that the UDO did define “Automobile Dependent Uses or Activities”

8 as “land uses that contain automobiles and/or motor vehicles as integral parts of the uses.”

The trial court applied this definition to the Planning Commission’s and the City Council’s

reference to “auto-oriented use.” In so doing, the trial court rejected the City’s argument that

an “auto-oriented use” is limited to “a business with a drive-through service or services for

motor vehicles such as gas stations, car washes, or repair shops, i.e., places that provide

service directly to the automobile or to the occupants of automobiles.” Under either definition,

however, the trial court found that the surrounding properties included auto-oriented uses

such as a car wash, an oil-change business, and one or more car dealerships. The trial court

also found that “the record does not support the City Council’s contention that the proposed

Sheetz would be the only auto-oriented use south of Fireside Drive.”

{¶ 15} Finally, the trial court rejected Graceworks’ argument that the City Council

should have denied site-plan approval for failure to comply with additional criteria in UDO

5.09(N)(2), including the appellees’ failure to protect other property from a non-residential

use, failure to address traffic issues, and failure to provide safe ingress and egress for first

responders to access Graceworks’ campus. The trial court noted that neither the Planning

Commission nor the City Council had found that the site-plan application failed to meet these

requirements. The trial court also characterized the concerns as speculative and

unsupported by the evidence.

{¶ 16} Based on its analysis, the trial court declared the City Council’s reversal of the

Planning Commission to be “unconstitutional, illegal, arbitrary, capricious, unreasonable,

and/or unsupported by the preponderance of the substantial, reliable, and probative

evidence, as the City Council exceeded its authority as a quasi-judicial body by improperly

taking legislative action in reversing the Planning Commission’s approval of Appellants’

MSP.” The trial court concluded that the “City Council’s reversal imposed a condition on

9 Appellants’ use of the Property that is not contained in the UDO.” The trial court also

determined that “there is no evidence in the record that the City Council’s decision restricting

Appellants’ use of the Property bore a substantial relationship to public health, safety, or

welfare.” As a result, the trial court reversed the City Council’s decision denying site-plan

approval and remanded the case with instructions to approve the site plan subject to the

15 conditions originally imposed by the Planning Commission. Graceworks timely appealed,

advancing three assignments of error.1

II. Analysis

{¶ 17} Graceworks’ first assignment of error states:

The Trial Court erred in applying a broader definition of “surrounding

properties” despite acknowledging that the City Council applied the

ordinary meaning of the phrase.

{¶ 18} Graceworks first challenges the trial court’s determination that the relevant

“surrounding properties” included more than the four properties adjacent to Elsa’s

restaurant. Although the phrase “surrounding properties” is undefined in the UDO,

Graceworks cites Black’s Law Dictionary to define “surround” as “to enclose on all sides; to

encompass.” It then argues that “surrounding properties” for purposes of UDO 5.09(N)(2)(d)

clearly and unambiguously meant only the four adjacent properties, namely the senior

retirement community, the Chinese restaurant, the apartment complex, and the church.

According to Graceworks, the trial court improperly substituted its judgment for that of the

City Council by redefining “surrounding properties” more broadly to include a commercial

1 The City of Centerville and the City Council appealed from the trial court’s decision under

a different appellate case number, Montgomery App. No. CA 30358, and we previously overruled a motion to consolidate the two appeals. The appeal by the City of Centerville and the City Council is resolved separately in a companion decision that follows this entry and opinion.

10 corridor running north and south along Far Hills Avenue between Interstate 675 and Whipp

Road. Graceworks contends the trial court’s definition conflicts “with the obvious meaning

and intent” of UDO 5.09(N)(2)(d).

{¶ 19} Upon review, we agree with Graceworks that the meaning of “surrounding

properties” in the UDO involves a question of statutory interpretation subject to de novo

review. Key Ads, Inc. v. Dayton Bd. of Zoning Appeals, 2014-Ohio-4961, ¶ 14 (2d Dist.)

(recognizing that “the interpretation of a zoning ordinance presents a question of law that

requires a de novo standard of review”). We are unpersuaded, however, that the trial court

erred in defining “surrounding properties” to include more than the four adjacent properties.

Contrary to Graceworks’ argument, “surrounding properties” is not unambiguous, as it can

have multiple nuanced meanings. The Cambridge online dictionary defines “surrounding” as

being “everywhere around something.” 2 Merriam-Webster’s online dictionary defines

“surroundings” as “the circumstances, conditions, or objects by which one is surrounded:

environment.”3 The Britannica online dictionary defines “surrounding” as “near or around

someone or something” as in “the surrounding area/neighborhood/land.”4

{¶ 20} In the present case, the relevant “surrounding properties” certainly included

the retirement community, the Chinese restaurant, the apartment complex, and the church.

At various places, though, the UDO refers to “surrounding properties” and “adjacent

properties.” We presume that different words in statutes or ordinances have different

2 See Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english

/surrounding (archived Nov. 4, 2025) [https://perma.cc/R9PL-RPVW?type=image]. 3 See Merriam-Webster Online, https://www.merriam-webster.com/dictionary/surroundings

(archived Nov. 4, 2025) [https://perma.cc/TF4S-ERML]. 4See Britannica Dictionary, https://www.britannica.com/dictionary/surrounding (archived Nov. 4, 2025) [https://perma.cc/6VHK-5Q5T].

11 intended meanings. When analyzing a municipal ordinance, we must “strive to give

‘significance and effect’ to ‘every word.’” Willow Grove, Ltd. V. Olmsted Township Board of

Zoning Appeals, 2022-Ohio-4364, ¶ 19, quoting Wachendorf v. Shaver, 149 Ohio St. 231,

237 (1948). By our count, the UDO uses the word “adjacent” 125 times. Therefore, we

reasonably may infer that the drafters’ adoption of the word “surrounding” in UDO

5.09(N)(2)(d) means something other than “adjacent.” In our view, the reference to

“surrounding properties” in UDO 5.09(N)(2)(d) has a broader geographical connotation.

{¶ 21} Another portion of the UDO supports our interpretation and provides guidance

in ascertaining the intended meaning of “surrounding properties” in UDO 5.09(N)(2)(d). In

particular, UDO 5.06(D)(1) requires a public hearing when the City Council reviews a site-

plan application. Notably, UDO 5.06(D)(2) requires written notice of the hearing to be given

“to all owners of property within 500 feet of the subject parcel.” It is reasonable to infer that

this notice would go to owners of “surrounding properties” given the requirement in UDO

5.09(N)(2)(d) that the proposed use must be “consistent with the use and character of the

surrounding properties.” Absent better guidance in the UDO, and reading the ordinance as

a whole, we believe the most natural interpretation is that “surrounding properties” in UDO

5.09(N)(2)(d) means those properties within a 500-foot radius of Elsa’s restaurant. This

definition fits comfortably with the dictionary definitions quoted above.

{¶ 22} In opposition to the foregoing definition, Graceworks asserts that (1) the

appellees failed to advocate for application of a 500-foot radius in the trial court, (2) the

record contains no evidence as to which properties are within 500 feet of the proposed

development, and (3) the UDO explicitly would have defined “surrounding properties” to

mean all properties within a 500-foot radius if it had intended that meaning. We find these

arguments to be unpersuasive.

12 {¶ 23} The appellees’ failure to cite UDO 5.06(D)(2) in the trial court is immaterial.

The meaning of “surrounding properties” in UDO 5.09(N)(2)(d) was directly before the

Planning Commission, the City Council, and the trial court. To help define that phrase, we

may look to other portions of the UDO regardless of whether the appellees previously cited

them. Additionally, the record does identify all properties within 500 feet of the proposed

development. As part of its appeal to the City Council, Epiphany Evangelical Lutheran

Church, which sits adjacent to the proposed Sheetz facility, filed a list of all property owners

within the 500-foot radius. See January 19, 2024 Notice: Filing Transcript of Proceedings,

Part 8 of 23, p. 000320 and 000335-000336. A representative of the church swore under

penalty of perjury that this list, which had been incorporated into the church’s appeal petition

by reference, was “true and correct.” Id. at 000309. In fact, the record before the City Council

contained at least two lists of property owners within a 500-foot radius of the proposed

development. Id. at 000304.

{¶ 24} Finally, we reject Graceworks’ assertion that the UDO “would have said so” if

its drafters had intended “surrounding properties” to mean all properties within 500 feet of

the proposed development. The problem, of course, is that the drafters of UDO 5.09(N)(2)(d)

did not define “surrounding properties” at all. They also did not say “adjacent properties” in

UDO 5.09(N)(2)(d) even though the word “adjacent” appears 125 times in the UDO.

Therefore, we are tasked with determining the meaning of “surrounding properties” as used

in the ordinance. To aid in our interpretation, we find it appropriate to consider the fact that

notice of the public hearing is sent to property owners within 500 feet of the proposed

development. Once again, implicit in this requirement is recognition that these properties

constitute the relevant “surrounding properties.”

13 {¶ 25} In its decision reversing the City Council, the trial court correctly found that

“surrounding properties” meant something other than “adjacent properties.” In our view,

however, the trial court also defined the phrase incorrectly. It concluded that “surrounding

properties” meant the four adjacent properties and all properties in the B-2 zoning corridor

running north and south along Far Hills Avenue between Interstate 675 and Whipp Road.

Applying our interpretation of “surrounding properties” to mean all properties within a 500-

foot radius of the proposed development presumably would exclude some of the B-2 corridor

referenced by the trial court. Nevertheless, as we explain below, under either our definition

or the one applied by the trial court, Sheetz’s proposed facility is “consistent with the use

and character” of the relevant geographical area. Because the trial court ultimately reached

the correct result and properly found that the “surrounding properties” included more than

the four adjacent properties, we overrule Graceworks’ first assignment of error.

{¶ 26} Graceworks’ second assignment of error states:

The Trial Court erred by failing to apply the correct standard of review

under R.C. 2506.04 and substituting its judgment for that of the City

Council.

{¶ 27} Although the trial court cited the applicable standards under R.C. 2506.04,

Graceworks maintains that it erred by misapplying the law, failing to consider all evidence in

the record, and ultimately substituting its judgment for the City Council’s to find Sheetz’s

proposed facility consistent with the use and character of surrounding properties.

{¶ 28} Graceworks first contends the trial court erred by acknowledging that Sheetz’s

proposed facility would be the only 24/7 business in the extended B-2 business corridor and

then finding that the City Council could not rely on that fact. This argument challenges the

trial court’s determination that denying approval based on Sheetz’s proposed hours of

14 operation constituted an unlawful restriction on land use. In support, the trial court cited

Lamar Co., LLC v. City of Beavercreek, 2023-Ohio-964 (2d Dist.), for the proposition that

restrictions on land use cannot be extended to include limitations not clearly prescribed by

ordinance. The trial court further reasoned that “[i]f the City Council, acting in a quasi-judicial

capacity, is allowed to make a legislative decision by placing an hours of operation limitation

on Appellant’s use of the Property when no such limitation on such use is prescribed in the

UDO, the City Council would, in essence, be permitted to circumvent the proper legislative

process and deny Appellants the use of the Property without due process.” In support, the

trial court cited Gillespie v. Stow, 65 Ohio App.3d 601 (9th Dist. 1989).

{¶ 29} Graceworks claims the trial court erred in precluding consideration of Sheetz’s

proposed 24/7 operation. Based on our review of the UDO and the case law cited by the

trial court, we agree. In Lamar, this court recognized that zoning restrictions cannot be

extended by implication to include things not clearly prescribed. In Gillespie, the Ninth

District reasoned that a city council could not deny a conditional zoning certificate merely

because a conditionally permitted use proposed was no longer desired in the area. The

Ninth District noted that the city council had “determined what uses are appropriate in the

C-2 zoned district through council’s legislative authority when it originally passed the zoning

legislation.” Id. at 607. Although the municipal code authorized the city council to place

conditions on a proposed use, the Ninth District reasoned that “[i]f council is permitted to

deny a proposed use which is consistent with the existing C-2 zoning, council, in effect, is

rezoning the property without legislative action.” Id. Ultimately, the Ninth District held that

the city council had erred in denying approval because the landowner’s proposal to build a

mini-mall met all general requirements and all permissible special terms and conditions.

Id. at 607-609.

15 {¶ 30} Having reviewed Lamar and Gillespie and examined the language of the UDO,

we conclude that the City Council could consider Sheetz’s proposed 24/7 operation.

Although Sheetz’s proposed uses were allowed in a B-2 zoning district, they were not

unconditionally “permitted.” Centerville’s code defines a “permitted use” as “[a]ny use

allowed in a zoning district and subject to the restrictions applicable to that zoning district.”

(Emphasis added.) Although the UDO provides that a “permitted use” is “allowed as a matter

of right in a zoning district,” an allowed use is not a “permitted” one unless it satisfies all

applicable restrictions.

{¶ 31} One of the restrictions in the B-2 zoning district obligated the appellees to

obtain approval of a major site-plan application. That process involved the Planning

Commission’s and the City Council’s consideration of several criteria enumerated in the

UDO, including whether the proposed use would be “consistent with the use and character

of surrounding properties.” One may question how a use allowed in a zoning district could

be inconsistent with surrounding properties, but the present case provides an illustration.

The proposed Sheetz facility sits at the southern tip of a B-2 general business district where

multiple zoning districts converge. Although a combined gas station, convenience store, and

restaurant is allowed in a B-2 district, it is fair to examine whether such a use is consistent

with nearby properties, including a church, a retirement community, and an apartment

complex with different zoning designations.

{¶ 32} In short, the UDO made the allowed Sheetz facility a “permitted use” only if it

satisfied all applicable requirements, including site-plan approval. Given that the UDO

expressly prohibits approval of a site plan if the proposed use is inconsistent with the use

and character of surrounding properties, the City Council did not impose a zoning limitation

by implication or disallow a use that was unconditionally permitted by ordinance. Indeed, the

16 UDO obligated the City Council to deny Sheetz’s proposed use if it found that any of the

site-plan approval criteria in UDO 5.09(N)(2) were not satisfied.

{¶ 33} The present case is nearly identical to City of Colorado Springs v. Securcare

Self Storage, Inc., 10 P.3d 1244 (Colo. 2000). There an ordinance required a landowner to

submit a site plan for a permitted use. A condition for site-plan approval was that the

proposed use be “compatible with the land uses surrounding the site.” The landowner sought

to construct a gas station and self-storage facility. The planning commission rejected the

landowner’s development plan, finding the proposed uses incompatible with the surrounding

residential neighborhood. The city council upheld the planning commission’s decision. Id. at

1245-1246.

{¶ 34} On further appeal in Securcare Self Storage, the trial court reversed the city

council’s decision. The court of appeals affirmed the trial court, holding that a permitted use

cannot be denied on the basis that it is inconsistent with the surrounding area. In essence,

the appellate court reasoned that designating something as a permitted use constitutes a

legislative determination that it is in harmony with the surrounding area. Given that a

permitted-use zoning designation resolves the issue, the appellate court concluded that a

zoning body cannot decide whether a permitted use will be allowed. Id. at 1246. The

Colorado Supreme Court disagreed and reversed the appellate court. Applying the “plain

language” of the zoning code, the majority noted that even a permitted use was not an

absolute right and that the code gave the planning commission discretion to deny a permitted

use based on certain criteria, including a lack of compatibility with surrounding land uses.

Id. at 1249.

{¶ 35} As in Securcare Self Storage, Sheetz’s right to its proposed development was

not absolute. It was circumscribed by the UDO’s additional requirement for site-plan

17 approval, which involved evaluating the proposed use in relation to the use and character of

surrounding properties. As part of its “consistency” evaluation, we see no reason why the

City Council could not consider Sheetz’s intended 24/7 operation. The City Council did not

impose an hours-of-operation restriction on Sheetz that was not found in the UDO. The City

Council did not prohibit Sheetz from operating 24/7. Rather, it recognized that Sheetz would

operate 24/7 and cited that fact as a basis for finding inconsistency with the surrounding

properties. Because the UDO 5.09(N)(2)(d) required this type of analysis, the City Council

did not impose an unauthorized zoning restriction or effectively re-zone the property. As a

result, Lamar and Gillispie do not establish that the City Council lacked authority to consider

Sheetz’s planned 24/7 operation.

{¶ 36} The question remains whether Sheetz’s intent to operate 24/7 rendered its

proposed use inconsistent with the use and character of surrounding properties. The issue

below was whether the City Council acted unreasonably in resolving the issue or whether

denial of site-plan approval was unsupported by the preponderance of substantial, reliable,

and probative evidence. Wortham v. Dayton, 2023-Ohio-1767, ¶ 37 (2d Dist.). Unlike the

trial court, which was charged with weighing the evidence to determine whether it supported

the City Council’s decision, our role is more limited. We may not weigh the evidence to

assess whether it supported the City Council’s denial of site-plan approval. Our review is

limited to “questions of law,” which includes determining whether the trial court abused its

discretion by reaching a conclusion that is unsupported by the evidence as a matter of law.

Id. at ¶ 38.

{¶ 37} Having reviewed the record, we conclude, as a matter of law, that Sheetz’s

intended 24/7 operation did not make its planned facility inconsistent with the surrounding

properties. On the undisputed facts before us, any contrary determination would be an abuse

18 of discretion. Thus, although the trial court incorrectly found Sheetz’s 24/7 operation to be

an improper consideration, the error was harmless. Notably, the trial court also made

findings demonstrating its belief that 24/7 operation would be consistent with the use and

character of surrounding properties. The trial court “importantly” noted that “the City of

Centerville has not made any changes to the UDO aimed at preserving and protecting the

character of the community surrounding the Property by limiting the hours of operation of

fueling stations, sit-down and drive-through restaurants, or convenience stores.” See Trial

Court’s January 7, 2025 Decision, Order, and Entry, p. 13. This finding supports a

reasonable inference that the UDO did not consider hours of operation to be a significant

factor regarding a business’s consistency with the use and character of surrounding

properties. Elsewhere in its decision, the trial court again noted that the UDO did not “prohibit

any businesses . . . from operating 24/7 in the B-2 district.” Id. at 14. In fact, no business

within the relevant 500-foot radius appears to have an hours-of-operation restriction. In that

sense, Sheetz’s proposed development is entirely consistent with the other commercial

establishments insofar as they all enjoy a right to 24/7 operation.

{¶ 38} An impartial observer might be forgiven for questioning how Sheetz’s hours of

operation possibly could be inconsistent with the use and character of an area where every

other business may adopt those hours. If the existing Elsa’s restaurant or adjacent Chinese

restaurant decided to stay open 24/7, the tenants of the apartment complex, the members

of the church, and the retirement community residents would have no recourse. The fact

that nearby businesses currently do not operate 24/7 is less significant than the fact that

they all may decide to do so tomorrow. Under the UDO, then, allowing businesses to adopt

operating hours of their choice necessarily is consistent with the use and character of the

surrounding properties. Given that nearby businesses are permitted to operate whenever

19 they desire, Sheetz reasonably cannot be denied site-plan approval based on its intention

to do the same.

{¶ 39} In short, the record establishes that Sheetz’s proposed facility is allowed in a

B-2 general business district. The relevant surrounding properties include a drive-through

restaurant open nearly 24 hours a day some days, a car wash, a car dealership providing

repair and maintenance services, and an assortment of other businesses. Like Sheetz’s

facility, all commercial uses in the relevant area are permitted by the UDO to operate 24/7.

It defies logic to suggest that Sheetz’s proposed 24/7 operation is inconsistent with the use

and character of an area that freely permits 24/7 operation.

{¶ 40} The record contains substantial, reliable, and probative evidence

demonstrating that Sheetz’s proposed development complements and is consistent with the

existing use and character of the surrounding properties. Any contrary conclusion would be

so at odds with the evidence as to be erroneous as a matter of law and, therefore, an abuse

of discretion. Although our analysis differs somewhat from the trial court’s, it ultimately

reached the correct legal conclusion, as a matter of law, when it found that that Sheetz’s

“intent to operate its business 24/7 cannot be used as a basis for the City Council to

determine the proposed use is inconsistent with use and character of the surrounding

properties or non-compliant with Article 5.09(N)(2)(d) of the UDO.” Trial Court’s January 7,

2025 Decision, p. 14.

{¶ 41} We reach the same conclusion regarding Sheetz’s facility being the only auto-

oriented use south of Fireside Drive. Graceworks contends the trial court incorrectly defined

the relevant “surrounding properties.” It argues that the trial court then impermissibly rejected

the City Council’s definition of an “auto-oriented” use and substituted its own definition.

Finally, Graceworks claims the record does support the City Council’s determination that

20 Sheetz’s facility would be the only auto-oriented use south of Fireside Drive, thereby making

the proposed development inconsistent with the surrounding properties.

{¶ 42} As noted above, the City Council cited Sheetz’s status as the only auto-

oriented use south of Fireside Drive as a second reason to find the proposed development

inconsistent with the use and character of surrounding properties. The UDO does not define

an “auto-oriented use.” The Planning Commission coined that phrase when addressing

Sheetz’s proposed facility. The City Council used it to mean “a business with a drive-thru

service or services for motor vehicles such as gas stations, car washes, or repair shops, i.e.,

places that provide service directly to the automobile or to the occupants of automobiles.”

{¶ 43} The trial court rejected the City Council’s definition of an auto-oriented use,

electing instead to apply UDO 11.02’s definition of “Automobile Dependent Uses or

Activities.” That definition included “land uses that contain automobiles and/or motor

vehicles as integral parts of the uses.” Ultimately, however, the trial court concluded that

under either definition Sheetz’s proposed development would not be the only auto-oriented

use among the surrounding properties or south of Fireside Drive. Therefore, the trial court

rejected the City Council’s disapproval of the appellees’ site-plan application, finding the City

Council’s decision unsupported by the evidence.

{¶ 44} Upon review, we see no error in this aspect of the trial court’s ruling. As for

Graceworks’ argument regarding the pertinent surrounding properties, we fully addressed

that issue above. Included within the relevant 500-foot radius are a drive-through restaurant,

a car wash, and a car dealership providing repair and maintenance services. Under any

reasonable definition, including the ones adopted by the trial court and the City Council,

these businesses qualify as auto-oriented uses.

21 {¶ 45} Even if Sheetz’s facility would be the only auto-oriented use south of Fireside

Drive, as Graceworks contends, we fail to see the significance of that distinction. Given that

we have defined “surrounding properties” to mean everything within 500 feet of the subject

property, the proper inquiry is whether Sheetz’s proposed facility would be the only auto-

oriented use in that geographical area, not whether the facility would be the only such use

south of an arbitrary boundary. Determining whether two things are consistent involves a

process of comparison within a specific context, making the word “consistent” a relative term.

There are myriad ways non-identical things may be consistent or inconsistent with each

other. The City Council cannot seize on an inconsequential inconsistency such as the

proposed facility being the only auto-oriented use south of a random boundary or landmark,

declare an allowed use inconsistent with the area on that basis, and deny site-plan approval.

{¶ 46} We recognize the inherent difficulty in determining whether Sheetz’s proposed

facility is consistent with the use and character of a mixed-use area where at least three

zoning districts converge and where there are competing commercial, residential,

institutional, and religious uses. The required analysis involves discerning a predominate

“use and character” in a geographical area lacking a unifying theme. Given that the 500-foot

radius around the subject property is a conglomeration of dissimilar uses, any proposed use

could be declared inconsistent with the area on some basis. The attorney for Sheetz made

this point at the hearing before the City Council. He opined that modern zoning codes are

filled with “waffle language” effectively enabling municipal authorities to make subjective

decisions. See October 9-10, 2023 Hearing Tr. 202. Sheetz’s attorney observed that he

“could differentiate probably every use” in the relevant area by “something.” Id. at 230. For

the City Council to reject Sheetz’s proposed development, however, the UDO implicitly

22 required some material inconsistency with the use and character of surrounding properties.

For the reasons set forth above, the second assignment of error is overruled.

{¶ 47} Graceworks’ third assignment of error states:

The Trial Court erred in reversing the City Council’s decision denying a

major site plan application where the application failed to satisfy the

Standards for Approval enumerated in Section 5.09(N)(2) of Centerville’s

Unified Development Ordinance.

{¶ 48} Graceworks argues that the trial court should have affirmed the City Council’s

denial of site-plan approval based on Sheetz’s failure to satisfy two additional criteria in UDO

5.09(N)(2). First, Graceworks contends the proposed development does not adequately

protect “other property or residential uses located on the same property from the potential

adverse effects of a non-residential use,” as required by UDO 5.09(N)(2)(c). Second,

Graceworks claims the proposed development neither provides “safe conditions for

pedestrians or motorists” nor prevents “the dangerous arrangement of pedestrian and

vehicular ways,” as required by UDO 5.09(N)(2)(e).

{¶ 49} We find Graceworks’ arguments to be unpersuasive. During the City Council

hearing, City Planner Ian Vanness stated that the first provision, UDO 5.09(N)(2)(c), did not

apply. Vanness opined that subsection (c) applied only to a “multi-tenant property” with other

uses on the same lot. See October 9-10, 2023 Hearing Tr. 65. The City’s attorney agreed.

Id. at 66. Conversely, counsel for Graceworks asserted that UDO 5.09(N)(2)(c) did apply to

Sheetz’s proposed use. As applicable here, however, Graceworks’ attorney acknowledged

that the subsection (c) analysis was subsumed by UDO 5.09(N)(2)(d), which required

considering whether the proposed use was consistent with the use and character of

surrounding properties. Therefore, Graceworks’ attorney found the use-and-character

23 analysis under R.C. 5.09(N)(2)(d) equally dispositive of R.C. 5.09(N)(2)(c). Id. at 129. Insofar

as Graceworks argued below that subsection (c) and subsection (d) were co-extensive, we

have no occasion to address subsection (c) separately. Our use-and-character analysis

above adequately covered the issue.

{¶ 50} Regarding R.C. 5.09(N)(2)(e), Graceworks did address that provision before

the City Council. It primarily challenged the adequacy of a traffic study that had been

performed as part of Sheetz’s site-plan application. In its decision reversing the Planning

Commission’s approval, however, the City Council made no findings under R.C.

5.09(N)(2)(e) and did not rely on that provision to deny the application.

{¶ 51} In its subsequent appeal to the trial court, Graceworks very briefly addressed

R.C. 5.09(N)(2)(e) as an alternative basis for upholding the City Council’s decision. It

asserted “that the Proposed Development will result in increased traffic and increased

danger for the residents, employees, and visitors of Graceworks, and that the Application

did not account for those increased risks beyond ensuring that emergency vehicles would

be able to reach Appellants’ property.” Graceworks also argued that Sheetz’s traffic study

did not “address existing traffic issues that affect Graceworks, such as the frequent accidents

caused due to motorist confusion at the offset meeting point of Bethany Village Drive and

Fireside Drive at Far Hills Avenue.” Graceworks maintained that the subject area was

already dangerous and that additional traffic would exacerbate the situation for pedestrians.

{¶ 52} The trial court characterized the foregoing concerns as unfounded, being

largely speculative and unsupported by any reliable evidence. The trial court also noted that

neither the Planning Commission nor the City Council had made any adverse findings

regarding Sheetz’s impact on pedestrian or motorist safety.

24 {¶ 53} We see no error in the trial court’s analysis of R.C. 5.09(N)(2)(e). The record

reflects that Planning Commission staff fully considered pedestrian and motorist safety. In

unanimously approving Sheetz’s application, the Planning Commission mandated

improvements to alleviate concerns. Notable requirements to the area included widening the

roadway, adding a turn lane, upgrading a traffic signal, relocating a sidewalk, adding a

separate walkway, and reconfiguring and improving Espanola Trail.

{¶ 54} While virtually any commercial development increases traffic flow and creates

some theoretical or incremental risk to public safety, the question under R.C. 5.09(N)(2)(e)

was whether Sheetz’s site-plan application created “safe conditions for pedestrians or

motorists” and prevented “the dangerous arrangement of pedestrian and vehicular ways.”

The trial court reasonably found these requirements satisfied. Notwithstanding concerns

voiced by area residents before the City Council, we do not find, as a matter of law, that the

preponderance of the reliable, probative, and substantial evidence failed to support the trial

court’s rejection of Graceworks’ argument about pedestrian and motorist safety in relation

to its facility, which sits on the opposite side of Far Hills Avenue across from the subject

property. Accordingly, the third assignment of error is overruled.

III. Conclusion

{¶ 55} The judgment of the Montgomery County Common Pleas Court is affirmed.

.............

EPLEY, P.J., and HANSEMAN, J., concur.