[Cite as Phillips Supply Co. v. Cincinnati Zoning Bd. of Appeals, 2014-Ohio-3203.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
PHILLIPS SUPPLY COMPANY, : APPEAL NO. C-130835 TRIAL NO. A-1303457 U.S. BANK, N.A., TRUSTEE OF THE : CHARLES PHILLIPS IRREVOCABLE O P I N I O N. TRUST u/a/d 6/1/1964, :
and :
DALTON STREET PROPERTIES, : LTD., : Plaintiffs-Appellants, : vs. : CITY OF CINCINNATI ZONING BOARD OF APPEALS, :
AMIT B. GHOSH, P.E., :
CITY GOSPEL MISSION, :
FOUNDATION OF COMPASSIONATE : AMERICAN SAMARITANS, d.b.a. LORD’S GYM AND LORD’S PANTRY, :
032811 HOLDINGS, LLC, :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 23, 2014 OHIO FIRST DISTRICT COURT OF APPEALS
Buechner Haffer Meyers & Koenig Co., L.P.A., and Peter E. Koenig, for Plaintiffs- Appellants,
Terrance A. Nestor, Interim City Solicitor, and Marion E. Haynes III, Chief Counsel, for Defendants-Appellees City of Cincinnati Zoning Board of Appeals and Amit Ghosh,
Manley Burke L.P.A, Timothy M. Burke and James M. Cooney, for Defendants- Appellees City Gospel Mission, Foundation of Compassionate American Samaritans, d.b.a. Lord’s Gym and Lord’s Pantry, and 032811 Holdings, LLC.
Please note: this case has been removed from the accelerated calendar.
2 OHIO FIRST DISTRICT COURT OF APPEALS
SYLVIA S. HENDON, Judge.
{¶1} This is the second appeal that has come before this court involving the
relocation of a homeless shelter from the Cincinnati neighborhood of Over-the-Rhine
to the city’s Queensgate area. The crux of this appeal is the propriety of the city’s
issuance of building permits for two specific parcels of land in Queensgate that are to
be used for the relocation of the homeless shelter and the placement of related social
services.
{¶2} Plaintiffs-appellants Phillips Supply Company, U.S. Bank, N.A.,
Trustee of the Charles Phillips Irrevocable Trust u/a/d June 1, 1964, and Dalton
Street Properties, Ltd. (“Phillips Supply”), are neighboring business and property
owners to the proposed relocation site, who are opposed to the homeless shelter’s
relocation. Phillips Supply has appealed from the trial court’s entry affirming the
decision of the Cincinnati Zoning Board of Appeals (“ZBA”) that upheld the city’s
issuance of the building permits. Because the trial court did not abuse its discretion
in upholding the decision of the ZBA, we affirm the judgment of that court.
Factual Background
{¶3} Defendant-appellee City Gospel Mission sought to relocate a homeless
shelter from Over-the-Rhine to a new facility on the property located at 1805 Dalton
Avenue in Queensgate. On an adjacent property at 1211 York Street, they sought to
place related services, including the Exodus Program, the Lord’s Gym, the Lord’s
Pantry, Jobs Plus Employment Network, and City Gospel Mission offices. Because
Queensgate is zoned as MG, manufacturing general, the city had passed a
notwithstanding ordinance that approved the operation of a special assistance
3 OHIO FIRST DISTRICT COURT OF APPEALS
shelter on the Dalton Avenue property. Absent this ordinance, the operation of a
homeless shelter was not a permitted use in an MG district under the zoning code.
Phillips Supply opposed the relocation of the homeless shelter, and it filed suit
challenging the city’s issuance of the notwithstanding ordinance. The ordinance was
upheld by the trial court and affirmed by this court in State ex rel. Phillips Supply
Co. v. City of Cincinnati, 2012-Ohio-6096, 985 N.E.2d 257 (1st Dist.).
{¶4} After the notwithstanding ordinance was upheld, the city issued
building permits for the renovation of the Dalton Avenue property and the
construction of a new building on the York Street property. Phillips Supply appealed
the issuance of these permits to the ZBA. It argued that the permit for the Dalton
Avenue property should not have been issued because the proposed structure’s
principal use under the zoning code was “religious assembly,” which is prohibited in
an MG district. And it argued that the permit for the York Street property should not
have been issued because that building’s proposed use was “community service
facility,” another prohibited use in an MG district. The ZBA held a hearing
concerning the proposed uses for the two properties, and whether those uses
complied with the zoning code.
{¶5} Extensive testimony about City Gospel Mission, the homeless shelter,
and the related social services that would occupy the York Street property was
presented at the hearing, much of which was offered by Roger Howell, the president
of City Gospel Mission. City Gospel Mission’s purpose is to promote the cause of the
Christian religion through social-service-based programs. The organization has
operated a homeless shelter since 1924. Testimony indicated that the Dalton Avenue
property will contain a chapel that takes up approximately 4.4 percent of the
4 OHIO FIRST DISTRICT COURT OF APPEALS
property’s square footage, and that the property will offer a daily 45-minute chapel
service, although no persons residing in the shelter are required to attend that
service. When not being used for religious services, the chapel will serve a
multipurpose use.
{¶6} With respect to the social-service programs to be located in the York
Street property, the evidence indicated that the Exodus program is a transitional-
housing program for men with life-addictive issues. It is a 365-day program that
includes spiritual activities. The Lord’s Gym is a physical-fitness program for men to
help them grow physically as well as spiritually. Similarly, the Lord’s Pantry
provides a meal to its patrons while also offering prayer and evangelism. The Jobs
Plus Employment Network offers a job-readiness training program and assists its
participants in finding employment. The agency is guided by Biblical principles, and
incorporates those principles into its programs. The York Street property will also
contain City Gospel Mission’s administrative offices.
{¶7} In its decision, the ZBA determined that the proposed use of the
Dalton Avenue property, where the homeless shelter was to be placed, was a “special
assistance shelter,” and that such a use was permitted by the notwithstanding
ordinance. It further determined that the York Street property should be classified
as a mixed-use facility, and it considered the individual uses for each proposed
tenant of the property. It classified the use of the Exodus Program as “transitional
housing,” the use of the Lord’s Gym as “indoor or small-scale recreation and
entertainment,” the use of the Lord’s Pantry as “eating and drinking
establishment/restaurants, limited,” the use of the Jobs Plus Employment Network
as “personal/instructional service,” and the use of City Gospel Mission’s offices as
5 OHIO FIRST DISTRICT COURT OF APPEALS
“office.” Each of these individual uses was permitted in an MG district. The ZBA
stated in its decision that the fact that the proposed tenants of these two buildings
were religiously-oriented organizations and that various programs occurring in these
facilities had a faith-based element did not transform the principal use of the
facilities into “religious assembly.” Because all proposed uses for the two properties
were permitted by either the zoning code or the notwithstanding ordinance, the ZBA
upheld the issuance of the permits.
{¶8} In an administrative appeal under R.C. Chapter 2506, Phillips Supply
filed suit against defendants-appellees the City of Cincinnati Zoning Board of
Appeals, Amit Ghosh, the chief building official for the city, City Gospel Mission, the
Foundation of Compassionate American Samaritans, d.b.a. Lord’s Gym and Lord’s
Pantry, and 032811 Holdings, LLC, the owner of the properties (collectively referred
to as “Appellees”). Phillips Supply again argued that the proposed principal use of
both properties was “religious assembly,” or, in the alternative, that the use of the
York Street property was “community service facility,” and that both uses were
prohibited in an MG district. It additionally asked the magistrate to take judicial
notice of certain documents from the Hamilton County Auditor’s website indicating
that City Gospel Mission had been classified as a church for taxation purposes.
These documents had not been made part of the record before the ZBA, but were
introduced for the first time in the administrative appeal. The Appellees filed a
motion to strike these documents. The magistrate granted the motion to strike, and
it affirmed the decision of the ZBA.
{¶9} Phillips Supply filed objections to the magistrate’s decision. The trial
court sustained an objection to the magistrate’s granting of the motion to strike. It
6 OHIO FIRST DISTRICT COURT OF APPEALS
held that the magistrate should have taken judicial notice of the documents from the
auditor. But the trial court then excluded those same documents as irrelevant. The
court overruled all other objections to the magistrate’s decision. Phillips Supply has
appealed from the trial court’s judgment, raising one assignment of error for our
review.
Standard of Review
{¶10} Phillips Supply argues in its sole assignment of error that the trial
court erred in affirming the decision of the ZBA.
{¶11} In an administrative appeal, this court’s review is highly deferential to
the trial court. We are not permitted to independently weigh the evidence in the
record. Our review is limited to questions of law, and to determining whether the
trial court committed an abuse of discretion when weighing the evidence. See
Citylink Center v. City of Cincinnati, 1st Dist. Hamilton Nos. C-061037, C-061054
and C-061064, 2007-Ohio-5873, ¶ 12. An abuse of discretion “connotes more than
an error of law or of judgment; it implies an unreasonable, arbitrary or
unconscionable attitude on the part of the court.” Pembaur v. Leis, 1 Ohio St.3d 89,
91, 437 N.E.2d 1199 (1982). The fact that this court may have reached a different
conclusion than the trial court or the ZBA is immaterial. We may not substitute our
judgment for that of the trial court or the ZBA. See Henley v. City of Youngstown
Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000).
7 OHIO FIRST DISTRICT COURT OF APPEALS
Dalton Avenue Property
{¶12} Phillips Supply first contends that the trial court erred by classifying
the principal use of the Dalton Avenue property as “special assistance shelter” and
not “religious assembly.”
{¶13} Cincinnati Municipal Code 1401-01-S11 defines a special assistance
shelter as “a facility for the short-term housing of individuals who are homeless and
who may require special services.” Religious assembly is defined as “an
establishment for religious worship and other religious ceremonies, including
religious education, rectories and parsonages, offices, social services, columbaria and
community programs.” See Cincinnati Municipal Code 1401-01-R7. When
determining that the Dalton Avenue property’s principal use was special assistance
shelter, the ZBA stated that
The facility will provide temporary emergency shelter and associated
social services to men who are homeless * * *. The evidence of a daily
45-minute religious service in the Shelter’s multipurpose space does
not convert the Dalton Property into “an establishment for religious
worship and other religious ceremonies,” and does not support a
categorization of the principal use of the Dalton Property as Religious
Assembly. [City Gospel Mission] and [the Foundation of
Compassionate American Samaritans] are self-acknowledged
religiously-oriented organizations that aim to meet the mental,
physical, economic, educational, and social, as well as the spiritual
needs of the Shelter guests. The fact that these organizations count
religion as one of the inspirations or motivations for operating their
8 OHIO FIRST DISTRICT COURT OF APPEALS
social service programs on the Properties does not convert the uses
into Religious Assembly uses.
{¶14} The record is replete with evidence that City Gospel Mission is a
religiously-focused organization. Motivated by this religious focus, the organization
has, and will continue to, operate a homeless shelter. The purpose of the homeless
shelter is to improve all aspects of its residents’ lives to help them become more
productive members of society. The programming has both spiritual and secular
elements, but, as recognized by the ZBA, City Gospel Mission’s religious motivation
and the small spiritual portion of its programming do not convert its primary use
into religious assembly. This is a zoning case. Generally, zoning laws may regulate
the use of the land, not the identity of the users. See Citylink Center, 1st Dist.
Hamilton Nos. C-061037, C-061054 and C-061064, 2007-Ohio-5873, at ¶ 13.
{¶15} The ZBA considered the fact that there will be a religious element to
the homeless shelter when determining the principal use of the building for zoning
purposes. The services to be offered by the homeless shelter clearly fall within the
zoning code’s definition of special assistance shelter. The trial court’s entry
upholding the decision of the ZBA classifying the Dalton Avenue property as a special
assistance shelter was in no manner arbitrary, unreasonable or unconscionable.
York Street Property
{¶16} Phillips Supply also challenges the classification of the York Street
property. Under the Cincinnati Zoning Code, a district’s zoning designation, in this
case MG, identifies “the principal land uses” permitted in that district. See
Cincinnati Municipal Code 1400-07. Phillips Supply argues that in determining
whether a land use is permitted in a particular district, a single principal use must be
9 OHIO FIRST DISTRICT COURT OF APPEALS
identified for each building. Thus, it argues that the ZBA erred by finding multiple
principal uses of the York Street property, each of which were permitted in an MG
district. Rather, it contends that the ZBA should have identified only one principal
use for the York Street property, and that the single principal use should have been
religious assembly, a use not permitted in an MG district.
1. Multiple Principal Uses
{¶17} Although this court has never explicitly held that a property may have
more than one principal use, we have issued two recent decisions that have implicitly
concluded that it is permissible for a property to have multiple principal uses.
{¶18} In Citylink Center v. City of Cincinnati, Citylink, a not-for-profit
corporation that had been organized to assist in serving the low-income population
of Cincinnati, sought to develop its campus in an area of Cincinnati that had been
zoned MG. Citylink Center, 1st Dist. Hamilton Nos. C-061037, C-061054 and C-
061064, 2007-Ohio-5873, at ¶ 2. Its proposed tenants were Jobs Plus, Crossroads
Health Center, The Lord’s Gym, and City Gospel Mission. Id. at ¶ 3. This court
affirmed the trial court’s judgment ordering the issuance of a zoning certificate of
compliance to Citylink because the proposed uses for each individual tenant were all
permitted in an MG district. Id. at ¶ 20.
{¶19} In State ex rel. 506 Phelps Holdings, LLC, v. Cincinnati Union
Bethel, 2013-Ohio-388, 986 N.E.2d 1037 (1st Dist.), this court discussed our holding
in Citylink with respect to whether a property could have multiple uses. We stated
that
Although we rejected the city's argument in CityLink that the several
uses of the building had to be viewed as one, we did not hold that two
10 OHIO FIRST DISTRICT COURT OF APPEALS
programs housed in the same building and operated by a single legal
identity and governing board should never be viewed as a whole to
determine the character of the uses for zoning purposes.
Id. at ¶ 62. State ex rel. 506 Phelps Holdings, LLC, concerned the zoning
classification of Cincinnati’s Anna Louise Inn. In that case, the trial court had held
that the property at issue could not be classified as having a separate use for each
individual tenant or group using the property. Rather, the trial court held that the
collective uses must be viewed together as an integrated land use. Id. at ¶ 55. This
court ultimately upheld the trial court’s determination that the uses of the property
should be considered together as an integrated land use, but we remanded with
instructions for the trial court to direct the relevant city officials to determine the
zoning classification of the Anna Louise Inn in light of the trial court’s finding on
integrated use. Id. at ¶ 69-71.
{¶20} We hold that a building, such as the York Street property, may have
more than one principal use. Whether a building has individual principal uses for
each tenant, or whether a building with multiple tenants must be viewed as having
one integrated use, must be determined on a case-by-case basis. In this case, the
trial court did not abuse its discretion by treating the York Street property as a
mixed-use facility with individual principal uses for each tenant and failing to assign
the entire property the principal use of religious assembly.
{¶21} The ZBA classified the use of the Exodus Program as “transitional
housing.” Cincinnati Municipal Code 1401-01-T defines transitional housing as
“housing designed to assist persons in obtaining skills necessary for independent
living in permanent housing, including homes for adjustment and halfway houses.”
11 OHIO FIRST DISTRICT COURT OF APPEALS
The ZBA specifically stated that Phillips Supply had not met its burden of
establishing that the Exodus Program should be categorized as having the use of
religious assembly because “the incorporation of a faith-based element into the
program’s required 12-step addiction recovery process does not change the principal
use.”
{¶22} The ZBA classified the Lord’s Gym as having the principal use of
“indoor or small-scale recreation and entertainment.” This use is defined in
Cincinnati Municipal Code 1401-01-R2 as “the provision of recreation or
entertainment to paying participants or spectators * * * [including] small, generally
indoor facilities, although some facilities may be outdoors, including: fitness centers,
gymnasiums * * *.” The ZBA’s decision further stated that the presence of bible
study in addition to the fitness training activities did not warrant the classification of
the gym as having the use of religious assembly.
{¶23} The Lord’s Pantry was classified as having the use of “eating and
drinking establishment/restaurants, limited.” Cincinnati Municipal Code 1401-01-E1
defines this use as “[r]estaurants providing food and beverage services to patrons
who order and pay before eating. * * * Table service is not provided.” The ZBA again
specifically noted that the Lord’s Pantry did not have the use of religious assembly
merely because mentors were available to provide life coaching and prayer.
{¶24} The Jobs Plus Employment Network was classified by the ZBA as
having the principal use of personal instruction service, which is defined in
Cincinnati Municipal Code 1401-01-P10 as the provision of instructional services
including, as relevant to this case, tutoring and vocational and trade schools. In
determining the principal use for this tenant, the ZBA stated that “the evidence that
12 OHIO FIRST DISTRICT COURT OF APPEALS
the Bible or religious motivation informs the Jobs Plus training does not establish
that the principal use should be Religious Assembly where training and placement
are the predominant activity.”
{¶25} Last, the ZBA’s decision determined that the principal use of City
Gospel Mission’s offices was “office.” This use is defined by Cincinnati Municipal
Code 1401-01-O as “a facility for a firm or organization that primarily provides
professional, executive, management or administrative services.”
{¶26} The record indicates that each proposed tenant for the York Street
property had its own purpose and position aligned with the social-service campus’s
overall goal of improving the lives of its participants. Each program does have a
spiritual aspect. But, as noted by the ZBA, the spiritual element is a minor part of the
programs’ overall business aim. The tenants were not part of a larger, collective
religious entity, and it was not error for the trial court to fail to assign either each
individual tenant, or the overall building, the principal use of religious assembly.
{¶27} We hold that the trial court’s decision upholding the ZBA’s
classification of the York Street property as a mixed-use facility was supported by
substantial evidence in the record and was not an abuse of discretion.
2. Not a Community-Service Facility
{¶28} Phillips Supply further argues that, if this court determines that a
property may have more than one principal use, the two properties at issue must also
be classified as having additional principal uses of religious assembly and
community-service facility. We have already determined that the trial court did not
abuse its discretion in affirming the ZBA’s well-reasoned decision holding that
13 OHIO FIRST DISTRICT COURT OF APPEALS
neither property had the principal use of religious assembly. We need not address
that argument again.
{¶29} Community-service facility is defined by Cincinnati Municipal Code
1401-01-C15 as “a noncommercial facility established primarily for the benefit and
service of the populations of the communities in which they are located.” In the
Citylink case, this court rejected a similar argument and held that the property
Citylink sought to develop was not a community-service facility. Citylink Center, 1st
Dist. Hamilton Nos. C-061037, C-061054 and C-061064, 2007-Ohio-5873, at ¶ 22.
We held that the property could not be categorized as a community-service facility
because it had not been established primarily for the benefit and service of the
residents of the neighborhood in which it was located, but rather for the benefit of
the low-income population of Cincinnati and Hamilton County. Id. at ¶ 22-23. The
same holds true for the properties at issue in this case. They were established not for
the benefit of the residents of Queensgate, but for the entire city of Cincinnati.
Citylink states the law of this district, and on its authority we hold that the trial court
did not abuse its discretion by failing to assign the Dalton Avenue and York Street
properties the principal use of community-service facility.
Judicial Notice
{¶30} Phillips Supply last argues that the trial court abused its discretion by
excluding relevant evidence, namely the documents from the Hamilton County
Auditor indicating that City Gospel Mission had been classified as a church for
taxation purposes.
{¶31} Phillips Supply had not made these documents part of the record
before the ZBA, but had attempted to introduce them for the first time in its
14 OHIO FIRST DISTRICT COURT OF APPEALS
administrative appeal by asking the magistrate to take judicial notice of the
documents pursuant to Evid.R. 201(B). The Appellees’ motion to strike these
documents was granted by the magistrate. But the trial court determined that the
magistrate had erred in granting the Appellees’ motion to strike. It held that judicial
notice should have been taken, but it then excluded the documents as irrelevant.
{¶32} The record in an administrative appeal under R.C. Chapter 2506 is
limited to the transcript from the administrative hearing. See R.C. 2506.03(A). See
also State ex rel. 506 Phelps Holdings, LLC, 2013-Ohio-388, 986 N.E.2d 1037, at ¶
43. The record may only be supplemented if “it appears, on the face of that
transcript or by affidavit filed by the appellant” that one of five enumerated
exceptions applies. R.C. 2506.03(A). These exceptions, as provided in R.C.
2506.03(A), are:
(1) The transcript does not contain a report of all evidence admitted or proffered by the appellant.
(2) The appellant was not permitted to appear and be heard in person, or by the appellant’s attorney, in opposition to the final order, adjudication, or decision, and to do any of the following:
(a) Present the appellant’s position, arguments and contentions;
(b) Offer and examine witnesses and present evidence in support;
(c) Cross-examine witnesses purporting to refute the appellant’s position, arguments, and contentions;
(d) Offer evidence to refute evidence and testimony offered in opposition to the appellant’s position, arguments, and contentions;
(e) Proffer any such evidence into the record, if the admission of it is denied by the officer or body appealed from.
(3) The testimony adduced was not given under oath.
15 OHIO FIRST DISTRICT COURT OF APPEALS
(4) The appellant was unable to present evidence by reason of a lack of the power of subpoena by the officer or body appealed from, or the refusal, after request, of that officer or body to afford the appellant opportunity to use the power of subpoena when possessed by the officer or body.
(5) The officer or body failed to file with the transcript conclusions of fact supporting the final order, adjudication, or decision.
{¶33} None of these exceptions apply to allow for the admission of the
documents at issue. Phillips Supply has not contended that they were prevented or
disallowed from presenting this evidence to the ZBA. It simply made no attempt to
introduce the evidence at that stage of the proceedings. Phillips Supply cannot
circumvent R.C. 2506.03 by asking the trial to take judicial notice of additional
evidence that would be otherwise inadmissible under the statute.
{¶34} We hold that the trial court erred in taking judicial notice of these
documents, but that the error was harmless because the trial court excluded the
documents as irrelevant. Phillips Supply’s contention that the trial court erred in
excluding these documents is without merit.
Conclusion
{¶35} It was not an abuse of discretion for the trial court to find that the
principal use of the Dalton Avenue property was special assistance shelter and not
religious assembly or community-service facility. Nor was it an abuse of discretion
for the trial court to find that the principal use of the York Street property was not
religious assembly or community-service facility, but rather that the property was a
mixed-use facility and that each tenant had its own principal use, none of which were
religious assembly. Because each use assigned to the Dalton Avenue and York Street
properties was permissible in an MG district, we hold that the trial court did not
16 OHIO FIRST DISTRICT COURT OF APPEALS
abuse its discretion in affirming the decision of the ZBA that upheld the city’s
issuance of building permits for these properties.
{¶36} Phillips Supply’s assignment of error is overruled, and the judgment of
the trial court is affirmed.
Judgment affirmed.
HILDEBRANDT, P.J., and DEWINE, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.