Town Center Development Co. v. City of Cleveland

Celebrezze, C. J.,

dissenting. I must respectfully dissent from today’s decision because the majority opinion, emulating the Court of Appeals, has discerned a fire safety hazard which I am unable to find in my copy of the record.

While Dudukovich v. Housing Authority (1979), 58 Ohio St. 2d 202 — the sole case cited in the majority opinion — is relevant to the extent that it construes the standard of judicial review in a R. C. Chapter 2506 appeal, it is not, of course, a zoning case. Rather, Dudukovich deals with the legality of the discharge of an inspector by the Lorain Metropolitan Housing Authority. Conspicuous by their absence from the majority opinion are any references to the plethora of zoning cases recently decided by this court. I submit that there is nothing in the prior zoning decisions of this court which even suggests— much less compels — the result reached by the majority today.

The Court of Appeals’ reliance on Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St. 2d 23, can only be described as baf*646fling. In Mobil Oil, this court upheld a city council’s refusal to rezone property in order to permit the operation of a gasoline service station in an area zoned single-family residential. Under the applicable zoning ordinances in Mobil, a gasoline service station was not a permitted use in a single-family residential classification and was not contemplated in the ordinances. In the case at bar, however, pursuant to Section 337.03(c) of Cleveland’s Codified Ordinances, rowhouses may be constructed in a two-family district upon the granting of a special permit by the board of zoning appeals. Thus, the proposed construction here, unlike in Mobil, was specifically provided for in the ordinances.

In order to understand the focal point of the case at bar, it is first necessary to point out what the case does not concern. It is not a case where the character or residential integrity of the neighborhood is threatened, as in Mobil Oil Corp. v. Rocky River, supra. Nor is it a case where the Court of Appeals directly identified traffic congestion as the problem. See, generally, Brown v. Cleveland (1981), 66 Ohio St. 2d 93; State, ex rel. Associated Land & Investment Corp. v. Lyndhurst (1958), 168 Ohio St. 289; Annotation, 74 A.L.R. 2d 418. Nor is it a case in which one party contends that the aesthetics of an area will be harmed. See, generally, Mayfield-Dorsh, Inc., v. South Euclid (1981), 68 Ohio St. 2d 156.

Instead, the Court of Appeals, in a demonstration of judicial clairvoyance, invalidated the entire project because “the plan would pose a fire hazard, therefore clearly constituting a detriment to public safety.” Evidently, the Court of Appeals felt that (1) the parking lot in the proposed complex would be overcrowded and (2) the turning radius in the parking lot was inadequate for fire apparatus, thus impeding the ingress and egress of emergency vehicles and constituting a fire hazard.

The fundamental flaw in the majority’s and the Court of Appeals’ reasoning, however, is that this conclusion is entirely based on a speculative assumption. More specifically, Cleveland’s current zoning code requires one parking space per unit for a rowhouse use. Thus, under the code, this development would require 50 parking spaces. However, the proposed development indicates 74 parking spaces — approximately 50 *647percent in excess of the code requirement. Nevertheless, the board of zoning appeals apparently decided that 74 spaces were inadequate due to testimony in the record that most homeowners have two cars.

In my estimation the testimony concerning the number of cars owned by most homeowners is totally irrelevant to the determination of the number of cars which renters of two-bedroom rowhouses might own. While I acknowledge the need for a court, on occasion, to take judicial notice of undisputed facts (see Evid. R. 201; Morgan, Judicial Notice, 57 Harv. L. Rev. 269), an appellate court should not be engaging in crystal-ball analysis vis-a-vis the automotive habits of rowhouse renters. There is nothing in this record, considered as a whole, which demonstrates to me that the parking facilities in the proposed development — which already meet the code requirements — will be inadequate or a fire hazard.

Similarly, my reading of the record uncovers no turning radius problem. As Mr. Jackman, a traffic engineer expert, testified:

“Q. You described the turn around. Have you compared the radius of the turn around to any existing standards in the City of Cleveland?
“A. This is in excess of the normal radius. Generally 30 feet is looked upon as adequate, and this has a 40-foot radius.”

A case like this compels me to make one final observation on the scope of judicial review of zoning determinations. While a zoning classification may be entrusted, in the first instance (Willott v. Beachwood [1964], 175 Ohio St. 557) to the legislative judgment, review of zoning decisions, in the final analysis, is a judicial function. It is our responsibility to examine zoning decisions critically, giving due, but not undue, deference to the conclusions of a board of zoning appeals or a city council. However, a reviewing court should never become a rubber stamp for a legislative determination.

Whether this court is reviewing, pursuant to R. C. Chapter 2721, a declaratory judgment challenge to the constitutionality of a zoning classification, or, as here, evaluating, pursuant to R. C. Chapter 2506, a zoning classification as applied to a proposed development, the critical considerations, practically speaking, are whether, inter alia, the decision of the

*648legislative or administrative body is arbitrary, unreasonable, reasonably related to the public health or safety, or supported by a preponderance of the reliable evidence. Mayfield-Dorsh, Inc., v. South Euclid, supra; Cincinnati Bell v. Glandale (1975), 42 Ohio St. 2d 368; Mobil Oil Corp. v. Rocky River, supra.

Applying these criteria to the facts at bar, the case, in its present posture, with all its speculative, groundless assumptions, presents evidence which, in my judgment, strongly preponderates against the conclusion that the proposed development constitutes a fire hazard. As such, this is precisely the type of case where meaningful judicial review mandates reversing the Court of Appeals and the board of zoning appeals. See, also, Mayfield-Dorsh, Inc., v. South Euclid, supra.

For all the foregoing reasons, therefore, I respectfully dissent and urge reinstatement of the trial court’s judgment.

Sweeney and C. Brown, JJ., concur in the foregoing dissenting opinion.