[Cite as Phillips Supply Co. v. Cincinnati Zoning Bd. of Appeals,

.]

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, :

and :

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,

,

(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,

. 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,

,

(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,

,

(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,

.

{¶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,

. 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,

,

(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,

.

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,

,

, 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.

17