Henley v. Youngstown Bd. of Zoning Appeals - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 2000-Ohio-493.]

HENLEY ET AL., APPELLEES, v. CITY OF YOUNGSTOWN BOARD OF ZONING APPEALS;
ST. BRENDAN CHURCH ET AL., APPELLANTS.
[Cite as Henley v. Youngstown Bd. of Zoning Appeals (2000), 90 Ohio St.3d 142.]
Municipal corporations -- Zoning -- Conversion of portion of former convent
into apartments for homeless women and their children -- Accessory use
permit granted by board of zoning appeals -- Trial court's affirmance of
board's grant of accessory use permit reinstated.
(No. 99-1520 -- Submitted May 24, 2000 -- Decided October 4, 2000.)
APPEAL from the Court of Appeals for Mahoning County, No. 97-CA-249.

This zoning dispute arose from the efforts of the Ursuline Sisters of
Youngstown (hereinafter "Sisters") to convert a portion of the former St. Brendan
Convent at 145 Glenellen Avenue in Youngstown into apartments for homeless
women and their children.

The Sisters are a society of Catholic nuns who have served the Youngstown
area for over a century. As part of their mission, the Sisters assist disadvantaged
members of the Youngstown population, especially women and children. With the
support of the Catholic Diocese of Youngstown ("Diocese"), the Sisters own and
operate an independent, nonprofit corporation on Youngstown's north side called
Beatitude House, which provides transitional housing and support for homeless

women. The Sisters proposed expanding that program into Youngstown's west
side by converting a portion of the former St. Brendan Convent building, located at
145 Glenellen Avenue, into transitional apartments.

The Diocese owns the land upon which the former convent sits--the city
block bounded by Glenellen, Connecticut, Schenley, and Oakwood Avenues. The
property has been continuously possessed, maintained, and operated by a diocesan
parish named St. Brendan's. The Diocese supported the Sisters' plans for the
former convent as a potential "new and viable use" for the former convent.

The diocesan property has been put to various religious and educational uses
over the years. A church and school were built there in 1924, and the convent
followed in the mid 1950s. Up to fifteen nuns lived in the convent until 1993.
Originally, all three buildings on the property straddled more than one lot, but in
1997 (during the pendency of this case) the property was replatted so that the
church, school, and former convent building are all currently situated on a single
lot. The Youngstown City School District has been a tenant of the Diocese, using
part of the former convent building for preschool classes.

The property concerned is zoned Single Family Residential, R-7.2, under
Section 2, Article IV of the Youngstown City Zoning Ordinance. This zoning
classification permits uses for churches and other places of worship, as well as
2

for "accessory uses"--which Article I of the ordinance defines as "use[s]
customarily incidental and subordinate to the principal use or building and located
on the same lot with such principal use or building."

The Sisters proposed converting fifteen existing bedrooms on the second
floor of the former convent into five residential apartments. Four of the apartments
would serve as transitional housing for the homeless women and children whom
the sisters accepted for participation in the Beatitude House program, with the fifth
apartment to be occupied by a resident manager. In addition to the transitional-
housing program, the Sisters proposed placing the "Potter's Wheel" job-
preparation program on the first floor of the former convent.

In late 1996, the St. Brendan's Parish Council unanimously endorsed the
Sisters' plans. But in order to receive federal grant money to fund the proposals,
the Sisters were required to obtain a letter from the local zoning authority
demonstrating that the programs would comply with applicable zoning laws, and
Sister Scheetz requested such a letter from the city. The city zoning officer denied
the request, and Beatitude House appealed to the Youngstown Board of Zoning
Appeals, claiming that its proposed uses for the former convent qualified as
accessory uses under the zoning ordinance.

In February 1997, the board conducted a hearing on the appeal.
3

Public notice of the hearing alerted members of the surrounding community that
"[t]he basis of the appeal is that the proposed use is accessory to the existing use."
After hearing testimony from the Sisters, counsel, concerned neighbors, and other
interested parties, the board deferred its decision, reconvened after considering a
legal memorandum from the assistant law director, and then granted the requested
accessory use permit "based on Federal and State law."

Susan Henley and N. Glenellen Blockwatch ("Henley"), nearby property
owners concerned about the proposal's potential impact on their neighborhood,
timely appealed the board's decision to the Mahoning County Court of Common
Pleas. Beatitude House and St. Brendan Roman Catholic Parish ("St. Brendan
Church") intervened in Henley's appeal.

In her first assignment of error, Henley claimed that the board of zoning
appeals erred when it granted the accessory use permit because, Henley alleged,
the board's decision was based in part on the Religious Freedom Restoration Act
of 1993, Section 2000bb et seq., Title 42, U.S.Code ("RFRA")--which the United
States Supreme Court declared unconstitutional approximately four months
following the board's decision to grant the permit. Boerne v. Flores (1997), 521
U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624. According to Henley, that decision by
the United States Supreme Court indicated that RFRA could "no longer
4

give the Church the unrestricted power to build and use land in any manner they
wish under the guise of `religious freedom.' "

In her second assignment of error, Henley claimed that inadequate notice of
the board hearing deprived concerned neighbors of their constitutional right to due
process. The "Notice of Public Hearing" disseminated by the board provided that
"[a]n appeal has been made to the Board of Zoning Appeals * * * for a variance
from the minimum requirements of the Zoning Ordinance." (Emphasis added.) In
a subsequent paragraph, the notice provided that "[t]he basis of the appeal is that
the proposed use is accessory to the existing use." (Emphasis added.) Henley
believed that the board's notice misled the surrounding property owners by
suggesting that Beatitude House was seeking a variance rather than a permit for an
accessory use.

Henley also argued that the nuns' proposed use did not meet the definition of
"accessory use" contained in Youngstown's zoning ordinance. Section 12.10 of
the city zoning ordinance requires accessory uses to be both "customarily
incidental and subordinate to the principal use or building" and "located on the
same lot as such principal use or building." Henley claimed that Beatitude House
would satisfy neither definitional requirement.

Finally, in her fourth assignment of error, Henley argued that Section 80,
5

Article VII (hereinafter "Section 80") of the city zoning ordinance expressly
prohibited the use of an accessory building as a dwelling unit in residential
districts. Henley maintained that, therefore, even if Beatitude House satisfied the
general definition of an "accessory use" under Article I of the ordinance, the
program would nonetheless directly violate Section 80's separate prohibition of
dwelling units in accessory buildings located in residential districts.

The city of Youngstown, Beatitude House, and St. Brendan Church (herein
referred to collectively as "Beatitude House") filed a joint response, urging the
common pleas court to affirm the board's decision. In addition to responding to
Henley's assignments of error, Beatitude House argued that a reversal of the
board's decision would violate the First Amendment to the United States
Constitution by infringing the Sisters' right to freely exercise their religion. Denial
of the accessory use permit, Beatitude House contended, would substantially
burden the Sisters' religious practices--without compelling reason--by preventing
them from accomplishing their customary mission of service to the disadvantaged.

The common pleas court affirmed the board's grant of the accessory use
permit. The court conceded that, to the extent the board relied on RFRA to support
its decision to grant the permit, that reliance was unlawful and erroneous due to
RFRA's
unconstitutionality. Nevertheless, the court determined that
6

the board's public notice was sufficient and that the proposed programs were
permissible accessory uses. Citing federal free-exercise cases, the common pleas
court determined that no compelling government or neighborhood interest justified
a refusal of the permit. The common pleas court did not address Henley's fourth
assignment of error concerning Section 80's apparent prohibition of dwellings in
accessory buildings in residential areas.

Henley appealed the decision of the common pleas court to the Mahoning
County Court of Appeals. In a single assignment of error, Henley claimed that the
common pleas court abused its discretion when it affirmed the board's grant of the
permit because the proposed use of the convent as a dwelling was prohibited by
Section 80 of the Youngstown zoning ordinance. In a split decision, the court of
appeals sustained Henley's assignment of error and reversed the decision of the
common pleas court.

The majority of the appellate panel conceded that "social programs of a
church, such as the ones in this case, are accessory uses in that they are
customarily incidental to the principal use." (Emphasis added.) Nevertheless, the
court determined that under Section 80 of the zoning code, "accessory buildings
cannot contain dwelling units in any residential district unless the ordinance
specifies an exception." The court of appeals also rejected Beatitude House's
7

free-exercise claim, concluding that Beatitude House had no private right to ignore
the generally applicable zoning law precluding dwellings in accessory buildings.

Because Henley did not contest the job-preparation aspect of the Sisters'
plans, and disputed only the Sisters' proposed use of the former convent as a
residence, the court of appeals limited the scope of its decision to the transitional-
housing project. Accordingly, the permit for the Potter's Wheel job-preparation
program remained valid following the decision of the court of appeals, and is not at
issue in this appeal.

The cause is now before this court upon the allowance of a discretionary
appeal.
__________________

Atway, Cochran & Rafidi, L.L.C., and Scott R. Cochran, for appellees.

Mary Beth Houser, for appellant St. Brendan Church.

Raymond M. Tarasuck, Jr., for appellant Beatitude House.
Patricia
Dougan, urging reversal for amicus curiae, Northeast Ohio Legal
Services.
__________________

COOK, J. Appellants contend that the court of appeals substituted its
judgment for that of the common pleas court when it reversed the decision of
8

the common pleas court in this administrative appeal, and that the denial of the
accessory use permit for the transitional-housing proposal unconstitutionally
infringes appellants' right to freely exercise their religion. We determine that the
court of appeals did not exceed the scope of appellate review under R.C. 2506.04
when it reviewed the decision of the common pleas court in this case.
Nevertheless, we differ from the court of appeals because we conclude that the
common pleas court did not err when it failed to apply Section 80 to preclude
appellants' proposed use of the former convent. Because we reverse the decision
of the court of appeals and reinstate the decision of the common pleas court, we
need not address appellants' constitutional claims.
I

The question at the center of this appeal is whether Section 80's General
Requirements preclude the use of a portion of the former convent as residential
apartments. The common pleas court did not address Section 80 in its decision
affirming the board's order, even though Henley expressly raised Section 80 in her
fourth assignment of error to that court. The court of appeals did expressly apply
Section 80, concluding that even though Beatitude House would qualify as an
"accessory use" under the general definition contained in Article I of the zoning
ordinance, Section 80's General
Requirements
prohibited
the
use
of
the
9

former convent as a dwelling due to the property's location in a residential zone.
Appellants here contend that the court of appeals substituted its judgment for that
of the common pleas court when it reversed the decision of the common pleas
court on this basis. Since the court of appeals did not discuss the standard of
review applicable to administrative appeals taken under R.C. 2506.04, we begin
our analysis by reviewing that standard.
A. The Limited Standard of Appellate Review in an R.C. 2506.04 Appeal

Construing the language of R.C. 2506.04, we have distinguished the
standard of review to be applied by common pleas courts and courts of appeals in
R.C. Chapter 2506 administrative appeals. The common pleas court considers the
"whole record," including any new or additional evidence admitted under R.C.
2506.03, and determines whether the administrative order is unconstitutional,
illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of
substantial, reliable, and probative evidence. See Smith v. Granville Twp. Bd. of
Trustees (1998), 81 Ohio St.3d 608, 612, 693 N.E.2d 219, 223, citing Dudukovich
v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d 202, 206-207, 12 O.O.3d 198,
201-202, 389 N.E.2d 1113, 1116-1117.

The standard of review to be applied by the court of appeals in an R.C.
2506.04 appeal is "more limited in scope." (Emphasis added.) Kisil v.
10

Sandusky (1984), 12 Ohio St.3d 30, 34, 12 OBR 26, 30, 465 N.E.2d 848, 852.
"This statute grants a more limited power to the court of appeals to review the
judgment of the common pleas court only on `questions of law,' which does not
include the same extensive power to weigh `the preponderance of substantial,
reliable and probative evidence,' as is granted to the common pleas court." Id. at
fn. 4. "It is incumbent on the trial court to examine the evidence. Such is not the
charge of the appellate court. * * * The fact that the court of appeals, or this court,
might have arrived at a different conclusion than the administrative agency is
immaterial. Appellate courts must not substitute their judgment for those of an
administrative agency or a trial court absent the approved criteria for doing so."
Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio
St.3d 257, 261, 533 N.E.2d 264, 267.
B. The Standard of Review Applied by the Court of Appeals

In their third proposition of law, appellants contend that the court of appeals
misapplied the foregoing standards in this administrative appeal. In order to
resolve this issue, we must determine what standard of review the court of appeals
actually applied. Our inquiry is complicated by the fact that the court of appeals'
opinion lacks any reference to R.C. 2506.04 or to any judicial decisions discussing
the proper standard of review in administrative
appeals.
11

Nevertheless, the court of appeals' opinion focuses on the application of
Section 80 to undisputed facts in the record. The application of Section 80 to the
facts is a "question of law"--"[a]n issue to be decided by the judge, concerning the
application or interpretation of the law." Black's Law Dictionary (7 Ed.1999)
1260. That the application of Section 80 to this case involved a consideration of
facts or the evidence did not turn this question into a question of fact. O'Day v.
Webb (1972), 29 Ohio St.2d 215, 58 O.O.2d 424, 280 N.E.2d 896, paragraph two
of the syllabus.

Moreover, Henley's assignment of error to the court of appeals asserted that
the common pleas court had "abuse[d] [its] discretion" by failing to preclude the
proposed use on the basis of Section 80. This court has held that in administrative
appeals under R.C. 2506.04, "[w]ithin the ambit of `questions of law' for appellate
court review would be abuse of discretion by the common pleas court." Kisil,
supra, at fn. 4. Accordingly, the court of appeals did not exceed the proper scope
of review under that statute when it sought to determine whether Section 80
applied to the undisputed facts in the record, or whether the common pleas court
abused its discretion by failing to apply Section 80. R.C. 2506.04; see, also, Kisil,
supra.

Our conclusion that the court of appeals did not exceed the standard of
12

review under R.C. 2506.04 does not preclude us from reaching a different result
than the court of appeals on the issue of whether the common pleas court did, in
fact, err by failing to prohibit the Sisters' proposal on the basis of Section 80.
Accord Solid Rock Ministries Internatl. v. Monroe Bd. of Zoning Appeals (June 5,
2000), Butler App. No. CA99-10-170, unreported, 2000 WL 744584 (holding that,
although common pleas court applied the proper standard of review to review
decisions of zoning boards, common pleas court nevertheless misapplied the law
when it found that prior permit issued by board disallowed proposed group home
for unwed pregnant teenagers, when prior permit disallowed only schools and the
group home was a permitted church use). Because we determine, infra, that
Section 80 does not preclude the Sisters' proposed use of the convent, we conclude
that the court of appeals erred when it reversed the decision of the common pleas
court on this basis.
II

Article I of the Youngstown ordinance, after providing a guide to
"Interpretation of Certain Terms and Words," includes a "List of Definitions."
Section 12.10 of that list provides that an "Accessory Use or Building" is "[a] use
customarily incidental and subordinate to the principal use or building and located
on the same lot with such principal use or building."
13

The court of appeals concluded, and we agree, that "social programs of a
church, such as the ones in this case, are accessory uses in that they are
customarily incidental to the principal use." (Emphasis added.) The character of
uses and structures that courts have deemed accessory to religious uses has varied
widely. See, generally, Annotation, What Constitutes Accessory or Incidental Use
of Religious or Educational Property Within Zoning Ordinance (1982), 11 A.L.R.
4th 1084, 1086, citing 2 Anderson, American Law of Zoning 2d, Section 12.26.1
Several courts have specifically permitted residential accommodations in church
buildings as accessory uses. See, e.g., St. John's Evangelical Lutheran Church v.
Hoboken (1983), 195 N.J.Super. 414, 479 A.2d 935 (shelter for homeless); Beit
Havurah v. Norfolk Zoning Bd. of Appeals (1979), 177 Conn. 440, 418 A.2d 82
(unrestricted overnight accommodations in synagogue). Most recently, the
Twelfth District Court of Appeals determined that a home for unwed pregnant
teenage girls, which included prenatal care, life skills training, and a spiritual
education, was an integral part of a church's missionary purposes. Solid Rock
Ministries Internatl., supra. Based on the foregoing, we agree with the court of
appeals that Beatitude House would be "customarily incidental" to the principal
use of the diocesan property as a Catholic church and would satisfy Article I's
definition of "Accessory Use or Building."
14

Article VII--the article containing Section 80's Supplemental Regulations--
provides a different definition of "Accessory Building" from the one appearing in
Article I's "List of Definitions." Section 80, entitled "Regulation of Accessory
Buildings in Residential Districts," more specifically provides that "[i]n residential
districts, `Accessory Building' means a structure constructed or installed on,
above, or below the surface of a parcel, which is located on the same lot as a
principal use or structure, and which is subordinate to or serves the principal use or
structure, [and] is subordinate in area to the principal use or structure. `Accessory
Building' includes any building of a subordinate nature attached to or detached
from a principal structure or use, including but not limited to sheds, garages and
greenhouses." (Emphasis added.)

After citing Section 80's definition of "Accessory Building," the court of
appeals seized on the following selected language from Section 80's "General
Requirements" to reverse the decision of the common pleas court and deny the
Sisters' proposed use: "In residential districts, except as otherwise provided in this
Ordinance, an accessory building shall be permitted in association with a principal
use or structure provided that:

" * * *
15

"2.

It shall not contain or be used as a dwelling unit." (Emphasis added.)

Relying on these provisions of the ordinance, the court of appeals came to
the following conclusions: "Accessory uses are permitted. These accessory uses
may occur in accessory buildings. However, accessory buildings cannot contain
dwelling units in any residential district unless the ordinance specifies an
exception. * * * Accordingly, * * * St. Brendan's Church may not allow Beatitude
House to remodel its former convent into apartments."

Implicit in the court of appeals' syllogism is the view that all separate
structures in which accessory uses occur, if located in a residential area, are
necessarily "accessory buildings" embraced by Section 80's prohibition of
dwelling units in accessory buildings. We do not share this view, and determine
on this question of law that the common pleas court did not err when it failed to
apply Section 80 to preclude renovation of the former convent.

For one, Section 80's definition of "Accessory Building," unlike the general
definition of "Accessory Use or Building" that appears in Article I, expressly refers
to "sheds, garages and greenhouses." This list of structurally similar storage- or
workshop-type buildings shows that the drafters of the zoning code had a particular
type of structure in mind when they desired to prohibit dwelling units in "accessory
buildings" in residential zones. Our conclusion is reinforced by Article V's
16

"Schedule of Uses," which refers to accessory uses "such as garages, greenhouses,
or tool shed." (Emphasis added.) If the drafters had not intended to limit the
purview of Section 80 to this type of structure, and wished to render Section 80's
prohibition applicable to all structures in which accessory uses happen to occur,
they could easily have done so. But they did not. Instead of referring back to
Article I's general definition of "Accessory Use or Building," Section 80 limits the
reach of its General Requirements by making them applicable to a narrower
category of "Accessory Buildings"--a category defined and described with
reference to sheds, garages, and greenhouses.

Though the nonexhaustive list of structures in Section 80's definition of
"Accessory Building" is preceded by the phrase "including but not limited to," the
canon of ejusdem generis, which has been cited with approval by this court,
suggests that the general or unstated terms in the definition should be determined
with reference to the terms expressly included. State v. Hooper (1979), 57 Ohio
St.2d 87, 89-90, 11 O.O.3d 250, 252, 386 N.E.2d 1348, 1350; see, also, Miller,
Pragmatics and the Maxims of Interpretation (1990), 1990 Wis.L.Rev. 1179, 1199-
1200. In Hooper, we noted that the canon of ejusdem generis is particularly
applicable to statutory language that must be strictly construed. Hooper, 57 Ohio
St.2d at 89, 11 O.O.3d at 251-252, 386 N.E.2d at 1350, fn. 4. Section 80, since
17

it "impose[s] restrictions upon the use, management, control, or alienation of
private property," should be strictly construed. See State ex rel. Moore Oil Co. v.
Dauben (1919), 99 Ohio St. 406, 124 N.E. 232, paragraph one of the syllabus.
Accordingly, the common pleas court did not err to the prejudice of appellees
when it disregarded this regulation aimed at "sheds, garages, and greenhouses" in
the context of this case.

Furthermore, the court of appeals cited only the second of Section 80's five
enumerated General Requirements to support its reversal of the common pleas
court. The four General Requirements that the court of appeals omitted from its
analysis support appellants' view that Section 80's prohibitions apply to small,
shed-like structures:

"1. The total area occupied by accessory buildings shall not exceed * * *
thirty-five percent of the gross floor area of the principal structure or * * * 770
square feet. One shed, not to exceed 120 square feet, shall be permitted in excess
of the above area limits.

" * * *
"3.

It shall not exceed eighteen (18) feet at the highest point, and the side
walls shall not exceed 12 feet in height.

"4. It shall meet all yard requirements of this zoning ordinance.
18

"5.

If not located in the rear yard, it shall be an integral part of the principal
building to which it is accessory." (Emphasis added.)

Courts are to read words and phrases in context. See R.C. 1.42. When the
phrase "it shall not contain or be used as a dwelling unit" is read in its proper
context, that context--like the canon of ejusdem generis--only reinforces our
conclusion that Section 80's General Requirements apply to structures in
residential zones resembling those specifically enumerated in Section 80's
Definition of "Accessory Building," and not to the former convent at issue in this
case.

The court of appeals stated that it resisted Beatitude House's invitation to
"interpret the ordinance instead of simply applying it." But in order to apply
Section 80 to the convent here, or to determine that the common pleas court abused
its discretion by failing to apply it, the court of appeals necessarily interpreted
Section 80 broadly, so that the prohibitions contained in its General Requirements
would embrace a structure completely unlike those listed in Section 80's definition
of "Accessory Building." Because zoning ordinances deprive property owners of
certain uses of their property, however, they will not be extended to include
limitations by implication. Van Camp v. Riley (1984), 16 Ohio App.3d 457, 16
OBR 539, 476 N.E.2d 1078. See, also, Univ. Circle, Inc. v. Cleveland (1978),
19

56 Ohio St.2d 180, 184, 10 O.O.3d 346, 348, 383 N.E.2d 139, 141; Dauben, supra,
99 Ohio St. 406, 124 N.E. 232, paragraph one of the syllabus; 3 Anderson,
American Law of Zoning 3d (1986) 7-8, Section 16.02.

Section 80's General Requirements, though they apply to the residential
zone in which the former convent is located, prohibit dwelling units in sheds,
garages, greenhouses, or other similar structures. The common pleas court did not
err to the prejudice of appellees when it failed to apply Section 80 to prevent the
Sisters from realizing their transitional-housing proposal at the former convent--a
proposal that the board approved as a permissible accessory use.

In their first and second propositions of law, appellants submit that when the
court of appeals reversed the decision of the common pleas court and denied the
accessory use permit, this infringed appellants' right to freely exercise their
religion--a right independently guaranteed by the First Amendment to the United
States Constitution and Section 7, Article I of the Ohio Constitution. Due to our
disposition of appellants' third proposition of law, appellants' constitutional claims
are moot.

For the foregoing reasons, we reverse the judgment of the court of appeals
and reinstate the decision of the trial court.
Judgment reversed.
20

MOYER, C.J., DOUGLAS, RESNICK and PFEIFER, JJ., concur.
F.E. SWEENEY and LUNDBERG STRATTON, JJ., dissent.
FOOTNOTE:

1.
Permissible accessory uses have ranged from activities buildings
(Elkhart Cty. Bd. of Zoning Appeals v. New Testament Bible Church, Inc.
[Ind.App.1980], 411 N.E.2d 681) to playgrounds (Cash v. Brookshire United
Methodist Church [1988], 61 Ohio App.3d 576, 573 N.E.2d 692; Siegert v. Luney
[1985], 111 A.D.2d 854, 491 N.Y.S.2d 15), to parking lots (Diocese of Rochester
v. Planning Bd. of Brighton [1956], 1 N.Y.2d 508, 154 N.Y.S.2d 849, 136 N.E.2d
827).
__________________

LUNDBERG STRATTON, J., dissenting. I agree that the Sisters' proposed use
of the convent may be incidental to the church's primary use of the property. I also
believe that providing assistance to poverty-stricken mothers is a worthy endeavor.
Nevertheless, I believe that the plain language of the Youngstown Zoning
Ordinance precludes the Sisters from using the convent as a dwelling.
A. Zoning Intent

The zoning ordinance seeks to regulate, among other things, population
density in residential districts.

Regulation
of
population
density
has
21

been held to be a valid zoning objective. See State ex rel. Grant v. Kiefaber
(1960), 114 Ohio App. 279, 19 O.O.2d 207, 181 N.E.2d 905. Presumably to assist
residential districts in maintaining their population density levels, Section 80 of
the zoning ordinance also precludes "accessory buildings" from being used as
dwelling units.

The church does not dispute that the convent is an accessory building that is
located in a residential, single-family, R-7.2 district. Therefore, allowing the
convent to be converted into a dwelling would be in clear conflict with the purpose
of maintaining population density, not only because it would allow an accessory
building that contains a dwelling, but also because it would allow a multifamily
dwelling in a single-family district. Persons in these neighborhoods have a
justifiable expectation that valid zoning regulations will be enforced to preserve the
nature of their neighborhood. Accordingly, I believe that the zoning ordinance
precludes the conversion of the convent into apartments.
B. Free Exercise Clause

Although the issue is not addressed by the majority, the brief of the
Beatitude House and the church argues that enforcement of the zoning laws to
preclude the convent from being used for housing for participants in the Potter's
22

Wheel Project would violate the church's right to free exercise of religion. I
disagree.

The Free Exercise Clause prohibits the government from discriminating
against someone solely because of religious beliefs, but it does not prohibit the
government from enforcing religious-neutral laws of general applicability. Oregon
Dept. of Human Resources, Emp. Div. v. Smith (1990), 494 U.S. 872, 110 S.Ct.
1595, 108 L.Ed.2d 876. The zoning ordinance merely divides property within the
city of Youngstown into separate districts with different land use regulations for
various enumerated religious-neutral purposes. Section 80 does not prevent the
Sisters from providing assistance to the women and their children; it merely
prevents the Sisters from housing these families on this particular piece of
property.

Zoning laws often involve striking a balance between competing interests.
In this case, the property is zoned single-family to preserve the character of a
family neighborhood. Allowing the convent to be used for a multifamily dwelling
would infringe on the neighbors' right to preserve the quality of their community.
The zoning ordinance has nothing to do with inhibiting the laudable goal of aiding
mothers in need, but everything to do with preserving the nature of the
neighborhood as the zoning ordinance intended. Even applying the Ohio test
23

for the free exercise of religion as set out in Humphrey v. Lane (2000), 89 Ohio
St.3d 62, 728 N.E.2d 1039, I would find that Section 80 furthered a compelling
state interest of preserving the nature of the neighborhood. I would also find that
Section 80 achieved that interest using the least restrictive means because the
housing for the Potter's Wheel Project participants could be located anywhere in
Youngstown where the zoning permitted such a use. Accordingly, I believe that
enforcement of the zoning in this case does not violate the Free Exercise Clause.
C. Ejusdem Generis

Article IV of the zoning ordinance allows the following use in the R-7.2,
single-family residential district:

"Accessory uses and structures incidental to any permitted residential use,
such as garages, greenhouses or tool sheds."

In 1990, the Youngstown City Council passed Section 80 of the
Supplementary Regulations to the ordinance. Section 80, entitled "Regulation of
Accessory Buildings in Residential Districts," states:

"Purpose: It is the purpose of this Section to regulate accessory buildings in
residential districts in order to promote the public health, safety and welfare. It is
the intent of this Section to permit buildings that are compatible with principal uses
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and harmonious with the uses upon adjacent properties.

"Definition: In residential districts, `Accessory Building' means a structure
constructed or installed on, above, or below the surface of a parcel, which is
located on the same lot as a principal use or structure, and which is subordinate to
or serves the principal use or structure, [and] is subordinate in area to the principal
use or structure. `Accessory Building' includes any building of a subordinate
nature attached to or detached from a principal structure or use, including but not
limited to sheds, garages and greenhouses.
"General
Requirements

"In residential districts, except as otherwise provided in this Ordinance, an
accessory building shall be permitted in association with a principal use or
structure provided that:

"1. The total area occupied by accessory buildings shall not exceed: a)
thirty-five percent of the gross floor area of the principal structure or * * * b) 770
square feet. One shed, not to exceed 120 square feet, shall be permitted in excess
of the above area limits.
"2.
It shall not contain or be used as a dwelling unit.

"3. It shall not exceed eighteen (18) feet at the highest point, and the side
walls shall not exceed 12 feet in height.
25

"4. It shall meet all the yard requirements of this zoning ordinance.

"5. If not located in the rear yard, it shall be an integral part of the principal
building to which it is an accessory." (Emphasis added.)
Applying
ejusdem generis, the majority holds that Section 80 applies only
to "small, shed-like structures," and therefore Section 80 does not apply to the
convent. The majority reasons that Section 80's reference to "sheds, garages and
greenhouses" indicates that the drafters intended to limit Section 80's application
to this type of small structure. The majority finds that the "General Requirements"
of Section 80 also support this limitation on Section 80's application. I disagree.

Under the rule of statutory construction of ejusdem generis, "[w]here general
words follow the enumeration of particular classes of things, the general words will
be construed as applying only to things of the same general class as those
enumerated." (Emphasis added.) Light v. Ohio Univ. (1986), 28 Ohio St.3d 66,
68, 28 OBR 165, 167, 502 N.E.2d 611, 613, citing State v. Aspell (1967), 10 Ohio
St.2d 1, 39 O.O.2d 1, 225 N.E.2d 226. "For example, in the phrase horses, cattle,
sheep, pigs, goats, or any other barnyard animal, the general language or any
other barnyard animal * * * would probably be held to include only four-legged,
hoofed mammals." (Emphasis sic.) Black's Law Dictionary (7 Ed.1999) 535.

"The reason behind this principle of statutory construction is that, if the
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Legislature had meant the general words to be applied without restriction, it would
have used a general term only, rather than specifically enumerating certain persons,
subjects, or objects followed by general terminology." State v. Greenburg (Sept.
30, 1986), Franklin App. No. 86AP-286, unreported, at 5-6, 1986 WL 11090.

The majority finds that the language "sheds, garages and greenhouses" in
Section 80 evidences an intent that the drafters of this section intended it to
prohibit only "storage- or workshop-type buildings."

However, the language "sheds, garages and greenhouses" does not precede,
but rather follows, the definition of accessory building in Section 80, making the
rule of ejusdem generis inapplicable. See, e.g., Bascon Inc. v. de la Vega (Nov. 19,
1999), Hamilton App. No. C-990172, unreported, 1999 WL 1043731. Thus, I
believe that the drafters did not intend to limit the definition of accessory building,
because they used a general term to define accessory building rather than a series
followed by general language. Greenburg, supra.

Moreover, words such as "other," "other thing," "others," or "any other" that
follow the enumerated series signal that the rulemaking authority is seeking to
limit the general words to the class of things listed in the enumerated series.
Glidden Co. v. Glander (1949), 151 Ohio St. 344, 350, 39 O.O. 184, 187, 86
27

N.E.2d 1, 4. For example in Light v. Ohio Univ., the court construed R.C.
1533.18(B), which states:

" `Recreational user' means a person to whom permission has been granted
* * * to enter upon premises to hunt, fish, trap, camp, hike, swim, or engage in
other recreational pursuits." (Emphasis added.)

The court in Light applied ejusdem generis and limited the phrase "other
recreational pursuits" to the same general class of the items listed in the preceding
enumerated series, i.e., hunting, fishing, etc.

Unlike the statutory language addressed in Light, Section 80 does not
contain language such as "other," which typically signifies an intent to limit a
general term to the class of terms in the proceeding enumerated series. Instead, the
words "sheds, garages and greenhouses" is preceded by the phrase "including but
not limited to." The language "including but not limited to" is recognized by courts
as indicating a nonexhaustive list of examples. See In re Smallwood (Jan. 26,
1998), Butler App. No. CA97-02-041, unreported, 1998 WL 24343; In re Estate of
Lewis (July 23, 1999), Athens App. No. 98CA17, unreported, 1999 WL 595458;
State v. Barnett (Feb. 8, 2000) Seneca App. No. 13-99-48, unreported, 2000 WL
140850; K-Swiss, Inc. v. Cowens Sports Ctr., Inc. (Nov. 8, 1995), Greene App. No.
95-CA-48, unreported, 1995 WL 655945. Thus, I would find that Section
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80's reference to "sheds, garages and greenhouses" is merely a nonexhaustive list
of examples of the types of accessory buildings that may be erected in a residential
district and not a limitation of the definition of an accessory building.

Finally, I believe that Section 80's language intends an expansive definition
for the term "accessory building." The definition portion of Section 80 reads: "
`Accessory Building' includes any building of a subordinate nature attached to or
detached from a principal structure or use, including but not limited to sheds,
garages and greenhouses." (Emphasis added.) If the drafters of Section 80 had
wished to limit its application to shed-like structures, it would have defined
accessory building as a shed-like structure, but it did not. Instead Section 80 states
that "accessory building" includes "any building of a subordinate nature." "Any" is
defined as "one indifferently out of more than two: one or some indiscriminately of
whatever kind." Webster's Third New International Dictionary (1986) 97. Thus,
"any" is not a word of limitation, but rather suggests an expansive definition of an
accessory building. Therefore, I do not believe that Section 80 was intended to
apply only to small, shed-like structures.

The majority also finds that the "General Requirements" of Section 80
support the conclusion that Section 80 applies only to small shed-like structures. I
disagree.
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Contrary to the majority's assertion otherwise, only two of the five General
Requirements address the size of the accessory building and thus lend even
plausible support to the majority.2 More important, the General Requirements are
merely a component of Section 80 that provides some limitations on the types of
accessory buildings that can be erected in a residential district, as opposed to
limiting the applicability of Section 80. Finally, it is the definition portion of
Section 80 that actually defines the term accessory building, which, as I
determined above, provides an expansive definition of the term "accessory
building." Thus, I do not believe that the General Requirements limit Section 80's
application to small, shed-like structures.

For all the aforementioned reasons, I believe that there is no intent on the
part of the drafters of Section 80 to limit its application to small, shed-like
structures. Therefore, I believe that the rule of ejusdem generis should not be
applied in this case because it defeats Section 80's ban on dwelling units in
accessory buildings in residential neighborhoods. State v. Warner (1990), 55 Ohio
St.3d 31, 62, 564 N.E.2d 18, 47 ("the rule of ejusdem generis should not be
invoked to defeat the obvious purpose of a legislative enactment").
D. Conclusion

Therefore, I would hold that Section 80 precludes renovation of the
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convent for use as a dwelling. Accordingly, I would affirm the judgment of the
court of appeals.
F.E. SWEENEY, J., concurs in the foregoing dissenting opinion.
FOOTNOTE:

2.
The first General Requirement allows a one-hundred-twenty-square-
foot shed. However, this "shed" is "permitted in excess of the above area limits."
The "above area limits" allow a seven-hundred-seventy-square-foot building.
Thus, the first General Requirement allows a shed and a seven-hundred-seventy-
square-foot building. Accordingly, even this language cited by the majority allows
a building bigger than a shed, by its own definition.
31