noting that zoning ordinances are presumed valid and the party “challenging the relevant provisions of the Cleveland Zoning Code, has had, at all stages of this litigation, the burden of demonstrating that portions of the zoning code are either facially unconstitutional or unconstitutionally applied to him.”
How later courts described this case
- noting that zoning ordinances are presumed valid and the party “challenging the relevant provisions of the Cleveland Zoning Code, has had, at all stages of this litigation, the burden of demonstrating that portions of the zoning code are either facially unconstitutional or unconstitutionally applied to him.”
Written by the judges who cited it.
The opinion
Paul W. Brown, J.,
dissenting. The gas station use admittedly pre-existed the restrictive zoning and is therefore a legal non-conforming use. The display and sale of convenience grocery items is a permitted use under the zoning code which requires no additional zoning application. That use affects the existing non-conforming use only if it can be shown that the dual use makes the existing non-conforming use more burdensome overall. There is no such evidence here, although evidence of a speculative nature as to the effect of dual use is the basis of the order below.
Small gasoline stations are presently confronted with economic problems arising out of the difficulty in obtaining gasoline and maintaining profit margins. Many are closing, while others are being converted into neighborhood convenience stores which are much more desirable in the scheme of things than are abandoned gas stations. Where, as here, there is a new use of part of such existing premises for a permitted purpose, I consider the interference here observed to be a gratuitous bureaucratic boondoggle in no way legislative in character.