[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, 

U.S. BANK, N.A., TRUSTEE OF THE 

CHARLES PHILLIPS IRREVOCABLE 

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. 

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APPEAL NO. C-130835 

TRIAL NO. A-1303457 

 O P I N I O N.

 

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 

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Buechner Haffer Meyers & Koenig Co., L.P.A., and Peter E. Koenig, for PlaintiffsAppellants, 

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 DefendantsAppellees 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.
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 transitionalhousing 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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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“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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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). 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 C061064, 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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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.” 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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(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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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.