[Cite as State ex rel. Phillips Supply Co. v. Cincinnati , 2012-Ohio-6096.] 

### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE EX REL. PHILLIPS SUPPLY CO.,

STATE EX REL. ROY TAILORS UNIFORM CO., INC, STATE EX REL. U.S. BANK, N.A., TRUSTEE OF THE CHARLES PHILLIPS IRREVOCABLE TRUST u/a/d 6/1/1961,

STATE EX REL. DALTON STREET PROPERTIES, LTD., PHILLIPS SUPPLY COMPANY, ROY TAILORS UNIFORM CO., INC., U.S. BANK, N.A., TRUSTEE OF THE CHARLES PHILLIPS IRREVOCABLE TRUST u/a/d 6/1/1961,

and DALTON STREET PROPERTIES, LTD. Plaintiffs-Relators-Appellants

vs. CITY OF CINCINNATI, AMIT B. GHOSH, P.E., CITY GOSPEL MISSION,

FOUNDATION OF COMPASSIONATE AMERICAN SAMARITANS, d.b.a. LORD’S GYM, 

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: APPEAL NO. C-120168 TRIAL NO. A-1104905

O P I N I O N.OHIO FIRST DISTRICT COURT OF APPEALS



### 2 FOUNDATION OF COMPASSIONATE AMERICAN SAMARITANS d.b.a. LORD’S PANTRY,

JOBS PLUS EMPLOYMENT NETWORK, INC.,

and 032811 HOLDINGS, LLC., Defendants-Respondents- Appellees. 

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Civil Appeal From: Hamilton County Common Pleas Court Judgment Appealed From Is: Affirmed Date of Judgment Entry on Appeal: December 26, 2012

Buechner Haffer Meyers and Koenig Co., LPA

, and Peter E. Koenig , for Plaintiffs-RelatorsAppellants, John P. Curp, City Solicitor , Terrance A. Nestor, Chief Counsel

, and Sean S. Suder

, Assistant City Solicito r, for Defendants-Respondents-Appell ees, City of Cincinnati and Amit B. Ghosh, P.E., Manley Burke L.P.A. and Timothy M. Burke , for Defendants-Respondents-Appellees City Gospel Mission, Foundation of Compassionate American Samaritans d.b.a. Lord’s Gym and Lord’s Pantry, Jobs Plus Employment Network, Inc., and 038211 Holdings, LLC., Taft Stettinius & Hollister, LLP

, W. Stuart Dornette and Emily C. McNicholas , for Amici Curiae, Strategies to End Homelessness, Greater Cincinnati Coalition for the Homeless, Lighthouse Youth Services, Cincinnati Union Be thel, Society of St. Vincent De Paul, Christ Emmanuel Christian Fellowship, Crossroads Church, Metropolitan Area Religious Coalition of Cincinnati, YWCA of Greater Cincinnati and Talbert House,

Barrett and Weber LPA and C. Francis Barrett , for Amicus Curiae Columbia Development Corporation.OHIO FIRST DISTRICT COURT OF APPEALS



### 3 J. H OWARD S UNDERMANN , Presiding Judge. 

### {¶1} This case concerns the proposed relocation of a homeless shelter operated by defendant-respondent-appellee City Gospel Missi on to an area of Cincinnati commonly referred to as Queensgate. Plaintiffs-relators-appellants Phillips Supply Company, Roy Tailors Uniform Company, Inc., U.S. Bank, and Dalton Street Properties, Ltd., are neighboring Queensgate businesses and property owners (“Queensgate Businesses”) who are opposed to the shel ter’s relocation. They filed suitagainst defendants-respondentsappellees the City of Cincinnati, Amit E. Ghos h, the chief building official of the City of Cincinnati, (“the City”) social service agencies City Gospel Mission, Foundation of Compassionate American Samaritans “FOCAS,” Jobs Plus Employment Network, Inc., and 032811 Holdings, LLC, the owner of the property (“private party appellees”), challenging City Council’s decision to pass a “notwithstanding ordinance” to allow City Gospel Mission to operate a homeless shelter at the property. 

### {¶2} In this appeal, they challenge the trial court’s judgment upholding the constitutionality of the notwit hstanding ordinance. Because the Queensgate Businesses lack standing to pursue thei r taxpayer claim for injunctive relief, we dismiss that claim. And because they have not raised any genuine issues of material fact in support of their constitutional attack upon th e notwithstanding ordinance in their capacity as neighboring businesses and property owners, we affirm the trial court’s decision granting summary judgment to the City and the private party appellees on their declaratory judgment claim.

I. Relocation of the City Gospel Mission Shelter



### {¶3} City Gospel Mission is planning to relocate its existing Over-the-Rhine homeless shelter to a new facility on the property located at 1801-1805 Dalton Avenue (“the Dalton Avenue property”). The Dalton Avenue property is located in an “MG”OHIO FIRST DISTRICT COURT OF APPEALS



### 4 manufacturing zoning district in a section of the West End neighborhood commonly known as “Queensgate.” The Queensgate Businesses own property and operate businesses directly adjacent to or near the Dalton Avenue property. 

### {¶4} The proposed facility is classified as a “special assistance shelter” in the Cincinnati Zoning Code. See Cincinnati Municipal Code 1401 -01-S11. Special assistance shelters are not permitted by right in any zoning district in the city of Cincinnati. They are conditionally permitted in certain zones and prohibited in others, such as the “MG” manufacturing zoning district. See Cincinnati Municipal Code 1413-05. The “MG” manufacturing zoning district is a permissive zone which, in addition to industrial and manufacturing zoning uses, permits uses such as sexually-oriented businesses, drinking establishments, and powe r plants, along with residential uses such as transitional housing and loft dwelling units. See Cincinnati Municipal Code 1413-05. 

### {¶5} City Gospel Mission sought approval for a special assistance shelter using the notwithstanding ordinance procedure set forth in Cincinnati Municipal Code 111-5. According to Article VII, Section 6 of the City Charter, zoning ordinances must be reviewed by the City Planning Commission before being en acted by council. If not approved by the commission, notwithstanding ordinances can only be passed by a two-thirds vote of the city

council. See Cincinnati Municipal Code 111-5. After review by the planning commission, before a notwithstanding ordinance can be passed by city council, a committee of council must hold a public hearing and make a recommendation on the ordinance. See id. 

### {¶6} Under Cincinnati Municipal Code 111-5, among the issues to be considered by the council committee in making a recommendation to city council on a notwithstanding ordinance are: “[w]hether the proposed application will not have an adverse effect on the character of the area or the public health, safety, and welfare; and whether the proposed application is cons istent with the purposes of this co de and the zoning district where theOHIO FIRST DISTRICT COURT OF APPEALS



### 5 subject property is located.” Cincinnati Municipal Code 111-5. The committee can also incorporate limitations or conditions on the us e of the property into its recommendation to

council in order to ensure that the use of the property is consis tent with the character of the area and with the public health, safety, and welfare. Id. 

### {¶7} On June 17, 2011, the City Planning Commission held a public hearing on City Gospel Mission’s application for a notwithsta nding ordinance. At the conclusion of the hearing, the City Planning Commission reje cted the recommendation of the staff of the Department of City Planning and Buildings to deny the notwithstanding ordinance, and unanimously recommended approval of the notw ithstanding ordinance. On June 21, 2011, a committee of council, the Livable Communities Commission, held a public hearing on the matter. The Livable Communities Commission, which is comprised of seven of the nine members of city council, recommended approval of the notwithstanding ordinance by the full city council. 

### {¶8} Both the Planning Commission and th e Livable Communities Commission heard extensive testimony on the relocation of the shelter to the new site from individuals both in favor of and opposed to the relocation. The Queensgate Businesses’ representatives and their counsel appeared at both hearings and presented argument that the notwithstanding ordinance would be detrimental to the public he alth, safety, and welfare. 

### {¶9} On June 22, 2011, city council passed the notwithstanding ordinance, Ordinance No. 0223-2011, by a vote of 7-2, thereby approving the operation of a special

assistance shelter on the Dalton property by the City Gospel Mission. The notwithstanding ordinance contains a preamble which provides the reasons for city council’s action, as well as 11 conditions that address any potential impact of the use of the property as a special

assistance shelter. Section three of the ordin ance further provides that “the property is permitted to be used as a special assistance sh elter as limited by the Ordinance, [that] theOHIO FIRST DISTRICT COURT OF APPEALS



### 6 Property has not been rezoned and remains in a “MG” Manufacturing General zoning district and [that it] shall be treated as such for all other purposes.” The notwithstanding ordinance further provides that the zoning approval to use the property as a special assistance shelter expires if the property is tr ansferred to a party una ffiliated with the City Gospel Mission. 

### {¶10} Following the ordinance’s passage, the Queensgate Businesses sent a taxpayer demand letter to City Solicitor John Curp, demand ing that he file a taxp ayer lawsuit on their behalf. When Curp declined to initiate the requested action, the Queensgate Businesses filed this lawsuit challenging the constituti onality of the notwiths tanding ordinance.

II. The Current Lawsuit 

### {¶11} In their first three causes of action, the Queensgate Businesses sought a declaratory judgment 1) that the notwithstanding ordinance is clearly arbitrary and unreasonable and not substantially related to the health, safety, morals, and general welfare of the city of Cincinnati; 2) that they were denied their procedural due process rights protected by the United States and Ohio Constitutions through the enactment of the notwithstanding ordinance; and 3) that the city had violated their equal protection rights by “allowing City Gospel to bypass the proced ures for obtaining a zoning change, text amendment, or use variance set forth in the zoning code and charter and obtain a notwithstanding ordinance in an arbitrary and unequal manner.” 

### {¶12} In their fourth and fifth causes of action, the Queensgate Businesses asserted claims for injunctive relief and a writ of mandamus under the taxpayer standing provisions of Ohio law. In count six of their complain t, they requested damages, and in count seven they sought a declaratory judgment that the proposed uses of the York Street property were impermissible in the MG district.OHIO FIRST DISTRICT COURT OF APPEALS



### 7 {¶13} The private party appellees filed a motion to dismiss on July 20, 2011. The city of Cincinnati filed a motion to dismiss on July 27, 2011. That same day, the Queensgate Businesses filed a first amended complaint, which inserted the name of a previously unknown party, and added a claim for a preliminary injunction. The private party appellees and the City filed motions to dismiss the amended complaint. The trial court granted their motions to dismiss in part, dismissing the claims in counts two, three, five, and seven of the Queensgate Businesses’ amended complaint. 

### {¶14} Because the parties had relied on evidence outside the pleadings, the trial

court converted their motions to dismiss the three remainin g counts in the complaint— count one for declaratory judgment, count four for injunctive relief, and count six for damages—into motions for summary judgment. Following the parties’ filing of supplemental memoranda and materials, the tr ial court granted summary judgment to the City and the private party appellees. The trial court held that the Queensgate Businesses had failed to point to any evidence in the record that would meet the standard for determining the constitutionality of zoning ordinances as set forth by the Ohio Supreme

Court in Goldberg Cos. Inc v. Richmond Hts. City Council , 81 Ohio St.3d 207, 214, 690 N.E.2d 510 (1998). III. Taxpayer Standing 

### {¶15} On appeal, the Queensgate Businesses argue in a single assignment of error that the trial court erred in granting summary judgment in favor of th e City and the private party appellees on counts one, four, and six of their amended complaint because genuine

issues of material fact remain. But before we can reach the merits of their assignment of error, we must first determine whether they have standing to assert their taxpayer claim for injunctive relief in count four of their complaint. See State ex rel. Teamsters Local Union No. 456 v. Bd. of Cty. Commrs. , 132 Ohio St.3d 47, 2012-Ohio-1861, 969 N.E.2d 224, ¶ 10.OHIO FIRST DISTRICT COURT OF APPEALS



### 8 {¶16} The City argues that the Queensgate Bu sinesses lack standing to bring their taxpayer claim for injunctive relief because they do not seek to enforc e a public right, but merely seek to benefit themselves. Whether a party has established standing to bring an action before the court is a question of law, which the court reviews de novo. Cuyahoga Cty.

Bd. of Commrs. v. State , 112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d 330, ¶ 23. 

### {¶17} To have standing to pursue a taxpayer claim under R.C. 733.59, a party must not only satisfy the statutory requirements prio r to initiating his action—that he has made a written demand upon the city’s law director and that security for the claim has been posted —but he must also demonstrate that he is enforcing “a right of action on behalf of and for the benefit of the public.” See R.C. 733.59; Teamsters at ¶ 11-12; Cincinnati ex rel. Zimmer

v. Cincinnati , 176 Ohio App.3d 588, 2008-Ohio-3156, 892 N.E.2d 987, ¶ 11; State ex rel. Citizens for a Better Portsmouth v. Sydnor, 61 Ohio St.3d 49, 54, 572 N.E.2d 649 (1991). 

### {¶18} In determining that the Queensgate Bu sinesses had taxpayer standing, the trial court held that the Queensgate Businesses had alleged a “public interest” in preserving the industrial nature of the Queensgate area, as manifested in several city planning documents, including the “Liberty Dalton Urban Design Plan” and the “Go Cincinnati Plan,” and that this “public interest” was as “significant as the public interest” presented by the employees in State ex rel. Fisher v. City of Cleveland , 109 Ohio St.3d 33, 2006-Ohio-1827,

845 N.E.2d 500. The trial court reasoned th at the adherence to comprehensive zoning and urban development plans could be said to benefi t the public as a whole, and that there was “at least arguably a public right at stake in the preservation of pre-existing zoning of the Queensgate area consistent with City urban design plans.” 

### {¶19} In State ex rel. Teamsters Local Union No. 456 v. Bd. of County

Commissioners

, supra , the Ohio Supreme Court recently addressed its decision in the

Fisher case. In Teamsters , a public sector union filed a taxpayer suit against CuyahogaOHIO FIRST DISTRICT COURT OF APPEALS



### 9 County to invalidate a county resolution that excused their members from participating in an employee retirement incentive plan. Id. at ¶ 6. The Teamsters court reviewed its prior

decisions in State ex rel Caspar v. Dayton , 53 Ohio St.3d 16, 20, 558 N.E.2d 49 (1990) and

in Fisher

. Id. at ¶ 13-16. In determining whether the complainants in Teamsters had taxpayer standing in light of Caspar and Fisher , the court distinguished the challenge brought in Teamsters from the taxpayer action in Fisher

. Id. at ¶ 15. The court held that

Fisher had involved an unnecessary violation of privacy by the city of Cleveland and a resulting abuse of its corporate powers. Id. The Supreme Court held that the taxpayer complainants in Teamsters had failed to allege any “concrete taxpayer interest,” but instead had alleged that the “existence of a statut orily noncompliant county resolution had constitute[d] an injury in and of itself.” Id. at ¶ 16. 

### {¶20} The Teamsters court held that while “taxpaye rs ‘may judicially contest the validity of any official act which directly affect s prejudicially their rights as taxpayers by increasing the burden of taxes or otherwise,’ taxpayers cannot contest official acts ‘merely upon the ground that they are unauthorized or invalid.’ ” Id. quoting Pierce v. Hagans, 79 Ohio St. 9, 22, 86 N.E. 519 (1908). The Teamsters court clarified that the taxpayer’s objective must be the enforcement of a “public right.” Id. at ¶ 17. The Teamsters court acknowledged that if it were to permit taxpayer standing “merely upon a showing of a city’s failure to comply with a statute, such standing would not benefit the public, because it would allow constant judicial in tervention into gove rnment affairs for matters that do not involve a clear public right and do not benefit the public.” Id. The Teamsters court held that because “there [wa]s no vindication of public rights or conferral of public benefits to be

found in the union’s attempt to obtain retirement benefits for a small number of employees,” they lacked taxpayer standing. Id.OHIO FIRST DISTRICT COURT OF APPEALS



### 10 {¶21} Here, the Queensgate Businesses argue that the notwithstanding ordinance will negatively affect their individual property valu es. But we agree with the City that this is quintisentially a private motive. See State ex rel. Karwowski v. Granger Twp. Trustees , 9th Dist. No. 08CA0017-M, 2008-Ohio-4946, ¶ 28-3 1 (holding that a property owner lacked taxpayer standing under R.C. 733.59 because his interest in making changes to a zoning ordinance affected only his property and did not benefit the public at large). The trial court held that their objective in challenging the ordinance was to protect the character of the Queensgate area, and that such a motive would benefit the public as a whole. But we must disagree. Queensgate is but one neighborhood among Cincinnati’s fifty-two neighborhoods. Any alleged benefits from their action will affect relatively few individu als in relation to the city as a whole. Moreover, no public rights have the potential of being affected by their action in invalidating the ordinance. As the Ohio Supreme Court affirmed in Teamsters , a challenge to benefit a few will not operate to confer taxpayer standing. Teamsters , 135 Ohio St.3d 47, 2012-Ohio-1861, 969 N.E.2d 224, at ¶ 14. 

### {¶22} And while we agree that there may be some public benefit when a private litigant prevails against the government, ancillary public benefits are not enough to confer taxpayer standing. See Home Builders Assn. of Dayton v. Lebanon , 167 Ohio App.3d 247, 2006-Ohio-595, 854 N.E.2d 1097, ¶ 54 (12th Dist.). Because the Queensgate Businesses have not alleged that a clear pu blic right is at stake, they are not entitled to taxpayer standing. 

### {¶23} Our conclusion that the Queensgate Businesses lack taxpayer standing to pursue the injunctive relief in count four of their complaint does not dispose of their appeal. They have also sought declaratory relief in count one in their individual capacities, which provides them standing that is separate from their standing as taxpayers. See Teamsters at ¶ 18; see also Moore v. Middletown , 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977 ¶OHIO FIRST DISTRICT COURT OF APPEALS



### 11 33 (“when a municipality rezones a property, the owner of the adjacent property has standing to challeng e the constitutionality of the zoning decision”). We, therefore, turn to the merits of the arguments raised in conjunct ion with their declaratory-judgment claim. IV. The Constitutionality of the Zoning Ordinance 

### {¶24} The Queensgate Businesses argue that the constitutionality of the notwithstanding ordinance cannot be decided as a matter of la w because genuine issues of

material fact remain as to whether the notwit hstanding ordinance (1) is clearly arbitrary and unreasonable and not substantially related to the health, safety, morals, and general welfare of the city of Cincinnati, (2) illegally spot zones the Dalton Property; (3) violates the Ohio Constitution, Article XVII, Section 3; and whethe r (4) it violates the charter of the city of Cincinnati because City Council usurped the au thority of the City of Cincinnati Planning Commission in passing the notwit hstanding ordinance. V. Summary Judgment Standard 

### {¶25} We review the trial court’s entry of summary judgment de novo, using the same standard that the trial court applied. Koos v. Cent. Ohio Cellular, Inc. , 94 Ohio App.3d 579, 588, 641 N.E.2d 265 (8th Dist.1994). Summary judgment is appropriate under Civ.R. 56(C) when “(1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving part y, that conclusion is adverse to the party against whom the motion for summary judgment is made.” State ex rel. Parsons v. Fleming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1 994). The material issues in each case are identified by the substantive law and “ ‘[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.’ ” Turner v. Turner , 67 Ohio St.3d 337, 339, 617 N.E.2d 1123 (1993), quotingOHIO FIRST DISTRICT COURT OF APPEALS



### 12 Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986);

see also Mayo v. Kenwood Country Club, Inc., 134 Ohio App.3d 336, 340, 731 N.E.2d 190 (1st Dist.1999).

A. The Ordinance is Not Arbitrary or Unreasonable and Is Substantially Related to the Health, Safety, and General Welfare of the City of Cincinnati 

### {¶26} In their first issue presented for review, the Queensgate Businesses argue that the constitutionality of the no twithstanding ordinance cannot be decided as a matter of law because there are genuine issues of material fact as to whether the notwithstanding ordinance is clearly arbitrary and unreasonable and not substantially related to the health, safety, and general welfare of the city of Cincinnati. 

### {¶27} Municipalities have a great deal of powe r to enact zoning regulations. “The power of a municipality to * * * determine land use policy is a legislative function which will not be interfered with by the courts, unless such power is exercised in an arbitrary, confiscatory, or unreasonable manner as to be in violation of constitutional guarantees.” Jaylin Invs., Inc. v. Moreland Hills , 107 Ohio St.3d 339, 2006-Ohio-4, 839 N.E.2d 903, ¶ 21 quoting Willott v. Beachwood , 175 Ohio St. 557, 197 N.E.2d 901 (1964), paragraph three of the syllabus. “A zoning regulation is presumed to be constitutional unless determined by a court to be clearly arbitrary and unreasonable and without substantial re lation to the public health, safety, morals, or genera l welfare of the community.” Goldberg Cos. Inc, 81 Ohio St.3d at 214, 690 N.E.2d 510. 

### {¶28} The Ohio Supreme Court has held that “[t]he legislative, not the judicial, authority is charged with the duty of determin ing the wisdom of zoning regulations and the judicial judgment is not to be substituted for the legislative judgment in any case in which the issue or matter is fairly debatable.” Willott , 175 Ohio St. at 560, 197 N.E.2d 201. Thus, the burden of proof remains with the party ch allenging an ordinance’s constitutionality andOHIO FIRST DISTRICT COURT OF APPEALS



### 13 the standard of proof remain s “beyond fair debate.” Jaylin Invs. Inc , 107 Ohio St.3d 339, 2006-Ohio-4, 839 N.E.2d 903, ¶ 13 quoting Goldberg Cos. Inc. , 81 Ohio St.3d at 214, 690 N.E.2d 510. The “beyond fair debate” standard is analogous to the “beyond a reasonable

doubt” standard in a criminal case. Cent. Motors Corp. v. Pepper Pike , 73 Ohio St.3d 581, 584, 653 N.E.2d 639 (1995); see also State ex rel. Ridge Club v. Amberley Village , 1st Dist. No. C-070012, 2007-Ohio-6089, ¶ 10. 

### {¶29} Here, the notwithstanding ordinance’s preamble embodies City Council’s rationale for its decision to permit the home less shelter on the Dalton property. The preamble states in relevant part:

* * * * * * the relocation of the City Gospel Mission from its existing location in the Over-the-Rhine neighborhood to the West End neighborhood advances the City’s goal of de-concentrating social service agencies so that the land use of any one neighborhood is not over-saturated with social service agencies; and * * * too many social service agencies concentrated in any one neighborhood can crowd out other land uses such as residential and retail uses in that neighborhood; and * * * relocating the City Gospel Mission from Over-the-Rhine helpspromote the economic stability of existing land uses within the Overthe-Rhine neighborhood and promotes the preservation of the character and quality of the residential neighborhoods that make up Over-the-Rhine; and * * * the relocation of the City Gospel Mission to the West End neighborhood is in keeping with the Go Cincinnati and Revive 75OHIO FIRST DISTRICT COURT OF APPEALS



### 14 plans, is in the best interest of th e City of Cincinnati, and is in the furtherance of the public health, safety, and welfare; and

* * * * * * the Cincinnati Museum Center, a West End resident and institution, has engaged City Gospel Mission to address its concerns about the potential effects of the use of the Property for a special assistance shelter, and the parties have reached a good neighbor agreement that adequately addresses the concerns of the Cincinnati

Museum Center and reduces the likeli hood of impacts of such use on the surrounding West End neighborhood; and * * * pursuing a use variance is not feasible because the prohibition of the use of the Property for a special assistance shelter would not deprive the property owner of all economically viable use of the Property, and as such, there is no viable administrative process available to permit a special assistance shelter on the Property; and * * * a rezoning of the Property to a zone which conditionally permits a special assistance shelter is not desired by the applicant, and a notwithstanding ordinance, unlike a zoning, will not alter the zone map * * *. 

### {¶30} The City and private party appellees argue that the city’s interest in deconcentrating social service agencies, prom oting economic stability, and preserving neighborhoods is rationally related to the healt h, safety, and welfare of its citizens and that granting legislative relief to City Gospel Mission to use the Dalton property for a special assistance shelter is a reasonable and deliberate means to achieve these interests. They

contend that to invalidate the ordinance, the Queensgate Businesses would have toOHIO FIRST DISTRICT COURT OF APPEALS



### 15 demonstrate with near certainty that the ordinance is completely irrational and unreasonable and that reasonable minds could only conclude that the ordinance is outside the city’s constitutionally de rived powers. Thus, they argue that the Queensgate Businesses must demonstrate that there are factual issues that legally affect the outcome of their

claims. 

### {¶31} The Queensgate Businesses argue, on the other hand, that summary judgment is precluded based on three affidavits presented by professionals: Jordan Weisman, Psy.D., Menelaos Triantafillou, and Colleen McTeague, Ph.D. Ms. Weisman, a Philadephia clinical psychologist, opines that the location of th e City Gospel Mission will not result in a deconcentration of social service agencies in Ci ncinnati, is not compliant with the suitability

criteria in the Homeless to Homes Plan—Cincinnati’s adopte d comprehensive plan for the homeless—and is “contrary to the best interests of Cincinnati’s homeless population.” As a result, she concludes that the notwithstand ing ordinance is “clearly arbitrary and unreasonable, and is adverse to the health, safe ty, and general welfare of the citizens of the City of Cincinnati” based upon her experience in “clini cal psychology and social se rvices.” 

### {¶32} Mr. Triantafillou, a Cincinnati-based land use planner and professor, reaches

the same conclusion as Weisman—that the notw ithstanding ordinance is “clearly arbitrary and unreasonable.” He opines that the relocati on of the City Gospel Mission will not result

in the deconcentration of social services; it is inconsistent with the suitability requirement of the Homeless to Homes Plan; it is inconsistent with the exis ting land use patterns; and it

is not in the best interest of Cincinnati’s homeless population. Ms. McTeague, a Cincinnati based geographer and professor, also opin es that the notwiths tanding ordinance is unconstitutional for substantially similar reason s as those set forth in the affidavits of Ms.

Weisman and Mr. Triantafillou.OHIO FIRST DISTRICT COURT OF APPEALS



### 16 {¶33} But the difficulty with the Queensgate Businesses’ argument is that even if all these statements were credible and believable, they are nothing more than opinions about whether the ordinance is a good idea. See Downing v. Cook , 69 Ohio St.2d 149, 151, 431 NE.2d 995 (1982) (holding that “evidence, largely consisting of opinions, is conclusory in nature or irrelevant, and does not rebu t the presumption that an ordinance is [constitutional]”). They show that the wisdom of relocating the City Gospel Mission to Queensgate is fairly debatable. The Queensgate Businesses participated in that debate during the legislative process. The evidence presented in these three affidavits—testimony that they could have presented to the City Planning Commission or to City Council—may add to the debate, but it does not support a finding that the zoning ordinance is almost certainly unconstitutional. See Ridge Club, 1st Dist. No. C-070012, 2007-Ohio-6089, at ¶ 6, quoting Cent. Motors Corp. v. Pepper Pike , 63 Ohio App.2d 34, 409 N.E.2d 258, rev’d on other grounds Cent. Motors Corp. v. Pepper Pike , 73 Ohio St.3d 581, 653 N.E.2d 639 (1995). Thus, we conclude that the expert opin ions in the three affidavits are insufficient to overcome the significant presumption of consti tutionality afforded to the notwithstanding ordinance, and the ample evidence in the record that City Council’s act of adopting the notwithstanding ordinance was not arbitrary and unreasonable and was substantially related to the health, safety, morals, and ge neral welfare of the city of Cincinnati. 

### {¶34} The Queensgate Businesses further argue that the trial court was required to “balance” the public and private interests involved, and that this balancing requires a factual inquiry that cannot be resolved on summary judgment. They argue that any individual claiming to be aggrieved by a permitted use on an adjoining property is entitled to a trial that weighs the relative benefi ts of this designation agains t the potential burdens to the neighboring property owner. But the Queensgate Businesses have no legally recognizedOHIO FIRST DISTRICT COURT OF APPEALS



### 17 interest in the Dalton property . Under the guise of balancing interests, they seek to reargue whether the Dalton property is the best location for City Gospel Mission’s operations. 

### {¶35} In support of their argument, they cite several cases involving claims by property owners that zoning had unreasonably limited the use of their own land. They rely on language in Jaylin Invs., Inc. , 107 Ohio St.3d 339, 2006-Ohio-4, 839 N.E.2d 903 at ¶ 14 which states that “[i]n a constitutional analysis, courts must strive to balance the benefits to the public against the disadvantages to the private interests of the landowner

. ” (Emphasis added.) The Queensgate Businesses use this language to argue that their own interests as neighbors must be considered. But that is not what Jaylin held. 

### {¶36} In Jaylin , a property owner planned to bu ild a 29-home subdivision on onehalf acre lots in the Village of Moreland Hills, Ohio, but the village’s zoning ordinance contained a two-acre minimum lot size requirement. Id. at ¶ 4. The purpose for the minimum lot size was to address the village’s environmental concerns related to overly dense development. Id. The property owner brought an “as applied” constitutional challenge to the minimum lot size requiremen t, arguing that it would not allow him to profitably develop the properties and that the environmental concerns could be addressed in other ways. Id. at ¶ 15. The Ohio Supreme Court, however, held that these issues were not enough to establish th at the two-acre lot limita tion was unconstitutional. Id. at ¶ 26. 

### {¶37} In its analysis, the Supreme Court held that “the zoning is the focal point of the analysis, not the property owner’s proposed use, and the analysis begins with a presumption that the ordina nce is constitutional.” Id. at ¶ 18. The Jaylin court held that the proper focus was not whether the “proposed use meets the government’s legitimate goals underlying the zoning * * *,” but whether [the] zoning ordinance [at issue] advances a legitimate government interest.” Id. at ¶ 23. Thus, in Jaylin , the Supreme Court, when confronted with a property owner’s request for a less restrictive use, considered the propertyOHIO FIRST DISTRICT COURT OF APPEALS



### 18 owner’s interest in putt ing the property to a profitable us e as well as the municipality’s interest in restricting the use of the property to achieve legitimate go vernmental interests.

Id. But even then the Supreme Court did not find the zoning ordinance unconstitutional simply because it denied the property owner the most profitable use of its land . See id. at ¶ 22; see also C. Miller Chevrolet v. Willoughby Hills , 38 Ohio St.2d 298, 304, 313 N.E.2d 400 (1974). 

### {¶38} Similarly, our review of Clarke v. Warren Cty. Bd. of Commrs. , 150 Ohio App.3d 14, 21, 2002-Ohio-6006, 778 N. E.2d 1116, ¶ 19 (12th Dist.) and Ridge Club, 1st Dist. No. C-070012, 2007-Ohio-6089, ¶ 34-37, which are also cited by the Queensgate Businesses, supports this analysis. In both Clarke and Ridge Club , the trial court had found that zoning of the landowner’s property had denied the property owner all economically feasible uses of the property. In Ridge Club , this court stated the specific reason for considering the property owner’s interest: by “considering only the needs of [the municipality] * * * a purely governmental use would always pass such a test, but would be wholly inappropriate when imposed on a private landowner.” Id. at ¶ 32. 

### {¶39} Thus, Jaylin

, Clarke , and Ridge Club are distinguishable because they involved a clash between the municipality and the property owner as to the best use of his or her property. They stand for the proposition that zoning which denies property owners all economically feasible uses of their property may be arbitrary and unreasonable. Here, however, the City and Holdings, LLC, the property owner, have agreed to expand the uses available on the Dalton property. The Queensgate Businesses, as neighboring businesses and property owners, have never identified any real interests in the Dalton property or how the permitted use on the Dalton Property would interfere with their ability to use their own properties. Rather, they seek to portray speculative scenarios such as the possibility of homeless people sleeping on their property as “interests” that need to be balanced by theOHIO FIRST DISTRICT COURT OF APPEALS



### 19 trial court. But by asserting th ese interests, they are simply trying to argue yet again that the allowance of the special assistance shelter on the Dalton property was not a good idea. This is not the standard for reviewing the co nstitutionality of a zoning ordinance. 

### {¶40} The Ohio Supreme Court has held that the wisdom of zoning ordinances is left to the legislative auth ority to determine. See Willott , 175 Ohio St. at 560, 197 N.E.2d 201. Because the review that is called for by the Queensgate Businesses would remove the presumption of constitutionality that is afforded to zoning ordinances, we cannot agree that the trial court was required to balance the Queensgate Businesses fears as “interests” in a lengthy trial. Given that the Queensgate Busine sses have pointed to no facts that, if true, would establish that the ordinance is clearly arbitrary and unreasonable and not substantially related to the health, safety, morals, and general welfare of the city of Cincinnati, the City and private party appellees are entitled to summary judgment on this

issue. B. The Ordinance Does Not Spot Zone the Property 

### {¶41} The Queensgate Businesses next argue that the notwithstanding ordinance constitutes spot zoning of the property. Th e ordinance permits City Gospel Mission to operate a special assistance shelter on the Dalton Street property. It expressly provides that it does not operate to rezone the property. Rather, it approves a use similar to transitional housing, a use which is already permitted in the MG district. See Cincinnati Municipal Code 1413-05. Thus, the ordinance, like a use variance, permits the operation of the special

assistance shelter. 

### {¶42} But even if the ordinance is arguably similar enough to a rezoning to potentially support a claim of spot zoning, spot zoning has not occurred here. ‘Spot zoning’ is another confusing term. Many people think that a rezoning of a single parcel of land constitutes spot zoning and is unconstitutional. This isOHIO FIRST DISTRICT COURT OF APPEALS



### 20 incorrect. Spot zoning is simply a phrase used to conclude that a rezoning is unconstitutional for specified reasons. Rezoning a single parcel or a small area is not unconstitutional per se; rezoning a small area in a discriminatory

or unreasonable manner is. Meck and Pearlman, Ohio Planning and Zoning Law , Section 8:41 (2011 Ed.). 

### {¶43} Willott v. Beachwood , 175 Ohio St. 557, 559, 197 N.E.2d 201 (1964), the leading case on the issue of spot zoning, provides that “spot zoning refers to the singling out of a lot or small area for discriminatory or different treatment from that accorded surrounding land which is similar in character.” Willott involved an attempt to put a

commercial use in a restrictive residential district. Id. The specific facts in Willott centered on the amendment of a zoning ordinance to allow a shopping center in an area of “highly restricted, single family, private residence zoning.” Id. The Supreme Court held that the rezoning did not constitute spot zoning and further emphasized the difficult burden in overcoming the presumption of constitutionality afforded to zoning ordinances, stating: The legislative, not the judicial auth ority is charged with the duty of determining the wisdom of zoning regulations, and the judicial judgment is not to be substitute d for the legislative judgment in any case in which the issue or matter is fairly debatable. Even though the court, on the facts pr esented, might decide otherwise than did council, so long as the matter is reasonably debatable, the court has no authority to interfere.

Id. at 560. 

### {¶44} The Queensgate Businesses have cited a number of cases that discuss spot zoning, but only one Ohio court has actually found that a township’s zoning decision constituted spot zoning. Renner v. Markarius , 2d Dist No. CA 5993, 1979 Ohio App.OHIO FIRST DISTRICT COURT OF APPEALS



### 21 LEXIS 9363, *3 (August 3, 1979), involved the rezoning of a single property to support an

office use. In Renner , a township took steps to adopt a zoning ordina nce. The township’s zoning advisor decided that the township ne eded more commercial uses and decided to designate a single property as an office use in an area that was surrounded by residential zoning and in a neighborhood of expensive single-family homes. Id. at *10. That single property had been used continuously as a residence for over 60 years, although it did also have a storage building for a well-drilling company. Id . at *6-7 

### {¶45} The decision to alter the property’s zoning was apparently made based on

traffic flow in the area. Id. at *10. The reasoning of the court in finding spot zoning is not very clear, but seems to rely on the increa sed traffic and increased potential negative impacts on housing values that a commercial us e would bring to the residential district, and the seemingly arbitrary decision by the zoni ng advisor to change zoning on long-time residential property in a residential neighborhood. Id. at *12-14. 

### {¶46} Willot and Renner demonstrate the typical spot -zoning fact pattern, which involves conflict resulting from an attempt to put a more intense commercial use in a restrictive residential zone. The concept of spot zoning does not work well in this case, where the MG zoning district allows a broad mix of commercial, manufacturing, recreational, and residential uses. The lack of spot zoning cases involving mixed districts points to a key aspect of spot zoning that has never been defined—how differently the zoning of a property must be from a surroundin g property before it constitutes spot zoning. If taken to its logical extreme, the concept of spot zoning would hold that all zoning variances are unconstitutional. Here, the no twithstanding ordinance did not rezone the Dalton property but allowed a special assistance shelter that can only be operated by City Gospel Mission under a number of restrictions ; it is in effect a legislative variance.OHIO FIRST DISTRICT COURT OF APPEALS



### 22 {¶47} The Queensgate Businesses also argue that because the zoning is not in accordance with a comprehensive zoning plan, it constitutes spot zoning. They rely upon

this court’s decision in Monsanto Co. v. Bd. of Elections of Hamilton Cty. , 1st Dist. Nos. C950735 and C-950748, 1996 Ohio App LEXIS 4433 (Oct. 9, 1996). But Monsanto is distinguishable because it involv ed a township. Townships lack home rule authority and are required under R.C. 519.02 to adopt zoning regulations in accordance with a comprehensive plan. See, e.g., B.J. Alan Co. v. Congress Twp. Bd. of Zoning Appeals , 124 Ohio St.3d 1, 2009-Ohio-5863, 918 N.E.2d 501, ¶ 1 (addressing the “comprehensive plan” requirement of R.C. 519.02). There is no similar requirement for municipalities. See Cent. Motors Corp , 73 Ohio St.3d at 586, 653 N.E.2d 639 (upholding a city’s rezoning of property when the city lacked a comprehensive plan); see also Columbia Oldsmobile v. Montgomery , 56 Ohio St.3d 60, 66, 564 N.E.2d 455 (1990) (“there is no statutory requirement that cities * * * enact a comprehensive community plan pursuant to its power to zone under R.C. 713.06 et seq.”). But even if there were such a requirement, the City’s allowance of a special assistance shelter on the Dalton property was consis tent with the Homele ss to Homes Plan— Cincinnati’s adopted comprehensive plan for the homeless. 

### {¶48} In October 2008, City Cincinnati Council passed an emergency ordinance

which mandated that Continuum of Care “addre ss the inadequacies of the current provision of services for single homeless individuals in the City of Cinc innati, and to put in place a comprehensive plan to implement such services.” Cincinnati Ordinance 347-2008, ¶ 1. This process resulted in the development of the Homeless to Homes Plan. Among the major issues identified by this plan were the need for more appropriate shelter facilities, particularly for homeless men, and the need to provide more comprehensive care at the shelter facilities. It was determined that City Gospel’s Elm Street site did not allow it to meet the goals set forth in the Homeless to Homes Plan, and that another site must beOHIO FIRST DISTRICT COURT OF APPEALS



### 23 developed. In May 2009, Cinc innati City Council passed another ordinance incorporating the Homeless to Homes pl an into the Consolidated Plan of the City, and empowering the Continuum of Care to respond to this mandat e by implementing the goals of the Homeless to Homes Plan. Cincinnati Ordinance 129-2009, Sections 3 and 4. This implementation process included identifying suitable sites for the location of new shelters in cooperation with representatives from existing shelters. 

### {¶49} Because this case does not provide fo r the typical spot-zoning scenario, we agree with the trial court that the applicable test for determin ing the constitutionality of a zoning ordinance is set forth by the Ohio Supreme Court in Goldberg . Even if the application of a spot-zoning st andard is proper in this ca se, the approval of a special assistance shelter on the Dalton Property does not constitute spot zoning under the Queensgate Businesses’ own definition. “[S]pot zoning refers to the singling out of a lot or small area for discriminatory or different treatment from that accorded surrounding land

which is similar in character.” Willott , 175 Ohio St. at 559, 197 N.E.2d 201; see also Most Reverend Anthony J. Pilla v. Willowick , 11th Dist. No. 9-243, 1982 Ohio App. LEXIS 13454, *12-13 (Dec. 23, 1982). The Queensgate Businesses argue that the approval of a special assistance shelter by the notwithstanding ordi nance constitutes spot zoning because it is different from all surrounding industrial uses, and it is expressly prohibited in the district. 

### {¶50} But the permitted surrounding uses will not be all industrial or even commercial. The Queensgate Businesses ignore the residential use that is being developed on the property adjacent to the Dalton prop erty, the transitional housing program on the York Street property. Transitional housing is a permitted use in the MG zone, and the shelter operated on the Dalton Property will operate similarly to transitional housing. The fact that a use has been approved on a property that is not a permitted use cannot, by itself, constitute spot zoning. If th is were true, then all use vari ances would be unconstitutional.OHIO FIRST DISTRICT COURT OF APPEALS



### 24 {¶51} The approval of the notw ithstanding ordinance does not constitute spot zoning as defined by Ohio courts. The standard , moreover, is ill suited to the facts in this case, which involves neighborin g business owners challenging the approval of a residential use next to their properties, rather than on their own property. The zoning on all properties at issue is not exclusively commercial, residentia l, or manufacturing. It allows a broad mix of uses including a use quite similar to the special assistance shelter at issue in this case. In fact, this residential use, tr ansitional housing, will be the primary use of the adjacent property. Thus, this case is different in several crucial respects from the small number of cases where courts have found spot zoning. Because there are no genuine issues of material fact as to whether the notwithstanding ordina nce illegally spot zones the Dalton property, the City and the private party appellees are entitled to summary judgment on this issue.

C. The Ordinance Does Not Conflict with R.C. 713.12 

### {¶52} The Queensgate Businesses next argue that genuine issues of material fact

remain as to whether the notw ithstanding ordinance was enac ted through an exercise of police power that conflicts with Ohio’s general laws. They argue that Cincinnati Municipal Code 111-5, which identifies the procedures an d criteria for obtaining a notwithstanding ordinance, conflicts with R.C. 713.12, and that as a result, the ordinance is unconstitutional. The City and private party appellees argue that there is no conflict between R.C. 713.12 and Cincinnati Municipal Code 111-5 because R.C. 71 3.14 makes R.C. 713.12 inapplicable to a charter municipality like Cincinnati. We agr ee with the City and private party appellees. 

### {¶53} The city of Cincinnati is a charter mu nicipality which derives its powers of local self-government from Ohio Constitution, Article XVIII, Section 3. Thus, the city’s power to enact legislation is conferred by th e City Charter, not the Ohio Revised Code. Cincinnati Municipal Code 111-1, which governs hearings on zoning regulations expressly

states that “Section 713.12 of the Ohio Revise d Code is hereby declar ed inoperative in theOHIO FIRST DISTRICT COURT OF APPEALS



### 25 City of Cincinnati.” Both the City and the pr ivate party appellees assert that this statement

was made in accordance with R.C. 713.14, which provides: Sections 713.06 to 713.12, inclusive, of the Revised Code do not repeal, reduce, or modify any power granted by law or charter to any municipal corporation or legislative authority thereof, or impair or restrict the power of any municipal corporation under Article XVIII of

the Ohio Constitution. 

### {¶54} The Ohio Supreme Court has cited R.C. 713.14 for the proposition that “a municipality which has adopted a comprehensiv e charter is governed by the terms of the charter, and statutory provisions relating to subjects covered by the charter are inapplicable.” See State ex rel. Davis Inv. Co. v. Columbus , 175 Ohio St. 337, 341, 194 N.E.2d 859 (1963). In Bauman v. State ex rel. Underwood , 122 Ohio St. 269, 270, 171 N.E. 336 (1930), the Ohio Supreme Court addressed a previous state law, containing identical language to R.C. 713.14, stating: Zoning regulations are police or sanitary. Under the provisions of Section 3, Article XVII, of the Constitution, municipalities may adopt local police or sanitary regulations if “not in confli ct with the general laws.” But the provisions of the Akron charter are not in conflict with state law; for Section 4366-12, General Code [the precursor to R.C 713.14] yields unrestricted powers to municipalities in respect to zoning, if such powers are granted by the municipal charter. 

### {¶55} In Kachovec v. Akron , 9th Dist. No. 9948, 1981 Ohio App. LEXIS 13894, *4-5 (May 20, 1981), the Ninth District Court of Appeals, interpreted Bauman to hold that zoning procedures were not required to be specifically set forth in the city of Akron’s charter, as long as the charter permitted City Council to establish those procedures. Akron’sOHIO FIRST DISTRICT COURT OF APPEALS



### 26 charter granted the city zoning power and stated that all city powers “shall be exercised and enforced in the manner prescribed by this Charter, or when not prescribed herein, in such manner as shall be provided by the ordinance or resolution of the Council.” Id. at *4. The Ninth District stated, “[W]e think it is cl ear that, given such a charter provision, Bauman permits a municipality to establish its own zoning powers by ordinance.” Id. 

### {¶56} Cincinnati’s charter contains virtually identical language to the language in

Kachovec . Article I of the City’s Charter grants it all powers of “local self government and home rule and all other powers possible for a city to have under the constitution of the state of Ohio.” It further states that “[a]ll such powers shall be exercised in the manner prescribed by this charter, or if not prescribed herein, in such manner as shall be provided by ordinance of city council.” Like the charter considered in Kachovec , Cincinnati’s charter grants the city the authority to adopt its own zoning regulations that differ from the default regulations found in R.C. Chapter 713. 

### {¶57} The city has chosen to exercise this power by specifically rejecting R.C. 713.12 and its 30-day notice requirement in Cincinnati Municipal Code 111-1, which declares R.C. 713.12 inoperative in the city of Cincinnati. In its place, the city has adopted Cincinnati Municipal Code 111-5, which provides 14 days’ notice for a notwithstanding ordinance. Because there is no legitimate dispute about th e city’s ability to es tablish its own zoning procedures, the City and private party appellees are entitled to summary judgment on this

issue. D. City Council Did Not Violate the City Charter by Passing the Ordinance 

### {¶58} Finally, the Queensgate Businesses argue that City Council violated the City Charter by approving the notwithstanding ordinance because City Gospel Mission had only applied for 76 beds on the Dalton property, while City Council allowed an aggregate of 125 beds in the ordinance. They argue that the City Charter does not allow City Council toOHIO FIRST DISTRICT COURT OF APPEALS



### 27 modify a zoning ordinance after it has been reviewed by the Planning Commission. Their argument is based upon Article VII, Sections 3 and 6 of the City Charter. 

### {¶59} Article VII, Section 3 of the Charter provides: The powers and duties of the commission shall be to make plans and maps of the whole or any portion of the city and of any land outside the city which, in the opinion of the commission, bears a relation to the planning of the city, and to ma ke changes in additions to and extensions of such plans or maps when it deems advisable. Such maps and plans shall show the commission’s recommendations for the location and extent of streets, alle ys, ways, viaducts, bridges, subways, parkways, parks, playgrounds and other public grounds and public improvements, of public buildings and other publ ic properties, and of public utilities whether publicly or privately owned, fo r water, light, sanitation, transportation, communi cation, power and other purposes; and for the removal, relocation, widening, extension, narrowing, vacation, abandonment or change of use of any of the foregoing public places, works, buildings, or utilitie s. Such maps and plans may also include the division of the city into zones for districts, in accordance

with the commission’s recommendat ions for the limitation and regulation of the height, bulk, (including percentage of lot occupancy and set-back building lines) and us e of buildings and other structures and premises in such zones or districts. 

### {¶60} Article VII, Section 6 of the Charter states: No amendment of the zoning ordinance of the city or of the zone map shall be made, passed or enacted by the council until and unless suchOHIO FIRST DISTRICT COURT OF APPEALS



### 28 amendment shall be approved by the commission; provided that in the case of its failure to approve, the commission shall communicate its reason for failure to approve to the council, and the council, by a

vote of not less than two-thirds of its members, shall have the power to overrule such failure to appr ove and make, adopt, or enact the proposed amendment. 

### {¶61} Our reading of these sections does not support the Queensgate Businesses’ argument. The Planning Commission’s role as set forth in the city’s charter is to review zoning matters and make recommendations to City Council. The Commission acts in an advisory role on zoning matters and is not the decision maker. While its recommendation may trigger the requirement of a supermajority of City Council to reject its advice, council has the authority to act against the recomme ndations of the Planning Commission. 

### {¶62} Here, City Council passed the notwithsta nding ordinance by a 7-2 vote, which exceeded the supermajority vote requirement to overrule the City Planning Commission. As a result, whether the City Planning Commission may have conditioned its decision on a particular number of beds and Council may have approved a different number of beds, does not create a genuine issue of material fact that would preclude summary judgment because

this factual issue would not invalidate the ordinance. See, e.g., Byrd v. Smith , 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47 ¶ 12 (noting that “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). We overrule the sole assignment of error, and we affirm the judgment of the trial court. Judgment affirmed.

H ENDON and C UNNINGHAM , JJ. , concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.