Ridgley, Inc. v. Board of Zoning Appeals

Douglas, J. The issue presented in this case is whether a municipality is preempted by operation of state law from regulating, pursuant to the authority of local zoning ordinances, the retail sale of alcoholic beverages within that municipality. We answer in the negative. Section 3, Article XVIII of the Ohio Constitution, known as the home rule provision, provides: “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, [359] sanitary and other similar regulations, as are not in conflict with general laws.” Thus, a municipal zoning ordinance is valid unless it conflicts with the dictates of a state statute. R.C. 4303.292 provides in part: “(A) The department of liquor control may refuse to issue, transfer the ownership of, or renew, and shall refuse to transfer the location of any retail permit issued under this chapter if it finds: “(2) That the place for which the permit is sought: “(a) Does not conform to the building, safety, or health requirements of the governing body of the county or municipality in which the place is located. This section shall not be construed to include local zoning ordinances, nor shall the validity of local zoning regulations be affected by this section.” Pursuant to R.C. 4303.292, the state is barred from issuing a liquor permit when the sale of alcoholic beverages from the place for which the permit is sought would violate a local zoning ordinance. Since a liquor permit cannot validly be issued, under state law, in contravention of local zoning ordinances, municipal zoning ordinances limiting the retail sales of alcoholic beverages within the municipal corporate boundaries are not in conflict with state liquor laws providing for the issuance of liquor permits. There being no conflict, a municipality is not preempted by operation of state law from promulgating and enforcing zoning ordinances limiting the retail sale of alcoholic beverages within the municipal corporate boundaries. Accordingly, we affirm that portion of the court of appeals’ decision which reversed the decision of the common pleas court. However, we conclude that the remand of this cause for consideration of estoppel, waiver, and constitutional issues, as ordered by the court of appeals, is inappropriate. A thorough review of the record reveals that the issues of estoppel and waiver were never argued by appellant in any proceeding below. The court of appeals sua sponte raised these issues. Since these questions were not presented by appellant in either the trial court or the court of appeals,1 they were not before the court and a remand to the trial court by the court of appeals to consider these questions was improper. The same is true of the constitutional issue. While appellant made a passing reference to the constitutionality of the zoning ordinance in its “[pjost-trial brief” in the trial court, even accepting that this raised the constitutional issue, appellant did not present the issue to the court of appeals.2 Since appellant chose not to expand the scope of review in either [360] the court of common pleas or the court of appeals, it is now too late to do so. Accordingly, we affirm that part of the decision of the court of appeals that reverses the judgment of the trial court. We reverse that part of the court of appeals’ decision which remands the cause to the trial court and we enter final judgment for appellee. Judgment affirmed in part and reversed in part. Locher, Holmes and Wright, JJ., concur. Celebrezze, C.J., Sweeney and C. Brown, JJ., dissent. Footnotes [1] In the court of appeals Ridgley, Inc. did not file a cross-appeal or present assignments of error on its own behalf pursuant to R.C. 2505.22. Perhaps Ridgley, Inc. did not so act because it raised no issue other than the preemption question in the court of common pleas. [2] See fn. 1.