Lead Opinion
{¶1} Aрpellant, Pamela Lorenzetti, appeals from the judgment of the Summit County Court of Common Pleas, upholding the decision of the Copley Township Board of Zoning Appeals (“BZA”), denying appellant a conditional zoning certificate and finding no constitutionаl defects in the actions taken by the BZA or in the zoning resolution. We reverse.
I
A. Background
{¶2} The factual history of this matter began over twenty-five years ago. Appellant’s parents, Theodore and Emogene Frashure, owned a large piece of real proрerty in Copley Township. In 1975, Mr. Frashure, a home builder, sought and obtained a two-year conditional zoning certificate from the BZA for the purpose of removing sand and gravel from the site in order to build exclusive homes upon it. The property, at the time, was zoned residential. The BZA granted another conditional zoning certificate for the same purpose two years later.
{¶3} By 1985, the zoning on the property had changed from residential to “0-C Open Space and Conservation District,” which allowed recreational facilities as a conditionally permissible use. At that time, application was made for a conditional zoning certificate for the purpose of constructing a recreational lake on the property.
1
According to the affidavit оf appellant, her father’s health had begun to deteriorate and he was no longer able to continue his trade of building
{¶4} Additional conditional zoning certificates were awarded in 1988, 1990, and 1993. Since 1985, the consistently stated goal of the property owners was to construct a recreational lake. The plans included a thirty-four-acre lake, two picnic pavilions, and a baseball field. The last conditional zoning certificate for the property expired in January 1995. 2
B. Facts immediately relevant to the present appeal
{¶5} On May 24, 1999, the Copley Township Board of Trustees and Lori Salser, the Copley Tоwnship Zoning Inspector (hereinafter collectively referred to as “Copley”), filed a complaint seeking declaratory and injunctive relief as well as an action sounding in nuisance against Pamela Lorenzetti, property owner, Dan Wagner, lеssee, and Wagner Construction, lessee’s company. Through this complaint, Copley alleged that the named defendants were “illegally conducting activities” on the property in violation of the Copley Township Zoning Resolution. According to the affidavit of the zoning inspector, it appears that Copley’s complaint was that the named defendants were engaged in “gravel and sand excavation, mining, and soil removal[.]” Copley, therefore, sought a judgment declaring that such activity constituted a zoning viоlation and an order enjoining such activity. In addition, Copley sought to have the property declared a public nuisance and that appellant, Wagner, and Wagner’s company be ordered to abate such nuisance. Copley also sought temporary and preliminary injunctive relief. The trial court determined that there was an insufficient basis to issue a temporary restraining order and the parties reached an agreement regarding the preliminary injunction.
{¶6} The named defendants jointly answered by denying that they were conducting activities on the property that were either illegal or violative of the zoning regulations. In addition, they asserted that the property was entitled to non-conforming use status and that the zoning ordinances were unconstitutional bоth facially and as applied. Further, they counterclaimed, pursuant to Section 1983, Title 42, U.S.Code, that Copley had acted in violation of the Ohio and
{¶7} In a separate action, appellant applied to the BZA for another conditional zoning certificate on October 28, 1999. Through that action, she sought to continue construction of the lake on her property, indicating that this was a renewal or reinstatement of an еxpired conditional zoning certificate. A hearing was held before the board on November 17, 1999, at which time the request was denied. Appellant filed an administrative appeal to the court of common pleas pursuant to R.C. 2506.01 et seq. Upon motion, thе declaratory judgment action was consolidated with the administrative appeal and assigned to a magistrate.
{¶8} The magistrate declined to overturn the decision of the BZA, and, subsequently, the trial judge adopted the decision of the magistrate. Appеllant Lorenzetti has appealed, asserting four assignments of error for review. We first address appellant’s fourth assignment of error because it raises an issue which we find to be dispositive.
Fourth Assignment of Error
{¶9} “The decision of the Board of Zoning Appeals as affirmed by the triаl court was arbitrary, capricious, and contrary to law and barred by the doctrine of res judicata.”
{1110} Through her fourth assignment of error, appellant challenges the sufficiency of the ruling by the court of common pleas. In order to review the judgment of the court of common pleas, we must first determine the appropriate standards of review.
{¶11} In an appeal of an administrative decision pursuant to R.C. 2506.01 et seq., the scope of review by the court of common pleas is delineated by R.C. 2506.04:
{¶12} “The cоurt may find that the order, adjudication, or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record.”
{¶13} The Ohio Supreme Court has recently reaffirmed that “the common pleas court must weigh the evidence in the record * * *."
Smith v. Granville Twp. Bd. of Trustees
(1998),
{¶14} The standard to be applied by the court of appeals, on the other hand, is “ ‘more limited in scoрe’ ” and is directed toward questions of law. (Emphasis omitted.)
Henley,
{¶15} “ ‘An appeal to the court of appeals, pursuant to R.C. 2506.04, is more limited in scope and requires the court to affirm the common pleas court, unless the court of appeals finds, as a mаtter of law, that the decision of the common pleas court is not supported by a preponderance of reliable, probative and substantial evidence.’ ”
Smith,
{¶16} Appellate review, therefore, is properly limited to determining whether, as a matter of law, the decision of the court of common pleas is supported by a preponderance of reliable, probative, and substantial evidence. Additionally, “ ‘[wjithin the ambit of “questions of law” for appellate court review would be abuse of discretion by the common pleas court.’ ”
Henley,
{¶17} The magistrate below indicated that the standard of review that he utilized in reaching his decision was as follows:
{¶18} “[A]n appeal to a common pleas court, pursuant to 2506.04, is of limited scope. That is, the court is required to confirm the decision of the administrative agency unless, as a matter of law, it finds that the decision or actions of the administrative agency in reaching that decision is not supported by a preponderance of reliable, probative, and substantial evidence upon the whole record.” (Emphasis added.)
{¶19} The trial judge adopted and restated the same standard of review in her judgment entry.
{¶20} It is apparent that the magistrate and trial judge below used the appellate standard of review in reaching their decisions, as opposed to the standard of review appropriate to the court of common pleas. See
Henley,
{¶22} Finally, upon reviewing the minutes from the hearing before the BZA, it appears that the only witnesses were the zoning inspector, appellant, her attorney, and four citizens. Three citizens either requested information or indicated concerns but did not indicate opposition. The fourth witness was not an abutting landowner, but expressed opposition because of truck traffic, trash brought onto the property and because the land did not “loоk like a recreational area.” In regard to decisions of a board of zoning appeals, this court has held that “[l]egal matters are determined by facts, not by belief or desires.”
Libis v. Akron Bd. of Zoning Appeals
(1972),
{¶23} This is not to say that such support cannot be mustered. To be sure, this court does not seek to imply any conclusion to be drawn from the facts in this case; rather, only that this is a complicated mаtter, important to both the landowner and the township, and the question ought to be properly resolved on a
{¶24} Accordingly, we sustain appellant’s fourth assignment of error.
II
{¶25} The fourth assignment of error is sustained. Appellant’s first, second, and third assignments of error are rendered moot. App.R. 12(A)(1)(c). The judgment of the court of common pleas is reversed, and this cause is remanded for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
Notes
. Appellant had originally applied for a variance but amended her application at the urging of the BZA.
. {fla} Over the course of these years, both of appellant’s parents died, and she became the sole owner of the property. The record indicates that appellant became the owner of the property on April 21, 1995.
{1Ib} The record also indicates that the zoning inspector notified the previous construction contractor regarding the expiration of the certificate, because he was considered to be the applicant and holder оf the last conditional zoning certificate. That individual is not a party to this action.
. See, also,
Fallang v. Butler Cty. Bd. of Zoning Appeals
(Feb. 2, 1998), Butler App. No. CA9706-118,
Concurrence Opinion
concurring in judgment only.
{¶26} I concur in the decision to reverse the judgment of the court of common pleas because that court did not use the proper standard of review.