DON E. COX, ET AL. v. THE MIAMI COUNTY BOARD OF ZONING APPEALS
C.A. CASE NO. 2010-CA-29; T.C. CASE NO. 10-CV-366
IN THE COURT OF APPEALS OF MIAMI COUNTY, OHIO
June 10, 2011
2011-Ohio-2820
GRADY, P.J.
Civil Appeal from Common Pleas Court
Rendered on the 10th day of June, 2011.
Anthony R. Day, Atty. Reg. No. 0085193, 1420 West Main Street, Tipp City, OH 45371
Attorney for Plaintiffs-Appellants
Mark W. Altier, Assistant Prosecuting Attorney, Atty. Reg. No. 0017882, 201 West Main Street, Troy, OH 45373
Attorney for Defendant-Appellee
GRADY, P.J.:
{¶ 1} Plaintiff, Don E. Cox, appeals from an order of the court of common pleas affirming the decision of the Miami County Board of Zoning Appeals (“the Board“).
{¶ 2} Cox owns real property located at 300 Shoop Road, which is contiguous to real property owned by Ben Johnson located at
{¶ 3} The Board heard testimony from the interested parties regarding Johnson‘s application for a conditional use permit. Based on its staff recommendations, the Board granted Johnson‘s application contingent upon his completion of four requirements, one of which required Johnson to obtain approval of a screening plan from the Miami County Planning Commission. Cox filed a notice of appeal to the court of common pleas pursuant to
FIRST ASSIGNMENT OF ERROR
{¶ 4} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS BY CONFIRMING THE MIAMI COUNTY BOARD OF ZONING APPEALS’ INTERPRETATION OF ‘ENCLOSED BUILDING.‘”
{¶ 6} As an appellate court, however, our standard of review to be applied in an
{¶ 7} Section 16.04 of the Miami County Zoning Resolutions provides for conditional uses of land located within an A-2 General Agricultural zoning district. In particular, Section 16.04(O) provides for a conditional use for “Commercial storage of boats, recreational vehicles, and/or construction equipment, only within the confines of an enclosed building.” (Emphasis supplied.)
{¶ 9} Section 3.02 of the Miami County Zoning Resolutions defines “building” as “any structure, either temporary or permanent, having walls or other devices intended for the shelter or enclosure of persons, animals, chattel or property of any kind.” Further, “structure” is defined as “anything constructed or erected, the use of which requires location on or in the ground, or attachment to something having location on or in the ground.”
{¶ 10} The opaque fence that will form Johnson‘s storage facility fits within the definition of “structure,” in that the fence will be “constructed or erected” and its use will require “location on or in the ground.” Further, the fence will have “walls or other devices” and is intended for the enclosure of property, which are the only additional requirements in the definition of “building” in order for a structure to qualify as a “building.” Therefore, based on the plain language of the definitions in the
{¶ 11} Further, the Board‘s interpretations of the definitions of “structure” and “building” in the present case are consistent with its past interpretations of these words. At the hearing, the Board received the following testimony regarding this consistency:
{¶ 12} “MR HOOVER: Correct. The language in the zoning code, specifically in the zoning code it says enclosed building. The way that it‘s been defined through both previous cases we‘ve had and through research that has been done by myself and the previous planning director, an enclosed fence that provides a visual barrier for the case of this particular storage area can be considered to be a quote ‘building‘. It does not require a structure. Our zoning code does not well define building and well define structure and so that‘s kind of what we‘ve run into the [sic] in the past and based upon the research that had been done prior to when I was here that‘s what we based it upon. But chain link, just a regular chain link fence would mostly not meet those requirements.” (March 18, 2010 Tr. 8-9.)
{¶ 13} Cox argues, however, that “[t]he BZA, and the Court of Common Pleas in agreement, determined that a ‘building’ is a
{¶ 14} Based on the plain language of the Zoning Resolutions and the past interpretations by the Board, we believe the court of common pleas correctly found that the Board‘s decision to include the opaque fence within the definition of building was supported by the preponderance of the substantial, reliable, and probative evidence. The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 15} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS BY DETERMINING THE SCREENING PLAN SUBMITTED BY BEN JOHNSON WAS ADEQUATE.”
{¶ 16} The Miami County Zoning Resolutions require screening in certain circumstances. Section 19.17 of the Miami County Zoning
{¶ 17} “Hereafter no buildings or structures shall be erected, altered, or enlarged, nor shall land be used for any non-residential use on a lot that adjoins or faces any residential district until a plan for screening has been submitted and approved by the Planning Commission. No part of any building or structure shall be occupied, nor any land used, until all required screening, as provided for in this section, is in place.
{¶ 18} “***
{¶ 19} “C. Whenever any non-residential use abuts a residential district, a visual screening wall, fence or planting shall be erected or placed along such mutual boundary lines.”
{¶ 20} The Board granted Johnson‘s application for a permit for conditional use contingent upon the completion of four requirements. The first requirement provides that:
{¶ 21} “Prior to the beginning of the operation of the proposed storage facility the applicant would be required to obtain approval from the Miami County Planning Commission for the proposed parking area and screening plan. The applicant may be required to upgrade
{¶ 22} The parties disagree whether a portion of the storage facility and driveway leading to the storage facility faces a residential district. The Board found that screening was required when it granted the conditional use permit. By requiring screening, the Board necessarily found that the storage facility faces a residential district.
{¶ 23} The Board did not approve the screening plan that Johnson proposed. The Board instead granted the conditional use permit he requested, contingent on Johnson‘s obtaining the approval of the Planning Commission of a screening plan. That is consistent with the terms of the Zoning Resolution that prohibit commencement of the permitted use until a screening plan has been approved by the Planning Commission. On this record, it is unclear whether the Planning Commission has approved a screening which the Board required. The error Johnson assigns is therefore premature. The second assignment of error is overruled.
{¶ 24} Having overruled the error assigned, we will affirm the judgment of the court of common pleas from which this appeal was taken.
Copies mailed to:
Anthony R. Day, Esq.
Mark W. Altier, Esq.
Hon. Robert J. Lindeman