Lead Opinion
{¶ 1} Appellant, Frank Dinardo, appeals from the decision of the Geauga County Court of Common Pleas affirming the decision of the Chester Township Board of Zoning Appeals denying his application for a zoning certificate.
{¶ 2} Dinardo applied for a zoning certificate, proposing to use his 1.75 acres of real property located at 8239 Mayfield Road in Chester Townshiр of Geauga County, Ohio, for the sale of “building material supply, seed, plant, lawn, garden equipment and supply.”
{¶ 3} Chester Township Zoning Resolution 5.02.01 (“Section 5.02.01”), “permitted principal buildings, structures, and uses,” provides:
{¶ 4} “Within any C District, no building, structure, lot or land shall be used for other than one or more of the following uses, provided such uses do not emit or create any danger to health and safety in the surrounding, and do not create any offensive noise, vibration, smoke, dust, heat, glare, flame, air pollutants or other objectionable influences:
{¶ 5} “A. The following retail sales of merchandise, provided that all products for sale or rent shall be sold or rented on the premises directly to the consumer:
*114 {¶ 6} “ * * *
{¶ 7} “Building material and supply stores
{¶8}“* * *
{¶ 9} “Seed, plant, lawn, garden equipment and supply stores.”
{¶ 10} Appellant’s application for a zoning certificate was denied by the township’s zoning inspector, who determined that the proposed use was “not a permitted use” in that it created “offensive air pollutants and dust.” Appellant appealed to the board of zoning appeals, stating, “[T]he proposed use description follows the exact language as printed and read in the current zoning cоde.” A hearing was held on December 11, 2006.
{¶ 11} At the board of zoning appeals hearing, Michael Joyce, the Chester Township zoning inspector, testified that appellant, both prior to and concurrently with the application for a zoning certificate, sold mulch at this property. Joyce indicated that he had received numerous complaints from neighbors regarding the odor from the mulch. In fact, Joyce stated that neighbors had presented a petition indicating that “they were being bothered by air particulates from this operation.”
{¶ 12} Appellant indicated that he had been selling mulch on his property since March 2006. Appellant further stated that “this spring he would have brought plants back in, have the mulch hauled back in, soil, gravel, pavers and pipe.” Upon being questioned regarding the offensive odor of the mulch, appellant indicated that the odor could be controlled through the location of the mulch or containment of the mulch. Appellant expressed his desire to be a good member of the community.
{¶ 13} Individual neighbors also voiced their concerns at the December 11 hearing. Boris Bubnow, a neighbor, testified that he is a certified real estate appraiser and that the storing and selling of mulch on appellant’s property is a nuisance and an eyesore. Bubnow characterized the smell of the mulch as offensive and further indicated that the proposed use of appellant’s property would “ruin his housing value.” Bubnow also distinguished appellant’s property from those properties in Chester Township that sell mulch, indicating that there is a greater distance between the operation of the other mulch distributors and the abutting property owners.
{¶ 14} The board of zoning appeals affirmed the decision of the township’s zoning inspector denying appellant’s application for a zoning certificate. Appellant appealed this decision to the trial court pursuаnt to R.C. Chapter 2506. On appeal, the trial court framed appellant’s arguments as “whether a zoning inspector and a board of zoning appeals must take an applicant at his word that he will comply with all applicable zoning and environmental regulations or may
{¶ 15} Appellant presents the following assignment of error for our review:
{¶ 16} “[T]he Trial Court committed error in ruling that an Appellant’s past and present conduct may be considered when a Zoning Board is deciding whether to issue a Zoning permit.”
{¶ 17} Befоre we address the substance of appellant’s argument, we must consider our standard of review. First, upon review of an administrative appeal, a court of common pleas considers whether the decision to grant or deny a certificate is supported by “the preponderance of substantial, reliable, and probative evidence on the whole record.” R.C. 2506.04. This сourt’s review of the judgment of the trial court is more limited than that of the court of common pleas. Henley v. Youngstown Bd. of Zoning Appeals (2000),
{¶ 18} The Supreme Court of Ohio, in Kisil, elaborated in a footnote:
{¶ 19} “This statute [R.C. 2506.04] grants a more limited power to the court of appeals to review the judgment of the common pleas court only on ‘questions of law,’ which does not include the same extensive power to weigh ‘the preponderance of substantial, reliable and probative evidence,’ as is granted to the common pleas court. Within the ambit of ‘questions of law5 for appellate court review would be abuse of discretion by the common pleas court.” (Emphasis added.) Kisil,12 Ohio St.3d at 34 , 12 OBR 26,465 N.E.2d 848 , fn. 4.
{¶ 20} The term “abuse of discretion” means more than merely an error of law or of judgment; it suggests that the lower court’s attitude was unreasonable,
{¶ 21} On appeal, appellant maintains that his application cannot be denied bаsed on his past conduct, and since he applied only for a proposed use permitted by the regulations of Section 5.02.01, to allow the sale of “building material supply, seed, plant, lawn, garden equipment and supply,” it was error for his application to be denied. Appellant further argues that the denial of his application cannot be founded on the anticipation of offensive odors based on current and past conduct. We agree with this argument.
{¶ 22} At the outset, we acknowledge that “[z]oning legislation is an exercise of the police power. * * * A township has no inherent zoning power. * * * Whatever power a township has to regulate the use of land through zoning regulations is limited to authority expressly delegated and specifically conferred by statute.” Meerland Dairy, L.L.C. v. Ross Twp., 2d Dist. No. 07CA0083,
{¶ 23} “ ‘Zoning ordinances typically provide for two types of uses: permitted and conditional. Permitted uses are those allowed as of right, provided the landowner meets all other requirements, e.g;, building code requirement. Conditional uses (also known as special exceptions) are also allоwed in the zoning code, but they are uses that may have a significant impact and thus require an administrative hearing for approval.’ ” Kipp v. Bd. of Zoning Appeals of Stoneliek Twp., 12th Dist. No. CA2003-10-086,
{¶ 24} In Hagan v. Marlboro Twp. Bd. of Zoning Appeals (Jan. 29, 1996), 5th Dist. No. 95CA0086,
{¶25} Similarly, in the case sub judice, the trial court observed the concerns of the Chester Township Board of Zoning Appeals and noted that appellant “had used and continued to use ” the property at issue for the storage and sale of mulch, which caused dust and offensive odors. (Emphasis added.) While the trial court states in its judgment entry that appellant’s “application for a zoning certificate was not based upon speculation or supposition,” thе evidence in this case demonstrates otherwise. Appellant’s past conduct, which was solely related to the storage and sale of mulch, was the only evidence presented to substantiate the denial of appellant’s application for a zoning certificate.
{¶ 26} In his application and at the hearing on December 11, 2006, appellant stated that his intention wаs not only to store and sell mulch at the property, but also to sell, among other things, plants, soil, gravel, pavers, and pipe, all of which were permitted uses under the township’s zoning resolution. Pursuant to Section 5.02.01, appellant is permitted to conduct such activity on the subject premises; if appellant then violates the zoning laws, the township may seek to enforce them.
{¶ 27} Additionally, the zoning inspеctor was aware of numerous complaints from neighbors regarding the odor from the mulch. However, he failed to take any action against appellant with regard to this alleged violation. The zoning inspector allowed appellant to violate the resolution without any attempt to enforce it, then used those violations as a basis for denying appellant’s apрlication for a use that was permitted. This is a somewhat absurd result.
{¶ 28} Appellee cites Kipp v. Bd. of Zoning Appeals, 12th Dist. No. CA200310-086,
*118 {¶ 29} “All zoning decisiоns, whether on an administrative or judicial level, should be based on the following elementary principles which underlie real property law. Zoning restrictions are in derogation of common law and deprive a property owner of certain uses of his land to which he would otherwise be lawfully entitled. Therefore, such resolutions are ordinarily construed in favor of the property owner. * * * Restrictions on the use of real property by the ordinance, resolution or statute must be strictly construed, and the scope of the restrictions cannot be extended to include limitations not clearly prescribed.” Saunders v. Zoning Dept. (1981),66 Ohio St.2d 259 , 261,20 O.O.3d 244 ,421 N.E.2d 152 .
{¶ 30} The main problem with the township’s approach is the contention that an application for a zoning certificate, completely proper and valid on its face, may be subjectively denied at the discretion of the zoning inspector. While there are occasions when an interpretation of the zoning code is required, it should not be within the discretion of the zoning inspector to decide who he or she thinks is going to comply with the zoning code once a permit is issued, for that is the purpose of the enforcement powers.
(¶ 31} The dissent frames the issue in the case sub judice as “not past conduct or present conduct per se[,] [r]ather [that appellant] had the burden to present credible evidence that his use would comply with Chester Township’s Zoning Resolution.” The dissent also maintains appellant must present “evidence of a definitive plan.” However, the law does not place such а burden on appellant when applying for a permitted use under the township’s zoning resolution. The dissent cites Barrett Paving Materials, Inc. v. Bd. of Zoning Appeals of Union Twp. (June 24, 1991), 12th Dist. No. CA90-07-066,
{¶ 33} For the foregoing reasons, appellant’s sole assignment of error has merit. The judgment of the Geauga County Court of Common Pleas is reversed, and the cause is remanded for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
Dissenting Opinion
dissenting.
{¶ 34} The majority concludes that “the denial of [Dinardo’s] application cannot be founded on the anticipation of offensive odors based on current and past conduct.” However, the issue in the instant case is not past conduct or present conduct per se. Rather, Dinardo had the burden to present credible evidence that his use would comply with Chester Township’s zoning resolution.
{¶ 35} “A zoning certificate shall not be issued unless the plans for the proposed building or structure fully comply with the zoning resolution in effect.” Barrett Paving Materials, Inc. v. Bd. of Zoning Appeals of Union Twp. (June 24, 1991), 12th Dist. No. CA90-07-066,
{¶ 37} Contrary to the majority’s assertions, there was sufficient evidence in the record to deny Dinardo’s request. Testimony demonstrated that the storing and selling of mulch and its impact on Dinardo’s neighbors constituted a “nuisance” and an “eyesore.” Additionally, testimony indicated that piles of mulch created offensive dust and dirt in the yards of Dinardo’s neighbors. Furthermore, the Chester Township zoning inspector had received numerous complaints about the odor from Dinardo’s similar mulch operations in the past. There was sufficient evidence to support the board’s determinations that the proposed use would have a negative impact on the values and enjoyment of the neighboring properties due to the dust and odor it would generate as well as its laсk of aesthetic appeal. More importantly, Dinardo failed to provide any details as to how he would address the problem of the offensive odor and dust, such as containment structures. Evidence presented clearly demonstrated that Dinar-do’s proposed use would cause air pollution and other objectionable influences in the neighborhood adjacent to his property in violation of Chester Township Zoning Regulation 5.02.01 and 5.00.01(J).
{¶ 38} The testimony in the record, demonstrating that Dinardo’s use would cause air pollutants and other objectionable influences, in violation of the Chester Township zoning regulations, supports the denial of his application. Accordingly, the trial court did not err in affirming the denial of the zoning certificate.
{¶ 39} For the reasons stated above, I respectfully dissent.