476 N.E.2d 360 | Ohio Ct. App. | 1984
This is an appeal from a decision of the Portage County Common Pleas Court which ordered the Freedom Township Board of Zoning Appeals to issue to the appellee its requested zoning certificate. The appellants herein are the Freedom Township Board of Zoning Appeals (zoning board) and its individual members. The appellee is the Portage County Board of Mental Retardation and Developmental Disabilities (mental retardation board).
The appellee is the owner of a home located at 10171 Hewins Road in Freedom Township of Portage County, Ohio. The appellee wanted to use the home as a group home for up to nine non-ambulatory mentally retarded adults and applied for a zoning certificate. The appellee's application for a zoning certificate was denied by the township's zoning inspector, who termed the proposed use as "commercial" and therefore not permissible in the residentially zoned area where the home is located.
The appellee appealed to the board of zoning appeals, notifying the zoning inspector and adjoining property owners by certified mail. An additional notice of the hearing was printed in a local newspaper on July 26, 1982, under the name of the zoning board's chairman.
A hearing was held on August 11, 1982. At least twelve area residents and property owners attended the hearing, who were represented by counsel, and who individually voiced their concerns over the home. The evidence showed that the daily activities of the group home's residents would be normal domestic activities; that paid staff members of the board would be present at all times; that the outside appearance of the home would not be changed; and that a new sewage disposal system would be built underground in conformity with Environmental Protection Agency (E.P.A.) standards. On September 8, 1982, the zoning board denied the appellee's request for a zoning certificate.
The mental retardation board then sought review of the zoning board's decision in the Portage County Common Pleas Court. Named as appellees in the mental retardation board's notice of appeal were the zoning board and its individual members. The common pleas court rejected the zoning board's arguments regarding jurisdiction; held the proposed use of the mental retardation board was a permissible use within the township's zoning resolution; and ordered the zoning board to issue a zoning certificate to the mental retardation board.
The appellants present three assignments of error:
"1. The Court of Common Pleas erred in finding the appeal was properly perfected to the Zoning Board of Appeals of Freedom Township.
"2. The Court of Common Pleas was without jurisdiction to entertain the appeal below in that the Freedom Township Board of Zoning Appeals (the only party named below) was not the proper party.
"3. The Court of Common Pleas erred in that the Board of Appeals' decision was constitutional, legal, reasonable, not arbitrary or capricious and is supported by the preponderance of substantial, reliable and probative evidence on the whole record and there was no finding to the contrary."
The appellants' first assignment of error is without merit.
R.C.
First, the evidence in the record does not support the zoning board's contention that a notice of appeal was not filed with it. In the zoning board's letter to the mental retardation board, it states that a notice of appeal had been filed with the zoning board on July 14, 1982.
Second, even if the mental retardation board did not file a separate notice of appeal with the board of zoning appeals, failure to do so was not prejudicial error because all interested parties were notified of the hearing, had ample time to prepare for the hearing, and presented their views at the hearing. Pursuant to R.C.
The appellants' second assignment of error is without merit.
The mental retardation board named the Freedom Township Board of Zoning Appeals as the appellee in the common pleas court. The zoning board, appellant herein, contends that it was not the proper adverse party; that the mental retardation board's notice of appeal was never perfected; and that the mental retardation board's appeal was therefore not timely filed pursuant to R.C.
The appellants' third assignment of error is without merit.
The Freedom Township Zoning Resolution divides the township into three districts: rural-residential, commercial *390 and industrial. The home owned by the mental retardation board is located in a district zoned rural-residential. One permitted use of the property in a rural-residential district is defined as a "single family dwelling or residence." Section 201.1 of Article II.
The township zoning inspector denied the mental retardation board's application for a zoning certificate on the grounds that an impermissible "commercial" use was proposed for the property. The board of zoning appeals was empowered to review the decision of the zoning inspector and interpret the provisions of the zoning resolution. McVey v. Reichley (1957),
To distill the issue, the question simply put is whether the proposed use of the mental retardation board is a family use, or whether it is a commercial activity. Since the Freedom Township Zoning Resolution does not define either term, reference must be made to their ordinary meanings. State, ex. rel. Spiccia, v.Abate (1965),
Dictionary definitions of "commerce" indicate that it is primarily an activity conducted with a view toward profit. See Webster's Third New International Dictionary (1971); Black's Law Dictionary (5 Ed. 1979). Indeed, this very concept is incorporated into the Freedom Township Zoning Resolution which provides a rather exhaustive list of establishments which are included as "commercial." See Section 201.3(B) of Article II. In the case sub judice, operation of the home would be conducted by a public institution (the mental retardation board) on a non-profit basis. Payments by the mental retardation board to its employees do not create a commercial establishment with a view toward profit. Cf. Saunders v. Zoning Dept., supra, at 264. Thus, there is no evidence in the record to support a finding that the mental retardation board's group home would be a commercial establishment.
In defining and construing "family," the Supreme Court recently stated that:
"The definitions of `family,' `dwelling unit' and `single-family dwelling' must be carefully studied without encrusting them with the barnacles of one's own notions and prejudices * * *." Id. at 265.
Other cases considering this general question have found probative the fact that the residents of the dwelling operate a unit for purposes of cooking, cleaning and otherwise conducting everyday chores. See Driscoll v. Goldberg (Apr. 9, 1974), Mahoning App. No. 73 C.A. 59, unreported; Freedom TownshipTrustees v. Community Concern of Toledo (Nov. 27, 1981), Wood *391 App. No. WD-81-65, unreported; Wilson v. Butler Cty. Bd. ofZoning App. (May 17, 1982), Butler C.P. No. CV 81-05-0432, unreported. Here, the occupants of the group home would function as a unit for purposes of cooking, cleaning and otherwise maintaining the home. Thus, there is reliable, probative evidence of the fact that the home's occupants would function as a family unit.
The evidence described above is the gist of the sparse evidence which was presented at the hearing. Construction of the evidence must be made in favor of the mental retardation board as owner of the property. Saunders v. Zoning Dept., supra. With some evidence to support a finding that the group home would operate as a family unit, and little or no evidence of commerciality, it cannot be said that the trial court erred in holding that the preponderance of the evidence showed the mental retardation board's proposed use to be that of a single-family dwelling or residence.
For the foregoing reasons, the decision of the trial court is affirmed.
Judgment affirmed.
COOK, P.J., and DAHLING, J., concur.