Lead Opinion
{¶ 3} On March 22, 2004, the Club applied to the Board for a continuation of its conditional use permit. The Board held a hearing and heard testimony regarding the application. Mr. Genovese attended the hearing with his attorney, Richard Dobbins, to protest the application. At the hearing, Mr. Genovese testified that the camping caused excessive noise. Mr. Dobbins testified that the camping violated any previously granted cоnditional use permits and objected to further use of the property for camping. At the close of testimony the Board voted to grant a one-year conditional use permit, which included camping.
{¶ 4} Mr. and Mrs. Genovese appealed the decision to the Summit County Court of Common Pleas, per R.C.
{¶ 5} Mr. and Mrs. Genovese assert that the trial court erred in its R.C. Chapter 2506 review by failing to apply the law. On appeal to the common pleas court, Mr. and Mrs. Genovese asserted that the Board's authority is circumscribed by the Coventry Township Zoning Resolutiоn, that the Board acted beyond this limited authority, and that the conditional use permit granted to the Club was unsupported as a matter of law. On appeal to this Court, Mr. and Mrs. Genovese explain that the common pleas сourt ignored the limitations imposed by Ohio law, and instead merely upheld the permit without any supporting legal analysis or explanation. From this, Mr. and Mrs. Genovese claim that the common pleas court either abused its discretion or erred as a matter of law. This Court agrees.
{¶ 6} R.C. Chapter 2506 governs appeals from decisions by agencies of political subdivisions, such as township zoning boards. See Earth `N Wood Prods., Inc. v. City of Akron Bd. ofZoning Appeals, 9th Dist. No. 21279,
{¶ 7} A subsequent appeal to the Court of Appeals is "more limited in scope." Kisil v. Sandusky (1984),
{¶ 8} "Within the ambit of `questions of law' for appellate court review would be abuse of discretion by the common pleas court." Cabassa at ¶ 6, fn.1, quoting Kisil,
{¶ 9} In the present case, the common pleas court upheld the Board's grant of a one-year conditional use permit, which implicitly included operation of the boat docks, clubhouse, and campground on property zoned R-1 residential. In its journal entry, the common pleas court did not provide any analysis, but merely offered a conclusory statement that the Board "acted in a way that did not violate Ohio Revised Code §
{¶ 10} Under the applicаble statutory section, titled "Powers of Township Board of Zoning Appeals," the State legislature has defined the authority of this particular type of political subdivision: "The township board of zoning appeals may * * * [g]rant conditional zoning certificates for the use of land, buildings, or other structures if such certificates for specific uses are provided for in the zoning resolution." R.C.
{¶ 11} The Board in the present case is bound by the Coventry Township Zoning Resolution, which designates six "cоnditionally permitted uses" in an R-1 Residential District. None of those six uses allows for camping.1 Therefore, the Board had no authority to grant a conditional use permit that included camping.
{¶ 12} The Board and Club allege that Mr. Genovеse's statements at the zoning hearing served to waive his objection to the grant of the conditional use permit. At the hearing, Mr. Genovese and his attorney, Mr. Dobbins, urged the Board to grant a conditional use permit that permitted thе yacht club but prohibited camping. From this, the Board and Club argue that Mr. Genovese invited the error of granting the permit or waived his objection to the allowance of camping. However, Mr. Genovese never withdrew his adamant protest against camping — he argued against it to the Board, he appealed to the common pleas court, and he has appealed to this Court. His protests have been emphatic and consistent. Moreover, Mr. Dobbins' suggestion that the Board should permit the yacht club but prohibit camping was tendered as a compromise: "Mr. Genovese is asking for here — that you allow the Yacht Club to operate that you grant the conditional variance, but you not allow the camping. That wouldbe a reasonable accommodation for both parties here." As reasonably understood, a protestor's offer to compromise his protest does not instill the local zoning board with more authority than it would otherwise have under the law. See R.C.
{¶ 13} As for the common pleas court, it was informed on the law and the limitations imposed on the Board by law. Mr. and Mrs. Genovese cited statute and case law in their R.C.
"[T]he statute [R.C.
The grant of the conditional use permit in this cаse was in error. This Court finds this outcome to be an error of law and an abuse of discretion. See Blakemore,
Judgment reversed, and cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State оf Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellees.
Whitmore, P.J. Concurs.
Notes
"In an `R-1' Residence District, no building, structure, lot, or land shall be used except for the following purposes.
"A. PERMITTED USES
"1. Single family dwelling.
"2. Accessоry buildings or structures customarily incidental to the foregoing permitted use, including private boat house and dock facilities, roadside stands, and private garages.
"B. CONDITIONALLY PERMITTED USES
"(Uses which may be permitted by issuance of a Conditional Zoning Certificate by the Board of Zoning Appeals that said Board finds that the proposed conditional use is listed in the conditional uses in the district and that the conduct of the use meets beyond any reasonable doubt, both the generаl and specific requirements thereto.)
"1. Public owned and operated facilities such as, but not limited to, fire stations, township halls, community center buildings or areas, libraries, museums, parks, recreation, or conservation areas.
"2. Public or parochial schools.
"3. Churches and comparable buildings for religious worship, instruction, or devotion, but excluding tents temporarily erected for such purposes.
"4. Golf courses or country clubs, but excluding miniature golf courses or practice driving rаnges operated for business purposes.
"5. Accessory buildings or structures customarily incidental to any of the foregoing conditionally permitted uses, including accommodations for personnel employed on the premises, private boat house and dock facilities, home occupation, and roadside stands.
"6. Residential and non-residential alcohol, drug and related mental health treatment facilities and associated uses."
Thе Resolution elsewhere states: "Uses which are omitted from these regulations, not being specifically permitted shall be considered prohibited until, by amendment, such uses are written into these regulations." (Emphasis in original.) Resolution Artiсle 2.00.
Dissenting Opinion
{¶ 15} The issue regarding the grant of the conditional use of the Akron Yacht Club has not been preserved for appeal through the doctrines of invited error and/or waiver. The only remaining issue is regarding the allowance of camping as part of the Akron Yacht Club's conditional use. That issue is one of "customary and incidental use" which is a discretionary determination of the Board of Zoning Appeals. The trial court found that the Board's decision was not "unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of the evidence."
{¶ 16} On the basis of this Court's limited scope of review of the trial court's decision, I would affirm.