Homan v. Franklin Twp. Bd. of Zoning AppealsHoman v. Franklin Twp. Bd. of Zoning Appeals
John A. Gleason for Appellant
Andrew J. Hinders for Appellee
PRESTON, J.
{¶1} Plaintiff-appellant, Timothy J. Homan (“Homan“), appeals the January 18, 2018 judgment entry of the Mercer County Court of Common Pleas affirming defendant-appellee‘s, the Franklin Township Board of Zoning Appeals (“BZA“), decision to deny Homan‘s application for a conditional-use permit. For the reasons that follow, we affirm the decision of the trial court.
{¶2} Homan has operated a nursery business on his property in Franklin Township, Mercer County, Ohio for more than 30 years. (Appellant‘s Brief at 1). In late 2015, Homan began remodeling a dilapidated barn on the property. (Id.). Around the same time, Homan‘s son, Timothy Homan Jr. (“Homan Jr.“), was running a “machine shop” in a building that he leased for that purpose. (Mar. 7, 2016 Tr. at 7-8). Eventually, Homan Jr.‘s lease expired, and he was forced to move the equipment used in his business. (See id.). After some discussion, Homan and Homan Jr. decided that Homan Jr. would relocate his equipment to the newly renovated barn to allow Homan Jr. to continue his machining business. (Id. at 7-9). However, in January 2016, the township zoning inspector visited Homan‘s barn and informed Homan that he would need to apply for a conditional-use permit to continue using the barn to house Homan Jr.‘s machine shop. (Sept. 19, 2016 Tr. at 13-15). (See Mar. 7, 2016 Tr. at 6-7).
{¶4} On July 7, 2016, the trial court remanded the matter to the BZA with “instructions to supplement the record with the evidence admitted at the original proceedings before it on March 7, 2016, with the specific authority to reconvene the hearing on [Homan‘s] application for a grant of conditional use of his premises so that additional evidence may be taken and a new order and decision may be issued by the [BZA] * * *.” (Doc. No. 19). In accordance with the trial court‘s July 7, 2016 order, the BZA reconvened on September 19, 2016 to further consider Homan‘s application for a conditional-use permit. (See Sept. 19, 2016 Tr. at 6-7). At the close of the hearing, the BZA denied Homan‘s application for a conditional-use permit. (Id. at 83-85). On October 24, 2016, the trial court reopened Homan‘s appeal of the BZA‘s decision. (Doc. No. 27).
{¶6} On February 16, 2018, Homan filed a notice of appeal. (Doc. No. 64). He raises two assignments of error, which we will address together.
Assignment of Error No. I
The trial court erred in holding that appellant‘s use was not a conditional use.
Assignment of Error No. II
The trial court erred by not holding that appellee failed to comply with
{¶7} In his assignments of error, Homan argues that the trial court erred by affirming the BZA‘s decision denying his application for a conditional-use permit. Specifically, in his first assignment of error, Homan argues that the Franklin Township Zoning Code (the “Code“) is ambiguous as to whether his use is a conditional use in the relevant zoning district, that the trial court was required to construe this ambiguity in his favor, and that because the trial court did not construe the Code in his favor when it found that his use is not a conditional use, the trial court erred by affirming the decision of the BZA. In addition, in his second assignment of error, Homan asserts that the trial court erred by affirming the decision of the BZA because the BZA arbitrarily, illegally, and unreasonably denied
{¶8} ”
If an appeal is taken in relation to a final order, adjudication, or decision covered by division (A) of section 2506.01 of the Revised Code, the court 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. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication, or decision, or remand the cause to the officer or body
appealed from with instructions to enter an order, adjudication, or decision consistent with the findings or opinion of the court. The judgment of the court may be appealed by any party on questions of law as provided in the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505. of the Revised Code.
Thus, “[i]n an
{¶9} “By contrast, the standard of review for an appellate court reviewing a judgment of a common pleas court in this type of appeal is narrower and more deferential to the [common pleas] court‘s decision.” Id. at ¶ 25, citing Kisil v. Sandusky, 12 Ohio St.3d 30, 34 (1984). The Supreme Court of Ohio has “stressed that the “standard of review to be applied by the courts of appeals in an
{¶10} This court has recognized that Ohio courts of appeals review the decisions of trial courts in
{¶12} Yet, as stated above, this court has repeatedly and consistently concluded that the decisions of trial courts in
{¶13} It has also been recognized, however, that while ““courts of appeals have a limited scope of review on R.C. 2506 appeals, interpretation of a city‘s ordinance presents a question of law that must be reviewed de novo.“” Jackson v. Cleveland Dept. of Bldg. & Hous., 8th Dist. Cuyahoga No. 97706, 2012-Ohio-3688, ¶ 8, quoting Moulagiannis v. Cleveland Bd. of Zoning Appeals, 8th Dist. Cuyahoga No. 84922, 2005-Ohio-2180, ¶ 10. Accord Cleveland Clinic Found., 141 Ohio St.3d 318, 2014-Ohio-4809, at ¶ 25 (““A question of statutory construction presents an issue of law that we determine de novo on appeal.““), quoting Lang v. Ohio Dept. of Job & Family Servs., 134 Ohio St.3d 296, 2012-Ohio-5366, ¶ 12. Thus, courts of appeals perform two distinct forms of review when evaluating a common pleas court‘s decision in an
{¶14} In this case, the BZA‘s denial of Homan‘s application for a conditional-use permit was the specific administrative action reviewed by the trial court.
“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[s]. Conditional uses * * * are also allowed
in the zoning code, but they are uses that may have a significant impact and thus require an administrative hearing for approval.”
Dinardo v. Chester Twp. Bd. of Zoning Appeals, 186 Ohio App.3d 111, 2010-Ohio-40, ¶ 23 (11th Dist.), quoting Kipp v. Bd. of Zoning Appeals of Stonelick Twp., 12th Dist. Clermont No. CA2003-10-086, 2004-Ohio-5903, ¶ 10, quoting Stuart Meck & Kenneth Pearlman, Ohio Planning and Zoning Law, Section 9:11, at 387 (2004 Ed.).
The inclusion of conditional use provisions in zoning legislation is based upon a legislative recognition that although certain uses are not necessarily inconsistent with the zoning objectives of a district, their nature is such that their compatibility in any particular area depends upon surrounding circumstances. Thus, the legislative body provides for their inclusion in a district only upon administrative approval granted in accordance with legislatively prescribed standards and conditions.
Gerzeny v. Richfield Twp., 62 Ohio St.2d 339, 341 (1980).
{¶15} A township board of zoning appeals‘s authority to grant conditional-use permits is derived from
The township board of zoning appeals may:
* * *
(C) Grant 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.
{¶16} The property for which Homan seeks a conditional-use permit is located in the A-2 (Prime Agriculture) District. (See Doc. No. 59). (See also Sept. 19, 2016 Hearing Exs., Appellee‘s Ex. C). Agriculture and Single-Family Dwellings are the principal permitted uses in the A-2 District. See Code Section 1127.17(A)-(C). The Conditional Uses list for the A-2 District provides as follows:
A building or premises may be used for the following purposes in the A-2: Prime Agriculture District, if a Conditional Use Permit for the use has been obtained in conformance with the provisions of Chapter 1131.
Principal Uses:
A. Airports
B. Animal Hospitals and Clinics
C. Cemeteries
D. Farm and Heavy Equipment Sales and Service
E. Grain Elevators and Feed Mills
F. Mineral Extraction
G. Mixed Uses
H. Oil and Gas Wells
I. Public Service Facilities
J. Recreation, Commercial
K. Recreation, Non-Commercial
L. Recreation, Public
M. Religious Places of Worship
Accessory Uses:
N. Expanded Home Occupations
O. Nurseries and Garden Supply Stores
P. Private Landing Strips and Heliports
Q. Seasonal Storage Facility
Code Section 1127.18(A)-(Q).
{¶17} Code Chapter 1131 sets forth the procedures that the BZA must follow and the substantive considerations that it must take into account when reviewing applications for conditional-use permits. Code Section 1131.02, which sets forth general standards for all conditional uses, provides, in relevant part:
In addition to the specific requirements for conditionally permitted uses as specified in this Section, the BZA shall review the particular facts and circumstances of each proposed use in terms of the following standards and shall find adequate evidence showing that such use at the proposed location:
N. Is in fact a conditional use as established under the provisions of these Regulations and appears on the Conditional Uses list, adopted for the zoning district involved[.]
Code Section 1131.02(A). In addition, if the BZA approves an application for a conditional-use permit, it must “mak[e] an affirmative finding in writing that the proposed conditional use is to be located in a district wherein such use may be conditionally permitted * * *.” Code Section 1131.03(A).
{¶18} The BZA first considered Homan‘s application for a conditional-use permit at a March 7, 2016 hearing. (Mar. 7, 2016 Tr. at 1, 4). At the beginning of the hearing, the BZA‘s secretary stated that “[Homan] * * * requests a conditional use for the changing of use of a commercial building located at [Kittle Road], Celina. The building will be used for manufacturing.” (Id. at 6). Gary Schwieterman (“Schwieterman“), the township zoning inspector, said that Homan‘s property “is zoned A-2. Since [Homan] wishes to use a portion of the property for manufacturing, a conditional use permit is required.” (Id. at 2, 6-7). Homan himself
{¶19} However, an attorney for an adjacent landowner questioned whether manufacturing is conditionally permitted in the A-2 District. (Id. at 17). A BZA member responded: “It‘s a conditional use.” (Id.). In support of their position that manufacturing is a conditional use in the A-2 District, the BZA member said that a local attorney advised the BZA that it is a conditional use. (Id.). The BZA member further stated that “recreation and commercial” are listed as conditional uses in the A-2 District. (Id.). The attorney for the adjacent landowner responded, “It says recreation, commercial, as in commercial recreation.” (Id. at 17-18). The BZA member then remarked that they were not “sure either, and that‘s why [they] called [the local attorney]” who assured them that Homan‘s manufacturing operation is a conditional use in the A-2 District. (Id. at 18). Despite the landowner‘s attorney‘s misgivings, the BZA proceeded to treat Homan‘s use as if it were a conditional use
{¶20} Following the trial court‘s remand to the BZA, Homan‘s application for a conditional-use permit was considered for a second time at a hearing on September 19, 2016. (See Sept. 19, 2016 Tr. at 1, 6-8). Homan‘s use was again characterized as manufacturing. Indeed, Homan stated that his son was using the barn “right now as a machine shop.” (Id. at 16). Homan Jr. remarked that he does “not actually manufactur[e] firearms. [He] make[s] firearms parts.” (Id. at 39). As with the March 7, 2016 BZA hearing, no one contested the categorization of Homan‘s use as manufacturing.
{¶21} However, in contrast to the March 7, 2016 hearing, at least one BZA member doubted that manufacturing is a conditional use in the A-2 District. Hank Kaiser (“Kaiser“) stated that “[t]his was presented to the Board as an accessory use to [Homan‘s] nursery, not a manufacturing for kits for guns. I don‘t have a problem with guns at all * * * [b]ut this is a manufacturing operation in A-2. And we can go through every checklist we have. We‘re not able to change zoning at this time.” (Id. at 25). Later, when reviewing the Code, Kaiser remarked that he was “[s]till not seeing manufacturing” as a conditional use in the A-2 District. (Id. at 51). (See
{¶22} To further support his application, Homan claimed that the BZA previously granted conditional-use permits for uses similar to his although those uses also do not appear on the Conditional Uses list for the A-2 District. (See id. at 22-24). (See also id. at 23-24, 35-36, 56). These uses include an “auto collision repair” and “paint shop,” a woodshop where “[t]hey build cabinets and furniture,” a salvage yard, a carpentry shop, and “a company called Klosterman Concrete.” (Id. at 22-24). (See Sept. 19, 2016 Hearing Exs., Appellant‘s Exs. 2, 3). Homan submitted printouts from the websites of two of these businesses. (See Sept. 19, 2016 Hearing Exs., Appellant‘s Exs. 2, 3).
{¶23} Before holding a final vote on Homan‘s application, the BZA considered whether Homan‘s use is consistent with Code Section 1131.02(A), which provides that the BZA must consider whether the use is “in fact a conditional use as established under the provisions of [the Code] and appears on the Conditional Uses list, adopted for the zoning district involved.” (Sept. 19, 2016 Tr. at 61-62).
{¶24} In its judgment entry affirming the BZA is decision denying Homan is application for a conditional-use permit, the trial court observed that “[f]rom the testimony at both hearings, the evidence as to the proposed use was uncontroverted.
{¶25} We conclude that the trial court did not err in its application or interpretation of the Code and that its decision is supported by the preponderance of reliable, probative, and substantial evidence as a matter of law. Thus, the trial court did not abuse its discretion by affirming the BZA is decision denying Homan is application for a conditional-use permit. First, the trial court did not abuse its discretion by concluding that the preponderance of the evidence supports the BZA is conclusion that Homan is use is “manufacturing” as that term is defined in the Code.
{¶26} Homan is argument is based on a flawed construction of the Code is definition of “manufacturing.” The definition of “manufacturing” provides that new products or components resulting from one of the listed processes usually be distributed to wholesale markets or to industrial users for interplant transfer; it does not require that such products or components exclusively be distributed to wholesale markets or to industrial users for interplant transfer. See
{¶27} That Homan is use involves the “mechanical * * * transformation * * * of materials [or] substances * * * into new products or components,” such that his use is manufacturing as that term is defined in the Code, is supported by a
{¶28} Likewise, the trial court did not err by concluding that manufacturing is not a conditional use in the A-2 District. On this point, Homan argues that the Code is ambiguous as to which uses are conditional uses in the A-2 District. (Appellant is Brief at 4). He further argues that, because “[z]oning resolutions * * * are in derogation of common law and should be construed in favor of a property owner,” the trial court should have construed the Code is alleged ambiguities in his favor by concluding that his use is a conditional use in the A-2 District. (Id.). In support of his argument, Homan highlights that his “use was found to be a conditional use at the March 7 Hearing” before the BZA later concluded that his use
{¶29} Homan is argument is meritless because the Code unambiguously excludes manufacturing from the Conditional Uses list for the A-2 District. First, some of the confusion over the status of manufacturing as a conditional use in the A-2 District appears to stem from a misapplication of the language of the Code by members of the BZA at the March 7, 2016 hearing. One of the BZA members, after remarking that Homan is use “[is] a conditional use,” cited the Code for the proposition that “recreation and commercial” are conditional uses in the A-2 District. (Mar. 7, 2016 Tr. at 17). However, as noted by the attorney representing an adjacent landowner, the language cited by the BZA member actually reads “[R]ecreation, [C]ommercial, as in commercial recreation.” (Emphasis added.) (Id. at 17-18). “Recreation, Commercial” is a defined term in the Code and means:
Recreation facilities open to the public, established and operated for a profit, such as commercial golf courses, golf driving ranges, swimming pools, ice skating rinks, riding stables, boat docks, fishing piers, boat launching, and other commercial recreation areas and facilities or recreation centers, including commercial swimming
pools, boat docks, fishing piers, boat launching, and food concessions as an accessory use.
{¶30} Furthermore, the Code is not rendered ambiguous simply because the township zoning inspector and members of the BZA believed Homan is use to be a conditional use or because the BZA utilized the conditional use checklist when considering his application at the March 7 and September 19, 2016 hearings. “An
{¶31} Finally, because the trial court did not abuse its discretion by upholding the BZA is conclusion that Homan is use is manufacturing and because it did not err by concluding that manufacturing is not conditionally permitted in the A-2 District, the trial court did not abuse its discretion by affirming the BZA is decision to deny Homan is application for a conditional-use permit. It is well established that “township board[s] of zoning appeals may grant conditional use zoning permits, but only if such uses are provided for in the township is zoning resolution.” (Emphasis sic.) Genovese, 2006-Ohio-1174, at ¶ 10, citing Gerzeny at 344. Here, the Code does not specifically provide for manufacturing as a conditional use in the A-2 District. Because the Code does not list manufacturing as a conditional use in the A-2 District, the BZA did not have the authority to grant Homan is application for a conditional-use permit. See Genovese at ¶ 11-13 (reversing a common pleas court is affirmance of a zoning board is grant of a conditional-use permit to allow camping in a district where camping was not among
{¶32} In addition, the Code requires that the BZA “find adequate evidence showing that [a proposed use] * * * [i]s in fact a conditional use as established under the provisions of [the Code] and appears on the Conditional Uses list, adopted for the zoning district involved.” (Emphasis added.)
{¶33} Our conclusion is the same irrespective of whether uses similar to Homan is use may have been granted conditional-use permits by the BZA in the past or are currently operating in the A-2 District without conditional-use permits. “[T]he questionable granting of one conditional zoning certificate cannot be used as the sole basis for requiring” the grant of another. Chorpenning v. Tallmadge, 9th Dist. Summit No. C.A. NO. 11153, 1984 WL 4152, *2 (Jan. 25, 1984). Moreover, there is insufficient evidence in the record demonstrating that the BZA has granted questionable conditional-use permits in the past or that Homan was actually treated differently than other landowners in the A-2 District. See Kisil, 12 Ohio St.3d at 33 (concluding that a common pleas court correctly determined that a denial of a variance was arbitrary and unreasonable, in part, because the record contained sufficient evidence from which the common pleas court could conclude that the applicant was treated differently from similarly situated property owners).
{¶34} For these reasons, we conclude that the trial court did not err in its application or interpretation of the law and that its decision is supported by the preponderance of reliable, probative, and substantial evidence as a matter of law. Therefore, the trial court did not abuse its discretion either by concluding that the
{¶35} Homan is first and second assignments of error are overruled.
{¶36} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
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