Cahill v. Dayton Bd. of Zoning Appeals

507 N.E.2d 411, 30 Ohio App. 3d 236, 30 Ohio B. 394, 1986 Ohio App. LEXIS 10077
CourtOhio Court of Appeals
DecidedMarch 3, 1986
DocketCA-9592
StatusPublished
Cited by12 cases

This text of 507 N.E.2d 411 (Cahill v. Dayton Bd. of Zoning Appeals) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cahill v. Dayton Bd. of Zoning Appeals, 507 N.E.2d 411, 30 Ohio App. 3d 236, 30 Ohio B. 394, 1986 Ohio App. LEXIS 10077 (Ohio Ct. App. 1986).

Opinion

Kerns, J.

On November 21, 1984, Charles Hamilton filed an application with the Board of Zoning Appeals for the city of Dayton seeking a conditional use permit and related zoning variances in order to effect an expansion of a nursing facility known as Grandview Manor. After a hearing upon objections of property owners in the immediate area of the facility, the board of zoning appeals granted the application of Hamilton, but on April 24, 1985, two property owners in the neighborhood, James Cahill and Martha Homer, appealed the decision of the board of zoning appeals to the Court of Common Pleas of Montgomery County-

Subsequently, the appellants, Cahill and Homer, requested an evidentiary hearing in the common pleas court pursuant to R.C. 2506.03, and although the request was resisted by Grandview Manor, Inc., the request for the hearing was granted, and a hearing was conducted on August 2, 1985. During these proceedings, the appellants presented no evidence, but the appellees submitted the testimony of two witnesses, Charles Aszling and Duane Fleming, neither of whom had appeared before the board of zoning appeals. Thereafter, on September 17, 1985, and upon consideration of the entire record, the common pleas court affirmed the decision of the board of zoning appeals, and from the order so entered, Cahill and Homer have appealed to this court.

The first assignment of error has been set forth by the appellants as follows:

“1. When there has been insufficient evidence presented before a Board of Zoning Appeals to justify the granting of a conditional use permit, such defect cannot be remedied by evidence presented by the applicants for such a conditional use permit at a hearing before the Common Pleas Court on an appeal from the granting of the conditional use permit by opponents of the granting of said permit.”

Assuming, as argued by the appellants, that the evidence before the board of zoning appeals was insufficient to justify the granting of a conditional use permit, it also may be noted that the appellants, Cahill and Homer, requested the evidentiary hearing in the common pleas court, and under the circumstances of this case, the trial court was required to hear the appeal upon the transcript “and such additional evidence as may be introduced by any party.” *237 R.C. 2506.03. In fact, a hearing before the common pleas court pursuant to R.C. 2506.01 “shall proceed as in the trial of a civil action,” R.C. 2506.03, and in many respects, including the provision for new or additional evidence, such proceedings import many characteristics similar to those of a trial de novo. See Dudukovich v. Lorain Metro. Housing Auth. (1979), 58 Ohio St. 2d 202, 12 O.O. 3d 198, 389 N.E.2d 1113. Hence, the assignment' of error is without merit.

The second assignment of error has been stated by the appellants as follows:

“2. When a certain subject matter has been covered before the Board of Zoning Appeals, such as the subject of whether or not property values will be adversely affected by the granting of a conditional use permit, further testimony on this subject matter at the hearing held before the Common Pleas Court does not constitute ‘additional evidence’ as contemplated by Section 2506.03, Revised Code.”

In support of this alleged error, the appellants contend that the testimony of the witnesses, Aszling and Fleming, neither of whom testified before the board of zoning appeals, did not constitute “additional evidence” as contemplated by R.C. 2506.03, and this contention is apparently based in turn upon the fact that others had already testified at the administrative hearing as to the effect of a conditional use permit on property values.

As used in the statute, however, the language “additional evidence” makes no reasonable allowance for construction, and statutes are ordinarily given a literal and natural meaning unless a contrary intention appears. 50 Ohio Jurisprudence 2d (1961) 156-157, Statutes, Section 181. Here, the record on appeal fails to disclose that any conclusions of fact were filed with the trial court, and therefore, the exception set forth in R.C. 2506.03 applies without regard to the particular nature of the new matter submitted in the common pleas court. See SMC, Inc. v. Laudi (1975), 44 Ohio App. 2d 325, 73 O.O. 2d 378, 338 N.E. 2d 547.

While the introduction of “additional evidence” between the board of zoning appeals and the common pleas court obviously could lead to anomalous results, a similar procedure was long recognized in Ohio prior to the abolition of law and fact appeals. Accordingly, the second assignment of error is overruled.

The third assignment of error, which challenges the weight and sufficiency of the evidence, has been presented by the appellants as follows:

“3. The judgment of Montgomery County Common Pleas Court was against the weight of the evidence in finding that the granting of the conditional use permit, and the construction of the expanded nursing home pursuant thereto, would not adversely affect property values in the immediate area because the testimony came from a witness who was completely unfamiliar with property values in the area.”

With reference to this alleged error, it perhaps should be noted at the outset that this court has a narrower scope of review under R.C. 2506.04 than the common pleas court. More specifically, this court is limited to a determination of whether the trial court overstepped its bounds in assessing the probative value of the evidence. See Dudukovich v. Lorain Metro. Housing Auth. (1979), 58 Ohio St. 2d 202, 12 O.O. 3d 198, 389 N.E.2d 1113. The language of R.C. 2506.04 permits the trial court to weigh the evidence “on the whole record” while confining this court to a review solely “on questions of law.” Therefore, our role is the same as in the usual appeal, and our inquiry is limited to a determination of whether the conclusion of the common pleas court was erroneous as a matter of law. See Kisil v. Sand usky (1984), 12 Ohio St. 3d 30, 12 OBR *238 26, 466 N.E.2d 848; Cincinnati Bell, Inc. v. Glendale (1975), 42 Ohio St. 2d 368, 71 O.O. 2d 331, 328 N.E.2d 808.

A perusal of the record refutes the claim of the appellants that the witness, Aszling, was completely unfamiliar with the property values in the area of the proposed zoning change, and upon the whole record, this court cannot say that the judgment of the common pleas court was against the manifest weight of the evidence.

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Bluebook (online)
507 N.E.2d 411, 30 Ohio App. 3d 236, 30 Ohio B. 394, 1986 Ohio App. LEXIS 10077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cahill-v-dayton-bd-of-zoning-appeals-ohioctapp-1986.