[Cite as Cox v. Miami Cty. Bd. of Zoning Appeals, 2011-Ohio-2820.]
IN THE COURT OF APPEALS OF MIAMI COUNTY, OHIO
: DON E. COX, ET AL. Plaintiffs-Appellants : C.A. CASE NO. 2010-CA-29
vs. : T.C. CASE NO. 10-CV-366
THE MIAMI COUNTY BOARD OF : (Civil Appeal from ZONING APPEALS Common Pleas Court) Defendant-Appellee :
. . . . . . . . .
O P I N I O N
Rendered on the 10th day of June, 2011.
Anthony R. Day, Atty. Reg. No. 0085193, 1420 West Main Street, Tipp City, OH 45371 Attorney for Plaintiffs-Appellants
Mark W. Altier, Assistant Prosecuting Attorney, Atty. Reg. No. 0017882, 201 West Main Street, Troy, OH 45373 Attorney for Defendant-Appellee
GRADY, P.J.:
{¶ 1} Plaintiff, Don E. Cox, appeals from an order of the court
of common pleas affirming the decision of the Miami County Board
of Zoning Appeals (“the Board”).
{¶ 2} Cox owns real property located at 300 Shoop Road, which
is contiguous to real property owned by Ben Johnson located at 2
340 Shoop Road. Both parcels are situated in an A-2 General
Agricultural zoning district. Johnson applied to the Board for
a conditional use permit to operate a storage facility for
recreational vehicles on a portion of the property at 340 Shoop
Road. The proposed layout of the storage facility included, among
other things, a fence around the perimeter and a number of trees
along two or three sides of the perimeter to screen the storage
facility from neighboring properties. Cox and an individual who
rents neighboring property from Cox opposed Johnson’s request for
the conditional use permit.
{¶ 3} The Board heard testimony from the interested parties
regarding Johnson’s application for a conditional use permit.
Based on its staff recommendations, the Board granted Johnson’s
application contingent upon his completion of four requirements,
one of which required Johnson to obtain approval of a screening
plan from the Miami County Planning Commission. Cox filed a notice
of appeal to the court of common pleas pursuant to R.C. Chapter
2506. On September 9, 2010, the common pleas court affirmed the
decision of the Board. Cox filed a notice of appeal.
FIRST ASSIGNMENT OF ERROR
{¶ 4} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS
BY CONFIRMING THE MIAMI COUNTY BOARD OF ZONING APPEALS’
INTERPRETATION OF ‘ENCLOSED BUILDING.’” 3
{¶ 5} The Ohio Supreme Court has distinguished the standard
of review to be applied by common pleas courts and courts of appeals
in R.C. Chapter 2506 administrative appeals. “The common pleas
court considers the ‘whole record,’ including any new or additional
evidence admitted under R.C. 2506.03, and determines whether the
administrative order is unconstitutional, illegal, arbitrary,
capricious, unreasonable, or unsupported by the preponderance of
the substantial, reliable, and probative evidence.” Henley v.
Youngstown Bd. of Zoning Appeals (2000), 90 Ohio St.3d 142, 147.
{¶ 6} As an appellate court, however, our standard of review
to be applied in an R.C. 2506.04 appeal is “more limited in scope.”
Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34. “This statute
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.” Id. at n.4.
{¶ 7} Section 16.04 of the Miami County Zoning Resolutions
provides for conditional uses of land located within an A-2 General
Agricultural zoning district. In particular, Section 16.04(O)
provides for a conditional use for “Commercial storage of boats,
recreational vehicles, and/or construction equipment, only within
the confines of an enclosed building.” (Emphasis supplied.) 4
{¶ 8} The Board found that an opaque fence surrounding the
proposed storage facility qualified as an enclosed building for
purposes of Section 16.04(O). Consequently, the Board granted
Johnson’s application for a conditional use permit to build a
storage facility on the property. According to Cox, the trial
court erred in affirming the Board’s decision to include an opaque
fence within the definition of “enclosed building.” We do not
agree.
{¶ 9} Section 3.02 of the Miami County Zoning Resolutions
defines “building” as “any structure, either temporary or
permanent, having walls or other devices intended for the shelter
or enclosure of persons, animals, chattel or property of any kind.”
Further, “structure” is defined as “anything constructed or
erected, the use of which requires location on or in the ground,
or attachment to something having location on or in the ground.”
{¶ 10} The opaque fence that will form Johnson’s storage
facility fits within the definition of “structure,” in that the
fence will be “constructed or erected” and its use will require
“location on or in the ground.” Further, the fence will have “walls
or other devices” and is intended for the enclosure of property,
which are the only additional requirements in the definition of
“building” in order for a structure to qualify as a “building.”
Therefore, based on the plain language of the definitions in the 5
Zoning Resolution, the common pleas court could reasonably find
that the opaque fence in the present case fits within the definition
of “building.”
{¶ 11} Further, the Board’s interpretations of the definitions
of “structure” and “building” in the present case are consistent
with its past interpretations of these words. At the hearing,
the Board received the following testimony regarding this
consistency:
{¶ 12} “MR HOOVER: Correct. The language in the zoning code,
specifically in the zoning code it says enclosed building. The
way that it’s been defined through both previous cases we’ve had
and through research that has been done by myself and the previous
planning director, an enclosed fence that provides a visual barrier
for the case of this particular storage area can be considered
to be a quote ‘building’. It does not require a structure. Our
zoning code does not well define building and well define structure
and so that’s kind of what we’ve run into the [sic] in the past
and based upon the research that had been done prior to when I
was here that’s what we based it upon. But chain link, just a
regular chain link fence would mostly not meet those requirements.”
(March 18, 2010 Tr. 8-9.)
{¶ 13} Cox argues, however, that “[t]he BZA, and the Court of
Common Pleas in agreement, determined that a ‘building’ is a 6
‘structure’ and a fence is a ‘structure’ which means a fence is
a building.” (Brief, p. 6.) According to Cox, the fact that a
fence is a structure does not necessarily make it a building.
Id. We agree with Cox that not all structures are buildings.
But the court of common pleas and the Board did not say otherwise.
Rather, the decisions of the Board and the court of common pleas
are consistent with the fact that in order to be considered a
building, the opaque fence at issue must be a structure and meet
the further requirement of “having walls or other devices intended
for the * * * enclosure of * * * property of any kind.” We believe
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[Cite as Cox v. Miami Cty. Bd. of Zoning Appeals, 2011-Ohio-2820.]
IN THE COURT OF APPEALS OF MIAMI COUNTY, OHIO
: DON E. COX, ET AL. Plaintiffs-Appellants : C.A. CASE NO. 2010-CA-29
vs. : T.C. CASE NO. 10-CV-366
THE MIAMI COUNTY BOARD OF : (Civil Appeal from ZONING APPEALS Common Pleas Court) Defendant-Appellee :
. . . . . . . . .
O P I N I O N
Rendered on the 10th day of June, 2011.
Anthony R. Day, Atty. Reg. No. 0085193, 1420 West Main Street, Tipp City, OH 45371 Attorney for Plaintiffs-Appellants
Mark W. Altier, Assistant Prosecuting Attorney, Atty. Reg. No. 0017882, 201 West Main Street, Troy, OH 45373 Attorney for Defendant-Appellee
GRADY, P.J.:
{¶ 1} Plaintiff, Don E. Cox, appeals from an order of the court
of common pleas affirming the decision of the Miami County Board
of Zoning Appeals (“the Board”).
{¶ 2} Cox owns real property located at 300 Shoop Road, which
is contiguous to real property owned by Ben Johnson located at 2
340 Shoop Road. Both parcels are situated in an A-2 General
Agricultural zoning district. Johnson applied to the Board for
a conditional use permit to operate a storage facility for
recreational vehicles on a portion of the property at 340 Shoop
Road. The proposed layout of the storage facility included, among
other things, a fence around the perimeter and a number of trees
along two or three sides of the perimeter to screen the storage
facility from neighboring properties. Cox and an individual who
rents neighboring property from Cox opposed Johnson’s request for
the conditional use permit.
{¶ 3} The Board heard testimony from the interested parties
regarding Johnson’s application for a conditional use permit.
Based on its staff recommendations, the Board granted Johnson’s
application contingent upon his completion of four requirements,
one of which required Johnson to obtain approval of a screening
plan from the Miami County Planning Commission. Cox filed a notice
of appeal to the court of common pleas pursuant to R.C. Chapter
2506. On September 9, 2010, the common pleas court affirmed the
decision of the Board. Cox filed a notice of appeal.
FIRST ASSIGNMENT OF ERROR
{¶ 4} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS
BY CONFIRMING THE MIAMI COUNTY BOARD OF ZONING APPEALS’
INTERPRETATION OF ‘ENCLOSED BUILDING.’” 3
{¶ 5} The Ohio Supreme Court has distinguished the standard
of review to be applied by common pleas courts and courts of appeals
in R.C. Chapter 2506 administrative appeals. “The common pleas
court considers the ‘whole record,’ including any new or additional
evidence admitted under R.C. 2506.03, and determines whether the
administrative order is unconstitutional, illegal, arbitrary,
capricious, unreasonable, or unsupported by the preponderance of
the substantial, reliable, and probative evidence.” Henley v.
Youngstown Bd. of Zoning Appeals (2000), 90 Ohio St.3d 142, 147.
{¶ 6} As an appellate court, however, our standard of review
to be applied in an R.C. 2506.04 appeal is “more limited in scope.”
Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34. “This statute
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.” Id. at n.4.
{¶ 7} Section 16.04 of the Miami County Zoning Resolutions
provides for conditional uses of land located within an A-2 General
Agricultural zoning district. In particular, Section 16.04(O)
provides for a conditional use for “Commercial storage of boats,
recreational vehicles, and/or construction equipment, only within
the confines of an enclosed building.” (Emphasis supplied.) 4
{¶ 8} The Board found that an opaque fence surrounding the
proposed storage facility qualified as an enclosed building for
purposes of Section 16.04(O). Consequently, the Board granted
Johnson’s application for a conditional use permit to build a
storage facility on the property. According to Cox, the trial
court erred in affirming the Board’s decision to include an opaque
fence within the definition of “enclosed building.” We do not
agree.
{¶ 9} Section 3.02 of the Miami County Zoning Resolutions
defines “building” as “any structure, either temporary or
permanent, having walls or other devices intended for the shelter
or enclosure of persons, animals, chattel or property of any kind.”
Further, “structure” is defined as “anything constructed or
erected, the use of which requires location on or in the ground,
or attachment to something having location on or in the ground.”
{¶ 10} The opaque fence that will form Johnson’s storage
facility fits within the definition of “structure,” in that the
fence will be “constructed or erected” and its use will require
“location on or in the ground.” Further, the fence will have “walls
or other devices” and is intended for the enclosure of property,
which are the only additional requirements in the definition of
“building” in order for a structure to qualify as a “building.”
Therefore, based on the plain language of the definitions in the 5
Zoning Resolution, the common pleas court could reasonably find
that the opaque fence in the present case fits within the definition
of “building.”
{¶ 11} Further, the Board’s interpretations of the definitions
of “structure” and “building” in the present case are consistent
with its past interpretations of these words. At the hearing,
the Board received the following testimony regarding this
consistency:
{¶ 12} “MR HOOVER: Correct. The language in the zoning code,
specifically in the zoning code it says enclosed building. The
way that it’s been defined through both previous cases we’ve had
and through research that has been done by myself and the previous
planning director, an enclosed fence that provides a visual barrier
for the case of this particular storage area can be considered
to be a quote ‘building’. It does not require a structure. Our
zoning code does not well define building and well define structure
and so that’s kind of what we’ve run into the [sic] in the past
and based upon the research that had been done prior to when I
was here that’s what we based it upon. But chain link, just a
regular chain link fence would mostly not meet those requirements.”
(March 18, 2010 Tr. 8-9.)
{¶ 13} Cox argues, however, that “[t]he BZA, and the Court of
Common Pleas in agreement, determined that a ‘building’ is a 6
‘structure’ and a fence is a ‘structure’ which means a fence is
a building.” (Brief, p. 6.) According to Cox, the fact that a
fence is a structure does not necessarily make it a building.
Id. We agree with Cox that not all structures are buildings.
But the court of common pleas and the Board did not say otherwise.
Rather, the decisions of the Board and the court of common pleas
are consistent with the fact that in order to be considered a
building, the opaque fence at issue must be a structure and meet
the further requirement of “having walls or other devices intended
for the * * * enclosure of * * * property of any kind.” We believe
the opaque fence at issue meets this further requirement.
{¶ 14} Based on the plain language of the Zoning Resolutions
and the past interpretations by the Board, we believe the court
of common pleas correctly found that the Board’s decision to include
the opaque fence within the definition of building was supported
by the preponderance of the substantial, reliable, and probative
evidence. The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 15} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS
BY DETERMINING THE SCREENING PLAN SUBMITTED BY BEN JOHNSON WAS
ADEQUATE.”
{¶ 16} The Miami County Zoning Resolutions require screening
in certain circumstances. Section 19.17 of the Miami County Zoning 7
Resolutions1 provides, in part:
{¶ 17} “Hereafter no buildings or structures shall be erected,
altered, or enlarged, nor shall land be used for any non-residential
use on a lot that adjoins or faces any residential district until
a plan for screening has been submitted and approved by the Planning
Commission. No part of any building or structure shall be
occupied, nor any land used, until all required screening, as
provided for in this section, is in place.
{¶ 18} “***
{¶ 19} “C. Whenever any non-residential use abuts a
residential district, a visual screening wall, fence or planting
shall be erected or placed along such mutual boundary lines.”
{¶ 20} The Board granted Johnson’s application for a permit
for conditional use contingent upon the completion of four
requirements. The first requirement provides that:
{¶ 21} “Prior to the beginning of the operation of the proposed
storage facility the applicant would be required to obtain approval
from the Miami County Planning Commission for the proposed parking
area and screening plan. The applicant may be required to upgrade
1 The parties disagree regarding whether the screening provision is contained in Article 19 of the Miami County Zoning Resolutions or instead in Article 18. But this disagreement does not affect our analysis of the second assignment of error because the text of the two screening requirements cited by the parties are identical. 8
his proposed facility based upon the Planning Commission’s
requirements.”
{¶ 22} The parties disagree whether a portion of the storage
facility and driveway leading to the storage facility faces a
residential district. The Board found that screening was required
when it granted the conditional use permit. By requiring
screening, the Board necessarily found that the storage facility
faces a residential district.
{¶ 23} The Board did not approve the screening plan that Johnson
proposed. The Board instead granted the conditional use permit
he requested, contingent on Johnson’s obtaining the approval of
the Planning Commission of a screening plan. That is consistent
with the terms of the Zoning Resolution that prohibit commencement
of the permitted use until a screening plan has been approved by
the Planning Commission. On this record, it is unclear whether
the Planning Commission has approved a screening which the Board
required. The error Johnson assigns is therefore premature. The
second assignment of error is overruled.
{¶ 24} Having overruled the error assigned, we will affirm the
judgment of the court of common pleas from which this appeal was
taken. 9
DONOVAN, J. and HALL, J. concur.
Copies mailed to:
Anthony R. Day, Esq. Mark W. Altier, Esq. Hon. Robert J. Lindeman