[Cite as Kasper Invest. Properties, L.L.C. v. Put-in-Bay Twp. Bd. of Zoning Appeals, 2015-Ohio-4628.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY
Kasper Investment Properties, LLC Court of Appeals No. OT-14-037
Appellant Trial Court No. 12CV213
v.
Put-in-Bay Township Board of DECISION AND JUDGMENT Zoning Appeals, et al.
Appellee Decided: November 6, 2015
*****
John A. Coppeler, for appellant.
Philip J. Truax and Douglas J. Swearingen, Jr., for appellee, Put-in-Bay Township Board of Zoning Appeals, et al.
Terrence L. Seeberger, for appellee, Harold M. Schwarz, III.
JENSEN, J. I. Introduction
{¶ 1} This administrative appeal arises from a decision by appellee, the Put-in-Bay
Township Board of Zoning Appeals (“BZA”), which denied a conditional use permit to
appellant, Kasper Investment Properties, L.L.C., for the occasional rental of its home.
Bryan Kasper and his father, Gerald Kasper, each own 50% of Kasper Investment
Properties, L.L.C.
{¶ 2} Because we conclude that the Ottawa County Court of Common Pleas did
not err in finding that the BZA’s decision was supported with a preponderance of
reliable, probative and substantial evidence, we affirm.
II. Facts and Procedural History
{¶ 3} This case concerns appellant’s application for a conditional use permit for
the occasional renting of a residence, located at 1191 Ashburn Avenue, Put-in-Bay, Ohio.
The residence, known as “the shiphouse,” is literally, the bow and wheelhouse portion of
a freighter, that once sailed the Great Lakes. In 1986, it was placed on a lakeside plot
overlooking Lake Erie. Appellant purchased the property in 1999.
{¶ 4} The shiphouse is located in an “R1” residential district, which prohibits
commercial use of the property. Property owners seeking to rent their homes in an R1
district must first obtain a conditional use permit.
{¶ 5} The sole means of ingress and egress to appellant’s property is by way of an
easement. The easement is a strip of land that connects appellant’s property to a private
2. drive. The easement was granted in 1992 by Harold Swartz to Frank and Lydia Sullivan,
who owned the shiphouse prior to appellant. The terms of the easement require the
grantee, and its successors, to maintain it. Since purchasing the shiphouse, appellant
paved the easement and erected a chain link fence, separating the easement from from the
rest of Swartz’ property.
{¶ 6} In 2009 or 2010, Bryan Kasper began renting the shiphouse without a
permit. When advised that a permit was required, Kasper submitted an application, and
a hearing on that issue was held before the BZA on July 15, 2010.
{¶ 7} The BZA’s Resolution and Findings of Fact
{¶ 8} Nearly two years later, on March 21, 2012, the BZA issued findings of fact,
denying the permit. An earlier, undated version was prepared by the BZA but never
adopted. It was also the subject of an appeal by appellant. (Ottawa Co. Case No. 11-CV-
163F.) The two appeals were consolidated by the lower court, and both findings of fact
are part of the record.
{¶ 9} In the official finding of fact, dated March 21, 2012, the BZA found that
appellant failed to satisfy nine of the ten prerequisite elements to justify granting a
conditional use permit.
{¶ 10} The resolution pertaining to conditional use permits is set forth below in
the left column. The BZA’s findings of fact in this case is set forth on the right:
3. Section 13(IV)(E)(2) of the Put-In- The BZA’s March 21, 2012 Findings of Bay Township Zoning Resolution Fact as to Appellant’s Application for a provides that “approval of a Conditional Use Permit: conditional use may be granted if the following [10] conditions are met * * * .”
1. The location, size and character “The proposed use of the property would will be in harmony with the not be in harmony with the appropriate and appropriate and orderly development orderly development, and use of the of the surrounding neighborhood surrounding neighborhood, and the and applicable regulations of the applicable regulations of the zoning District Zoning District in which it is to be as its previous use for this purpose, located. undertaken without appropriate permit, has caused a nuisance to the surrounding neighborhood.” (Emphasis added.)
2. The proposed development is in Access to [appellant’s] property requires accord with the overall development crossing an easement over neighboring plans of the area. properties which is objectionable by the neighboring property owners. Given the unique ingress and egress issues associated with the [appellant’s] property, the proposed use would not be in accordance with the overall development plans of the area with specific reference to a continued history of this Board not granting conditional use permits that requires the use of an easement granted between particular property owners for such use.
3. The proposed development will The proposed use will not be in keeping be in keeping with the existing land with the existing land use, character and use character and physical physical development potential of the area development potential of the area. as no renting is currently allowed on said property, and thus such use is divergent from the existing land use and character. * **
4. 4. The necessity or desirability of Appellant “failed to prove the necessity or the proposed use to the desirability of the proposed use to the neighborhood or community has neighborhood or community” in that the been proven. neighbors have “expressed a deep desire not to have this property rented.”
5. If permitted, the use will be of a If the use was permitted, “as has already nature that will make vehicular and been seen, there would be increased traffic pedestrian traffic no more hazardous to an R-1 Residential District which is not than is normal for the District the desire of [the BZA].” involved, taking into consideration vehicular turning movements in relation to routes of traffic flow, proximity and relationship to intersections, adequacy of sight distances, location and access of off- street parking provisions for pedestrian traffic, with particular attention to minimizing child- vehicle contacts in residential districts.
6. The use will be designed as to its The use “has created and will continue to location, size, intensity, site layout create, a nuisance in the forms of trespass, and periods of operation to eliminate noise and other common problems any possible nuisances emanating associated with the rental of residential therefrom which might be injurious properties to adjoining land owners, to the occupants or damaging to especially when such renters would be their property of any other nearby required to cross the property of adjoining permitted uses, whether by reason of land owners in order to access [appellant’s] dust, noise, fumes, vibration, smoke, property for such use.” or lights.
7. The use will be such that the “[L]and use by renters has had the effect of proposed location and height of interfering with the use of adjacent land as buildings or structures and the stated [by the neighbors] who have already location, nature and height of walls, had issues with renters of the [appellant’s] fences and landscaping will not property.” interfere with or discourage the appropriate development and use of adjacent land and building or unreasonably affect their value.
5. 8. The use will relate harmoniously The proposed use “will not relate with the physical and economic harmoniously with the physical and aspects of the adjacent land uses economical aspects of the adjacent land regarding prevailing shopping uses * * * as this residential property would habits, convenience of access by require access over an easement which has prospective patrons, continuity of already resulted in disharmony in the development, and need for particular affected area.” services and facilities in specific areas of the Township.
9. The use is so designed, located “[R]ental of [appellant’s] property has and proposed to be operated that the already caused a nuisance, increased traffic public health, safety and welfare flow, danger and other problems associated will be protected. therewith to the adjoining land owners.”
10. The use will not cause “The Board further finds that [appellant’s] substantial injury to the value of proposed use will have no substantial effect other property in the neighborhood to the value of other property in the in which it is to be located. neighborhood in which it is located.”
{¶ 11} The BZA also noted that “it does not have a history of granting conditional
use permits when easements are involved, and that such an effect greatly bears upon the
decision of this Board.” It added that when appellant rented the property, the police
were called due to a noise complaint and that “there has been increased trash and
resulting trespasses onto adjoining neighbors [sic] properties which further weighs
against granting such conditional use permit in this instance.”
{¶ 12} Appellant appealed to the court of common pleas on April 19, 2012, and a
hearing was held before a magistrate. Appellant’s neighbor, Harold M. Schwartz III,
intervened in the case and testified at the hearing.
6. IV. The Magistrate’s Decision and Adoption thereof by the Common Pleas Court
{¶ 13} Following a two day hearing, the magistrate affirmed the BZA’s denial of
the permit. Appellant timely objected to the decision. By judgment entry dated
September 10, 2014, the common pleas court found, “[u]pon careful and independent
examination and analysis of the Magistrate’s Decision, [the BZA’s decision] * * * was
supported by a preponderance of substantial, reliable and probative evidence.”
Accordingly, it adopted the magistrate’s decision.
{¶ 14} Appellant appealed to this court on October 9, 2014, raising two
assignments of error:
V. Assignments of Error
A. The Common Pleas Court abused its discretion in overruling
objections to the Magistrate’s Decision affirming the decision of the Put-in-
Bay Township Board of Zoning Appeals to deny appellant’s application for
a conditional use permit and in affirming the decision of the BZA.
B. The Common Pleas Court erred as a matter of law in affirming
the decision of the Board of Zoning Appeals which improperly based its
decision to deny appellant’s application for a conditional use permit on
matters beyond the scope of those specifically set forth in the zoning
resolution.
7. VI. Standard of Review
A. Administrative Appeals
{¶ 15} R.C. Chapter 2506 governs appeals to common pleas courts from final
orders of administrative agencies, including municipal boards of zoning appeals. R.C.
2506.04 governs the standard of review to be applied by courts of common pleas. It
provides that “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.”
{¶ 16} A judgment by a common pleas court may be appealed by any party to the
court of appeals “on questions of law.” R.C. 2506.04.
{¶ 17} In 2014, the Ohio Supreme Court revisited the standard of review applied
in cases involving administrative appeals. Cleveland Clinic Found. v. Cleveland Bd. of
Zoning Appeals, 141 Ohio St. 3d 318, 2014-Ohio-4809, 23 N.E.3d 1161. In that case, the
court reasserted the principle that the standard of review applied by courts of common
pleas is very different than courts of appeals and that the standard is “designed to strongly
favor affirmance” by the latter. Id. at ¶ 30. It explained,
Thus, R.C. Chapter 2506 confers on the common pleas courts the
power to examine the whole record, make factual and legal determinations,
and reverse the board's decision if it is not supported by a preponderance of
substantial, reliable, and probative evidence. Although a hearing before a
8. common pleas court pursuant to R.C. 2506.01 is not a de novo review, “it
often in fact resembles a de novo proceeding.” Cincinnati Bell v. Glendale,
42 Ohio St.2d 368, 370, 328 N.E.2d 808 (1975).
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 lower court's decision. * * * The courts of appeals
may review the judgments of the common pleas courts only on questions of
law; they do not have the same power to weigh the evidence. (Citations
omitted.) Cleveland Clinic Found. at ¶ 24-25.
B. Adoption of a Magistrate’s Decision.
{¶ 18} Because this case involved the lower court’s adoption of a
magistrate’s decision, pursuant to Civ.R. 53, we must also discuss the appropriate
standard of review under that rule.
{¶ 19} Civ.R. 53(D)(4)(d) provides that “[i]f one or more objections to a
magistrate's decision are timely filed, the [common pleas] court shall rule on those
objections. In ruling on objections, the court shall undertake an independent review as to
the objected matters to ascertain that the magistrate has properly determined the factual
issues and appropriately applied the law.”
{¶ 20} A party alleging error by the lower court under Civ.R. 53 has an affirmative
duty to demonstrate that the trial court failed to conduct an independent review of the
9. magistrate's findings. In re Taylor G., 6th Dist Lucas No. 04CA15, 2006-Ohio-1992, ¶
20-21, citing Mahlerwein v. Mahlerwein, 160 Ohio App.3d 564, 2005–Ohio–1835, 828
N.E.2d 153, ¶ 47 (4th Dist.). An affirmative duty requires more than a mere inference, it
requires appellant to provide the reviewing court with facts to rebut our general
presumption. In re. Taylor G. at ¶ 21.
VII. Analysis
{¶ 21} In its first assignment of error, appellant complains, “the Magistrate’s
Decision simply referred to the BZA findings of ‘increased traffic, noise and trash.’” Not
so. The magistrate specifically found that evidence of increased traffic, noise and trash
was presented “both at the BZA hearing and the court hearing.” (Emphasis added.)
{¶ 22} Indeed, the magistrate presided over a two day hearing during which two of
appellant’s neighbors testified. One neighbor complained of “seriously overflowing
trash,” loud and obscene language, and trespassing. The neighbor testified that the
incidents occurred during the time that appellant was renting the shiphouse (without a
permit) and that he believed the renters were responsible for the incidents.
{¶ 23} From another neighbor, the magistrate heard testimony of a group of “at
least a dozen, possibly more, 20-something, who were apparently renting.” In other
words, evidence was presented to the magistrate of increased traffic, noise and trash as a
result of appellant’s rental of the premises.
10. {¶ 24} Appellant counters that the evidence - that renters were responsible for the
alleged incidents – was insufficient. Appellant further stresses that Bryan Kramer
purchased two large containers to resolve the trash issue.
{¶ 25} Appellant is asking this court to weigh the evidence. Our role, however, is
limited to reviewing the lower court decision on questions of law, not to weigh the
evidence. That we might have arrived at a different conclusion than the BZA or the trial
court “is immaterial.” (Citations omitted.) Henley v. Youngstown Bd. of Zoning Appeals,
90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000). Absent legal error, this court must not
disturb the judgment of the trial court.
{¶ 26} Second, appellant argues that the BZA’s earlier, unofficial findings of fact
“erroneously emphasized” that granting the permit on a private easement would create an
added financial burden to the adjacent property owners. Appellant states that it was
contractually required to maintain the easement and therefore the neighbors would not
bear any increased expenses.
{¶ 27} We find this argument irrelevant. Appellant concedes that the proposed
findings were never adopted. Further, that particular proposed finding, regarding “added
financial burden,” was ultimately removed from the official findings of fact. A fair
reading of its removal is that the BZA agreed with appellant, i.e. that granting a
conditional use permit would not, in fact, create a financial burden for the neighbors.
{¶ 28} Finally, appellant claims that the lower court ignored the fact that the
property to the east of appellant’s, the “Arth property,” was used “for weekly rentals for
11. the whole summer for more than five years.” Bryan Kramer testified that he assumes the
owners were granted a conditional use permit to do so, but no other evidence was
presented to support or negate that issue.
{¶ 29} The record does establish, however, that the two properties are different in
key respects. For example, whereas the Arth property is a 1500 square foot home, the
shiphouse is 7000 square feet, allowing itself to be rented by many more people at one
time. Moreover, the Arth property is accessible from a public paved road, whereas the
shiphouse is accessible only from a private road, and then only via an easement. Finally,
unlike in the instant case, there was no evidence put forth that rental of the Arth property
generated complaints of traffic, noise or trash.
{¶ 30} Because the properties are dissimilar, appellee was not “bound by
precedent to grant the conditional use in this case.” Cmty. Concerned Citizens, Inc. v.
Union Twp. Bd. of Zoning Appeals, 66 Ohio St.3d 452, 456-57, 613 N.E.2d 580 (1993)
(BZA’s grant of conditional use permit to one property owner and denial to another not
unreasonable absent evidence that “the subject property and the area surrounding it are
similar in any material way to the circumstances under which conditional uses have been
previously granted.”). Therefore, under these facts, it was not unreasonable, as a matter
of law, for the BZA to deny appellant a conditional use permit, even assuming that it
granted one to the owners of the Arth property.
12. {¶ 31} In sum, we cannot say that the lower court erred in concluding that the
BZA’s findings were supported by a preponderance of reliable, probative, and substantial
evidence. Appellant's first assignment of error is not well-taken.
{¶ 32} In its second assignment of error, appellant argues that the BZA “went well
beyond consideration of the enumerated factors which the township’s zoning resolution
requires it to analyze.”
{¶ 33} First, appellant complains that the BZA impermissibly added the words
“and use” after “orderly development” to the first criteria set forth in the resolution.
Appellant fails, however, to present any argument in support of its legal conclusion, as
required by App.R. 16(A)(7) (“The appellant shall include in its brief * * * [a]n
argument containing the contentions of the appellant with respect to each assignment of
error presented for review and the reasons in support of the contentions, with citations to
the authorities, statutes, and parts of the record on which appellant relies.) Accordingly,
we decline to address this argument.
{¶ 34} Next, appellant argues that it was error for the BZA to ignore the rental of
the Arth property which we addressed in appellant’s first assignment of error.
{¶ 35} Finally, appellant argues that the BZA placed improper emphasis on the
easement. Appellant argues that the “there is nothing in the zoning resolution which
establishes as a standard that a conditional use permit must be denied when an easement
for access to the applicant’s property is involved.”
13. {¶ 36} The weight accorded to the easement by the BZA is irrelevant. As
discussed, the lower court’s hearing on this matter is akin to a de novo proceeding. In
other words, the court was not obliged to accept the impact, if any, of the easement viz a
vis the application. Indeed, the magistrate accorded the easement no weight. Instead, the
decision was based entirely on evidence of “increased traffic, noise and trash,” which we
have already sustained.
{¶ 37} For the record, however, we note that appellant points to no authority for
the proposition that it would be improper to consider the easement. Although the
presence (or absence) of an easement may not be a specific factor, we think the language
of the eighth criterion, for example, is broad enough to include consideration of the
easement. Again, that factor requires that the proposed use “will relate harmoniously
with the physical * * * aspects of the adjacent land uses regarding * * * continuity of
development * * *.” We see no error in the BZA’s conclusion that the proposed use “will
not relate harmoniously with the physical and economical aspects of the adjacent land
uses * * * as this residential property would require access over an easement which has
already resulted in disharmony in the affected area.”
{¶ 38} Finally, we note that this court has previously sustained the BZA’s denial
of a permit with regard to the shiphouse under similar, but not identical circumstances.
Sullivan v. Put-in-Bay Township Zoning Board of Appeals, 6th Dist. Ottawa No. OT-94-
048, 1995 WL 413155 (Jul. 14, 1995). At issue in Sullivan was the previous owners’
14. application for a conditional use permit to operate the property as a bed and breakfast.
That case required interpretation of the same ten criteria, plus an additional regulation
specific to operating a bed and breakfast. In sustaining the denial of the permit, we
considered the fact that access to the property necessitated traversing upon an easement.
The whole record reveals that all of the adjoining property * * * is
residential, that the only access to appellee's property is by means of an
easement over private property, that numerous persons opposed the
issuance of the conditional use permit and that when appellee operated a
bed and breakfast without obtaining a permit the noise, dust and traffic
increased. Therefore, the Board's decision was supported by substantial,
reliable and probative evidence. Accordingly, the common pleas court was
required to affirm that decision and erred, as a matter of law, in substituting
its judgment for that of the Board. (Footnote omitted.) Id. at *4.
{¶ 39} For all of the above reasons, appellant’s second assignment of error is not
well-taken.
{¶ 40} Finally, we find that appellant has put forth no evidence, and does not
argue, that the trial court erred under Civ.R. 53 in adopting the magistrate’s decision.
“As an appellate court, we generally presume the regularity in the proceedings below,
and thus, we presume that the trial court properly conducted an independent review of the
magistrate's findings.” In re Taylor G., 6th Dist Lucas No. 04CA15, 2006-Ohio-1992, ¶
15. 20-21. Absent evidence to affirmatively demonstrate that the trial court failed to conduct
an independent review of the magistrate's findings, we also sustain the judgment under
Civ.R. 53.
VIII. Conclusion
{¶ 41} For the foregoing reasons, the judgment of the Ottawa County Court of
Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Stephen A. Yarbrough, P.J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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