[Cite as Kinney v. Newtown Bd. of Zoning Appeals, 2021-Ohio-4217.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
MARJORIE A. KINNEY, TRUSTEE, : APPEAL NO. C-210180 TRIAL NO. A-1806659 and :
CINCINNATI SOCCER CLUB, LTD., : O P I N I O N. Plaintiffs-Appellees, :
vs. :
BOARD OF ZONING APPEALS, : VILLAGE OF NEWTOWN, OHIO,
Defendant-Appellant. :
Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 3, 2021
Wood & Lamping LLP and Kathleen F. Ryan, for Plaintiffs-Appellees,
Strauss Troy, LPA, and Emily Supinger, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Defendant-appellant Board of Zoning Appeals, Village of Newtown,
Ohio, (“BZA”) appeals the judgment of the trial court reversing the BZA’s decision
denying a conditional-use permit requested by plaintiffs-appellees Marjorie A.
Kinney, trustee, and Cincinnati Soccer Club (“Cincy SC”). For the reasons that
follow, we hold that the trial court did not abuse its discretion in overturning the
BZA’s decision, and we affirm the court’s judgment.
Background
{¶2} Cincy SC is a nonprofit corporation that runs a youth soccer club. In
2015, Cincy SC acquired permission from a landowner in the Village of Newtown
(“Newtown”) to use a six-acre, grassy, unimproved area abutting Jefferson Street to
the north and St. John Fisher Church to the south for weeknight soccer training. In
2016, the Kinney family purchased the property upon which Cincy SC had been
practicing with the intent that Cincy SC remain as a tenant. Problems arose with
Cincy SC’s use of the property when the church rescinded its permission for Cincy SC
members to park in its lot. Cincy SC members then began using Jefferson Street and
parking in the grass, but Jefferson Street could not adequately support the amount of
cars. In 2018, the Kinney family purchased another parcel of land abutting the six
acres it already owned to the west and Church Street to the east in order to obtain
road access to the larger parcel.
{¶3} The appellees developed a plan for the now two parcels of land (the
“property”), which would include an access road with one ingress lane and two egress
lanes, a 50-stall parking lot, a roundabout with a turnaround lane and a drop-off
lane, and a small shelter area with restrooms, storage, and picnic tables. The
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appellees sought approval for their plan from the Newtown Planning Commission by
way of a conditional-use permit.
{¶4} The property is located in a single-family residential district, or “R-
SF1” zoning district. Under Section 14.3 of the Newtown Zoning Code (“NZC”),
“clubs” are a conditionally-permitted use in a R-SF1 zoning district. A “club” is
defined under the NZC as “[a] building or portion thereof or premises owned or
operated by a corporation, association, or group of persons for a social, educational,
recreational, charitable, political, patriotic or athletic purpose, but not primarily for
profit or to render a service which is customarily carried on as a business.” NZC
2.028. The parties agree that Cincy SC is a “club” under the NZC.
{¶5} Section 36.3 of the NZC governs conditional-use permits. NZC
36.3(A)(2) provides the planning commission must find that all requirements for the
conditional use have been met prior to granting a conditional-use permit. NZC
36.3(C) provides the list of requirements for granting a conditional-use permit, and
those relevant provisions are as follows:
The Commission shall not grant a Conditional Use unless it shall, in
each specific case, make specific written findings of fact directly based
upon the particular evidence presented to it, that support conclusions
that:
***
3. Adequate access roads or entrance and exit drives will be provided
and will be so designed as to prevent traffic hazards and to minimize
traffic conflicts and congestion to public streets and alleys.
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6. The location and size of the Conditional Use, the nature and
intensity of the operation involved or conducted in connection with it,
the size of the site in relation to it, and the location of the site with
respect to streets given access to it, shall be in harmony with the
appropriate and orderly development of the district in which it is
located.
8. Evidence that the Conditional Use desired will not adversely affect
the public health, safety and morals.
{¶6} Prior to the appellees’ hearing before Newtown’s planning commission
regarding their permit application, the planning commission requested that
appellees provide a traffic study. Although the appellees had just two weeks’ notice
to obtain the study, appellees provided a traffic study completed by Jamal Adhami.
Ultimately, Adhami determined that the additional traffic as a result of the proposed
soccer field would not reach an unacceptable level.
{¶7} In response to Adhami’s traffic study, Newtown’s engineer provided a
letter to the planning commission. The engineer determined that vegetation along
Church Street could create a safety concern because it would impact the sight
distance of a driver turning out of the proposed access drive. The engineer also
determined that the proposed access drive would create a safety concern in relation
to Edith Street, which is located across Church Street and approximately 86 feet to
the south of the proposed access drive.
{¶8} The planning commission denied appellees’ request for a conditional-
use permit, and the appellees appealed to the BZA.
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{¶9} The BZA heard appellees’ matter de novo. As a result, appellees
engaged a second traffic engineer, Jack Pflum, to review their proposal and provide a
more in-depth study. Pflum performed a “capacity analysis” to determine the peak
traffic hour for Church Street. According to the data collected, Pflum determined
that the peak traffic hour on Church Street was from 5 p.m. to 6 p.m. Based on the
assumption that 50 children would be practicing during that peak hour, Pflum then
assumed that 100 cars would potentially come and go during the peak hour. Using
highway capacity software, and assuming 100 trips, Pflum determined that the “level
of service” for traffic flow on Church Street would be, at worst, an acceptable “C”
level on a scale of A to F.
{¶10} In response to Newtown’s engineer’s concerns, Pflum directed a
surveyor and an engineer to the property to measure the sight distance at the
proposed location of the access drive. Based on the sight-distance diagram drawn by
the engineer, the sight distance was within acceptable levels, except as to a single
hedge obstructing the vision path. Sarah Kinney Donohue, a member of the Kinney
family who owns the property, testified that she had already confirmed with the
neighboring property owner and his tenant that the hedge could be removed. Pflum
also collected data regarding how many vehicles entered and exited nearby Edith
Street. Based on the turn-count data, Pflum concluded that the proximity of Edith
Street to the proposed driveway would not be a traffic concern.
{¶11} The BZA held a public hearing on appellees’ conditional-use permit.
Several Newtown residents testified against the proposed conditional use. In
particular, neighboring property owner Kevin Sigmund presented a multi-page
document and photographs to the BZA regarding traffic congestion on Church Street.
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Sigmund lives on Church Street across from the proposed access drive, and he
testified that he has trouble backing out of his driveway because of the traffic and
poor sight conditions. Other residents echoed Sigmund’s concerns regarding traffic
congestion on Church Street. Police Chief Tom Synan also testified that his
department responded to calls for people driving in yards and automobile accidents
since Cincy SC started operating on the proposed site.
{¶12} The BZA voted to deny the conditional use, and upheld the planning
commission’s finding that the proposed use fails to meet NZC 36.3(C)(3), (6), and
(8).
{¶13} Appellees appealed to the Hamilton County Court of Common Pleas.
The matter was referred to a magistrate. The magistrate determined that the BZA’s
decision was unsupported by the preponderance of substantial, reliable, and
probative evidence. The magistrate found that the testimony in the case “was not of
equal weight, with much of the opposition [to the proposed use] being speculative
opinions, not facts, and unsupported by factual, objective, or expert testimony.” The
magistrate found that only the appellees had presented expert testimony from a
traffic engineer. The magistrate also determined that the testimony presented at the
BZA hearing by the opponents of the proposed use was speculative and entitled to
little weight. The BZA filed objections to the magistrate’s decision. The trial court
overruled the BZA’s objections, adopted the decision of the magistrate, and ordered
the BZA to grant appellees’ conditional-use permit.
{¶14} This appeal by the BZA ensued.
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Law and Analysis
{¶15} R.C. 2506.04 governs appeals from administrative agencies, such as
boards of zoning appeals. Under R.C. 2506.04, a trial court reviews an
administrative appeal to determine whether the agency’s decision is
“unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the
preponderance of substantial, reliable, and probative evidence on the whole record.”
R.C. 2506.04 gives the common-pleas court “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.”
Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals, 141 Ohio St.3d 318,
2014-Ohio-4809, 23 N.E.3d 1161, ¶ 24.
{¶16} By contrast, R.C. 2506.04 limits an appellate court’s review of a trial
court’s judgment in an administrative appeal to “ ‘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.,
quoting Kisil v. Sandusky, 12 Ohio St.3d 30, 465 N.E.2d 848 (1984). The standard of
review applied by the appellate court in an R.C. 2506.04 administrative appeal
“ ‘strongly favor[s] affirmance’ ” of the trial court, and the appellate court may only
reverse the trial court if the trial court “ ‘errs in its application or interpretation of the
law or its decision is unsupported by a preponderance of the evidence as a matter of
law.’ ” Village of Terrace Park v. Anderson Twp. Bd. of Zoning Appeals, 2015-Ohio-
4602, 48 N.E.3d 143, ¶ 14 (1st Dist.), quoting Cleveland Clinic Found. at ¶ 30.
Therefore, “[w]ith respect to the weight of the evidence, this court is limited to
determining only whether the common pleas court abused its discretion.” Ware v.
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Fairfax Bd. of Zoning Appeals, 164 Ohio App.3d 772, 2005-Ohio-6516, 844 N.E.2d
357, ¶ 4 (1st Dist.), citing Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio
St.3d 142, 148, 735 N.E.2d 433 (2000).
{¶17} In its sole assignment of error, the BZA argues that the trial court
erred in determining that its decision was unsupported by the preponderance of
substantial, reliable, and probative evidence on the record. The BZA argues that the
trial court erred in overturning its decision that the proposed soccer field would
increase traffic and create traffic-safety hazards, would not be compatible with the
surrounding neighborhood, and would otherwise adversely affect public safety. We
review each argument in turn.
Traffic Hazards and Congestion
{¶18} The BZA determined that the appellees’ proposed soccer field did not
meet NZC 36.3(C)(3), which requires “[a]dequate access roads or entrance and exit
drives” that will “prevent traffic hazards and to minimize traffic conflicts and
congestion to public streets and alleys.” The BZA found that the proposed field
would exacerbate traffic on Church Street by adding 200 additional car trips per
evening.
{¶19} With regard to the increase in traffic, appellees’ traffic engineer, Pflum,
assumed an additional 100 car trips would be added to Church Street at peak hour,
from 5 p.m. to 6 p.m., as a result of the proposed soccer field. Even with these
additional trips, Pflum concluded that the “level of service” traffic volume for Church
Street would be, at worst, an acceptable “C” level. Testimony from Pflum and the
owner of Cincy SC indicated that a number of children would carpool to practice,
decreasing the total number of car trips.
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{¶20} Neighboring property owner Sigmund submitted an exhibit to the BZA
that criticized Pflum’s traffic analysis. Specifically, Sigmund argued that 100 car
trips was not an accurate data measurement, because some cars would drop off
children at soccer practice, leave, and then come back to pick them up.
{¶21} Sigmund, and ultimately the BZA, misconstrued Pflum’s analysis.
Pflum’s data assumed 50 cars in and 50 cars out during the peak traffic hour for
Church Street, because this hour would present the heaviest traffic volume.
According to Pflum, the traffic expert, traffic volume is measured during the peak
hour, and not an entire evening. The record evidence shows that Cincy SC’s soccer
practices last over an hour, so a maximum of 100 car trips to and from the field
during the 5 p.m. to 6 p.m. hour is an accurate data measurement. All other car trips
to and from the field occur outside of the peak hour, and thus would not present a
traffic concern.
{¶22} Other residents testified that the traffic congestion on Church Street
had become a problem in recent years. Some residents on Edith Street and Jefferson
Street, which abut Church Street across from the property, testified that drivers use
these side streets as a “U-turn” to avoid the congestion on Church Street. According
to Pflum, however, the congestion on Church Street had increased for reasons
unrelated to Cincy SC. Chief Synan testified that traffic on Church Street is a
problem throughout the day, meaning not just during the times cars would be
entering or leaving the soccer field in the evenings.
{¶23} The BZA also concluded that the appellees’ proposed soccer field
violated NZC 36.3(C)(3) because the proposed access drive to the property from
Church Street would create a safety hazard for residents exiting from their driveways
9 OHIO FIRST DISTRICT COURT OF APPEALS
on Church Street. The BZA’s conclusion again appears to rely on testimony from
neighboring property owner Sigmund, as well as other neighboring property owners.
Sigmund testified that he has difficulty backing out of his driveway onto Church
Street, and that the proposed access drive would create a “blind spot.” As testified to
by Pflum, however, Sigmund would have difficulty backing out of his driveway onto
Church Street regardless of the existence of the proposed access driveway, because
Church Street is a busy street, and the design of Sigmund’s driveway created the
“blind spot,” not the proposed access drive.
{¶24} Finally, the BZA concluded that the appellees’ soccer-field proposal
violated NZC 36.3(C)(3) because the proposed access drive would be offset from
Edith Street and create a safety hazard. The BZA’s conclusion relies on a report
submitted to the planning commission by Newtown’s engineer that provides the
ideal spacing between the proposed access drive and Edith Street would be 140 feet
to 175 feet. Newtown’s engineer assumed a calculated distance of 100 feet between
the proposed access drive and Edith Street. According to Newtown’s engineer, this
presents a traffic problem because only three or four cars could fit between the
proposed drive and Edith Street, potentially blocking Edith Street. In its appellate
brief, the BZA argues that Sigmund had calculated the distance between the
proposed access drive and Edith Street as 75 feet, not 86 feet as testified to by Pflum,
or 100 feet as provided in the report of Newtown’s engineer.
{¶25} Sigmund’s testimony regarding road measurements did not constitute
an expert opinion, and even though the rules of evidence are relaxed in an
administrative proceeding, the testimony of a lay witness should not be taken as that
of an expert. Shelly Materials, Inc. v. Daniels, 2d Dist. Clark No. 2002-CA-13, 2003-
10 OHIO FIRST DISTRICT COURT OF APPEALS
Ohio-51, ¶ 32. Moreover, Pflum acknowledged the concern as to potential blocking
of Edith Street by northbound vehicles turning left into the facility, and Pflum
conceded that the proposed access drive should ideally line up with Edith Street.
However, property-boundary restrictions prevented ideal spacing of the proposed
access drive and Edith Street, and according to Pflum’s car-count data, only four cars
turned left during the peak traffic hour, so the offset did not present a traffic concern
in his expert opinion.
{¶26} In reviewing the BZA’s decision, the trial court determined that the
BZA’s conclusion that the proposed soccer field would create traffic hazards and
conflicts was unsupported by the preponderance of substantial, reliable, and
probative evidence. This court does not have the same power to weigh the evidence
from the BZA hearing as does the trial court, and we cannot say that the trial court
abused its discretion in this regard. See Cleveland Clinic Found., 141 Ohio St.3d 318,
2014-Ohio-4809, 23 N.E.3d 1161, at ¶ 24.
Compatibility with the Surrounding Area
{¶27} The BZA also determined that the proposed soccer field violated NZC
36.3(C)(6), which requires that “[t]he location and size of the Conditional Use, the
nature and intensity of the operation involved or conducted in connection with it, the
size of the site in relation to it, and the location of the site with respect to streets
given access to it, shall be in harmony with the appropriate and orderly development
of the district in which it is located.”
{¶28} The BZA specifically found that the proposed soccer field would be
“disruptive” to the neighborhood, and would not be as “mutually beneficial” as a use
permitted as of right. Although it not clear what the BZA meant in labeling the
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proposed soccer field as “disruptive,” in its appellate brief, the BZA points to
testimony of residents who stated at the hearing that they could hear noise coming
from the soccer field, like car-horns blowing, people cheering, and kids yelling. The
BZA also points to Chief Synan’s testimony that his department responded to calls
regarding car accidents and “people driving in yards” in connection with the soccer
club. The residents’ testimony regarding the noise and actions attributed to the
soccer-club participants did not indicate that the level of interference with the
community was in any way pervasive such that it would rise to the level of being
“disruptive” to the surrounding area. The record indicates that Cincy SC uses the
field for two-and-a-half hours a day during the early evening, Monday through
Friday, April through October. Otherwise, the record shows that the field remains
unoccupied.
{¶29} It is also unclear why the BZA found that the proposed soccer field
would not be as “mutually beneficial” as a permitted use. The BZA argues in its
appellate brief that Cincy SC is a private club with a limited membership, and so
Cincy SC’s proposed use of the property would not provide the same benefits to the
community as a religious or educational use. The BZA’s argument assumes that no
residents of Newtown belong to Cincy SC, even though no evidence was presented
regarding the residency of Cincy SC’s membership. Moreover, permitted uses in the
R-SF1 district include not only residential uses, religious places of worship, and
educational institutions, but also open space and parks. See NZC 14.1. Appellees’
proposed soccer field aligns with these permitted uses in that it would include mostly
an open, grassy field, and be used by children for recreational purposes. The field
12 OHIO FIRST DISTRICT COURT OF APPEALS
would also remain completely unoccupied the majority of the day and also for six
months out of the year.
{¶30} The BZA also determined that the proposed soccer field violated NZC
36.3(C)(6), because no residents spoke in favor of the field. The BZA’s finding is
directly contradicted by the fact that Kinney Donahue who ultimately owns the
property is obviously in favor of the proposed use. Kinney Donahue also testified
that she was able to secure the second piece of property from the adjacent property
owner precisely because of the proposed use. Kinney Donahue testified that she
would rather have the property remain mostly an open field rather than be turned
into a residential development. Moreover, the fact that residents “spoke out” against
the use is not a proper basis for denial of a conditional-use permit. Hindu Soc. of
Greater Cincinnati v. Union Twp. Bd. of Zoning Appeals, 2019-Ohio-2494, 139
N.E.3d 457, ¶ 28 (12th Dist.) (public opinion is not a proper basis upon which to
deny a conditional-use permit); Savon Ents., LLC v. Bd. of Trustees of Boardman
Twp., 2016-Ohio-735, 60 N.E.3d 534 (7th Dist.), citing Essroc Materials, Inc. v.
Poland Twp. Bd. of Zoning Appeals, 117 Ohio App.3d 456, 462, 690 N.E.2d 964 (7th
Dist.1997) (“If [a board of zoning appeals] denies the conditional use merely because
the residents did not want it, then ‘the decision amounts to a rezoning without
legislative action.’ ”).
{¶31} The trial court determined that the BZA’s decision denying appellees’
conditional-use permit because of incompatibility with the surrounding area was
unsupported by the preponderance of substantial, reliable, and probative evidence.
Again, this court does not have the authority to reweigh the evidence from the BZA
hearing, and we cannot say that the trial court abused its discretion in overruling the
13 OHIO FIRST DISTRICT COURT OF APPEALS
BZA’s decision. See Cleveland Clinic Found., 141 Ohio St.3d 318, 2014-Ohio-4809,
23 N.E.3d 1161, at ¶ 24.
“Public Health, Safety, and Morals”
{¶32} The BZA also determined that the proposed soccer field violated NZC
36.3(C)(8), which requires that the conditional use not adversely affect the “public
health, safety and morals.” The BZA’s reason for denial of appellees’ permit under
NZC 36.3(C)(8) simply reiterates its previous reasons for denial, including traffic
concerns and disruption to the surrounding area. Therefore, based on the analysis
above, we hold that the trial court did not abuse its discretion in reversing the BZA’s
denial of appellees’ conditional-use permit on the grounds that it violated public
safety.
Conclusion
{¶33} The trial court did not abuse its discretion in reversing the decision of
the BZA, and ordering the BZA to grant the appellees’ conditional-use permit. We
overrule the BZA’s assignment of error. We affirm the judgment of the trial court.
Judgment affirmed.
ZAYAS, P.J., and BOCK, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.