[Cite as Okey v. Alliance Planning Comm., 2019-Ohio-2390.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
DEBORAH A. OKEY, et al. JUDGES: Hon. W. Scott Gwin, P. J. Appellees Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2018 CA 00144 CITY OF ALLIANCE PLANNING COMMISSION
Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2017 CV 02505
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 14, 2019
APPEARANCES:
For Appellees For Appellant
STEVEN P. OKEY JENNIFER L. ARNOLD THE OKEY LAW FIRM LPA LAW DIRECTOR 337 Third Street, NW WILLIAM F. MORRIS Canton, Ohio 44702 ASSISTANT LAW DIRECTOR 470 East Market Street Alliance, Ohio 44601 Stark County, Case No. 2018 CA 00144 2
Wise, J.
{¶1} Appellant City of Alliance Planning Commission (“APC”) appeals the
decision of the Stark County Court of Common Pleas, which overturned the
commission’s administrative denial of a conditional use permit for a bed and breakfast
inn sought by Appellees Deborah Okey and Steven Okey. The relevant facts leading to
this appeal are as follows.
{¶2} Appellees are the owners and occupants of a 7,000 square-foot residence
located at 2700 Fairway Lane, Alliance, Ohio. The thirteen-acre property at issue, which
appellees purchased in 1995, is currently located in an “R-1” (single family residential)
zone in the extreme southeastern corner of Alliance, bordering the Alliance Country
Club. The wooded property sits at the terminus of the lane, which is narrower than a
typical Alliance street. The house itself, commonly known as the "Purcell Mansion," was
constructed in 1929, and is listed in the National Register of Historic Places by the U.S.
Department of the Interior. Appellees have been restoring the property over the past
twenty-four years. The house served as appellees’ marital residence during that time,
although their children are now grown and living on their own.
{¶3} On October 20, 2017, appellees submitted an application for review by the
APC concerning a conditional use of the Purcell Mansion as a bed and breakfast facility,
with the planned utilization of three guest units.
{¶4} On November 15, 2017, the APC held a hearing on said application for the
conditional use permit. As further detailed infra, at the conclusion of the hearing, the
commission voted 5-0 to deny appellees’ application. The decision was memorialized in
a letter to appellees from the zoning inspector dated December 13, 2017. Stark County, Case No. 2018 CA 00144 3
{¶5} On December 14, 2017, appellees filed an administrative notice of appeal
under R.C. 2506.01, et. seq. with the Stark County Court of Common Pleas (“trial court”).
{¶6} On June 4, 2018, the trial court set a hearing date and issued a ruling stating
that it would accept both the transcript of the administrative proceedings and additional
evidence as provided by the parties. See R.C 2506.03(A). Following the submission of
the parties' briefs, the trial court held its evidentiary hearing on June 12, 2018, at which
time it heard additional testimony and received additional exhibits.
{¶7} On August 24, 2018, the trial court issued a seventeen-page judgment entry
reversing the 2017 administrative decision, thus finding in favor of appellees as to their
request for a conditional use permit.1
{¶8} On September 19, 2018, Appellant APC filed a notice of appeal to this
Court. It herein raises the following two Assignments of Error:
{¶9} “I. COMPETENT CREDIBLE EVIDENCE EXISTS TO SUPPORT THE
DECISION OF THE PLANNING COMMISSION.
{¶10} II. THE COMMON PLEAS COURT ABUSED ITS DISCRETION AND
APPLIED THE AN [SIC] IMPROPER STANDARD FOR ITS REVIEW OF THE
APPLICATION FOR A CONDITIONAL USE.”
I.
{¶11} In its First Assignment of Error, Appellant APC challenges the trial court’s
decision, contending that “competent credible evidence” supported the administrative
decision to deny the conditional use permit sought by Appellees Okeys.
1 Appellant APC has failed to include or attach with its brief a copy of the judgment entry under appeal. See Loc.App.R. 9(A). We have nonetheless reviewed the original trial court judgment entry in the record. Stark County, Case No. 2018 CA 00144 4
Conditional Use / Zoning
{¶12} Generally, zoning regulations are in derogation of common law and must
be strictly construed and not extended by implication. See Ambrose v. Galena, 5th Dist.
Delaware No. 15 CAH 01 0011, 2015-Ohio-3157, ¶ 35, citing Lykins v. Dayton
Motorcycle Club (1972), 33 Ohio App.2d 269, 294 N.E.2d 227. “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.” Carrolls Corp. v. Willoughby Planning Comm., 11th Dist.
Lake No. 2005-L-112, 2006-Ohio-3209, 2006 WL 1725864, ¶ 18, quoting Gerzeny v.
Richfield Twp., 62 Ohio St.2d 339, 341, 405 N.E.2d 1034 (1980) (internal quotations
omitted). However, a conditional use is not the same as a permitted use. A conditional
use is a lesser use and is not a matter of right. See Groff-Knight v. Bd. of Zoning Appeals
(June 14, 2004), Delaware App. No. 03CAH08042, ¶ 18, citing Gillespie v. City of Stow
(1989), 65 Ohio App.3d 601, 584 N.E.2d 1280.
Trial Court's Standard of Review
{¶13} R.C. 2506.04 sets forth the applicable standard of review for a court of
common pleas in an administrative appeal. It provides as follows:
*** [T]he 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 Stark County, Case No. 2018 CA 00144 5
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.
{¶14} The Ohio Supreme Court further stated as follows in Henley v. Youngstown
Bd. of Zoning Appeals (2000), 90 Ohio St.3d 142, 147, 735 N.E.2d 433:
[W]e have 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 substantial, reliable, and probative evidence. See
Smith v. Granville Twp. Bd. of Trustees (1998), 81 Ohio St.3d 608, 612, 693
N.E.2d 219, * * * citing Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58
Ohio St.2d 202, 206–207, 12 O.O.3d 198, 389 N.E.2d 1113 ***.
{¶15} A determination that an agency decision is supported by reliable, probative,
and substantial evidence does not meet the standard; the decision must be supported
by a preponderance of such evidence. White v. Summit County, 9th Dist. Summit No.
21152, 2003-Ohio-1807, ¶ 10 (emphasis in original).
{¶16} As we mentioned in our recitation of the procedural facts supra, the trial
court in this instance invoked the use of an evidentiary hearing under R.C. 2506.03(A), Stark County, Case No. 2018 CA 00144 6
finding in part that “the majority of the statements provided at the Commission hearing
were not under oath” and that the APC had not filed any factual findings in support of its
2017 decision. See Judgment Entry, August 24, 2018, at 11. We note that
supplementation of evidence under R.C. 2506.03(A) “does not alter the common pleas
court's standard of review to affirm the administrative board's decision absent the court's
conclusion that it is deficient in one of the aspects enumerated in R.C. 2506.04.” Gibraltar
Mausoleum Corp. v. Toledo, 106 Ohio App.3d 80, 84, 665 N.E.2d 273 (6th Dist.1995).
Appellate Standard of Review
{¶17} 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, 12 OBR 26, 465 N.E.2d 848. “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 f.n.4. See, also, Health Management, Inc. v. Union Twp. Bd. of Zoning Appeals
(1997), 118 Ohio App.3d 281, 285, 692 N.E.2d 667. “It is incumbent on the trial court to
examine the evidence. Such is not the charge of the appellate court.” Lorain City School
Dist. Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 261, 533 N.E.2d
264.
{¶18} Ultimately, the standard of review for appellate courts in a 2506 zoning
appeal is whether the common pleas court abused its discretion in making its
determinations pursuant to R.C. 2506.04. See Weber v. Troy Twp. Bd. of Zoning
Appeals, 5th Dist. Delaware No. 07 CAH 04 0017, 2008–Ohio–1163, ¶ 13 (additional Stark County, Case No. 2018 CA 00144 7
citation omitted); Powers v. City of Rocky River Bd. of Zoning Appeals, 8th Dist.
Cuyahoga No. 70439, 1996 WL 648689. Thus, the standard of review for appellate
courts in this context is “designed to strongly favor affirmance.” Frazeysburg v. Stokes,
5th Dist. Muskingum No. CT2018-0022, 2018-Ohio-4153, ¶ 17, citing Cleveland Clinic
Foundation v. Cleveland Board of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809,
23 N.E.3d 1161. These standards permit reversal only when the common pleas 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. Cleveland Clinic Foundation, supra,
at ¶ 30.
Relevant Alliance Provisions
{¶19} It is undisputed that the Purcell Mansion is in an R-1 (single family
residential) district. An R-1 district is addressed in the Alliance Codified Ordinances as
follows:
The purpose of the R-1, Single Family Residential District is to
provide a range of choices of single family living environments, encouraging
the development and maintenance of suitable neighborhoods for families
and children, prohibiting uses of land that would adversely impact
residential neighborhoods, and discouraging uses that would generate
traffic on local streets in excess of normal traffic generated by the
neighborhood. The intent of the district is to provide for an environment of
predominantly single-family dwellings, along with other associated uses and
facilities that serve the residents in the district, including but not limited to Stark County, Case No. 2018 CA 00144 8
educational, cultural, and religious institutions, parks and playgrounds, and
municipal facilities.
The R-1 District also recognizes those portions of the Mount Union
College (College) campus that are located in the R-1 District and provides
the opportunity for the College to continue to operate and grow within the
context of this Ordinance in consideration of surrounding residential
neighborhoods.
{¶20} Specifically, Alliance Code 1162.05 defines a bed and breakfast inn as a
conditional use:
(a) Primary Residence. The dwelling shall be the primary and
permanent residence of the bed and breakfast inn operator. Meals or other
services provided on the premises shall only be available to residents,
employees and overnight guests of the establishment.
(b) Guests. There shall be a maximum of five rooms for lodging, with
a maximum of 15 guests at any given time. Guests may stay no longer than
14 days in succession or a total of 60 days in any 12 month period. Off-
street parking areas shall be provided for guests outside of any required
front yard. Stacking of more than two vehicles in a driveway is prohibited.
(c) Landscaping. Screening shall be provided between adjacent
residences and parking areas or any outdoor eating area, in compliance
with the screening requirements of this Ordinance. Stark County, Case No. 2018 CA 00144 9
(d) Outside Activities. Outside activities may be permitted, provided
that the above requirements and all other requirements of this Ordinance
can be met.
{¶21} Finally, Alliance Code 1180.21(c) provides the “Standards for Granting
Conditional Use Approval.” In summarized form, these standards or considerations are
headed as follows: (i) Compatibility with Adjacent Uses, (ii) Compatibility with the
Comprehensive Land Use Plan, (iii) Compliance with Applicable Regulations, (iv) Use of
Adjacent Property, (v) Public Services, (vi) Impact of Traffic, (vii) Enhancement of
Surrounding Environment, (viii) Impact on Public Health, Safety, and Welfare, (ix)
Isolation of Existing Uses, (x) Need for the Proposed Use.
Analysis
{¶22} In this instance, the trial court first considered the record of the APC hearing,
finding that the testimony at said hearing established that the Purcell mansion was the
primary residence of appellants, who would be in residence when the three-bedroom inn
had guests present. Judgment Entry at 7. The court also determined that there would be
no on-site manager for the facility and no cooking and cleaning staff.2 Furthermore, as
per Alliance Code 1162.05(b), off-street guest parking had been made available in a
paved lot, with room for at least six cars. Id. Also, in implicit reference to Alliance Code
1162.05(c), foliage and woods kept the property naturally screened and secluded. Id.
The trial court also noted that a vehicle turnaround was available for guests to make
back-up turns unnecessary. Id.
2 Nonetheless, the court also referenced meals being provided to “employees,” as well as the “residents” (presumably appellees) and overnight guests. Id. Stark County, Case No. 2018 CA 00144 10
{¶23} But the court went on to recognize that roughly the final two-thirds of the
APC hearing transcript was dominated by a discussion of appellees’ additional seeking
of a zoning variance to serve food or provide services to “guests of guests,” even though
that was a separate issue being handled by the Alliance Board of Zoning Appeals (“BZA”)
rather than the Alliance Planning Commission.3 In that vein, the court found:
In addition to allowing itself to become sidetracked by an issue
outside of its jurisdiction (the requested BZA variance) and its speculative
concerns about what the BZA might or might not do, the Commission also
allowed its discussion to become commandeered by a single member who
spent an inordinate amount of time engaging in what can only be described
as hyperbolic speculation about the potential scenarios that might arise if a
B&B conditional use permit and a BZA variance were granted.
{¶24} Judgment Entry at 9.
{¶25} The trial court thus proceeded to additionally consider the evidence taken
at its own evidentiary hearing, conducted pursuant to R.C. 2506.03(A). Among other
things, the court determined that the “proposed B&B could fill a need in the community
especially given the proximity of the Alliance Country Club and the University of Mount
Union.” Judgment Entry at 16; Alliance Code 1180.21(c)(x). As to traffic flow concerns,
the court heard testimony that Fairway Lane is about 12 feet wide, compared to the
standard 30 feet for a typical Alliance city street. Tr. at 87 (City Engineer Bungard
testimony). Bungard at first had stated that Fairway Lane is “a very narrow road *** lined
3 It is presently undisputed that APC does not grant the type of variance appellees would need for larger events on the property. See Court Tr. at 94. Stark County, Case No. 2018 CA 00144 11
on both sides by trees and ditches, difficult to get back to.” Tr. at 74. However, on cross-
examination, Bungard clarified that there were not significant dual roadway ditches near
the mansion. See Tr. at 98. The trial court made specific note inter alia of Deborah Okey’s
testimony that one end of Fairway Lane has a turnaround 79 feet in diameter, which
would accommodate travel even by a vehicle with a boat or trailer. Judgment Entry at
12.
{¶26} An area resident, Frank Triplett, expressed inter alia his concern that a fire
truck could block the lane in the event of an emergency. Tr. at 123. He also indicated
that he would not know who his temporary neighbors would be at any given time, and
this presented a potential risk to the value of his property. Tr. at 127. He worried about
more traffic on the narrow Fairway Lane, on which one already had to pull over to let
another pass by in the opposite direction. Tr. at 129. Triplett also questioned whether
appellees would have to hire staff for the inn. Tr. at 146
{¶27} Gary Smith, who, like all of the remaining trial court witnesses, lives on
nearby Fairway Drive (not to be confused with Fairway Lane)4, recalled that Fairway
Lane was never given a proper foundation, as it was just “chipped and sealed” more than
28 years ago. Tr. at 159. He estimated that vehicles got stuck in ditches in the
neighborhood at least once a year. Tr. at 160. He labeled the darkness of the road at
night a “serious concern.” Tr. at 164. On cross-examination, Smith conceded that he
understood the mansion would remain as the Okeys’ residence should the bed and
breakfast plan be approved. Tr. at 172-173.
4 Drivers must travel on Fairway Drive in order to get to Fairway Lane. Tr. at 121. Stark County, Case No. 2018 CA 00144 12
{¶28} Karen Smith, Gary’s wife, also referenced the narrowness of Fairway Lane
and Fairway Drive, stating it was not safe for a truck to get past a vehicle on the roadway,
and noting that there were bicyclists, skateboarders, and persons using baby strollers in
the area. Tr. at 187-188.
{¶29} Other witnesses included Nancy Hinchliffe, who recalled that she has seen
delivery trucks have to back down Fairway Lane, as they could not turn around. Tr. at
200. Stephanie Henschen emphasized that their “community is very close,” and she
reiterated that the Purcell Mansion is at the back end of the lane and that the area has a
lack of lighting. Tr. at 209-210. Alan Andreani has observed materials being moved on
Fairway Lane with a dolly, as truck drivers do not want to risk negotiating the lane. Tr. at
224. On cross-examination, Andreani conceded he did not know if the truck he had seen
most recently was delivering to a particular property on Fairway Lane. Tr. at 228.
{¶30} This Court has aptly recognized that “*** where a proposed building is
admittedly legal and conforms in all respects to the current law, the mere perceived threat
of possible future nonconforming use cannot constitute an adequate basis for denying a
zoning permit.” Hagan v. Marlboro Twp. Board of Zoning Appeals, 5th Dist. Stark No. 95
CA 0086, 1996 WL 74009. In the case sub judice, the trial court ultimately expressed its
concern that the APC’s decision to deny the conditional use had been made “not
because of non-compliance with other ordinances, and not because of any actual
evidence regarding the other factors, but because of a concern that some future
violations might occur or some broader usage might be permitted by the BZA.” Id. at 13.
As indicated supra, while the sole trial court witness for appellees was Deborah Okey
herself, several area residents did express their concerns about such factors as lighting Stark County, Case No. 2018 CA 00144 13
on the lane, road width, vehicle turnaround possibilities, and capacity for delivery trucks;
indeed, it would not at all be unexpected for nearby property owners in such
circumstances to protest even slight changes to the accustomed day-to-day pace of
residential neighborhoods. However, in this instance, based on our limited review
pursuant to Kisil, supra, we do not conclude the trial court abused its discretion in finding
that the APC decision denying the conditional use for appellees’ bed and breakfast inn
was unsupported by a preponderance of reliable, probative and substantial evidence.
{¶31} Appellant’s First Assignment of Error is therefore overruled.
II.
{¶32} In its Second Assignment of Error, Appellant APC maintains the trial court
abused its discretion in reversing the commission’s denial of appellees’ application and
applied an incorrect standard of review in reaching its decision. We disagree.
{¶33} Appellant initially directs us to two cases in support. The first is Ferrara v.
Liberty Twp. Zoning Bd. of Appeals, 11th Dist. Trumbull No. 2017-T-0075, 2018-Ohio-
3537, 109 N.E.3d 41. In that case, Ferrara, on behalf of a trust, requested conditional
use permits for three historic mansions, one of which was equipped to host up to 32
quests. Ferrara essentially sought permission to rent the mansions to members of a
private golfing club, who would lodge at the mansions when they were in the area to golf.
The conditional use in Ferrara, unlike in the present case, pertained to a “clubs and
parks” section of the pertinent zoning resolution. It was also specifically noted that the
properties were not intended to be set up as traditional hotels or bed and breakfast
facilities. Id. at ¶ 6. In Ferrara, the BZA had taken the position that the private club at
issue was “pre-textual,” even though the trial court thereafter concluded otherwise as to Stark County, Case No. 2018 CA 00144 14
two of the three properties. However, the appellate court found the trial court’s conclusion
in this regard, as to two of the properties, “appears to discount the evidence presented
to the BZA by Mr. Ferrara and the discussions that occurred at the hearings.” Ferrara at
¶ 28.
{¶34} Appellant secondly directs us to D.M.R. Dev. v. City of Cleveland, 8th Dist.
Cuyahoga No. 45836, 1983 WL 2777. That case involved a car storage and repair
business seeking a variance to expand into a 24-four towing service. The City denied
the initial applications. D.M.R. appealed to the Cleveland BZA, but after a hearing, the
variance for the towing service was denied. Upon appeal to the Cuyahoga County
Common Pleas Court, the court held that the operation of a towing service was not an
extension or enlargement of the non-conforming use already enjoyed by the owners, and
the decision of the BZA was reversed. The Eighth District, upon appeal, then reversed
the common pleas decision, thus upholding the original denial of the variance, finding
the towing service indeed would be a prohibited expansion of the existing business on
the property. In so doing, the appellate court specifically noted, among other things: “The
testimony indicate[d] that [D.M.R.’s operator] has already caused a disturbance in the
neighborhood with his towing.” (Emphasis added).
{¶35} Upon review, while both of the aforesaid cases resulted in appellate reversal
of a trial court’s rejection of an administrative decision, we are not persuaded that the
facts and reasoning of Ferrara or D.M.R. would warrant our reversal in the case sub
judice, as urged by appellant.
{¶36} Appellant correctly recites that an administrative board is a public body, and
therefore its decision on a variance must be accorded a presumption of validity. See Stark County, Case No. 2018 CA 00144 15
McCauley v. Ash (1955), 97 Ohio App. 208, 124 N.E. 2d 739. The Ohio Supreme Court
has recognized that in reviewing an appeal of an administrative decision, a court of
common pleas begins with the presumption that the board's determination is valid, and
the appealing party bears the burden of showing otherwise. See C. Miller Chevrolet v.
Willoughby Hills (1974), 38 Ohio St.2d 298, 302, 313 N.E.2d 400. Simply because a
proposed use meets the required criteria does not necessarily mean that the use must
be allowed. Belich v. City of Olsmted Falls, 8th Dist. Cuyahoga Nos. 84537, 84807, 2005-
Ohio-190, ¶ 45.
{¶37} Nonetheless, our reading of the trial court’s thorough written decision in this
matter does not lead us to the conclusion that the court erroneously shifted the burden
away from appellees, as appellant asserts. We therefore find no merit in appellant’s final
claim that the trial court failed to apply the correct standard of review in its administrative
appeal decision.
{¶38} Appellant’s Second Assignment of Error is overruled.
{¶39} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, J. Gwin, P. J., and Delaney, J., concur.
JWW/d 0528