[Cite as Pignatelli v. Bath Twp. Bd. of Zoning Appeals, 2016-Ohio-5691.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
BART PIGNATELLI, TRUSTEE, AND C.A. No. 27738 VICTORIA SCHAFER, TRUSTEE, OF THE 1290 PRESERVATION TRUST DATED 2/10/2010 APPEAL FROM JUDGMENT Appellant ENTERED IN THE COURT OF COMMON PLEAS v. COUNTY OF SUMMIT, OHIO CASE No. CV 2014 09 4279 TOWNSHIP OF BATH, OHIO, BOARD OF ZONING APPEALS
Appellee
DECISION AND JOURNAL ENTRY
Dated: September 7, 2016
WHITMORE, Judge.
{¶1} Appellants, Bart Pignatelli and Victoria Schafer, Trustees of the 1290
Preservation Trust Dated 2/10/2010 (the “Trustees”), appeal from the Summit County Court of
Common Pleas’ affirmation of a decision of the Bath Township Board of Zoning Appeals (“Bath
BZA”). We reverse.
I
{¶2} At issue is a conditional use permit issued by the Bath BZA in connection with
the renovation of a guest house located on the Trustees’ property in Bath Township, Ohio. The
Trustees’ property is comprised of one lot with two residential structures consisting of a main
house and the guest house. The property is located in the R-2 residential zoning district. This
zoning classification permits one detached single-family residential dwelling on each lot. The lot 2
must consist of 2.5 acres. The property at issue is 4.8 acres. The main house and guest house
were built in 1941 before Bath Township enacted zoning. The Trustees purchased the property in
2011 or 2012.
{¶3} A guest house in an R-2 residential district generally is classified as a conditional
use. A conditional use requires approval from the Bath BZA. Although the Trustees maintain
that the guest house should have been classified as a pre-existing, non-conforming use, rather
than a conditional use, the Trustees do not bring an assignment of error regarding the
classification issue in this appeal.
{¶4} On behalf of the Trustees, Frank Pignatelli, the Trustees’ contractor, applied to
the Bath BZA for a conditional use permit for the property in anticipation of the renovation to
the guest house. The application was for a guest house for parents and family. The application
contained a number of attachments, including a site plan, plans and specifications for the
proposed construction, and a statement in support regarding certain requirements contained in
the Bath Township zoning resolution.
{¶5} The Bath BZA held a public hearing regarding the proposed guest house. Frank
Pignatelli testified. He testified that there had been two residential structures on the property for
many years, and that the county for years had taxed the property on the basis of two residential
structures. Frank Pignatelli testified that the original guest house located on the property had
been destroyed by fire. The previous landowner attempted to rebuild the structure, but it
remained unsafe and uninhabitable.
{¶6} Frank Pignatelli explained plans to renovate the guest house and make it
habitable. He testified to plans to use the guest house as a permanent residence to be used by 3
him personally or other family members. The guest house would remain under family control
with a familial relationship between the occupants of the main house and the guest house.
{¶7} Frank Pignatelli testified to the Trustees’ intention to keep the property
contiguous and not mix uses. He testified that there was no present intention to split the
property.
{¶8} The Bath BZA acknowledged the Trustees’ intentions for the property but
expressed concerns for future use of the property and guest house “a hundred years from now,
when none of us are here.” The Bath BZA’s concerns included that the guest house would be
rented to non-family members or non-employees of the family and that the lot would be split.
{¶9} As noted in the hearing minutes, legal counsel for Bath Township, Mr. Robert
Konstand, “recommended [at the hearing that] as a condition of the Board’s approval, that
permanent deed restrictions be placed on the property * * *.” He stated:
I would suggest that if the board is so inclined to go along with Mr. Pignatelli’s suggestion, that as a condition of your approval that a permanent deed restriction [be] placed on the property in favor of Bath that one house be occupied at all times by the owner of the property and the other dwelling would be occupied by a family member of the owner at all times. And that as a condition of approval the lot would stay intact as one lot the entire time and I’d also ask that the zoning inspector be given rights at any time to enquire about the occupants of both buildings and that the information be provided or the zoning permit would be revoked.
{¶10} Frank Pignatelli expressed “concern” about “deed restrictions on [the] property”
because of “what that [would do] to the marketability” of the property. He stated that he felt that
he was being “pushed [toward] * * * having deed restrictions on [the] property.” Ultimately he
agreed at the hearing to accept the deed restrictions despite being “presented with this [issue] for
the first time.” 4
{¶11} At the hearing, the Bath BZA voted on and approved the conditional use of the
guest house. The approval was subject to the placement of deed restrictions on the property.
{¶12} Approximately one month after the hearing, Frank Pignatelli submitted a letter of
objection to the Bath BZA regarding the placement of deed restrictions on the property. He
requested that the Bath BZA take no further action until he could re-present the Trustees’ case to
the Bath BZA with legal counsel present.
{¶13} On the same day that Frank Pignatelli submitted the letter of objection, the Bath
BZA met and adopted a resolution permitting “a conditionally permissible use for a [guest
house] or accessory living quarters” on the property. The permit imposed eight enumerated
“conditions” on the property. The second enumerated “condition[]” was that “all of the
conditions of this approval be contained in deed restrictions running with the land, in the chain of
title, for the benefit of Bath Township for [the] purposes of enforcement.” The second condition
further provided that “said deed restrictions would prohibit a lot-split and provide that the Bath
Township Zoning Inspector would be kept informed at all times as to the living arrangements of
both those on the [p]rincipal [r]esidence and the [g]uest [h]ouse. All deed restrictions would be
approved before being recorded, by Township legal counsel[.]”
{¶14} The remaining conditions on the property included: (i) the guest house must be
used for offering care or assistance to, or an employee of, the occupier of the main house on the
property; (ii) the guest house may not be leased or rented to third parties other than the property
owner’s employees; (iii) the property may not be leased or rented and the main house must be
owner-occupied; (iv) the construction and use of the guest house must substantially conform to
the plans, specifications and representations presented to the Bath BZA; (v) no construction may
commence until a zoning certificate is obtained; (vi) the conditional use permit is valid for a year 5
and will expire at the end of a year if construction has not commenced; (vii) except as otherwise
specified in the conditional use permit, the guest house and primary residence shall comply with
the Bath Township zoning resolution; and (vii) the guest house shall not be used for business
purposes or home occupation.
{¶15} The Trustees appealed the Bath BZA’s grant of the conditional use permit with
deed restrictions to the Summit County Court of Common Pleas. That court affirmed the Bath
BZA’s imposition of deed restrictions as “not unlawful, unreasonable or against the manifest
weight of the evidence.”
{¶16} The Trustees now appeal to this Court. They raise two assignments of error for
our review. The first assignment of error argues that the deed “restrictions are unlawful,
arbitrary, unreasonable and unduly oppress the property owner.” The second assignment of error
contends that the Bath BZA impermissibly legislated when it imposed deed restrictions on the
property as a condition of the permit. We will address only the second assignment of error
because it is dispositive.
II
Assignment of Error Number Two
THE TRIAL COURT ERRED IN AFFIRMING THE BATH TOWNSHIP BOARD OF ZONING APPEALS’ DECISION TO ADOPT A CONDITIONAL USE PERMIT REQUIRING THE OWNER TO SUBJECT ITS PROPERTY TO DEED RESTRICTIONS THAT WILL RUN WITH THE LAND, BECAUSE SUCH ADOPTION CONSTITUTED PROMULGATION OF NEW LAW BEYOND THE SCOPE OF THE BOARD OF ZONING APPEALS’ AUTHORITY, RATHER THAN APPLICATION AND INTERPRETATION OF EXISTING LAW.
{¶17} In the Trustees’ second assignment of error, they argue that the trial court erred in
affirming the Bath BZA’s determination because the Bath BZA impermissibly promulgated new 6
law when it conditioned the grant of the conditional use permit upon deed restrictions on the
property. We agree.
{¶18} This case is an administrative appeal under R.C. Chapter 2506. In reviewing an
administrative body’s decision under this Chapter, the court of common pleas must consider the
entire record and decide whether the agency’s decision was “unconstitutional, illegal, arbitrary,
capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and
probative evidence on the whole record.” R.C. 2506.04. The trial court must weigh the
evidence, but should not substitute its judgment for that of the agency. Community Concerned
Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 66 Ohio St.3d 452, 456 (1993).
{¶19} The court of appeals applies a standard of review “more limited in scope.”
Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147 (2000), quoting Kisil v.
Sandusky, 12 Ohio St.3d 30, 34 (1984). Unlike the trial court, we review only questions of law.
Henley at 147.
{¶20} The Supreme Court of Ohio has recognized that a township board of zoning
appeals may grant conditional zoning certificates under R.C. 519.14 only to the extent that they
are authorized by the township’s zoning resolution. Gerzeny v. Richfield Twp., 62 Ohio St.2d
339, 342 (1980). R.C. 519.14(C) empowers township boards of zoning appeals to “[g]rant
conditional zoning certificates for the use of land, buildings, or other structures if such
certificates for specific uses are provided for in the zoning resolution.”
{¶21} In Smith v. Richfield Twp. Bd. of Zoning Appeals, 9th Dist. Summit No. 25575,
2012-Ohio-1175, we considered the extent to which a board of zoning appeals may impose
conditions. In that case, the Richfield Township Board of Zoning Appeals granted the applicant
a conditional variance for a building that violated the applicable rear-setback zoning provision. 7
However, the variance was granted subject to conditions on the use of the property. Smith at ¶
10. The zoning board argued that the conditions were permissible because the township’s zoning
resolution authorized the board to “impose such conditions as it may deem necessary to protect
the public health, safety, and morals in furtherance of the purposes and intent of this Resolution.”
Id. at ¶ 14. We rejected the board’s argument, and found that the specific conditions must be
“’provided for, and specifically authorized by a zoning resolution which was adopted by the
township trustees – a legislative body.’” Id. at ¶ 15, quoting Powerall, Inc. v. Chester Twp.
Trustees, 11th Dist. Geauga No. 1037, 1983 WL 6005, *3 (Dec. 9, 1983). When a condition
imposed by the board is not specifically authorized by the resolution, the board does not interpret
existing law enacted by the legislature, but rather impermissibly promulgates new law. See
Smith at ¶ 18.
{¶22} Like the zoning board in Smith, the Bath BZA argues in this case that the deed
restrictions imposed as a condition of the permit were allowable because the township zoning
resolution permits the Bath BZA to protect the health, safety, and welfare of the community.
Specifically, Section 802-1C of the Bath Township Zoning Resolution provides that the Bath
BZA may impose additional conditions when “it deems it necessary to safeguard the health,
safety, and welfare of the community * * * includ[ing] * * * [f]uture development of the site
may be all or partially restricted.” The Bath BZA contends that, because the Bath BZA imposed
the deed restrictions in an effort to restrict future development of the property, the deed
restrictions were permissible to “safeguard the health, safety and welfare of the community in the
future.”
{¶23} Although we acknowledge that Smith involved a variance and not a conditional
use, the Bath BZA’s position here is indistinguishable from the argument that we rejected in 8
Smith. As we stated in Smith, a zoning board’s general authority to impose conditions for the
health, safety, and welfare of the community does not authorize the board to impose a particular
condition not specifically authorized by the zoning resolution. When a condition imposed by the
board is not specifically authorized by the zoning resolution, the board impermissibly acts as a
legislative body and promulgates new law. See Smith at ¶ 18. Here, the Bath BZA has imposed
a condition to the permit – that all of the conditions be recorded in deed restrictions to run with
the land – that is not specifically authorized in the Bath Township zoning resolution.
Accordingly, the Bath BZA improperly created new law when it conditioned the grant of the
conditional use permit upon deed restrictions on the property.
{¶24} The Bath BZA argues that it did not improperly legislate because the
“requirement for deed restrictions * * * is not a condition” but rather a “means of enforcement
and notice of the existence of other conditions of the conditional zoning certificate.” This
argument rings hollow in light of the Bath BZA’s own previous characterization of the
requirement for deed restrictions as a “condition” of the permit. At the hearing, Mr. Konstand
expressly recommended “permanent deed restriction[s]” be placed on the property “as a
condition of * * * approval” of the permit. Moreover, the Bath BZA’s resolution approving the
permit listed the deed restrictions as one of eight enumerated conditions on the property. While
the evidence indicates that the deed restrictions were in fact intended as a means of enforcement
and of regulation of the use of the property, they were expressly imposed by the Bath BZA as a
condition to permit the guest house.
{¶25} The Bath BZA also argues that Frank Pignatelli agreed to the deed restrictions.
This argument lacks merit. In the context of objections to the grant of a conditional use permit,
we have held that “a protestor’s offer to compromise his protest does not instill the local zoning 9
board with more authority than it would otherwise have under the law.” Genovese v. Beckham,
9th Dist. Summit No. 22814, 2006-Ohio-1174, ¶ 12. R.C. 519.14 “does not vest township
boards with power to grant conditional zoning certificates independent of the zoning resolution.
Rather, the board’s power to issue such a certificate is no greater than that vested in it by the
township zoning resolution.” Gerzeny, 62 Ohio St.2d at 342. Because we have determined that
the Bath BZA acted outside of the authority granted to it under the applicable zoning resolution,
the Trustees’ concession to the deed restrictions did not supply the Bath BZA with the legal
authority necessary to impose those restrictions.
{¶26} The Bath BZA further contends that the doctrine of invited error bars the
Trustees’ claim that the deed restrictions were unlawful. The invited error doctrine provides that
a party may not “’take advantage of an error which he himself invited or induced the trial court
to make.’’ State v. Carswell, 9th Dist. Summit No. 23119, 2006-Ohio-5210, ¶ 21, quoting State
ex rel Bitter v. Missig, 72 Ohio St.3d 249, 254 (1995). The doctrine requires “more than mere
‘acquiescence in the * * * erroneous conclusion.’” State v. Campbell, 90 Ohio St.3d 320, 324
(2000), quoting Carrothers v. Hunter, 23 Ohio St.2d 99, 103 (1970). The appellant must have
been “’actively responsible’” for the error or the doctrine does not apply. Campbell at 324,
quoting State v. Kollar, 93 Ohio St. 89, 91 (1915).
{¶27} We cannot find that the Trustees, or Frank Pignatelli as agent of the Trustees,
induced the error at issue. Rather, counsel for the Bath BZA raised the issue of deed restrictions
when he advised the board to impose the deed restrictions as a condition of approval of the
conditional use permit. Frank Pignatelli only acquiesced in the imposition of the deed
restrictions at the hearing after expressing concern, and later withdrew his acquiescence in
writing by way of a letter of objection to the Bath BZA. The Trustees’ temporary acquiescence 10
to the unlawful deed restrictions is not sufficient to invoke the invited error doctrine. See
Campbell at 324.
{¶28} We find that the Bath BZA unlawfully created new zoning law because the
condition of permanent deed restrictions was not authorized by the applicable zoning resolution.
Accordingly, it was an error of law for the trial court to affirm the Bath BZA’s grant of the
conditional use permit subject to the condition of permanent deed restrictions.
{¶29} We express no opinion on the practical effect of our decision on the permit itself
as the parties have not adequately briefed that issue. The Bath BZA argued that the deed
restriction was lawful, but did not address what effect a finding that it was unlawful would have
on the permit. The Trustees argue both that the permit is “void” and that we should direct the
“remov[al of] all unlawful conditions, including the deed restrictions.” If the permit were void,
the parties would be in the same position as if the permit had not been issued. Striking the deed
restriction condition, on the other hand, arguably leaves the remainder of the permit in place.
See Citizens Against Blasting on Our Miami v. Anderson Twp. Bd. of Zoning Appeals, 1st Dist.
Hamilton Nos. C-120011, C-120012, C-120013, C-120014, and C-120015, 2012-Ohio-6145, ¶
29-32 (explaining the difference between these remedies). On remand, the trial court may accept
briefing from the parties on the status of the permit.
{¶30} For the reasons discussed, the Trustees’ second assignment of error is sustained.
Because the Trustees’ second assignment of error is dispositive, we need not address the
Trustees’ first assignment of error. 11
III
{¶31} The Trustees’ second assignment of error is sustained. The judgment of the
Summit County Court of Common Pleas is reversed. We remand this matter to the common
pleas court for further proceedings in light of this opinion.
Judgment reversed and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
BETH WHITMORE FOR THE COURT
CARR, P. J. SCHAFER, J. CONCUR. 12
APPEARANCES:
LEE A. CHILCOTE and DAVID T. DOHNAL, Attorneys at Law, for Appellant.
ROBERT G. KONSTAND, Attorney at Law, for Appellee.