Nassef v. Union Twp. Bd. of Zoning Appeals , 2013 Ohio 4130 ( 2013 )

[Cite as Nassef v. Union Twp. Bd. of Zoning Appeals, 2013-Ohio-4130.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
ASHRAF S. NASSEF, M.D., INC., :
Appellee, : CASE NO. CA2013-05-038
: OPINION
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:
UNION TOWNSHIP, CLERMONT :
COUNTY, OHIO BOARD OF ZONING
APPEALS, :
Appellant. :
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2012CVF01600
Taft, Stettinius & Hollister, LLP, Nicholas J. Pieczonka, Stephen M. Griffith, Jr., 425 Walnut
Street, Suite 1800, Cincinnati, Ohio 45202-3957, for appellee
Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, 5300 Socialville-Foster
Road, Suite 200, Mason, Ohio 45040, for appellant
RINGLAND, P.J.
{¶ 1} Defendant-appellant, Union Township, Clermont County, Ohio Board of Zoning
Appeals, appeals from a decision of the Clermont County Court of Common Pleas reversing
a decision of the Union Township, Clermont County, Ohio Board of Zoning Appeals ("BZA")
in favor of plaintiff-appellee, Ashraf S. Nassef, M.D., Inc.
Clermont CA2013-05-038
{¶ 2} Appellee occupies real property located at 4404 Glen Este-Withamsville Road,
Union Township, Clermont County, Ohio. Appellee is licensed to practice medicine in the
state of Ohio and has operated a medical practice at the above address since 2006. In
2011, appellee began prescribing patients with opioid dependency a drug called Suboxone.
Soon thereafter, a citation was issued to appellee for violating the Union Township Zoning
Resolution for operating a "Suboxone Treatment Center" on the property without first
obtaining a change in use permit.
{¶ 3} On June 6, 2012, appellee applied for a change in use permit, which was
denied by the Planning and Zoning Director of Union Township ("Zoning Director"). The
Zoning Director stated that a "Suboxone Treatment Center" is a substance abuse treatment
center, which is not specifically listed as an approved function within the B-1 Business District
where the property is located. The Union Township Zoning Resolution provides that uses
which are not specifically permitted are prohibited, and thus appellee's substance abuse
treatment center was not permitted under the zoning classification. Appellee appealed the
Zoning Director's decision to the BZA. The BZA held a hearing on August 2, 2012 and
issued a "Notice of Final Action" on August 7, 2012 affirming the Zoning Director's decision.
{¶ 4} Appellee then appealed the BZA's determination to the Clermont County Court
of Common Pleas, which issued a decision on April 16, 2013. The court of common pleas
held that the BZA's decision was arbitrary and not supported by the preponderance of
substantial, reliable, and probative evidence. The common pleas court found there was no
evidence presented to show that the treatment of patients suffering from opioid dependency
does not qualify as medical treatment. Additionally, the common pleas court found that there
was evidence presented that opioid dependency is a disease that is "just like any other
medical condition." The common pleas court also considered the ordinary definition of
"medical." Utilizing Attorney's Illustrated Medical Dictionary, the common pleas court found
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that medicine is "the science concerned with diagnosing and treating disease and the
maintenance of health" together with the "evaluation and treatment of patients with drug use
disorders" including "such topics as risk factors for developing substance abuse disorders * *
*." Attorney's Illustrated Medical Dictionary M15 (1997). Utilizing this definition, the common
pleas court found that appellee's clinic falls within the practice of medicine. Consequently,
the common pleas court found that the treatment of patients with opioid dependency,
including prescribing Suboxone, is within the scope of the Union Township Zoning Resolution
allowing medical clinics in the B-1 Business District where appellee's property is located.
{¶ 5} Appellant now appeals the decision of the court of common pleas, asserting
one assignment of error for review.
{¶ 6} THE [COMMON PLEAS] COURT ERRED IN VACATING THE DECISION OF
THE UNION TOWNSHIP BOARD OF ZONING APPEALS.
{¶ 7} Appellant asserts two issues for review within its assignment of error. Appellant
first asserts the common pleas court erred by impermissibly substituting its judgment for the
Zoning Director and the BZA. Essentially, appellant argues that the common pleas court
erred in finding the BZA's decision arbitrary and unsupported by a preponderance of reliable,
probative, and substantial evidence. In its second issue presented for review, appellant
argues the common pleas court should have considered the intent of the legislative body in
making its determination that operating a substance abuse treatment center fell within the
definition of "medical clinic." We disagree.
{¶ 8} "R.C. Chapter 2506 governs the standards applied to appeals of administrative
agency decisions." Hutchinson v. Wayne Twp. Bd. of Zoning Appeals, 12th Dist. Butler No.
CA2012-02-032, 2012-Ohio-4103, ¶ 14, citing Key-Ads, Inc. v. Bd. of Cty. Commrs., 12th
Dist. Warren No. CA2007-06-085, 2008-Ohio-1474, ¶ 7. "A common pleas court reviewing
an administrative appeal pursuant to R.C. 2506.04 weighs the evidence in the whole record
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and determines whether the administrative order is unconstitutional, illegal, arbitrary,
capricious, unreasonable, or unsupported by the preponderance of the substantial, reliable,
and probative evidence." Hutchinson at ¶ 14, citing Key-Ads at ¶ 7. A common pleas court
should not substitute its judgment for that of an administrative board, such as the board of
zoning appeals, unless the court finds that the board's decision is not supported by a
preponderance of reliable, probative, and substantial evidence. Kisil v. City of Sandusky, 12
Ohio St.3d 30, 34 (1984).
{¶ 9} "[T]he standard of review imposed upon a common pleas court varies distinctly
from the standard of review imposed upon an appellate court." Bingham v. Wilmington Bd. of
Zoning Appeals, 12th Dist. Clinton No. CA2012-05-012, 2013-Ohio-61, ¶ 7. An appellate
court's review of an administrative appeal is more limited in scope than a court of common
pleas. Hutchinson at ¶ 15, citing Shamrock Materials, Inc. v. Butler Cty. Bd. of Zoning, 12th
Dist. Butler No. CA2007-07-172, 2008-Ohio-2906, ¶ 10. Unlike the common pleas court, the
appellate court "does not weigh the evidence or determine questions of fact." Hutchinson at
¶ 15. Rather, "the appellate court must affirm the common pleas court's decision unless it
finds, as a matter of law, that the decision is not supported by a preponderance of reliable,
probative, and substantial evidence." Id., citing Shamrock at ¶ 10.
{¶ 10} Under its first issue for review, appellant asserts several specific arguments.
Appellant asserts that there was evidence presented to the common pleas court that opioid
dependency does not qualify as medical treatment and the fact that "addiction medicine" is
defined under the term "medicine" is insufficient to reverse the BZA's decision. Appellant
also argues that the BZA's decision was not arbitrary because the members of the BZA fully
discussed the meaning of the term "medical" within the Union Township Zoning Resolution.
Nevertheless, we find that the common pleas court decision finding that a substance abuse
treatment center falls within the definition of "medical clinic" in the Union Township Zoning
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Resolution is supported by a preponderance of reliable, probative, and substantial evidence.
{¶ 11} Appellant attempts to assert that because treating opioid dependency with
Suboxone is just a treatment and not a cure, which appellee readily admits, such a treatment
falls outside of the term "medical." However, treatment without a cure is not unique to opioid
dependency as other diseases, such as diabetes, are often only treated or maintained and
not actually cured. Appellee testified at the hearing in front of the BZA that: "It's just - - just
like any other medical condition. Opioid dependency has a code, it's a disease, and it needs
to be treated, and there's medication out there that patients will need to take so they get off
that opioid dependency." Appellee also testified that prescribing Suboxone to treat opioid
dependency is "definitely" a medical treatment. As a medical doctor, appellee has to observe
patients after taking the medication and Suboxone can only be prescribed by a physician.
Furthermore, "addiction medicine" is defined under the term "medicine" in the Attorney's
Illustrated Medical Dictionary.
{¶ 12} Appellant also argues that because the members of the BZA had a discussion
regarding the definition of "medical" that the common pleas court erred in finding the BZA's
decision arbitrary. The BZA members discussed the term "medical" and seemed to agree
that there was no clear definition of the term in the Union Township Zoning Resolution and
that such a definition would have been helpful. However, there was a lack of analysis
regarding the term. The BZA wanted to "err on that side [of the Zoning Director] and have it
done right." Consequently, the finding of the common pleas court that the BZA's decision
was arbitrary is also supported by a preponderance of reliable, probative, and substantial
evidence.
{¶ 13} Under its second issue for review, appellant asserts that the common pleas
court should have considered the intent of the legislative body in making its determination
that operating a substance abuse treatment center fell within the definition of "medical clinic."
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Appellant contends that "the Union Township Zoning Resolution clearly did not intend the
term 'medical clinic' to include substance abuse rehabilitation facilities prescribing
Suboxone." Appellant's rationale is that the Union Township Zoning Resolution could not
have intended such an inclusion because neither substance abuse treatment centers nor
Suboxone were used at the time the resolution was adopted. Even if the common pleas
court should have considered the intent of the legislative body, we find appellant's rationale
produces absurd results. Following appellant's logic, the legislative body would be forced to
revise the zoning code every time a new drug came onto the market or a new treatment was
developed that could possibly be prescribed or used in a medical clinic.
{¶ 14} Furthermore, "in determining a permitted use of property under zoning
classifications in which terms and language therein are not otherwise defined, common and
ordinary meaning of such terms must be considered and the terms and language should be
liberally construed in favor of the permitted use proposed by the property owner so as not to
extend the restrictions to any limitation of use not clearly prescribed therein." W. Chester
Twp. Bd. of Trustees v. Speedway Superamerica, L.L.C., 12th Dist. Butler No. CA2006-05-
104, 2007-Ohio-2844, ¶ 24, quoting Sammons v. Village of Batavia, 53 Ohio App.3d 87, 90
(12th Dist.1988).
{¶ 15} Section 661 of the Union Township Zoning Resolution permits medical clinics
and does not provide a definition. The term "medical" is defined as "relating to medicine."
Attorney's Illustrated Medical Dictionary M15 (1997). As noted above, the common meaning
of "medicine" includes the "evaluation and treatment of patients with drug use disorders"
including "such topics as risk factors for developing substance abuse disorders * * *."
Attorney's Illustrated Medical Dictionary M15 (1997). Consequently, appellee's business falls
within the practice of medicine when liberally construing the term. As a result, when
considering the zoning resolution itself, the treatment of opioid dependent patients is a
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permitted use as a medical clinic under the B-1 Business District classification in the Union
Township Zoning Resolution.
{¶ 16} Appellant's sole assignment of error is overruled.
{¶ 17} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
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