Devol v. Logan , 2021 Ohio 4164 ( 2021 )

[Cite as Devol v. Logan, 2021-Ohio-4164.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
VICKI DEVOL, : Case No. 21CA4
Appellant-Appellant, :
v. : DECISION AND
JUDGMENT ENTRY
CITY OF LOGAN, :
Appellee-Appellee. : RELEASED 11/22/2021
______________________________________________________________________
APPEARANCES:
L. Jackson Henniger, Logan, Ohio, for appellant.
Dave Yost, Attorney General of Ohio, L. Martin Cordero and William J. Cole, Assistant
Attorneys General, Columbus, Ohio for intervenor-appellee Ohio Department of
Transportation.
Abigail M. Saving, Logan, Ohio, for appellee City of Logan.
______________________________________________________________________
Hess, J.
{¶1} Vicki Devol appeals the judgment of the Hocking County Court of
Common Pleas affirming the City of Logan Zoning Board of Appeals’s (“Zoning Board”)
decision denying her application to install a driveway and access State Route 664 within
the City of Logan. Devol identifies eight assignments of error in the trial court’s review of
the Zoning Board’s decision. She contends that the trial court erred in allowing the
Zoning Board and the zoning inspector to interpret deeds and other legal documents in
making the decision to deny her driveway project and misinterpreted the case law
concerning the legal requirements that must be met prior to approval of her driveway
project. She contends that the trial court erroneously found the zoning proceedings
constitutional, failed to consider the legal import of classifying her property as having
Hocking App. No. 21CA4 2
limited access and failed to consider the lack of legislation that would have allowed
rezoning of the area. She also challenges the trial court’s findings concerning an alleged
existing easement to the highway, the use of a corrective deed, and the language used
in one of the deeds at issue.
{¶2} We find that the trial court did not err as a matter of law when it
determined that the zoning inspector acted within his or her authority when it considered
deeds to the relevant properties in making the decision to deny Devol’s application for a
driveway permit. A preponderance of reliable, probative, and substantial evidence
supports the trial court’s determination that ODOT took access rights to State Route 664
from Devol as part of the Judgment Entry of Settlement and did not, as part of that
same settlement, restore access rights to her. We overrule her assignments of error and
sustain the trial court’s judgment.
I. PROCEDURAL HISTORY
{¶3} In 2004, the Ohio Department of Transportation (“ODOT”) filed a petition
to appropriate property along State Route 664 in the City of Logan, including Devol’s
0.103 acre tract known as Parcel 8. The parties reached a settlement that was
memorialized and filed with the Hocking County Recorder as a “Judgment Entry on
Settlement” under which ODOT split Parcel 8 into two parcels. It reduced the taking of
Devol’s property to .012 acres and allowed Devol to retain ownership of the remaining
acerage. ODOT’s .012 acre portion abutted State Route 664 was renamed Parcel 8-WL
and Devol’s portion was renamed Parcel 8-WD. Even though ODOT reduced the
acreage it appropriated from Devol, it increased the compensation to her by an
additional $13,071, from $46,000 to $59,071, and conveyed to Devol an additional tract
Hocking App. No. 21CA4 3
of land, Parcel 9-EL, which was located farther from State Route 664 and contiguous to
Parcel 8-WD. Neither Parcel 9-EL nor Parcel 8-WD abutted State Route 664. ODOT
conveyed all rights, title, and interests in fee simple in Parcel 9-EL to Devol, including
any abutter’s rights that might exist. ODOT retained all right, title and interest in fee
simple, including limitation of access in Parcel 8-WL and Devol divested herself of any
and all abutter’s rights, including access rights in, over and to Parcel 8-WL, including
such rights with respect to any highway facility constructed thereon. Devol also waived
any implied easement of access.
{¶4} In December 2017, Devol applied for a building permit for a 20-foot curb
cut to re-establish driveway to access State Route 664 across ODOT’s Parcel 8-WL and
to install a drain and replace sidewalk. Prior to this application, Devol had made three
earlier applications in 2015, 2016 and February 2017 for the same curb cut and highway
access, all which had been denied by the zoning inspector.1 The zoning inspector
denied Devol’s December 2017 application on the grounds, “The state reserved the
right to limit and restrict access to the subject parcel in the vesting deed.” Devol’s prior
three applications were denied for the same reason. The zoning inspector denied her
February 2017 application because, “City of Logan reached out to Dist. 10 Real Estate
Manager for ODOT, who indicates that the state reserved the right to limit and restrict
access to the subject parcel in the vesting deed.” The 2016 application was denied
1 It is unclear whether these prior applications were appealed to the Zoning Board. See Grava v.
Parkman Twp., 73 Ohio St.3d 379, 383, 653 N.E.2d 226, 229–30 (1995) (holding that property owner’s
second application for a zoning certificate was barred by the doctrine of res judicata where it was based
on a claim arising from a nucleus of facts that was the subject matter of the first application. In both
instances, owner was attempting to construct exactly the same building on the same tract of land, which
had fewer acres than the local zoning ordinance required. The only difference between the
two applications was the theory of substantive law under which owner sought relief.).
Hocking App. No. 21CA4 4
because, “City cannot issue this permit. Must go through ODOT.” The 2015 application
was denied because “The city cannot issue a building permit to allow a curb cut. The
request must be made to ODOT.”
{¶5} Devol appealed to the Zoning Board. At the hearing, Devol argued that the
zoning inspector had no authority to deny the application based upon restrictions in the
deed; only the common pleas court had jurisdiction to interpret deed restrictions. In
addition, Devol contended that the City of Logan, not ODOT, controlled the Parcel 8-
WL. She also contended that, in addition to the deed to Parcel 8-WL there were two
additional deeds at issue, one to Parcel 8-WD, which restricted access to State Route
664, and the second deed, to Parcel 9-EL, which she argued “absolved the restrictions.”
{¶6} The Zoning Board heard arguments from ODOT, which stated that it did,
in fact, own and control the property, Parcel 8-WL, over which Devol sought access to
State Route 664 and that it acquired that property many years ago as part of a safety
project along a curved portion of State Route 664. The entire purpose of the safety
project was to remove access to State Route 664. ODOT argued that it was clear
through the communications, emails, letters, and other writings that there was to be no
access to State Route 664. ODOT agreed that the deed to Parcel 9-EL contained a
different legal description, but this was the result of a scrivener’s error. ODOT was
planning to file a corrective deed to resolve any issue or confusion.
{¶7} The Zoning Board unanimously denied Devol’s appeal and Devol filed an
administrative appeal with the Hocking County Court of Common Pleas. The trial court
reviewed Devol’s building permit application and compared it to ODOT’s deed to Parcel
8-WL and determined that Devol sought to install a driveway and access State Route
Hocking App. No. 21CA4 5
664 on ODOT’s Parcel 8-WL. The trial court found, “At no time did ODOT ever
compromise its right to keep the S.R. 664 right of way as limited access, nor has it
granted permission to Ms. Devol to build a driveway upon or across that right of way.”
The trial court rejected Devol’s argument that the City of Logan, not ODOT, owned and
controlled Parcel 8-WL.
{¶8} As to the language in the deed to Parcel 9-EL, the trial court also rejected
Devol’s argument that the language in that deed restored access to State Route 664.
The trial court found that even if it were believed that ODOT restored access to Parcel
9-EL, Parcel 8-WL still blocked access to State Route 664. The court found that Devol’s
argument “that ODOT was, without explanation or reason, ‘giving away the restrictions’ ”
was somewhat disingenuous because “she argued this despite knowing that the
Judgment Entry on Settlement contained no such access rights that were to be retained
and no subsequent events had occurred that justified restoring her access to SR 664.”
{¶9} The trial court rejected Devol’s contention that the zoning inspector was
not authorized to interpret the validity and meaning of deed restrictions when deciding
whether to issue a permit. The trial court found that the zoning inspector has a duty to
ensure that the property owner has complied with “all legal requirements,” and “at the
very minimum” the zoning inspector had authority to interpret the relevant deeds at
issue and was correct “in not permitting a driveway on a property not owned by Ms.
Devol or through property for which no access had been granted.” The court noted that
Devol had argued that the zoning inspector should not interpret the restrictions of the
deed to Parcel 8-WL while at the same time arguing that the zoning inspector should
Hocking App. No. 21CA4 6
interpret provisions in the deed to Parcel 9-EL, which she contends restored her right to
access to State Route 664.
The undisputed testimony and evidence supports the conclusion that the
safety project included elimination of all abutting access. Moreover, the
unambiguous terms of Parcel 8-WL that were included in the Judgment
Entry of Settlement limited all residue access. Therefore, the Zoning
Inspector correctly interpreted the history of the access to Ms. Devol’s
property and properly interpreted deeds to Parcel 8-WL and 9-EL as to no
access to SR 664. Based on the above, this Court finds that the decision
of the Zoning Inspector was supported by reliable, probative, and
substantial evidence.
{¶10} The trial court rejected Devol’s argument that the denial of her building
permit was an unconstitutional taking because she had failed to prove she has a right to
build a driveway on her property. And, even if she had a right, she has failed to
establish the requirements of a partial regulatory taking. The trial court found no
constitutional violation. The court affirmed the findings of the Zoning Board.
{¶11} Devol appealed.
II. ASSIGNMENTS OF ERROR
{¶12} Devol presents eight assignments of error:
I. The court erred in permitting the building zoning inspector and the
Board of Zoning Appeals to interpret legal language in the deeds and
other legal documents.
II. The court misinterpreted the case law (Willow) as to what
constituted other legal requirements.
III. The court found the proceedings of the zoning inspector and the
Board of Zoning Appeals to the [sic] constitutional.
IV. The court failed to consider the holding in In Re Appropriation as to
the importance of classifying a given area as having limited access.
V. The court failed to properly consider the existing easement to the
highway and one of the 2 properties awarded it in the first condemnation
proceeding.
Hocking App. No. 21CA4 7
VI. The court failed to consider the lack of legislation that would have
permitted the rezoning of the area.
VII. The court improperly condoned the production of a “corrective
deed.”
VIII. The court characterized the language in a in [sic] the first deed as
being “boilerplate” as if it had little legal effect which is not the case.
III. LEGAL ANALYSIS
{¶13} Although Devol identified eight assignments of error in her brief, she
presented one principal argument in support of all eight assignments.2 We consolidate
several of her assignments of error and address some of them out of order for ease of
discussion.
A. Standard of Review
{¶14} A common pleas court reviews the record to determine if the zoning
decision is arbitrary, capricious, unreasonable, illegal, or unconstitutional, or
unsupported by the preponderance of substantial, reliable, and probative evidence. The
standard of review for the court of appeals is more limited and strongly favors
affirmance. We review the common pleas court’s judgment only on questions of law and
must affirm unless the trial court erred in its interpretation or application of the law or the
decision is unsupported by a preponderance of evidence as a matter of law.
“In an R.C. 2506.01 administrative appeal, the common pleas court
considers the whole record and determines whether the administrative
2 App.R. 16(A)(7) requires a separate argument for each assignment of error. App.R. 12(A)(2) authorizes
us to disregard any assignment of error that an appellant fails to separately argue. Thus, we would be
within our authority to summarily overrule appellant's assignments of error and affirm the trial court's
judgment. See Crites v. Dingus, 4th Dist. Athens No. 07CA38, 2008-Ohio-7039; Mortgage Electronic
Registration Sys. v. Mullins, 161 Ohio App.3d 12, 2005-Ohio-2303, 829 N.E.2d 326, ¶ 22 (4th Dist.). In
the interests of justice, however, we will review the assignments of error.
Hocking App. No. 21CA4 8
order is ‘unconstitutional, illegal, arbitrary, capricious, unreasonable, or
unsupported by the preponderance of substantial, reliable, and probative
evidence.” Independence v. Office of the Cuyahoga Cty. Executive, 142
Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d 1182, ¶ 13, quoting R.C.
2506.04. “The court weighs the evidence to determine whether a
preponderance of reliable, probative, and substantial evidence supports
the administrative decision, and if it does, the court may not substitute its
judgment for that of the board.” Id. citing Dudukovich v. Lorain Metro.
Hous. Auth., 58 Ohio St.2d 202, 207, 389 N.E.2d 1113 (1979). “If it does
not, the court may reverse, vacate, or modify the administrative
decision.” Id.; R.C. 2506.04.
“Under R.C. Chapter 2506, the standard of review for a court of appeals is
even more limited.” Ellison v. Hillsboro, 2016-Ohio-1556, 63 N.E.3d 555, ¶
20(4th Dist.), citing Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio
St.3d 142, 147, 735 N.E.2d 433 (2000). “The court of appeals reviews the
common pleas court's judgment only on questions of law and does not
have the same extensive authority to weigh the evidence.” Independence
at ¶ 14, citing Henley at 147, 735 N.E.2d 433. “Within the ambit of
questions of law for appellate-court review is whether the common pleas
court abused its discretion [and] [t]he court of appeals must affirm unless it
finds, as a matter of law, that the trial court's decision is not supported by
a preponderance of reliable, probative, and substantial evidence.” Id.“In sum, the standard of review for courts of appeals in administrative
appeals is designed to strongly favor affirmance. It permits 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 Found. v. Bd. of Zoning Appeals of
Cleveland, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶
30; Ellison at ¶ 21.
In re Columbus Bituminous Concrete Corp., 2018-Ohio-2706, 114 N.E.3d 621, ¶ 15-17
(4th Dist.), rev’d on other grounds, sub nom. Columbus Bituminous Concrete Corp. v.
Harrison Twp. Bd. of Zoning Appeals, 160 Ohio St.3d 279, 2020-Ohio-845, 156 N.E.3d
841.
B. Zoning Inspector’s Duties
{¶15} In her first three assignments of error, Devol argues that the trial court
erred when it determined that the zoning inspector could review the deeds to the
Hocking App. No. 21CA4 9
properties at issue in determining whether to issue a permit. She contends that this
exceeded the authority of the zoning inspector and was unconstitutional because it
“involved something other than the ministerial acts which the city ordinance provided
authority of the zoning inspector * * *.” Devol cites no city ordinance, statute, or case
law to support her assertion that zoning inspectors are limited in the types of documents
they can review in carrying out their ministerial duties. It is within the zoning inspector’s
ministerial duties to grant or deny driveway permits and Devol does not contend
otherwise. Devol does not cite to nor have we found any case law that limits the types of
documents a zoning inspector may consider in carrying out his or her ministerial duties.
Nor have we found any case law that holds that a zoning inspector’s review of relevant
property deeds exceeds the inspector’s ministerial duties, exceeds the zoning authority
granted under R.C. Chapter 519, or is unconstitutional.
{¶16} The trial court relied upon Willow Grove, Ltd. v. Olmsted Township, 2015-
Ohio-2702, 38 N.E.3d 1133, ¶ 54, quoting Barrett Paving Materials, Inc. v. Bd. of Zoning
Appeals, 12th Dist. Clermont No. CA90-07-066, 119 WL 116344, *2 (June 24, 1991)
which described the inspector’s authority as ministerial with “a duty to issue a permit or
certificate where the property owner has complied with all legal requirements, and the
proposed use falls within the use classification applicable to the area where the owner
proposes to engage in the use.” “The role of a township zoning inspector in the
issuance of zoning permits under R.C. 519.17 has been described as ministerial in
nature. Actions by townships that exceed zoning authority granted under R.C. Chapter
519 are deemed invalid and unenforceable.” (Citations omitted.) Jeffrey Mann Fine
Hocking App. No. 21CA4 10
Jewelers, Inc. v. Sylvania Twp. Bd. of Zoning Appeals, 6th Dist. Lucas No. L-08-1013,
2008-Ohio-3503, ¶ 24.
{¶17} We find no error in the trial court’s interpretation and application of Willow,
supra. In Willow, the issue was whether the zoning commission and township trustees
had exceeded their statutory authority by denying Willow’s zoning application to build
residential townhouses. Willow, the property owner, argued that only the zoning
inspector – not the commission or the trustees – had authority to approve or deny the
application. The court agreed and found that the commission and trustees’ denial of the
application exceeded their statutory authority and usurped the sole power of the zoning
inspector, as described in R.C. Chapter 519. The court described the zoning inspector’s
duties as ministerial in nature and, as it relates to issuing or denying certificates, was to
insure: (1) the property owner has complied with all legal requirements and (2) the
proposed use fell within the applicable use classification.
{¶18} Devol points to nothing in Willow that discussed or limited the documents
a zoning inspector may review to insure that the property owner has complied with all
legal requirements; nor does she identify any such limitations in R.C. Chapter 519 or the
local zoning ordinances. Instead Devol makes the vague assertion, “I believe it would
take a city ordinance to properly classify the property and pass it through the various
steps * * * in order to classify property in the zoning law, and I don’t believe that has
been done.” As a result, she argues that she believes she has met the requirements “for
a permit to gain access to State Route 664, irrespective of the language of deeds in the
settlement entry, as the interpretation of these documents is beyond the authority of the
zoning inspector as well as the board of zoning appeals.”
Hocking App. No. 21CA4 11
{¶19} We find as a matter of law that the trial court correctly found that, at a
minimum, the zoning inspector had the authority to determine if Devol had “complied
with all legal requirements.” Devol sought to build a driveway across property she did
not own; the trial court correctly found that the zoning inspector could review the deeds
to the properties at issue to determine whether Devol had complied with all legal
requirements before denying the permit. We overrule Devol’s first, second and third
assignments of error.
C. ODOT’s Acquisition of Access Rights
{¶20} In her fourth and sixth assignments of error, Devol contends that the trial
court failed to consider Director of Highways v. Kramer, 23 Ohio App.2d 219, 262
N.E.2d 332 (11th Dist.1970) or the lack of a city or zoning ordinance declaring State
Route 664 to be a limited access highway. Kramer holds that an owner of property
abutting a public highway possesses ingress and egress rights “unless an appropriating
body has acquired a fee simple title along with ‘all right, title and interest’ to the land
taken, and the abutting landowner, who previously had the right of ingress and egress
to the highway, is compensated for his loss.” Id. at paragraph one of the syllabus. Here
the trial court applied the basic holding in Kramer and found that ODOT took the deed to
Parcel 8-WL with “all rights, titles, and interests in the fee simple in the property,
including limitation of access” and that this was part of an overall settlement, which
included compensation to Devol for the loss of her ingress and egress rights. Therefore
we find no error in the trial court’s interpretation and application of Kramer.
{¶21} To the extent that Devol now contends that ODOT’s appropriation was
defective for failure to follow R.C. Chapter 5519, we reject her argument. She fails to
Hocking App. No. 21CA4 12
identify the specific statutory provisions in Chapter 5519 she believes were violated.
And she likewise fails to identify the statutory provision that she contends requires the
local municipality, here the City of Logan, to pass a local ordinance declaring the
highway as “limited access” before ODOT can acquire her access rights. As ODOT
correctly argues, if Devol believed there was a defect in the 2004 appropriation
proceedings, her remedy was a direct appeal in that case, not a collateral attack here,
over a decade later. See Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d
375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 22-23 (“final judgments are meant to be just
that – final” and collateral attacks are disfavored except for a claim of lack of jurisdiction
or where the order was a product of fraud).
{¶22} We overrule her fourth and sixth assignments or error.
D. Access Restrictions in Parcel 9-EL
{¶23} In her fifth, seventh and eighth assignments of error, Devol argues that
ODOT effectively returned to her the abutting property owner’s right to access the
highway in Parcel 9-EL. She contends that the trial court failed to properly interpret the
language in the deed to Parcel 9-EL, calling it “boilerplate” and allowing for a corrective
deed.
{¶24} First, we note that there is nothing in the record indicating that the trial
court “allowed” a corrective deed or considered or interpreted any language contained
in a corrective deed for Parcel 9-EL. The trial court’s only reference to a corrective deed
for Parcel 9-EL was in its summary of ODOT’s testimony before the Zoning Board in
which ODOT stated, “if there was a problem in the deed for Parcel 9-EL that it was a
Hocking App. No. 21CA4 13
scrivener’s error that needed correction.” Instead, the trial court’s analysis focused on
the original deeds at issue and related documents considered by the Zoning Board.
{¶25} The trial court considered the language in the original deeds, surveys, the
terms of the Judgment Entry on Settlement, and the statements made by ODOT
representatives and determined that the original deed to Parcel 9-EL, which ODOT
conveyed to Devol, did not “restore” access rights to State Route 664 and there was no
reasonable basis for Devol to believe otherwise. The documents the trial court relied on
included: (1) explicit takings by ODOT of access rights to State Route 664 in Parcel 8-
WL; (2) a waiver from Devol of access rights to State Route 664; (3) ODOT’s
description of the State Route 664 project as one “to minimize conflict points along
State Route 664 to ensure maximum safety. Properties were acquired, driveways were
eliminated and safety along this corridor was re-established. Safety will not be
jeopardized by adding access points to State Route 664”; and (4) ODOT’s description of
subsequent additional transfers of properties from ODOT to Devol via a bidding process
which also clearly stated that the properties had no access rights to State Route 664.
{¶26} The trial court found that the original deed for Parcel 9-EL whereby ODOT
as grantor was divesting itself “of any and all abutter’s rights, including access rights”
did not “restore access rights to SR 664.” The court determined that the entire point of
the project and all property appropriations was to acquire access rights to State Route
664. Devol’s position that ODOT entered into a settlement agreement that included the
acquisition of all access rights “only to have a deed prepared as part of that settlement”
which restored access “is illogical.” Moreover, the trial court found that even if Devol’s
argument concerning Parcel 9-EL was believed (that ODOT restored access over
Hocking App. No. 21CA4 14
Parcel 9-EL), the newly created Parcel 8-WL nevertheless still blocked access to State
Route 664.
{¶27} As a matter of law, we find no error in the trial court’s determination that
the original deed to Parcel 9-EL did not grant access rights to State Route 664 to Devol
and ODOT was not “giving away the restrictions.” First, Devol failed to establish any
abutting rights associated with Parcel 9-EL. Based on the survey, it appears that Parcel
9-EL does not and never has abutted State Route 664. The documents reviewed by the
trial court provide a preponderance of reliable, probative, and substantial evidence that
Devol waived access rights to State Route 664 and she was compensated by ODOT for
the loss of those rights. Additionally, Devol knew that the purpose of ODOT’s
appropriation proceedings was to secure and limit access to State Route 664 for safety
reasons, the deed to Parcel 9-EL does not grant access over Parcel 8-WL to State
Route 664, and Devol purchased other properties from ODOT knowing that the
properties had no access rights to State Route 664; therefore Devol had no reasonable
basis to believe that ODOT was creating access rights to State Route 664 via the deed
to Parcel 9-EL.
{¶28} We overrule her fifth, seventh and eighth assignments of error.
IV. CONCLUSION
{¶29} The decision of the trial court is supported by a preponderance of reliable,
probative, and substantial evidence and the trial court did not abuse its discretion in
applying the law. We overrule all of Devol’s assignments of error and affirm the
judgment of the trial court.
JUDGMENT AFFIRMED.
Hocking App. No. 21CA4 15
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking
County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.