Access Ohio, L.L.C. v. Gahanna

[Cite as Access Ohio, L.L.C. v. Gahanna, 2020-Ohio-2908.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Access Ohio, LLC, :
Appellant-Appellant, :
No. 19AP-64
v. : (M.C. No. 17EVA-60434)
City of Gahanna, Ohio, et al., : (REGULAR CALENDAR)
Appellees-Appellees. :
D E C I S I O N
Rendered on May 12, 2020
On brief: Plank Law Firm, LPA, and David Watkins, for
appellant. Argued: David Watkins.
On brief: Frost Brown Todd, LLC, Frank J. Reed, Jr.,
Thaddeus M. Boggs, and Shane W. Ewald, for appellees.
Argued: Frank J. Reed, Jr.
APPEAL from the Franklin County Municipal Court,
Environmental Division
BEATTY BLUNT, J.
{¶ 1} Pursuant to R.C. 2506.04, appellant Access Ohio, LLC ("Access Ohio"),
appeals from the January 4, 2019 judgment of the Franklin County Municipal Court,
Environmental Division, in which that court affirmed the decision of appellees City of
Gahanna and City of Gahanna, Ohio Board of Zoning and Building Appeals (the "BZBA")
(collectively, the "City"), upholding the decision of the City of Gahanna, Ohio Planning
Commission (the "Planning Commission") denying a conditional use permit for three
parcels located in the city of Gahanna, Ohio. For the following reasons, we reverse the
judgment of the trial court.
No. 19AP-64 2
I. Facts and Procedural History
{¶ 2} The record reflects the following facts and procedural history. Access Ohio is
a provider of mental health services in in Central and Southwest Ohio. Access Ohio
purchased three parcels of real property commonly known as 121 James Road and 175 W.
Johnstown Road (the "Property") on September 25, and November 18, 2015, respectively.
The Property is located in the city of Gahanna and consists of a 100-bed nursing home, an
office building, parking and drive areas, and landscaping. The Property is currently zoned
in the Community Commercial District ("CC District").
{¶ 3} Access Ohio purchased the Property for the purpose of operating an
outpatient drug and alcohol addiction treatment facility and to use the nursing home for
living quarters for inpatient treatment. Access Ohio did not plan to enlarge or expand the
nursing home building.
{¶ 4} On August 8, 2016, Access Ohio filed its initial application for conditional use,
which stated that the conditional use request was "to permit living quarters as an integral
part of a permitted use building." (Access Ohio's Trial Brief at 4.) On December 7, 2016,
Access Ohio first appeared before the Planning Commission to present its request for the
conditional use. Access Ohio appeared several more times before the Planning
Commission: on January 18, 2017 (denominated as a "Planning Commission Workshop");
on January 25, 2017; on February 8, 2017; on February 15, 2017 (denominated as a
"Planning Commission Workshop"); and lastly, on February 22, 2017, at which hearing the
Planning Commission voted unanimously against approval of the requested conditional
use.
{¶ 5} Access Ohio appealed the decision of the Planning Commission to the BZBA
and the matter was heard on May 4, 2017. On May 23, 2017, the BZBA certified its Record
of Action which unanimously upheld the decision of the Planning Commission and denied
Access Ohio's appeal.
{¶ 6} On June 14, 2017, pursuant to R.C. 2506.04, Access Ohio filed an appeal with
the Franklin County Municipal Court, Environmental Division (the "trial court"). The
matter proceeded to hearing on April 11, 2018.
{¶ 7} On January 4, 2019, the trial court issued its decision and entry affirming the
decision of the BZBA to uphold the decision of the Planning Commission denying the
No. 19AP-64 3
conditional use permit sought by Access Ohio. More specifically, the trial court found that
"[a]n inpatient facility such as the one proposed here is not a conditional use permitted
under Gahanna Codified Ordinances 1153.03(a)(2). Consequently, the decision of the
Board of Zoning and Building Appeals upholding the Planning Commission decision is
AFFIRMED." (Emphasis sic.) (Decision and Entry at 5.)
{¶ 8} This timely appeal followed.
II. Assignments of Error
{¶ 9} Access Ohio assigns the following three errors for our review:
[1.] The Trial Court erred by finding that Access Ohio's
proposed use of the Property was not a conditional use in the
City of Gahanna's Community Commercial (CC) District.
[2.] The Trial Court erred by not considering Appellant's
objection to the City of Gahanna Planning Commission's
representation by counsel before the City of Gahanna's Board
of Zoning and Building Appeals.
[3.] The Trial Court erred by not finding the Appellant's
proposed use was a permitted use in the City of Gahanna's CC
District.
III. Standard of Review
{¶ 10} We begin by setting forth the standards of review applicable to the trial court
and to this court. In an appeal brought pursuant to R.C. Chapter 2506, the trial court,
acting as an appellate court, may find that the order or decision appealed from 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. "Consistent with its findings, the court may affirm, reverse, vacate, or modify the
order, adjudication, or decision, or remand the cause 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." Id. The grounds for reversal are set forth in R.C. 2506.04 as "a
disjunctive list, so each ground must be read to have a distinct meaning." Shelly Materials,
Inc. v. Streetsboro Planning & Zoning Comm., __ Ohio St.3d __, 2019-Ohio-4499, ¶ 12,
citing Freedom Rd. Found. v. Ohio Dept. of Liquor Control, 80 Ohio St. 3d 202, 205 (1997).
Thus, the presence of any one of the six grounds listed in R.C. 2506.04 will independently
justify a trial court's reversal of an administrative order. Id.
No. 19AP-64 4
{¶ 11} The Supreme Court of Ohio has stated that although the scope of review for
a trial court in an R.C. Chapter 2506 administrative appeal is not de novo, such an appeal
" ' "often in fact resembles a de novo proceeding." ' " Shelly Materials at ¶ 13, quoting Kisil
v. Sandusky, 12 Ohio St. 3d 30, 34 (1984), quoting Cincinnati Bell, Inc. v. Glendale, 42 Ohio
St.2d 368, 370 (1975). The trial 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
administrative agency." Id., quoting Independence v. Office of the Cuyahoga Cty.
Executive, 142 Ohio St. 3d 125, 2014-Ohio-4650, ¶ 13. The trial court is not permitted to
" 'blatantly substitute its judgment for that of the agency, especially in areas of
administrative expertise.' " Id., quoting Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio
St.2d 202, 207 (1979). Nevertheless, the trial court has " 'the power to examine the whole
record, make factual and legal determinations, and reverse the [administrative agency's]
decision if it is not supported by a preponderance of substantial, reliable, and probative
evidence.' " Id., quoting Cleveland Clinic Found. v. Bd. of Zoning Appeals, 141 Ohio St. 3d
318, 2014-Ohio-4809, ¶ 24, citing Dudukovich at 207.
{¶ 12} A trial court's decision in an R.C. Chapter 2506 administrative appeal may be
appealed to the court of appeals but only on "questions of law." Shelly Materials at ¶ 17,
citing R.C. 2506.04. Thus, "under R.C. 2506.04, an appeal to the court of appeals is 'more
limited in scope' than was the appeal to the trial court." Id., citing Kisil, at 34; see id. at 34,
fn. 4. While the trial court "is required to examine the evidence, the court of appeals may
not weigh the evidence." Id., citing Independence at ¶ 14. In addition to deciding purely
legal issues, which are reviewed de novo, the court of appeals is charged with determining
whether the trial court abused its discretion, "which in this context means reviewing
whether the lower court abused its discretion in deciding that an administrative order was
or was not supported by reliable, probative, and substantial evidence." Id., citing Boice v.
Ottawa Hills, 137 Ohio St. 3d 412, 2013-Ohio-4769, ¶ 7, citing Kisil at 34.
{¶ 13} Accordingly, our determination in the within matter is limited to whether the
trial court made any errors of law assigned on appeal, which we review de novo, and
whether the trial court abused its discretion in applying the law. One Neighborhood
No. 19AP-64 5
Condominium Assn. v. Columbus, Dept. of Pub. Util., Div. of Water, 10th Dist. No. 16AP-
653, 2017-Ohio-4195, ¶ 14.
IV. Law and Analysis
A. First Assignment of Error
{¶ 14} In its first assignment of error, Access Ohio contends the trial court erred
when it found that Access Ohio's proposed use of the Property was not a conditional use in
Gahanna's CC District. We agree.
{¶ 15} "The application of [a zoning statute] to the facts is a 'question of law'—'an
issue to be decided by the judge, concerning the application or interpretation of the law.' "
Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St. 3d 142, 148 (2000), citing Black's
Law Dictionary 1260 (7th Ed.1999). Accord, Lang v. Ohio Dept. of Job & Family Servs.,
134 Ohio St. 3d 296, 2012-Ohio-5366, ¶ 12 ("A question of statutory construction presents
an issue of law that we determine de novo on appeal."). That the application of such a
zoning statute involves a consideration of facts or the evidence does not turn this question
into a question of fact. Henley at 148, citing O'Day v. Webb, 29 Ohio St. 2d 215 (1972),
paragraph two of the syllabus.
{¶ 16} Nevertheless, in interpreting a zoning ordinance, " '[a]n administrative
agency's reasonable interpretation of local zoning codes is recognized as an area of
administrative expertise and is to be presumed valid.' " JP Morgan Chase Bank, Inc. v.
Dublin, 10th Dist. No. 10AP-965, 2011-Ohio-3823, ¶ 11, quoting Glass City Academy, Inc.
v. Toledo, 179 Ohio App. 3d 796, 2008-Ohio-6391, ¶ 18 (6th Dist.), citing Lamar Outdoor
Advertising, Inc. v. Dayton Bd. of Zoning Appeals, 2d Dist. No. 20158, 2004-Ohio-4796,
¶ 6, and Dick v. Kelleys Island Bd. of Zoning, 6th Dist. No. E-86-63 (June 19, 1987). Unless
the interpretation of a local zoning code is clearly in error, a court should defer to the
administrative interpretation. In re Aultman Hosp., 80 Ohio App. 3d 134, 139 (10th
Dist.1992). Such deference "is based upon an awareness that an administrative judgment
is '* * * the product of administrative experience, appreciation of the complexities of the
problem, realization of the statutory policies and responsible treatment of the facts.' " Id.,
quoting Hamilton Cty. Bd. of Mental Retardation & Developmental Disabilities v.
Professionals Guild of Ohio, 46 Ohio St. 3d 147, 151 (1989).
No. 19AP-64 6
{¶ 17} In this case, it is clear from the record that under the zoning ordinances
applicable to this matter, the City's own interpretation of those ordinances resulted in its
conclusion that Access Ohio's proposed use of the Property was a conditional use within the
City's CC District. Because we find the City's interpretation was reasonable and not clearly
in error, it was error for the trial court to have disregarded the City's finding on this issue.
{¶ 18} As noted previously, the Property is currently zoned in the CC District of
Gahanna. Chapter 1153 of the Codified Ordinances of the city of Gahanna governs "General
Commercial Districts," and section 1153.03 specifically governs "CC Community
Commercial District[s]." City of Gahanna Codified Ordinances Section 1153.03(a) provides
as follows:
(a) Permitted Uses. Only the uses included under the following
listed numbers or as otherwise specified in this district shall be
permitted in the Community Commercial District."
Section 1153.03(a)(2) further provides that permitted uses include "809 Health and allied
services, not elsewhere classified." Thus, "health and allied services" which are not
classified elsewhere in the zoning ordinances are permitted uses in the City's CC District.
{¶ 19} Further, City of Gahanna Codified Ordinances section 1153.03(b)(2) provides
as follows:
(b) Conditional Uses. The following uses shall be allowed in
the Community Commercial District, subject to the approval in
accordance with Chapter 1169.
(2) Residential. Living quarters as an integral part of a
permitted use building.
Thus, where living quarters are an integral part of the permitted use of "health and allied
services," such use is a conditional use in the City's CC district, "subject to the approval in
accordance with Chapter 1169."
{¶ 20} In turn, Chapter 1169 of the Codified Ordinances of the City of Gahanna
governs the "Procedure for Authorizing a Conditional Use," and provides as follows:
(a) Approval. The Planning Commission shall approve an
application for a conditional use if the following four conditions
are met:
No. 19AP-64 7
(1) The proposed use is a conditional use of the zoning district
and the applicable development standards established in this
Zoning Ordinance are met.
(2) The proposed development is in accord with appropriate
plans for the area.
(3) The proposed development will not have undesirable effects
on the surrounding area.
(4) The proposed development will be in keeping with the
existing land use character and physical development potential
of the area.
City of Gahanna Codified Ordinances Section 1169.04(a)(1) through (4). Thus, pursuant to
the clear language of the foregoing ordinance, an application for a conditional use must be
approved by the Planning Commission where all four criteria under section 1169.04(a) are
met.
{¶ 21} As noted above, the record makes clear that the City's own interpretation of
the foregoing ordinances led to its conclusion that Access Ohio's proposed use of the
Property was a conditional use in Gahanna's CC District. Counsel for the City
acknowledged this during the April 11, 2018 hearing in the trial court when stating "[a]nd I
believe all parties now agree that the residential component of the drug and alcohol
treatment facility is the conditional use." (Tr. at 21.) Prior to this declaration in open court,
the City also stated in its trial brief, after referring to section 1153.03, "[t]he overnight,
residential component makes this a conditional use in the CC district, under the Code
establishing uses in the CC district." (The City's Trial Brief at 6.) Furthermore, the
February 15, 2017 (updated) Staff Comments relating to Access Ohio's conditional use
application and whether all four criteria under section 1169.04(a) had been met reflect the
following as the City's response to the first criterion, i.e., Section 1169.04(a)(1):
It has been determined by the City Attorney that the proposed
use is a conditional use of the Community Commercial zone
district. It is staff's opinion that the request is consistent with
this condition.
(Emphasis sic.) (Feb. 15, 2017 (updated) Staff Comments at 1.)
{¶ 22} In short, throughout the course of the proceedings of this matter, the City has
been unwavering in its position that the proposed use was a conditional use under section
No. 19AP-64 8
1169.04(a)(1). Indeed, all arguments presented by both sides during the hearing in the trial
court related to the other three criteria for obtaining approval for the conditional use under
section 1169.04(a)(2), (3), and (4). Although now, on appeal, the City asserts that "[h]aving
the benefit of the Environmental Court's analysis of this legal question, the City is
persuaded that the Environmental Court reached the correct legal conclusion," we are
constrained by the record in this matter, and nothing in the record supports any conclusion
other than that the City determined that Access Ohio's proposed use of the Property was a
conditional use within the City's CC District based on the City's own interpretation of the
applicable zoning ordinances. (The City's Appellate Brief at 10.) Furthermore, we find this
interpretation entirely reasonable and not clearly in error. Therefore, it was improper for
the trial court to have ignored the City's interpretation of its own zoning ordinances which
led to the City's conclusion that Access Ohio's proposed use of the Property was a
conditional use within the City's CC District. JP Morgan Chase Bank at ¶ 11; Aultman
Hosp.
{¶ 23} Not only was it improper for the trial court to disregard the City's
determination that the proposed use was a conditional use under the applicable zoning
ordinances and to find instead that it was not such a conditional use, but in coming to its
own conclusion, the trial court engaged in a flawed statutory construction analysis. The
trial court began its analysis by finding that under 1153.03(a)(2), the permitted use of
"[809-H]ealth and allied services, not elsewhere classified" is vague because "the
ordinances presume health services will be defined elsewhere, but do not provide those
definitions." (Decision and Entry at 4.)
{¶ 24} We do not agree that this language is vague. The language evokes a general,
"catch-all" type of category of permitted uses which purposefully and clearly allows for
health and allied services that are not specifically provided for elsewhere in the ordinances.
Although such a "catch-all" type category is certainly broad, merely because an ordinance
may be broad does not render it impermissibly vague. See, e.g., Lesiak v. Ohio Elections
Comm., 128 Ohio App. 3d 743, 749 (10th Dist.1998) (finding that a broadly worded statute
prohibiting direct or indirect solicitation of contributions, subscriptions or payments from
candidates for political office was neither vague nor ambiguous); State ex rel. HGC Enters.
v. Buehrer, 10th Dist. No. 12AP-482, 2013-Ohio-2108, ¶ 14 (stating that a statute is not
No. 19AP-64 9
vague if the meaning of words in common usage can be ascertained from the meaning
commonly attributed to them). Furthermore, we surmise, although it is certainly not clear
from the trial court's decision, that when the trial court stated it found this language to be
"vague,"1 the trial court meant that it found it to be "ambiguous." We likewise do not find
this ordinance to be ambiguous. Even if we did find it ambiguous, the ordinance would be
required to be construed in favor of Access Ohio. Cleveland Clinic at ¶ 34, citing In re
Appeal of Univ. Circle, Inc. v. Cleveland, 56 Ohio St. 2d 180, 184 (1978). Moreover, as
previously set forth, if it were ambiguous, the court should defer to the construction of the
statute as formulated by the City, unless that construction is clearly in error. Aultman
Hosp. at 139.
{¶ 25} Next, the trial court determined that because the permitted use of "[809-
H]ealth and allied services, not elsewhere classified" is vague, it must look outside of the
ordinances to interpret it. (Decision and Entry at 4.) The trial court observed that the City's
zoning ordinances appeared to use the Standard Industrial Classification ("SIC") categories
as a basis for its permitted uses, so the trial court reviewed the classification for SIC 809 as
set forth in the SIC Manual (1987) promulgated by the Occupational Safety and Health
Administration, United States Department of Labor.2 Although the trial court's decision
does not explain this, the classification for SIC 809,3 set forth as "Industry Group 809:
Miscellaneous Health And Allied Services, Not Elsewhere Classified," includes three
subgroups as follows:
 8092 Kidney Dialysis Centers
 8093 Specialty Outpatient Facilities Not Elsewhere
Classified [–] Establishments primarily engaged in
outpatient care of a specialized nature with permanent
facilities and with medical staff to provide diagnosis,
1The concept of "vagueness" within a statute is almost entirely confined to statutes proscribing criminal
behavior. See, e.g., Traditions Tavern v. Columbus, 10th Dist. No. 06AP-367, 2006-Ohio-6655, ¶ 22, quoting
United States v. Harriss, 347 U.S. 612, 617 (1954) (" 'The constitutional requirement of definiteness is violated
by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated
conduct is forbidden by the statue.' ").
2 The trial court retrieved the information from the website
https://www.osha.gov/pls/imis/sic_manual.html, and we have therefore used the same source.
3 SIC 809 is itself a subgroup of "Major Group 80: Health Services."
https://www.osha.gov/pls/imis/sic_manual.display?id=67&tab=group.
No. 19AP-64 10
treatment, or both for patients who are ambulatory and
do not require inpatient care.
***
 8099 Health and Allied Services, Not Elsewhere
Classified [–] Establishments primarily engaged in
providing health and allied services, not elsewhere
classified.
See https://www.osha.gov/pls/imis/sic_manual.display?id=67&tab=group. Subgroup
8093 is further broken down to include nine types of outpatient facilities, including
"Alcohol treatment, outpatient clinics" and "Drug treatment, outpatient clinics."
https://www.osha.gov/pls/imis/sic_manual.display?id=202&tab=description.
{¶ 26} Although not elucidated in the trial court's decision, the trial court appears to
have focused on subgroup 8093, "Specialty Outpatient Facilities,", presumably because
that subgroup specifically includes alcohol treatment outpatient facilities and drug
treatment outpatient facilities, which is part of Access Ohio's plan for the Property.
(Decision and Entry at 4.) The court then extrapolated that "[i]f living quarters are an
integral part of Access Ohio's proposed use, then that use is by definition not an outpatient
facility," and "[i]f the facility is not an outpatient facility, it is not permitted by the zoning
ordinances." Id. Thus, the trial court concluded that only outpatient drug and alcohol
treatment facilities were permitted uses under the City's zoning ordinances. Put another
way, it appears from the trial court's decision that the trial court decided that because
subgroup 8093 of the SIC Manual exists, its classification of "Specialty Outpatient
Facilities, Not Elsewhere Classified" must have been what the legislative body for the City
of Gahanna meant when it included "[809-H]ealth and allied services, not elsewhere
classified" as a permitted use under section 1153.03(a)(2).
{¶ 27} But the trial court's reasoning is not only entirely circular, it improperly
conflates what the zoning ordinances include as permitted uses with what the zoning
ordinances allow as conditional uses. The trial court's analysis and wholly unexplained
focus on subgroup 8093 also ignores the existence of the more general, "catch-all" subgroup
of 8099 "Health and Allied Services, Not Elsewhere Classified" under SIC 809 that could
have just as easily been what the City intended to mean when it included "809 Health and
No. 19AP-64 11
Allied Services, not elsewhere classified" as a permitted use under section 1153.03(a)(2).4
In any event, the conjecture on the part of and the assumptions and leaps of logic made by
the trial court necessary to reach its own conclusion reveals precisely why a court should
not substitute its own interpretation for that of the administrative body's in interpreting its
own zoning ordinances. It was error for the trial court to disregard the City's own
reasonable interpretation of its zoning ordinances under which it found Access Ohio's
proposed use was a conditional use.
{¶ 28} It was likewise error for the trial court to determine that, at the urging of
Access Ohio and contrary to the position of the City, subparts (2), (3), and (4) of section
1169.04(a) are inapplicable to this case. (Decision and Entry at 3.) Although the City
argued that the terms "use" and "development" are interchangeable for purposes of the
criterion set forth in section 1169.04(a)(1) through (4), the trial court rejected this argument
and instead agreed with Access Ohio that these sections are not applicable because Access
Ohio was not seeking to develop the Property. (Decision and Entry at 3.) We do not agree
with this conclusion.
{¶ 29} Chapter 1123 of the Codified Ordinances of the City of Gahanna encompasses
"Definitions," and section 1123.01(a) of that Chapter provides as follows:
Words not particularly defined herein, shall be defined as
found in the most recent edition of The Latest Illustrated Book
of Development Definitions, by Harvey S. Moskowitz and
Carl G. Lindbloom, published by Rutgers University. Words
not particularly defined therein shall be defined as found in the
most recent edition of the Dictionary of Architecture and
Construction, published by McGraw Hill. Words not
particularly defined therein shall be defined as found in
Webster's New Universal Unabridged Dictionary.
Section 1123.63 specifically defines "use" as follows:
Use means the specific purpose for which land or a building is
designed, arranged, intended or for which it is or may be
occupied or maintained. The term "permitted use" or its
4To us, this seems to be the more likely scenario, given that the language of the subgroup 8099 classification
mirrors the language of the permitted use under section 1153.03(a)(2) of the City's zoning code.
No. 19AP-64 12
equivalent shall not be deemed to include any nonconforming
use.
(Emphasis sic.) The term "development," however, is not specifically defined. Thus,
pursuant to section 1123.01(a), to determine what is meant by that term, we must look to
the outside sources set forth in the ordinance in the order in which they appear.
{¶ 30} According to The Latest Illustrated Book of Development as cited to by the
City in its trial brief and at the hearing before the trial court, the definition of "development"
includes "the…conversion…of any structure; or any use or extension of the use of the land."
(The City's Appellate Brief at 9.) The City determined that "[t]he conversion of a former
nursing facility for the elderly into an outpatient and overnight, residential drug and alcohol
treatment [facility] is within the definition of 'development,' " and therefore Access Ohio
was required to meet all four subparts of the conditional use ordinance, i.e., section
1169.04(a), in order to obtain approval for a conditional use. (The City's Appellate Brief at
9.) We find this interpretation to be reasonable and not clearly in error. Therefore, it was
improper for the trial court to disregard the City's interpretation of its own ordinances
which led to the City's determination that Access Ohio must meet all four criteria under
section 1169.04(a) before being granted a conditional use permit. JP Morgan Chase Bank
at ¶ 11; Aultman Hosp. at 139.
{¶ 31} In sum, the City interpreted its own zoning ordinances as allowing Access
Ohio's proposed use as a conditional use under section 1169.04(a)(1), so long as the other
three criteria set forth in section 1169.04(a)(2) through (4) were met. At the agency level,
the City—via the BZBA—found those other three criteria had not been met, and, therefore,
the application of Access Ohio for a conditional use permit was denied. The trial court
should have accepted the City's reasonable interpretation of its own zoning ordinances and
performed the requisite analysis of the other three criteria. More specifically, the trial court
should have examined the entire record, weighing the evidence to determine whether a
preponderance of substantial, reliable, and probative evidence supports the City's decision
to deny the application of Access Ohio for a conditional use permit. Because the trial court
failed to undertake the requisite analysis and instead found that Access Ohio's proposed
use of the Property was not a conditional use in the City's CC District, the trial court erred.
{¶ 32} Accordingly, we sustain Access Ohio's first assignment of error.
No. 19AP-64 13
B. Second Assignment of Error
{¶ 33} In its second assignment of error, Access Ohio asserts that the trial court
erred by not considering its objection to the Planning Commission's representation by
counsel before the BZBA. We disagree.
{¶ 34} In support of its argument that the Planning Commission should not have
been represented by counsel at the BZBA hearing, Access Ohio cites to Safest
Neighborhood Assn. v. Athens Bd. of Zoning Appeals, 4th Dist. No. 12CA32, 2013-Ohio-
5610, a Fourth District case that held neither a Planning Commission nor a Board of Zoning
Appeals has standing to appeal a trial court's reversal of their decisions. But in making this
argument, Access Ohio is confusing the Planning Commission's right to file an appeal with
this court, which under Safest Neighborhood it would not have, with its right to be
represented on appeal as an appellee. In other words, just because neither the Planning
Commission nor the BZBA would have the right to appeal to this court if the trial court had
reversed the BZBA's decision—which is not what happened in this case in any event—this
does not mean that the Planning Commission, which is deemed the "appellee" for purposes
of an appeal to the BZBA pursuant to section 147.03(b) of the City of Gahanna Codified
Ordinances, does not have the right to be represented by counsel at the BZBA hearing.
{¶ 35} Furthermore, although Access Ohio argues it was "improper and unfair" for
the BZBA to permit the hearing to go forward over Access Ohio's objection and a "violation
of Access' due process rights" for the Planning Commission to be represented by counsel,,
Access Ohio fails to explain how it was unfair or in what way its due process rights were
violated. (Access Ohio's Appellate Brief at 27, 26.) We do not find that the Planning
Commission being represented by special counsel at the BZBA hearing violated Access
Ohio's due process rights or otherwise resulted in any prejudice to Access Ohio, and the
trial court did not err by not considering this objection.
{¶ 36} Accordingly, we overrule Access Ohio's second assignment of error.
C. Third Assignment of Error
{¶ 37} In its third assignment of error, Access Ohio asserts the trial court erred by
not finding that Access Ohio's proposed use of the Property was a permitted use in the City's
CC District. We disagree.
No. 19AP-64 14
{¶ 38} Access Ohio's argument on this point is premised on section 1123.33 of the
City of Gahanna's zoning code. That section provides as follows:
Hospital, nursing home, rest home, convalescent home, home
for substance abusers means a building or part of a building
used for a hospital, the nursing and care of convalescents, aged
people, and/or substance abusers, which must meet the
provisions for the same found in the Ohio Revised Code and
any proper and legal operations promulgated thereunder.
(Emphasis omitted; added.) Access Ohio first points out that hospitals, nursing homes, rest
homes and convalescent homes are all permitted uses under the City's zoning code. Access
Ohio then asserts that because "home for substance abusers" is defined in the same section
as the foregoing permitted uses, "home for substance abusers" must likewise be a permitted
use.
{¶ 39} We find no merit in Access Ohio's position. Rather, we agree with the City
that the term "home for substance abusers" is an orphan term that is not used anywhere
else in the zoning code, as even Access Ohio concedes. Because "home for substance
abusers" is not specifically included as a permitted use under section 1153.03(a), which
clearly provides that "[o]nly the uses included under the following listed numbers or as
otherwise specified in this district shall be permitted in the Community Commercial
District," it is not a permitted use.
{¶ 40} Accordingly, we overrule Access Ohio's third assignment of error.
V. Disposition
{¶ 41} In summary, Access Ohio's first assignment of error is sustained, its second
and third assignments of error are overruled. The judgment of the Franklin County
Municipal Court, Environmental Division, is reversed, and this cause is remanded to that
court for further proceedings consistent with this decision.
Judgment reversed and
cause remanded.
KLATT and LUPER SCHUSTER, JJ., concur.
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