Beach v. Batavia Twp. Bd of Zoning Appeals

[Cite as Beach v. Batavia Twp. Bd of Zoning Appeals, 2021-Ohio-2876.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
MICHAEL BEACH, et al., :
Appellants, : CASE NO. CA2021-02-006
: OPINION
- vs - 8/23/2021
:
BATAVIA TOWNSHIP BOARD OF :
ZONING APPEALS,
:
Appellee.
CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2019 CVF 1535
Dinsmore & Shohl LLP, and Brian S. Sullivan and Andrew B. Cassady, for appellants.
Nichols, Speidel & Nichols, and David J. Frey, for appellee.
S. POWELL, J.
{¶ 1} Appellants, Michael Beach and Beach's Trees Selective Harvesting, LLC
(collectively, "Beach"), appeal the decision of the Clermont County Court of Common Pleas
denying Beach's appeal from a decision issued by appellee, Batavia Township Board of
Zoning Appeals ("BTBZA"), rejecting Beach's conditional use application to build a
recreational vehicle storage facility on Beach's property located at 4165 Taylor Road,
Batavia Township, Clermont County, Ohio ("Property"). For the reasons outlined below, we
Clermont CA2021-02-006
reverse and remand this matter to the common pleas court for further proceedings.
Facts and Procedural History
{¶ 2} This case presents a unique, although fairly straightforward set of facts.
There are, however, several undisputed facts that are necessary to understand this case.
First, there is no dispute that the Property, which consists of 21.034 acres of mostly
undeveloped farmland, is located on the south side of Taylor Road approximately 1,675
feet west of Clough Pike in Batavia Township, Clermont County, Ohio. There is also no
dispute that the Property is zoned "I" Industrial District under Article 30 of the Batavia
Township Zoning Resolution ("BTZR"). There is further no dispute that a "Recreational
Vehicle Storage Facility" is a conditionally permitted use for property, like the Property at
issue in this case, zoned "I" Industrial District under Article 30.04 Section N of the BTZR.
Lastly, there is no dispute that the Property is located across Taylor Road from the Clermont
County Airport ("Airport"). This includes a portion of the Airport's "runway protection zone."1
{¶ 3} On June 27, 2019, Beach filed a conditional use application with the BTBZA
seeking approval to build a recreational vehicle storage facility on the Property, i.e., a
parking lot, where Beach intended to park campers, RVs, recreational equipment, and cars.
The record indicates that the recreational vehicle storage facility at issue would be built on
the Property approximately 500 to 550 feet south of Taylor Road directly across the street
from the Airport.
{¶ 4} On July 18, 2019, a hearing before the BTBZA began on Beach's conditional
use application. However, rather than the BTBZA issuing its decision that day, the hearing
was instead continued and reconvened approximately one month later on August 15, 2019.
1. Information in the record obtained from the Federal Aviation Administration, Central Region Airports
Division, defines an airport's "runway protection zone" as a trapezoidal area "off the end of the runway end
that serves to enhance the protection of people and property on the ground" in the event that an aircraft lands
and/or crashes beyond the end of the airport's runway.
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The hearing was then again continued so that Beach could obtain additional information
regarding the project from the Federal Aviation Administration ("FAA"). The hearing
ultimately concluded on November 21, 2019. The BTBZA heard testimony and accepted
evidence from several sources during this hearing. This includes a study from the FAA that
found "the described structure would have no substantial adverse effect on air navigation."
This also includes testimony, as well as photographic evidence, establishing that only one
aircraft had ever crashed on the Property since the Airport's construction over a half-century
ago in 1968.2
{¶ 5} On December 16, 2019, the BTBZA issued its decision in a 3-2 vote rejecting
Beach's conditional use application. In so holding, the majority of the BTBZA members
determined that allowing Beach to construct a recreational vehicle storage facility on the
Property would be hazardous or disturbing to existing or future neighboring uses. The
majority of the BTBZA members also determined that allowing Beach to construct a
recreational vehicle storage facility on the Property would unreasonably hinder or
discourage the appropriate use and enjoyment of the adjacent land, buildings, and
structures. This includes the Airport located across the street from the Property.
{¶ 6} On December 19, 2019, Beach appealed the BTBZA's decision to the
common pleas court pursuant to R.C. 2506.01. The common pleas court heard oral
arguments on Beach's appeal on October 3, 2020. Following oral arguments, the common
pleas court took the matter under advisement.
{¶ 7} On January 15, 2021, the common pleas court issued a decision affirming the
BTBZA's decision rejecting Beach's conditional use application upon finding there were
"ample facts" to support the BTBZA's decision. The common pleas court reached this
2. The record indicates that this crash occurred on July 6, 2004 involving a Grumman American AA-1 airplane
that was unable to safely take off due to the aircraft containing too heavy of a load.
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decision despite specifically acknowledging that the BTBZA's decision may seem "illogical"
and "arbitrary" given the fact that, in accordance with Article 30.02 of the BTZR, Beach
could have built several other structures on the Property without the need to seek the
BTBZA's approval. Pursuant to BTZR Article 30.02 Sections F and I, which sets forth the
principally permitted uses for property zoned "I" Industrial District, this includes an
"Automobile, Motorcycle, Recreational Vehicle, Truck, Trailer and Farm Implement Sales;
New or Used" and a "Self-Service Storage Facility."
Appeal
{¶ 8} Beach now appeals the common pleas court's decision, raising a single
assignment of error for review. In his single assignment of error, Beach argues the common
pleas court erred by affirming the BTBZA's decision rejecting Beach's conditional use
application. We agree.
Standard of Review
{¶ 9} "R.C. Chapter 2506 governs the standards applied to appeals of
administrative agency decisions." Hindu Soc. of Greater Cincinnati v. Union Twp. Bd. of
Zoning Appeals, 12th Dist. Clermont No. CA2018-11-081, 2019-Ohio-2494, ¶ 17, citing
Hutchinson v. Wayne Twp. Bd. of Zoning Appeals, 12th Dist. Butler No. CA2012-02-032,
2012-Ohio-4103, ¶ 14. Pursuant to R.C. 2506.04, a common pleas court reviewing an
administrative appeal "'weighs the evidence in the whole record and determines whether
the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or
unsupported by the preponderance of the substantial, reliable, and probative evidence.'"
Bingham v. Wilmington Bd. of Zoning Appeals, 12th Dist. Clinton No. CA2012-05-012,
2013-Ohio-61, ¶ 6, quoting Key-Ads, Inc. v. Warren Cty. Bd. of Commrs., 12th Dist. Warren
No. CA2007-06-085, 2008-Ohio-1474, ¶ 7. A board of zoning appeals' decision is
presumed to be valid and the burden is upon the party contesting the board's determination
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to prove otherwise. Terrace Park v. Anderson Twp. Bd. of Zoning Appeals, 1st Dist.
Hamilton Nos. C-140741 and C-140745, 2015-Ohio-4602, ¶ 13.
{¶ 10} "'An appeal to the court of appeals, pursuant to R.C. 2506.04, is more limited
in scope."' Queen v. Union Twp. Bd. of Zoning Appeals, 12th Dist. Fayette No. CA2015-
05-011, 2016-Ohio-161, ¶ 13 quoting Kisil v. Sandusky, 12 Ohio St.3d 30, 34, (1984). "[T]he
standard of review for courts of appeals in administrative appeals is designed to strongly
favor affirmance." Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals, 141 Ohio
St.3d 318, 2014-Ohio-4809, ¶ 30. "'[T]his court on review is without jurisdiction to substitute
its judgment for that of the [common pleas] court.'" Smith v. Warren Cty. Rural Zoning Bd.
of Zoning Appeals, 12th Dist. Warren No. CA2018-07-078, 2019-Ohio-1590, ¶ 18, quoting
In re Lehman, 10th Dist. Franklin No. 77AP-340, 1977 Ohio App. LEXIS 7449, *4-5 (Dec.
27, 1977). Rather, "this court must affirm the common pleas court's decision unless it finds,
as a matter of law, that the lower court's decision was not supported by a preponderance
of reliable, probative, and substantial evidence." Taylor v. Wayne Twp. Bd. of Trustees,
12th Dist. Butler No. CA2008-02-032, 2009-Ohio-193, ¶ 10.
{¶ 11} "Within the ambit of questions of law for appellate-court review is whether the
common pleas court abused its discretion[.]" Independence v. Office of the Cuyahoga Cty.
Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, ¶ 14. An abuse of discretion is indicated
where there is an arbitrary, unreasonable, or unconscionable attitude on the part of the
common pleas court. Natl. Amusements, Inc. v. Union Twp. Bd. of Zoning Appeals, 12th
Dist. Clermont No. CA2002-12-107, 2003-Ohio-5434, ¶ 7. An "arbitrary" decision "is one
made 'without consideration of or regard for facts [or] circumstances.'" State v. Beasley,
152 Ohio St.3d 470, 2018-Ohio-16, ¶ 12 quoting Black's Law Dictionary 125 (10th Ed.2014).
A decision is "unreasonable" where it is not supported by a sound reasoning process.
Nationwide Agribusiness Ins. Co. v. Heidler, 12th Dist. Clinton Nos. CA2018-06-003,
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CA2018-07-004, CA2018-09-012, and CA2018-09-015, 2019-Ohio-4311, ¶ 46; AAAA
Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161
(1990) ("[a] decision is unreasonable if there is no sound reasoning process that would
support that decision").
Analysis
{¶ 12} Without question, the facts of this case are unique. However, taken at its
simplest form, this case is about whether a township board of zoning appeals can deny a
business' conditional use application requesting permission to park recreational vehicles on
its property located directly across the street from a county airport, a portion of which aircraft
might use in case of an emergency, when that business could have built other structures,
including a recreational vehicle sales lot and a self-service storage facility, without the need
to obtain approval from the board. Presented with these facts, the BTBZA exercised its
discretion and rejected Beach's conditional use application, a decision the common pleas
court subsequently affirmed upon finding the BTBZA's decision was not "unconstitutional,
illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of
substantial, reliable, and probative evidence on the whole record."
{¶ 13} But, despite the limited standard of review this court must apply to the case
at bar, and even though this court must refrain from substituting its judgment for that of the
common pleas court, we nevertheless reverse the common pleas court's decision in this
case. As noted above, the common pleas court specifically acknowledged within its
decision that the BTBZA's decision to reject Beach's conditional use application may seem
"illogical" and "arbitrary" in this case given that Beach would not have needed to file a
conditional use application with the BTBZA had Beach wanted to build an "indoor storage
facility" instead of a recreational vehicle storage facility. This is because, after a full and
thorough review of the record, which includes the FAA's study finding "the described
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structure would have no substantial adverse effect on air navigation," the BTBZA's decision
to deny Beach's conditional use application in this case actually was illogical and arbitrary.
Therefore, because the BTBZA's decision denying Beach's conditional use application was
illogical and arbitrary, the common pleas court's decision to uphold that decision was also
illogical and arbitrary, thereby rendering the common pleas court's decision an abuse of
discretion.
{¶ 14} We do not reach this decision lightly. However, just like one of the BTBZA's
board members stated at the November 21, 2019 hearing on Beach's conditional use
application, this court sees no difference "between a parking lot with a building on the
property" and "a parking lot with no building." Moreover, while the common pleas court
found it was not conjecture that an airplane had crashed on the Property in the past, whether
an aircraft would crash on the Property in the future certainly is. The common pleas court,
just like this court, cannot predict the future. What this court can do is uphold the law and
apply the well-established principle that "zoning ordinances are to be construed in favor of
the property owner because they are in derogation of the common law and deprive the
property owner of uses to which the owner would otherwise be entitled." Cleveland Clinic
Found. v. Cleveland Bd. of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, ¶ 34,
citing Univ. Circle, Inc. v. Cleveland, 56 Ohio St.2d 180, 184 (1978). That includes the
owner of the Property at issue in this case, Beach.
{¶ 15} Simply stated, under the unique facts and circumstances of this case, we
believe Beach should not be precluded by the BTBZA from building what amounts to
nothing more than a parking lot on the Property based on the off chance that an aircraft
might, at some undetermined time in the future, use some portion of the Property in the
case of an emergency. This is particularly true here when considering this has happened
only one time since the Airport's construction over a half-century ago in 1968. That is to
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say nothing of the fact, pursuant to Article 30.02 Section F and I of the BTZR, Beach could
have built an "Automobile, Motorcycle, Recreational Vehicle, Truck, Trailer and Farm
Implement Sales; New or Used" and a "Self-Service Storage Facility" on the Property
without the need to file a conditional use application with the BTBZA. As noted above, we
find this to be illogical and arbitrary.
{¶ 16} To hold otherwise, like both the BTBZA and the common pleas court did in
this case, creates a situation that is, to an extent, nearly analogous to an unconstitutional
taking of the Property. The Property, which the record indicates has been used as farmland
since the Airport's construction in 1968, could have remained that way had the Property
been purchased by the Airport. It was not. It was instead purchased by Beach to be used
as, among other things, a recreational vehicle storage facility. Once again, this court's
opinion is best summarized by a BTBZA board member's statements made at the
November 21, 2019 hearing. As that BTBZA board member stated:
From the fact that right now it's a cornfield and it's been a
cornfield forever. And they've [i.e., the Airport] had the luxury of
never having to need to buy it. Now it becomes an issue. You
can't deny the people who own it, who bought it to use it as
industrial property which it is zoned.
***
I'm looking at it from the owners' standpoint, [Beach] bought the
property and (inaudible). And the airport had the luxury of being
a cornfield since its conception. So something has to happen
one way or the other. So we've got, you know, change is
happening. We just can't have it, just because we don't like it to
happen, it's going to happen.
{¶ 17} Although the issue in this case deals with a conditional use rather than a
principally permitted use under the BTZR, we nevertheless agree with the underlying point
made by this BTBZA board member. That is, denying Beach's conditional use application
to build a recreational storage facility on the Property simply because the Property has been
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used as farmland since the Airport's construction in 1968 creates a situation that is
fundamentally unfair to Beach as the current owner of the Property. In reaching this
decision, we note that what Beach paid for the Property is irrelevant, as is the legal concept
of "coming to the nuisance" as referenced by the BTBZA just prior to the BTBZA issuing its
decision. The owner of the Property, Beach, wants to use the Property for something other
than farmland. The BTBZA's decision denying Beach that opportunity, as well as the
common pleas court's decision affirming the BTBZA's decision denying Beach that
opportunity, was error as that decision was illogical and arbitrary under the unique facts and
circumstances of this case.
{¶ 18} In so holding, we note that this court does not dispute that the BTBZA may
exercise its discretion when deciding whether to grant or deny an applicant's conditional
use application. However, while we believe the BTBZA has the authority to exercise its
discretion when deciding whether to grant or deny an applicant's conditional use application,
including Beach's conditional use application at issue here, the BTBZA's decision is not
unfettered, unlimited, and insulated from review. See Hindu Soc. of Greater Cincinnati,
2019-Ohio-2494 at ¶ 21. Therefore, as stated previously, because the BTBZA's decision
denying Beach's conditional use application was illogical and arbitrary, the common pleas
court's decision to uphold that decision was also illogical and arbitrary, thereby rendering
the common pleas court's decision an abuse of discretion. Accordingly, finding merit to
Beach's single assignment of error challenging the common pleas court's decision affirming
the BTBZA's decision rejecting Beach's conditional use application to build a recreational
vehicle storage facility on the Property, the common pleas court's decision is reversed and
this matter is remanded to the common pleas court for further proceedings.
{¶ 19} Judgment reversed and remanded.
PIPER, P.J., and BYRNE, J., concur.
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