Lind Media Co. v. Marion Twp. Bd. of Zoning Appeals

[Cite as Lind Media Co. v. Marion Twp. Bd. of Zoning Appeals, 2022-Ohio-1361.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
LIND MEDIA COMPANY,
APPELLEE, CASE NO. 9-21-39
v.
MARION TOWNSHIP BOARD
OF ZONING APPEALS ET AL., OPINION
APPELLANTS.
Appeal from Marion County Common Pleas Court
Trial Court No. 2020CV0354
Judgment Affirmed
Date of Decision: April 25, 2022
APPEARANCES:
Paul-Michael LaFayette for Appellants
Thomas R. Gilman for Appellee
Case No. 9-21-39
ZIMMERMAN, P.J.
{¶1} Appellants, the Marion Township Board of Zoning Appeals (“Board”)
and Mark McCleary (“McCleary”), in his capacity as the Marion Township Zoning
Inspector (collectively, “Marion Township”), appeal the October 20, 2021 judgment
of the Marion County Court of Common Pleas reversing Marion Township’s
decision denying the application for a zoning permit of the petitioner-appellee, Lind
Media Company (“Lind”). For the reasons that follow, we affirm.
{¶2} This case stems from Lind’s February 9, 2020 application for a zoning
permit to install a three-sided digital media advertising sign at the northwest corner
of the intersection of Mount Vernon Road (State Route 95) and University Drive in
Marion Township, Marion County, Ohio. Section 22.014 of the Marion Township
Zoning Resolution (“Resolution”) provides as follows:
The Zoning Inspector shall act upon all such applications on which he
is authorized to act by the provisions of this Resolution within ten (10)
days after these are filed in full compliance with all the applicable
requirements. He shall either issue a Zoning Permit within said ten
(10) days or shall notify the applicant in writing of his refusal of such
permit and the reasons therefor. Failure to notify the applicant in case
of such refusal within said ten (10) days shall entitle the applicant to
a Zoning Permit unless the applicant consents to an extension of time.
(Emphasis added.) Marion Twp. Zoning Res. 22.014.
{¶3} Instead of acting in accordance with Section 22.014 of the Resolution
by issuing a zoning permit or notifying Lind of the refusal of such permit within 10
days of its application, Lind’s application was referred to the Board and assigned to
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be heard as an appeal at its May 4, 2020 public meeting. Specifically, the notice
states, “The appellant is requesting a conditional use permit for a billboard.” (Tab
2). During the May 4, 2020 hearing, the Board moved to table its determination on
Lind’s “appeal” until its next monthly meeting in order for the Board to obtain legal
advice on Lind’s application. (Tab 3).
{¶4} Thereafter, Lynn Clabaugh (“Clabaugh”), the former Marion Township
Zoning Inspector, denied Lind’s application for the zoning permit on June 22, 2020.
(See Tab 5, Twp. Ex. 4). Specifically, Clabaugh determined that Lind’s application
did not conform to Sections 18.011 and 18.019(A) of the Marion Township Zoning
Resolution. (Id.). Section 18.011, titled Traffic Hazards, provides that
[n]o sign shall be erected in such a manner as to obstruct free and clear
vision, or at any location where, by reason of position, shape, or color
it may interfere with, obstruct the view of or be confused with any
authorized traffic sign, signal or device, or which makes use if [sic]
the words “stop”, “look”, “danger”, or other word, phrase or symbol
in such manner as to interfere with or mislead or confuse motorists or
pedestrians. Light sources for illuminated signs shall not be of such
brightness as to constitute a hazard to pedestrian or vehicular traffic.
No rotating beam, beacon, or flashing illumination resembling an
official traffic control or emergency light shall be used in connection
with any sign display, nor shall any illuminated device designed to
attract attention of users of the street be permitted unless it is an
integral and functional part of the sign herein defined.
Marion Twp. Zoning Res. 18.011. Section 18.019, titled Illumination, of the
Resolution prescribes the requirements for accessory and advertising sign
illumination. As relevant here, that section provides, “[w]here illumination is
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permitted in any district, the source of light shall be shaded or concealed so as not
to be a source of safety or health hazard. Illuminated signs shall conform with the
limitations * * * relating to traffic hazards.” Marion Twp. Zoning Res. 18.019(A).
{¶5} Importantly, Clabaugh acknowledged “the time it has taken to give
[Lind] an answer on [its] application [due to] meeting delays surrounding the
pandemic restrictions” and employee turnover at “the Marion Regional Planning
office as well as the Marion County Prosecutors’ office,” “requiring [them] to
basically start over again resulting in even further delays.” (Tab 5, Twp. Ex. 4).
Moreover, Clabaugh conceded that Lind’s application was reviewed by the Board
during its May and June 2020 meetings and further conceded that the Board “did
not follow proper processes, public notice or timelines, in which board members
could only render their ‘opinion vote’ on proceeding with the sign.” (Id.).
{¶6} Lind appealed Clabaugh’s decision to the Board on July 9, 2020. (Tab
5, Twp. Ex. 5). Notably, the hearing notice states that “[t]he appellant is requesting
a variance to zoning codes 18.011 Traffic hazards and 18.019 Illumination in order
to construct a digital billboard.” (Tab 5, Twp. Ex. 1). The Board conducted an
evidentiary hearing on September 14, 2020 during which Lind argued, in part, that
it was entitled to the permit since it was undisputed that Clabaugh failed to act within
10 days as required by Section 22.014 of the Resolution. In particular, the parties
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do not dispute that Marion Township received Lind’s application on February 21,
2020. (See Tab 5, Twp. Ex. 3).
{¶7} The Board also heard the testimony of Clabaugh’s successor,
McCleary, who testified that it was his assumption that Clabaugh denied Lind’s
application based on Clabaugh’s “opinion” that the sign would violate Sections
18.011 and 18.019(A) of the Resolution. (Sept. 14, 2020 Tr. at 20). Furthermore,
McCleary testified that “[i]t’d just be [his] opinion” that the sign “would be
confusing to drivers.” (Id. at 21). Moreover, the Board heard testimony from four
citizens in opposition to the sign.
{¶8} On October 5, 2020, the Board affirmed Clabaugh’s decision denying
Lind’s application for a zoning permit. (Oct. 5, 20220 Tr. at 5-6); (Tabs 3, 7). In
its decision affirming Clabaugh’s decision denying Lind’s application for a zoning
permit, the Board rejected Lind’s argument that it was entitled to the permit since
Clabaugh failed to act within 10 days as required by Section 22.014 of the
Resolution because (1) Lind did not “raise any objection to” Clabaugh’s dilatory
action; (2) “the Governor of the State of Ohio declared a state of emergency due to
the public health pandemic” on March 9, 2020; (3) “nothing in the Ohio Revised
Code requires a Zoning Inspector to approve or deny a permit within 10 days of
receipt and this provision of the Zoning Resolution is directory only”; and (4)
allowing applications to be granted by default “would set a dangerous precedent *
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* * .” (Tab 7). Instead, the Board concluded that Lind failed to prove by a
preponderance of reliable and credible evidence that Clabaugh erred by denying the
zoning permit based on the provisions of Sections 18.011 and 18.019(A) of the
Resolution. (Id.).
{¶9} On November 3, 2020, Lind filed a R.C. Chapter 2506 appeal in the
Marion County Court of Common Pleas seeking review of the Board’s decision
affirming Clabaugh’s decision denying Lind’s application for a zoning permit. On
June 14, 2021, the trial court’s magistrate concluded the Board’s decision affirming
Clabaugh’s decision denying Lind’s application for a zoning permit was invalid
because the Board “did not comply with Ohio Open Meetings Law.” (Doc. No. 18).
{¶10} Marion Township filed its objection to the magistrate’s decision on
June 28, 2021 in which it argued that “the Ohio Open Meeting Act is wholly
inapplicable to these proceedings” because “the hearing conducted by the [Board]
was a quasi-judicial proceeding * * * .” (Doc. No. 19). On August 19, 2021, before
addressing Marion Township’s objection to the magistrate’s decision, the trial court
ordered the parties to address whether the trial court had subject-matter jurisdiction
to review the Board’s decision affirming Clabaugh’s decision denying Lind’s
application for a zoning permit. Following responses from the parties, and the trial
court’s satisfaction that it had subject-matter jurisdiction over the case, the trial court
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issued its decision addressing Marion Township’s objection and rejecting the
magistrate’s decision on October 12, 2021.
{¶11} On October 20, 2021, the trial court concluded that Board acted
arbitrarily by affirming Clabaugh’s decision denying Lind’s application for a zoning
permit. Specifically, the trial court concluded that Section 22.014 of the Resolution
requires the zoning inspector to act on applications within 10 days after such are
properly filed, and that it is undisputed that Clabaugh did not act within that time.
That same day, the trial court issued an entry reversing Marion Township’s decision
denying Lind’s application for a zoning permit. (Doc. No. 26).
{¶12} On November 19, 2021, Marion Township filed its notice of appeal
and raises one assignment of error for our review.
Assignment of Error
The trial court erred when it reversed the decision of Appellants
Marion Township Zoning Inspector and the Marion Township
Board of Zoning Appeals to deny Appellee Lind Media
Company’s application for a zoning permit.
{¶13} In their sole assignment of error, Marion Township argues that the trial
court erred by reversing its decision denying Lind’s application for a zoning permit.
Specifically, Marion Township contends that the trial court erred by concluding that
the language of Section 22.014 of the Resolution is mandatory and that Lind is
entitled to the zoning permit.
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Standard of Review
{¶14} “Decisions of administrative agencies are directly appealable to a
court of common pleas,” which “has jurisdiction to review final orders issued by
‘any officer, tribunal, authority, board, bureau, commission, department, or other
division of any political subdivision of the state.’” Shelly Materials, Inc. v.
Streetsboro Planning & Zoning Comm., 158 Ohio St.3d 476, 2019-Ohio-4499, ¶ 12,
quoting R.C. 2506.01(A). “R.C. Chapter 2506 governs appeals to the courts of
common pleas from final orders of administrative officers and agencies of political
subdivisions, including municipal boards of zoning appeals.” Cleveland Clinic
Found. v. Cleveland Bd. of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809,
¶ 22.
{¶15} Specifically, “R.C. 2506.04 governs the standard of review the trial
court must apply in such an appeal.” Id. Under that statute, “[a]cting as an appellate
court, the common pleas court ‘may find that the order, adjudication, or decision is
unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the
preponderance of substantial, reliable, and probative evidence on the whole
record.’” Shelly Materials, Inc. at ¶ 12, quoting R.C. 2506.04. “These grounds for
reversal are set forth in a disjunctive list, so each ground must be read to have a
distinct meaning.” Id. “The presence of any one of the six grounds listed in R.C.
2506.04 will therefore by itself justify a court of common pleas’ reversal of an
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administrative order.” Id. “‘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.’” Access Ohio, LLC
v. Gahanna, 10th Dist. Franklin No. 19AP-64, 2020-Ohio-2908, ¶ 10, quoting R.C.
2506.04.
{¶16} However, “the scope of review for a common pleas court in an R.C.
Chapter 2506 administrative appeal is not de novo but that the appeal ‘“often in fact
resembles a de novo proceeding.”’” Shelly Materials, Inc. 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 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. See also id.
at ¶ 28 (DeWine, J., dissenting) (“On review of an administrative agency’s decision
under R.C. 2506.04, ‘the Court of Common Pleas must weigh the evidence in the
record, and whatever additional evidence may be admitted pursuant to R.C.
2506.03, to determine whether there exists a preponderance of reliable, probative
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and substantial evidence to support the agency decision.’”), quoting Dudukovich v.
Lorain Metro. Hous. Auth., 58 Ohio St.2d 202, 207 (1979).
{¶17} “The court of common pleas may not ‘blatantly substitute its judgment
for that of the agency, especially in areas of administrative expertise.’” Id. at ¶ 13,
quoting Dudukovich at 207. “Nevertheless, the court of common pleas 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. at ¶ 24, citing Dudukovich at 207.
{¶18} “A party who disagrees with a decision of a court of common pleas in
an R.C. Chapter 2506 administrative appeal may appeal that decision to the court of
appeals but only on ‘questions of law.’” Id. at ¶ 17, quoting R.C. 2506.04.
Consequently, “under R.C. 2506.04, an appeal to the court of appeals is ‘more
limited in scope’ than * * * the appeal to the court of common pleas.” Id., quoting
Kisil at 34. See also Cleveland Clinic Found. at ¶ 25 (underscoring that “the
standard of review for an appellate court reviewing a judgment of a common pleas
court in this type of appeal is narrower and more deferential to the lower court’s
decision”). “While the court of common pleas is required to examine the evidence,
the court of appeals may not weigh the evidence.” Shelly Materials, Inc. at ¶ 17.
“In addition to deciding purely legal issues, which are reviewed de novo, the court
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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.’” Access Ohio, LLC, 2020-Ohio-2908, at ¶ 12,
quoting Shelly Materials, Inc. at ¶ 17, citing Boice v. Ottawa Hills, 137 Ohio St.3d
412, 2013-Ohio-4769, ¶ 7, citing Kisil at 34.
{¶19} Accordingly, our determination in this case “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.” Id. at ¶ 13,
citing One Neighborhood Condominium Assn. v. Columbus, Dept. of Pub. Util., Div.
of Water, 10th Dist. Franklin No. 16AP-653, 2017-Ohio-4195, ¶ 14. “De novo
review is independent and without deference to the trial court’s determination.”
ISHA, Inc. v. Risser, 3d Dist. Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing
Costner Consulting Co. v. U.S. Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶
10 (10th Dist.). An abuse of discretion suggests the trial court’s decision is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
Analysis
{¶20} “The General Assembly has delegated to boards of townships trustees
the authority to legislate land use within their townships under R.C. 519.02.”
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Village of Terrace Park v. Anderson Twp. Bd. of Zoning Appeals, 1st Dist. Hamilton
No. C-140741, 2015-Ohio-4602, ¶ 11. “A board of township trustees, sitting as a
legislative body, ‘is charged with the duty of determining the wisdom of zoning
regulations, and the judicial judgment is not to be substituted for the legislative
judgment in any case in which the issue or matter is fairly debatable.’” Id., quoting
Willott v. Beachwood, 175 Ohio St. 557, 560 (1964).
{¶21} “Townships boards of zoning appeals also exist by way of statute
under R.C. 519.14.” Id. at ¶ 12. “Pertinent to these appeals, R.C. 519.14(B) permits
a board of zoning appeals to grant variances from a zoning resolution ‘as will not
be contrary to the public interest, where, owing to special conditions, a literal
enforcement of the resolution will result in unnecessary hardship, and so that the
spirit of the resolution shall be observed and substantial justice done.” Id., quoting
R.C. 519.14(B). “Furthermore, R.C. 519.14(C) permits a board of zoning appeals
to grant a conditional zoning certificate for those specific land uses permitted by a
zoning resolution.” Id.
{¶22} In this case, the parties dispute whether the trial court erred in its
conclusion that Section 22.014 of the Resolution mandates the zoning inspector to
grant or deny an application for a zoning permit within 10 days of application.
Consequently, the issue in this case amounts to a dispute over the interpretation of
the term “shall” as it is used in Section 22.014 of the Resolution. Marion Township
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advances a relaxed view of the meaning of the term and claims that the provision is
merely directory since “[t]he Zoning Inspector * * * is only “authorized to act” upon
those applications that comply with the Zoning Resolution.” (Appellant’s Brief at
7, quoting Marion Twp. Zoning Res. 22.014). Lind disagrees and contends that the
trial court correctly concluded that Section 22.014 of the Resolution requires the
zoning inspector to act “[e]ven if the proposed billboard violated one or both of the
* * * sections of the Zoning Resolution * * * because there is nothing inconsistent
or violative of law in a compulsory granting of a zoning permit based on Section
22.014 of the Resolution.” (Appellee’s Brief at 9-10).
{¶23} “Interpretation of a statute or ordinance is a matter of law, and thus,
the proper standard of review is de novo.” State ex rel. Osborne v. N. Canton, 5th
Dist. Stark No. 2018CA00132, 2019-Ohio-1744, ¶ 20, citing State v. Straley, 139
Ohio St.3d 339, 2014-Ohio-2139, ¶ 9. Accord Access Ohio, LLC, 2020-Ohio-2908,
at ¶ 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.’”), quoting Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d
142, 148 (2000), and citing Lang v. Ohio Dept. of Job & Family Servs., 134 Ohio
St.3d 296, 2012-Ohio-5366, ¶ 12; Cleveland Clinic Found., 141 Ohio St.3d 318,
2014-Ohio-4809, at ¶ 25. “De novo review requires us to conduct an independent
review of the record without deference to the trial court’s decision.” Matrix
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Technologies, Inc. v. Kuss Corp., 6th Dist. Lucas No. L-07-1301, 2008-Ohio-1301,
¶ 11, citing Brown v. Cty. Commrs. of Scioto Cty., 87 Ohio App.3d 704, 711 (4th
Dist.1993).
{¶24} When reviewing “the meaning of a zoning ordinance,” courts “apply
the ‘standard rules of statutory construction.’” Omran v. Lucas, 7th Dist. Mahoning
No. 21 MA 0031, 2021-Ohio-4592, ¶ 51, quoting Gesler v. Worthington Income
Tax Bd. of Appeals, 138 Ohio St.3d 76, 2013-Ohio-4986, ¶ 12, and citing Shampton
v. Springboro, 98 Ohio St.3d 457, 2003-Ohio-1913, ¶ 30. “A court’s primary goal
when determining the meaning of a zoning ordinance is to give effect to the enacting
body’s intent.” Id., citing State v. Bryant, 160 Ohio St.3d 113, 2020-Ohio-1041, ¶
12 and Cleveland Clinic Found. at ¶ 29. “To determine intent, appellate courts ‘first
look to the text of the [ordinance].’” Id., quoting State v. Pendergrass, 162 Ohio
St.3d 25, 2020-Ohio-3335, ¶ 5.
{¶25} “When the ordinance’s text clearly and unambiguously reveals intent,
courts must apply the ordinance as written.” Id. at ¶ 52, citing Wilson v. Lawrence,
150 Ohio St.3d 368, 2017-Ohio-1410, ¶ 11 and Wingate v. Hordge, 60 Ohio St.2d
55, 58 (1979). “Accordingly, a court’s first step when considering the meaning of
an ordinance ‘is always to determine whether the [ordinance] is “plain and
unambiguous.”’” Id., quoting Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-
Ohio-8434, ¶ 8, quoting State v. Hurd, 89 Ohio St.3d 616, 618 (2000), and citing
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State ex rel. Cordray v. Midway Motor Sales, Inc., 122 Ohio St.3d 234, 2009-Ohio-
2610, ¶ 15. “‘“If [the ordinance] is not ambiguous, then [courts] need not interpret
it; [courts] must simply apply it.”’” Id., quoting Wilson at ¶ 11, quoting State v.
Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, ¶ 13. “When the language used in
an ordinance ‘“is plain and unambiguous, and conveys a clear and definite meaning,
[courts] must rely on what the [legislative body] has said.”’” Id., quoting Wilson at
¶ 11, quoting Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330, 2003-
Ohio-1099, ¶ 12.
{¶26} “Additionally, courts must ‘give effect only to the words the
legislature used, making neither additions to, nor deletions from, the statutory
language.’” Id. at ¶ 53, quoting Wilson at ¶ 11. “Furthermore, ‘“[t]he interpretation
of statutes and administrative rules should follow the principle that neither is to be
construed in any way other than as the words demand.”’” Id., quoting State ex rel.
Baroni v. Colletti, 130 Ohio St.3d 208, 2011-Ohio-5351, ¶ 18, quoting Morning
View Care Ctr.-Fulton v. Ohio Dept. of Human Servs., 148 Ohio App.3d 518, 2002-
Ohio-2878, ¶ 36 (10th Dist.). Importantly, “when a legislative ‘definition is
available, we construe the words of the statute accordingly.’” Id., quoting State v.
Gonzales, 150 Ohio St.3d 276, 2017-Ohio-777, ¶ 4, citing R.C. 1.42, and citing
Stewart v. Vivian, 151 Ohio St.3d 574, 2017-Ohio-7526, ¶ 25.
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{¶27} “When the language of an ordinance is ambiguous, a court may then
consider rules of construction to determine legislative intent.” Id. at ¶ 54, citing
Turner v. Hooks, 152 Ohio St.3d 559, 2018-Ohio-556, ¶ 10 and Symmes Twp. Bd.
of Trustees v. Smyth, 87 Ohio St.3d 549, 553 (2000). An ordinance “‘is ambiguous
“‘if a reasonable person can find different meanings in the [ordinance] and if good
arguments can be made for either of two contrary positions.’”’” Id., quoting Turner
at ¶ 12, quoting Sunset Estate Properties, LLC v. Lodi, 9th Dist. Medina No.
12CA0023-M, 2013-Ohio-4973, ¶ 20, quoting 4522 Kenny Rd., L.L.C., v. Columbus
Bd. of Zoning Adjustment, 152 Ohio App.3d 526, 2003-Ohio-1891, ¶ 13 (10th Dist.).
{¶28} “R.C. 1.49 lists several factors that a court may consider when
determining the legislative intent of an ambiguous statute.” Id. at ¶ 55, citing
Symmes at 556. One such “fundamental rule of statutory construction [is] that
statutes relating to the same subject matter should be construed together.” State ex
rel. Thurn v. Cuyahoga Cty. Bd. of Elections, 72 Ohio St.3d 289, 294 (1995). See
also State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 585 (1995) (“The in
pari materia rule of construction may be used in interpreting statutes where some
doubt or ambiguity exists.”). “In reading statutes in pari materia and construing
them together, this court must give a reasonable construction that provides the
proper effect to each statute.” (Citation omitted.) Hulsmeyer v. Hospice of
Southwest Ohio, Inc., 142 Ohio St.3d 236, 2014-Ohio-5511, ¶ 22.
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{¶29} Furthermore, “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., 141 Ohio St.3d 318, 2014-Ohio-4809, at ¶ 34. Likewise, “when
applying a zoning provision, a court must not view the provision in isolation; rather,
its ‘meaning should be derived from a reading of the provision taken in the context
of the entire ordinance.’” Id. at ¶ 35, quoting Henley, 90 Ohio St.3d at 152.
{¶30} “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.”’”
Access Ohio, LLC, 2020-Ohio-2908, at ¶ 16, quoting JP Morgan Chase Bank, Inc.
v. Dublin, 10th Dist. Franklin 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. Montgomery No. 20158, 2004-Ohio-4796, ¶ 6, and Dick v. Kelleys Island Bd.
of Zoning, 6th Dist. Erie No. E-86-63, 1987 WL 13075, *5 (June 19, 1987). “Unless
the interpretation of a local zoning code is clearly in error, a court should defer to
the administrative interpretation.” Id., citing 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
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of the complexities of the problem, realization of the statutory policies and
responsible treatment of the facts.”’” Id., quoting In re Aultman Hosp. at 139,
quoting Hamilton Cty. Bd. of Mental Retardation & Deval. Disabilities v.
Professionals Guild of Ohio, 46 Ohio St.3d 147, 151 (1989).
{¶31} In this case, the trial court did not abuse its discretion by reversing
Marion Township’s decision denying Lind’s application for a zoning permit. That
is, the trial court did not err by concluding that the language of Section 22.014 of
the Resolution is mandatory and that Lind is entitled to the zoning permit.
{¶32} Based on our de novo review of the record, we conclude that the
language of the Resolution is dispositive. Importantly, the Resolution is not
ambiguous. Accord Wilson, 150 Ohio St.3d 368, 2017-Ohio-1410, at ¶ 12. See also
State ex rel. R.L. Hawk, LLC v. Troy Planning Commission, 2d Dist. Miami No.
2020-CA-11, 2021-Ohio-327, ¶ 20 (concluding that an analogous statute—R.C.
711.09(C)—“is not ambiguous and does not allow a failure to comply to be cured
by later approval with added conditions.”).1
{¶33} Marion Township’s mandate in its Zoning Resolution clearly and
unequivocally commands that “[t]he Zoning Inspector shall act upon all such
applications * * * within ten (10) days,” and that “[h]e shall either issue a Zoning
1
R.C. 711.09(C) and 711.10(C) are similar statutes which “impose a 30-day time limit for endorsing approval
or refusing to approve a plat.” State ex rel. R.L. Hawk, LLC v. Troy Planning Commission, 2d Dist. Miami
No. 2020-CA-11, 2021-Ohio-327, ¶ 35, fn.2. See also Wesolowski v. Broadview Hts. Planning Commission,
158 Ohio St.3d 58, 2019-Ohio-3713, ¶ 20.
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Permit within said ten (10) days or shall notify the applicant in writing of his
refusal,” action on an application by the zoning inspector within the 10 days of filing
is mandatory. (Emphasis added.) Marion Twp. Zoning Res. 22.014. Compare R.L.
Hawk, LLC at ¶ 20 (reflecting that R.C. 711.09(C) “is quite clear: it indicates that
if the planning commission does not either endorse its approval or reject the plan,
the plan is deemed to have been approved”); P. H. English, Inc. v. Koster, 61 Ohio
St.2d 17, 19 (1980) (concluding that, under R.C. 711.10, “[i]f the commission fails
to act within [the 30-day limitation], the plat is deemed approved And [sic] prime
for recordation”). See also R.C. 519.07 (prescribing that “[t]he approval of the
planning commission shall be conclusively presumed unless, within twenty days
after receiving the proposed zoning resolution, it notifies the zoning commission to
the contrary”) and 303.07. Importantly, the language of the Resolution
unambiguously conveys that the zoning inspector shall act within 10 days of
receiving an application, “‘and no apparent purpose could be served by attempting
to torture it into something else.’” Wilson at ¶ 12, quoiting Beach v. Mizner, 131
Ohio St. 481, 485 (1936).
{¶34} Unequivocally, “‘“[s]hall” means must.’” Id. at ¶ 13, quoting
Application of Braden, 105 Ohio App. 285, 286 (1st Dist.1957), and citing Dorrian
v. Scioto Conservancy Dist., 27 Ohio St.2d 102, 107 (1971) (“The word ‘shall’ is
usually interpreted to make the provision in which it is contained mandatory, * * *
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especially if frequently repeated”). “And ‘[t]he word “must” is mandatory. It
creates an obligation. It means obliged, required, and imposes a physical or moral
necessity.’” Id., quoting Willis v. Seeley, 68 N.E.2d 484, 485 (C.P.1946).
Consequently, it is well settled “that use of the term ‘shall’ in a statute [or ordinance]
connotes a mandatory obligation unless other language evidences a clear and
unequivocal intent to the contrary.” Id., citing State ex rel. Cincinnati Enquirer v.
Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, ¶ 28.
{¶35} In this case, there is absolutely no indication in the Resolution that the
board of township trustees meant “shall” to mean anything other than “must.”
Accord Wilson at ¶ 13 (“Here, there is absolutely no indication in the statutory
scheme that the General Assembly meant ‘shall’ to mean anything other than
‘must.’”). See also Pidgeon v. Ramar Land Corp., 62 Ohio Misc.2d 223, 230
(C.P.1991). Importantly, the board of township trustees defined “shall” in the
Resolution to mean mandatory—namely, Section 2.01 of the Resolution, titled
definitions, specifically instructs that “the ‘shall’ is mandatory and not merely
directive.” (Emphasis added.) Marion Twp. Zoning Res. 2.01.
{¶36} Consequently, since Section 22.014 of the Resolution states that “[t]he
Zoning Inspector shall act upon all such applications * * * within ten (10) days,”
and that “[h]e shall either issue a Zoning Permit within said ten (10) days or shall
notify the applicant in writing of his refusal,” action on an application by the zoning
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inspector within the 10 days of filing is mandatory. (Emphasis added.) Marion
Twp. Zoning Res. 22.014. See, e.g., Wilson at ¶ 18 (asserting that “no court has the
authority to ignore plain and unambiguous statutory language). See also Pidgeon,
62 Ohio Misc.2d at 230 (concluding that “[t]he provisions of R.C. 303.12(E)
requiring action on the part of the planning commission, thus, are mandatory in spite
of the fact that the planning commission’s role is purely ministerial in nature”).
{¶37} Moreover, addressing a statute under Title VII—Municipal
Corporations—of the Revised Code, “which requires that [a city planning]
commission either approve or deny a subdivision application within 30 days after
its submission,” the Supreme Court of Ohio recently concluded that the statute
“prevails over any conflicting municipal subdivision regulation.” Wesolowski v.
Broadview Hts. Planning Commission, 158 Ohio St.3d 58, 2019-Ohio-3713, ¶ 2,
29. Of significance here, not only does Marion Township’s Resolution not conflict
with any statute, but the Resolution prescribes the same mandatory outcome
required under R.C. 711.09(C) (as determined by the Supreme Court).
Undoubtedly, the township’s requirement that its zoning inspector issue a decision
on a zoning application within 10 days of its filing “is a mandatory part of the
[township’s] legislative scheme,” which “fosters the expeditious and efficient
administration of” township business, “and we assume that the [township trustees’]
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commands in the [zoning resolution] were intended to be met with strict
compliance.” Wilson at ¶ 14.
{¶38} Based on the foregoing reasons, we conclude that the trial court did
not err by concluding that the language of Section 22.014 of the Resolution is
mandatory and that Lind is entitled to the Zoning Permit. Therefore, the trial court
did not abuse its discretion by reversing Marion Township’s decision denying
Lind’s application for a zoning permit.
{¶39} Marion Township’s assignment of error is overruled.
{¶40} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER and SHAW, J.J., concur.
/jlr
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