Adelman Real Estate Co. v. Gabanic , 109 Ohio App. 3d 689 ( 1996 )

I respectfully dissent from the opinion and judgment of the majority. While that opinion correctly sets forth the respective roles of both the common pleas and appellate courts in an administrative appeal pursuant to R.C. 2506.04, I disagree with this court's application of those roles to the facts of the instant matter.

In reaching its decision that the common pleas court could not have found a preponderance of reliable, probative, and substantial evidence to support the board's denial of appellants' application for a conditional use permit, the majority opinion acknowledges that the board was presented with "legitimate concerns" regarding appellants' proposed use of the property. Specifically, several Chester Township residents presented sworn testimony regarding increased traffic congestion on an already heavily traveled access road, safety concerns for patrons who might cross this access road from an adjacent shopping plaza, and the detrimental effect appellants' proposed use would have on the aesthetic value of the area. However, rather than allowing the Chester Township Board of Zoning Appeals to use its expertise to weigh the residents' concerns regarding the proposed use for the land by appellants, this court has determined that the testimony these residents presented was insufficient to support the board's decision denying appellants' application.

The majority's opinion is based, in large part, on the Ohio Supreme Court decision of Community Concerned Citizens, Inc. v.Union Twp. Bd. of Zoning Appeals (1993), 66 Ohio St.3d 452,613 N.E.2d 580. In Concerned Citizens, an application was filed seeking a conditional use permit to operate a child care center on property zoned as single-family residential. The Union Township Board of Zoning Appeals denied the application. The Supreme Court of Ohio, in upholding the board's action, noted that "the record shows cumulative, direct evidence of traffic and related safety problems that would obviously be exacerbated by appellant's proposed use for the property." (Emphasis added.)Id. at 456, 613 N.E.2d at 584. This court has today determined that, when considering whether appellees' decision was supported by a preponderance of the reliable, probative, and substantial evidence, the words "direct evidence" require something more than the "concerns" expressed by the residents of Chester Township.

However, a thorough reading of Concerned Citizens reveals that the testimony presented before the board in that case was similar to that presented in the case sub judice. In discussing why the board's denial was not unreasonable when it had previously granted a similar application for a conditional use permit to operate a child care center, the Supreme Court of Ohio noted that "[i]n contrast [to the earlier case when no one opposed to the use attended the hearing], ten persons opposing the conditional use spoke at [the later hearing], and cumulative information was submitted to [the zoning board] detailingconcerns such as preexisting sewer, traffic and safety problems. Therefore, it was not unreasonable for [the zoning board] in the case before us to reach a different result." (Emphasis added.)Id. at 457, 613 N.E.2d at 584. Thus, the concerns that the residents of Chester Township presented, at least the testimony regarding the current traffic congestion and the detrimental effect appellants' proposed use would have on the character of the community, appear to be sufficient to uphold the board's denial of a conditional use permit. See Chrisman v. Butler Cty.Bd. of Zoning Appeals (July 25, 1988), Butler App. No. CA87-12-168, unreported, 1988 WL 76819; Blakley v. Butler Co.Bd. of Zoning Appeals (Apr. 12, 1993), Butler App. No. CA92-07-123, unreported, 1993 WL 106149 (Koehler, P.J., dissenting); Capital Oil Gas, Inc. v. Canfield Planning Comm.Acting as Zoning Bd. of Appeals (Apr. 5, 1988), Mahoning App. No. 87 C.A. 69, unreported, 1988 WL 37976; Diamond Crystal Salt Co.v. Coventry Twp. (Oct. 2, 1985), Summit App. No. 12137, unreported, 1985 WL 10869. But, see, Kayo Oil Co. v. Dayton Bd.of Zoning Appeals (Dec. 8, 1988), Montgomery App. No. 11117, unreported, 1988 WL 131892.

Consequently, I would defer to the Board of Zoning Appeals' resolution of the testimony presented before it, and, accordingly, I would have affirmed the judgment of the common pleas court.