[Cite as Lifton v. Ashtabula Cty. Bd. of Health, 2016-Ohio-1299.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
JUDITH LIFTON, : OPINION
Appellant, :
CASE NO. 2015-A-0025
- vs - :
ASHTABULA COUNTY BOARD OF :
HEALTH,
:
Appellee.
:
Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014 CV 25.
Judgment: Reversed and vacated.
Alexandria R. Heinonen, Smith & Miller, 36 West Jefferson Street, Jefferson, OH
44047 (Appellant).
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Catherine R. Colgan, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Judith Lifton, appeals from the judgment of the Ashtabula
County Court of Common Pleas, affirming the decision of appellee, Ashtabula County
Board of Health (“the Board”), denying appellant’s request for a variance to install an
off-site septic system on her property, located in North Kingsville, Ashtabula County,
Ohio. At issue is whether the Board’s General Sanitation Requirements (“the
Requirements”), governing Household Sewage Disposal Systems, as written, apply to
appellant’s property and, if so, whether the Board erred in denying appellant’s request
for a variance. Because we hold the requirements do not apply to appellant’s property,
we need not reach the second issue. The matter is accordingly reversed and the
Board’s decision is hereby vacated.
{¶2} In 1981, appellant purchased two vacant lots on Overlook Drive, in North
Kingsville, Ashtabula County, Ohio. She purchased the property at issue, designated
Lot 141, and an additional lot in 1983. A small residence, referred to as “the brown
house,” is located on Lot 141. Each of these four parcels are contiguous to one
another. Later, in 1988, appellant purchased an additional lot located at 7274
Pasadena; this lot included a residence referred to as “the gray house.” Approximately
two-thirds of the north border of the Pasadena property adjoins the South boundaries of
two of the lots on Overlook. All lots are between 30 and 35 feet wide and between 96
and 120 feet long.
{¶3} When the gray house was purchased, it was in significant disrepair.
Appellant and her partner renovated the home, which involved installing a septic
system. Given the small size of the lot, appellant sought a variance, which the Board
granted in 1991. After the renovations, appellant moved into the gray house, where she
still resides.
{¶4} The Brown House had electricity and an outhouse. Appellant, however,
wished to upgrade the residence; to this end, she temporarily tied the plumbing and
sewer into the line servicing the Gray House. The Board, after receiving a complaint
from a third party, inspected Lot 141 and the Brown House and found the property in
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violation of several of the Requirements, one of which was appellant’s sewer connection
to the system servicing the Gray House. On November 13, 2013, the Board filed a
complaint relating to the violations. Appellant subsequently sought a variance, pursuant
to the Requirements, to install an additional off-lot septic system to service the Brown
House.
{¶5} Appellant’s request for a variance was based upon two alternative
arguments. First, she sought a variance that would allow her to maintain the sewage
connection tying the Brown House to the Gray House’s off-lot septic system. Secondly,
she proposed combining three of the five lots to increase the square footage of the
property on which the Brown House was located. In doing so, the property would
increase to 11,000 square feet.
{¶6} The Requirements, adopted in 2004, provide that lots created after
November 1, 2004, must be at least two acres (approximately 43,500 square feet) in
order to accommodate a septic system. The Requirements further mandate that lots
created between 1978 and November 1, 2004, be at least 40,000 square feet. For
purposes of the Requirements, “[t]he date a lot created shall be the date the deed or
plat creating said lot is recorded with the Ashtabula County Recorder’s Office.” The
Requirements do not specify any minimal size requirement to accommodate a
household sewage disposal system for a lot created prior to 1978. It is undisputed that
the deed for Lot 141 was recorded, and the lot was therefore created in 1918.
{¶7} After considering the merits of the forgoing arguments, the Board issued a
ruling denying appellant’s variance requests. With respect to the first argument,
although evidence was presented that appellant would suffer economic harm in the form
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of lost potential rent income, the Board concluded that appellant failed to establish that
she would suffer an unusual and unnecessary hardship if the variance was not granted.
Thus, the Board denied the variance based upon appellant’s first request.
{¶8} Regarding the second argument, the Board noted that, even if appellant
combined the three lots, that combination would result in an approximately one-quarter-
acre lot. The Board consequently determined the combined lot would fall far short of
the minimum lot-size requirements set forth in the Requirements. Under the
circumstances, the Board concluded the lot would be too small to effectively support a
home septic system. Appellant filed an appeal of the Board’s decision with the
Ashtabula County Court of Common Pleas.
{¶9} At the hearing, appellant argued the minimum lot-size requirements for
septic systems set forth in the Requirements do not apply to Lot 141 because the lot
was created prior to 1978. Alternatively, appellant argued that, even if the
Requirements applied to Lot 141, a variance was warranted because application of the
lot-size requirements would cause her unusual and unnecessary hardship; to wit, she
would be unable to utilize the Brown House as a residence, which would reduce Lot
141’s market value and eliminate potential rental income. Appellant produced expert
testimony from George Hess, a civil engineer, concluding an off-lot discharge septic
system could be effectively utilized on Lot 141 without any public or environmental risk
or hazard. Appellant also called real-estate appraiser Dennis Huey, who testified,
without a serviceable septic system, the market value of Lot 141 would decrease by
$48,000.
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{¶10} In response to appellant’s arguments, the Board, via Ashtabula County
Health Commissioner, Raymond Saporito, argued it enacted the minimum-size lot
requirements to protect the public health; Mr. Saporito noted numerous sewage
nuisances in Ashtabula County over the years that resulted from failed septic systems
on smaller lots. Mr. Saporito conceded that the Requirements did not specifically apply
to lots created prior to 1978; he still maintained, paradoxically, that such lots “would still
be covered” under the Requirements for the Board to determine whether a system could
be put on the lot. In any event, Mr. Saporito testified that granting the requested
variance would defeat the spirit and intent of the Requirements and be contrary to the
public interest.
{¶11} After the hearing, the trial court affirmed the Board’s conclusions.
Specifically, it determined that, “[a]lthough the appellant’s lots, including the two with
residential structures, were created prior to the adoption of the minimum lot-size
requirements of the Health Department regulations, the Court finds that they are subject
to the health department regulations governing septic systems.” The court further
determined the difficulties appellant faces were not special and the hardships she will
endure were not unusual. It reasoned that “[e]very lot owner in this development who
does not already have a septic system in place had the same limitation on developing
their property and maximizing its potential value.” Thus, the trial court concluded the
Board’s decision was not unconstitutional, illegal, arbitrary, or capricious.
{¶12} Appellant now appeals to this court, assigning four errors for this court’s
review. Her first assignment of error provides:
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{¶13} “The trial court erred by finding that the Ashtabula County Board of Health
Regulations applied to Lifton’s property.”
{¶14} The standard of review for the court of common pleas of an administrative
appeal is recognized in R.C. 119.12(M), which states in part:
{¶15} The court may affirm the order of the agency complained of in the
appeal if it finds, upon consideration of the entire record and such
additional evidence as the court has admitted, that the order is
supported by reliable, probative, and substantial evidence and is in
accordance with law. In the absence of such a finding, it may
reverse, vacate, or modify the order or make such other ruling as is
supported by reliable, probative, and substantial evidence and is in
accordance with law.
{¶16} “The standard of review to be applied by the court of appeals in an R.C.
2506.04 appeal is ‘more limited in scope.’” (Emphasis sic.) Henley v. City of
Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147 (2000), quoting Kisil v.
Sandusky, 12 Ohio St.3d 30, 34 (1984). “The standard of review for appellate courts is
whether the common pleas court abused its discretion in finding that the administrative
order was or was not supported by reliable, probative and substantial evidence.”
Ashland v. Gene’s Citgo, Inc., 10th Dist. Franklin No. 99AP-938, 2000 Ohio App. LEXIS
1710 (Apr. 20, 2000). “It is incumbent on the trial court to examine the evidence. Such
is not the charge of the appellate court. The appellate court is to determine only if the
trial court has abused its discretion.” Board of Educ. Of Rossford Exempted Village
School Dist. v. State Bd. of Edn., 63 Ohio St.3d 705, 707 (1992). The phrase “abuse of
discretion” is one of art, denoting a judgment exercised by a court, which does not
comport with reason or the record. Gaul v. Gaul, 11th Dist. Ashtabula No. 2009-A-
0011, 2010-Ohio-2156, ¶24.
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{¶17} Section 6.0 of the Requirements, effective November 1, 2004, governs
“Household Sewage Disposal Systems.” It provides:
{¶18} 6.1 For purposes of Section 6 of this resolution: The date a lot is
created shall be the date the deed or plat creating said lot is
recorded with the Ashtabula County Recorder’s Office.
{¶19} 6.2 For lots created after the effective date of this resolution: No
person shall install a home sewage disposal system for a single
family dwelling on any lot created after the effective date of this
resolution unless said lot is at least two (2) acres with suitable area
and has at least 200 feet of road frontage. The 200 feet road
frontage on a dedicated, accepted and publicly maintained roadway
is not required when a lot contains soils which are rated slight or
moderate by the United States Department of Agriculture soil
survey for Ashtabula County and a totally on-lot system can be
installed. Lot areas and frontages for two (2) and three (3) family
dwellings shall be two (2) or three (3) times as large respectively as
the area and frontage requirements under this subsection 6.2 for a
single family dwelling.
{¶20} 6.3 For lots created between 1978 and the effective date of this
resolution: No person shall install a home sewage disposal system
for a single family dwelling on any lot created between 1978 and
the effective date of this resolution unless said lot is at least 40,000
square feet with suitable area and has at least 200 feet of road
frontage. The 200 feet road frontage on a dedicated, accepted and
publicly maintained roadway is not required when a lot contains
soils which are rated slight or moderate by the United States
Department of Agriculture soil survey for Ashtabula County and a
totally on-lot system can be installed. Two (2) or three (3) family
dwellings shall not be permitted on said lot unless the lot meets the
size requirements of subsection 6.2 of this resolution for two (2) or
three (3) family dwellings.
{¶21} Under her first assignment of error, appellant argues the plain language of
Section 6.0 does not contemplate regulating lots created prior to 1978. Because Lot
141 was created in 1918, appellant contends it is outside the scope of Section 6.0.
Thus, she maintains neither the Board nor the trial court was required to reach the issue
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of whether she was entitled to a variance. Appellant therefore concludes the trial court
erred in affirming the Board’s decision.
{¶22} Alternatively, the Board argues appellant misinterprets Section 6.0. It
asserts that even though Lot 141 was created in 1918, the so-called Brown House was
not a pre-existing home, but merely an outbuilding. The Board notes that appellant,
without a permit, installed plumbing and tied the Brown House into a sewage line
servicing the Gray House. The Board asserts, only after appellant made these illicit
upgrades, sometime in 1998, did the Brown House become a “dwelling” or “residence.”
Because such illicit upgrades were made after the Requirements were enacted, Lot 141
is subject to Section 6.0. We shall first address the Board’s contention.
{¶23} The existence of a functional dwelling, residence, or home on a created lot
does not trigger the minimal lot-size requirements set forth under Section 6.0. Rather,
the minimal lot-size requirements are applicable based upon a respective lot’s creation
date. The Ashtabula County General Health District (“the District”) could have
conditioned the application of Section 6.0 upon the date or time at which a building or
structure located on a lot becomes a functional dwelling. It did not and, as a result,
appellee’s argument is a misconstruction of the plain language of the regulation.
{¶24} Section 6.0 unequivocally omits all lots created prior to 1978 from its
regulatory field. It is undisputed Lot 141 was created in 1918. And Health
Commissioner Saporito appeared to acknowledge that lots created prior to 1978 were
outside the ambit of Section 6.0 during the hearing on appellant’s administrative appeal
to the trial court. Somehow, however, he testified lots created prior to 1978 were still
subject to “review” vis-à-vis installation of household sewage disposal systems, even
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though he conceded Section 6.0, governing household sewage disposal systems, did
not cover such lots. Such “review,” however, is not provided for under Section 6.0 and,
as a result, cannot form the basis for regulating household sewage disposal systems on
lots created prior to 1978.
{¶25} At oral argument, however, counsel for the Board asserted the
Requirements include a “catch all” provision, which allegedly placed lots created prior to
1978 within the regulatory scheme that existed between 1972 and 1978. This position,
however, was neither advanced in the trial court nor argued in appellee’s brief.
Moreover, our review of the Requirements fails to disclose any such section or
provision. Not only do the Requirements fail to include a “catch all” provision, Section
11.2 specifically states: “The adoption of this resolution shall repeal the 1972
Resolution titled ‘Regulations Sewage Disposal Systems[’] and the January 3, 1978 and
October 12, 1983 Resolutions concerning household sewage regulations.” Rather than
allowing for a “catch all” that might operate to regulate plots created prior to 1978, the
2004 enactment abolished all prior regulations via its express repeal provision. We
therefore conclude appellant’s property is outside the scope of the Requirements
currently in effect.
{¶26} We acknowledge the Requirements were enacted with the laudatory intent
of protecting public health and safety. And, it is possible that the District, in enacting the
Requirements, mistakenly believed it had some implicit authority to regulate the
minimum lot size for household sewage disposal for lots created before 1978, even
though it did not specifically include such authority in Section 6.0. It is also possible,
however, given the large number of relatively small lots in Ashtabula County created
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prior to 1978, that the District intended, by the omission, to permit such lots to engage in
an otherwise “nonconforming use” and regulate them on a case-by-case basis using its
authority to prosecute nuisances when necessary. We have no way of knowing why
lots created prior to 1978 were not included within the scope of Section 6.0. What is
clear, however, is the regulation unambiguously places such lots outside its regulatory
scope; in effect, there are no minimal size requirements for the installation of household
sewage disposal systems for lots created prior to 1978.
{¶27} Statutes or regulations which restrict the use of private property will be
strictly construed and their scope cannot be extended to include limitations not clearly
proscribed. State ex rel. Spiccia, v. Abate, 2 Ohio St.2d 129 (1965). An appellate court
cannot interpret a statute or regulation, unless the statute is ambiguous. Wetland Pres.
Ltd v. Corlett, 11th Dist. Ashtabula No. 2011-A-0034, 2012-Ohio-3884, ¶34. “An
ambiguity exists if the language is susceptible to more than one reasonable
interpretation.” In re Cvanciger, 11th Dist. Lake No. 2014-L-095, 2015-Ohio-4318, ¶20.
{¶28} As previously indicated, Section 6.0 of the Requirements contains no
ambiguities. We cannot, therefore, interpret the regulation and attempt to divine
whether Section 6.0, as written, is consistent with the purposes and policies of the
overall regulatory scheme. This is especially so when, as here, we must strictly
construe the scope of the regulation. To accept appellee’s construction would not only
be inconsistent with the definite language of the regulation, it would fundamentally limit
appellant’s use of Lot 141. Such an outcome is contrary to public policy and
established case law. We therefore hold, pursuant to the plain language of the
regulation, Section 6.0 does not apply to Lot 141 because the lot was created prior to
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1978. The judgment affirming the Board’s decision is reversed and vacated. Appellant
is therefore permitted to move forward and install a lawful, Ohio EPA approved off-lot
household sewage treatment system, subject to the Board’s oversight and authority to
declare a dangerous condition a nuisance, pursuant to Section 2.0 of the Requirements.
{¶29} Appellant’s first assignment of error has merit.
{¶30} Appellant’s remaining assignments of error provide:
{¶31} “[2.] The trial court erred by finding that there was a preponderance of
reliable, probative and substantial evidence in the record to support the decision of the
Ashtabula County Board of Health denying appellant’s request for a variance.
{¶32} “[3.] The trial court’s enforcement of the Board of Health lot size
requirements and upholding the Board’s denial of Lifton’s variance request has resulted
in an unlawful taking of Lifton’s property.
{¶33} “[4.] The Ashtabula County Board of Health failed to provide Lifton with
equal protection of the law.”
{¶34} Because our resolution of appellant’s first assignment of error is
dispositive of this appeal, appellant’s remaining assignments of error are overruled as
moot.
{¶35} For the reasons discussed above, the Ashtabula County Court of
Common Pleas judgment is reversed and vacated.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.
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