[Cite as Highland Farm Ltd. v. Jackson Twp. Bd. of Zoning Appeals, 2016-Ohio-4624.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
HIGHFIELD FARM, LTD., ET AL. JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiffs-Appellants Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2015CA00135
JACKSON TOWNSHIP BOARD OF
ZONING APPEALS, ET AL.
OPINION
Defendants-Appellees
CHARACTER OF PROCEEDING: Appeal from the Stark County Common
Pleas Court, Case No. 2014CV00986
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 20, 2016
APPEARANCES:
For Plaintiffs-Appellants - For Defendant-Appellee –
Kenneth Manda Verizon Wireless
JOHN J. RAMBACHER CHRISTOPHER M. ERNST
MICHAEL J. KAHLENBERG JENNIFER A. FLINT
825 S. Main St. Bricker & Eckler LLP
North Canton, Ohio 44720 1001 Lakeside Ave. E., Suite 1350
Cleveland, Ohio 44114
For Defendant-Appellee –
Jackson Township Bd. Zoning Appeals
JAMES F. MATHEWS
DANIEL D. EISENBREI
Baker, Dublikar, Beck, Wiley & Mathews
400 South Main Street
North Canton, Ohio 44720
Stark County, Case No. 2015CA00135 2
Hoffman, J.
{¶1} Plaintiff-appellant Kenneth B. Manda appeals the June 22, 2015 Order
entered by the Stark County Court of Common Pleas affirming the March 27, 2014
decision of the Jackson Township Board of Zoning Appeals which granted an application
for a Conditional Use Permit relating to real property owned by Appellee Brendel
Corporation.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 4, 2014, Appellee Faulk & Foster Real Estate, Inc. (“Faulk”)
submitted Application No. 2268 as agent of Verizon Wireless for a Conditional Use Permit
(“CUP”) relating to real property located at 8215 Arlington Avenue, Northwest, North
Canton, Ohio. The application was signed "Faulk & Foster, by Ralph Wyngarden.” The
application listed the "Property/Tower Owner" as Verizon Wireless, 7575 Commerce
Court, Lewis Center, OH 43045. The agent for the application was listed as "Faulk &
Foster, by Ralph Wyngarden, 588 Three Mile Rd. N.W., Suite 102, Grand Rapids, MI
49544.” The application listed the "Affected Premises" as the address of the property.
{¶3} Application No. 2268 sought the issuance of a CUP for: "A 190' monopole
with 9' lightning rod. Verizon's antenna will be attached at a centerline of 190'. Verizon
will also place an 11'6" x 25'5.5" equipment/generator shelter within a fenced compound
area (see drawings). Relief is requested from the accessory building size requirement of
Sec. 304.6(E)."
{¶4} The property is owned by Brendel Corporation. The CUP application did not
list the name, address, and phone number of Brendel Corporation as the property owner.
Stark County, Case No. 2015CA00135 3
Nor did the application include written approval of Brendel Corporation as the actual
property owner.
{¶5} Following submission of the application, the Jackson Township Board of
Zoning Appeals (“Board”) published notice of a hearing to occur in the Canton Repository
on February 13, 2014. The Notice stated,
5:45 PM Appeal #2268- Faulk&Foster, 588 Three Mile Rd. NW Ste
102, Grand Rapids, MI 49544 agent for Brendel Corporation, property
owner, PO Box 517, Canal Fulton, OH 44614 requests a conditional use
permit for a wireless telecommunications tower with a 293 sq. ft. accessory
building where a 50 sq. ft. accessory building is permitted per Art. III Sec.
304 of the zoning resolution. Property located at 8215 Arlington NW Sect.
5SE Jackson Twp. Zoned R-R.
{¶6} The Notice indicated the public hearing would occur on February 27, 2014.
{¶7} Thereafter, on March 13, 2014, the following notice appeared in the
Canton Repository, “5:30 PM Appeal #2268- Continued from Feb. 27th”
{¶8} The revised notice did not list the name of the property owner, the applicant,
the address of the property or the zoning relief sought. The notice occurred subsequent
to the time the first hearing was to occur.
{¶9} On March 27, 2014, the Board conducted a public hearing on the
application.
{¶10} Appellant attended the hearing, and voiced his objections on the record. At
the conclusion of the hearing, the Board voted in favor of granting the CUP for the
Stark County, Case No. 2015CA00135 4
proposed location of Verizon's tower, but declined the application for a variance as to the
size of the proposed accessory building.
{¶11} The Board granted the CUP on March 27, 2014. Appellant filed an appeal
to the Stark County Court of Common Pleas on April 25, 2014. Appellant also filed a
motion to stay the Board's decision. The trial court granted the motion to stay.
{¶12} On May 29, 2014, Verizon removed the appeal to the United States District
Court, Northern District of Ohio, Eastern Division. On September 4, 2013, the District
Court remanded the matter to the Stark County Court of Common Pleas finding the
District Court lacked subject matter jurisdiction over the administrative appeal.
{¶13} On October 27, 2014, Appellant moved for a trial de novo. The trial court
denied the motion on December 2, 2014.
{¶14} Via Order of June 22, 2015, the trial court affirmed the Board's March 27,
2014 Decision.
{¶15} Appellant appeals, assigning as error,
{¶16} “I. THE TRIAL COURT ERRED IN FINDING THAT THE JACKSON
TOWNSHIP BOARD OF ZONING APPEALS HAD SUBJECT MATTER JURISDICTION
TO CONSIDER THE APPLICATION.
{¶17} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN CONCLUDING
THAT CORPORATION'S "ATTENDANCE" AT THE HEARING CURED THE DEFECTS
IN THE APPLICATION AND NOTICE, WHEN THERE IS NO RECORD EVIDENCE TO
SUPPORT THE CONCLUSION.”
Stark County, Case No. 2015CA00135 5
I. and II.
{¶18} Appellant's assigned errors raise common and interrelated issues;
therefore, we will address the arguments together.
{¶19} Pursuant to R.C. 2506.04, in an administrative appeal, the common pleas
court considers the whole record, including any new or additional evidence, and
determines whether the administrative order is unconstitutional, illegal, arbitrary,
capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,
and probative evidence. In reviewing an appeal of an administrative decision, a court of
common pleas begins with the presumption the board's determination is valid, and the
appealing party bears the burden of showing otherwise. Hollinger v. Pike Township Board
of Zoning Appeals, Stark App. No. 09CA00275, 2010 Ohio 5097.
{¶20} As an appellate court, our standard of review to be applied in an R.C.
2506.04 appeal is “limited in scope.” Kisil v. Sandusky, 12 Ohio St.3d 30, 465 N.E.2d 848
(1984). “This statute grants a more limited power to the court of appeals to review the
judgment of the common pleas court only on ‘questions of law,’ which does not include
the same extensive power to weigh the preponderance of the substantial, reliable, and
probative evidence, as is granted to the common pleas court.” Id. Ultimately, the standard
of review for appellate courts in a R.C. 2506 appeal 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.” See Weber v. Troy Twp. Board of Zoning
Appeals, 5th Dist. Delaware No. 07 CAH 04 0017, 2008-Ohio-1163, 2008 WL 697384.
{¶21} “The standard of review for courts of appeals in administrative appeals is
designed to strongly favor affirmance” and “permits reversal only when the common pleas
Stark County, Case No. 2015CA00135 6
court errs in its application or interpretation of the law or its decision is unsupported by a
preponderance of the evidence as a matter of law.” Cleveland Clinic Foundation v.
Cleveland Board of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d
1161.
{¶22} Pursuant to R.C. 519.14, the Jackson Township Board of Zoning Appeals,
may,
(B) Authorize, upon appeal, in specific cases, such variance from the
terms of the 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;
(C) Grant conditional zoning certificates for the use of land, buildings,
or other structures if such certificates for specific uses are provided for in
the zoning resolution. If the board considers conditional zoning certificates
for activities that are permitted and regulated under Chapter 1514. of the
Revised Code or activities that are related to making finished aggregate
products, the board shall proceed in accordance with section 519.141 of the
Revised Code.
{¶23} Further, R.C. 519.211,
(2) Sections 519.02 to 519.25 of the Revised Code confer power on
a board of township trustees or board of zoning appeals with respect to the
location, erection, construction, reconstruction, change, alteration, removal,
or enlargement of a telecommunications tower, but not with respect to the
Stark County, Case No. 2015CA00135 7
maintenance or use of such a tower or any change or alteration that would
not substantially increase the tower's height. However, the power so
conferred shall apply to a particular telecommunications tower only upon
the provision of a notice, in accordance with division (B)(4)(a) of this section,
to the person proposing to construct the tower.
{¶24} The trial court herein found the record was fully developed as to the property
owner, who was present and identified, to the nature of the structure to be built, and all
other applicable criteria under the Zoning Resolution. The trial court further found any
defects in the application did not divest the Board of Zoning of authority to proceed, citing
State ex rel Ayers v. Burton Twp. Bd. Of Zoning Appeals, 2001 Ohio 8800.
{¶25} All proceedings of the Board are governed by the provisions of the Zoning
Resolution of Jackson Township, Stark County, Ohio ("Resolution"). Section 802.2 states,
An application for a Conditional Use Permit for any land, structure,
or use permitted as a conditional use under this Resolution shall be
submitted in accordance with the following procedures:
A. Application Submitted to the Zoning Inspector. Any application for
a Conditional Use Permit shall be made to the Zoning Inspector and
submitted to the Board of Zoning Appeals on a special form for that purpose,
available from the Zoning Inspector. Each application shall be accompanied
by the payment of a fee in the amount established by the Township
Trustees.
B. Data Required with Application.
1. A completed application form.
Stark County, Case No. 2015CA00135 8
2. The name, address, and phone number of applicant and property
owner, and the owner's written approval, if property ownership is other than
the applicant.
***
C. Only Complete Application Accepted. The Zoning Inspector shall
accept an application for review by the Board of Zoning Appeals only if it is
complete.
{¶26} It is undisputed the application herein submitted by Faulk and
Foster/Verizon Wireless by Ralph Wyngarden was defective and not in compliance with
the mandates of the Resolution. The application did not list Brendel Corporation as the
property owner or contain written approval of Brendel Corporation as the property owner.
Verizon is not the owner of the property as stated in the application.
{¶27} As a result, Appellant maintains the Board lacked jurisdiction to consider
the application as submitted for the CUP; therefore, the action of the Board was void ab
initio. Appellant cites the Second District Court of Appeals decision in Anderson v. City
of Vandalia, 159 Ohio App.3d 508, 2005-Ohio-118, which held,
It is undisputed that the application submitted by the Legion did not
contain the required narrative statement. It is further undisputed that the
BZA did not have a narrative statement at the time it conducted its public
hearing on the property. The BZA specifically approved the application
subject to the Legion's “providing an appropriate narrative evaluating the
effects on adjoining property.” However, the Legion was directed to submit
the statement to the “Engineering Department for their review,” rather than
Stark County, Case No. 2015CA00135 9
to the BZA. The narrative statement was submitted to the deputy city
engineer two days after the public hearing and was not considered by the
BZA. The council did have the benefit of the statement prior to rendering its
decision.
The Code specifies that the BZA shall make recommendations to the
council regarding conditional uses. Generally, this type of provision
recognizes that the BZA has more familiarity with zoning issues than does
the council. The Code also mandates the submission of a narrative
statement with the application and mandates that the BZA make
recommendations based upon the application as submitted. We have
reviewed the record and find nothing to indicate that the BZA had before it
any other source of information regarding the matters to be set forth in the
narrative statement. Therefore, the BZA made its recommendation based
upon an incomplete application, in violation of the requirement that a
narrative statement be included in the application. Furthermore, since there
are no written findings of fact, we cannot determine from this record whether
the BZA considered the criteria listed in Section 1288.03.
We cannot agree with the city's argument that any flaw in the
application as presented to the BZA was inconsequential and that any
problem was corrected by the submission of the statement to the council.
The mere fact that the council makes the ultimate decision with regard to
conditional-use applications cannot be used to support the city's attempt to
sidestep the Code requirements regarding applications and hearings before
Stark County, Case No. 2015CA00135 10
the BZA. The likelihood that the defect in the application to the BZA
adversely affected Anderson cannot be discounted, in view of the ability of
the BZA to develop greater expertise with respect to zoning matters, its
ability to dedicate more time to the consideration of zoning matters, the
consequent ability for an interested party to develop a more thorough record
in proceedings before the BZA, and, finally, the likelihood that the council,
vested with substantial discretion in the matter, may defer substantially to
the recommendation of the BZA.
To agree with the city's argument would ignore Code requirements,
rendering them nullities. Specifically, if the BZA is permitted to make
recommendations based upon incomplete applications, and the council is
permitted to render final decisions despite the BZA having failed to comply
with the Code in reaching its recommendation, then the Code provisions
with regard thereto are superfluous. We must presume that the drafters of
the Code did not intend to create superfluous provisions. Therefore, we
reject this argument.
We conclude that the application for a conditional-use permit
submitted by the Legion to the BZA did not comply with the Code. We further
conclude that the BZA did not comply with the Code, because it made
recommendations based upon an incomplete application and it did not
prepare written findings of fact. Therefore, we conclude that the decision to
recommend the grant of the conditional use was contrary to the Code, and
the decision of the council to permit the use, which cannot be presumed to
Stark County, Case No. 2015CA00135 11
have been made independently of, and without regard to, the BZA's
recommendation, is therefore invalid. Accordingly, Anderson's first
assignment of error is sustained.
{¶28} In contrast, this Court held in Weinfeld v. Welling, Stark App. No.
2000CA0011 (April 9, 2011),
Weinfeld urges application of the standard set forth in Freedom Twp.
Bd. of Zoning Appeals v. Portage Co. Bd. of Mental Retardation (1984), 16
Ohio App.3d 387, 389, which held that an error in proceedings before a
board of zoning appeals is not reversible unless it affects the substantial
rights of the complaining party. In Stebelton v. Boblenz, (Dec. 6, 1993),
Fairfield App. No. 16-CA-93, unreported, we rendered the following
guidance:
“Despite the mandatory language of the resolution, requiring that
certain information be provided in a notice of appeal, the resolution does
not make inclusion of such information jurisdictional as to BZA. It is apparent
from the transcript of the hearing before BZA that appellants were not
prejudiced by the defective notice of appeal, as all parties clearly
understood the piece of property under consideration, and were aware that
the zoning was R R. Further, [Appellant] stated at the hearing that the failure
to include the information in the notice of appeal was irrelevant.
Id. at 2.” [Quotations added.]
Thus, we are inclined to analyze this notice issue under a “prejudicial
error” standard of review; i.e., to consider whether the record demonstrates
Stark County, Case No. 2015CA00135 12
prejudice to the Wellings due to the errors on the face of the notice of
hearing. ***
{¶29} Both the court in Anderson and this Court in Weinfeld reviewed the record
before the Board to determine if there was any source of information to relieve the
prejudice caused by the errors in the defective application and/or notice. In Anderson,
the Second District did not find the Board had before it any other source of information
regarding the matters to be set forth in the missing narrative statement; therefore, the
Second District concluded the Board made recommendations based upon an incomplete
application; lacking jurisdiction.
{¶30} We distinguish the holding in Anderson from this Court's holding in
Weinfeld, wherein we imposed a "prejudicial error standard of review" inquiring whether
the record demonstrated prejudice to Appellant due to errors on the face of the notice of
hearing. Upon review of the record, we held all parties understood the nature of the
proceedings, including the property involved and the zoning changes sought, concluding
there was no actual prejudice caused by the defective notice.
{¶31} Here, it is clear from the record Alex Brendel attended the March 27, 2014
hearing before the Jackson Township Board of Zoning Appeals. Alex Brendel was
presented to the Board by Ralph Wyngarden as the owner of the property. During the
hearing, Ralph Wyngarden introduced himself stating, "Also here with me is the property
owner, Alex Brendel, and the site acquisition agent, Monica Pitchure, from Site Quest,
and the design engineer, Mike Pitchure, who could answer questions of a structural
nature if there are any." Tr. at 11. Accordingly, we find the trial court’s conclusion the
Board had before them the owner of the property, whose presence implied consent to the
Stark County, Case No. 2015CA00135 13
Conditional Use Permit application through his presence at the hearing, and approval
through acquiescence was not an abuse of discretion.
{¶32} Appellant also maintains the notice of the hearing was defective.
{¶33} R.C. 519.15 reads, in pertinent part,
The board of zoning appeals shall fix a reasonable time for the public
hearing of the appeal, give at least ten days' notice in writing to the parties
in interest, give notice of such public hearing by one publication in one or
more newspapers of general circulation in the county at least ten days
before the date of such hearing, and decide the appeal within a reasonable
time after it is submitted. Upon the hearing, any person may appear in
person or by attorney
{¶34} As discussed in Weinfeld, supra, here all parties understood the nature of
the proceedings, the scope of the CUP and the parcel of property involved. Appellant
attended the hearing and had the opportunity to speak before the Board. The notice was
published ten days before the hearing in a newspaper of general circulation, and the
appeal was decided within a reasonable time. We find Appellant has not demonstrated
prejudice as a result of any defect in the notice herein.
{¶35} We find the trial court did not abuse its discretion in finding the
administrative order was supported by reliable, probative and substantial evidence.
Stark County, Case No. 2015CA00135 14
{¶36} Appellant’s first and second assignments of error are overruled.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur