Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals

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Community Concerned Citizens, Inc., Appellant, v. Union Township

Board of Zoning Appeals, Appellee.

[Cite as Community Concerned Citizens, Inc. v. Union Twp. Bd. of

Zoning Appeals (1993), Ohio St.3d .]

Zoning -- Application for conditional use of property denied --

Not a taking under the Fifth or Fourteenth Amendments to the

United States Constitution.

(No. 92-207 --- Submitted April 20, 1993 --- Decided June

23, 1993.)

Appeal from the Court of Appeals for Clermont County, No.

CA91-01-009.

On September 14, 1989, appellant, Community Concerned

Citizens, Inc., filed an application with appellee, Union

Township Board of Zoning Appeals, for a conditional use of its

property located at 4480 Aicholtz Road, Cincinnati, Ohio ("the

property"). The property is situated in Union Township, Clermont

County, Ohio, and is zoned R-2, "Residential, Single-Family,"

pursuant to the Union Township Zoning Resolution. Appellant

sought a conditional use in order to develop and operate a child

care center on the property.

Appellee conducted a public hearing on October 5, 1989, for

purposes of considering the application. Testimony was heard

from proponents and opponents of the application. At the

conclusion of the hearing, the issue was tabled until November 2,

1989.

At the November 2, 1989 meeting, both appellant's attorney

and the township's attorney addressed appellee. At the

conclusion of the meeting, a motion was made to deny the

application for a conditional use, which was approved without

opposition. Notice of appellee's final action was issued on or

about November 3, 1989.

On December 1, 1989, appellant filed an appeal in the

Clermont County Court of Common Pleas. A portion of appellant's

appeal was styled a "complaint." This complaint was dismissed by

the trial court on June 4, 1990, and only the appeal remained for

adjudication.

The trial court, on January 24, 1991, affirmed appellee's

decision to deny the conditional-use application. Appellant

appealed to the court of appeals which affirmed the trial court.

This cause is now before this court pursuant to the

allowance of a motion to certify the record.

Rosenhoffer, Nichols & Schwartz and Gary A. Rosenhoffer, for

appellant.

Lindhorst & Dreidame Co., L.P.A., and Mark A. MacDonald; and

John C. Korfhagen, for appellee.

Alice Robie Resnick, J. In what should have been a

relatively straightforward process, for several reasons, this

case has become a procedural quagmire. On appeal to this court,

appellant expends a great deal of effort arguing that the

"complaint" it filed in the court of common pleas should not have

been dismissed. Specifically, appellant asserts that its

constitutional claims and corresponding plea for a declaratory

judgment should have survived appellee's motion to dismiss.

However, "[a]n appeal from a final administrative decision

denying a property owner a variance is filed under R.C. Chapter

2506." (Emphasis added.) Karches v. Cincinnati (1988), 38 Ohio

St.3d 12, 15, 526 N.E.2d 1350, 1354. In addition, or in the

alternative, a separate declaratory judgment action pursuant to

R.C. Chapter 2721 may be pursued. Id.

On appeal of a zoning board decision, an aggrieved party may

argue that the ordinance, as applied in its particular case, is

unconstitutional. This limited constitutional argument is to be

considered by the trial court in addition to any other

arguments. The determination of constitutionality turns on the

specific proposed use of the property. "In making such a limited

determination, it is possible that the existing zoning could be

unconstitutional, but the zoning would not be declared

unconstitutional because the prohibition against the specific

proposed use is valid." Id. at 16, 526 N.E.2d at 1355.

In a declaratory judgment action filed pursuant to R.C.

Chapter 2721, the landowner sets forth a challenge to the

regulation's overall constitutionality. "* * *[T]he declaratory

judgment action is independent from the administrative

proceedings; it is not a review of the final administrative

order." Driscoll v. Austintown Assoc. (1975), 42 Ohio St.2d 263,

271, 71 O.O.2d 247, 251, 328 N.E.2d 395, 401. Such action does

not raise the denial of the variance as an issue.

In this case, appellant attempted to create a hybrid

constitutional challenge. On December 1, 1989, appellant filed a

"Notice of Appeal and Complaint; Jury Demand Endorsed Hereon."

In this filing, appellant appealed the zoning decision pursuant

to R.C. Chapter 2506, set forth four claims for relief in

complaint form, asked for an R.C. Chapter 2721 declaratory

judgment, and sought damages.

We find that appellant could have challenged the

constitutionality of the ordinance as applied to the specific

proposed use; however, in order to request a declaratory judgment

appellant was required to file a separate R.C. Chapter 2721

action. Procedurally, appellant's request for declaratory

judgment could not be combined with its appeal.

Notwithstanding the fact that we hold that appellant's

complaint was properly dismissed, we find that the reasons given

therefor served to further complicate this case. On May 9, 1990,

the trial court entered a decision that stated: "It is axiomatic

that prior to the commencement of a declaratory judgment action

to determine the validity of a zoning ordinance as applied to a

specific parcel of property and [sic] owner must exhaust

administrative remedies. * * * Two exceptions exist to this

general rule. * * * Plaintiffs [sic] herein have shown neither

exception to the general rule.

"The Court also notes that the thrust of Plaintiff's

complaint is not attacking the Constitutionality of the zoning

ordinance but rather upon the action of the [appellee] in this

particular instance.

"The Court finds that the Motion to Dismiss the Complaint of

Plaintiff is well taken and the same is hereby granted. * * *"

The case then proceeded, according to the court's June 4, 1989

entry, "purely as an administrative appeal."

Our analysis of this case indicates that at the time the

trial court dismissed appellant's complaint, the issues of

whether appellant had exhausted its administrative remedies or

whether the complaint was properly framed were not before the

court. If appellant had filed a separate action seeking a

declaratory judgment, the court's inquiry into appellant's prior

exhaustion of its administrative remedies would have been

proper. See Driscoll, 42 Ohio St.2d at 273, 71 O.O.2d at 252,

328 N.E.2d at 402. In this case, appellant did not separate its

appeal and its complaint for declaratory judgment; therefore, the

complaint should have simply been dismissed prior to any

determination regarding appellant's exhaustion of remedies and/or

the appropriateness of its arguments. Nevertheless, the fact

that the complaint was ultimately dismissed, albeit after an

improper analysis, renders further discussion of this issue

unnecessary.

Appellant argues that it was improper for appellee to

consider factors other than the requirements set forth in the

zoning resolution concerning the grant of a conditional use.

Appellant asserts that because it was capable of conforming to

all the specific requirements for the day-care-center use,

appellee was required to grant the conditional use. The failure

to authorize the conditional use was, according to appellant,

legislative in nature and, therefore, an improper exercise of

appellee's powers.

The power of a township zoning board to grant a conditional

use is ultimately derived from R.C. 519.14. This section

provides, in relevant part: "The township board of zoning

appeals may: * * *(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."

According to Section 604 of the Union Township Zoning

Resolution, township property zoned R-2 has two principal

permitted uses, one conditional use requiring board approval, and

one accessory use. Appellant applied to use the R-2 property for

its "conditional use" purpose, which under Section 604 permitts:

"Nursery schools and child care centers when located not less

than thirty feet (30') from any lot in any 'R' District,

providing that there are established and maintained in connection

therewith one or more completely and securely fenced play lots

which if closer than fifty feet (50') to any property line, shall

be screened by a masonry wall or compact evergreen hedge no less

than five feet (5') in height, located not less than twenty feet

(20') from any lot line in any 'R' District and maintained in

good condition."

It is undisputed that appellant's day care center would

conform to each of the specific conditional use requirements.

However, appellant fails to recognize that Section 304 of the

same township zoning resolution required appellee to consider

additional information prior to deciding whether to grant a

conditional use. Section 304, "Board of Zoning Appeals:

Procedures and Powers," provides, in paragraph three:

"Conditional Uses[.] The Board shall have the power to hear and

decide, in accordance with the provisions of this Resolution,

applications, filed as hereinbefore provided, for conditional

uses * * *. In considering an application for a conditional use,

* * * the Board shall give due regard to the nature and condition

of all adjacent uses and structures * * *."

The decision to deny an application for a conditional use is

clearly administrative in nature. It is not a narrowing of a

zoning classification that could easily be construed as

legislative in character and, therefore, an improper exercise of

appellee's power. See State ex rel. Srovnal v. Linton (1976), 46

Ohio St.2d 207, 75 O.O.2d 241, 346 N.E.2d 764.

Quite simply, pursuant to R.C. 519.14(C), appellee initially

gained the power to consider appellant's request for a

conditional use through application of Section 304 of the zoning

resolution. We find that appellee, properly considered "the

nature and condition of all adjacent uses and structures" in

deciding whether to authorize a conditional use for appellant.

Whether appellant could meet the specific requirements set forth

in Section 604 was but one factor to be considered by appellee in

making its decision. Proving compliance with Section 604 did not

in any way make the grant of a conditional use "automatic."

Appellee was still bound by law to consider the other

aforementioned circumstances.

Appellant argues that appellee's decision to deny its

application was arbitrary and unreasonable as it was inconsistent

with appellee's previous decisions, and that appellee failed to

indicate the reasons for the inconsistency. Appellant urges us

to require that "decisional uniformity" be practiced by

individual boards of zoning appeals.

In reviewing appellee's decision, a court is bound by the

nature of administrative proceedings to presume that the decision

of the administrative agency is reasonable and valid. C. Miller

Chevrolet, Inc. v. Willoughby Hills (1974), 38 Ohio St.2d 298, 67

O.O.2d 358, 313 N.E.2d 400. Courts evaluating the decision of an

administrative body must weigh the evidence in the record in

order to determine whether there is a preponderance of reliable,

probative, and substantial evidence supporting the decision. R.C.

2506.04 and Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58

Ohio St.2d 202, 207, 12 O.O.3d 198, 202, 389 N.E.2d 1113, 1117.

However, a reviewing court should not substitute its judgment for

that of the agency. Dudukovich, supra.

In evaluating the record here, we find, as did the courts

below, that appellee's decision was supported by a preponderance

of reliable, probative and substantial evidence and that appellee

acted reasonably. Among the factors supporting appellee's

decision to deny the application, the record shows cumulative,

direct evidence of traffic and related safety problems that would

obviously be exacerbated by appellant's proposed use of the

property.

Appellant further argues that the appellee's decision was

unreasonable because on at least one other occasion that is

relevant here, appellee had approved an application for a day

care center, and was, therefore, bound by precedent to grant the

conditional use in this case. We are unconvinced that appellee's

decision here was dictated by its previous ruling on a similar

application.

Appellant has not convinced us that the subject property and

the area surrounding it are similar in any material way to the

circumstances under which conditional uses have been previously

granted. While we recognize that a day care application was

previously approved, it is clear that the facts of each

application are unique. The record indicates that a conditional

use for a day care center was granted by appellee in 1981. In

that instance, no one in opposition to the use attended the

hearing, and the only objection apparently focused on a traffic

problem the center would cause. In contrast, in this case, ten

persons opposing the conditional use spoke at the October 5, 1989

hearing, and cumulative information was submitted to appellee

detailing concerns such as pre-existing sewer, traffic and safety

problems. Therefore, it was not unreasonable for appellee in the

case before us to reach a different result.

In its final argument, appellant urges us to find that the

permissive denial of an economically productive or viable use of

its property is equivalent to a "total taking" of the property in

violation of the Fifth and Fourteenth Amendments to the United

States Constitution; therefore, compensation is due the owner.

In support, appellant cites the reasoning set forth in Lucas v.

South Carolina Coastal Council (1992), 505 U.S. , 112 S.Ct.

2886, 120 L.Ed.2d 798.

After analyzing appellant's arguments, we find that the

situation presented in Lucas was significantly different from the

case before us. In Lucas, the petitioner purchased two

residential lots on a South Carolina barrier island in 1986. In

1988, the Beachfront Management Act ("the Act") was enacted by

the state legislature. The Act prevented Lucas from constructing

any permanent occupiable structures on his property. Lucas filed

suit against the state regulatory agency, claiming that although

the exercise of the state's police power was lawful, it deprived

him of all "economically viable" uses of his land, and was,

therefore, a compensable taking. The trial court agreed with the

landowner and the Supreme Court of South Carolina reversed.

Lucas v. South Carolina Coastal Council (1991), 304 S.C. 376, 404

S.E.2d 895.

In reversing the South Carolina court, the United States

Supreme Court held, inter alia, that citizens acquire a "bundle

of rights" when they take title to property. In accordance with

the Takings Clause, that "bundle" cannot be held subject to the

state's subsequent decision to eliminate all economically

beneficial uses and a regulation having such effect cannot be

enacted or sustained without compensation being paid to the

owner. However, if the new restriction simply clarifies an

existing regulation, no compensation is owed. Lucas, 505 U.S.

at , 112 S.Ct. at 2899-2900, 120 L.Ed.2d at 820-821.

In the case before us, appellant purchased the property with

the knowledge that it was zoned R-2 and that a day care center

was a conditional use. The Union Township regulations were not

changed after the property was purchased.

Further, appellant has the option of erecting a structure

that conforms to existing requirements. The fact that it is not

permitted to construct and operate a day care center does not

deny appellant all economically beneficial uses. Therefore, we

hold that appellee's refusal to grant appellant's application for

a conditional use was not a taking under the Fifth or Fourteenth

Amendments to the United States Constitution.

Accordingly, the judgment of the court of appeals is

affirmed.

Judgment affirmed.

Moyer, C.J., A.W. Sweeney, Wright and F.E. Sweeney, JJ.,

concur.

Douglas and Pfeifer, JJ., dissent.