The opinion
[Cite as Shamockery, L.L.C. v. Olmsted Twp. Bd. of Zoning Appeals, 2014-Ohio-3422.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100858
SHAMOCKERY L.L.C.
PLAINTIFF-APPELLANT
vs.
OLMSTED TOWNSHIP BOARD
OF ZONING APPEALS, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED; REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-802994
BEFORE: Kilbane, J., Boyle, A.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: August 7, 2014
ATTORNEYS FOR APPELLANT
Randolph E. Digges III
David E. Spaw
4244 Plumwood Drive
North Olmsted, Ohio 44070
ATTORNEYS FOR APPELLEES
Timothy J. McGinty
Cuyahoga County Prosecutor
Dale F. Pelsozy
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Plaintiff-appellant, Shamockery L.L.C. (“Shamockery”), appeals from
the trial court’s order affirming the denial of its request for a zoning certificate to
use a parcel for beekeeping. In its order, the trial court concluded that the decision
of the Olmsted Township Board of Zoning Appeals (“BZA”) was not
unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the
preponderance of substantial, reliable, and probative evidence because the parcel
was excavated as a water retention basin and handles drainage for several areas in
order to prevent flooding. Since the trial court’s decision is supported by a
preponderance of reliable, probative, and substantial evidence, we affirm the trial
court’s decision, but we remand for the trial court to consider whether a
compensable taking has occurred.
{¶2} Shamockery purchased the subject parcel, situated in Olmsted
Township (“the Township”), permanent parcel No. 263-10-108, at a forfeited land
sale on March 25, 2009, for the sum of $500.1 On November 9, 2012, Shamockery
filed an application for a zoning certificate in order to use the parcel for beekeeping.
On November 26, 2012, the Township denied the application because the parcel
does not have sufficient frontage, parking, or access drives; bee hives are an
1It is not clear from the record as to whether the Township was notified of the
sale in connection with any land reutilization provisions.
accessory building that are not permitted until a principal structure is complete; and
beekeeping is a nonconforming use of the property.
{¶3} Shamockery appealed to the BZA. Shamockery asserted that it has an
absolute right to use the parcel as requested because beekeeping is an agricultural
pursuit under R.C. 519.21(A), and the area of the parcel exceeds one acre. The
BZA held a public hearing on the matter on January 16, 2013.
{¶4} The evidence indicates that in 1988, during the construction of the
Bradford’s Gate Subdivision, the area was designated a storm water retention basin.
The Township’s final plat approval for the subdivision set forth the following
condition:
That we receive a written statement from the developer that Shore
West Construction Company owns and intends to maintain the
retention basin and fencing surrounding the retention basin[.]
{¶5} In response, Shore West submitted a letter to the Planning Commission
that stated:
Please allow this letter to confirm the fact that we own the storm water
retention basin in the above-captioned subdivision. As per our
discussion at the Executive Committee Meeting, we will maintain the
basin and fencing, at least on an interim basis, until the Township and
County have reached agreement concerning maintenance.
{¶6} In addition, when the plat for the subdivision was recorded in 1996, a
portion was purchased by an individual, Robert Barnes, a portion was referenced as
a retention area, and the remainder was eventually sold to Shamockery at a forfeited
land sale in 2009.2 At the BZA hearing, residents stated that the area was created
as a dry catch basin, and it is undisputed that it contains an eight-inch drain pipe.
According to numerous witnesses, the area floods several times a year. Over the
years, the drain pipe has been maintained by various governmental entities to
prevent the flooding of nearby basements. Any disruption of the drainage facility
would have an immediate impact on flooding. According to another individual,
Shamockery should have obtained a survey, and had it done so, drainage courses
from the adjoining areas would have been evident.
{¶7} In opposition, Shamockery’s counsel stated that the parcel is not part
of a platted subdivision, and there are no recorded easements over the property.
He argued that the Township would have to acquire an easement or obtain the
parcel by eminent domain in order to use it as a dry catch basin for the adjoining
areas.
{¶8} The BZA denied the zoning certificate, and Shamockery appealed to
the court of common pleas. In a four-page opinion, the trial court affirmed the
denial. In relevant part, the court held:
The record from the hearing reflects that the
intended use of the Property,
dating back many years, was as
a water retention basin for the
2One
individual opined that the developer failed to pay taxes on the parcel so
the property was forfeited.
adjoining subdivisions. (See
Record at 9, 10, 12, 13, 14, 15,
19, 30) The basin handles the
drainage for several areas in
order to prevent flooding the
Township and Olmsted Falls.
(See Record at 29, 30) The
record further reflects that the
Property was excavated as a
retention basin and was
approved by the sanitary
engineer as such. (See Record
at 11) Furthermore, the record
reflects that the Township has
openly maintained this Property
for retention purposes and
continues to do so. (See Record
at 13, 14, 15, 16, and 27; see
also Merit Brief of Appellant at
6 and Reply Brief of Appellee
at 2)
* * *
After carefully weighing the evidence in the record, and a review of
the brief and arguments filed on behalf of the Appellant and the
Appellee, the Court finds that the Board’s decision is not
unconstitutional, illegal, arbitrary, capricious, or unreasonable.
Moreover, the Court finds that there exists a preponderance of reliable,
probative and substantial evidence to support the Board’s decision.
Therefore, the Board’s decision is hereby affirmed.
{¶9} Shamockery appeals and assigns the following errors for our review:
Assignment of Error One
Olmsted Township has no power whatsoever to prohibit Shamockery
LLC from using permanent parcel no. 263-10-108 for agricultural
purposes.
Assignment of Error Two
The final order, adjudication or decision of the Olmsted Township
Board of Zoning Appeals and the judgment of the Cuyahoga County
Court of Common Pleas from which this appeal is taken deprives
Shamockery LLC of property rights in permanent parcel no.
263-10-108 without due process of law and without just compensation
in violation of the Fifth Amendment of the U.S. Constitution.
Standard of Review
{¶10} In R.C. Chapter 2506 administrative appeals to the court of common
pleas, the court must consider the whole record, including any new or additional
evidence admitted under R.C. 2506.03, and determine whether the administrative
order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported
by the preponderance of substantial, reliable, and probative evidence. Henley v.
Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147, 2000-Ohio-493, 735 N.E.2d 433.
{¶11} 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,” and the
court of appeals does not have the power to weigh “the preponderance of
substantial, reliable and probative evidence,” as is granted to the common pleas
court. Id. The fact that the court of appeals might have arrived at a different
conclusion than the administrative agency is immaterial. Id. Accordingly, when
reviewing a common pleas court order that determined an appeal from an
administrative agency, the appellate court must affirm the trial court unless that
court’s decision is not supported by a preponderance of reliable, probative, and
substantial evidence. Russell v. Pub. Health, Hous. Appeals Dept., 142 Ohio
App.3d 430, 432, 756 N.E.2d 118 (9th Dist.2001). (Citations omitted.) In making
this determination, this court applies the abuse of discretion standard. Henley at
148; Disanto Ents. v. Olmsted Twp., 8th Dist. Cuyahoga No. 90728,
2008-Ohio-6949, ¶ 11.
{¶12} We additionally note, with regard to the substantive law, that zoning
ordinances enacted pursuant to the police powers of a municipality are presumed
valid until the contrary is clearly demonstrated, and the party challenging a
legislative enactment bears the burden of demonstrating its unconstitutionality.
Dome Energicorp v. Zoning Bd. of Appeals, 8th Dist. Cuyahoga No. 50554, 1986
Ohio App. LEXIS 7523, *2-3 (July 10, 1986), citing Mayfield-Dorsch, Inc. v. S.
Euclid, 68 Ohio St.2d 156, 429 N.E.2d 159 (1981), and Hilton v. Toledo, 62 Ohio
St.2d 394, 396, 405 N.E.2d 1047 (1980).
{¶13} R.C. 519.02 grants townships local zoning authority. “‘Such
authority is a grant of police power for local determinations concerned with land
use and planning * * *. All such exercise of this police power is for the purpose of
insuring the health, welfare and safety of the local communities.’” Dome
Energicorp, quoting Hulligan v. Bd. of Zoning Appeals, 59 Ohio App.2d 105, 107,
392 N.E.2d 1272 (9th Dist.1978). However, since the object of the police power is
the public health, safety and general welfare, its exercise must bear a substantial
relationship to that object and must not be unreasonable or arbitrary in order to be
valid. Dome Energicorp, quoting Cincinnati v. Correll, 141 Ohio St. 535, 539, 49
N.E.2d 412 (1943), paragraph one of the syllabus.
{¶14} Permitted uses are those allowed as of right, provided the landowner
meets all other requirements, e.g., building code requirements. Byers DiPaola
Castle, LLC v. Ravenna City Planning Comm., 11th Dist. Portage
No. 2010-P-0063, 2011-Ohio-6095, ¶ 26. Conditional uses (also known as special
exceptions) are also allowed in the zoning code, but they are uses that may have a
significant impact and thus require an administrative hearing for approval. Id.,
quoting Kipp v. Bd. of Zoning Appeals of Stonelick Twp., 12th Dist. Clermont
No. CA2003-10-086, 2004-Ohio-5903, at ¶ 10.
{¶15} In this matter, the trial court concluded that the administrative order
was not unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported
by the preponderance of substantial, reliable, and probative evidence. The court
noted, as stated earlier:
The record from the hearing reflects that the
intended use of the Property,
dating back many years, was as
a water retention basin for the
adjoining subdivisions. (See
Record at 9, 10, 12, 13, 14, 15,
19, 30) The basin handles the
drainage for several areas in
order to prevent flooding the
Township and Olmsted Falls.
(See Record at 29, 30) The
record further reflects that the
Property was excavated as a
retention basin and was
approved by the sanitary
engineer as such. (See Record
at 11) Furthermore, the record
reflects that the Township has
openly maintained this Property
for retention purposes and
continues to do so. (See Record
at 13, 14, 15, 16, and 27; see
also Merit Brief of Appellant at
6 and Reply Brief of Appellee
at 2)
{¶16} The record supports these conclusions. It is clear from the record that
in 1988, during the construction of the Bradford’s Gate Subdivision, the area was
excavated and dedicated as a storm water retention basin. The Township’s final
plat approval for the subdivision set forth the condition that the area would be
maintained as a retention basin. The developer also gave the Township written
confirmation that the area would be maintained as a retention basin. The record
also contains substantial, reliable, and probative evidence that the retention basin
has also been continuously used as a retention basin because it is essentially a
common area for the surrounding subdivisions, has drainage courses, and contains
an eight-inch drainage pipe. The parcel has been maintained by the county
engineer and the Township in order to keep it clear of debris to prevent the flooding
of the surrounding parcels.
{¶17} Therefore, this court concludes that the trial court’s decision is
supported by a preponderance of reliable, probative, and substantial evidence, and
that the trial court did not abuse its discretion in affirming BZA’s decision. Accord
K-Mart Corp. v. Westlake, 121 Ohio App.3d 630, 700 N.E.2d 659 (8th Dist.1997)
(trial court did not err in reaffirming city’s rejection of store’s plan for development
based upon city’s requirements for storm water runoff).
{¶18} The first assignment of error is without merit.
Taking of Property
{¶19} Shamockery next asserts that the zoning is a taking without just
compensation.
{¶20} Application of land-use regulations to property constitutes a
compensable taking if the ordinance does not substantially advance legitimate state
interests or denies an owner economically of a viable use of his land. State ex rel.
Shemo v. Mayfield Hts., 96 Ohio St.3d 379, 2002-Ohio-4905, 775 N.E.2d 493, ¶ 1;
First N. Corp. v. Bd. of Zoning Appeals Olmsted Falls, 8th Dist. Cuyahoga No.
99681, 2014-Ohio-487, ¶ 48.
{¶21} This issue was not decided by the trial court. Since this court acts as a
reviewing court, it should not consider this issue for the first time on appeal.
Therefore, we remand for the trial court to consider the issue of the taking of
property without just compensation. Clifton v. Blanchester, 12th Dist. Clinton
No. CA2007-09-040, 2008-Ohio-4434, ¶ 14 (remanding for consideration of taking
issue). See generally Lang v. Holly Hill Motel, Inc., 4th Dist. Jackson No. 05CA6,
2005-Ohio-6766, ¶ 22, citing Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 360,
1992-Ohio-95, 604 N.E.2d 138; Padula v. Hall, 7th Dist. Mahoning No.
03-MA-235, 2004-Ohio-4823, ¶ 24; Guappone v. Enviro-Cote, Inc., 9th Dist.
Summit No. 24718, 2009-Ohio-5540, ¶ 13.
{¶22} Accordingly, we agree with the trial court’s judgment affirming the
BZA’s decision; however, we remand for the trial court to consider whether a
compensable taking has occurred.
{¶23} It is ordered that appellees and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
MARY J. BOYLE, A.J., and
EILEEN T. GALLAGHER, J., CONCUR