The opinion
[Cite as Ferrara v. Liberty Twp. Zoning Bd. of Appeals, 2018-Ohio-3537.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
J.V. FERRARA, : OPINION
Appellant/Cross-Appellee, :
CASE NOS. 2017-T-0075
- vs - : 2017-T-0077
2017-T-0078
LIBERTY TOWNSHIP ZONING :
BOARD OF APPEALS,
:
Appellee/Cross-Appellant.
Civil Appeals from the Trumbull County Court of Common Pleas.
Case Nos. 2016 CV 00379, 2016 CV 00380, & 2016 CV 00381.
Judgment: Affirmed in part and reversed in part; remanded.
Glenn R. Osborne and T. Scott Kamenitsa, Friedman & Rummell Co., L.P.A., 3801
Starrs Centre Drive, Canfield, OH 44406 (For Appellant/Cross-Appellee).
Mark S. Finamore and Stephen A. Turner, Turner, May & Shepherd, 185 High Street,
N.E., Warren, OH 44481-1219 (For Appellee/Cross-Appellant).
TIMOTHY P. CANNON, J.
{¶1} On review before this court is the decision of the Trumbull County Court of
Common Pleas, which affirmed in part and reversed in part a decision of the Liberty
Township Zoning Board of Appeals (“BZA”) denying J.V. Ferrara’s applications for three
conditional use permits. The applications have been consolidated for hearing and review
throughout the proceedings. Mr. Ferrara noticed an appeal from the trial court’s July 12,
2017 judgment, which was followed by the BZA’s cross-appeal.
{¶2} Following a cease and desist order issued by the Liberty Township Zoning
Inspector, Mr. Ferrara submitted applications for three conditional use permits, seeking
to operate a private club at three residential properties in Liberty Township, Trumbull
County, Ohio. One residence is located on Logan Way/Mansell Drive (“the Logan Way
property”); the other two are located on West Liberty Street (“the Liberty Street
properties”).
{¶3} The properties are zoned “single family,” pursuant to the Liberty Township
Zoning Resolution (“LTZR”). “Private clubs and parks” is an allowed use for single-family
districts but requires a conditional use permit under LTZR Section 4:2.4.2. LTZR Section
2:2.24 defines “club” as “[a]n organization of persons for special purposes or for the
promulgation of sports, arts, literature, politics, or the like, excluding churches,
synagogues, or other houses of worship.”
{¶4} The subject premises for the requested conditional use permits are three
historic mansions owned in trust by Mr. Ferrara as the trustee; he seeks permission to
rent the mansions to members of a Pine Lakes Club. According to Pine Lakes Club’s
“Stay and Play Mansion Policies and Procedures,” the Club provides its members “access
to the Club’s Golf Course partnering courses and facilities as a social and recreation club
for the pleasure and recreation of its members, families and friends.”
{¶5} Mr. Ferrara’s permit applications state the residences are “controlled by
Pine Lakes Manor, Inc., a non-profit private club whose members are golf aficionados
from outside the immediate area who use the Facility as lodging while they golf throughout
the area.”
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{¶6} Two public hearings were held before the BZA, at which Mr. Ferrara and his
attorney spoke in support of the applications. They stated the properties are not hotels
or bed and breakfast facilities, but someone does check on the guests every day and
gives them breakfast. Only Club members can utilize the properties, and only one “group
leader” and his or her family and friends can stay at one of the properties at one time.
They spoke as to how operating the Club enhances the local economic welfare by
referring members to and partnering with 20 local golf courses, 10 local hotels, a lodge,
and 4 mansions. Mr. Ferrara stated using the properties in this way, as opposed to rental
properties, helps to control the amount of damage done to the historical residences. Mr.
Ferrara indicated he has been operating the properties in this manner since 2008, but the
private Club was formed in 2014. The properties are wooded and expansive, located on
10, 11.7, and 30 acres. A brochure was introduced as an exhibit that provides an
overview of the Club, the properties, and the golf courses offered in conjunction with
membership. The brochure states the three properties accommodate up to 16, 20, and
32 guests at a time; Mr. Ferrara stated he averages from 8 to 12 in a group. Prospective
members must fill out an application form and sign a contract, as well as abide by the
Club’s “Stay and Play Mansion Policies and Procedures.” There are approximately 300
members; dues are $10.00 payable by the group leader.
{¶7} Four participants at the public hearings spoke in support of Mr. Ferrara’s
applications: an abutting property owner stated he had no complaints; a renter who lives
in a small house on one of the subject properties stated she feels very safe on the property
and that it is a calm environment; the executive director of the Trumbull County Tourism
Bureau spoke on the economic benefit of Mr. Ferrara’s Club to the local area; and a
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representative of a local hotel stated the Club brings them a lot of business during the
golf season.
{¶8} Seven area property owners or their designees expressed opposition to Mr.
Ferrara’s applications. Some expressed appreciation for the boost to the local economy
but were concerned about the effect of operating a seemingly commercial enterprise in a
residential area. The concerns related to increased traffic and noise at all hours, including
fireworks, and the effect on the neighborhood by introducing transient guests to the area,
who sometimes end up on the neighboring properties. Six of the seven residents or
designees spoke in opposition to application for the Logan Way property; one designee
spoke in opposition to the application for the Liberty Street properties.
{¶9} The BZA raised concerns regarding how the property is insured and taxed,
guest safety issues, whether the guests are monitored for compliance with the Club’s
rules during their stay, the fact that the Club has paid staff, and why Mr. Ferrara never
applied for a conditional use permit since 2008 when he began operating the properties
as guest lodging. In response to questioning by the BZA, Mr. Ferrara indicated the Club
was formed in 2014 to fall in line with the Township’s zoning policies, yet he did not apply
for conditional use permits at that time; breakfast is prepared for the guests in the
properties’ kitchens by paid staff; the Club does not currently pay a “bed tax” for the
properties; the properties are insured as private residences; “do not use” signs are not
posted on the decorative, non-working fireplaces; and there is no mechanism in place to
enforce the Club’s “policies and procedures,” such as the prohibition on fireworks or the
10:00 p.m. curfew. There was also much discussion and debate between the members
of the BZA and Mr. Ferrara and his attorney regarding whether this was actually a
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commercial enterprise operating in residential neighborhoods, specifically as a bed and
breakfast facility.
{¶10} Mr. Ferrara presented the BZA with a letter, maps, and photographs
detailing the relationship of the subject properties to the complaining neighbors’
properties; arrangements for the Club’s proposed conditional use in response to the
neighbors’ concerns; and police reports from the 911 call center, indicating the absence
of any noise complaints.
{¶11} The BZA ultimately voted unanimously to deny all three applications. Mr.
Ferrara filed an administrative appeal in the trial court, which was submitted on the briefs.
{¶12} The trial court reversed the BZA’s decisions as to the two Liberty Street
properties, finding they were “arbitrary, capricious and unreasonable as the decision was
not supported by a preponderance of substantial, reliable and probative evidence.” The
trial court affirmed the BZA’s decision as to the Logan Way property, deferring to the BZA
because “there was at least some competent and credible evidence in the record to rebut
the evidence put forth by Ferrara[.]”
{¶13} Mr. Ferrara’s appeal and the BZA’s cross-appeal from this decision are now
before this court for review.
{¶14} Mr. Ferrara raises two assignments of error:
[1.] The Trial Court erred by failing to rule that the Liberty Township
Zoning Ordinance in question is unconstitutional in its application to
Appellant’s proposed use, since the ordinance is vague and allows,
upon reasonable construction, a golf club of the type operated by
Appellant.
[2.] The Trial Court erred by ruling that the record contained
competent, credible and substantial evidence to support the
Township Board’s denial of Plaintiff’s conditional use to continue
running his golf club at Mansell Drive in Liberty Township.
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{¶15} The BZA also raises two assignments of error:
[1.] The Trial Court erred by ruling that the record did not contain
competent, credible and substantial evidence to support the
Township Board’s denial of Plaintiff’s conditional use of the Liberty
Street properties in Liberty Township.
[2.] The Trial Court erred by ruling that the Township Board’s denial
of Plaintiff’s conditional use of the Liberty Street properties was
‘arbitrary, capricious and unreasonable.’
{¶16} Under his first assignment of error, Mr. Ferrara argues the trial court erred
by failing to rule that the ordinance is unconstitutional as applied to a membership-based
golf club because, reasonably interpreted as a whole, the ordinance allows this use in a
residential district.
{¶17} Mr. Ferrara first asserts his proposed use of the properties is “specifically
authorized” by the LTZR. This argument lacks merit, as the only permitted uses of single-
family zoned properties are “one single-family dwelling unit per plotted lot” and “one-story
attached garages that do not exceed the ground floor area of the residence to which it is
attached.” Section 4:2.2. Because Mr. Ferrara’s proposed use is that of a “private club,”
it is subject to the BZA’s approval as a conditional use; it is not specifically authorized.
{¶18} Pursuant to R.C. 519.14(C), the BZA “may” 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.” The discretionary language indicates that,
“[i]n matters concerning conditional use certificates, the statute does not require that the
board shall do anything.” Essroc Materials, Inc. v. Poland Twp. Bd. of Zoning Appeals,
117 Ohio App.3d 456, 461 (7th Dist.1997) (emphasis sic). “‘The inclusion of conditional
use provisions in zoning legislation is based upon a legislative recognition that although
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certain uses are not necessarily inconsistent with the zoning objectives of a district, their
nature is such that their compatibility in any particular area depends upon surrounding
circumstances.’” Carrolls Corp. v. Willoughby Planning Comm., 11th Dist. Lake No. 2005-
L-112, 2006-Ohio-3209, ¶18, quoting Gerzeny v. Richfield Twp., 62 Ohio St.2d 339, 341
(1980).
{¶19} The stated purpose of the LTZR is, in part, to “establish guidelines in order
to protect, promote and improve the public health, safety, morals, convenience, order,
appearance, prosperity and general welfare of the inhabitants of Liberty Township by
protecting and conserving the character and social economic stability of residential,
business, commercial, industrial and public use areas; [and] by securing the most
appropriate use of land[.]” Section 1:2. Thus, Liberty Township is divided into districts
that each have permitted and conditionally permitted uses. “Conditional use” is defined
in LTZR Section 2:2.26 as “[t]hat use having some special uniqueness that requires a
careful review of location, design, configuration and special impact to determine against
fixed standards, the desirability of permitting its establishment on a specific site. It is
considered provisional in nature and approved at the discretion of the Board of Zoning
Appeals.”
{¶20} LTZR Article 5 provides the general standards for conditional uses; there
are no specific standards for “private clubs.” The BZA is to use the general standards to
determine whether “the proposed use is compatible with the intent of the underlying
zoning district where the conditional use would be located.” Section 5:1. Section 5:2
provides: “To ensure compatibility with the underlying zoning district and the Township
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community in general, the following general criteria shall be reviewed by the Zoning
Inspector upon application for a conditional use permit. Conditional uses shall therefore:
5:2.1 Be harmonious and in accordance with the general and specific
objective of Liberty Township’s Comprehensive Plan and zoning
regulations;
5:2.2 Be designed, constructed, operated, and maintained so as to
be harmonious and appropriate in appearance with the existing or
intended character of the general vicinity and that such use will not
change the essential character of the same area.
5:2.3 Not be hazardous or disturbing to existing or future neighboring
uses.
5:2.4 Be served adequately by essential public facilities such as
highways, streets, police and fire protection, drainage structures,
refuse disposal, water and sewers, and schools; or the persons or
agencies responsible for the establishment of the proposed use shall
be able to provide adequately any such services.
5:2.5 Not create excessive additional requirements at public cost for
public facilities and services and will not be detrimental to the
economic welfare of the community.
5:2.6 Not involve uses, activities, processes, materials, equipment
and conditions of operation that will be detrimental to any persons,
property, or the general welfare by reasons of excessive production
of traffic, noise, smoke, fumes, glare or odors.
5:2.7 Have vehicular approaches to the property that shall be so
designed as not to create an interference with traffic on surrounding
public streets.
5:2.8 Not result in the destruction, loss, or damage of any natural,
scenic, or historic feature of major importance.
{¶21} Mr. Ferrara asserts the LTZR is unconstitutionally vague as applied to him
because his proposed conditional use “meets or exceeds every single test that the
Township is required to follow by the express terms of its Ordinance.” This argument
lacks merit. While Section 5:2 does provide that the BZA “shall” consider the above
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criteria, it does not provide that a permit shall issue every time a proposed use satisfies
that general criteria. Again, pursuant to R.C. 519.14, a board of zoning appeals has “the
discretion to approve or deny conditional use permits, based on its evaluation of the
unique circumstances of the petition[.]” Essroc, supra, at 461.
{¶22} The trial court did not err in failing to rule that the LTZR is unconstitutional
as it was applied to Mr. Ferrara.
{¶23} Mr. Ferrara’s first assignment of error is without merit.
{¶24} We consider the remaining three assignments of error in a consolidated
analysis. Mr. Ferrara argues the trial court erred by finding the BZA’s decision regarding
the Logan Way property was supported by substantial, reliable, and probative evidence.
The BZA argues the trial court erred by finding the BZA’s decision regarding the Liberty
Street properties was not supported by substantial, reliable, and probative evidence and
by substituting its own judgment for that of the BZA.
{¶25} R.C. 2506.04 sets forth the standard of review regarding appeals from
administrative decisions, including decisions issued by boards of zoning appeals. In
construing this statutory provision, the Ohio Supreme Court has distinguished between
the court of common pleas and the court of appeals standards of review. Henley v.
Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147 (2000).
{¶26} In reviewing a decision of the BZA, the common pleas court “is bound by
the nature of administrative proceedings to presume that the decision of the
administrative agency is reasonable and valid.” Community Concerned Citizens, Inc. v.
Union Twp. Bd. of Zoning Appeals, 66 Ohio St.3d 452, 456 (1993), citing C. Miller
Chevrolet, Inc. v. Willoughby Hills, 38 Ohio St.2d 298 (1974). The common pleas court
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is to consider the entire 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, supra, at 147 (citations omitted). “A court of
common pleas should not substitute its judgment for that of an administrative board, such
as the board of zoning appeals, unless the court finds that there is not a preponderance
of reliable, probative and substantial evidence to support the board’s decision.” Kisil v.
Sandusky, 12 Ohio St.3d 30, 34 (1984); see also Dudukovich v. Lorain Metropolitan Hous.
Auth., 58 Ohio St.2d 202, 207 (1979).
{¶27} “An appeal to the court of appeals, pursuant to R.C. 2506.04, is more limited
in scope and requires that court to affirm the common pleas court, unless the court of
appeals finds, as a matter of law, that the decision of the common pleas court is not
supported by a preponderance of reliable, probative and substantial evidence.” Kisil,
supra, at 34. “In sum, the standard of review for courts of appeals in administrative
appeals is designed to strongly favor affirmance. It permits reversal only when the
common pleas 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
Found. v. Cleveland Bd. of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, ¶30.
{¶28} Here, the trial court took issue with the BZA’s position that the Pine Lakes
Club is a “guise” or a “pretext” created to fit the use of the properties into a conditionally
permitted use. The trial court concluded that “[i]t seems the Zoning Board overstepped,
at least in regard to the Liberty Street properties, and based its’ entire decision on its
unsupported opinion that the private club managed by Ferrara was pre-textual.” This
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conclusion, however, appears to discount the evidence presented to the BZA by Mr.
Ferrara and the discussions that occurred at the hearings.
{¶29} Mr. Ferrara sought permission to conditionally use his properties as “private
clubs.” As stated, “club” is defined in LTZR Section 2:2.24 as “[a]n organization of
persons for special purposes or for the promulgation of sports, arts, literature, politics, or
the like, excluding churches, synagogues, or other houses of worship.” The evidence
presented, however, established that Mr. Ferrara actually uses the properties to provide
temporary lodging to groups of people who are participating in golf travel packages that
Mr. Ferrara organizes and sells. Mr. Ferrara described the travel packages, which he
organizes in conjunction with local golf courses; the lodging he provides is part of the
package. Mr. Ferrara stated he has engaged in this “business” since 2008. He stated
the Club was formed in 2014 to “fall in with the policies of the township,” but that he did
not apply for conditional use permits even at that time. Further support for pretext is that
the annual membership dues are only $10.00, which is only paid by the “group leader,”
and the $10.00 is deducted from the entire cost of the purchased travel package.
Additionally, Mr. Ferrara admitted that breakfast is prepared for the guests on-site every
morning by paid staff, which is contrary to his assertion that these properties are not being
used as bed and breakfast facilities.
{¶30} Although the BZA did not issue findings of fact or conclusions of law, nor
was it required to do so, it is apparent from the transcript of the hearing that the BZA was
not convinced Mr. Ferrara’s enterprise is a “private club”:
Q: You made reference to the Pine Lake’s Club is a not-for-profit?
A: Yes, sir.
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Q: And the revenues that are generated - - where do they go?
A: The dues are paid at a nonprofit, which gives them the ability to
use the locations and play the golf courses, and they’re getting the
golf package through Pine Lakes.
Q: But there are the residual revenues that are derived from this
activity that would be in some way to support or sustain those
facilities - - would they not, sir?
A: Yes, sir - - that’s true, through Pine Lakes.
Q: Would you acknowledge that it is - - or sounds like a commercial
enterprise?
A: It’s an enterprise that brings people into the area and gives them
a two (2), three (3) days a week of staying in a facility that they
normally wouldn’t be into; and part of it - - as far as you’re saying
“commercial enterprise” - - they’re paying money for golf, and they’re
paying money for their stay with us. So you can determine, I guess,
which way you want to call it; but it’s still a club just like Youngstown
Country Club. They’re a club, and they operate, you [know]. We’re
operating on acreage - - big acreages, and we’re not a retail
shopping coming in there and - - stay for a night, for one (1) person
or ten (10) people in the same facility, that are not part of that group.
Q: I certainly am not adverse to the creation of revenue for the
communities involved, but the concept here is residential areas
versus commercial area.
A: Uh-huh.
Q: That’s - - I mean, that’s my interpretation here. It’s a residential
area is being converted into a commercial enterprise.
[MR. FERRARA’S ATTORNEY]: If I may, Members of the Board, I’d
just like to add that regarding your observation of “commercial”,
conditional uses may be commercial enterprises. If you look at the
conditional uses listed in your Ordinance, some of those are. So I
don’t’ think that - - that making income - - revenue for the community
is necessarily a dirty word in this connection or is counterproductive
to a conditional use granted. What you look at is the other factors
stated in your Ordinance - - look at the purpose, the preamble clause,
about the overall benefit to the community, compared with the drain
on the area in terms of burden on the residential neighborhood, but
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not necessarily to the extent - - to the extent of whether or not there
is money generated by the enterprise.
Q: Well, I would agree that the monetary aspect of this is not the
issue, but I would say that - - there are some conflict with the
conditional use standards that are cited in Section 5 of the
Ordinance.
[ATTORNEY]: I think it’s a balancing task. You look at all the factors,
and you balance it and make a determination. You do have a great
deal of discretion, in that regard, Members of the Board; and I think
so the goal would be to look at it, as a whole, in terms of its burdens
on the community, which we have heard tonight. There are some -
- versus its benefits to the community.
Q: Well, there’s a - - there’s an obligation, on the part of this Board,
to give consideration to the Township, as a whole, and its residents.
[ATTORNEY]: I agree with that sir, yes.
***
Q: I would like to comment on that if I could, and address a little bit -
- at least my questions regarding how it’s operating, the revenue
stream. * * * The question before us is - - is this place operating as
a private club?
Whereupon the hearing was adjourned to a later time so that the BZA could consult with
their attorney for assistance with answering that question.
{¶31} Based on Mr. Ferrara’s testimony, the BZA’s opinion that the Club is a
“guise” or a “pretext” finds support in the record. The trial court appears to have
improperly substituted its judgment in this regard for that of the BZA.
{¶32} As to the two Liberty Street properties, the trial court held the BZA’s decision
was “arbitrary, capricious and unreasonable as the decision was not supported by a
preponderance of substantial, reliable and probative evidence.” This conclusion was
based, in part, upon the trial court’s finding that there was no testimony in opposition to
the Liberty Street properties. The trial court stated: “[o]ne witness spoke on behalf of a
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relative residing on a nearby street and it is not clear from the record which application
would directly affect the relative’s property.”
{¶33} It appears from the record, however, that the witness was speaking about
one of the Liberty Street properties. The witness to which the trial court refers, Martin
Hume, was speaking in opposition on behalf of his aunt, Eleanor Katz. In the documents
submitted to the BZA by Mr. Ferrara, he indicates Ms. Katz is a neighbor of “the Chalet,”
which is one of the Liberty Street properties. Thus, there was testimony in opposition to
at least one of the Liberty Street properties.
{¶34} As to the Logan Way property, the trial court deferred to the BZA because
“there was at least some competent and credible evidence in the record to rebut the
evidence put forth by Ferrara[.]” The trial court drew this conclusion from the testimony
that was presented to the BZA by the six opposing residents or their designees. While
this testimony did rebut some of the evidence put forth by Mr. Ferrara regarding noise,
traffic, and disruption to the neighborhood, we also note that the BZA’s decision was
supported by additional evidence offered by Mr. Ferrara, as referenced above.
{¶35} We conclude the trial court’s decision as to the Logan Way property is
supported by a preponderance of the evidence and the record as a matter of law. The
trial court’s decision as to the Liberty Street properties, however, is unsupported by a
preponderance of the evidence and the record as a matter of law, and the trial court
improperly substituted its own judgment for that of the BZA. The BZA’s decision in an
application such as this, where it exercises discretion concerning a conditional use of
property that is not a permitted use, is entitled to great weight. While nothing prohibits
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the filing of another application for this use, appropriate conditions that govern the
proposed use should be established before engaging in the activity.
{¶36} Mr. Ferrara’s second assignment of error is without merit.
{¶37} The BZA’s first and second assignments of error are well taken.
{¶38} The judgment of the Trumbull County Court of Common Pleas is affirmed
in part and reversed in part. This matter is remanded to the trial court to enter judgment
affirming the BZA’s decisions for all three properties.
THOMAS R. WRIGHT, P.J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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