In Cincinnati Bell, supra, the trial court determined that an ordinance proscribing a landowner's use of his land did not bear a reasonable relationship to the public health, safety, welfare, or morals.Summary of this case from Essroc Materials, Inc. v. Poland Township Board of Zoning Appeals
Decided May 28, 1975.
Zoning — Telephone company application for variance to increase building size — Application denied — Appeal — R.C. Chapter 2506 — Test to be applied by Common Pleas Court — Reviewing proscribed use on denial of administrative relief.
APPEAL from the Court of Appeals for Hamilton County.
Appellee, Cincinnati Bell, Inc., is an Ohio public utility, and the owner of a telephone exchange building in the village of Glendale. The property upon which appellee's building is located is zoned exclusively for residential use.
On February 15, 1972, appellee applied to the Glendale Board of Zoning Appeals, requesting a variance in order to permit appellee to double the size of its Glendale facility. At a public hearing on March 9, the Board of Zoning Appeals heard testimony by appellee's attorney, building engineer, and architect, and by an attorney representing residents of the community. On April 6, 1972, the board unanimously denied appellee's application, holding that the telephone company had failed to prove the necessity of constructing an enlargement at the given location.
Subsequently, appellee filed, pursuant to R.C. 2506.01, an appeal to the Court of Common Pleas of Hamilton County. In accordance with R.C. 2506.03, the court received additional evidence, including the testimony of a planning engineer for appellee, and the affidavit of a consulting engineer employed by the village. On September 6, 1973, the Court of Common Pleas held the action of the Board of Zoning Appeals to be "unconstitutional, illegal, unreasonable and unsupported by the preponderance of the * * * evidence," and ordered the board to issue a building permit to appellee "containing such reasonable conditions governing design, construction and operation as they determine to be in the public interest."
Upon appeal, the Court of Appeals affirmed the judgment of the Court of Common Pleas.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Frost Jacobs, Mr. Donald McG. Rose and Mr. Thomas A. Huser, for appellee.
Messrs. McCaslin, Imbus McCaslin and Mr. Robert J. Imbus, Jr., for appellant.
Appellant's primary contention is that the Court of Common Pleas was obligated to affirm the decision of the Board of Zoning Appeals if there was any legal justification for that holding. In support of such assertion, appellant cites paragraph three of the syllabus in In re Appeal of Manning (1962), 117 Ohio App. 55, which states, in part:
"In an appeal from a decision of a board of zoning appeals to the Court of Common Pleas, the Court of Common Pleas has no power to determine the case de novo, but is authorized only to determine the legal justification of the board's decision * * *."
Reliance upon the language of Manning, however, is inappropriate. Although a hearing before the Court of Common Pleas pursuant to R.C. 2506.01 is not de novo, it often in fact resembles a de novo proceeding. R.C. 2506.03 specifically provides that an appeal pursuant to R.C. 2506.01 "shall proceed as in the trial of a civil action," and makes liberal provision for the introduction of new or additional evidence. R.C. 2506.04 requires the court to examine the "substantial, reliable and probative evidence on the whole record," which in turn necessitates both factual and legal determinations. Clearly, the function of a Court of Common Pleas in a R.C. Chapter 2506 appeal differs substantially from that of appellate courts in other contexts.
This distinction is reflected in the test which Courts of Common Pleas apply when hearing appeals pursuant to R.C. Chapter 2506. That test is not, as appellant urges, whether any legal justification exists for a holding of the Board of Zoning Appeals, but rather whether the ordinance, in proscribing a landowner's proposed use of his land, bears a reasonable relationship to the public health, safety, welfare, or morals. Euclid v. Ambler Realty Co. (1926), 272 U.S. 365; State, ex rel. City Ice Fuel Co., v. Stegner (1929), 120 Ohio St. 418; Curtiss v. Cleveland (1957), 166 Ohio St. 509; Willott v. Beachwood (1964), 175 Ohio St. 557; Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St.2d 23; Forest City Enterprises v. Eastlake (1975), 41 Ohio St.2d 187. R.C. 2506.04 specifically adopts such a test, providing that "[t]he court may find that the order, adjudication or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of * * * evidence * * *."
In the present case, the Court of Common Pleas reviewed the transcript of proceedings before the Board of Zoning Appeals, received additional stipulated evidence, and viewed the proposed building site and its environs. The court found as fact that construction of the addition requested by appellee would "have an almost miniscule effect on the immediate neighbors and on the Glendalians generally," but that denial of the permit "would have a serious effect on those presently served by the Glendale exchange and those wishing new or additional service both in and out of Glendale, and a wholly unreasonable effect on all people served by Cincinnati Bell, Inc. * * *" Based upon such finding, the court reversed the judgment of the Board of Zoning Appeals, and remanded the case to the board with instructions to issue a permit.
This court has examined the record, and concludes that the judgment of the Court of Common Pleas is fully supported by the evidence. The judgment of the Court of Appeals is therefore affirmed, and the cause is remanded to the Glendale Board of Zoning Appeals for issuance of the appropriate permit.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.