noting that to prove an unnecessary hardship, it is necessary to show that "all permitted uses are not economically feasible or cannot be efficiently continued" because the owner is deprived of all beneficial use of the propertySummary of this case from Belvoir Farms Homeowners Association v. North
Decided October 29, 1993.
Brown, Schlageter, Craig Schindler and David J. Simko, for appellants and cross-appellees.
Richard L. Garand, for appellee and cross-appellant.
These R.C. Chapter 2506 administrative cross-appeals are now before the court on (1) the motion of appellants and the motion of the cross-appellant, Bruce C. Martin, Jr. ("Martin"), to dismiss the cross-appeal and appeal, respectively; and (2) the merits. Upon review of the pleadings, briefs and attached documentation, transcript of the proceedings of the Jerusalem Township Board of Zoning Appeals ("the BZA"), and applicable law, the court reluctantly finds that it must deny the motions to dismiss and reverse the BZA.
At a hearing on August 14, 1991, the BZA, by a three-to-two vote, granted Martin a use variance, with conditions attached, allowing him to dry nets used in his commercial fishing operation on his land located in Jerusalem Township. The land in question is zoned R-1 residential; the Jerusalem Township Zoning Resolution ("the Resolution") makes no provision for conducting commercial or agricultural activities on property designated R-1.
Before granting his variance, for unspecified reasons, the BZA rejected Martin's argument that his net-drying was an agricultural use permitted in residential districts by the Revised Code. See Part IIC, infra.
The appellants, Daniel L. Warner (the Jerusalem Township Zoning Inspector) and the Jerusalem Township Board of Trustees, assert that the BZA's decision granting Martin a variance is illegal, arbitrary, capricious, and unreasonable because Section 3.3.3(2)(e) prohibits the BZA from granting a variance which is not expressly permitted by the Resolution in the zoning district involved. Martin argues that the BZA erred in finding that his net-drying is not an "agricultural" activity which he asserts is permitted in an R-1 district by R.C. 303.21. Also, the parties seek dismissal of the opposing appeals, contending that their opponents are without standing to bring these administrative appeals.
I. CROSS-MOTIONS TO DISMISS
At issue in the cross-motions to dismiss is whether each side timely filed its notice of appeal. Section 3.4 of the Resolution grants the appellants ten days within which to perfect their appeal. R.C. 2505.07, on the other hand, grants Martin thirty days "[a]fter the entry of a final order" of the BZA.
The court has previously determined that the appellants have standing to bring this administrative appeal because such an appeal is explicitly permitted by Section 3.4 of the Resolution. See September 9, 1993 Opinion and Journal Entry, at 3-4 ("September 9, 1993 Opinion"). The timeliness of their appeal is governed by the provisions of the Resolution. Id. at 4, citing Willoughby Hills v. C.C. Bar's Sahara, Inc. (1992), 64 Ohio St.3d 24, 31, 591 N.E.2d 1203, 1208.
As a general rule, the time period for perfecting an R.C. Chapter 2506 administrative appeal begins to run on the date on which the administrative decision is sent to a party. Farinacci v. Twinsburg (1984), 14 Ohio App.3d 20, 21, 14 OBR 23, 24-25, 469 N.E.2d 987, 988. When it is unclear, however, when the administrative appeal agency actually entered its final order, R.C. 2505.07, an appellant's time period for perfecting an administrative appeal begins to run upon receipt of the decision. Chester Twp. Bd. of Trustees v. Kline (1969), 19 Ohio App.2d 63, 66-67, 48 O.O.2d 125, 126-127, 249 N.E.2d 921, 924-925.
In this case, there is uncertainty over when the BZA entered its decision granting Martin's variance. September 9, 1993 Opinion, at 4-6. Thus, the Chester "receipt" rule applies.
The parties submitted additional evidence indicating that the BZA's decision was sent by ordinary mail on August 21, 1991. It was received by the appellants on August 22, 1991; in the interest of justice, the court will infer that Martin also received the decision on August 22, 1991.
Eight days after receipt, the appellants filed their notice of appeal with the BZA on August 30, 1991. Martin filed his notice with the BZA on Monday, September 23, 1991; the thirtieth day after receipt was Saturday, September 21, 1993. Thus, both Martin and the appellants have timely perfected their appeals. Accordingly, the cross-motions to dismiss shall be denied.
Because the thirtieth day was a Saturday, Martin was entitled to file his notice on Monday, September 23, 1991, the next business day.
II. MERITS OF THE APPEALS A. Standard of ReviewThe scope of review to be employed by a trial court in an R.C. Chapter 2506 administrative appeal is set forth in R.C. 2506.04. Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, 12 OBR 26, 29-30, 465 N.E.2d 848, 851-852. R.C. 2506.04 provides in pertinent part as follows:
"The court may find that the * * * decision [of the administrative agency] is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record. Consistent with its findings, the court may affirm [or] reverse * * * the * * * decision * * *."
"[A]bsent evidence that [an administrative] board's decision was unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable or probative evidence," the court is obliged to affirm the decision. Consolidated Mgt., Inc. v. Cleveland (1983), 6 Ohio St.3d 238, 240, 6 OBR 307, 309, 452 N.E.2d 1287, 1290.
"In a proceeding under R.C. Chapter 2506, the court of common pleas must weigh the evidence in the record, and whatever additional evidence may be admitted pursuant to R.C. 2506.03, to determine whether there exists a preponderance of reliable, probative and substantial evidence to support the agency decision. This does not mean, however, that the court may blatantly substitute its judgment for that of the agency, especially in areas of administrative expertise." Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d 202, 12 O.O.3d 198, 389 N.E.2d 1113, paragraph two of the syllabus.
The appellant bears the burden to prove that an administrative body's decision was somehow improper. Peterson v. Washington Ct. Athletic Club (1986), 28 Ohio App.3d 90, 93, 28 OBR 133, 135-36, 502 N.E.2d 252, 254-255.
B. Appellants' Appeal
The appellants contend that the BZA's decision to grant Martin a variance was illegal, arbitrary, capricious, and unreasonable because activities incidental to commercial fishing are not among the uses permitted on R-1 residential property in Jerusalem Township.
Subparagraph 3.3.3(2)(e) of the Resolution states:
"Under no circumstances shall the Board of Zoning Appeals grant a variance which will permit a use which is not permitted in the zoning district involved."
Subsection 8.3.2 lists the uses permitted in an R-1 residential area. They are as follows: (1) one-family dwellings; (2) public utilities or railroads; (3) churches or places of worship; (4) public and private schools; and (5) publicly owned or operated parks, playgrounds or community buildings. Further, Subsection 3.3.4, Variances Permitted, specifically allows the following variances: (1) schools, hospitals, and the like to be erected up to seventy-five feet in height, in districts restricting building heights to three stories; (2) parking areas to accommodate commercial or industrial users, in agricultural or residential districts abutting commercial or industrial districts; and (3) modified automobile parking in other situations. Notably absent from these lists is: facilities to carry on activities incidental to a commercial fishing operation.
Township boards of zoning appeals derive their authority to grant variances from R.C. 519.14(B). Cole v. Bd. of Zoning Appeals (1973), 39 Ohio App.2d 177, 181-182, 68 O.O.2d 363, 366, 317 N.E.2d 65, 67-69. To the extent that a local resolution contains more restrictive or liberal standards for granting a variance than those contained in R.C. 519.14(B), the local resolution is invalid; the authority to grant variances under a local zoning resolution is derived from the statute, not vice versa. Id. at 182, 68 O.O.2d at 366, 317 N.E.2d at 68-69.
In pertinent part, R.C. 519.14 reads as follows:
"The 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 * * *."
The statute focuses on four factors to guide a determination as to whether a variance is proper. These are:
"(1) the variance will not be contrary to the public interest; (2) owing to special conditions literal enforcement of the resolution will result in unnecessary hardship; (3) the spirit of the zoning resolution shall be observed; and (4) substantial justice shall be done." Cole, supra, 39 Ohio App.2d at 182, 68 O.O.2d at 366, 317 N.E.2d at 68.
The administrative board must stay within these bounds in order to avoid usurping the authority of the township legislative body. Schomaeker v. First Natl. Bank of Ottawa (1981), 66 Ohio St.2d 304, 309, 20 O.O.3d 285, 288, 421 N.E.2d 530, 535.
Courts in Ohio distinguish "use" variances from "area" variances. See Kisil, supra, 12 Ohio St.3d at 32-33, 12 OBR at 28, 465 N.E.2d at 851. One court has said:
"A use variance allows a landowner to use existing property in a manner not permitted by the ordinance and inconsistent with uses in the surrounding area. * * *
"An area variance * * * authorizes deviations from restrictions upon the construction and placement of buildings and other structures. * * *" (Emphasis added). Craig v. City Council of Kent (Aug. 2, 1991), Portage App. No. 90-P-2247, unreported, 1991 WL 147437, citing 6 Rohan, Zoning and Land Use Controls (1984), Section 43.01(Z).
To properly issue a use variance, a board of zoning appeals must find that an "unnecessary hardship" exists; a board need only find that a zoning resolution offers "practical difficulties" in order to grant an area variance. Kisil, supra, 12 Ohio St.3d at 33, 12 OBR at 29, 465 N.E.2d at 851; Craig, supra.
An unnecessary hardship determination "involves a two-step process: a finding of hardship and a review of [the restriction's] necessity." Adelman Real Estate Co. v. Gabanic (Nov. 15, 1991), Geauga App. No. 90-G-1607, unreported, 1991 WL 239331. Logic dictates that the court's first inquiry should be whether a literal enforcement of the Resolution would result in an unnecessary hardship. If the record below does not provide appropriate evidence of an unnecessary hardship, the court need not proceed further to determine the other three Cole factors. See Adelman, supra.
To amount to unnecessary hardship, there must be a showing that all permitted uses are not economically feasible or cannot be efficiently continued. Fox v. Johnson (1971), 28 Ohio App.2d 175, 181, 57 O.O.2d 234, 238, 275 N.E.2d 637, 641; Adelman, supra. Thus, when the restriction amounts to "virtual confiscation of property * * * where the owner is deprived of the beneficial use of the land," an unnecessary hardship exists. Old Mill Farm Market Farms, Inc. v. Columbia Twp. Bd. of Zoning Appeals (Sept. 28, 1983), Lorain App. No. 3514, unreported, 1983 WL 4248. However, "the mere fact that one's property can be put to a more profitable use does not, in itself, establish an unnecessary hardship where less profitable alternatives are available within the zoning classification." Consolidated Mgt., Inc., supra, paragraph two of the syllabus.
At the August 14, 1991 hearing, the three-person BZA majority did not articulate any one basis for its vote to grant Martin's variance. Upon review of the record below, two possible bases appear likely. First, the BZA chairman, a member of that majority, noted on the record his conviction that Jerusalem Township is populated "by old time fishermen and I hate to be the one to stop which [ sic] is almost the main industry out there from being pursued." Hearing Transcript ("Transcript") at 17. Thus, pre-existing use and selective enforcement might have been bases. Second, Martin's attorney testified that land zoned "commercial" was too costly for Martin and that a strict adherence to the residential restriction would threaten the survival of Martin's fishing business, thus entitling him to a "hardship variance."
For the reasons discussed in the first portion of this section, the court finds that the expected harsh impact that enforcement of the zoning restriction would have on Martin's business is insufficient to create an "unnecessary hardship." The proper focus is on the use of the land in question. See Consolidated Mgt., Inc., Fox, and Old Mill Farm Market, supra. Enforcement of the Resolution does not amount to a "virtual confiscation" of Martin's property; such enforcement merely makes his land less profitable to him. He is permitted to establish a residence on the property if he chooses.
Similarly, the court finds that there was no competent evidence in the Transcript of pre-existing use on Martin's land or of other net-drying in the immediate residential area. A use, predating a zoning resolution, which is made impermissible by the resolution, may be continued by the owner and her successors until she voluntarily discontinues the pre-existing use. Eckstein v. Bratenahl Bd. of Zoning Appeals (Feb. 25, 1988), Cuyahoga App. No. 53216, unreported, 1988 WL 22811. Such a landowner may not then recommence such a nonconforming use. Bowling Green v. Sarver (1983), 9 Ohio App.3d 279, 282, 9 OBR 494, 497, 459 N.E.2d 907, 909.
Debbie Madson, a neighbor living across the street from Martin's property, testified that there had been no net-drying conducted on the Martin land for the four years before Martin bought the land. Transcript at 11. Even had nets been dried on Martin's property prior to the four years testified to by Madson, because of the four-year interruption, Martin would not be entitled to resume net-drying on that parcel.
There was testimony that the previous owner had stored several pieces of heavy machinery on the land but had been forced to move them because such storage was in violation of the Resolution. Transcript at 11.
It is clear from the Transcript that fishing activities predominated in Jerusalem Township in years gone by. Transcript at 17, 19-20. In 1984, the Township zoned Martin's neighborhood an R-1 residential district. Id. at 19. Since that time, twelve to fifteen new homes have been constructed in the neighborhood costing in excess of $100,000 each. Id. at 14. The record is devoid of testimony, however, to the effect that net-drying has been permitted in the immediate neighborhood since 1984.
While several witnesses testified that the general area has been used for net-drying for many years, see, e.g., Transcript at 9 (Billy Miller's testimony), no one testified that such activities have been undertaken recently in Martin's immediate neighborhood.
Accordingly, because no unnecessary hardship exists or any other basis for permitting a variance, the court finds that the BZA erred in granting Martin a use variance because that decision was illegal, arbitrary, capricious, unreasonable and not supported by the preponderance of substantial, reliable, and probative evidence on the record as a whole.
C. Martin's Appeal
In his cross-appeal, Martin contends that the BZA erred in concluding that fish net-drying is not an agricultural activity permitted in a residential district by R.C. 519.21. Relying on Opinion No. 89-27, issued by Anthony G. Pizza, Prosecuting Attorney of Lucas County, the BZA concluded that commercial fishing operations are "commercial" in nature rather than "agricultural."
At the hearing and in his brief, Martin inadvertently rested his agricultural-use argument on R.C. 303.21. That section addresses county zoning issues and is virtually identical to R.C. 519.21, which addresses township zoning.
In Opinion No. 89-27, Pizza purposely avoided coming to a conclusion on the "agricultural" verses "commercial" nature of commercial fishing. That opinion dealt with the propriety of a road-side fresh-fish stand in an A-1 agricultural district.
Martin argues that commercial fishing is "controlled" by the Department of Agriculture, thus making such an activity agricultural in nature. He correctly observes that Pizza's Opinion No. 89-27 was not written in response to this case and is not otherwise on point on the commercial versus agricultural question.
Because he owns more than five acres, if his land use were to be determined "agricultural," R.C. 519.21(A) would permit him to conduct such activities in this residentially zoned district.
R.C. 519.21(A) reads as follows:
"Except as otherwise provided in division (B) of this section, sections 519.02 to 519.25 of the Revised Code confer no power on any township zoning commission, board of township trustees, or board of zoning appeals to prohibit the use of any land for agricultural purposes or the construction or use of buildings or structures incident to the use for agricultural purposes of the land on which such buildings or structures are located, including buildings or structures that are used primarily for vinting and selling wine and that are located on land any part of which is used for viticulture, and no zoning certificate shall be required for any such building or structure."
R.C. 519.21(B) allows a township to impose certain restrictions, not applicable here, on agricultural use of residentially zoned property when parcels are smaller than five acres.
Even though the BZA relied on Opinion No. 89-27 as the basis for its conclusion that the drying of commercial fish nets is not an agricultural use, the BZA did not err in reaching that result. The court finds the drying of commercial fish nets is not an agricultural use.
Chapter Two of the Resolution defines "agriculture" as:
"The use of land which includes farming, dairying, pasturage, agriculture, horticulture, viticulture, animal and poultry husbandry. Agriculture shall not include kennels."
Similarly, R.C. 519.01 defines "agriculture" as follows:
"As used in sections 519.02 to 519.25, inclusive, of the Revised Code, `agriculture' includes agriculture, farming, dairying, pasturage, apiculture, horticulture, floriculture, viticulture, and animal and poultry husbandry." (Emphasis added.)
Other than "animal husbandry," the various activities listed in R.C. 519.01 are intuitively and definitionally tied to land-based food-production operations. "Animal husbandry" is defined as "a branch of agriculture concerned with the production and care of domestic animals." See Webster's, supra, at 45. It is clear that a "fish" is an "animal." Id. at 433.
"Agriculture" in pertinent part is defined as "the science * * * of cultivating the soil, producing crops, and raising livestock * * *." Webster's New Collegiate Dictionary (1977) 24. "Apiculture" is the keeping of bees. Id. at 52. "Dairying" is that type of farming concerned with the production of milk. Id. at 286. "Farming" is "the practice of agriculture." Id. at 416. "Floriculture" is the cultivation and maintenance of flowering and ornamental plants. Id. at 441. "Horticulture" is defined as "the science and art of growing fruits, vegetables, flowers, or ornamental plants." Id. at 553. "Pasturage" is the feeding of livestock through grazing. Id. at 839. "Viticulture" is defined as "the cultivation or culture of grapes." Id. at 1309.
In Mentor Lagoons, Inc. v. Mentor Twp. Bd. of Zoning Appeals (1958), 168 Ohio St. 113, 5 O.O.2d 372, 151 N.E.2d 533, the court determined that the keeping of polo ponies fell within the meaning of "animal husbandry" and, therefore, "agriculture" for purposes of R.C. 519.01. See id. at paragraph three of the syllabus. Similarly, "[t]he breeding, raising and care of [domesticated] dogs constitutes animal husbandry, as that term is used in R.C. 519.01." Harris v. Rootstown Twp. Zoning Bd. of Appeals (1975), 44 Ohio St.2d 144, 73 O.O.2d 451, 338 N.E.2d 763, paragraph one of the syllabus. The phrase "animal husbandry" also includes the breeding and care of traditionally nondomesticated animals such as minks on a mink farm. See Davidson v. Abele (1965), 2 Ohio App.2d 106, 31 O.O.2d 165, 206 N.E.2d 583, cited with approval in Harris, supra, 44 Ohio St.2d at 149, 73 O.O.2d at 453, 338 N.E.2d at 766.
Common to all three of these cases is the care and maintenance of the animals involved. There is no dispute that Martin does not plan to care for fish on his property. Thus, the court concludes that the drying of commercial fishing nets is not embraced in "animal husbandry" for purposes of R.C. 519.01 and 519.21.
The court also finds no merit in Martin's argument that commercial fishing is "agricultural" for purposes of R.C. Chapter 519 because such a pursuit is allegedly "controlled" by the Department of Agriculture. While the Department of Agriculture is empowered to determine whether a particular commercial catch of fish is "unsafe" or "adulterated" food under R.C. Chapter 3715, Fouke v. Great Lakes Terminal Warehouse Co. (Lucas App. 1972), 33 Ohio App.2d 273, 62 O.O.2d 384, 294 N.E.2d 245, it is the Department of Natural Resources, Division of Wildlife, which regulates commercial fishing and issues such licenses. R.C. 1533.342; R.C. 1531.03. Thus, contrary to Martin's assertions otherwise, commercial fishing is not "controlled" by the Department of Agriculture in any way relevant to this case.
The BZA did not err in concluding that Martin's proposed use is commercial rather than agricultural.
Based on the foregoing, the court finds that the BZA erred when it granted Martin a variance permitting him to dry his commercial fish nets on his R-1 residentially zoned property. The decision shall be reversed.
The court has no small amount of sympathy for the difficult economic position in which Martin and other commercial fishermen in Jerusalem Township might find themselves as a result of the restrictions placed on them by the Resolution. The court, however, like the BZA, is constrained to follow the development plan created and implemented by the Jerusalem Township Board of Trustees.
It is ORDERED that the motions of the appellants and the cross-appellant to dismiss the opposing appeals are DENIED.
It is further ORDERED that the August 14, 1991 decision of the Jerusalem Township Board of Zoning Appeal, granting a variance to Bruce C. Martin, Jr., is REVERSED.