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Ashraf S. Nassef, M.D., Inc. v. Union Township

Court of Appeals of Ohio, Twelfth District

September 23, 2013

ASHRAF S. NASSEF, M.D., INC., Appellee,
v.
UNION TOWNSHIP, CLERMONT COUNTY, OHIO BOARD OF ZONING APPEALS, Appellant.

APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2012CVF01600

Taft, Stettinius & Hollister, LLP, Nicholas J. Pieczonka, Stephen M. Griffith, Jr., for appellee.

Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, for appellant.

OPINION

RINGLAND, P.J.

(¶ 1} Defendant-appellant, Union Township, Clermont County, Ohio Board of Zoning Appeals, appeals from a decision of the Clermont County Court of Common Pleas reversing a decision of the Union Township, Clermont County, Ohio Board of Zoning Appeals ("BZA") in favor of plaintiff-appellee, Ashraf S. Nassef, M.D., Inc.

(¶ 2} Appellee occupies real property located at 4404 Glen Este-Withamsville Road, Union Township, Clermont County, Ohio. Appellee is licensed to practice medicine in the state of Ohio and has operated a medical practice at the above address since 2006. In 2011, appellee began prescribing patients with opioid dependency a drug called Suboxone. Soon thereafter, a citation was issued to appellee for violating the Union Township Zoning Resolution for operating a "Suboxone Treatment Center" on the property without first obtaining a change in use permit.

(¶ 3} On June 6, 2012, appellee applied for a change in use permit, which was denied by the Planning and Zoning Director of Union Township ("Zoning Director"). The Zoning Director stated that a "Suboxone Treatment Center" is a substance abuse treatment center, which is not specifically listed as an approved function within the B-1 Business District where the property is located. The Union Township Zoning Resolution provides that uses which are not specifically permitted are prohibited, and thus appellee's substance abuse treatment center was not permitted under the zoning classification. Appellee appealed the Zoning Director's decision to the BZA. The BZA held a hearing on August 2, 2012 and issued a "Notice of Final Action" on August 7, 2012 affirming the Zoning Director's decision.

(¶ 4} Appellee then appealed the BZA's determination to the Clermont County Court of Common Pleas, which issued a decision on April 16, 2013. The court of common pleas held that the BZA's decision was arbitrary and not supported by the preponderance of substantial, reliable, and probative evidence. The common pleas court found there was no evidence presented to show that the treatment of patients suffering from opioid dependency does not qualify as medical treatment. Additionally, the common pleas court found that there was evidence presented that opioid dependency is a disease that is "just like any other medical condition." The common pleas court also considered the ordinary definition of "medical." Utilizing Attorney's Illustrated Medical Dictionary, the common pleas court found that medicine is "the science concerned with diagnosing and treating disease and the maintenance of health" together with the "evaluation and treatment of patients with drug use disorders" including "such topics as risk factors for developing substance abuse disorders * * *." Attorney's Illustrated Medical Dictionary M15 (1997). Utilizing this definition, the common pleas court found that appellee's clinic falls within the practice of medicine. Consequently, the common pleas court found that the treatment of patients with opioid dependency, including prescribing Suboxone, is within the scope of the Union Township Zoning Resolution allowing medical clinics in the B-1 Business District where appellee's property is located.

(¶ 5} Appellant now appeals the decision of the court of common pleas, asserting one assignment of error for review.

(¶ 6} THE [COMMON PLEAS] COURT ERRED IN VACATING THE DECISION OF THE UNION TOWNSHIP BOARD OF ZONING APPEALS.

(¶ 7} Appellant asserts two issues for review within its assignment of error. Appellant first asserts the common pleas court erred by impermissibly substituting its judgment for the Zoning Director and the BZA. Essentially, appellant argues that the common pleas court erred in finding the BZAs decision arbitrary and unsupported by a preponderance of reliable, probative, and substantial evidence. In its second issue presented for review, appellant argues the common pleas court should have considered the intent of the legislative body in making its determination that operating a substance abuse treatment center fell within the definition of "medical clinic." We disagree.

(¶ 8} "R.C. Chapter 2506 governs the standards applied to appeals of administrative agency decisions." Hutchinson v. Wayne Twp. Bd. of Zoning Appeals, 12th Dist. Butler No. CA2012-02-032, 2012-Ohio-4103, ¶ 14, citing Key-Ads, Inc. v. Bd. of Cty. Commrs., 12th Dist. Warren No. CA2007-06-085, 2008-Ohio-1474, ¶ 7. "A common pleas court reviewing an administrative appeal pursuant to R.C. 2506.04 weighs the evidence in the whole record and determines whether the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of the substantial, reliable, and probative evidence." Hutchinson at ¶ 14, citing Key-Ads at ¶ 7. A common pleas court should not substitute its judgment for that of an administrative board, such as the board of zoning appeals, unless the court finds that the board's decision is not supported by a preponderance of reliable, probative, and substantial evidence. Kisil v. City of Sandusky, 12 Ohio St.3d 30, 34 (1984).

(¶ 9} "[T]he standard of review imposed upon a common pleas court varies distinctly from the standard of review imposed upon an appellate court." Bingham v. Wilmington Bd of Zoning Appeals, 12th Dist. Clinton No. CA2012-05-012, 2013-Ohio-61, ¶ 7. An appellate court's review of an administrative appeal is more limited in scope than a court of common pleas. Hutchinson at ¶ 15, citing Shamrock Materials, Inc. v. Butler Cty. Bd. of Zoning, 12th Dist. Butler No. CA2007-07-172, 2008-Ohio-2906, ¶ 10. Unlike the common pleas court, the appellate court "does not weigh the evidence or determine questions of fact." Hutchinson at ¶ 15. Rather, "the appellate court must affirm the common pleas court's decision unless it finds, as a matter of law, that the decision is not supported by a preponderance of reliable, probative, and substantial evidence." Id., citing Shamrock at ¶ 10.

(¶ 10} Under its first issue for review, appellant asserts several specific arguments. Appellant asserts that there was evidence presented to the common pleas court that opioid dependency does not qualify as medical treatment and the fact that "addiction medicine" is defined under the term "medicine" is insufficient to reverse the BZA's decision. Appellant also argues that the BZAs decision was not arbitrary because the members of the BZA fully discussed the meaning of the term "medical" within the Union Township Zoning Resolution. Nevertheless, we find that the common pleas court decision finding that a substance abuse treatment center falls within the definition of "medical ...


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