DEBORAH A. OKEY, et al. Appellees
CITY OF ALLIANCE PLANNING COMMISSION Appellant
CHARACTER OF PROCEEDING: Civil Appeal from the Court of
Common Pleas, Case No. 2017 CV 02505
Appellees STEVEN P. OKEY THE OKEY LAW FIRM LPA
Appellant JENNIFER L. ARNOLD LAW DIRECTOR WILLIAM F. MORRIS
ASSISTANT LAW DIRECTOR
JUDGES: Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon.
Patricia A. Delaney, J.
Appellant City of Alliance Planning Commission
("APC") appeals the decision of the Stark County
Court of Common Pleas, which overturned the commission's
administrative denial of a conditional use permit for a bed
and breakfast inn sought by Appellees Deborah Okey and Steven
Okey. The relevant facts leading to this appeal are as
Appellees are the owners and occupants of a 7, 000
square-foot residence located at 2700 Fairway Lane, Alliance,
Ohio. The thirteen-acre property at issue, which appellees
purchased in 1995, is currently located in an "R-1"
(single family residential) zone in the extreme southeastern
corner of Alliance, bordering the Alliance Country Club. The
wooded property sits at the terminus of the lane, which is
narrower than a typical Alliance street. The house itself,
commonly known as the "Purcell Mansion," was
constructed in 1929, and is listed in the National Register
of Historic Places by the U.S. Department of the Interior.
Appellees have been restoring the property over the past
twenty-four years. The house served as appellees' marital
residence during that time, although their children are now
grown and living on their own.
On October 20, 2017, appellees submitted an application for
review by the APC concerning a conditional use of the Purcell
Mansion as a bed and breakfast facility, with the planned
utilization of three guest units.
On November 15, 2017, the APC held a hearing on said
application for the conditional use permit. As further
detailed infra, at the conclusion of the hearing,
the commission voted 5-0 to deny appellees' application.
The decision was memorialized in a letter to appellees from
the zoning inspector dated December 13, 2017.
On December 14, 2017, appellees filed an administrative
notice of appeal under R.C. 2506.01, et. seq. with
the Stark County Court of Common Pleas ("trial
On June 4, 2018, the trial court set a hearing date and
issued a ruling stating that it would accept both the
transcript of the administrative proceedings and additional
evidence as provided by the parties. See R.C
2506.03(A). Following the submission of the parties'
briefs, the trial court held its evidentiary hearing on June
12, 2018, at which time it heard additional testimony and
received additional exhibits.
On August 24, 2018, the trial court issued a seventeen-page
judgment entry reversing the 2017 administrative decision,
thus finding in favor of appellees as to their request for a
conditional use permit.
On September 19, 2018, Appellant APC filed a notice of appeal
to this Court. It herein raises the following two Assignments
"I. COMPETENT CREDIBLE EVIDENCE EXISTS TO SUPPORT THE
DECISION OF THE PLANNING COMMISSION.
II. THE COMMON PLEAS COURT ABUSED ITS DISCRETION AND APPLIED
THE AN [SIC] IMPROPER STANDARD FOR ITS REVIEW OF THE
APPLICATION FOR A CONDITIONAL USE."
In its First Assignment of Error, Appellant APC challenges
the trial court's decision, contending that
"competent credible evidence" supported the
administrative decision to deny the conditional use permit
sought by Appellees Okeys.
Use / Zoning
Generally, zoning regulations are in derogation of common law
and must be strictly construed and not extended by
implication. See Ambrose v. Galena, 5th Dist.
Delaware No. 15 CAH 01 0011, 2015-Ohio-3157, ¶ 35,
citing Lykins v. Dayton Motorcycle Club (1972), 33
Ohio App.2d 269, 294 N.E.2d 227. "The inclusion of
conditional use provisions in zoning legislation is based
upon a legislative recognition that although 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, 2006 WL 1725864, ¶ 18, quoting
Gerzeny v. Richfield Twp., 62 Ohio St.2d 339, 341,
405 N.E.2d 1034 (1980) (internal quotations omitted).
However, a conditional use is not the same as a permitted
use. A conditional use is a lesser use and is not a matter of
right. See Groff-Knight v. Bd. of Zoning Appeals
(June 14, 2004), Delaware App. No. 03CAH08042, ¶ 18,
citing Gillespie v. City of Stow (1989), 65 Ohio
App.3d 601, 584 N.E.2d 1280.