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Okey v. City of Alliance Planning Commission

Court of Appeals of Ohio, Fifth District, Stark

June 14, 2019

DEBORAH A. OKEY, et al. Appellees
v.
CITY OF ALLIANCE PLANNING COMMISSION Appellant

          CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2017 CV 02505

          For Appellees STEVEN P. OKEY THE OKEY LAW FIRM LPA

          For 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.

          OPINION

          WISE, J.

         {¶1} 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 follows.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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 court").

         {¶6} 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.

         {¶7} 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.[1]

         {¶8} On September 19, 2018, Appellant APC filed a notice of appeal to this Court. It herein raises the following two Assignments of Error:

         {¶9} "I. COMPETENT CREDIBLE EVIDENCE EXISTS TO SUPPORT THE DECISION OF THE PLANNING COMMISSION.

         {¶10} 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."

         I.

         {¶11} 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.

         Conditional Use / Zoning

         {¶12} 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.

         Trial Court's ...


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