[Cite as Cox v. Miami Cty. Bd. of Zoning Appeals,

.]

IN THE COURT OF APPEALS OF MIAMI COUNTY, OHIO

: DON E. COX, ET AL. Plaintiffs-Appellants : C.A. CASE NO. 2010-CA-29

vs. : T.C. CASE NO. 10-CV-366

THE MIAMI COUNTY BOARD OF : (Civil Appeal from ZONING APPEALS Common Pleas Court) Defendant-Appellee :

. . . . . . . . .

O P I N I O N

Rendered on the 10th day of June, 2011.

. . . . . . . . .

Anthony R. Day, Atty. Reg. No. 0085193, 1420 West Main Street, Tipp City, OH 45371 Attorney for Plaintiffs-Appellants

Mark W. Altier, Assistant Prosecuting Attorney, Atty. Reg. No. 0017882, 201 West Main Street, Troy, OH 45373 Attorney for Defendant-Appellee

. . . . . . . . .

GRADY, P.J.:

{¶ 1} Plaintiff, Don E. Cox, appeals from an order of the court

of common pleas affirming the decision of the Miami County Board

of Zoning Appeals (“the Board”).

{¶ 2} Cox owns real property located at 300 Shoop Road, which

is contiguous to real property owned by Ben Johnson located at 2

340 Shoop Road. Both parcels are situated in an A-2 General

Agricultural zoning district. Johnson applied to the Board for

a conditional use permit to operate a storage facility for

recreational vehicles on a portion of the property at 340 Shoop

Road. The proposed layout of the storage facility included, among

other things, a fence around the perimeter and a number of trees

along two or three sides of the perimeter to screen the storage

facility from neighboring properties. Cox and an individual who

rents neighboring property from Cox opposed Johnson’s request for

the conditional use permit.

{¶ 3} The Board heard testimony from the interested parties

regarding Johnson’s application for a conditional use permit.

Based on its staff recommendations, the Board granted Johnson’s

application contingent upon his completion of four requirements,

one of which required Johnson to obtain approval of a screening

plan from the Miami County Planning Commission. Cox filed a notice

of appeal to the court of common pleas pursuant to R.C. Chapter

2506. On September 9, 2010, the common pleas court affirmed the

decision of the Board. Cox filed a notice of appeal.

FIRST ASSIGNMENT OF ERROR

{¶ 4} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS

BY CONFIRMING THE MIAMI COUNTY BOARD OF ZONING APPEALS’

INTERPRETATION OF ‘ENCLOSED BUILDING.’” 3

{¶ 5} The Ohio Supreme Court has distinguished the standard

of review to be applied by common pleas courts and courts of appeals

in R.C. Chapter 2506 administrative appeals. “The common pleas

court considers the ‘whole record,’ including any new or additional

evidence admitted under R.C. 2506.03, and determines whether the

administrative order is unconstitutional, illegal, arbitrary,

capricious, unreasonable, or unsupported by the preponderance of

the substantial, reliable, and probative evidence.” Henley v.

Youngstown Bd. of Zoning Appeals (2000),

.

{¶ 6} As an appellate court, however, our standard of review

to be applied in an R.C. 2506.04 appeal is “more limited in scope.”

Kisil v. Sandusky (1984),

. “This statute

grants a more limited power to the court of appeals to review the

judgment of the common pleas court only on ‘questions of law,’

which does not include the same extensive power to weigh ‘the

preponderance of substantial, reliable, and probative evidence,’

as is granted to the common pleas court.” Id. at n.4.

{¶ 7} Section 16.04 of the Miami County Zoning Resolutions

provides for conditional uses of land located within an A-2 General

Agricultural zoning district. In particular, Section 16.04(O)

provides for a conditional use for “Commercial storage of boats,

recreational vehicles, and/or construction equipment, only within

the confines of an enclosed building.” (Emphasis supplied.) 4

{¶ 8} The Board found that an opaque fence surrounding the

proposed storage facility qualified as an enclosed building for

purposes of Section 16.04(O). Consequently, the Board granted

Johnson’s application for a conditional use permit to build a

storage facility on the property. According to Cox, the trial

court erred in affirming the Board’s decision to include an opaque

fence within the definition of “enclosed building.” We do not

agree.

{¶ 9} Section 3.02 of the Miami County Zoning Resolutions

defines “building” as “any structure, either temporary or

permanent, having walls or other devices intended for the shelter

or enclosure of persons, animals, chattel or property of any kind.”

Further, “structure” is defined as “anything constructed or

erected, the use of which requires location on or in the ground,

or attachment to something having location on or in the ground.”

{¶ 10} The opaque fence that will form Johnson’s storage

facility fits within the definition of “structure,” in that the

fence will be “constructed or erected” and its use will require

“location on or in the ground.” Further, the fence will have “walls

or other devices” and is intended for the enclosure of property,

which are the only additional requirements in the definition of

“building” in order for a structure to qualify as a “building.”

Therefore, based on the plain language of the definitions in the 5

Zoning Resolution, the common pleas court could reasonably find

that the opaque fence in the present case fits within the definition

of “building.”

{¶ 11} Further, the Board’s interpretations of the definitions

of “structure” and “building” in the present case are consistent

with its past interpretations of these words. At the hearing,

the Board received the following testimony regarding this

consistency:

{¶ 12} “MR HOOVER: Correct. The language in the zoning code,

specifically in the zoning code it says enclosed building. The

way that it’s been defined through both previous cases we’ve had

and through research that has been done by myself and the previous

planning director, an enclosed fence that provides a visual barrier

for the case of this particular storage area can be considered

to be a quote ‘building’. It does not require a structure. Our

zoning code does not well define building and well define structure

and so that’s kind of what we’ve run into the [sic] in the past

and based upon the research that had been done prior to when I

was here that’s what we based it upon. But chain link, just a

regular chain link fence would mostly not meet those requirements.”

(March 18, 2010 Tr. 8-9.)

{¶ 13} Cox argues, however, that “[t]he BZA, and the Court of

Common Pleas in agreement, determined that a ‘building’ is a 6

‘structure’ and a fence is a ‘structure’ which means a fence is

a building.” (Brief, p. 6.) According to Cox, the fact that a

fence is a structure does not necessarily make it a building.

Id. We agree with Cox that not all structures are buildings.

But the court of common pleas and the Board did not say otherwise.

Rather, the decisions of the Board and the court of common pleas

are consistent with the fact that in order to be considered a

building, the opaque fence at issue must be a structure and meet

the further requirement of “having walls or other devices intended

for the * * * enclosure of * * * property of any kind.” We believe

the opaque fence at issue meets this further requirement.

{¶ 14} Based on the plain language of the Zoning Resolutions

and the past interpretations by the Board, we believe the court

of common pleas correctly found that the Board’s decision to include

the opaque fence within the definition of building was supported

by the preponderance of the substantial, reliable, and probative

evidence. The first assignment of error is overruled.

SECOND ASSIGNMENT OF ERROR

{¶ 15} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS

BY DETERMINING THE SCREENING PLAN SUBMITTED BY BEN JOHNSON WAS

ADEQUATE.”

{¶ 16} The Miami County Zoning Resolutions require screening

in certain circumstances. Section 19.17 of the Miami County Zoning 7

Resolutions1 provides, in part:

{¶ 17} “Hereafter no buildings or structures shall be erected,

altered, or enlarged, nor shall land be used for any non-residential

use on a lot that adjoins or faces any residential district until

a plan for screening has been submitted and approved by the Planning

Commission. No part of any building or structure shall be

occupied, nor any land used, until all required screening, as

provided for in this section, is in place.

{¶ 18} “***

{¶ 19} “C. Whenever any non-residential use abuts a

residential district, a visual screening wall, fence or planting

shall be erected or placed along such mutual boundary lines.”

{¶ 20} The Board granted Johnson’s application for a permit

for conditional use contingent upon the completion of four

requirements. The first requirement provides that:

{¶ 21} “Prior to the beginning of the operation of the proposed

storage facility the applicant would be required to obtain approval

from the Miami County Planning Commission for the proposed parking

area and screening plan. The applicant may be required to upgrade

1 The parties disagree regarding whether the screening provision is contained in Article 19 of the Miami County Zoning Resolutions or instead in Article 18. But this disagreement does not affect our analysis of the second assignment of error because the text of the two screening requirements cited by the parties are identical. 8

his proposed facility based upon the Planning Commission’s

requirements.”

{¶ 22} The parties disagree whether a portion of the storage

facility and driveway leading to the storage facility faces a

residential district. The Board found that screening was required

when it granted the conditional use permit. By requiring

screening, the Board necessarily found that the storage facility

faces a residential district.

{¶ 23} The Board did not approve the screening plan that Johnson

proposed. The Board instead granted the conditional use permit

he requested, contingent on Johnson’s obtaining the approval of

the Planning Commission of a screening plan. That is consistent

with the terms of the Zoning Resolution that prohibit commencement

of the permitted use until a screening plan has been approved by

the Planning Commission. On this record, it is unclear whether

the Planning Commission has approved a screening which the Board

required. The error Johnson assigns is therefore premature. The

second assignment of error is overruled.

{¶ 24} Having overruled the error assigned, we will affirm the

judgment of the court of common pleas from which this appeal was

taken. 9

DONOVAN, J. and HALL, J. concur.

Copies mailed to:

Anthony R. Day, Esq. Mark W. Altier, Esq. Hon. Robert J. Lindeman