[Cite as Durell v. Spring Valley Twp. Bd. of Zoning Appeals,

.]

IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

BILL DURELL, et al. :

Plaintiff-Appellee : C.A. CASE NO. 2012 CA 23

v. : T.C. NO. 09CV402

SPRING VALLEY TOWNSHIP : (Civil appeal from BOARD OF ZONING APPEALS, et al. Common Pleas Court)

Defendant-Appellant :

:

..........

OPINION

Rendered on the 2nd day of November , 2012.

..........

B. RANDALL ROACH, Atty. Reg. No. 0065537, 26 N. Wright Avenue, Fairborn, Ohio 45324 Attorney for Plaintiff-Appellee

ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Defendant-Appellant

..........

FROELICH, J.

{¶ 1} The Spring Valley Township Board of Zoning Appeals (“the BZA”)

appeals from a judgment of the Greene County Court of Common Pleas, which found that 2

the BZA had acted in a manner inconsistent with prior court judgments and had

“discriminated against [Bill] Durell” when it granted a variance for property owned by

Patrick Mahaffey after denying a similar request by Durell for a variance related to his own

adjoining property. The trial court’s judgment remanded the matter to the BZA to be

“sort[ed] out.”

{¶ 2} For the following reasons, the judgment of the trial court will be affirmed

as modified.

Background and Procedural History

{¶ 3} The property at issue in this zoning dispute was originally one large parcel

of wooded land, owned by Mahaffey, abutting Spring Valley-Paintersville Road east of

Cemetery Road, in an A-10-Prime Agricultural District. The property encompassed

approximately 100 acres and had a long, somewhat rectangular shape, with the northernmost

narrow end abutting the road. Before the events at issue in this case, Mahaffey divided and

sold two parcels of land along the roadway; he retained ownership of approximately 88

acres, which was then landlocked. He also retained or subsequently obtained a 25-foot wide

access easement along the western edge of the property he had previously owned, from the

landlocked property to Spring Valley-Paintersville Road.

{¶ 4} In 1995, Mahaffey requested a variance from the BZA regarding his 88

landlocked acres. He sought to create five parcels of at least ten acres each for residential

development, which would have access to Spring Valley-Paintersville Road via a private

drive on the 25-foot access easement, but which would lack the 350-foot road frontage

normally required in an agricultural district. The BZA denied this request. [Cite as Durell v. Spring Valley Twp. Bd. of Zoning Appeals,

.] {¶ 5} Mahaffey appealed from the BZA’s denial of the variance, but the parties

subsequently reached an agreement, which was approved by the trial court (Greene Case

No. 95 CV 0461) (“the 1997 agreed judgment”). The agreed judgment provided, in

pertinent part:

There shall be a maximum of three (3) houses built on three (3)

surveyed ten (10) acre tracts along the private lane leading from Spring

Valley-Paintersville Road southwardly to the said three (3) ten (10) acre tracts

along the westerly boundary line of [Mahaffey’s] property.

{¶ 6} The first lot that Mahaffey sold after the 1997 agreement was an 18-acre lot

farthest from the road, which was purchased by a predecessor in interest to Durell; a house

was not immediately built upon the property. Two additional lots of approximately 10 acres

each were sold to Mitchell and Bott (or their predecessors in interest), and houses were built

on those properties. A third 10-acre lot (albeit the fourth lot) was also created; Mahaffey

apparently built a house on this lot, and later sold the developed property to the Millers or

their predecessors in interest. Mahaffey retained ownership of approximately 22 acres. It

is unclear why the first lot created after the 1997 agreement was 18 acres, rather than 10

acres, and why Mahaffey sold three additional lots when, pursuant to the 1997 agreed

judgment, development was restricted to a total of three 10-acre lots.

{¶ 7} The purchases of the first two 10-acre lots (Mitchell’s and Bott’s) were the

subject of litigation when Mahaffey allegedly breached the purchase contracts. Greene Case

No. 2000 CV 307. The judgment entry in that case required Mahaffey to convey “good,

marketable fee simple title” to the lots in question and to construct an access driveway “at

his sole expense” over the 25-foot access easement. The judgment assumed, without 4

deciding, that Mahaffey, who still owned the third ten-acre lot at that time, would be the

owner of the third house using the access driveway.

{¶ 8} Pursuant to the 1997 agreed judgment and the 2000 judgment, Mahaffey

constructed a private drive on the access easement. The houses on the three 10-acre lots use

this driveway as their primary means of access; Mahaffey also accesses his remaining 22

acres using this drive, although there is no residence on that property. Mahaffey testified

that there is a shed on his property, in which he stores tools. The drive does not extend to

Durell’s property, which is the farthest from Spring Valley-Paintersville Road. Thus,

Durell’s property remains landlocked.

{¶ 9} In approximately 2001, Mahaffey became a member of the BZA.

{¶ 10} In 2003 and 2004, Durell took a number of steps aimed at building a house

on his property. First, he sought a construction permit from the BZA, which sought to use

the easement and the private drive to access his property. However, because Mahaffey (as

the predecessor in interest to Miller) was then also seeking to construct a residence on one of

the 10-acre lots, the BZA denied Durell’s request for a construction permit. According to

Durell, representatives of the BZA instructed him to request a variance instead. The BZA

granted Durell’s request for a variance insofar as the lot lacked the required frontage, but it

denied Durell’s request to access his land via the private drive. Instead, the BZA instructed

him to access his property by constructing a separate private drive to Cemetery Road, which,

according to Durell, was approximately 18 acres away from his property, over rugged

terrain. Durell did not build such a road or a house on the property.

{¶ 11} In 2006, Durell filed a Complaint against Mahaffey for declaratory 5

judgment, unlawful interference with an easement, and slander of title. (Greene Case No.

06 CV 184). In June 2007, the trial court granted a declaratory judgment in Durell’s favor,

concluding:

* * * The April 30, 1997 order, which the Court has viewed at length

with the parties, materially provides that [Mahaffey] would be permitted three

tracts, location unspecified, and three residences, also unspecified, to be

served by a private lane to be constructed by [Mahaffey] and utilized for

access by the contemplated residences to Spring Valley Paintersville Road.

* * * [T]he April 30, 1997 decision in Case No. 95-CV-0461 does not

reasonably specify the precise location of the permitted parcels. The intent

of the parties, including but not limited to [Mahaffey’s] provision for

northerly access to [Durell’s] * * * parcel by virtue of a deeded access

easement over the private lane upon [Mahaffey’s] property, the area of

[Durell’s] parcel itself being encompassed as a proposed building tract before

the Spring Valley Township Board of Trustees, the conveyance of the lot first

in time before all other lots conveyed from [Mahaffey’s] tract, and

[Mahaffey’s] desire to construct upon portions of the property. [sic] By

virtue of the foregoing, the Court hereby finds and orders that [Durell’s]

parcel, comprised of one of the proposed ten acre tracts together with residual

acreage to the south is the first of three lots for which a variance has been

granted by virtue of the order dated April 30, 1997 set forth in Case No.

95-CV-0461. * * * 6

It is the Order of the Court to all parties and the Spring Valley

Township Board of Trustees that [Durell] is herewith granted authority to

construct a single family residence upon the subject property * * * , there

shall be no requirement for ingress and egress to or from the * * * tract

owned by [Durell] excepting for the access easement set forth in [Durell’s]

deed of record to Spring Valley Paintersville Road. To the extent that this

order is in conflict with any existing orders set forth in Case No. 95-CV-0461

or 2000-CV-307 this order shall take precedence.

{¶ 12} In 2008, Mahaffey requested a variance from the BZA to allow him to build

on the 22 acres that he still owned from the original parcel. The variance request related to

the required frontage and the minimal lot dimensional requirements and, if granted, would

have made Mahaffey’s tract “a legal building lot in this A-10/Prime Agricultural District.”

Mahaffey proposed to access his property using the private drive on the access easement.

Durell and Mitchell objected to Mahaffey’s request for a variance on the grounds that the use

of the property had already been determined in the 1997 agreed judgment and that Durell’s

similar request for a variance had been denied. The BZA held a hearing at which arguments

and comments were presented from interested parties; briefs were also filed.

{¶ 13} In March 2009, the BZA granted Mahaffey’s request for a variance.

Mahaffey abstained from the vote. The BZA concluded that the 1997 agreed judgment was

a “voluntary compromise agreement,” which did not constitute litigation on the merits, and

that, although the trial court approved the agreement, the court had not “decided” the issue

on the merits. Thus, the BZA concluded that the doctrine of res judicata did not prevent 7

further action on the property, as some of the neighbors had argued. In granting the

variance, the BZA also concluded that “a significant change in circumstances” had occurred

with respect to the property, and the variance would allow Mahaffey “much greater

beneficial use” of the property than if he were not allowed to build a house on it. The

nature of the changes in circumstances identified by the BZA will be discussed in greater

detail below.

{¶ 14} Durell and Mitchell filed an Administrative Appeal and Complaint for

Declaratory Judgment in the trial court. The Complaint pointed out the inconsistency

between the BZA’s treatment of Durell’s request for a variance and Mahaffey’s request,

addressed the conflict of interest presented by Mahaffey’s role on the BZA (although he

abstained from the decision on this variance), and claimed that they (the adjacent property

owners) were denied the opportunity to present evidence at the hearing. Durell and

Mitchell requested that the trial court reverse the decision of the BZA, conduct a trial de

novo, find that the new variance was prohibited by the 1997 agreed judgment related to the

property, and enjoin the issuance of any certificate of zoning based on the variance. Upon

the BZA’s motion, the request for declaratory judgment was dismissed, and the matter

proceeded only as an administrative appeal.

{¶ 15} The trial court denied Durell and Mitchell’s request to present additional

evidence in the trial court about the alleged conflict of interest within the BZA and their

prior dealings with the BZA. This decision was based, in part, on the magistrate’s

conclusion that Durell and Mitchell had not been “prevented from” presenting such

evidence in the administrative proceedings, but had chosen not to do so; the trial court 8

overruled Durell’s objection to this finding and adopted the magistrate’s decision. The trial

court did hear arguments from the parties, but it based its decision on the record created in

the administrative proceedings.

The Trial Court’s Decision

{¶ 16} On January 25, 2012, the trial court issued its Judgment Entry on

Administrative Appeal (Greene Case No. 09 CV 0402). In its judgment, the trial court

listed the changes in circumstances cited by the BZA in support of its decision, which

included 1) the creation of the three ten-acre lots, 2) the construction of the private drive

“suitable for its purpose,” as evidenced by its approval by the Spring Valley Fire

Department, 3) the “approved creation” of a fourth parcel and “its subsequent improvement

with a single family residence,”1 and 4) the BZA’s observation that Mahaffey “has regularly

used the lane to access his property since 1987.” The Court also noted the BZA’s

conclusion that “special conditions” existed preventing Mahaffey from constructing a

single-family residence without a variance, and that these special conditions “[did] not result

from the previous actions of” Mahaffey.

{¶ 17} The trial court disagreed with the BZA’s conclusion, stating that the

changes that the BZA referred to in its decision had all occurred after the BZA’s denial of

Mahaffey’s variance request in 1995 and after the appeal of that denial to the trial court,

which was resolved by the 1997 agreed judgment. The trial court concluded that the

1 It is unclear by whom the creation of a fourth parcel was “approved”; the BZA may refer to the court’s decision in Case No. 06 CV 0184, which required that Durell be given access to the private drive as the “first” of the three lots allowed by the 1997 agreed judgment. Also, we note that the trial court’s judgment in this case contradicts the BZA’s statement that a house has been built on Durell’s lot. 9

22-acre parcel at issue in the current variance request was included within the parcel that was

the subject of Mahaffey’s 1995 variance request and 1997 agreed judgment, and that the

BZA had therefore been incorrect in concluding that “the disposition of the remainder

[Mahaffey’s remaining 22 acres] was never addressed by the Court.” The trial court

concluded that the 22-acre parcel was “governed by the requirements” set forth in the 1997

agreed judgment “unless those requirements were changed by subsequent Court Order.”

Based on the requirements of the 1997 agreed judgment, the trial court concluded:

· The three 10-acre tracts, with residences thereon, “exhausted the maximum

residential development permitted” by the 1997 agreed judgment; “a

maximum of three houses were permitted to be built on the three surveyed 10

acre tracts along the private lane. And there has been no Court Order that

modified or changed the Court-ordered maximum of three houses.”

· The Court’s judgment in Case No. 06 CV 0184, which resulted from Durell’s

prior litigation, “ORDERED that the Bill Durell tract * * * was the first of the

lots created pursuant to the Agreed Judgment Entry in Case No. 95 CV 0461,

and was entitled to access to Spring Valley Paintersville Road” via

the access easement.

· The BZA’s grant of a variance for Mahaffey to build a residence on the 22

acres still owned by him violated the 3-house maximum stated in the 1997

Agreed Judgment.

· The construction of the three residences on lots along the private lane

“prompted the BZA not to approve Durell’s use of the private lane, an 10

entitlement recognized by the Court” in Durell’s prior litigation (Case No. 06

CV 0184).

· Because, in Case No. 06 CV 0184, the Court held that Durell’s lot “was the

first of three lots for which a variance was granted” in the earlier case (Case

No. 05 CV 0461), Durell could not be required to access his property by any

means other than the access easement contained in Durell’s deed of record.

· The Court and the BZA “are bound by the Court’s previous holding in Case

No. 06 CV 0184 that granted Bill Durell authority to construct a single family

residence [with] access to Spring Valley Paintersville Road” via the easement

constructed by Mahaffey.

{¶ 18} Moreover, the trial court disagreed with the BZA’s conclusion that “a

sufficient change of circumstances existed to warrant granting [Mahaffey’s] variance.” The

Court stated that the alleged changes in circumstances since the 1997 agreed judgment had

all resulted from the “implementation of, conformance with, or disregard of the terms” of the

agreed judgment by Mahaffey.

{¶ 19} In sum, the trial court concluded that Mahaffey should not have been

granted a variance and that the BZA had “discriminated against Durell” when it denied his

variance, as compared with its treatment of Mahaffey’s request. The court remanded the

matter to the BZA for it, “with guidance from the Court, [to] sort out this entire matter for

the benefit of the Township and all affected Parties and residents” and for it to issue

variances or accomplish zoning changes consistent with the court’s conclusions and with the

1997 agreed judgment. 11

The BZA’s Argument on Appeal

{¶ 20} The BZA appeals from the trial court’s judgment, raising one assignment of

error. The BZA asserts that the trial court erred in remanding to the BZA without expressly

finding that the BZA had acted illegally or abused its discretion. Specifically, the BZA

argues that the trial court “never found that the decision of the BZA [was] unconstitutional,

illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of

substantial, reliable, and probative evidence on the whole record,” as required by R.C.

2506.04. Moreover, the BZA argues that its own determination that res judicata did not

apply to bar Mahaffey’s request for a variance was “a reasonable conclusion based on

evidence in the record” and that the trial court abused its discretion “in substituting its

judgment for that of the BZA.”

Standard of Review

{¶ 21} As the BZA has correctly stated, in an administrative appeal pursuant to

R.C. Chapter 2506, 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 substantial, reliable, and probative evidence. Henley

v. Youngstown Bd. of Zoning Appeals,

,

(2000);

Mordick v. Dayton, 2d Dist. Montgomery No. 24663,

.

{¶ 22} 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. R.C. 2506.04 “grants a more limited power to the court of appeals to review the 12

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.’”

. In other words, as an appellate court, our standard of review in

an R.C. 2506.04 appeal is “more limited in scope.” Kisil v. Sandusky,

,

(1984). “The fact that the court of appeals * * * might have arrived at a

different conclusion than the administrative agency is immaterial.”

citing Lorain City

School Dist. Bd. of Edn. v. State Emp. Relations Bd.,

,

(1988). See also Cox v. Miami Cty. Bd. of Zoning Appeals, 2d Dist. Miami No.

2010-CA-29,

.

Analysis

{¶ 23} As a preliminary matter, the BZA asserts that the trial court erred in

reviewing the BZA’s determination that its actions on Mahaffey’s variance request were not

barred by res judicata. Whether the previous litigation over the zoning status and property

rights related to this property were binding on the parties, and thus had a res judicata effect,

is clearly a question of law. Thus, the trial court did not abuse its discretion in reviewing

the BZA’s interpretation of this issue. Likewise, because it is a question of law, we may

review the trial court’s conclusion on this issue. We agree with the trial court that the

BZA’s resolution of this issue was not entitled to deference on appeal.

{¶ 24} Additionally, the BZA argues that res judicata does not apply to granting a

variance “upon a showing of changed circumstances.” However, this argument disregards

the fact that the variance not only modified a prior zoning decision, as is usually the case, but

also conflicted with a judgment of the trial court. It also ignores the trial court’s conclusion, 13

which is supported by the evidence, that the changes in circumstances since the denial of

Mahaffey’s 1995 request for a variance, upon which the BZA relied, fell into one of two

categories: 1) they were “the natural and expected consequences” of the 1997 agreed

judgment, or 2) they resulted from Mahaffey’s disregard of the terms of the 1997 agreed

judgment. The trial court reasonably concluded that such “changes in circumstances” were

entitled to little weight and did not have greater force than the 1997 agreed judgment.

{¶ 25} The BZA also contends that the trial court’s judgment was improper

because the court did not expressly find that the BZA’s decision was “illegal, arbitrary,

capricious, unreasonable, or unsupported” by the record, as required by R.C. 2506.04.

Although it is true that the trial court did not use these terms, it is clear from the trial court’s

findings that it found the disparate treatment of Durell’s and Mahaffey’s requests for

variances to be arbitrary and unreasonable. Moreover, the trial court implicitly found the

BZA’s decision to be illegal insofar as it conflicted with the 1997 agreed judgment. In

other words, the trial court made the findings necessary to support its decision to reverse the

BZA’s decision, although it did not use the language of the statute.

{¶ 26} The BZA claims that it properly applied the factors set forth in Duncan v.

Middlefield,

,

(1986) in granting Mahaffey’s variance in

2009. Duncan outlined a list of factors to be applied in deciding whether landowners had

encountered “practical difficulties” in using their property. In our view, however,

Mahaffey’s prior consent to an agreed judgment about the use of the property eliminated the

relevance of the Duncan factors to his subsequent application for a variance.

{¶ 27} The BZA further asserts that a recent decision of this court, Garringer v. 14

New Jasper Twp. Bd. of Zoning Appeals, 2d Dist. Greene Nos. 2009-CA-50 and

2009-CA-59,

, supports its argument that the Duncan factors were the

correct factors to apply in this case. According to the BZA, Spring Valley Township

Zoning Resolution § 802.1 is identical to New Jasper Township Zoning Resolution §

802.1, which relates to “Single Non-Conforming Lots.”2 The sections provide, in pertinent

part:

In any district in which single-family dwellings are permitted, a single

family dwelling may be erected on any single lot of record at the effective

date of adoption of this amendment, not withstanding [sic] limitations

imposed by other provisions of this Resolution. * * * This provision shall

apply even though such lot fails to meet the requirements for area or width, or

both, that are applicable in the district.

Construction was subject to other height, lot coverage, and density restrictions.

{¶ 28} Durell and Mitchell correctly point out that the BZA did not raise this

argument in the trial court, and thus it has been waived. Moreover, even assuming, for the

sake of argument, that the 1997 agreed judgment did not exist, we would find that the Single

Non-Conforming Lot provision, and thus the holding in Garringer, is inapplicable to the

facts of this case. The Garringers sought to build a single residence on 55 acres of

landlocked agricultural property that lacked the required road frontage; like Mahaffey, the

Garringers accessed their property via an easement. When the Garringers sought a variance

2 Neither zoning ordinance is contained in the record, but we will assume, for the sake of this discussion, that the ordinances are identical. The New Jasper zoning resolution is quoted in Garringer. Id. at ¶ 16. 15

from the frontage requirement, the BZA denied it, finding that the Garringers had not

established an unnecessary hardship or practical difficulty. Id. at ¶ 6. On appeal, the trial

court disagreed, concluding that the zoning resolution allowed a house to be built on the

property, and it ordered the BZA to grant the variance. We agreed with the trial court’s

reasoning, but we found that a variance was unnecessary. Id. at ¶ 23. We remanded for the

trial court “to order the [BZA] to grant a building permit to construct a single family

dwelling” on the property.

{¶ 29} The zoning resolutions at issue in Garringer and in this case apply to “any

single lot of record at the effective date of adoption” of the amendment. There is no

indication in Garringer that the property on which the owners sought to construct a home

had been divided or otherwise modified subsequent to the adoption of the resolution.

Although it is unclear when the Spring Valley Zoning Resolution was adopted, there is no

suggestion in this record that Spring Valley Township Zoning Resolution § 802.1 was

adopted during the course of these proceedings, i.e. more recently than 1995, when Mahaffey

sought the original variance. Several divisions of Mahaffey’s property were accomplished

after that time, and Mahaffey’s remaining 22-acre lot therefore was not “of record” when the

zoning resolution was adopted. Accordingly, the rationale of Garringer would not apply.

{¶ 30} The BZA correctly points out that, when Durell’s variance was denied in

2004, the trial court had not yet ruled (in Case No. 06 CV 0184) that Durell’s lot was “the

first of three lots for which a variance ha[d] been granted” by means of the 1997 agreed

judgment. To the BZA, this fact suggests that it could not have discriminated against Durell

in denying the 2004 variance application, at which point his priority had not yet been 16

established, and that, by the time of Mahaffey’s application in 2008, the 2006 decision had

“eviscerated the original 1997 agreement that only three residences should be constructed

along the private lane.”

{¶ 31} As far as we can tell from this record, the owners of the four lots which

have been divided from Mahaffey’s original lot since 1995 – Durell, Mitchell, Miller, and

Bott – bore no responsibility for Mahaffey’s non-compliance with the 1997 agreed

judgment. They, or their predecessors in interest, each purchased their lots with the

understanding with they would be permitted access via the private drive, and their deeds

contained easements to that effect. We understand that these events put the BZA in the

difficult position of either denying Durell’s 2004 request for a variance to allow construction

on his property or failing to comply with the 1997 agreed judgment by allowing four

properties to use the private drive. We also understand the trial court’s disapproval of the

BZA’s costly and perhaps impracticable solution that Durell be required to built a separate

private drive to Cemetery Road, although the trial court’s characterization of the decision as

“discrimination” might have been overstated on the record before us.

{¶ 32} Nonetheless, we disagree with the BZA that the 2006 decision granting

Durell access to Mahaffey’s private drive necessarily “eviscerated” the 1997 agreed

judgment, such that it placed no limitation on further development of Mahaffey’s land. The

trial court reasonably concluded that Mahaffey’s request for further development along the

private drive was in contravention of the court’s 1997 agreed judgment and of the rights of

the other property owners.

{¶ 33} The assignment of error is overruled. 17

Conclusion

{¶ 34} The judgment of the trial court will be affirmed insofar as it concluded that

the BZA improperly granted Mahaffey’s request for a variance, and the variance granted to

Mahaffey will be vacated. There is no other matter to “sort out.” The 1997 agreed

judgment remains, although effectively modified by subsequently approved building. By

virtue of the declaratory judgment in Case No. 06 CV 0184, Durrell has authority to build on

his lot and to access his property via the private drive built by Mahaffey and shared by the

other properties. Because there is no other issue to be resolved, we will modify the trial

court’s judgment insofar as it remanded the matter to the BZA for it to “sort out this entire

matter for the benefit of the Township and all affected Parties and residents” with the benefit

of the court’s guidance; no further action by the BZA is appropriate based on these

proceedings.

..........

HALL, J. and CELEBREZZE, J., concur.

(Hon. Frank D. Celebrezze, Jr., Eighth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

B. Randall Roach Elizabeth A. Ellis Hon. Stephen A. Wolaver

Case Name: Bill Durell, et al. v. Spring Valley Township Board of Zoning Appeals, et al. Case No.: Greene App. No. 2012 CA 23 Panel: Froelich, Hall, Celebrezze Author: Jeffrey E. Froelich