[Cite as Beach v. Batavia Twp. Bd of Zoning Appeals,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

MICHAEL BEACH, et al., :

Appellants, : CASE NO. CA2021-02-006

: OPINION - vs - 8/23/2021 :

BATAVIA TOWNSHIP BOARD OF : ZONING APPEALS, : Appellee.

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2019 CVF 1535

Dinsmore & Shohl LLP, and Brian S. Sullivan and Andrew B. Cassady, for appellants.

Nichols, Speidel & Nichols, and David J. Frey, for appellee.

S. POWELL, J.

{¶ 1} Appellants, Michael Beach and Beach's Trees Selective Harvesting, LLC

(collectively, "Beach"), appeal the decision of the Clermont County Court of Common Pleas

denying Beach's appeal from a decision issued by appellee, Batavia Township Board of

Zoning Appeals ("BTBZA"), rejecting Beach's conditional use application to build a

recreational vehicle storage facility on Beach's property located at 4165 Taylor Road,

Batavia Township, Clermont County, Ohio ("Property"). For the reasons outlined below, we Clermont CA2021-02-006

reverse and remand this matter to the common pleas court for further proceedings.

Facts and Procedural History

{¶ 2} This case presents a unique, although fairly straightforward set of facts.

There are, however, several undisputed facts that are necessary to understand this case.

First, there is no dispute that the Property, which consists of 21.034 acres of mostly

undeveloped farmland, is located on the south side of Taylor Road approximately 1,675

feet west of Clough Pike in Batavia Township, Clermont County, Ohio. There is also no

dispute that the Property is zoned "I" Industrial District under Article 30 of the Batavia

Township Zoning Resolution ("BTZR"). There is further no dispute that a "Recreational

Vehicle Storage Facility" is a conditionally permitted use for property, like the Property at

issue in this case, zoned "I" Industrial District under Article 30.04 Section N of the BTZR.

Lastly, there is no dispute that the Property is located across Taylor Road from the Clermont

County Airport ("Airport"). This includes a portion of the Airport's "runway protection zone."1

{¶ 3} On June 27, 2019, Beach filed a conditional use application with the BTBZA

seeking approval to build a recreational vehicle storage facility on the Property, i.e., a

parking lot, where Beach intended to park campers, RVs, recreational equipment, and cars.

The record indicates that the recreational vehicle storage facility at issue would be built on

the Property approximately 500 to 550 feet south of Taylor Road directly across the street

from the Airport.

{¶ 4} On July 18, 2019, a hearing before the BTBZA began on Beach's conditional

use application. However, rather than the BTBZA issuing its decision that day, the hearing

was instead continued and reconvened approximately one month later on August 15, 2019.

1. Information in the record obtained from the Federal Aviation Administration, Central Region Airports Division, defines an airport's "runway protection zone" as a trapezoidal area "off the end of the runway end that serves to enhance the protection of people and property on the ground" in the event that an aircraft lands and/or crashes beyond the end of the airport's runway. -2- Clermont CA2021-02-006

The hearing was then again continued so that Beach could obtain additional information

regarding the project from the Federal Aviation Administration ("FAA"). The hearing

ultimately concluded on November 21, 2019. The BTBZA heard testimony and accepted

evidence from several sources during this hearing. This includes a study from the FAA that

found "the described structure would have no substantial adverse effect on air navigation."

This also includes testimony, as well as photographic evidence, establishing that only one

aircraft had ever crashed on the Property since the Airport's construction over a half-century

ago in 1968.2

{¶ 5} On December 16, 2019, the BTBZA issued its decision in a 3-2 vote rejecting

Beach's conditional use application. In so holding, the majority of the BTBZA members

determined that allowing Beach to construct a recreational vehicle storage facility on the

Property would be hazardous or disturbing to existing or future neighboring uses. The

majority of the BTBZA members also determined that allowing Beach to construct a

recreational vehicle storage facility on the Property would unreasonably hinder or

discourage the appropriate use and enjoyment of the adjacent land, buildings, and

structures. This includes the Airport located across the street from the Property.

{¶ 6} On December 19, 2019, Beach appealed the BTBZA's decision to the

common pleas court pursuant to R.C. 2506.01. The common pleas court heard oral

arguments on Beach's appeal on October 3, 2020. Following oral arguments, the common

pleas court took the matter under advisement.

{¶ 7} On January 15, 2021, the common pleas court issued a decision affirming the

BTBZA's decision rejecting Beach's conditional use application upon finding there were

"ample facts" to support the BTBZA's decision. The common pleas court reached this

2. The record indicates that this crash occurred on July 6, 2004 involving a Grumman American AA-1 airplane that was unable to safely take off due to the aircraft containing too heavy of a load. -3- Clermont CA2021-02-006

decision despite specifically acknowledging that the BTBZA's decision may seem "illogical"

and "arbitrary" given the fact that, in accordance with Article 30.02 of the BTZR, Beach

could have built several other structures on the Property without the need to seek the

BTBZA's approval. Pursuant to BTZR Article 30.02 Sections F and I, which sets forth the

principally permitted uses for property zoned "I" Industrial District, this includes an

"Automobile, Motorcycle, Recreational Vehicle, Truck, Trailer and Farm Implement Sales;

New or Used" and a "Self-Service Storage Facility."

Appeal

{¶ 8} Beach now appeals the common pleas court's decision, raising a single

assignment of error for review. In his single assignment of error, Beach argues the common

pleas court erred by affirming the BTBZA's decision rejecting Beach's conditional use

application. We agree.

Standard of Review

{¶ 9} "R.C. Chapter 2506 governs the standards applied to appeals of

administrative agency decisions." Hindu Soc. of Greater Cincinnati v. Union Twp. Bd. of

Zoning Appeals, 12th Dist. Clermont No. CA2018-11-081,

, citing

Hutchinson v. Wayne Twp. Bd. of Zoning Appeals, 12th Dist. Butler No. CA2012-02-032,

, ¶ 14. Pursuant to R.C. 2506.04, a common pleas court reviewing an

administrative appeal "'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.'"

Bingham v. Wilmington Bd. of Zoning Appeals, 12th Dist. Clinton No. CA2012-05-012,

, quoting Key-Ads, Inc. v. Warren Cty. Bd. of Commrs., 12th Dist. Warren

No. CA2007-06-085,

. A board of zoning appeals' decision is

presumed to be valid and the burden is upon the party contesting the board's determination

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to prove otherwise. Terrace Park v. Anderson Twp. Bd. of Zoning Appeals, 1st Dist.

Hamilton Nos. C-140741 and

.

{¶ 10} "'An appeal to the court of appeals, pursuant to R.C. 2506.04, is more limited

in scope."' Queen v. Union Twp. Bd. of Zoning Appeals, 12th Dist. Fayette No. CA2015-

05-011,

, ¶ 13 quoting Kisil v. Sandusky,

, (1984). "[T]he

standard of review for courts of appeals in administrative appeals is designed to strongly

favor affirmance." Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals,

,

, ¶ 30. "'[T]his court on review is without jurisdiction to substitute

its judgment for that of the [common pleas] court.'" Smith v. Warren Cty. Rural Zoning Bd.

of Zoning Appeals, 12th Dist. Warren No. CA2018-07-078,

, quoting

In re Lehman, 10th Dist. Franklin No. 77AP-340,

, *4-5 (Dec.

27, 1977). Rather, "this court must affirm the common pleas court's decision unless it finds,

as a matter of law, that the lower court's decision was not supported by a preponderance

of reliable, probative, and substantial evidence." Taylor v. Wayne Twp. Bd. of Trustees,

12th Dist. Butler No. CA2008-02-032,

.

{¶ 11} "Within the ambit of questions of law for appellate-court review is whether the

common pleas court abused its discretion[.]" Independence v. Office of the Cuyahoga Cty.

Executive,

,

. An abuse of discretion is indicated

where there is an arbitrary, unreasonable, or unconscionable attitude on the part of the

common pleas court. Natl. Amusements, Inc. v. Union Twp. Bd. of Zoning Appeals, 12th

Dist. Clermont No. CA2002-12-107,

. An "arbitrary" decision "is one

made 'without consideration of or regard for facts [or] circumstances.'" State v. Beasley,

,

, ¶ 12 quoting Black's Law Dictionary 125 (10th Ed. 2014).

A decision is "unreasonable" where it is not supported by a sound reasoning process.

Nationwide Agribusiness Ins. Co. v. Heidler, 12th Dist. Clinton Nos. CA2018-06-003,

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CA2018-07-004, CA2018-09-012, and CA2018-09-015,

; AAAA

Ents., Inc. v. River Place Community Urban Redevelopment Corp.,

(1990) ("[a] decision is unreasonable if there is no sound reasoning process that would

support that decision").

Analysis

{¶ 12} Without question, the facts of this case are unique. However, taken at its

simplest form, this case is about whether a township board of zoning appeals can deny a

business' conditional use application requesting permission to park recreational vehicles on

its property located directly across the street from a county airport, a portion of which aircraft

might use in case of an emergency, when that business could have built other structures,

including a recreational vehicle sales lot and a self-service storage facility, without the need

to obtain approval from the board. Presented with these facts, the BTBZA exercised its

discretion and rejected Beach's conditional use application, a decision the common pleas

court subsequently affirmed upon finding the BTBZA's decision was not "unconstitutional,

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

substantial, reliable, and probative evidence on the whole record."

{¶ 13} But, despite the limited standard of review this court must apply to the case

at bar, and even though this court must refrain from substituting its judgment for that of the

common pleas court, we nevertheless reverse the common pleas court's decision in this

case. As noted above, the common pleas court specifically acknowledged within its

decision that the BTBZA's decision to reject Beach's conditional use application may seem

"illogical" and "arbitrary" in this case given that Beach would not have needed to file a

conditional use application with the BTBZA had Beach wanted to build an "indoor storage

facility" instead of a recreational vehicle storage facility. This is because, after a full and

thorough review of the record, which includes the FAA's study finding "the described

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structure would have no substantial adverse effect on air navigation," the BTBZA's decision

to deny Beach's conditional use application in this case actually was illogical and arbitrary.

Therefore, because the BTBZA's decision denying Beach's conditional use application was

illogical and arbitrary, the common pleas court's decision to uphold that decision was also

illogical and arbitrary, thereby rendering the common pleas court's decision an abuse of

discretion.

{¶ 14} We do not reach this decision lightly. However, just like one of the BTBZA's

board members stated at the November 21, 2019 hearing on Beach's conditional use

application, this court sees no difference "between a parking lot with a building on the

property" and "a parking lot with no building." Moreover, while the common pleas court

found it was not conjecture that an airplane had crashed on the Property in the past, whether

an aircraft would crash on the Property in the future certainly is. The common pleas court,

just like this court, cannot predict the future. What this court can do is uphold the law and

apply the well-established principle that "zoning ordinances are to be construed in favor of

the property owner because they are in derogation of the common law and deprive the

property owner of uses to which the owner would otherwise be entitled." Cleveland Clinic

Found. v. Cleveland Bd. of Zoning Appeals,

,

, ¶ 34,

citing Univ. Circle, Inc. v. Cleveland,

(1978). That includes the

owner of the Property at issue in this case, Beach.

{¶ 15} Simply stated, under the unique facts and circumstances of this case, we

believe Beach should not be precluded by the BTBZA from building what amounts to

nothing more than a parking lot on the Property based on the off chance that an aircraft

might, at some undetermined time in the future, use some portion of the Property in the

case of an emergency. This is particularly true here when considering this has happened

only one time since the Airport's construction over a half-century ago in 1968. That is to

-7- Clermont CA2021-02-006

say nothing of the fact, pursuant to Article 30.02 Section F and I of the BTZR, Beach could

have built an "Automobile, Motorcycle, Recreational Vehicle, Truck, Trailer and Farm

Implement Sales; New or Used" and a "Self-Service Storage Facility" on the Property

without the need to file a conditional use application with the BTBZA. As noted above, we

find this to be illogical and arbitrary.

{¶ 16} To hold otherwise, like both the BTBZA and the common pleas court did in

this case, creates a situation that is, to an extent, nearly analogous to an unconstitutional

taking of the Property. The Property, which the record indicates has been used as farmland

since the Airport's construction in 1968, could have remained that way had the Property

been purchased by the Airport. It was not. It was instead purchased by Beach to be used

as, among other things, a recreational vehicle storage facility. Once again, this court's

opinion is best summarized by a BTBZA board member's statements made at the

November 21, 2019 hearing. As that BTBZA board member stated:

From the fact that right now it's a cornfield and it's been a cornfield forever. And they've [i.e., the Airport] had the luxury of never having to need to buy it. Now it becomes an issue. You can't deny the people who own it, who bought it to use it as industrial property which it is zoned.

***

I'm looking at it from the owners' standpoint, [Beach] bought the property and (inaudible). And the airport had the luxury of being a cornfield since its conception. So something has to happen one way or the other. So we've got, you know, change is happening. We just can't have it, just because we don't like it to happen, it's going to happen.

{¶ 17} Although the issue in this case deals with a conditional use rather than a

principally permitted use under the BTZR, we nevertheless agree with the underlying point

made by this BTBZA board member. That is, denying Beach's conditional use application

to build a recreational storage facility on the Property simply because the Property has been

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used as farmland since the Airport's construction in 1968 creates a situation that is

fundamentally unfair to Beach as the current owner of the Property. In reaching this

decision, we note that what Beach paid for the Property is irrelevant, as is the legal concept

of "coming to the nuisance" as referenced by the BTBZA just prior to the BTBZA issuing its

decision. The owner of the Property, Beach, wants to use the Property for something other

than farmland. The BTBZA's decision denying Beach that opportunity, as well as the

common pleas court's decision affirming the BTBZA's decision denying Beach that

opportunity, was error as that decision was illogical and arbitrary under the unique facts and

circumstances of this case.

{¶ 18} In so holding, we note that this court does not dispute that the BTBZA may

exercise its discretion when deciding whether to grant or deny an applicant's conditional

use application. However, while we believe the BTBZA has the authority to exercise its

discretion when deciding whether to grant or deny an applicant's conditional use application,

including Beach's conditional use application at issue here, the BTBZA's decision is not

unfettered, unlimited, and insulated from review. See Hindu Soc. of Greater Cincinnati,

. Therefore, as stated previously, because the BTBZA's decision

denying Beach's conditional use application was illogical and arbitrary, the common pleas

court's decision to uphold that decision was also illogical and arbitrary, thereby rendering

the common pleas court's decision an abuse of discretion. Accordingly, finding merit to

Beach's single assignment of error challenging the common pleas court's decision affirming

the BTBZA's decision rejecting Beach's conditional use application to build a recreational

vehicle storage facility on the Property, the common pleas court's decision is reversed and

this matter is remanded to the common pleas court for further proceedings.

{¶ 19} Judgment reversed and remanded.

PIPER, P.J., and BYRNE, J., concur.

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