[Cite as Homan v. Franklin Twp. Bd. of Zoning Appeals, 2018-Ohio-3717.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                             MERCER COUNTY




TIMOTHY J. HOMAN,

        PLAINTIFF-APPELLANT,                                     CASE NO. 10-18-04

        v.

FRANKLIN TOWNSHIP BOARD OF
ZONING APPEALS,                                                  OPINION

        DEFENDANT-APPELLEE.



                 Appeal from Mercer County Common Pleas Court
                           Trial Court No. 16-CIV-046

                                    Judgment Affirmed

                        Date of Decision: September 17, 2018




APPEARANCES:

        John A. Gleason for Appellant

        Andrew J. Hinders for Appellee
Case No. 10-18-04


PRESTON, J.

       {¶1} Plaintiff-appellant, Timothy J. Homan (“Homan”), appeals the January

18, 2018 judgment entry of the Mercer County Court of Common Pleas affirming

defendant-appellee’s, the Franklin Township Board of Zoning Appeals (“BZA”),

decision to deny Homan’s application for a conditional-use permit. For the reasons

that follow, we affirm the decision of the trial court.

       {¶2} Homan has operated a nursery business on his property in Franklin

Township, Mercer County, Ohio for more than 30 years. (Appellant’s Brief at 1).

In late 2015, Homan began remodeling a dilapidated barn on the property. (Id.).

Around the same time, Homan’s son, Timothy Homan Jr. (“Homan Jr.”), was

running a “machine shop” in a building that he leased for that purpose. (Mar. 7,

2016 Tr. at 7-8). Eventually, Homan Jr.’s lease expired, and he was forced to move

the equipment used in his business. (See id.). After some discussion, Homan and

Homan Jr. decided that Homan Jr. would relocate his equipment to the newly-

renovated barn to allow Homan Jr. to continue his machining business. (Id. at 7-9).

However, in January 2016, the township zoning inspector visited Homan’s barn and

informed Homan that he would need to apply for a conditional-use permit to

continue using the barn to house Homan Jr.’s machine shop. (Sept. 19, 2016 Tr. at

13-15). (See Mar. 7, 2016 Tr. at 6-7).




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      {¶3} Homan subsequently submitted an application for a conditional-use

permit, which came before the BZA for a hearing on March 7, 2016. (See Mar. 7,

2016 Tr. at 6). The BZA rejected Homan’s application for a conditional-use permit.

(Id. at 63-64). (See Sept. 19, 2016 Hearing Exs., Appellant’s Ex. 1). Thereafter, on

April 6, 2016, Homan appealed the BZA’s denial of his application for a

conditional-use permit to the Mercer County Court of Common Pleas. (Doc. No.

3).

      {¶4} On July 7, 2016, the trial court remanded the matter to the BZA with

“instructions to supplement the record with the evidence admitted at the original

proceedings before it on March 7, 2016, with the specific authority to reconvene the

hearing on [Homan’s] application for a grant of conditional use of his premises so

that additional evidence may be taken and a new order and decision may be issued

by the [BZA] * * *.” (Doc. No. 19). In accordance with the trial court’s July 7,

2016 order, the BZA reconvened on September 19, 2016 to further consider

Homan’s application for a conditional-use permit. (See Sept. 19, 2016 Tr. at 6-7).

At the close of the hearing, the BZA denied Homan’s application for a conditional-

use permit. (Id. at 83-85). On October 24, 2016, the trial court reopened Homan’s

appeal of the BZA’s decision. (Doc. No. 27).




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       {¶5} Following a hearing on January 11, 2018, the trial court affirmed the

BZA’s decision denying Homan’s application for a conditional-use permit on

January 18, 2018. (See Doc. Nos. 56, 59).

       {¶6} On February 16, 2018, Homan filed a notice of appeal. (Doc. No. 64).

He raises two assignments of error, which we will address together.

                            Assignment of Error No. I

       The trial court erred in holding that appellant’s use was not a
       conditional use.

                            Assignment of Error No. II

       The trial court erred by not holding that appellee failed to comply
       with R.C. 2506.04 when it denied appellant’s application while
       allowing similar uses in the same district.

       {¶7} In his assignments of error, Homan argues that the trial court erred by

affirming the BZA’s decision denying his application for a conditional-use permit.

Specifically, in his first assignment of error, Homan argues that the Franklin

Township Zoning Code (the “Code”) is ambiguous as to whether his use is a

conditional use in the relevant zoning district, that the trial court was required to

construe this ambiguity in his favor, and that because the trial court did not construe

the Code in his favor when it found that his use is not a conditional use, the trial

court erred by affirming the decision of the BZA. In addition, in his second

assignment of error, Homan asserts that the trial court erred by affirming the

decision of the BZA because the BZA arbitrarily, illegally, and unreasonably denied

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his application for a conditional-use permit while allowing similar uses to continue

operating in the same zoning district.

       {¶8} “R.C. Chapter 2506 governs appeals from decisions by agencies of

political subdivisions, such as township zoning boards.” Genovese v. Beckham, 9th

Dist. Summit No. 22814, 2006-Ohio-1174, ¶ 6, citing Earth ‘N Wood Prods., Inc.

v. Akron Bd. of Zoning Appeals, 9th Dist. Summit No. 21279, 2003-Ohio-1801.

“Under R.C. 2506.01, a party may appeal a local agency’s final administrative

decision to the applicable court of common pleas.” Id. “Then, R.C. 2506.04

empowers the court of common pleas to act with certain, limited appellate authority

as to the challenged administrative decision.” Id., citing Summit Cty. Bd. of Health

v. Pearson, 9th Dist. Summit No. 22194, 2005-Ohio-2964, ¶ 7. R.C. 2506.04

supplies the standard of review used by courts of common pleas in such appeals:

       If an appeal is taken in relation to a final order, adjudication, or

       decision covered by division (A) of section 2506.01 of the Revised

       Code, the court may find that the order, adjudication, or decision is

       unconstitutional, illegal, arbitrary, capricious, unreasonable, or

       unsupported by the preponderance of substantial, reliable, and

       probative evidence on the whole record. Consistent with its findings,

       the court may affirm, reverse, vacate, or modify the order,

       adjudication, or decision, or remand the cause to the officer or body


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Case No. 10-18-04


       appealed from with instructions to enter an order, adjudication, or

       decision consistent with the findings or opinion of the court. The

       judgment of the court may be appealed by any party on questions of

       law as provided in the Rules of Appellate Procedure and, to the extent

       not in conflict with those rules, Chapter 2505. of the Revised Code.

Thus, “[i]n an R.C. 2506.01 administrative appeal, the common pleas court

considers the whole record and determines whether the administrative order

is ‘unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by

the preponderance of substantial, reliable, and probative evidence.’” Independence

v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, ¶

13, citing R.C. 2506.04 and Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio

St.3d 142, 147 (2000).      “The [common pleas court] weighs the evidence to

determine whether a preponderance of reliable, probative, and substantial evidence

supports the administrative decision, and if it does, the court may not substitute its

judgment for that of the board.” Id., citing Dudukovich v. Lorain Metro. Hous.

Auth., 58 Ohio St.2d 202, 207 (1979). “If it does not, the court may reverse, vacate,

or modify the administrative decision.” Id., citing Dudukovich at 207 and R.C.

2506.04. “Although a hearing before a common pleas court pursuant to R.C.

2506.01 is not a de novo review, ‘it often in fact resembles a de novo proceeding.’”

Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals, 141 Ohio St.3d 318,


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Case No. 10-18-04


2014-Ohio-4809, ¶ 24, quoting Cincinnati Bell, Inc. v. Glendale, 42 Ohio St.2d 368,

370 (1975).

       {¶9} “By contrast, the standard of review for an appellate court reviewing a

judgment of a common pleas court in this type of appeal is narrower and more

deferential to the [common pleas] court’s decision.” Id. at ¶ 25, citing Kisil v.

Sandusky, 12 Ohio St.3d 30, 34 (1984). The Supreme Court of Ohio has “stressed

that the ‘standard of review to be applied by the courts of appeals in an R.C.

2506.04 appeal is “more limited in scope.”’” (Emphasis sic.) Id., quoting Henley at

147, quoting Kisil at 34. “The courts of appeals may review the judgments of the

common pleas courts only on questions of law; they do not have the same power to

weigh the evidence.” Id., citing Henley at 147. “‘It is incumbent on the trial court

to examine the evidence. Such is not the charge of the appellate court. * * * The

fact that the court of appeals * * * might have arrived at a different conclusion than

the administrative agency is immaterial.’” Henley at 147, quoting Lorain City

School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261 (1988).

“The court of appeals must affirm unless it finds, as a matter of law, that the trial

court’s decision is not supported by a preponderance of reliable, probative, and

substantial evidence.” Independence at ¶ 14, citing Kisil at 34. See Kurutz v.

Cleveland, 8th Dist. Cuyahoga No. 105899, 2018-Ohio-2398, ¶ 8 (“In this context,

a reversal ‘as a matter of law’ can occur only when, having viewed the evidence


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most favorably to the decision, there are no facts to support the common pleas court

decision.”).

        {¶10} This court has recognized that Ohio courts of appeals review the

decisions of trial courts in R.C. Chapter 2506 administrative appeals under an abuse-

of-discretion standard. E.g., Toledo Edison Co. v. Bd. of Defiance Cty. Commrs.,

3d Dist. Defiance No. 4-13-04, 2013-Ohio-5374, ¶ 18, citing Briggs v. Dinsmore

Twp. Bd. of Zoning Appeals, 161 Ohio App.3d 704, 2005-Ohio-3077, ¶ 7 (3d Dist.);

Crist v. Battle Run Fire Dist. Bd. of Trustees, 105 Ohio App.3d 111, 115 (3d

Dist.1995). Nevertheless, it is unclear whether a traditional abuse-of-discretion

standard of review is, in fact, the correct standard of review.1 In Cleveland Clinic

Foundation, the Supreme Court of Ohio was called on to decide a “narrow issue:

the proper standard of review for courts to apply in appeals, pursuant to R.C.

2506.04, from decisions of zoning authorities that restrict the use of property.” 141

Ohio St.3d 318, 2014-Ohio-4809, at ¶ 2. In resolving that issue, the Supreme Court


1
  Indeed, some Ohio courts of appeals have questioned the abuse-of-discretion standard’s status as the
overarching standard of review for courts of appeals in R.C. Chapter 2506 administrative appeals. As noted
by the Eighth District Court of Appeals, “the Ohio Supreme Court’s use of the ‘abuse of discretion’ standard
in reviewing ‘matters of law’ [is] perplexing” given that “trial court[s] would never have the discretion to
misapply or misinterpret a law or ordinance” and that “appellate court[s] usually review matters of
interpretation or application of law by the lower court de novo.” Scasny v. Mayfield, 8th Dist. Cuyahoga No.
103583, 2016-Ohio-5517, ¶ 9, fn. 5. At least one other Ohio appellate court has made similar observations.
See Safest Neighborhood Assn. v. Athens Bd. of Zoning Appeals, 4th Dist. Athens Nos. 12CA32, 12CA33,
12CA34 and 12CA35, 2013-Ohio-5610, ¶ 16 (“Although the abuse of discretion standard usually affords
maximum defense to the lower court, no court retains discretion to adopt an incorrect legal rule or to apply
an appropriate rule in an inappropriate manner. Such a course of conduct would result in an abuse of
discretion. * * * We make such a determination as with other questions of law on a de novo basis.”). See
also State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 26 (2d Dist.) (“No court—not a trial court, not
an appellate court, nor even a supreme court—has the authority, within its discretion, to commit an error of
law.”).

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did not couch the courts of appeals’s standard of review in terms of “abuse of

discretion.” In fact, aside from observing that the Eighth District Court of Appeals

twice concluded that the trial court abused its discretion, the term “abuse of

discretion” is not mentioned in the court’s opinion. Rather, the Supreme Court held

that “the standard of review for courts of appeals in administrative appeals * * *

permits reversal only when the common pleas court errs in its application or

interpretation of the law or its decision is unsupported by a preponderance of the

evidence as a matter of law.” Id. at ¶ 30. The court ultimately reversed the Eighth

District because it concluded that the trial court’s original decision was supported

by “the preponderance of substantial, reliable, and probative evidence,” not because

it concluded that the Eighth District incorrectly determined whether the trial court

abused its discretion. Id. at ¶ 42. Similarly, in Independence, the Supreme Court

affirmed the appellate court’s decision to affirm the trial court after concluding that

the trial court’s decision was based on “a preponderance of reliable, probative, and

substantial evidence.” 142 Ohio St.3d 125, 2014-Ohio-4650, at ¶ 39. Again, the

Supreme Court did not explicitly frame the appellate standard of review as abuse of

discretion despite noting that “[w]ithin the ambit of questions of law for appellate-

court review is whether the common pleas court abused its discretion.” Id. at ¶ 14,

citing Kisil at 34, fn. 4.




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       {¶11} However, in a case decided less than one year before Independence

and Cleveland Clinic Foundation, the Supreme Court observed that, in R.C. Chapter

2506 administrative appeals, “[t]he appellate court reviews the trial court’s decision

only on questions of law to determine whether the lower court abused its discretion

in finding that the administrative order was supported by reliable, probative, and

substantial evidence.” Boice v. Ottawa Hills, 137 Ohio St.3d 412, 2013-Ohio-4769,

¶ 7, citing Kisil at 34. The Supreme Court concluded that the appellate court erred

by upholding the trial court’s decision because “the trial court’s decision was

unreasonable and arbitrary and, accordingly, was an abuse of discretion.”

(Emphasis added.) Id. at ¶ 6.

       {¶12} Yet, as stated above, this court has repeatedly and consistently

concluded that the decisions of trial courts in R.C. Chapter 2506 administrative

appeals are reviewed under an abuse-of-discretion standard, and it is not evident

whether an alternative standard of review is required by the above-cited decisions

of the Supreme Court of Ohio. Moreover, the standard of review used by this court

when reviewing R.C. Chapter 2506 administrative appeals is generally consistent

with the standards of review employed by our sister appellate districts. See, e.g.,

WRRS, L.L.C. v. Cleveland, 8th Dist. Cuyahoga No. 105661, 2018-Ohio-2129, ¶ 12

(“[T]his court will review the judgment of the trial court only to determine if the

lower court abused its discretion in finding that the administrative order was


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supported by reliable, probative, and substantial evidence.”), citing Wolstein v.

Pepper Pike City Council, 156 Ohio App.3d 20, 2004-Ohio-361, ¶ 21-22 (8th Dist.);

JSS Properties II, L.L.C. v. Liberty Twp. Bd. of Zoning Appeals, 5th Dist. Licking

No. 17-CA-59, 2018-Ohio-1492, ¶ 7 (“[T]he standard of review for appellate courts

in a R.C. 2506 appeal is ‘whether the common pleas court abused its discretion in

finding that the administrative order was or was not supported by reliable, probative,

and substantial evidence.’”), quoting Weber v. Troy Twp. Bd. of Zoning Appeals,

5th Dist. Delaware No. 07 CAH 04 0017, 2008-Ohio-1163.

       {¶13} It has also been recognized, however, that while “‘courts of appeals

have a limited scope of review on R.C. 2506 appeals, interpretation of a city’s

ordinance presents a question of law that must be reviewed de novo.’” Jackson v.

Cleveland Dept. of Bldg. & Hous., 8th Dist. Cuyahoga No. 97706, 2012-Ohio-3688,

¶ 8, quoting Moulagiannis v. Cleveland Bd. of Zoning Appeals, 8th Dist. Cuyahoga

No. 84922, 2005-Ohio-2180, ¶ 10. Accord Cleveland Clinic Found., 141 Ohio St.3d

318, 2014-Ohio-4809, at ¶ 25 (“‘A question of statutory construction presents an

issue of law that we determine de novo on appeal.’”), quoting Lang v. Ohio Dept.

of Job & Family Servs., 134 Ohio St.3d 296, 2012-Ohio-5366, ¶ 12. Thus, courts

of appeals perform two distinct forms of review when evaluating a common pleas

court’s decision in an R.C. Chapter 2506 administrative appeal: “‘On a question of

fact, an appellate court’s review is limited to an abuse of discretion. * * * [O]n a


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question of law, an appellate court’s review is de novo.’” Dixon v. Caesarscreek

Twp. Bd. of Zoning Appeals, 2d Dist. Greene No. 2018-CA-1, 2018-Ohio-2549, ¶

9, quoting Key Ads, Inc. v. Dayton Bd. of Zoning Appeals, 2d Dist. Montgomery No.

26148, 2014-Ohio-4961, ¶ 13, citing Lamar Outdoor Advertising v. Dayton Bd. of

Zoning Appeals, 2d Dist. Montgomery No. 18902, 2002 WL 1349600, *2 (June 21,

2002) and Ohio Dept. of Commerce, Div. of Real Estate v. DePugh, 129 Ohio

App.3d 255, 261 (4th Dist.1998). See Alesi v. Warren Cty. Bd. of Commrs., 12th

Dist. Warren Nos. CA2013–12–123, CA2013–12–124, CA2013–12–127, CA2013–

12–128, CA2013–12–131 and CA2013–12–132, 2014-Ohio-5192, ¶ 27 (“[Courts

of appeals] may only reverse if [they] find that either (1) the trial court abused its

discretion in its determination as to whether the [administrative agency’s] decision

was supported by the preponderance of the evidence, or (2) that the trial court

committed an error of law.”). See also One Neighborhood Condominium Assn. v.

Columbus Dept. of Pub. Util., Div. of Water, 10th Dist. Franklin No. 16AP-653,

2017-Ohio-4195, ¶ 14 (“The court of appeals’ role in R.C. [Chapter] 2506[] appeals

is limited to reviewing questions of law, which the court reviews de novo, and

determining whether the court of common pleas abused its discretion in applying

the law.”). This bipartite form of appellate review is in keeping with the Supreme

Court’s statement that “the standard of review for courts of appeals in administrative

appeals * * * permits reversal only when the common pleas court errs in its


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application or interpretation of the law or its decision is unsupported by a

preponderance of the evidence as a matter of law.” Cleveland Clinic Found. at ¶

30.      Accordingly, we will review de novo whether the trial court correctly

interpreted the Code but we will utilize an abuse-of-discretion standard to determine

whether the trial court correctly concluded that the BZA’s decision to deny Homan’s

application for a conditional-use permit was supported by reliable, probative, and

substantial evidence. “Under a de novo review, we apply the same standards as the

common pleas court without deference to the common pleas court’s decision.” Key

Ads, Inc. at ¶ 14, citing Gem City Metal Spinning Co. v. Dayton Bd. of Zoning

Appeals, 2d Dist. Montgomery No. 22083, 2008-Ohio-181, ¶ 18, citing Brinkman

v. Doughty, 140 Ohio App.3d 494, 497 (2d Dist.2000). An abuse of discretion

suggests the trial court’s decision is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

         {¶14} In this case, the BZA’s denial of Homan’s application for a

conditional-use permit was the specific administrative action reviewed by the trial

court.

         “‘Zoning ordinances typically provide for two types of uses:

         permitted and conditional. Permitted uses are those allowed as of

         right, provided the landowner meets all other requirements, e.g.,

         building code requirement[s]. Conditional uses * * * are also allowed


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        in the zoning code, but they are uses that may have a significant

        impact and thus require an administrative hearing for approval.’”

Dinardo v. Chester Twp. Bd. of Zoning Appeals, 186 Ohio App.3d 111, 2010-Ohio-

40, ¶ 23 (11th Dist.), quoting Kipp v. Bd. of Zoning Appeals of Stonelick Twp., 12th

Dist. Clermont No. CA2003-10-086, 2004-Ohio-5903, ¶ 10, quoting Stuart Meck &

Kenneth Pearlman, Ohio Planning and Zoning Law, Section 9:11, at 387 (2004 Ed.).

        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. Thus, the legislative body provides

        for their inclusion in a district only upon administrative approval

        granted in accordance with legislatively prescribed standards and

        conditions.

Gerzeny v. Richfield Twp., 62 Ohio St.2d 339, 341 (1980).

           {¶15} A township board of zoning appeals’s authority to grant

conditional-use permits is derived from R.C. 519.14 which provides, in relevant

part:

        The township board of zoning appeals may:

        ***


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       (C) Grant conditional zoning certificates for the use of land, buildings,

       or other structures if such certificates for specific uses are provided

       for in the zoning resolution.

R.C. 519.14(C). “Thus, [R.C. 519.14(C)] does not vest township boards with power

to grant conditional zoning certificates independent of the zoning resolution.”

Gerzeny at 342. “Rather, the board’s power to issue such a certificate is no greater

than that vested in it by the township zoning resolution.” Id.

       {¶16} The property for which Homan seeks a conditional-use permit is

located in the A-2 (Prime Agriculture) District. (See Doc. No. 59). (See also Sept.

19, 2016 Hearing Exs., Appellee’s Ex. C).            Agriculture and Single-Family

Dwellings are the principal permitted uses in the A-2 District. See Code Section

1127.17(A)-(C). The Conditional Uses list for the A-2 District provides as follows:

       A building or premises may be used for the following purposes in the

       A-2: Prime Agriculture District, if a Conditional Use Permit for the

       use has been obtained in conformance with the provisions of Chapter

       1131.

       Principal Uses:

       A.   Airports

       B.   Animal Hospitals and Clinics

       C.   Cemeteries


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       D.   Farm and Heavy Equipment Sales and Service

       E.   Grain Elevators and Feed Mills

       F.   Mineral Extraction

       G.   Mixed Uses

       H.   Oil and Gas Wells

       I.   Public Service Facilities

       J.   Recreation, Commercial

       K.   Recreation, Non-Commercial

       L.   Recreation, Public

       M. Religious Places of Worship

       Accessory Uses:

       N.   Expanded Home Occupations

       O.   Nurseries and Garden Supply Stores

       P.   Private Landing Strips and Heliports

       Q.   Seasonal Storage Facility

Code Section 1127.18(A)-(Q).

       {¶17} Code Chapter 1131 sets forth the procedures that the BZA must follow

and the substantive considerations that it must take into account when reviewing

applications for conditional-use permits. Code Section 1131.02, which sets forth

general standards for all conditional uses, provides, in relevant part:


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       In addition to the specific requirements for conditionally permitted

       uses as specified in this Section, the BZA shall review the particular

       facts and circumstances of each proposed use in terms of the following

       standards and shall find adequate evidence showing that such use at

       the proposed location:

       N.    Is in fact a conditional use as established under the provisions of

       these Regulations and appears on the Conditional Uses list, adopted

       for the zoning district involved[.]

Code Section 1131.02(A). In addition, if the BZA approves an application for a

conditional-use permit, it must “mak[e] an affirmative finding in writing that the

proposed conditional use is to be located in a district wherein such use may be

conditionally permitted * * *.” Code Section 1131.03(A).

       {¶18} The BZA first considered Homan’s application for a conditional-use

permit at a March 7, 2016 hearing. (Mar. 7, 2016 Tr. at 1, 4). At the beginning of

the hearing, the BZA’s secretary stated that “[Homan] * * * requests a conditional

use for the changing of use of a commercial building located at [Kittle Road],

Celina.     The building will be used for manufacturing.”          (Id. at 6).     Gary

Schwieterman (“Schwieterman”), the township zoning inspector, said that Homan’s

property “is zoned A-2. Since [Homan] wishes to use a portion of the property for

manufacturing, a conditional use permit is required.” (Id. at 2, 6-7). Homan himself


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described the use as manufacturing: “What I want to do to the barn is * * * have

machinery, or whatever machinery and manufacturing.” (Id. at 9). Homan further

commented that the barn housed “CNC machines, where [they] machine metal

parts.” (Id. at 10). Homan briefly explained how a CNC machine works: “[A]

CNC machine is a * * * small * * * mill source. Let’s say you put a block of metal

in it, and you can machine, like say you want to machine a pen, or something to this

shape, you can machine that * * *.” (Id. at 11). The characterization of Homan’s

use of the property as manufacturing was not challenged during the hearing.

       {¶19} However, an attorney for an adjacent landowner questioned whether

manufacturing is conditionally permitted in the A-2 District. (Id. at 17). A BZA

member responded: “It’s a conditional use.” (Id.). In support of their position that

manufacturing is a conditional use in the A-2 District, the BZA member said that a

local attorney advised the BZA that it is a conditional use. (Id.). The BZA member

further stated that “recreation and commercial” are listed as conditional uses in the

A-2 District. (Id.). The attorney for the adjacent landowner responded, “It says

recreation, commercial, as in commercial recreation.” (Id. at 17-18). The BZA

member then remarked that they were not “sure either, and that’s why [they] called

[the local attorney]” who assured them that Homan’s manufacturing operation is a

conditional use in the A-2 District. (Id. at 18). Despite the landowner’s attorney’s

misgivings, the BZA proceeded to treat Homan’s use as if it were a conditional use


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in the A-2 District. (See id.). Ultimately, the BZA considered the conditional use

criteria set forth in the Code, determined that Homan’s use did not satisfy three of

the criteria, and denied Homan’s application. (Id. at 57-60, 64). (See Sept. 19, 2016

Hearing Exs., Appellant’s Ex. 1).

       {¶20} Following the trial court’s remand to the BZA, Homan’s application

for a conditional-use permit was considered for a second time at a hearing on

September 19, 2016. (See Sept. 19, 2016 Tr. at 1, 6-8). Homan’s use was again

characterized as manufacturing. Indeed, Homan stated that his son was using the

barn “right now as a machine shop.” (Id. at 16). Homan Jr. remarked that he does

“not actually manufactur[e] firearms. [He] make[s] firearms parts.” (Id. at 39). As

with the March 7, 2016 BZA hearing, no one contested the categorization of

Homan’s use as manufacturing.

       {¶21} However, in contrast to the March 7, 2016 hearing, at least one BZA

member doubted that manufacturing is a conditional use in the A-2 District. Hank

Kaiser (“Kaiser”) stated that “[t]his was presented to the Board as an accessory use

to [Homan’s] nursery, not a manufacturing for kits for guns. I don’t have a problem

with guns at all * * * [b]ut this is a manufacturing operation in A-2. And we can go

through every checklist we have. We’re not able to change zoning at this time.”

(Id. at 25). Later, when reviewing the Code, Kaiser remarked that he was “[s]till

not seeing manufacturing” as a conditional use in the A-2 District. (Id. at 51). (See


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id. at 62). Another BZA member commented that Homan’s use was not “presented

to [the BZA] as a full-blown manufacturing operation.” (Id. at 26). Homan’s

attorney responded to the BZA members’ concerns by arguing that the BZA

indicated at the March 7, 2016 hearing that Homan’s use “is a commercial use, a

commercial use can be used in an A-2” and that he “believe[d] [that Homan’s use]

is * * * a commercial use.” (Id. at 25-26). (See id. at 50-51).

       {¶22} To further support his application, Homan claimed that the BZA

previously granted conditional-use permits for uses similar to his although those

uses also do not appear on the Conditional Uses list for the A-2 District. (See id. at

22-24). (See also id. at 23-24, 35-36, 56). These uses include an “auto collision

repair” and “paint shop,” a woodshop where “[t]hey build cabinets and furniture,”

a salvage yard, a carpentry shop, and “a company called Klosterman Concrete.” (Id.

at 22-24). (See Sept. 19, 2016 Hearing Exs., Appellant’s Exs. 2, 3). Homan

submitted printouts from the websites of two of these businesses. (See Sept. 19,

2016 Hearing Exs., Appellant’s Exs. 2, 3).

       {¶23} Before holding a final vote on Homan’s application, the BZA

considered whether Homan’s use is consistent with Code Section 1131.02(A),

which provides that the BZA must consider whether the use is “in fact a conditional

use as established under the provisions of [the Code] and appears on the Conditional

Uses list, adopted for the zoning district involved.” (Sept. 19, 2016 Tr. at 61-62).


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See Code Section 1131.02(A). Kaiser stated that manufacturing is not among the

listed conditional uses for the A-2 District and “for that reason, it’s a no.” (Sept.

19, 2016 Tr. at 62). Kaiser stressed that “the [Code] specifically states that we don’t

want spot zoning.     This would be spot zoning, giving a conditional use for

manufacturing [in] A-2.” (Id.). (See id. at 67, 80). Homan’s attorney noted that at

the March hearing, one BZA member stated that Homan’s use is a conditional use.

(Id. at 67-68). Homan’s attorney asked: “Am I correct that now the Board is taking

a position that * * * manufacturing is not a conditional use?” (Id. at 68). Kaiser

responded that “[i]t never was.” (Id.). Despite Kaiser’s statement that Homan’s use

is not a conditional use in the A-2 District, the BZA proceeded to examine the

conditional use criteria and checklist. (Id. at 62-67, 70-81). As with the March 7,

2016 hearing, the BZA concluded that Homan’s use failed to satisfy all of the

conditional use criteria. (See id. at 62-67, 70-81). A BZA member then moved to

deny Homan’s application on grounds that “[u]nder 1131.02, item A, [Homan’s use]

does not meet the requirements for an A-2 zoning and the 9/19/2016 conditional use

checklist.” (Id. at 83). The BZA voted unanimously to deny Homan’s application.

(Id. at 83-85).

       {¶24} In its judgment entry affirming the BZA’s decision denying Homan’s

application for a conditional-use permit, the trial court observed that “[f]rom the

testimony at both hearings, the evidence as to the proposed use was uncontroverted.


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The Applicant’s use was a ‘machine shop.’               This fits the definition of

manufacturing.” (Doc. No. 59). The trial court further concluded that “[a]lthough

the zoning officer and [BZA] initially said [Homan’s use] was a conditional use, the

[Code] does not allow manufacturing as a conditional use in an A-2 district.” (Id.).

The trial court stated that “[a] conditional use may only be granted by the [BZA] if

the zoning resolution authorizes it.” (Id.). Therefore, the trial court concluded that

the BZA “ultimately * * * reached a correct determination” by denying Homan’s

application for a conditional-use permit despite having originally done so “for the

wrong reasons.” (Id.).

       {¶25} We conclude that the trial court did not err in its application or

interpretation of the Code and that its decision is supported by the preponderance of

reliable, probative, and substantial evidence as a matter of law. Thus, the trial court

did not abuse its discretion by affirming the BZA’s decision denying Homan’s

application for a conditional-use permit. First, the trial court did not abuse its

discretion by concluding that the preponderance of the evidence supports the BZA’s

conclusion that Homan’s use is “manufacturing” as that term is defined in the Code.

Code Section 1123.02 defines “manufacturing” as “[t]he mechanical, chemical, or

biological transformation or assembly of materials, substances, or component parts

into new products or components, usually for distribution to wholesale markets, or

for interplant transfer to industrial users.” Homan argues, however, that his use is


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not “manufacturing” because the Code’s definition of “manufacturing” “ends with

the language, ‘usually for distribution to wholesale markets, or for interplant transfer

to industrial users.’” (Appellant’s Reply Brief at 1). According to Homan, because

“over ninety percent of what [he] sells is sold directly to consumers, not to wholesale

markets or industrial users,” his use is not manufacturing as the term is used in the

Code. (Id.).

       {¶26} Homan’s argument is based on a flawed construction of the Code’s

definition of “manufacturing.” The definition of “manufacturing” provides that new

products or components resulting from one of the listed processes usually be

distributed to wholesale markets or to industrial users for interplant transfer; it does

not require that such products or components exclusively be distributed to wholesale

markets or to industrial users for interplant transfer. See Code Section 1123.02.

Thus, as long as a “mechanical, chemical, or biological transformation or assembly

of materials, substances, or component parts into new products or components” is

involved, an enterprise is engaging in “manufacturing” within the meaning of the

Code regardless of whether the end product or component is distributed to wholesale

markets, to industrial users for interplant transfer, or directly to consumers.

       {¶27} That Homan’s use involves the “mechanical * * * transformation * *

* of materials [or] substances * * * into new products or components,” such that his

use is manufacturing as that term is defined in the Code, is supported by a


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preponderance of the evidence. Homan stated that Homan Jr. was operating a

“machine shop” in Homan’s barn and that he wanted to have “machinery and

manufacturing” on his property. (Mar. 7, 2016 Tr. at 9); (Sept. 19, 2016 Tr. at 16).

Homan remarked that the barn contains “CNC machines” and that the machines are

used to “machine metal parts.” (Mar. 7, 2016 Tr. at 10). Homan explained that the

CNC machines on his property function by milling metal stock into specific shapes

or designs. (See id. at 11). Moreover, Homan Jr. stated that he “make[s] firearms

parts.” (Sept. 19, 2016 Tr. at 39). Finally, the classification of Homan’s use as

manufacturing was not challenged at either BZA hearing. Thus, the trial court did

not abuse its discretion by concluding that the preponderance of the evidence

supports the BZA’s conclusion that Homan’s use is “manufacturing.”

       {¶28} Likewise, the trial court did not err by concluding that manufacturing

is not a conditional use in the A-2 District. On this point, Homan argues that the

Code is ambiguous as to which uses are conditional uses in the A-2 District.

(Appellant’s Brief at 4). He further argues that, because “[z]oning resolutions * * *

are in derogation of common law and should be construed in favor of a property

owner,” the trial court should have construed the Code’s alleged ambiguities in his

favor by concluding that his use is a conditional use in the A-2 District. (Id.). In

support of his argument, Homan highlights that his “use was found to be a

conditional use at the March 7 Hearing” before the BZA later concluded that his use


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is not a conditional use and that “the [BZA] continually utilized the Conditional Use

Criteria Checklist * * *.” (Id.). Homan also notes that the township zoning

inspector “advised [him] that a conditional use permit was needed.” (Id. at 2).

       {¶29} Homan’s argument is meritless because the Code unambiguously

excludes manufacturing from the Conditional Uses list for the A-2 District. First,

some of the confusion over the status of manufacturing as a conditional use in the

A-2 District appears to stem from a misapplication of the language of the Code by

members of the BZA at the March 7, 2016 hearing. One of the BZA members, after

remarking that Homan’s use “[is] a conditional use,” cited the Code for the

proposition that “recreation and commercial” are conditional uses in the A-2

District. (Mar. 7, 2016 Tr. at 17). However, as noted by the attorney representing

an adjacent landowner, the language cited by the BZA member actually reads

“[R]ecreation, [C]ommercial, as in commercial recreation.” (Emphasis added.) (Id.

at 17-18). “Recreation, Commercial” is a defined term in the Code and means:

       Recreation facilities open to the public, established and operated for a

       profit, such as commercial golf courses, golf driving ranges,

       swimming pools, ice skating rinks, riding stables, boat docks, fishing

       piers, boat launching, and other commercial recreation areas and

       facilities or recreation centers, including commercial swimming




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       pools, boat docks, fishing piers, boat launching, and food concessions

       as an accessory use.

Code Section 1123.02. Clearly, Homan’s use is not a golf course, swimming pool,

boat dock, or any one of the other enumerated examples of commercial recreational

facilities, and it is so dissimilar from those specifically identified examples that it

cannot be reasonably considered a type of commercial recreational facility

embraced by, but not expressly recognized within, the definition of “Recreation,

Commercial.” Thus, the phrase “Recreation, Commercial” cannot be a source of

ambiguity here because the BZA and the trial court were bound to apply the

definition contained in the Code, and this definition is plainly inapplicable to

Homan’s use. See Stewart v. Vivian, 151 Ohio St.3d 574, 2017-Ohio-7526, ¶ 25

(“‘Where a statute defines terms used therein, such definition controls in the

application of the statute * * *.’”), quoting Good Samaritan Hosp. of Dayton v.

Porterfield, 29 Ohio St.2d 25, 29 (1972), citing Terteling Bros., Inc. v. Glander, 151

Ohio St. 236 (1949) and Woman’s Internatl. Bowling Congress, Inc. v. Porterfield,

25 Ohio St.2d 271 (1971).

       {¶30} Furthermore, the Code is not rendered ambiguous simply because the

township zoning inspector and members of the BZA believed Homan’s use to be a

conditional use or because the BZA utilized the conditional use checklist when

considering his application at the March 7 and September 19, 2016 hearings. “An


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ordinance is ambiguous when it is subject to various interpretations. Specifically,

an ambiguity exists if a reasonable person can find different meanings in the

ordinance and if good arguments can be made for either of two contrary positions.”

4522 Kenny Rd., L.L.C. v. Columbus Bd. of Zoning Adjustment, 152 Ohio App.3d

526, 2003-Ohio-1891, ¶ 13 (10th Dist.), citing Cline v. Ohio Bur. of Motor Vehicles,

61 Ohio St.3d 93, 96 (1991). “When an ordinance is unambiguous and conveys a

clear meaning, a court must only read and follow the words of the ordinance.” Id.,

citing Fairborn v. DeDomenico, 114 Ohio App.3d 590, 593 (2d Dist.1996) and State

v. Waddell, 71 Ohio St.3d 630, 631 (1995). Here, the Code sets forth an exhaustive

list of the accepted conditional uses in the A-2 District and manufacturing is not

included among them. Thus, because it is omitted from the Conditional Uses list,

manufacturing is not a conditional use in the A-2 District. See Gerzeny, 62 Ohio

St.2d at 343 (“‘The inclusion of specified uses in each district * * * indicates a

legislative judgment to exclude other uses.’”), quoting Mobil Oil Corp. v. Rocky

River, 38 Ohio St.2d 23, 29 (1974). As discussed above, manufacturing does not

fall within the definition of “Recreation, Commercial,” and it does not fit within the

definitions of any of the other uses that are conditionally permitted in the A-2

District. See Code Section 1127.18(A)-(M). See also Code Section 1123.02. That

multiple people interpreted or applied the Code to conclude that manufacturing is a

conditional use in the A-2 District despite its clear absence from the Conditional


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Uses list for the A-2 District does not mean that there is a good argument that

manufacturing is conditionally permitted or that the Code is ambiguous; rather, it

suggests only that those people interpreted and applied the Code in the same

unreasonable, erroneous manner. Accordingly, by simply following the clear words

of the Code, the trial court did not err by concluding that manufacturing is not

conditionally permitted in the A-2 District.

       {¶31} Finally, because the trial court did not abuse its discretion by

upholding the BZA’s conclusion that Homan’s use is manufacturing and because it

did not err by concluding that manufacturing is not conditionally permitted in the

A-2 District, the trial court did not abuse its discretion by affirming the BZA’s

decision to deny Homan’s application for a conditional-use permit. It is well-

established that “township board[s] of zoning appeals may grant conditional use

zoning permits, but only if such uses are provided for in the township’s zoning

resolution.” (Emphasis sic.) Genovese, 2006-Ohio-1174, at ¶ 10, citing Gerzeny at

344.   Here, the Code does not specifically provide for manufacturing as a

conditional use in the A-2 District. Because the Code does not list manufacturing

as a conditional use in the A-2 District, the BZA did not have the authority to grant

Homan’s application for a conditional-use permit.        See Genovese at ¶ 11-13

(reversing a common pleas court’s affirmance of a zoning board’s grant of a

conditional-use permit to allow camping in a district where camping was not among


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the six specifically listed conditional uses); Collins v. Butler Cty. Bd. of Zoning

Appeals, 12th Dist. Butler No. CA 86-01-001, 1986 WL 13269, *2 (Nov. 24, 1986)

(reversing a common pleas court’s affirmance of a zoning board’s grant of a

conditional-use permit for the operation of a sports park in a district where sports

parks were not specifically designated as conditional uses). See also Hart v.

Somerford Twp. Bd. of Trustees, 12th Dist. Butler No. 2007-05-019, 2008-Ohio-

1793, ¶ 38; Parker v. Swan Creek Twp. Bd. of Zoning Appeals, 6th Dist. Fulton Nos.

F-04-035, F-04-036 and F-04-038, 2006-Ohio-863, ¶ 25, 27; Dayton Inv. Group 6

v. Speedy Muffler King, Inc., 2d Dist. Montgomery No. 10328, 1987 WL 15721, *6

(Aug. 12, 1987); Barrick v. Harter, 5th Dist. Stark No. CA-6858, 1986 WL 238, *2

(June 30, 1986).

       {¶32} In addition, the Code requires that the BZA “find adequate evidence

showing that [a proposed use] * * * [i]s in fact a conditional use as established

under the provisions of [the Code] and appears on the Conditional Uses list, adopted

for the zoning district involved.” (Emphasis added.) Code Section 1131.02(A).

Moreover, in granting an application for a conditional-use permit, the BZA must

“mak[e] an affirmative finding in writing that the proposed conditional use is to be

located in a district wherein such use may be conditionally permitted * * *.”

(Emphasis added.) Code Section 1131.03(A). Thus, the Code, independent of other

sources of law, does not authorize the BZA to grant a conditional-use permit unless


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a proposed conditional use is one of the specified conditional uses listed in the

Conditional Uses list for the applicable zoning district.

       {¶33} Our conclusion is the same irrespective of whether uses similar to

Homan’s use may have been granted conditional-use permits by the BZA in the past

or are currently operating in the A-2 District without conditional-use permits.

“[T]he questionable granting of one conditional zoning certificate cannot be used as

the sole basis for requiring” the grant of another. Chorpenning v. Tallmadge, 9th

Dist. Summit No. C.A. NO. 11153, 1984 WL 4152, *2 (Jan. 25, 1984). Moreover,

there is insufficient evidence in the record demonstrating that the BZA has granted

questionable conditional-use permits in the past or that Homan was actually treated

differently than other landowners in the A-2 District. See Kisil, 12 Ohio St.3d at 33

(concluding that a common pleas court correctly determined that a denial of a

variance was arbitrary and unreasonable, in part, because the record contained

sufficient evidence from which the common pleas court could conclude that the

applicant was treated differently from similarly situated property owners).

       {¶34} For these reasons, we conclude that the trial court did not err in its

application or interpretation of the law and that its decision is supported by the

preponderance of reliable, probative, and substantial evidence as a matter of law.

Therefore, the trial court did not abuse its discretion either by concluding that the




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BZA’s decision denying Homan’s application for a conditional-use permit was

supported by the preponderance of the evidence or by affirming the BZA’s decision.

       {¶35} Homan’s first and second assignments of error are overruled.

       {¶36} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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