[Cite as Lifton v. Ashtabula Cty. Bd. of Health, 2016-Ohio-1299.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


JUDITH LIFTON,                                           :          OPINION

                 Appellant,                              :
                                                                    CASE NO. 2015-A-0025
        - vs -                                           :

ASHTABULA COUNTY BOARD OF                                :
HEALTH,
                                                         :
                 Appellee.
                                                         :


Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014 CV 25.

Judgment: Reversed and vacated.


Alexandria R. Heinonen, Smith & Miller, 36 West Jefferson Street, Jefferson, OH
44047 (Appellant).

Nicholas A. Iarocci, Ashtabula County Prosecutor, and Catherine R. Colgan, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (Appellee).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Judith Lifton, appeals from the judgment of the Ashtabula

County Court of Common Pleas, affirming the decision of appellee, Ashtabula County

Board of Health (“the Board”), denying appellant’s request for a variance to install an

off-site septic system on her property, located in North Kingsville, Ashtabula County,

Ohio.      At issue is whether the Board’s General Sanitation Requirements (“the
Requirements”), governing Household Sewage Disposal Systems, as written, apply to

appellant’s property and, if so, whether the Board erred in denying appellant’s request

for a variance. Because we hold the requirements do not apply to appellant’s property,

we need not reach the second issue.         The matter is accordingly reversed and the

Board’s decision is hereby vacated.

        {¶2}     In 1981, appellant purchased two vacant lots on Overlook Drive, in North

Kingsville, Ashtabula County, Ohio. She purchased the property at issue, designated

Lot 141, and an additional lot in 1983. A small residence, referred to as “the brown

house,” is located on Lot 141.       Each of these four parcels are contiguous to one

another.       Later, in 1988, appellant purchased an additional lot located at 7274

Pasadena; this lot included a residence referred to as “the gray house.” Approximately

two-thirds of the north border of the Pasadena property adjoins the South boundaries of

two of the lots on Overlook. All lots are between 30 and 35 feet wide and between 96

and 120 feet long.

        {¶3}     When the gray house was purchased, it was in significant disrepair.

Appellant and her partner renovated the home, which involved installing a septic

system. Given the small size of the lot, appellant sought a variance, which the Board

granted in 1991. After the renovations, appellant moved into the gray house, where she

still resides.

        {¶4}     The Brown House had electricity and an outhouse. Appellant, however,

wished to upgrade the residence; to this end, she temporarily tied the plumbing and

sewer into the line servicing the Gray House. The Board, after receiving a complaint

from a third party, inspected Lot 141 and the Brown House and found the property in




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violation of several of the Requirements, one of which was appellant’s sewer connection

to the system servicing the Gray House. On November 13, 2013, the Board filed a

complaint relating to the violations. Appellant subsequently sought a variance, pursuant

to the Requirements, to install an additional off-lot septic system to service the Brown

House.

      {¶5}   Appellant’s request for a variance was based upon two alternative

arguments. First, she sought a variance that would allow her to maintain the sewage

connection tying the Brown House to the Gray House’s off-lot septic system. Secondly,

she proposed combining three of the five lots to increase the square footage of the

property on which the Brown House was located.        In doing so, the property would

increase to 11,000 square feet.

      {¶6}   The Requirements, adopted in 2004, provide that lots created after

November 1, 2004, must be at least two acres (approximately 43,500 square feet) in

order to accommodate a septic system. The Requirements further mandate that lots

created between 1978 and November 1, 2004, be at least 40,000 square feet. For

purposes of the Requirements, “[t]he date a lot created shall be the date the deed or

plat creating said lot is recorded with the Ashtabula County Recorder’s Office.” The

Requirements do not specify any minimal size requirement to accommodate a

household sewage disposal system for a lot created prior to 1978. It is undisputed that

the deed for Lot 141 was recorded, and the lot was therefore created in 1918.

      {¶7}   After considering the merits of the forgoing arguments, the Board issued a

ruling denying appellant’s variance requests. With respect to the first argument,

although evidence was presented that appellant would suffer economic harm in the form




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of lost potential rent income, the Board concluded that appellant failed to establish that

she would suffer an unusual and unnecessary hardship if the variance was not granted.

Thus, the Board denied the variance based upon appellant’s first request.

      {¶8}    Regarding the second argument, the Board noted that, even if appellant

combined the three lots, that combination would result in an approximately one-quarter-

acre lot. The Board consequently determined the combined lot would fall far short of

the minimum lot-size requirements set forth in the Requirements.              Under the

circumstances, the Board concluded the lot would be too small to effectively support a

home septic system.      Appellant filed an appeal of the Board’s decision with the

Ashtabula County Court of Common Pleas.

      {¶9}   At the hearing, appellant argued the minimum lot-size requirements for

septic systems set forth in the Requirements do not apply to Lot 141 because the lot

was created prior to 1978.         Alternatively, appellant argued that, even if the

Requirements applied to Lot 141, a variance was warranted because application of the

lot-size requirements would cause her unusual and unnecessary hardship; to wit, she

would be unable to utilize the Brown House as a residence, which would reduce Lot

141’s market value and eliminate potential rental income. Appellant produced expert

testimony from George Hess, a civil engineer, concluding an off-lot discharge septic

system could be effectively utilized on Lot 141 without any public or environmental risk

or hazard.   Appellant also called real-estate appraiser Dennis Huey, who testified,

without a serviceable septic system, the market value of Lot 141 would decrease by

$48,000.




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       {¶10} In response to appellant’s arguments, the Board, via Ashtabula County

Health Commissioner, Raymond Saporito, argued it enacted the minimum-size lot

requirements to protect the public health; Mr. Saporito noted numerous sewage

nuisances in Ashtabula County over the years that resulted from failed septic systems

on smaller lots. Mr. Saporito conceded that the Requirements did not specifically apply

to lots created prior to 1978; he still maintained, paradoxically, that such lots “would still

be covered” under the Requirements for the Board to determine whether a system could

be put on the lot.    In any event, Mr. Saporito testified that granting the requested

variance would defeat the spirit and intent of the Requirements and be contrary to the

public interest.

       {¶11} After the hearing, the trial court affirmed the Board’s conclusions.

Specifically, it determined that, “[a]lthough the appellant’s lots, including the two with

residential structures, were created      prior to the adoption of the minimum lot-size

requirements of the Health Department regulations, the Court finds that they are subject

to the health department regulations governing septic systems.”           The court further

determined the difficulties appellant faces were not special and the hardships she will

endure were not unusual. It reasoned that “[e]very lot owner in this development who

does not already have a septic system in place had the same limitation on developing

their property and maximizing its potential value.” Thus, the trial court concluded the

Board’s decision was not unconstitutional, illegal, arbitrary, or capricious.

       {¶12} Appellant now appeals to this court, assigning four errors for this court’s

review. Her first assignment of error provides:




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       {¶13} “The trial court erred by finding that the Ashtabula County Board of Health

Regulations applied to Lifton’s property.”

       {¶14} The standard of review for the court of common pleas of an administrative

appeal is recognized in R.C. 119.12(M), which states in part:

       {¶15} The court may affirm the order of the agency complained of in the
             appeal if it finds, upon consideration of the entire record and such
             additional evidence as the court has admitted, that the order is
             supported by reliable, probative, and substantial evidence and is in
             accordance with law. In the absence of such a finding, it may
             reverse, vacate, or modify the order or make such other ruling as is
             supported by reliable, probative, and substantial evidence and is in
             accordance with law.

       {¶16} “The standard of review to be applied by the court of appeals in an R.C.

2506.04 appeal is ‘more limited in scope.’” (Emphasis sic.) Henley v. City of

Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147 (2000), quoting Kisil v.

Sandusky, 12 Ohio St.3d 30, 34 (1984). “The standard of review for appellate courts 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.”

Ashland v. Gene’s Citgo, Inc., 10th Dist. Franklin No. 99AP-938, 2000 Ohio App. LEXIS

1710 (Apr. 20, 2000). “It is incumbent on the trial court to examine the evidence. Such

is not the charge of the appellate court. The appellate court is to determine only if the

trial court has abused its discretion.” Board of Educ. Of Rossford Exempted Village

School Dist. v. State Bd. of Edn., 63 Ohio St.3d 705, 707 (1992). The phrase “abuse of

discretion” is one of art, denoting a judgment exercised by a court, which does not

comport with reason or the record. Gaul v. Gaul, 11th Dist. Ashtabula No. 2009-A-

0011, 2010-Ohio-2156, ¶24.




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      {¶17} Section 6.0 of the Requirements, effective November 1, 2004, governs

“Household Sewage Disposal Systems.” It provides:

      {¶18} 6.1 For purposes of Section 6 of this resolution: The date a lot is
            created shall be the date the deed or plat creating said lot is
            recorded with the Ashtabula County Recorder’s Office.

      {¶19} 6.2 For lots created after the effective date of this resolution: No
            person shall install a home sewage disposal system for a single
            family dwelling on any lot created after the effective date of this
            resolution unless said lot is at least two (2) acres with suitable area
            and has at least 200 feet of road frontage. The 200 feet road
            frontage on a dedicated, accepted and publicly maintained roadway
            is not required when a lot contains soils which are rated slight or
            moderate by the United States Department of Agriculture soil
            survey for Ashtabula County and a totally on-lot system can be
            installed. Lot areas and frontages for two (2) and three (3) family
            dwellings shall be two (2) or three (3) times as large respectively as
            the area and frontage requirements under this subsection 6.2 for a
            single family dwelling.

      {¶20} 6.3 For lots created between 1978 and the effective date of this
            resolution: No person shall install a home sewage disposal system
            for a single family dwelling on any lot created between 1978 and
            the effective date of this resolution unless said lot is at least 40,000
            square feet with suitable area and has at least 200 feet of road
            frontage. The 200 feet road frontage on a dedicated, accepted and
            publicly maintained roadway is not required when a lot contains
            soils which are rated slight or moderate by the United States
            Department of Agriculture soil survey for Ashtabula County and a
            totally on-lot system can be installed. Two (2) or three (3) family
            dwellings shall not be permitted on said lot unless the lot meets the
            size requirements of subsection 6.2 of this resolution for two (2) or
            three (3) family dwellings.

      {¶21} Under her first assignment of error, appellant argues the plain language of

Section 6.0 does not contemplate regulating lots created prior to 1978. Because Lot

141 was created in 1918, appellant contends it is outside the scope of Section 6.0.

Thus, she maintains neither the Board nor the trial court was required to reach the issue




                                            7
of whether she was entitled to a variance. Appellant therefore concludes the trial court

erred in affirming the Board’s decision.

        {¶22} Alternatively, the Board argues appellant misinterprets Section 6.0.     It

asserts that even though Lot 141 was created in 1918, the so-called Brown House was

not a pre-existing home, but merely an outbuilding. The Board notes that appellant,

without a permit, installed plumbing and tied the Brown House into a sewage line

servicing the Gray House. The Board asserts, only after appellant made these illicit

upgrades, sometime in 1998, did the Brown House become a “dwelling” or “residence.”

Because such illicit upgrades were made after the Requirements were enacted, Lot 141

is subject to Section 6.0. We shall first address the Board’s contention.

        {¶23} The existence of a functional dwelling, residence, or home on a created lot

does not trigger the minimal lot-size requirements set forth under Section 6.0. Rather,

the minimal lot-size requirements are applicable based upon a respective lot’s creation

date.    The Ashtabula County General Health District (“the District”) could have

conditioned the application of Section 6.0 upon the date or time at which a building or

structure located on a lot becomes a functional dwelling. It did not and, as a result,

appellee’s argument is a misconstruction of the plain language of the regulation.

        {¶24} Section 6.0 unequivocally omits all lots created prior to 1978 from its

regulatory field.    It is undisputed Lot 141 was created in 1918. And Health

Commissioner Saporito appeared to acknowledge that lots created prior to 1978 were

outside the ambit of Section 6.0 during the hearing on appellant’s administrative appeal

to the trial court. Somehow, however, he testified lots created prior to 1978 were still

subject to “review” vis-à-vis installation of household sewage disposal systems, even




                                            8
though he conceded Section 6.0, governing household sewage disposal systems, did

not cover such lots. Such “review,” however, is not provided for under Section 6.0 and,

as a result, cannot form the basis for regulating household sewage disposal systems on

lots created prior to 1978.

       {¶25} At oral argument, however, counsel for the Board asserted the

Requirements include a “catch all” provision, which allegedly placed lots created prior to

1978 within the regulatory scheme that existed between 1972 and 1978. This position,

however, was neither advanced in the trial court nor argued in appellee’s brief.

Moreover, our review of the Requirements fails to disclose any such section or

provision. Not only do the Requirements fail to include a “catch all” provision, Section

11.2 specifically states:     “The adoption of this resolution shall repeal the 1972

Resolution titled ‘Regulations Sewage Disposal Systems[’] and the January 3, 1978 and

October 12, 1983 Resolutions concerning household sewage regulations.” Rather than

allowing for a “catch all” that might operate to regulate plots created prior to 1978, the

2004 enactment abolished all prior regulations via its express repeal provision. We

therefore conclude appellant’s property is outside the scope of the Requirements

currently in effect.

       {¶26} We acknowledge the Requirements were enacted with the laudatory intent

of protecting public health and safety. And, it is possible that the District, in enacting the

Requirements, mistakenly believed it had some implicit authority to regulate the

minimum lot size for household sewage disposal for lots created before 1978, even

though it did not specifically include such authority in Section 6.0. It is also possible,

however, given the large number of relatively small lots in Ashtabula County created




                                              9
prior to 1978, that the District intended, by the omission, to permit such lots to engage in

an otherwise “nonconforming use” and regulate them on a case-by-case basis using its

authority to prosecute nuisances when necessary. We have no way of knowing why

lots created prior to 1978 were not included within the scope of Section 6.0. What is

clear, however, is the regulation unambiguously places such lots outside its regulatory

scope; in effect, there are no minimal size requirements for the installation of household

sewage disposal systems for lots created prior to 1978.

       {¶27} Statutes or regulations which restrict the use of private property will be

strictly construed and their scope cannot be extended to include limitations not clearly

proscribed. State ex rel. Spiccia, v. Abate, 2 Ohio St.2d 129 (1965). An appellate court

cannot interpret a statute or regulation, unless the statute is ambiguous. Wetland Pres.

Ltd v. Corlett, 11th Dist. Ashtabula No. 2011-A-0034, 2012-Ohio-3884, ¶34.              “An

ambiguity exists if the language is susceptible to more than one reasonable

interpretation.” In re Cvanciger, 11th Dist. Lake No. 2014-L-095, 2015-Ohio-4318, ¶20.

       {¶28} As previously indicated, Section 6.0 of the Requirements contains no

ambiguities.   We cannot, therefore, interpret the regulation and attempt to divine

whether Section 6.0, as written, is consistent with the purposes and policies of the

overall regulatory scheme.     This is especially so when, as here, we must strictly

construe the scope of the regulation. To accept appellee’s construction would not only

be inconsistent with the definite language of the regulation, it would fundamentally limit

appellant’s use of Lot 141.       Such an outcome is contrary to public policy and

established case law.     We therefore hold, pursuant to the plain language of the

regulation, Section 6.0 does not apply to Lot 141 because the lot was created prior to




                                            10
1978. The judgment affirming the Board’s decision is reversed and vacated. Appellant

is therefore permitted to move forward and install a lawful, Ohio EPA approved off-lot

household sewage treatment system, subject to the Board’s oversight and authority to

declare a dangerous condition a nuisance, pursuant to Section 2.0 of the Requirements.

        {¶29} Appellant’s first assignment of error has merit.

        {¶30} Appellant’s remaining assignments of error provide:

        {¶31} “[2.] The trial court erred by finding that there was a preponderance of

reliable, probative and substantial evidence in the record to support the decision of the

Ashtabula County Board of Health denying appellant’s request for a variance.

        {¶32} “[3.] The trial court’s enforcement of the Board of Health lot size

requirements and upholding the Board’s denial of Lifton’s variance request has resulted

in an unlawful taking of Lifton’s property.

        {¶33} “[4.] The Ashtabula County Board of Health failed to provide Lifton with

equal protection of the law.”

        {¶34} Because our resolution of appellant’s first assignment of error is

dispositive of this appeal, appellant’s remaining assignments of error are overruled as

moot.

        {¶35} For the reasons discussed above, the Ashtabula County Court of

Common Pleas judgment is reversed and vacated.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




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