[Cite as Omnireal, Inc. v. Meyers Lake Village Council, 2013-Ohio-2222.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



OMNIREAL, INC.                                    :            JUDGES:
                                                  :            Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                       :            Hon. Sheila G. Farmer, J.
                                                  :            Hon. John W. Wise, J.
-vs-                                              :
                                                  :
MEYERS LAKE VILLAGE COUNCIL                       :            Case No. 2012CA00163
                                                  :
        Defendant-Appellee                        :            OPINION




CHARACTER OF PROCEEDING:                                       Appeal from the Court of Common
                                                               Pleas, Case No. 2012CV01077



JUDGMENT:                                                      Affirmed




DATE OF JUDGMENT:                                              May 28, 2013




APPEARANCES:

For Plaintiff-Appellant                                        For Defendant-Appellee

CRAIG T. CONLEY                                                PAUL J. PUSATERI
604 Huntington Plaza                                           THOMAS R. HIMMELSPACH
220 Market Avenue South                                        4684 Douglas Circle, NW
Canton, OH 44702                                               P.O. Box 35459
                                                               Canton, OH 44735-5459
Stark County, Case No. 2012CA00163                                                     2

Farmer, J.

         {¶1}   On July 7, 2011, the Zoning Administrator for the Village of Meyers Lake,

Marshall Bleckman, issued a violation/stop order to appellant, Omnireal, Inc., for

violating a village ordinance regarding a non-conforming use of real property. Appellant

was using his property to sell used vehicles which was not a permitted use.

         {¶2}   Appellant appealed to the Board of Zoning Appeals which denied the

appeal.     Appellant then appealed to appellee, Meyers Lake Village Council, which

denied the appeal.

         {¶3}   On April 5, 2012, appellant filed an appeal with the Court of Common

Pleas.    On June 29, 2012, appellant filed a motion to strike the affidavit of Craig

Campbell. By judgment entry filed August 29, 2012, the trial court denied the motion to

strike the affidavit and affirmed appellee's decision.

         {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

         {¶5}   "THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION

TO STRIKE THE 'AFFIDAVIT' OF CRAIG L. CAMPBELL."

                                             II

         {¶6}   "THE TRIAL COURT ERRED IN AFFIRMING THE ADMINISTRATIVE

DECISION BEFORE IT."

                                             III

         {¶7}   "THE TRIAL COURT ERRED IN FINDING THE CHALLENGED SECTION

OF THE VILLAGE'S ZONING ORDINANCE TO BE CONSTITUTIONAL."
Stark County, Case No. 2012CA00163                                                        3


                                              I

      {¶8}      Appellant claims the trial court erred in denying its motion to strike the

"affidavit" of Craig Campbell as the affidavit was not sworn before a person authorized

to administer an oath, was not offered during the hearing of the Board of Zoning

Appeals, and was not part of the record transmitted by appellee. We disagree.

      {¶9}      Pursuant to Evid.R. 104(A), the initial determination of admissibility is to

be determined by the trial court. The admission or exclusion of evidence lies in the trial

court's sound discretion. State v. Sage, 31 Ohio St.3d 173 (1987). In order to find an

abuse of that discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

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

      {¶10} The Campbell affidavit is attached to appellee's June 20, 2012 brief to the

trial court as Exhibit No. 3. Mr. Campbell leased the subject property from appellant

from June 2009 to May 2010. He operated Campbell Marine, Truck and Auto and

conducted engine repairs. At no time did he sell or display vehicles, trucks or boats on

the property.

      {¶11} In his affidavit, Mr. Campbell averred, "I make this Affidavit on the basis of

personal knowledge and am competent to testify concerning the matters set forth

herein," and the affidavit is acknowledged and signed by a Notary Public stating:



      I hereby certify that on this 29th day of February 2012, before me, the

      undersigned Notary Public of the State as aforesaid, personally appeared

      Craig L. Campbell who acknowledged that he is the same person who
Stark County, Case No. 2012CA00163                                                    4


       executed the above and forgoing instrument for the purposes therein

       contained.

       Rebecca I. Hall
       Notary Public


       {¶12} The affidavit meets the authentication requirements of Evid.R. 901(A) as

being given by one with knowledge. The issue raised by appellant is whether it was in

fact given under oath. Although specific mention of being under oath is not included in

the notary portion, we cannot say the trial court's decision was an abuse of discretion.

By styling the statement as an "Affidavit" implicates it was made under oath or

affirmation.

       {¶13} Pursuant to R.C. 2506.07(A)(2), additional evidence may be presented to

the trial court:



               (A) The hearing of an appeal taken under section 2506.05 of the

       Revised Code shall proceed as in the trial of a civil action, but the court

       shall be confined to the transcript as filed under section 2506.06 of the

       Revised Code unless it appears on the face of that transcript or by

       affidavit filed by the appellant that one or more of the following applies:

               (2) The appellant was not permitted to appear and be heard in

       person, or by the appellant's attorney, in opposition to the final order,

       adjudication, or decision appealed from and to do any of the following:

               (a) Present the appellant's position, arguments, and contentions;

               (b) Offer and examine witnesses and present evidence in support;
Stark County, Case No. 2012CA00163                                                         5


                 (c) Cross-examine witnesses purporting to refute the appellant's

        position, arguments, and contentions;

                 (d) Offer evidence to refute evidence and testimony offered in

        opposition to the appellant's position, arguments, and contentions;

                 (e) Proffer any evidence offered pursuant to division (A)(2)(d) of this

        section into the record if the admission of it is denied by the officer or body

        appealed from.



        {¶14} The affidavit was presented to appellee, but was not transmitted with the

record. T. at 4. We note the affidavit was cumulative evidence to that of the Zoning

Administrator, Marshall Bleckman. T. at 5, 10-11.

        {¶15} Upon review, we find the trial court did not err in admitting the Campbell

affidavit.

        {¶16} Assignment of Error I is denied.

                                                 II

        {¶17} Appellant claims the trial court erred in affirming appellee's decision as the

record established there was a previous legal non-conforming use on the property and it

had the right to the continued use. We disagree.

        {¶18} R.C. 2506.04 governs appeals from administrative agencies and states

the following:



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

        unconstitutional,     illegal,   arbitrary,   capricious,   unreasonable,    or
Stark County, Case No. 2012CA00163                                                   6


       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 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.



       {¶19} In Henley v. Youngstown Board of Zoning Appeals, 90 Ohio St.3d 142,

147, 2000-Ohio-493, the Supreme Court of Ohio discussed the difference between the

standards of review to be applied by the trial court and the court of appeals:



              Construing the language of R.C. 2506.04, we have distinguished

       the standard of review to be applied by common pleas courts and courts

       of appeals in R.C. Chapter 2506 administrative appeals. The common

       pleas court considers the "whole record," including any new or additional

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

       administrative order is unconstitutional, illegal, arbitrary, capricious,

       unreasonable, or unsupported by the preponderance of substantial,

       reliable, and probative evidence.***
Stark County, Case No. 2012CA00163                                                   7


             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 added.)***.

      "This statute grants a more limited power to the court of appeals to review

      the judgment of the common pleas court only on 'questions of law,' which

      does not include the same extensive power to weigh 'the preponderance

      of substantial, reliable and probative evidence,' as is granted to the

      common pleas court."*** "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, or this court, might have arrived at a different

      conclusion than the administrative agency is immaterial. Appellate courts

      must not substitute their judgment for those of an administrative agency or

      a trial court absent the approved criteria for doing so."***



      {¶20} In reviewing the trial court's decision, this court must apply the abuse of

discretion standard. Kisil v. Sandusky, 12 Ohio St.3d 30 (1984). In order to find an

abuse of discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

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

      {¶21} The gravamen of the argument herein is whether there was a cessation of

the non-conforming use for the requisite period of time. Appellee argues the right to a

non-conforming use is governed by its ordinances, specifically, Section 1.102(3)(c)

which states the following:
Stark County, Case No. 2012CA00163                                                   8


             Where, at the effective date of adoption of this Ordinance, lawful

      use of land exists that is made no longer permissible under the terms of

      this Ordinance as enacted, such use may be continued, so long as it

      remains otherwise lawful, subject to the following provisions:

             c. If such nonconforming use of land ceases for any reason for a

      period of more than sixty (60) days, any subsequent use of such land shall

      conform to the regulations specified by this Ordinance for the district in

      which such land is located.



      {¶22} The evidence presented to appellee via Mr. Bleckman was that to his

personal knowledge, between June 2009 through May 2010, the property in question

(3920 12th Street, NW) was operated by Campbell Marine, Truck and Auto and was a

repair shop. T. at 4-6. Mr. Campbell never sold vehicles on the property. T. at 9-10.

The Campbell affidavit re-affirms this testimony.

      {¶23} Appellant presented evidence via James Marino that his business, 12th

Street Auto Sales, "operated simultaneously at the same location" as Mr. Campbell's.

T. at 40. In his affidavit, attached to the hearing transcript as Exhibit 4, Mr. Marino

averred that he operated 12th Street Auto Sales on the property between "at least 2008

to date." He also stated the following:



             3. Both before and during most of the aforesaid time period, I, doing

      business as 12th St. Auto Sales, operated an automobile sales business

      on the Premises through and including September, 2011; and, during my
Stark County, Case No. 2012CA00163                                                        9


       operation of that business and continuing thereafter following my

       business's vacation of the Premises, Belden Village Auto Sales, Inc.,

       doing business as Motorcars of Canton, has and continues to operate to

       date an automobile sales business on the Premises.



       {¶24} Prior to Campbell Marine, Truck and Auto, the property was used by

Jeffrey's Marine. An adjacent resident, Judy Cooper, testified that "Jeffrey's Marine was

only used for an occasional boat out front. It was never used to display boats or cars at

any time." T.. at 29. She testified 12th Street Auto "sold a car there once in a while,

periodically.***And this property right here, 3920, the Craig Auto, Campbell Auto Supply

was there for a year between Jeffrey's Marine and Motorcars of Canton." T. at 30-31.

       {¶25} Clearly there are two different versions of whether or not there was a

continued use of the property for vehicle/boat sales. We note the weight to be given to

the evidence and the credibility of the witnesses are issues for the trier of fact. State v.

Jamison, 49 Ohio St.3d 182 (1990). The trier of fact "has the best opportunity to view

the demeanor, attitude, and credibility of each witness, something that does not

translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-

Ohio-260.

       {¶26} Upon review, we concur with the trial court that there was sufficient

evidence to substantiate appellee's decision of a cessation of vehicle/boat sales for at

least one year by Campbell Marine, Truck and Auto.

       {¶27} Assignment of Error II is denied.
Stark County, Case No. 2012CA00163                                                   10


                                           III

      {¶28} Appellant     claims   appellee's    nonconforming    use    ordinance   is

unconstitutional because it places more restrictions than the general statutory law.

Appellant argues Section 1.102(3)(c) is unconstitutional because it limits the time of

cessation of a nonconforming use to sixty days as opposed to R.C. 713.15 which sets

the time period at a minimum of six months.

      {¶29} Because we have found the evidence in this case demonstrates cessation

of the nonconforming use for at least one year, we decline to address appellant's

constitutional argument. Keller v. Flaherty, 74 Ohio App.3d 788 (10th Dist.1991).

      {¶30} Assignment of Error III is denied.

      {¶31} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




SGF/sg 502
