[Cite as Kasper Invest. Properties, L.L.C. v. Put-in-Bay Twp. Bd. of Zoning Appeals, 2015-Ohio-4628.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    OTTAWA COUNTY


Kasper Investment Properties, LLC                           Court of Appeals No. OT-14-037

        Appellant                                           Trial Court No. 12CV213

v.

Put-in-Bay Township Board of                                DECISION AND JUDGMENT
Zoning Appeals, et al.

        Appellee                                            Decided: November 6, 2015

                                                  *****

        John A. Coppeler, for appellant.

        Philip J. Truax and Douglas J. Swearingen, Jr., for appellee, Put-in-Bay
        Township Board of Zoning Appeals, et al.

        Terrence L. Seeberger, for appellee, Harold M. Schwarz, III.

                                                  *****

        JENSEN, J.
                                      I. Introduction

       {¶ 1} This administrative appeal arises from a decision by appellee, the Put-in-Bay

Township Board of Zoning Appeals (“BZA”), which denied a conditional use permit to

appellant, Kasper Investment Properties, L.L.C., for the occasional rental of its home.

Bryan Kasper and his father, Gerald Kasper, each own 50% of Kasper Investment

Properties, L.L.C.

       {¶ 2} Because we conclude that the Ottawa County Court of Common Pleas did

not err in finding that the BZA’s decision was supported with a preponderance of

reliable, probative and substantial evidence, we affirm.

                            II. Facts and Procedural History

       {¶ 3} This case concerns appellant’s application for a conditional use permit for

the occasional renting of a residence, located at 1191 Ashburn Avenue, Put-in-Bay, Ohio.

The residence, known as “the shiphouse,” is literally, the bow and wheelhouse portion of

a freighter, that once sailed the Great Lakes. In 1986, it was placed on a lakeside plot

overlooking Lake Erie. Appellant purchased the property in 1999.

       {¶ 4} The shiphouse is located in an “R1” residential district, which prohibits

commercial use of the property. Property owners seeking to rent their homes in an R1

district must first obtain a conditional use permit.

       {¶ 5} The sole means of ingress and egress to appellant’s property is by way of an

easement. The easement is a strip of land that connects appellant’s property to a private




2.
drive. The easement was granted in 1992 by Harold Swartz to Frank and Lydia Sullivan,

who owned the shiphouse prior to appellant. The terms of the easement require the

grantee, and its successors, to maintain it. Since purchasing the shiphouse, appellant

paved the easement and erected a chain link fence, separating the easement from from the

rest of Swartz’ property.

       {¶ 6} In 2009 or 2010, Bryan Kasper began renting the shiphouse without a

permit.   When advised that a permit was required, Kasper submitted an application, and

a hearing on that issue was held before the BZA on July 15, 2010.

       {¶ 7} The BZA’s Resolution and Findings of Fact

       {¶ 8} Nearly two years later, on March 21, 2012, the BZA issued findings of fact,

denying the permit. An earlier, undated version was prepared by the BZA but never

adopted. It was also the subject of an appeal by appellant. (Ottawa Co. Case No. 11-CV-

163F.) The two appeals were consolidated by the lower court, and both findings of fact

are part of the record.

       {¶ 9} In the official finding of fact, dated March 21, 2012, the BZA found that

appellant failed to satisfy nine of the ten prerequisite elements to justify granting a

conditional use permit.

       {¶ 10} The resolution pertaining to conditional use permits is set forth below in

the left column. The BZA’s findings of fact in this case is set forth on the right:




3.
Section 13(IV)(E)(2) of the Put-In-    The BZA’s March 21, 2012 Findings of
Bay Township Zoning Resolution         Fact as to Appellant’s Application for a
provides that “approval of a           Conditional Use Permit:
conditional use may be granted if
the following [10] conditions are
met * * * .”

1. The location, size and character    “The proposed use of the property would
will be in harmony with the            not be in harmony with the appropriate and
appropriate and orderly development    orderly development, and use of the
of the surrounding neighborhood        surrounding neighborhood, and the
and applicable regulations of the      applicable regulations of the zoning District
Zoning District in which it is to be   as its previous use for this purpose,
located.                               undertaken without appropriate permit, has
                                       caused a nuisance to the surrounding
                                       neighborhood.” (Emphasis added.)

2. The proposed development is in      Access to [appellant’s] property requires
accord with the overall development    crossing an easement over neighboring
plans of the area.                     properties which is objectionable by the
                                       neighboring property owners. Given the
                                       unique ingress and egress issues associated
                                       with the [appellant’s] property, the
                                       proposed use would not be in accordance
                                       with the overall development plans of the
                                       area with specific reference to a continued
                                       history of this Board not granting
                                       conditional use permits that requires the
                                       use of an easement granted between
                                       particular property owners for such use.

3. The proposed development will       The proposed use will not be in keeping
be in keeping with the existing land   with the existing land use, character and
use character and physical             physical development potential of the area
development potential of the area.     as no renting is currently allowed on said
                                       property, and thus such use is divergent
                                       from the existing land use and character. *
                                       **




4.
4. The necessity or desirability of      Appellant “failed to prove the necessity or
the proposed use to the                  desirability of the proposed use to the
neighborhood or community has            neighborhood or community” in that the
been proven.                             neighbors have “expressed a deep desire
                                         not to have this property rented.”

5. If permitted, the use will be of a    If the use was permitted, “as has already
nature that will make vehicular and      been seen, there would be increased traffic
pedestrian traffic no more hazardous     to an R-1 Residential District which is not
than is normal for the District          the desire of [the BZA].”
involved, taking into consideration
vehicular turning movements in
relation to routes of traffic flow,
proximity and relationship to
intersections, adequacy of sight
distances, location and access of off-
street parking provisions for
pedestrian traffic, with particular
attention to minimizing child-
vehicle contacts in residential
districts.

6. The use will be designed as to its    The use “has created and will continue to
location, size, intensity, site layout   create, a nuisance in the forms of trespass,
and periods of operation to eliminate    noise and other common problems
any possible nuisances emanating         associated with the rental of residential
therefrom which might be injurious       properties to adjoining land owners,
to the occupants or damaging to          especially when such renters would be
their property of any other nearby       required to cross the property of adjoining
permitted uses, whether by reason of     land owners in order to access [appellant’s]
dust, noise, fumes, vibration, smoke,    property for such use.”
or lights.

7. The use will be such that the         “[L]and use by renters has had the effect of
proposed location and height of          interfering with the use of adjacent land as
buildings or structures and the          stated [by the neighbors] who have already
location, nature and height of walls,    had issues with renters of the [appellant’s]
fences and landscaping will not          property.”
interfere with or discourage the
appropriate development and use of
adjacent land and building or
unreasonably affect their value.


5.
8. The use will relate harmoniously             The proposed use “will not relate
with the physical and economic                  harmoniously with the physical and
aspects of the adjacent land uses               economical aspects of the adjacent land
regarding prevailing shopping                   uses * * * as this residential property would
habits, convenience of access by                require access over an easement which has
prospective patrons, continuity of              already resulted in disharmony in the
development, and need for particular            affected area.”
services and facilities in specific
areas of the Township.

9. The use is so designed, located              “[R]ental of [appellant’s] property has
and proposed to be operated that the            already caused a nuisance, increased traffic
public health, safety and welfare               flow, danger and other problems associated
will be protected.                              therewith to the adjoining land owners.”

10. The use will not cause                      “The Board further finds that [appellant’s]
substantial injury to the value of              proposed use will have no substantial effect
other property in the neighborhood              to the value of other property in the
in which it is to be located.                   neighborhood in which it is located.”

       {¶ 11} The BZA also noted that “it does not have a history of granting conditional

use permits when easements are involved, and that such an effect greatly bears upon the

decision of this Board.” It added that when appellant rented the property, the police

were called due to a noise complaint and that “there has been increased trash and

resulting trespasses onto adjoining neighbors [sic] properties which further weighs

against granting such conditional use permit in this instance.”

       {¶ 12} Appellant appealed to the court of common pleas on April 19, 2012, and a

hearing was held before a magistrate. Appellant’s neighbor, Harold M. Schwartz III,

intervened in the case and testified at the hearing.




6.
                     IV. The Magistrate’s Decision and Adoption
                         thereof by the Common Pleas Court

      {¶ 13} Following a two day hearing, the magistrate affirmed the BZA’s denial of

the permit. Appellant timely objected to the decision. By judgment entry dated

September 10, 2014, the common pleas court found, “[u]pon careful and independent

examination and analysis of the Magistrate’s Decision, [the BZA’s decision] * * * was

supported by a preponderance of substantial, reliable and probative evidence.”

Accordingly, it adopted the magistrate’s decision.

      {¶ 14} Appellant appealed to this court on October 9, 2014, raising two

assignments of error:

                               V. Assignments of Error

             A. The Common Pleas Court abused its discretion in overruling

      objections to the Magistrate’s Decision affirming the decision of the Put-in-

      Bay Township Board of Zoning Appeals to deny appellant’s application for

      a conditional use permit and in affirming the decision of the BZA.

             B. The Common Pleas Court erred as a matter of law in affirming

      the decision of the Board of Zoning Appeals which improperly based its

      decision to deny appellant’s application for a conditional use permit on

      matters beyond the scope of those specifically set forth in the zoning

      resolution.




7.
                                 VI. Standard of Review

A. Administrative Appeals

       {¶ 15} R.C. Chapter 2506 governs appeals to common pleas courts from final

orders of administrative agencies, including municipal boards of zoning appeals. R.C.

2506.04 governs the standard of review to be applied by courts of common pleas. It

provides that “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.”

       {¶ 16} A judgment by a common pleas court may be appealed by any party to the

court of appeals “on questions of law.” R.C. 2506.04.

       {¶ 17} In 2014, the Ohio Supreme Court revisited the standard of review applied

in cases involving administrative appeals. Cleveland Clinic Found. v. Cleveland Bd. of

Zoning Appeals, 141 Ohio St. 3d 318, 2014-Ohio-4809, 23 N.E.3d 1161. In that case, the

court reasserted the principle that the standard of review applied by courts of common

pleas is very different than courts of appeals and that the standard is “designed to strongly

favor affirmance” by the latter. Id. at ¶ 30. It explained,

              Thus, R.C. Chapter 2506 confers on the common pleas courts the

       power to examine the whole record, make factual and legal determinations,

       and reverse the board's decision if it is not supported by a preponderance of

       substantial, reliable, and probative evidence. Although a hearing before a




8.
       common pleas court pursuant to R.C. 2506.01 is not a de novo review, “it

       often in fact resembles a de novo proceeding.” Cincinnati Bell v. Glendale,

       42 Ohio St.2d 368, 370, 328 N.E.2d 808 (1975).

              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 lower court's decision. * * * 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. (Citations

       omitted.) Cleveland Clinic Found. at ¶ 24-25.

B. Adoption of a Magistrate’s Decision.

       {¶ 18} Because this case involved the lower court’s adoption of a

magistrate’s decision, pursuant to Civ.R. 53, we must also discuss the appropriate

standard of review under that rule.

       {¶ 19} Civ.R. 53(D)(4)(d) provides that “[i]f one or more objections to a

magistrate's decision are timely filed, the [common pleas] court shall rule on those

objections. In ruling on objections, the court shall undertake an independent review as to

the objected matters to ascertain that the magistrate has properly determined the factual

issues and appropriately applied the law.”

       {¶ 20} A party alleging error by the lower court under Civ.R. 53 has an affirmative

duty to demonstrate that the trial court failed to conduct an independent review of the




9.
magistrate's findings. In re Taylor G., 6th Dist Lucas No. 04CA15, 2006-Ohio-1992, ¶

20-21, citing Mahlerwein v. Mahlerwein, 160 Ohio App.3d 564, 2005–Ohio–1835, 828

N.E.2d 153, ¶ 47 (4th Dist.). An affirmative duty requires more than a mere inference, it

requires appellant to provide the reviewing court with facts to rebut our general

presumption. In re. Taylor G. at ¶ 21.

                                    VII. Analysis

       {¶ 21} In its first assignment of error, appellant complains, “the Magistrate’s

Decision simply referred to the BZA findings of ‘increased traffic, noise and trash.’” Not

so. The magistrate specifically found that evidence of increased traffic, noise and trash

was presented “both at the BZA hearing and the court hearing.” (Emphasis added.)

       {¶ 22} Indeed, the magistrate presided over a two day hearing during which two of

appellant’s neighbors testified. One neighbor complained of “seriously overflowing

trash,” loud and obscene language, and trespassing. The neighbor testified that the

incidents occurred during the time that appellant was renting the shiphouse (without a

permit) and that he believed the renters were responsible for the incidents.

       {¶ 23} From another neighbor, the magistrate heard testimony of a group of “at

least a dozen, possibly more, 20-something, who were apparently renting.” In other

words, evidence was presented to the magistrate of increased traffic, noise and trash as a

result of appellant’s rental of the premises.




10.
       {¶ 24} Appellant counters that the evidence - that renters were responsible for the

alleged incidents – was insufficient. Appellant further stresses that Bryan Kramer

purchased two large containers to resolve the trash issue.

       {¶ 25} Appellant is asking this court to weigh the evidence. Our role, however, is

limited to reviewing the lower court decision on questions of law, not to weigh the

evidence. That we might have arrived at a different conclusion than the BZA or the trial

court “is immaterial.” (Citations omitted.) Henley v. Youngstown Bd. of Zoning Appeals,

90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000). Absent legal error, this court must not

disturb the judgment of the trial court.

       {¶ 26} Second, appellant argues that the BZA’s earlier, unofficial findings of fact

“erroneously emphasized” that granting the permit on a private easement would create an

added financial burden to the adjacent property owners. Appellant states that it was

contractually required to maintain the easement and therefore the neighbors would not

bear any increased expenses.

       {¶ 27} We find this argument irrelevant. Appellant concedes that the proposed

findings were never adopted. Further, that particular proposed finding, regarding “added

financial burden,” was ultimately removed from the official findings of fact. A fair

reading of its removal is that the BZA agreed with appellant, i.e. that granting a

conditional use permit would not, in fact, create a financial burden for the neighbors.

       {¶ 28} Finally, appellant claims that the lower court ignored the fact that the

property to the east of appellant’s, the “Arth property,” was used “for weekly rentals for



11.
the whole summer for more than five years.” Bryan Kramer testified that he assumes the

owners were granted a conditional use permit to do so, but no other evidence was

presented to support or negate that issue.

       {¶ 29} The record does establish, however, that the two properties are different in

key respects. For example, whereas the Arth property is a 1500 square foot home, the

shiphouse is 7000 square feet, allowing itself to be rented by many more people at one

time. Moreover, the Arth property is accessible from a public paved road, whereas the

shiphouse is accessible only from a private road, and then only via an easement. Finally,

unlike in the instant case, there was no evidence put forth that rental of the Arth property

generated complaints of traffic, noise or trash.

       {¶ 30} Because the properties are dissimilar, appellee was not “bound by

precedent to grant the conditional use in this case.” Cmty. Concerned Citizens, Inc. v.

Union Twp. Bd. of Zoning Appeals, 66 Ohio St.3d 452, 456-57, 613 N.E.2d 580 (1993)

(BZA’s grant of conditional use permit to one property owner and denial to another not

unreasonable absent evidence that “the subject property and the area surrounding it are

similar in any material way to the circumstances under which conditional uses have been

previously granted.”). Therefore, under these facts, it was not unreasonable, as a matter

of law, for the BZA to deny appellant a conditional use permit, even assuming that it

granted one to the owners of the Arth property.




12.
       {¶ 31} In sum, we cannot say that the lower court erred in concluding that the

BZA’s findings were supported by a preponderance of reliable, probative, and substantial

evidence. Appellant's first assignment of error is not well-taken.

       {¶ 32} In its second assignment of error, appellant argues that the BZA “went well

beyond consideration of the enumerated factors which the township’s zoning resolution

requires it to analyze.”

       {¶ 33} First, appellant complains that the BZA impermissibly added the words

“and use” after “orderly development” to the first criteria set forth in the resolution.

Appellant fails, however, to present any argument in support of its legal conclusion, as

required by App.R. 16(A)(7) (“The appellant shall include in its brief * * * [a]n

argument containing the contentions of the appellant with respect to each assignment of

error presented for review and the reasons in support of the contentions, with citations to

the authorities, statutes, and parts of the record on which appellant relies.) Accordingly,

we decline to address this argument.

       {¶ 34} Next, appellant argues that it was error for the BZA to ignore the rental of

the Arth property which we addressed in appellant’s first assignment of error.

       {¶ 35} Finally, appellant argues that the BZA placed improper emphasis on the

easement. Appellant argues that the “there is nothing in the zoning resolution which

establishes as a standard that a conditional use permit must be denied when an easement

for access to the applicant’s property is involved.”




13.
       {¶ 36} The weight accorded to the easement by the BZA is irrelevant. As

discussed, the lower court’s hearing on this matter is akin to a de novo proceeding. In

other words, the court was not obliged to accept the impact, if any, of the easement viz a

vis the application. Indeed, the magistrate accorded the easement no weight. Instead, the

decision was based entirely on evidence of “increased traffic, noise and trash,” which we

have already sustained.

       {¶ 37} For the record, however, we note that appellant points to no authority for

the proposition that it would be improper to consider the easement. Although the

presence (or absence) of an easement may not be a specific factor, we think the language

of the eighth criterion, for example, is broad enough to include consideration of the

easement. Again, that factor requires that the proposed use “will relate harmoniously

with the physical * * * aspects of the adjacent land uses regarding * * * continuity of

development * * *.” We see no error in the BZA’s conclusion that the proposed use “will

not relate harmoniously with the physical and economical aspects of the adjacent land

uses * * * as this residential property would require access over an easement which has

already resulted in disharmony in the affected area.”

       {¶ 38} Finally, we note that this court has previously sustained the BZA’s denial

of a permit with regard to the shiphouse under similar, but not identical circumstances.

Sullivan v. Put-in-Bay Township Zoning Board of Appeals, 6th Dist. Ottawa No. OT-94-

048, 1995 WL 413155 (Jul. 14, 1995). At issue in Sullivan was the previous owners’




14.
application for a conditional use permit to operate the property as a bed and breakfast.

That case required interpretation of the same ten criteria, plus an additional regulation

specific to operating a bed and breakfast. In sustaining the denial of the permit, we

considered the fact that access to the property necessitated traversing upon an easement.

              The whole record reveals that all of the adjoining property * * * is

       residential, that the only access to appellee's property is by means of an

       easement over private property, that numerous persons opposed the

       issuance of the conditional use permit and that when appellee operated a

       bed and breakfast without obtaining a permit the noise, dust and traffic

       increased. Therefore, the Board's decision was supported by substantial,

       reliable and probative evidence. Accordingly, the common pleas court was

       required to affirm that decision and erred, as a matter of law, in substituting

       its judgment for that of the Board. (Footnote omitted.) Id. at *4.

       {¶ 39} For all of the above reasons, appellant’s second assignment of error is not

well-taken.

       {¶ 40} Finally, we find that appellant has put forth no evidence, and does not

argue, that the trial court erred under Civ.R. 53 in adopting the magistrate’s decision.

“As an appellate court, we generally presume the regularity in the proceedings below,

and thus, we presume that the trial court properly conducted an independent review of the

magistrate's findings.” In re Taylor G., 6th Dist Lucas No. 04CA15, 2006-Ohio-1992, ¶




15.
20-21. Absent evidence to affirmatively demonstrate that the trial court failed to conduct

an independent review of the magistrate's findings, we also sustain the judgment under

Civ.R. 53.

                                    VIII. Conclusion

       {¶ 41} For the foregoing reasons, the judgment of the Ottawa County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

                                                                      Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Stephen A. Yarbrough, P.J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE



           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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