[Cite as Simmons v. Fulk, 2014-Ohio-4905.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

JEFFERY SIMMONS, ET AL.,            :              JUDGES:
                                    :
                                    :              Hon. W. Scott Gwin, P.J.
     Appellants                     :              Hon. John W. Wise, J.
                                    :              Hon. Craig R. Baldwin, J.
-vs-                                :
                                    :
DENNIS D. FULK, P.S. PLAIN TOWNSHIP :              Case No. 2014CA000041
ZONING INSPECTOR, ET AL.,
                                    :
     Appellees                      :              OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court
                                                   of Common Pleas, Case No.
                                                   2013CV02545


JUDGMENT:                                          Affirmed


DATE OF JUDGMENT:                                  November 3, 2014



APPEARANCES:

For Appellants                                     For Appellees
                                                   Dennis D. Fulk, P.S. Plain Township
JOHN L. JUERGENSON                                 Zoning Inspector and the Plain
John L. Juergensen Co., LPA                        Township Board of Zoning Appeals
Washington Square Office Park
6545 Market Avenue North                           JAMES F. MATHEWS
North Canton, OH 44721                             Baker, Dublikar, Beck, Wiley & Mathews
                                                   400 South Main Street
                                                   North Canton, OH 44720

                                                   For Easton Village Company, LLC

                                                   JOHN J. RAMBACHER
                                                   Winkhart, Rambacher & Griffin
                                                   825 South Main Street
Stark County, Case No. 2014CA00041                                                        2


                                                     North Canton, OH 44720

Baldwin, J.

       {¶1}   Appellants Jeffrey Simmons, Nancy Locke, Dean Mohler, Cynthia Mohler,

Robert Ernst, Trustee, and Sharon Ernst, Trustee appeal a decision of the Stark County

Common Pleas Court which affirmed a decision of appellee Plain Township Board of

Zoning Appeals (hereinafter “BZA”).       Dennis D. Fulk, P.S. Plain Township Zoning

Inspector and Easton Village Company, LLC are also appellees.

                             STATEMENT OF FACTS AND CASE

       {¶2}   On August 5, 2013, James J. Ptacek of Larsen Architects requested two

conditional use permits with respect to property located at 6300-6306, Market Avenue

North, in Plain Township.     The requests were submitted to appellee BZA.          Larsen

sought to build a McDonald’s restaurant with an accompanying drive-thru on property

owned by appellee Easton, located on the corner of Market Avenue North and Grove

Street, near the intersection of Maple Street/Easton Avenue and Market Avenue North,

and across the street from Walsh College. The lot is zoned B-1 Neighborhood Business

District, and it abuts an R-1 Single Family Residential District. Appellants are residential

home owners on Grove Street.

       {¶3}   The property in question has a previously existing small strip plaza which

includes several businesses:     Samantha’s Restaurant, Italo’s Pizza, Ferrell Pools &

Spas, Edward Jones, and the Bead Boutique. The strip plaza has been located on the

property for over 30 years. An abandoned bank building which had a drive-thru is also

located on the property.     The bank building and part of the strip mall would be

demolished to construct the McDonald’s. Construction of the McDonald’s requires the
Stark County, Case No. 2014CA00041                                                        3


granting of a conditional use permit for the property to be designated a “planned

commercial complex,” as well as a conditional use permit for operation of a drive-thru.

      {¶4}   The BZA held a hearing on September 4, 2013. Following the hearing,

the conditional use permits were approved. Appellants filed an appeal to the Stark

County Common Pleas Court.        The court found that the decision of the BZA was

supported by the testimony and by BZA’s interpretation of the Plain Township Zoning

Resolution and affirmed.

      {¶5}   Appellants assign three errors to this Court on appeal from the decision of

the Common Pleas Court:

      {¶6}   “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION WHEN IT FAILED TO FIND THAT THE PLAIN TOWNSHIP BOARD

OF ZONING APPEALS VIOLATED RESOLUTION §1102(103) WHICH PROHIBITS

DIRECT ACCESS THROUGH A RESIDENTIAL NEIGHBORHOOD.

      {¶7}   “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION WHEN IT FOUND THAT A PLANNED COMMERCIAL COMPLEX

AND A DRIVE THRU ARE PERMITTED ON THE SAME PARCEL.

      {¶8}   “III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION WHEN IT FOUND THAT THE IMPROPER COMMENTS BY THE

ZONING SECRETARY AND ZONING INSPECTOR DID NOT WARRANT A NEW

HEARING.”

                                               I.
Stark County, Case No. 2014CA00041                                                       4


      {¶9}   In their first assignment of error, appellants argue that the court abused its

discretion in failing to find that the conditional use permit violates Zoning Resolution

§1102(103), which prohibits direct access through a residential neighborhood.

      {¶10} R.C. 2506.04 sets forth the applicable standard of review for a court of

common pleas in an administrative appeal:

                    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 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.

      {¶11} In reviewing an appeal of an administrative decision, a court of common

pleas begins with the presumption that the board's determination is valid, and the

appealing party bears the burden of showing otherwise. See C. Miller Chevrolet v.

Willoughby Hills, 38 Ohio St.2d 298, 302, 313 N.E.2d 400 (1974). The court considers
Stark County, Case No. 2014CA00041                                                    5


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. Henley v. Youngstown Bd. of Zoning

Appeals, 90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000).

      {¶12} As an appellate court, our standard of review to be applied in an R.C.

2506.04 appeal is more limited in scope. Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 12

OBR 26, 465 N.E.2d 848 (1984). “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.”

Id. at f.n. 4. The standard of review for appellate courts in a 2506 zoning appeal is

whether the common pleas court abused its discretion in finding that the administrative

order was or was not unconstitutional, illegal, arbitrary, capricious, unreasonable or

unsupported by reliable, probative and substantial evidence. Weber v. Troy Twp. Bd. of

Zoning Appeals, 5th Dist. Delaware No. 07 CAH 04 0017, 2008-Ohio-1163, ¶ 13.

      {¶13} The Plain Township Zoning Resolution sets forth the requirements of

conditional use permits in Section 1102. Subsection 103 states, “All points of vehicular

entrance or exit shall be located no closer than two hundred (200) feet from the

intersection of two (2) major thoroughfares, or not closer than one hundred (100) feet

from the intersection of a major thoroughfare and a local or collector thoroughfare.

Direct access through a residential neighborhood shall be prohibited.”
Stark County, Case No. 2014CA00041                                                      6


       {¶14} The plot is currently zoned B-1 Neighborhood Business District. Grove

Street runs along the southern end of the plot, and the property adjacent to the plot on

the south side of Grove Street is zoned residential. The evidence presented to the BZA

demonstrated that the plot currently includes a strip plaza and an abandoned bank

building, with three existing curb cuts providing access to the plot: one main entrance

and exit drive to Market Avenue, and two smaller drives accessing Grove Street. The

second entrance on Grove Street is designed to be a restricted right turn, permitting

vehicles exiting the lot to only turn right toward Market Avenue. While the configuration

of the drives allows traffic to drive temporarily on Grove Street abutting a residential

neighborhood on one side of the street and a business property on the other side of the

street, it does not allow direct access through the residential neighborhood.         The

evidence presented at the hearing reflects that the architects of the new McDonald’s

intend to maintain the character of the two pre-existing drives located on Grove Street,

and are not seeking to alter the drives to allow direct access through the residential

neighborhood.

       {¶15} The trial court did not abuse its discretion in affirming the decision of the

BZA that the conditional use does not violate §1102(103). The first assignment of error

is overruled.

                                               II.

       {¶16} In their second assignment of error, appellants argue that the court erred

in affirming the decision of the BZA because a planned commercial complex and a

restaurant with a drive-thru are not permitted on the same parcel.
Stark County, Case No. 2014CA00041                                                         7


      {¶17} The zoning resolution defines a planned commercial complex as “a

planned coordinated development of a tract of land with two (2) or more separate

buildings or structures planned, designed and/or constructed for one or more permitted

uses in the business district.” A planned commercial complex is a conditional use in the

B-1 Neighborhood Business District.

      {¶18} The existing plot of land meets this definition; the conditional use permit

seeks only to replace one of the buildings with a new building. However, appellants

argue that because a restaurant with a drive-thru is not a “permitted use” in the

business district, construction of the McDonald’s on a lot with other businesses does not

meet the definition of a planned commercial complex.

      {¶19} Section 712.2(A)(3) of the zoning resolution states that permitted uses in a

B-1 Neighborhood Business District include:           “Restaurants, not including drive-thru,

drive-in, drive-up facilities, or carry-out services, except as permitted as a conditional

use.” Without the drive-thru, the McDonald’s restaurant is a permitted use. When the

BZA approved the conditional use permit for a drive-thru, the entire structure became a

permitted use as defined by Section 712.2(A)(3), and therefore became a permitted use

under the definition of a planned commercial complex.

      {¶20} The second assignment of error is overruled.

                                               III.

      {¶21} In their final assignment of error, appellants argue that their due process

rights were violated when improper comments were made by zoning secretary Metzger

and zoning inspector Fulk after all public input was closed. Appellants argue that they

are entitled to a new hearing.
Stark County, Case No. 2014CA00041                                                     8


      {¶22} After public comment was closed, Ms. Metzger and Mr. Fulk made brief

comments out of turn concerning their opinions on the conditional use permits. The

comments were recognized as improper, and after some brief confusion by Ms. Metzger

as to why she was not permitted to speak when she was the BZA secretary, she

refrained from speaking further. There is nothing in the record to suggest that the brief

comments made out of turn and recognized as improper at the hearing affected the

decision of the BZA.

      {¶23} The third assignment of error is overruled.

      {¶24} The judgment of the Stark County Common Pleas Court is affirmed.

Costs are assessed to appellants.

By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.
