[Cite as Kearns v. Monroe Twp. Bd. of Zoning Appeals, 196 Ohio App.3d 127, 2011-Ohio-1138.]



                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                    PICKAWAY COUNTY


Kearns,                                               : Case No. 10CA32

                Appellant,                            :

v.                                                    : DECISION AND
                                                        JUDGMENT ENTRY

Monroe Township Board of Zoning Appeals, :

                Appellee.                            : RELEASED 03/09/11


______________________________________________________________________
                            APPEARANCES:

Joseph Kearns, pro se.

Judy C. Wolford, Pickaway County Prosecuting Attorney, and Jayme Hartley Fountain,
Assistant Prosecuting Attorney, for appellee.
______________________________________________________________________


        HARSHA, Presiding Judge.

        {¶1}    After the Monroe Township Zoning Board of Appeals revoked a

conditional-use permit it had previously issued to Joseph Kearns to operate a bed and

breakfast, he appealed to the Pickaway County Court of Common Pleas. The court

upheld the zoning board’s revocation, and Kearns now appeals that judgment.

        {¶2}    Kearns raises three assignments of error in his pro se brief. Kearns’s

second assignment of error asserts that the zoning board of appeals did not have

jurisdiction to revoke the conditional-use permit it had previously issued.                    R.C.

519.14(D) expressly limits the board’s authority to revoke conditional-use permits to

situations involving certificates for the extraction of minerals.                  Because Kearns’s
Pickaway App. No. 10CA32                                                                 2


certificate authorized a bed and breakfast, the zoning board of appeals had no authority

to revoke it. The township remedy for a violation of conditions of the permit lies in an

enforcement action in court under R.C. 519.24 and/or a criminal proceeding under R.C.

519.23.      Therefore, we reverse the trial court’s judgment without addressing the

remaining two assignments of error, which are moot.

                                I. Summary of the Facts

      {¶3}     In 2005, Kearns completed construction of a bed and breakfast at a

single-family residence located on Deer Creek Road in Monroe Township, Pickaway

County, Ohio. Apparently, Kearns received a negative response from neighbors about

the bed and breakfast. In 2006, the township zoning inspector wrote Kearns to inform

him that the bed and breakfast was located in an area zoned “Farm Residence” and that

he was operating it in violation of a Monroe Township zoning resolution. Nevertheless,

Kearns continued to operate the bed and breakfast.

      {¶4}     In November 2007, the board held a meeting to discuss the bed and

breakfast.    Kearns appeared with counsel and requested a conditional-use permit,

which the board granted.

      {¶5}     Then in November 2009, the board received a letter from Kearns’s

neighbor, complaining that Kearns was operating his bed and breakfast in violation of

the use permit. The board scheduled a public meeting in January 2010 to discuss the

bed and breakfast and consider revoking the conditional-use permit. It mailed notice to

Kearns by certified mail and published notice of the meeting in the classified section of a

local newspaper. Additionally, the board secretary stated in an affidavit that he called

Kearns prior to the meeting, but Kearns was unavailable. The board secretary indicated
Pickaway App. No. 10CA32                                                                    3


that he left Kearns a message requesting a call back, but Kearns did not respond. The

board held the public meeting as scheduled, and Kearns did not appear. The board

then voted unanimously to revoke the permit after finding that Kearns had failed to

comply with it.

       {¶6}       Kearns then filed a pro se appeal with the trial court, which found that the

board had provided Kearns with untimely notice under R.C. 519.15. But the court found

that Kearns had failed to establish prejudice from this technical infraction, because he

had actual notice of the hearing and failed to attend or reschedule it. The court also

rejected his arguments that the board lacked jurisdiction to revoke the conditional-use

permit and that the evidence failed to support the board’s decision to do so. Kearns

then filed his notice of appeal with this court.

                                        II. Assignments of Error

       {¶7}     Kearns submits three assignments of error:

                1. The trial court erred in finding inadequate notice of Appellant and public

       to be harmless.


                2. The trial court erred in finding the Defendant has authority to revoke

       Appellant’s Conditional Use Certificate.


                3. The trial court erred as a matter of law and fact in finding for the

       Defendant, as the decision of the trial court is not supported by a preponderance

       of     reliable,   probative   and   substantial   evidence,   making   the   decision

       unreasonable, arbitrary and unconscionable, and the trial court applied the wrong
Pickaway App. No. 10CA32                                                                4


      standard in determining the conditions of the Conditional Use Certificate were not

      met.

      {¶8}   Because the second assignment of error is dispositive of this appeal, we

limit our review to it. See App.R. 12(A)(1)(c), dealing with moot issues.

             III. Standard of Review of Appeals of Administrative Decisions

      {¶9}   R.C. 2506.04 governs the standard of review employed by the common

pleas court and this court in an appeal from an administrative decision. A trial court has

extensive power to review the entire record to determine whether the board’s decision is

unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the

evidence. An appellate court’s review is more limited – we simply review the trial court’s

judgment for errors of law and abuses of discretion. Henley v. Youngstown Bd. of

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

Sandusky (1984), 12 Ohio St.3d 30, 34, 465 N.E.2d 848, fn. 4; Lorain City School Dist.

Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 260-261, 533

N.E.2d 264. Kearns’s contention that the zoning board of appeals lacked jurisdiction to

revoke the permit presents us with a question of law affording him a de novo review.


 IV. Did the Zoning Board of Appeals have the Authority to Revoke the Conditional Use
                                       Permit?

                                        A. R.C. 519.14

      {¶10} Kearns contends that the board lacked the statutory authority to revoke

the conditional-use permit. Kearns claims that the proper method to revoke the permit

is an “enforcement activity properly administered by a Township Zoning Inspector (R.C.

519.16).” In response, the board contends that R.C. 519.14 authorizes it to revoke
Pickaway App. No. 10CA32                                                                   5


conditional-use permits that it issues and that the Monroe Township Zoning Code 9.07

specifically provides a procedure for this activity.

       {¶11} Under R.C. 519.14, the board has the power to:

              (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. If the board considers conditional zoning certificates for activities that

       are permitted and regulated under Chapter 1514. of the Revised Code or

       activities that are related to making finished aggregate products, the board shall

       proceed in accordance with section 519.141 of the Revised Code.

              (D) Revoke an authorized variance or conditional zoning certificate

       granted for the extraction of minerals, if any condition of the variance or

       certificate is violated.

(Emphasis added.)

       {¶12} The cardinal rule of statutory construction is that courts apply

unambiguous statutes as they are written – they do not construe them. Hubbell v.

Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, at ¶ 11. Here, the plain

language of the statute makes it clear that an administrative revocation applies only to

conditional permits involving the extraction of minerals.       As our colleagues in the

Seventh District observed when applying this statute, R.C. 519.14 mentions revocation

powers in one instance – R.C. 519.14(D) – and that revocation power is limited to

conditional-use permits issued for the extraction of minerals. By its express language,

the General Assembly made it clear that a board of zoning appeals has “no revocation

authority other than that specifically stated.” Carrocce v. Boardman Twp. Bd. of Zoning
Pickaway App. No. 10CA32                                                              6

Appeals (Aug. 25, 1993), Mahoning App. No. 92 C.A. 38, 1993 WL 327678, at *4; see

also Millcreek Twp. Bd. of Trustees v. Davisson, Union App. Nos. 14-06-49 and 14-06-

50, 2007-Ohio-5491, at ¶35.

      {¶13} Consequently, we agree that the board lacked jurisdiction to revoke the

conditional-use permit for the bed and breakfast. It may seem odd that the General

Assembly would restrict a board’s ability to ensure compliance with the explicit

restrictions found in the permit.   However, R.C. Chapter 519 provides enforcement

mechanisms to achieve the same ends, e.g., R.C. 519.24 authorizes civil actions by

township officials and others to enjoin or abate violations of zoning regulations. And

R.C. 519.23 criminalizes the use of a building or land in violation of a township zoning

resolution. In any event, we are restricted to applying the unambiguous terms of R.C.

519.14(D). Accordingly, we conclude that the board had no statutory authority to revoke

the permit.

        B. Section 9.07 of the Rules of the Township Zoning Board of Appeals

      {¶14} The board argues that it has the authority to revoke a conditional-use

permit under its own rules. It cites Section 9.07 of the Rules of the Monroe Township

Board of Zoning Appeals, which states:


      Expiration and Revocation of Zoning Certificate Issued Under Conditional Use

      Provisions


              The approval of the zoning certificate issued in accordance with Section

      9.06 shall become null and void if such use is not carried out within one (1) year

      after date of approval. The Board may revoke the zoning certificate upon written
Pickaway App. No. 10CA32                                                                  7


         evidence by any resident or official of the Township of violation of the Zoning

         Resolution and/or written terms and conditions upon which approval was based.


         {¶15} As our colleagues in the Second District noted, a township has no inherent

zoning power. See Baker v. Mad River Twp. Bd. of Zoning Appeals, Champaign App.

No. 2008 CA 16, 2009-Ohio-3121, at ¶ 21, citing Meerland Dairy, L.L.C. v. Ross Twp.,

Greene App. No. 07CA83, 2008-Ohio-2243, at ¶ 7, in turn citing Yorkavitz v. Columbia

Twp. Bd. of Trustees (1957), 166 Ohio St. 349, 142 N.E.2d 655. The power a township

has to regulate the use of land through zoning regulations is limited to the authority

expressly conferred by statute. Id., citing Meerland at ¶7, in turn citing Bainbridge Twp.

Bd. of Trustees v. Funtine (1990), 55 Ohio St.3d 106, 563 N.E.2d 717.

         {¶16} Regardless of whether the board followed its own rules, a board of zoning

appeals has no authority to create rules that add substantive powers to its statutory

authority. This rule effectively creates authority where none exists by statute, i.e., it is

ultra vires. Therefore, the board could not revoke the permit by application of its own

rules.

                                      V. Conclusion

         {¶17} The board lacked authority to revoke the conditional-use permit it issued

Kearns to operate his bed and breakfast.         We therefore sustain Kearns’s second

assignment of error, which renders his first and third assignments moot, and remand the

matter to the trial court to enter judgment in Kearns’s favor.

                                                                       Judgment reversed

                                                                     and cause remanded.
         ABELE and MCFARLAND, JJ. concur.
