[Cite as Alabaugh v. Eagle, 2009-Ohio-2308.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY


ORVILLE ALABAUGH, et al.,

   PLAINTIFFS-APPELLANTS,                            CASE NO. 13-09-01

  v.

CURTIS EAGLE, CITY OF TIFFIN
ZONING INSPECTOR, ET AL.,

   DEFENDANTS-APPELLEES,

  and                                                    OPINION

WAYNE L. MOORE,

   INTERVENOR-APPELLEE.



                 Appeal from Seneca County Common Pleas Court
                          Trial Court No. 2008-CV-0093

                                     Judgment Affirmed

                             Date of Decision: May 18, 2009



APPEARANCES:

        Charles R. Hall, Jr. for Appellants

        Arthur F. Graham for Appellee, Wayne Moore

        Brent T. Howard for Appellees, Curtis Eagle, City of Tiffin Zoning
        Inspector, Bob Williams, Bob Yager and Will Heddles
Case No. 13-09-01




WILLAMOWSKI, J.

       {¶1} The plaintiffs-appellants, Orville Alabaugh and Debbra Alabaugh,

appeal the judgment of the Seneca County Common Pleas Court sustaining the

decision of the Zoning Board of Appeals for Tiffin, Ohio (“ZBA”) to deny a

zoning permit for change of use. On appeal, the Alabaughs contend that the trial

court abused its discretion. For the reasons set forth herein, the judgment of the

trial court is affirmed.

       {¶2} The Alabaughs are trustees of the Orville Alabaugh and Debbra

Alabaugh Trust, which owns real property located in Tiffin, Ohio, and which is

zoned R-4 under the Tiffin City Code. The residence is a 21-room mansion that

was built approximately 105 years ago. In 1991, a prior owner received a variance

to operate the residence as a bed and breakfast.     The Alabaughs opened the

residence as a tea room in 2004 and advertised it as the “Roselawn Manor Tea

Room.”

       {¶3} On October 9, 2007, the Alabaughs applied for a permit to change

the use of their residence to a “country club.” Curtis Eagle, the zoning inspector

for the city of Tiffin, denied the permit after he determined that the Alabaughs’

proposed use for the land did not meet the definition of a “country club.” The

ZBA denied the Alabaughs’ appeal, and they filed a joint complaint and notice of

appeal in the common pleas court. The appeal and the action for damages were


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Case No. 13-09-01


later bifurcated, and on December 16, 2008, the trial court found the Alabaughs’

appeal not well taken and dismissed it with prejudice. The Alabaughs appeal the

judgment of the trial court, asserting one assignment of error for our review.

                                       Assignment of Error

        The trial court abused its discretion by not granting the
        [a]ppellants the permitted use of their property under the City
        of Tiffin Zoning Code.

        {¶4} To support their assignment of error, the Alabaughs contend that the

operation of a “country club” is a permitted use of property located in an R-4 area,

and contrary to the zoning inspector’s and ZBA’s determinations, the operation of

a golf course is not required for a business to be defined as a country club. The

Alabaughs also allege that other property owners who have changed the use of

their R-4 properties were not required to apply for permits.

        {¶5} The defendants-appellees, Curtis Eagle, the Zoning Board of

Appeals for Tiffin, Ohio, Bob Williams, Bob Yager, and Will Heddles,1 contend

that the city code clearly provides for a permit in order to change the use of zoned

property. The appellees also contend that the Alabaughs did not meet their burden

in proving selective enforcement of the city code. The appellees claim that the

trial court’s decision was supported by a preponderance of reliable, probative, and

substantial evidence. Finally, the appellees allege that the Alabaughs have been


1
 Curtis Eagle was named a defendant in his capacity as the Zoning Inspector for the city of Tiffin, and Bob
Williams, Bob Yager, and Will Heddles were each named defendants in their capacities as members of the
ZBA.


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Case No. 13-09-01


permanently enjoined from operating a tea room, and as a result, the doctrine of

res judicata bars the current litigation. Also filing a brief with this court is the

intervenor-appellee, Wayne Moore, who raised arguments similar to those made

by the defendants-appellees.

      {¶6} The issues presented by this case are whether the Tiffin City Code

required the Alabaughs to obtain a permit before they changed the use of their

zoned property and whether the proposed use satisfied the definition of a “country

club.” The Supreme Court of Ohio has clarified the appropriate standards of

review for zoning appeals as follows:

      [t]he 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. See Smith v. Granville Twp. Bd. of Trustees
      (1998), 81 Ohio St.3d 608, 612, 693 N.E.2d 219, 223, citing
      Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d
      202, 206-207, 12 O.O.3d 198, 201-202, 389 N.E.2d 1113, 1116-
      1117.

      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.) Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, 12 OBR
      26, 30, 465 N.E.2d 848, 852. “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 fn. 4. “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


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Case No. 13-09-01


      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.”
      Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd.
      (1988), 40 Ohio St.3d 257, 261, 533 N.E.2d 264, 267.

Henley v. Youngstown Bd. of Zoning Appeals (2000), 90 Ohio St.3d 142, 147, 735

N.E.2d 433. In essence, the appellate court:

      must affirm the decision of the trial court unless it finds, as a
      matter of law, that the decision is not supported by a
      preponderance of substantial, reliable, and probative evidence.
      This is tantamount to an abuse of discretion standard; therefore,
      an appellate court can only reverse the trial court's
      determination upon finding that the decision is unreasonable,
      arbitrary, or unconscionable.

In re Appeal of Am. Outdoor Advertising, LLC, 3d Dist. No. 14-02-27, 2003-Ohio-

1820, citing Kisil, at 34; Trent v. German Twp. Bd. of Zoning Appeals (2001), 144

Ohio App.3d 7, 21, 759 N.E.2d 421.

      {¶7} Admittedly, a country club is a permitted use of property zoned R-4,

such as the Alabaughs’ property. Appellees’ Brief in Opp. of Appeal, Jun. 27,

2008, at Ex. E, 1165.02(n). However, the Alabaughs were still required to obtain

a permit prior to changing the use of their property. Id. at 1145.02 (“nor shall any

building, structure, or land be established or changed in use without a Zoning

Permit issued by the Zoning Inspector.”). The Alabaughs’ predecessor had been

granted a variance to use the property as a rooming house or bed and breakfast.

The Alabaughs operated their property as a private residence and opened the tea

room in 2004. Id. at Ex. A. On their application for the permit, the Alabaughs


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Case No. 13-09-01


wrote in “country club and/or tea room” on the blank line for the “project

description.” Notice of Filing Original Transcript, Apr. 23, 2008, at Application

for Permit. In her handwritten statement, Debbra stated, “As an in-town country

club, a use PERMITTED by code, we would operate essentially as we have for the

past 3 years as a tea room – i.e., serving the community luncheon teas and tea

brunches, high teas, victorian teas, bridal teas, and host various clubs, meetings,

anniversary celebrations, birthdays, baby showers, etc. including religious services

(baptisms, etc.).” Id. at 6.

       {¶8} Debbra insisted that a “tea room is not a restaurant per se. Has no

menu, no regular hours. Restricted # of people.” Id. at 10. However, newspaper

advertisements reveal a more extensive menu at the Alabaughs’ property. One

advertisement shows the menu for Wednesday, June 27 at 6:00 p.m. as a meatloaf

dinner including “old fashioned comfort food like Mom used to make! Salad,

meatloaf, potatoes and green beans.” Id. The menu for Sunday, July 15 was an

“antebellum feast” featuring “Southern Home Cooking at its best! Fried chicken,

roast beef, dressing, corn pudding, baked beans, ‘taters, slaw, salads, deviled eggs

and so much more!” Id. Sunday, August 12 featured a “Sunday Buffet,” while

Sunday, August 26 was a “Sunday Brunch.” Another advertisement, published on

June 8, 2007, stated, “In addition to our luncheons (even for just two), high teas,

breakfast meetings, baby and bridal showers, and teas and parties of all kinds, we

proudly offer in and out business lunches on most Mondays, Tuesdays, and


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Case No. 13-09-01


Wednesdays.” Id. Other advertisements announced “Wedding Rehearsal Dinners,

Intimate Weddings, Bridal Showers, and Wedding Receptions,” and still others

contained similar statements. Id.

          {¶9} The rules of statutory construction require us to first determine if the

statutory language is plain and unambiguous.

          We look to the plain language of the statute to determine the
          legislative intent. State ex rel. Burrows v. Indus. Comm. (1997),
          78 Ohio St.3d 78, 81, 676 N.E.2d 519. We apply a statute as
          written when its meaning is unambiguous and definite. Portage
          Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-
          954, 846 N.E.2d 478, ¶ 52, citing State ex rel. Savarese v. Buckeye
          Local School Dist. Bd. of Edn. (1996), 74 Ohio St.3d 543, 545, 660
          N.E.2d 463. Finally, an unambiguous statute must be applied in
          a manner consistent with the plain meaning of the statutory
          language. Burrows, 78 Ohio St.3d at 81, 676 N.E.2d 519.

Egbert v. Ohio Dept. of Agriculture, 3d Dist. No. 17-08-15, 2008-Ohio-5309, at ¶

15, quoting Kraynak v. Youngstown City School Dist. Bd. of Edn., 118 Ohio St.3d

400, 2008-Ohio-2618, 89 N.E.2d 528, at ¶ 10. The Tiffin City Code defines a

“restaurant” as “an establishment that serves food and beverages primarily to

persons seated within the building. This includes cafes, tea rooms, and outdoor

cafes.”     (Emphasis added).      Appellees’ Brief in Opp. of Appeal, at Ex. E,

1143.01.72. Therefore, a “tea room” is not a “country club” but is a “restaurant”

for purposes of zoning in Tiffin, and all of the evidence presented below indicated

that the Alabaughs were attempting to classify their “tea room” as a “country

club” for zoning purposes. Neither a “restaurant” nor a “tea room” are permitted



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Case No. 13-09-01


uses of property zoned R-4. The zoning inspector, the ZBA, and the trial court

refused to allow the Alabaughs to misnomer their business operation and applied

the unambiguous language of the city code.

      {¶10} The Alabaughs also contend that the appellees have selectively

enforced the zoning laws. In their appellate brief, the Alabaughs have listed

approximately eleven other addresses where an alleged change of use occurred

without a zoning permit.

      If a law, while fair on its face, is applied in a manner resulting in
      material unjust and illegal discriminations between persons in
      similar circumstances, there is a denial of equal protection. State
      v. Flynt (1980), 63 Ohio St.2d 132, 134.

      “To support a defense of selective or discriminatory prosecution,
      [the party alleging selective prosecution] bears the heavy burden
      of establishing, at least prima facie, (1) that, while others
      similarly situated have not generally been proceeded against
      because of conduct of the type forming the basis of the charge
      against him, he has been singled out for prosecution, and (2) that
      the government's discriminatory selection of him for prosecution
      has been invidious or in bad faith, i.e., based upon such
      impermissible considerations as race, religion, or the desire to
      prevent his exercise of constitutional rights. These two essential
      elements are sometimes referred to as ‘intentional and
      purposeful discrimination.’” Id., citing United States v. Berrios
      (C.A.2, 1974), 501 F.2d 1207, 1211.

      In order for selective enforcement to amount to a denial of equal
      protection, an element of purposeful or intentional
      discrimination must be shown, and this is not satisfied by a mere
      showing that others similarly situated have not been prosecuted.
      W. Chester Twp. Bd. of Trustees v. Speedway Superamerica,
      L.L.C., Butler App. No. CA2006-05-104, 2007-Ohio-2844, ¶ 49.




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Taylor v. Bd. of Trustees, Wayne Twp., 12th Dist. No. CA2008-02-032, 2009-Ohio-

193, at ¶ 24-26. Even if we accepted the Alabaughs’ assertions that other property

owners were not required to obtain zoning permits to change the use of their land,

they have presented no evidence that any of the appellees purposefully or

intentionally discriminated against them. On this record, we cannot hold that the

trial court abused its discretion. The sole assignment of error is overruled.

       {¶11} The judgment of the Seneca County Common Pleas Court is

affirmed.

                                                                 Judgment affirmed



PRESTON, P.J., and SHAW, J., concur.

/jnc




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