[Cite as Shamockery, L.L.C. v. Olmsted Twp. Bd. of Zoning Appeals, 2014-Ohio-3422.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 100858



                                     SHAMOCKERY L.L.C.

                                                 PLAINTIFF-APPELLANT

                                                   vs.

                              OLMSTED TOWNSHIP BOARD
                               OF ZONING APPEALS, ET AL.

                                                 DEFENDANTS-APPELLEES




                                        JUDGMENT:
                                   AFFIRMED; REMANDED


                                   Civil Appeal from the
                          Cuyahoga County Court of Common Pleas
                                 Case No. CV-13-802994

        BEFORE:          Kilbane, J., Boyle, A.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: August 7, 2014
ATTORNEYS FOR APPELLANT

Randolph E. Digges III
David E. Spaw
4244 Plumwood Drive
North Olmsted, Ohio 44070

ATTORNEYS FOR APPELLEES

Timothy J. McGinty
Cuyahoga County Prosecutor
Dale F. Pelsozy
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

      {¶1} Plaintiff-appellant, Shamockery L.L.C. (“Shamockery”), appeals from

the trial court’s order affirming the denial of its request for a zoning certificate to

use a parcel for beekeeping. In its order, the trial court concluded that the decision

of the Olmsted Township Board of Zoning Appeals (“BZA”) was not

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

preponderance of substantial, reliable, and probative evidence because the parcel

was excavated as a water retention basin and handles drainage for several areas in

order to prevent flooding.     Since the trial court’s decision is supported by a

preponderance of reliable, probative, and substantial evidence, we affirm the trial

court’s decision, but we remand for the trial court to consider whether a

compensable taking has occurred.

      {¶2} Shamockery purchased the subject parcel, situated in Olmsted

Township (“the Township”), permanent parcel No. 263-10-108, at a forfeited land

sale on March 25, 2009, for the sum of $500.1 On November 9, 2012, Shamockery

filed an application for a zoning certificate in order to use the parcel for beekeeping.

 On November 26, 2012, the Township denied the application because the parcel

does not have sufficient frontage, parking, or access drives; bee hives are an


      1It is not clear from the record as to whether the Township was notified of the
sale in connection with any land reutilization provisions.
accessory building that are not permitted until a principal structure is complete; and

beekeeping is a nonconforming use of the property.

       {¶3} Shamockery appealed to the BZA. Shamockery asserted that it has an

absolute right to use the parcel as requested because beekeeping is an agricultural

pursuit under R.C. 519.21(A), and the area of the parcel exceeds one acre. The

BZA held a public hearing on the matter on January 16, 2013.

       {¶4} The evidence indicates that in 1988, during the construction of the

Bradford’s Gate Subdivision, the area was designated a storm water retention basin.

 The Township’s final plat approval for the subdivision set forth the following

condition:

       That we receive a written statement from the developer that Shore
       West Construction Company owns and intends to maintain the
       retention basin and fencing surrounding the retention basin[.]

       {¶5} In response, Shore West submitted a letter to the Planning Commission

that stated:

       Please allow this letter to confirm the fact that we own the storm water
       retention basin in the above-captioned subdivision. As per our
       discussion at the Executive Committee Meeting, we will maintain the
       basin and fencing, at least on an interim basis, until the Township and
       County have reached agreement concerning maintenance.

       {¶6} In addition, when the plat for the subdivision was recorded in 1996, a

portion was purchased by an individual, Robert Barnes, a portion was referenced as

a retention area, and the remainder was eventually sold to Shamockery at a forfeited
land sale in 2009.2 At the BZA hearing, residents stated that the area was created

as a dry catch basin, and it is undisputed that it contains an eight-inch drain pipe.

According to numerous witnesses, the area floods several times a year. Over the

years, the drain pipe has been maintained by various governmental entities to

prevent the flooding of nearby basements. Any disruption of the drainage facility

would have an immediate impact on flooding. According to another individual,

Shamockery should have obtained a survey, and had it done so, drainage courses

from the adjoining areas would have been evident.

         {¶7} In opposition, Shamockery’s counsel stated that the parcel is not part

of a platted subdivision, and there are no recorded easements over the property.

He argued that the Township would have to acquire an easement or obtain the

parcel by eminent domain in order to use it as a dry catch basin for the adjoining

areas.

         {¶8} The BZA denied the zoning certificate, and Shamockery appealed to

the court of common pleas. In a four-page opinion, the trial court affirmed the

denial. In relevant part, the court held:

         The record from the hearing reflects that the
                        intended use of the Property,
                        dating back many years, was as
                        a water retention basin for the

         2One
            individual opined that the developer failed to pay taxes on the parcel so
the property was forfeited.
                   adjoining subdivisions. (See
                   Record at 9, 10, 12, 13, 14, 15,
                   19, 30) The basin handles the
                   drainage for several areas in
                   order to prevent flooding the
                   Township and Olmsted Falls.
                   (See Record at 29, 30) The
                   record further reflects that the
                   Property was excavated as a
                   retention basin and was
                   approved by the sanitary
                   engineer as such. (See Record
                   at 11) Furthermore, the record
                   reflects that the Township has
                   openly maintained this Property
                   for retention purposes and
                   continues to do so. (See Record
                   at 13, 14, 15, 16, and 27; see
                   also Merit Brief of Appellant at
                   6 and Reply Brief of Appellee
                   at 2)

* * *

After carefully weighing the evidence in the record, and a review of
the brief and arguments filed on behalf of the Appellant and the
Appellee, the Court finds that the Board’s decision is not
unconstitutional, illegal, arbitrary, capricious, or unreasonable.
Moreover, the Court finds that there exists a preponderance of reliable,
probative and substantial evidence to support the Board’s decision.
Therefore, the Board’s decision is hereby affirmed.

{¶9} Shamockery appeals and assigns the following errors for our review:

                       Assignment of Error One

Olmsted Township has no power whatsoever to prohibit Shamockery
LLC from using permanent parcel no. 263-10-108 for agricultural
purposes.
                              Assignment of Error Two

      The final order, adjudication or decision of the Olmsted Township

      Board of Zoning Appeals and the judgment of the Cuyahoga County

      Court of Common Pleas from which this appeal is taken deprives

      Shamockery LLC of property rights in permanent parcel no.

      263-10-108 without due process of law and without just compensation

      in violation of the Fifth Amendment of the U.S. Constitution.

                                 Standard of Review

      {¶10} In R.C. Chapter 2506 administrative appeals to the court of common

pleas, the court must consider the whole record, including any new or additional

evidence admitted under R.C. 2506.03, and determine whether the administrative

order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported

by the preponderance of substantial, reliable, and probative evidence. Henley v.

Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147, 2000-Ohio-493, 735 N.E.2d 433.

      {¶11} 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,” and the

court of appeals does not have the power to weigh “the preponderance of

substantial, reliable and probative evidence,” as is granted to the common pleas

court. Id. The fact that the court of appeals might have arrived at a different
conclusion than the administrative agency is immaterial. Id. Accordingly, when

reviewing a common pleas court order that determined an appeal from an

administrative agency, the appellate court must affirm the trial court unless that

court’s decision is not supported by a preponderance of reliable, probative, and

substantial evidence.   Russell v. Pub. Health, Hous. Appeals Dept., 142 Ohio

App.3d 430, 432, 756 N.E.2d 118 (9th Dist.2001). (Citations omitted.)    In making

this determination, this court applies the abuse of discretion standard. Henley at

148; Disanto Ents. v. Olmsted Twp., 8th Dist. Cuyahoga No. 90728,

2008-Ohio-6949, ¶ 11.

      {¶12} We additionally note, with regard to the substantive law, that zoning

ordinances enacted pursuant to the police powers of a municipality are presumed

valid until the contrary is clearly demonstrated, and the party challenging a

legislative enactment bears the burden of demonstrating its unconstitutionality.

Dome Energicorp v. Zoning Bd. of Appeals, 8th Dist. Cuyahoga No. 50554, 1986

Ohio App. LEXIS 7523, *2-3 (July 10, 1986), citing Mayfield-Dorsch, Inc. v. S.

Euclid, 68 Ohio St.2d 156, 429 N.E.2d 159 (1981), and Hilton v. Toledo, 62 Ohio

St.2d 394, 396, 405 N.E.2d 1047 (1980).

      {¶13} R.C. 519.02 grants townships local zoning authority.             “‘Such

authority is a grant of police power for local determinations concerned with land

use and planning * * *. All such exercise of this police power is for the purpose of
insuring the health, welfare and safety of the local communities.’”            Dome

Energicorp, quoting Hulligan v. Bd. of Zoning Appeals, 59 Ohio App.2d 105, 107,

392 N.E.2d 1272 (9th Dist.1978). However, since the object of the police power is

the public health, safety and general welfare, its exercise must bear a substantial

relationship to that object and must not be unreasonable or arbitrary in order to be

valid. Dome Energicorp, quoting Cincinnati v. Correll, 141 Ohio St. 535, 539, 49

N.E.2d 412 (1943), paragraph one of the syllabus.

       {¶14} Permitted uses are those allowed as of right, provided the landowner

meets all other requirements, e.g., building code requirements. Byers DiPaola

Castle,   LLC     v.   Ravenna   City   Planning    Comm.,     11th   Dist.   Portage

No. 2010-P-0063, 2011-Ohio-6095, ¶ 26. Conditional uses (also known as special

exceptions) are also allowed in the zoning code, but they are uses that may have a

significant impact and thus require an administrative hearing for approval. Id.,

quoting Kipp v. Bd. of Zoning Appeals of Stonelick Twp., 12th Dist. Clermont

No. CA2003-10-086, 2004-Ohio-5903, at ¶ 10.

       {¶15} In this matter, the trial court concluded that the administrative order

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

by the preponderance of substantial, reliable, and probative evidence. The court

noted, as stated earlier:
      The record from the hearing reflects that the
                     intended use of the Property,
                     dating back many years, was as
                     a water retention basin for the
                     adjoining subdivisions. (See
                     Record at 9, 10, 12, 13, 14, 15,
                     19, 30) The basin handles the
                     drainage for several areas in
                     order to prevent flooding the
                     Township and Olmsted Falls.
                     (See Record at 29, 30) The
                     record further reflects that the
                     Property was excavated as a
                     retention basin and was
                     approved by the sanitary
                     engineer as such. (See Record
                     at 11) Furthermore, the record
                     reflects that the Township has
                     openly maintained this Property
                     for retention purposes and
                     continues to do so. (See Record
                     at 13, 14, 15, 16, and 27; see
                     also Merit Brief of Appellant at
                     6 and Reply Brief of Appellee
                     at 2)

      {¶16} The record supports these conclusions. It is clear from the record that

in 1988, during the construction of the Bradford’s Gate Subdivision, the area was

excavated and dedicated as a storm water retention basin. The Township’s final

plat approval for the subdivision set forth the condition that the area would be

maintained as a retention basin. The developer also gave the Township written

confirmation that the area would be maintained as a retention basin.    The record

also contains substantial, reliable, and probative evidence that the retention basin
has also been continuously used as a retention basin because it is essentially a

common area for the surrounding subdivisions, has drainage courses, and contains

an eight-inch drainage pipe.      The parcel has been maintained by the county

engineer and the Township in order to keep it clear of debris to prevent the flooding

of the surrounding parcels.

      {¶17} Therefore, this court concludes that the trial court’s decision is

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

that the trial court did not abuse its discretion in affirming BZA’s decision. Accord

K-Mart Corp. v. Westlake, 121 Ohio App.3d 630, 700 N.E.2d 659 (8th Dist.1997)

(trial court did not err in reaffirming city’s rejection of store’s plan for development

based upon city’s requirements for storm water runoff).

      {¶18} The first assignment of error is without merit.

                                  Taking of Property

      {¶19} Shamockery next asserts that the zoning is a taking without just

compensation.

      {¶20} Application of land-use regulations to property constitutes a

compensable taking if the ordinance does not substantially advance legitimate state

interests or denies an owner economically of a viable use of his land. State ex rel.

Shemo v. Mayfield Hts., 96 Ohio St.3d 379, 2002-Ohio-4905, 775 N.E.2d 493, ¶ 1;
First N. Corp. v. Bd. of Zoning Appeals Olmsted Falls, 8th Dist. Cuyahoga No.

99681, 2014-Ohio-487, ¶ 48.

      {¶21} This issue was not decided by the trial court. Since this court acts as a

reviewing court, it should not consider this issue for the first time on appeal.

Therefore, we remand for the trial court to consider the issue of the taking of

property without just compensation. Clifton v. Blanchester, 12th Dist. Clinton

No. CA2007-09-040, 2008-Ohio-4434, ¶ 14 (remanding for consideration of taking

issue). See generally Lang v. Holly Hill Motel, Inc., 4th Dist. Jackson No. 05CA6,

2005-Ohio-6766, ¶ 22, citing Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 360,

1992-Ohio-95, 604 N.E.2d 138; Padula v. Hall, 7th Dist. Mahoning No.

03-MA-235, 2004-Ohio-4823, ¶ 24; Guappone v. Enviro-Cote, Inc., 9th Dist.

Summit No. 24718, 2009-Ohio-5540, ¶ 13.

      {¶22} Accordingly, we agree with the trial court’s judgment affirming the

BZA’s decision; however, we remand for the trial court to consider whether a

compensable taking has occurred.

      {¶23} It is ordered that appellees and appellant share the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, A.J., and
EILEEN T. GALLAGHER, J., CONCUR
