[Cite as Bianco v. Youngstown, 2020-Ohio-3584.]




            IN THE COURT OF APPEALS OF OHIO
                            SEVENTH APPELLATE DISTRICT
                                MAHONING COUNTY

                                 STEPHEN BIANCO, ET AL.,

                                      Plaintiffs-Appellants,

                                                  v.

                                  CITY OF YOUNGSTOWN,

                                      Defendant-Appellee.


                       OPINION AND JUDGMENT ENTRY
                                       Case No. 19 MA 0021


                                   Civil Appeal from the
                      Court of Common Pleas of Mahoning County, Ohio
                                  Case No. 2018 CV 206

                                       BEFORE:
                Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Judges.


                                             JUDGMENT:
                                              Reversed



 Atty. Molly Johnson, Johnson & Johnson Law Firm, 12 West Main Street, Canfield,
 Ohio 44406, for Plaintiffs-Appellants, and

 Atty. Eugene Fehr, Deputy Law Director, 26 South Phelps Street, 4th Floor,
 Youngstown, Ohio 44503, for Defendant-Appellee.
                                                                                       –2–


                                          Dated:
                                       June 22, 2020

 Donofrio, J.

       {¶1}     Plaintiffs-appellants, Stephen and Tracey Bianco, appeal from a Mahoning
County Common Pleas Court judgment affirming the decision of the Youngstown City
Board of Zoning Appeals that upheld a notice of violation against appellants for operating
a small group home in a single-family zoning district.
       {¶2}     Appellants own a three-bedroom, single-family house located on
Ridgelawn Avenue in Youngstown. Ridgelawn Avenue is zoned “RS-12 Single Family
Residential Zoning District.”
       {¶3}     In the spring of 2017, appellants entered into three leases with three
developmentally disabled women and/or their guardians. Each of the women have their
own bedroom in the house and they share the common areas. The women and/or their
guardians contracted with Gateways to Better Living (Gateways), which provides services
to individuals with developmental disabilities. Gateways provides services to the women
including housekeeping, social supervision, transportation assistance, assistance
seeking medical and dental services, providing meals, and supervision of medications.
       {¶4}   On October 20, 2017, appellants were issued a “Notice of Violation – Use
not Permitted” for “operating a Small Group Home in a single family zoning district.” The
Notice of Violation listed the Ridgelawn property and stated that it was located in an “RS-
12 Single Family Residential Zoning District.”      Appellants filed an appeal with the
Youngstown Board of Zoning Appeals (BZA).            The BZA held a public hearing on
appellants’ appeal where it heard testimony from Gateways’ program director, several
concerned neighbors, and a city councilman. The BZA then voted 5-0 to deny appellants’
appeal.
       {¶5}     Appellants next filed an appeal in the trial court from the BZA’s decision.
The trial court considered the parties’ briefs and the transcript from the BZA hearing. The
court found the BZA’s determination that appellants were operating a “small group home”
in a single-family zoning district was supported by competent, credible evidence. It further
found that the BZA’s decision was not unlawful, unreasonable, or against the manifest
weight of the evidence. Therefore, the trial court affirmed the BZA’s decision.


Case No. 19 MA 0021
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      {¶6}    Appellants subsequently filed a timely notice of appeal in this court on
February 13, 2019. They now raise a single assignment of error for our review.
      {¶7}     Appellants’ sole assignment of error states:

              THE TRIAL COURT ERRED BY FINDING THAT [the] BOARD OF
      ZONING APPEALS DECISION WAS NOT UNCONSTITUTIONAL,
      ILLEGAL, ARBITRARY, CAPRICIOUS OR UNREASONABLE.

      {¶8}     Appellants first point our attention to the fact that they have been charged
with “operating” a small group home. They assert this is not the case. They point out
that they entered into leases with each of the three residents residing in the home and
each resident pays them rent. The residents then made arrangements with Gateways,
which provides them with various services.
      {¶9}     Youngstown Ordinance 1744.01(a)(1) defines a “small group home” as “a
home in which personal service, personal assistance, personal care and/or protective
care are provided to between three and five unrelated individuals, except those foster
family homes licensed by child-placing agencies.”
      {¶10}    Appellants argue that they only provide a residence to their renters and
collect rental checks. They do not provide any services to their tenants.
      {¶11}    In response, appellee, the City of Youngstown, asserts that appellants’
property is a small group home within the meaning of “group home.”            Youngstown
Ordinance 1744.01(a) defines a “group home” as:

      any building, structure, home, facility or place operated by person(s) other
      than the residents themselves, in which three to sixteen unrelated persons
      reside for a period of more than twenty-four hours, and which is used or
      intended to be used for the purpose of letting rooms, providing meals and/or
      providing personal assistance, personal services, personal care and
      protective care but not skilled nursing care, designed to help the residents
      adjust to the community and society. Group homes may also provide
      personal assistance to no more than three residents per home.




Case No. 19 MA 0021
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       {¶12} The property is zoned as RS-12 “Single Family Residential.” RS‐12 “is
created for the purpose of maintaining and protecting low‐density single family residential
areas with a minimum lot size of 12,000 sq. ft.” Youngstown Redevelopment Code
1102.02(b). A “family” as defined by the Youngstown Redevelopment Code is “[o]ne or
more persons occupying the premises and living as a single housekeeping unit, as
distinguished from a group occupying a boarding house, lodging house, club, fraternity,
or hotel.” Youngstown Redevelopment Code 1106.03.
       {¶13} This court previously set out the applicable standards of review for both the
common pleas court and the appellate court when dealing with an appeal from the board
of zoning appeals:

       When a trial court reviews an administrative appeal from a board of zoning
       appeals, “it must review the record to determine whether the administrative
       order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or
       unsupported by the preponderance of substantial, reliable, and probative
       evidence.”    Gonda v. Austintown Tp. Bd. of Zoning Appeals, 7th Dist.
       Mahoning No. 05 MA 14, 2006-Ohio-670, 2006 WL 338385, ¶ 8.                An
       appellate court's review is even more limited in scope; we may not weigh
       the evidence, instead reviewing solely for error of law. Angels for Animals,
       Inc. v. Beaver Township Board of Zoning Appeals, 7th Dist. Mahoning No.
       04 MA 80, 2004-Ohio-7209, 2004 WL 3090174, ¶ 15.

Savon Ents. v. Boardman Twp. Tr., 7th Dist. Mahoning No. 14 MA 0029, 2016-Ohio-735,
60 N.E.3d 534, ¶¶ 9-10. Thus, this court reviews the trial court’s decision solely for an
error of law.
       {¶14}    The trial court reviewed the transcript and noted the following. The three
women were previously residents of a large group home operated by Gateways. The
women opted for placement in a smaller residence.          Gateways located and visited
appellants’ property before the women entered into leases with appellants. Thereafter,
Gateways continued to provide personal services to the women including, but not limited
to, 24-hour supervision, assisting with shopping, bathing, preparing meals, doing laundry,
and transportation to medical appointments. The trial court noted that it was not to make


Case No. 19 MA 0021
                                                                                       –5–


factual determinations or weigh the witnesses’ credibility. It found that the BZA’s factual
determinations were supported by competent, credible evidence and that the BZA’s
decision was not unlawful, unreasonable, or against the manifest weight of the evidence.
Therefore, the court affirmed the BZA’s decision.
       {¶15}    The trial court’s factual findings are supported by the evidence. Gateways
program director Karl Ware testified that Gateways gave the three women the option of
moving out of their group home into the community. (Tr. 6). He stated that Gateways, as
the women’s service provider, was to find a location for the women to live. (Tr. 6). He
stated that the women then entered into leases with appellants. (Tr. 6, 9). Ware testified
that the house where the women live is not a group home run by Gateways but is instead
their home, which they rent from appellants. (Tr. 9). He stated that Gateways provides
services at the women’s behest. (Tr. 10). He also stated the women can ask Gateways
to leave at any time. (Tr. 9-10).
       {¶16}    Importantly, however, we must consider what the City of Youngstown
actually cited appellants for.
       {¶17} Appellants were issued a Notice of Violation – Use not Permitted for
“operating a Small Group Home in a single family zoning district.” (Emphasis added).
Both the BZA and the trial court failed to consider what this violation actually means.
       {¶18} The Youngstown Redevelopment Code states:

       In the context of group homes, “operator” means any person who manages,
       controls or otherwise performs the day‐to‐day tasks of operating a group
       home, regardless of whether such person is the license holder.

Youngstown Redevelopment Code 1106.03.              There was no evidence or allegation
whatsoever that appellants, who only collect rent and provide a residence, “operate” a
group home. If anyone is operating a group home at the Ridgelawn residence, it would
be Gateways and not appellants.

       {¶19} Our review here is limited to whether the trial court committed an error of
law when it determined that the BZA’s decision was not unconstitutional, illegal, arbitrary,
capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,
and probative evidence. We cannot weigh the conflicting evidence regarding whether the


Case No. 19 MA 0021
                                                                                       –6–


women are living in a “small group home” or whether they are to be considered a “single
family unit.”
       {¶20} The trial court’s judgment is contrary to law on the point that appellants are
not true “operators” of a small group home within the definition provided by the City in the
Youngstown Redevelopment Code. They do not manage, control, or perform the day-to-
day tasks of operating a group home. Therefore, the City could not issue appellants a
violation for “operating” a small group home in a single family district.
       {¶21}    Accordingly, appellants’ sole assignment of error has merit.
       {¶22}    For the reasons stated above, the trial court’s judgment is hereby reversed
and the notice of violation issued by the City of Youngstown Zoning Specialist is hereby
vacated.




Robb, J., dissents with dissenting opinion.

D’Apolito, J., concurs.




Case No. 19 MA 0021
                                                                                       –7–




Robb, J., dissenting opinion.



       {¶23}    I respectfully dissent from the decision reached by my colleagues and
would affirm the trial court’s decision.
       {¶24}    Appellants were cited for “operating a Small Group Home in a single family
zoning district.” The majority focuses on the word “operating” and contends that Appellant
is not an “operator” of a group home, but instead only collects rent and provides a
residence. Opinion ¶ 18. Essentially, the majority is concluding that the landowner must
be providing the services to qualify as an operator of a group home. I disagree with that
conclusion.
       {¶25}    As the majority points out, an operator in the context of a group home
means a person who manages, controls, or performs the day-to-day tasks of operating a
group home. It is undisputed Appellants do not perform the day-to-day tasks. However,
that does not mean they do not qualify as an operator given the facts of this case.
       {¶26}    Appellants were providing a residence for the women, and they were
aware that the women would be receiving services in order to live in the residence. As
the majority indicates, the three women previously lived in a large group home operated
by Gateways, but wanted to live in a smaller residence. The facts of this case indicate
the women could not live on their own without services being provided by Gateways or
some other provider. Given the women’s desire to live in a smaller residence, Gateways
located Appellants’ property and visited the property before the women or their guardians
entered the leases. Gateways’ action of locating and inspecting Appellants’ property
indicates the property had to qualify in order for Gateways to provide services to the
residents. Thus, Appellants knowledge of Gateways’ involvement and of providing a
residence in compliance with Gateways’ requirements could indicate Appellants were
controlling or managing the group home in conjunction with Gateways.
       {¶27}    Our standard of review is very limited when reviewing a trial court’s review
of an administrative order:




Case No. 19 MA 0021
                                                                                       –8–


       {¶28} An appellate court's review is even more limited in scope; we may not weigh
the evidence, instead reviewing solely for error of law. Angels for Animals, Inc. v. Beaver
Township Board of Zoning Appeals, 7th Dist. No. 04 MA 80, 2004-Ohio-7209, 2004 WL
3090174, ¶ 15. An appellate court “must affirm the judgment of the trial court unless its
decision is so at odds with the evidence presented first to the board and later to the trial
court as to be erroneous as a matter of law.” Sottile v. Amberley Village Tax Bd. of
Review, 146 Ohio App.3d 680, 683, 767 N.E.2d 1212 (10th Dist.2001).
       {¶29} The party challenging the board's determination carries the burden of proof
in rebutting the presumption of the correctness of the board's decision. Essroc Materials,
Inc. v. Poland Twp. Bd. of Zoning Appeals, 117 Ohio App.3d 456, 462, 690 N.E.2d 964
(7th Dist.1997), citing Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d 202,
12 O.O.3d 198, 389 N.E.2d 1113.
       {¶30} Savon Ents. v. Boardman Twp. Tr., 7th Dist. Mahoning No. 14 MA 0029,
2016-Ohio-735, 60 N.E.3d 534, ¶ 9-10.
       {¶31}   The administrative body found the facts indicated Appellants qualified as
an operator. The trial court agreed and affirmed the order. The specific facts of this case
show that Appellants’ actions and knowledge of the situation demonstrate that they qualify
as an “operator” of a group home. Consequently, there was no error of law and under
our limited review of the administrative order, the trial court’s decision, in my opinion,
should be affirmed.




                                                        APPROVED:




                                                        JUDGE CAROL ANN ROBB




Case No. 19 MA 0021
[Cite as Bianco v. Youngstown, 2020-Ohio-3584.]




         For the reasons stated in the Opinion rendered herein, the assignment of error
 is sustained and it is the final judgment and order of this Court that the judgment of the
 Court of Common Pleas of Mahoning County, Ohio, is reversed and the notice of
 violation issued by the City of Youngstown Zoning Specialist is vacated. Costs to be
 taxed against the Appellee.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                      NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
