[Cite as Hindu Soc. of Greater Cincinnati v. Union Twp. Bd. of Zoning Appeals, 2019-Ohio-2494.]




                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                         CLERMONT COUNTY




 HINDU SOCIETY OF GREATER                              :
 CINCINNATI,
                                                       :           CASE NO. CA2018-11-081
        Appellee,
                                                       :                    OPINION
                                                                             6/24/2019
     - vs -                                            :

                                                       :
 UNION TOWNSHIP BOARD OF ZONING
 APPEALS,                       :

        Appellant.                                     :




              APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                              Case No. 2016 CVF 01548


Aronoff, Rosen & Hunt, Richard A. Paolo, Edward P. Akin, 2200 U.S. Bank Tower, 425
Walnut Street, Cincinnati, Ohio 45202, for appellee

Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, 5300 Socialville-Foster
Road, Suite 200, Mason, Ohio 45040, for appellant



        S. POWELL, J.

        {¶ 1} Appellant, Union Township Board of Zoning Appeals ("UTBZA"), appeals the

decision of the Clermont County Court of Common Pleas reversing its decision in a case

involving a conditional use application filed by appellee, Hindu Society of Greater Cincinnati,

Inc. ("Hindu Society"). For the reasons outlined below, we affirm the common pleas court's
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decision.

                               Facts and Procedural History

      {¶ 2} On September 7, 2016, the Hindu Society filed a conditional use application

with the UTBZA. The Hindu Society's application requested permission to construct a new

two-story addition onto its existing temple located on its 105-acre Union Township property.

The addition was to provide an expanded worship area on the Hindu Society's property for

the purpose of housing additional deities used as part of the Hindu religion. There is no

dispute that at the time the Hindu Society filed its application that its property had two

access points; one from Klatte Road and the other from Barg Salt Run Road.

      {¶ 3} A conditional use application like the one at issue in this case is governed by

Section 442.1 of the Union Township Zoning Resolution ("UTZR"). Pursuant to that section

of the UTZR:

               In considering an application for a conditional use the Board of
               Zoning Appeals shall give due regard to the nature and
               condition of all adjacent uses and structures; and in authorizing
               a conditional use the Board may impose such requirements and
               conditions with respect to location, construction, maintenance
               and operation in addition to those expressly stipulated in this
               Resolution for the particular conditional use as the Board may
               deem necessary for the protection of adjacent properties and
               the public interest.

      {¶ 4} On October 6, 2016, the UTBZA held a hearing on the Hindu Society's

conditional use application. During this hearing, the UTBZA heard testimony from five

witnesses: William Fiedler, the architect of the proposed temple expansion project, Steven

Hunt, one of the Hindu Society's attorneys representing it before the UTBZA, and three

neighboring property owners to the Hindu Society's property. The following is a summary

of the testimony and evidence provided at that hearing.

      {¶ 5} Fiedler testified regarding the proposed temple expansion project and the

efforts made to construct the temple in accordance with the Hindu faith. This includes

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building the temple structure with consideration of the number nine,1 as well as an eastern

facing orientation to the property, the ability to enter the property from the east, and the

capability of devotees to look eastward when praying to the on-site deities.2 There is no

dispute that the Klatte Road entrance allows the public to enter the Hindu Society's property

from the east.

        {¶ 6} Hunt testified regarding the Klatte Road entrance and the UTBZA's concerns

as it relates to the Klatte Road entrance. As part of his testimony, Hunt noted that once it

became known that the Klatte Road entrance was a concern "a number of years ago" that

the Hindu Society "spent $1,300,000 to buy additional ground and to build that additional

access road" onto its property from Barg Salt Run Road. After the Barg Salt Road entrance

was completed, Hunt testified the Hindu Society "agreed to limit the use [of the Klatte Road

entrance] but they never agreed to close it." This has resulted in approximately 95% of the

public entering onto the Hindu Society's property from the Barg Salt Run Road entrance,

whereas there are "maybe 10, 14 vehicles a day" that still use the Klatte Road entrance.

This includes a temple priest who "comes in the morning and opens up by coming in that

way."

        {¶ 7} Despite the UTBZA's concerns regarding the Klatte Road entrance, Hunt

noted that no traffic study had been conducted regarding the impact of the proposed temple

expansion project would have on the surrounding roadways. Hunt also noted that there

was no evidence indicating the number of vehicles using the Klatte Road entrance would

increase due to the proposed temple expansion beyond those "maybe 10, 14 vehicles a


1. As it relates to the significance of the number nine, Fiedler testified the temple's main room was 81 feet by
81 feet and 27 feet tall, "so we try to comfort all the devotees to know that their temple is designed by the
background and history of their religion that they follow."

2. Fiedler testified that an easterly direction is significant in Hinduism and dates back "thousands of years ago
when they have prayer in the morning they face the east, and it alludes back to sun up." Fiedler also testified
the sun "is in relationship to a Godly thing, the sun, and deservedly so."
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day." But, in an effort to alleviate any potential conflict with its neighbors, Hunt testified the

Hindu Society had nevertheless agreed to close the Klatte Road entrance when "major

events take place, such as the festivals they have from time to time[.]"

       {¶ 8} Three neighboring property owners in opposition to the Hindu Society's

conditional use application then testified. The first witness testified that he had "no problem

with the addition at all," but that he did have a "major problem with Klatte Road." These

issues were based on his belief that the motorists who used the Klatte Road entrance onto

the Hindu Society's property "don't pay attention to what's going on. They don't care. It's

very frustrating." This witness supported his testimony by alleging "[he] had, about three

years ago, had to walk down the street in front of a Union Township ambulance so people

would move over to let that ambulance get through with his lights flashing." The record is

devoid of any evidence to support this testimony. The record is also devoid of any evidence

indicating the motorists this witness was referring to were motorists attempting to enter the

Hindu Society's property from the Klatte Road entrance.

       {¶ 9} The next witness testified that he too had "no problem" with the proposed

temple expansion project.       But, although having no problem with the Hindu Society

expanding its temple, this witness nonetheless testified that the Hindu Society was the

"worst neighbors you could possibly have." Seemingly unrelated to the Hindu Society itself,

this witness based this opinion on the fact that Klatte Road was "only 14 feet wide."

Therefore, according to this witness, Klatte Road "is not wide enough for two cars to pass

without one going off the road," something this witness testified had "been a problem for 20

plus years."

       {¶ 10} Similar to the first witness's testimony above regarding the problems he

purportedly witnessed regarding a Union Township ambulance, this witness supported his

testimony by alleging the width of Klatte Road had caused problems for the school bus

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having to wait for other vehicles to back up so that it could pick up his grandchildren in the

morning. The record is again devoid of any evidence to support this testimony. There was

also no evidence that the vehicles this witness observed backing up for the school bus were

driven by motorists entering the Hindu Society's property through the Klatte Road entrance.

           {¶ 11} Like the first two witnesses' testimony outlined above, the third witness

testified she also had issues with the motorists who used the Klatte Road entrance to enter

onto the Hindu Society's property. This was due, at least in part, to the fact those motorists

"fly down our street, they go off your roads, they pull in your drive, * * * they never know

where they're going." This witness also testified that "[t]hey're not very good drivers." This

witness further testified that it was the "first time [she] ever heard them bring up this is a

religious reason why the gate can't be closed." Therefore, according to this witness, "I'm

sure they had to dig back in their Bible or Koran or whatever they use, I don't know, to find

that[.]"

           {¶ 12} After briefly conferring on the matter, the UTBZA issued a decision granting

the Hindu Society's conditional use application. The UTBZA, however, conditioned its

decision to grant the application on the Hindu Society agreeing to five additional

modifications. As set forth by the UTBZA, the additional modifications were as follows:

                 (1) The primary and principal access point for the Hindu Temple
                 shall be determined to be from Barg Salt Run Road, with the
                 gate located along Klatte Road permanently closed, secured
                 through electronic gate mechanisms/codes and Knox Box lock,
                 to be utilized only by fire and police emergency responders and
                 designated on the plans as "Emergency Access Only."

                 (2) The access drive to the lower level storage area shall be
                 paved in conjunction with the proposed construction project.

                 (3) Building elevations, colors, and materials shall match the
                 construction of the existing temple, and shall be subject to
                 administrative review and approval.

                 (4) All construction equipment shall enter through the Barg Salt

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               Run Road entrance only.

               (5) Modification number one as stated herein, will be completed
               done prior to the issuance of the zoning permit for the project.

         {¶ 13} On November 3, 2016, the Hindu Society appealed the UTBZA's decision to

the common pleas court. The Hindu Society's appeal challenged only the first additional

modification imposed by the UTBZA – that as a condition for the approval the Hindu

Society's conditional use application it was necessary that the Klatte Road entrance to its

property be permanently closed to the public. After the appeal was filed with the common

pleas court, the parties attempted to come to an agreement on how the Klatte Road

entrance could be used going forward. The parties ultimately did not reach an agreement.

         {¶ 14} On April 20, 2018, the common pleas court held a hearing on the matter.

During this hearing, the common pleas court heard arguments from counsel for both parties.

This includes commentary from UTBZA's counsel that the Klatte Road entrance is used so

infrequently that its permanent closure would be a "de minimus depravation" of the Hindu

Society's rights. This commentary was confirmed by the Hindu Society's counsel who noted

the Klatte Road entrance was only being used by certain elderly members and a temple

priest. Therefore, as stated by the Hindu Society's counsel, "they're not trying to turn the

Klatte Road back into the main entrance. That's not their objective here."

         {¶ 15} On October 26, 2018, the common pleas court issued a decision reversing

the UTBZA's decision that conditioned the approval of the Hindu Society's conditional use

application on the permanent closure of the Klatte Road entrance to the public. In so

holding, the common pleas court initially found the UTBZA's decision was arbitrary,

unreasonable, and unsupported by the record. Specifically, as the common pleas court

found:

               Because the court cannot draw a connection between the deity
               room and Klatte Road traffic, the court cannot find that the

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              closure of the Klatte Road access point is necessary for the
              protection of adjacent properties and the public interest. The
              court finds that the [BZA's] decision to require the [Hindu
              Society] to close its Klatte Road access was not governed by
              reason and was without an adequate determining principle.
              Moreover, the [BZA's] decision is not supported by a
              preponderance of substantial, reliable, and probative evidence,
              as there was none indicating that the proposed conditional use
              would increase Klatte Road traffic. Accordingly, the court finds
              under R.C. 2506.04 that the [BZA's] decision was arbitrary,
              unreasonable, and unsupported by the preponderance of
              substantial reliable, and probative evidence on the whole
              record.

The common pleas court also found the UTBZA's decision could not stand because it

constituted an unconstitutional taking of the Hindu Society's property.

                                           Appeal

       {¶ 16} The UTBZA now appeals from the common pleas court's decision, raising a

single assignment of error for review.       In its single assignment of error, the UTBZA

challenges the common pleas court's decision finding that conditioning the approval of the

Hindu Society's conditional use application on the permanent closure of the Klatte Road

entrance to the public was arbitrary, unreasonable, and unsupported by the record. The

BZA also challenges the common pleas court's decision finding that condition imposed by

the UTBZA constituted an unconstitutional taking of the Hindu Society's property.

                                    Standard of Review

       {¶ 17} R.C. Chapter 2506 governs the standards applied to appeals of administrative

agency decisions. Hutchinson v. Wayne Twp. Bd. of Zoning Appeals, 12th Dist. Butler No.

CA2012-02-032, 2012-Ohio-4103, ¶ 14. Pursuant to R.C. 2506.04, a common pleas court

reviewing an administrative appeal "'weighs the evidence in the whole record and

determines whether the administrative order is unconstitutional, illegal, arbitrary, capricious,

unreasonable, or unsupported by the preponderance of the substantial, reliable, and

probative evidence.'" Bingham v. Wilmington Bd. of Zoning Appeals, 12th Dist. Clinton No.

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CA2012-05-012, 2013-Ohio-61, ¶ 6, quoting Key-Ads, Inc. v. Warren Cty. Bd. of Commrs.,

12th Dist. Warren No. CA2007-06-085, 2008-Ohio-1474, ¶ 7. A board of zoning appeals'

decision is presumed to be valid and the burden is upon the party contesting the board's

determination to prove otherwise. Terrace Park v. Anderson Twp. Bd. of Zoning Appeals,

1st Dist. Hamilton Nos. C-140741 and C-140745, 2015-Ohio-4602, ¶ 13.

      {¶ 18} On the other hand, "'[a]n appeal to the court of appeals, pursuant to R.C.

2506.04, is more limited in scope."' Queen v. Union Twp. Bd. of Zoning Appeals, 12th Dist.

Fayette No. CA2015-05-011, 2016-Ohio-161, ¶ 13, quoting Kisil v. Sandusky, 12 Ohio St.3d

30, 34 (1984). To that end, "'this court on review is without jurisdiction to substitute its

judgment for that of the [common pleas] court.'" Smith v. Warren Cty. Rural Zoning Bd. of

Zoning Appeals, 12th Dist. Warren No. CA2018-07-078, 2019-Ohio-1590, ¶ 18, quoting In

re Lehman, 10th Dist. Franklin No. 77AP-340, 1977 Ohio App. LEXIS 7449, *4-5 (Dec. 27,

1977). Rather, "this court must affirm the common pleas court's decision unless it finds, as

a matter of law, that the lower court's decision was not supported by a preponderance of

reliable, probative, and substantial evidence." Taylor v. Wayne Twp. Bd. of Trustees, 12th

Dist. Butler No. CA2008-02-032, 2009-Ohio-193, ¶ 10. "Within the ambit of questions of

law for appellate-court review is whether the common pleas court abused its discretion[.]"

Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-

4650, ¶ 14.

                                         Analysis

      {¶ 19} The common pleas court made two alternative findings to support its decision

in this case. Those findings were (1) the UTBZA's decision was arbitrary, unreasonable,

and unsupported by the record; and (2) the UTBZA's decision constituted an

unconstitutional taking of the Hindu Society's property. Without considering the common

pleas court's decision finding an unconstitutional taking had occurred, we find the common

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pleas court did not err by finding the UTBZA's decision was arbitrary, unreasonable, and

unsupported by the record. Therefore, because the common pleas court's decision was

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

of law, this court must affirm the common pleas court's decision.

      {¶ 20} "'[T]he standard of review for courts of appeals in administrative appeals is

designed to strongly favor affirmance.'" Eckert v. Warren Cty. Rural Bd. of Zoning Appeals,

12th Dist. Warren Nos. CA2017-06-095 and CA2017-07-107 thru CA2017-07-109, 2018-

Ohio-4384, ¶ 25, quoting Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals, 141

Ohio St.3d 318, 2014-Ohio-4809, ¶ 30. The UTBZA nevertheless argues the common pleas

court's decision must be reversed since the common pleas court improperly substituted its

judgment for that of the UTBZA. The UTBZA supports this argument by noting it was under

no obligation to grant the Hindu Society a conditional use permit at all – "even if the Hindu

Society satisfied all of the prescribed conditions and considerations set forth in the Zoning

Resolution." Therefore, according to the UTBZA, the common pleas court's decision must

be reversed since it failed to take into account the BZA's discretion under these

circumstances. We disagree.

      {¶ 21} This court does not dispute that the UTBZA may exercise its discretion when

deciding whether to grant a conditional use permit. The same is true in regard to the

UTBZA's authority to impose conditions on the granting of a conditional use permit. This

court, in fact, even agrees with the UTBZA's claim that it "has broad discretion under the

Zoning resolution and the law to impose such conditions when granting a conditional use

which will preserve the health, safety and welfare of the neighbors." But, contrary to the

UTBZA's assertions, we find it unreasonable for the UTBZA to think its discretion is

unfettered, unlimited, and insulated from review by the common pleas court or by this court

on appeal.

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       {¶ 22} As this court has stated previously, although in a slightly different context:

              [T]he authority to examine the effects of a proposed use on its
              surroundings does not imply unlimited discretion on the part of
              the decision-making body, and a decision concerning the effects
              of a particular use on adjacent uses and structures and uses
              must be based on substantial, reliable, and credible evidence.

Tempo Holding Co. v. Oxford City Council, 78 Ohio App.3d 1, 9 (12th Dist.1992). This holds

true even in the context of the grant or denial of a conditional use permit. See, e.g., E. Main

St. Lofts v. Kent Planning Comm., 11th Dist. Portage No. 2018-P-0004, 2018-Ohio-5342

(city planning commission does not have unlimited discretion when deciding whether to

deny a conditional use permit).

       {¶ 23} While the UTBZA may disagree, this process makes sense when considering

an opposite holding would allow a board of zoning appeals to go completely unchecked in

its application of the relevant zoning laws irrespective of the impact its decision may have

on the public. This would include, as in this case, denying the public access onto an

applicant's property from a public roadway as a condition for granting a conditional use

permit when there was no evidence indicating that decision was necessary for the protection

of neighboring property owners or the general public as a whole. An appeal from an

administrative agency decision exists for a reason. This case is but one example of why

that process exists. The UTBZA's claim otherwise lacks merit.

       {¶ 24} The UTBZA also argues the common pleas court erred by "imposing an

additional 'necessary' requirement" when analyzing its decision in this case. The UTBZA

claims this improperly placed the burden of proof on it to prove the proposed temple

expansion project would result in increased traffic on Klatte Road so as to support the

condition imposed. However, when reviewing the record, we find the common pleas court

was doing nothing more than applying the plain language found in Section 442.1 of the

UTZR in determining whether the UTBZA's decision was unconstitutional, illegal, arbitrary,

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capricious, unreasonable, or unsupported by the preponderance of the substantial, reliable,

and probative evidence. Again, pursuant to UTZR Section 442.1:

             In considering an application for a conditional use the Board of
             Zoning Appeals shall give due regard to the nature and
             condition of all adjacent uses and structures; and in authorizing
             a conditional use the Board may impose such requirements and
             conditions with respect to location, construction, maintenance
             and operation in addition to those expressly stipulated in this
             Resolution for the particular conditional use as the Board may
             deem necessary for the protection of adjacent properties and
             the public interest.

(Emphasis added.)

      {¶ 25} The common pleas court, in properly exercising its review of the UTBZA's

decision, found it was arbitrary and unreasonable for the UTBZA to deem it necessary to

permanently close the Klatte Road entrance to the public as a condition for the approval of

the Hindu Society's conditional use application. The common pleas court also found the

UTBZA's decision was not supported by the record. The common pleas court reached this

decision upon finding the record devoid of any evidence to connect the proposed temple

expansion project with any increased risk to the public traversing Klatte Road than what

already existed. When considering there was no evidence presented to indicate any

increased traffic on Klatte Road would be generated by the temple expansion project, nor

any evidence to indicate the project would impact the ingress and egress of traffic into and

out of Klatte Road itself, the record fully supports the common pleas court's decision.

      {¶ 26} Just as the Hindu Society argued before both the UTBZA and the common

pleas court, the proposed temple expansion project is separate and wholly unrelated to the

Klatte Road entrance onto its property. Two of the neighbors opposing the Hindu Society's

conditional use application specifically stated as much in their testimony before the UTBZA;

one testifying he had "no problem with the addition at all," but that he did have a "major

problem with Klatte Road," while the other testified his only issue was with the width of

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Klatte Road, something that has "been a problem for 20 plus years." The UTBZA's decision

indicates it too had no substantive concerns with the proposed temple expansion project

itself, but that it did have concerns regarding the safety of Klatte Road in general.

       {¶ 27} Given the fact that there was no evidence indicating the proposed temple

expansion project would increase the traffic using the Klatte Road entrance beyond the

current "maybe 10, 14 vehicles a day," nor any evidence that the expansion project would

have any impact on the neighboring property owners at all, the problems associated with

Klatte Road will remain the same irrespective of the proposed temple expansion project

going forward. That is to say the problems with Klatte Road that had occurred during the

previous 20 plus years – all of which are the direct result of the width of the public roadway

– will continue for the next 20 plus years with or without the proposed temple expansion

project being completed.     Therefore, under these circumstances, we agree with the

common pleas court's decision finding the condition imposed by the UTBZA was arbitrary,

unreasonable, and unsupported by the record. The UTBZA's claim otherwise lacks merit.

       {¶ 28} This court further disagrees with the UTBZA's claim that it acted reasonably

in how it chose to "[strike] a balance between the testimony of the neighbors expressing

their concerns and the needs of the Hindu Society." There can be no dispute that the

neighbors who expressed their concerns did so in no uncertain terms. This includes one

witness who testified her only concerns were with how "they" – presumably the motorist she

witnessed using the Klatte Road entrance to enter onto the Hindu Society's property– "fly

down our street, "go off your roads," "pull in your drive," and "never know where they're

going." Public opinion, however, "is not evidence which may be considered when a [board

of zoning appeals] is deciding whether to grant a conditional use permit." Angels for

Animals, Inc. v. Beaver Twp. Bd. of Zoning Appeals, 7th Dist. Mahoning No. 04 MA 80,

2004-Ohio-7209, ¶ 16. This is because "[s]uch testimony cannot rise to the level of the

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reliable, probative, and substantial evidence * * * unless there are facts included as part of

those opinions." Adelman Real Estate Co. v. Gabanic, 109 Ohio App.3d 689, 694 (11th

Dist.1996).

       {¶ 29} Unlike the evidence that was presented in this case, "[t]he evidence presented

in opposition to a conditional use permit should be direct evidence, which is more than

speculation or opinion voiced in terms such as 'might,' 'potential,' 'feels,' and 'wondered.'"

Fallang v. Butler Cty. Bd. of Zoning Appeals, 12th Dist. Butler No. CA97-06-118, 1998 Ohio

App. LEXIS 287, *8 (Feb. 2, 1998). "In other words, while citizens' concerns should be

considered by a board of zoning appeals and the trial court, 'legal matters are determined

by facts, not beliefs or desires.'" Id., quoting Kabatek v. City of North Royalton City Council,

8th Dist. Cuyahoga No. 71942, 1998 Ohio App. LEXIS 11, *7 (Jan. 8, 1998). This is true

even when a conditional use application faces strong opposition for "[t]he objections of a

large number of residents of the affected neighborhood are not a sound basis for the denial

of the permit." Pinnacle Woods Survival Game, Inc. v. Hambden Twp. Zoning Inspector,

33 Ohio App. 3d 139, 140 (11th Dist.1986), quoting SCA Services of Ohio, Inc. v. Ream,

5th Dist. 5533, 1981 Ohio App. LEXIS 13209, *7 (Nov. 10, 1981).

                                         Conclusion

       {¶ 30} Without    addressing whether       the   UTBZA's    decision    constituted   an

unconstitutional taking, we find no error in the common pleas court's decision at issue.

Simply stated, the common pleas court did not err by finding the UTBZA's decision

conditioning the approval of the Hindu Society's conditional use application on the

permanent closer of the Klatte Road entrance was arbitrary, unreasonable, and

unsupported by the record. This is because the common pleas court's decision was, as a

matter of law, supported by a preponderance of reliable, probative, and substantial

evidence. This court must affirm a common pleas court's decision when the decision issued

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by the common pleas court meets this standard.

       {¶ 31} In so holding, we again note the UTBZA's argument before the common pleas

court that the Klatte Road entrance is used so infrequently that its permanent closure would

be a "de minimus depravation" of the Hindu Society's rights. Because the Hindu Society

would suffer only a "de minimus depravation" to its rights, the same must also be true as it

relates to its neighboring property owners. That is to say the public's use of the Klatte Road

entrance onto the Hindu Society's property would be a "de minimus depravation" to

whatever right those property owners may have, if any, in limiting the public's use of the

Klatte Road entrance. Therefore, finding no merit to any of the arguments raised herein,

the UTBZA's single assignment of error is overruled and the common pleas court's decision

is affirmed.

       {¶ 32} Judgment affirmed.


       HENDRICKSON, P.J., and RINGLAND, J., concur.




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