HARRY HILL, Plaintiff-Appellant, - Vs - TATE TOWNSHIP BOARD of ZONING APPEALS

Page XXX

Page XXX

1996 Ohio App. LEXIS 3961, *

41 of 49 DOCUMENTS

HARRY HILL, Plaintiff-Appellant, - vs - TATE TOWNSHIP BOARD OF ZONING APPEALS, Defendant-Appellee.

CASE NO. CA96-01-003

COURT OF APPEALS OF OHIO, TWELFTH APPELLATE DISTRICT, CLERMONT COUNTY

1996 Ohio App. LEXIS 3961

September 16, 1996, Decided

DISPOSITION: [*1] Judgment affirmed.

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff land owner appealed a decision of the Clermont County Court of Common Pleas (Ohio), which entered a judgment affirming a determination of defendant, the Tate Township Board of Zoning Appeals, that denied the owner's application for a zoning certificate for a structure on the owner's land. Pursuant to the Board's counterclaim, the trial court also enjoined the owner from violating the township's zoning resolution.

OVERVIEW: When a zoning inspector inquired about a structure on the owner's property, the owner and his son stated that it was a "garage addition." The owner was notified that the structure violated setback requirements of the township's zoning resolution. A zoning certificate for the structure was denied because the Board found that it was not exempt from regulation as a use incident to an agricultural purpose, pursuant to Ohio Rev. Code Ann. 519.21(A), and that it was subject to the setback requirements. The trial court properly affirmed that determination because there was no evidence to support the fact that the structure had an agricultural purpose. The structure was not directly and immediately related to an agricultural use, and it was not usually or naturally and inseparably dependent upon an agricultural use. Where the structure resembled a garage and where neither the owner nor his son had previously farmed the land, there was substantial evidence to support the Board's determination. Further, the owner did not own the necessary machinery to farm the land. The zoning resolution was not required to delineate every possible use that could be deemed "agricultural."

OUTCOME: The court affirmed the trial court's judgment.

CORE TERMS: zoning, township, agricultural purpose, common pleas, garage, inspector, certificate, violating, agricultural use, enjoined, exempt, agriculture, setback, evidence to support, preponderance, constructed, probative, complains, reliable, assignment of error, built

LexisNexis(R) Headnotes

Environmental Law > Zoning & Land Use > Comprehensive & General Plans

Governments > Local Governments > Administrative Boards

Real Property Law > Zoning & Land Use > Ordinances

[HN1] Ohio Rev. Code Ann. ß 519.02 authorizes township zoning by providing that a board of township trustees may in accordance with a comprehensive plan regulate by resolution the uses of land for trade, industry, residence, recreation, or other purposes in the unincorporated territory of such township. Ohio Rev. Code Ann. ß 519.21(A), however, limits a township's zoning authority as follows: Except as otherwise provided in ß 519.21(B), Ohio Rev. Code Ann. ßß 519.02 to 519.25 confer no power on any township zoning commission, board of township trustees, or board of zoning appeals to prohibit the use of any land for agricultural purposes or the construction or use of buildings or structures incident to the use for agricultural purposes of the land on which such buildings or structures are located, and no zoning certificate shall be required for any such building or structure.

Administrative Law > Judicial Review > Reviewability > Factual Determinations

Real Property Law > Zoning & Land Use > General Overview

[HN2] Under Ohio Rev. Code Ann. ß 519.21, a structure may be incident to the use for agricultural purposes of the land where the structure is "directly and immediately" related to an agricultural use, or is "usually or naturally and inseparably" dependent upon an agricultural use. Whether land is used for an agricultural purpose so as to be exempt from township zoning pursuant to ß 519.21 is a factual determination for the trier of fact.

Administrative Law > Judicial Review > Standards of Review > Substantial Evidence

Real Property Law > Zoning & Land Use > Judicial Review

[HN3] In reviewing a zoning board's decision, a court is bound to presume that the decision was reasonable and valid. On appeal, therefore, the burden is necessarily upon an appellant to rebut the presumption of validity. Courts reviewing an administrative decision must weigh the evidence in the record to determine whether there is a preponderance of reliable, probative, and substantial evidence to support the decision; a reviewing court, however, should not substitute its judgment for that of the agency.

Environmental Law > Zoning & Land Use > Judicial Review

Governments > Legislation > Interpretation

Real Property Law > Zoning & Land Use > Judicial Review

[HN4] A zoning resolution need not delineate every possible use that may be deemed "agricultural." The zoning resolution is subject to interpretation by a zoning inspector and a Board of Zoning Appeals, and, of course, that interpretation is subject to review by the court of common pleas and by the court of appeals.

COUNSEL: George P. Leicht, 202 East Plane Street, Bethel, Ohio 45106-0400, for plaintiff-appellant.

Burreson, Bradford & Hill, John C. Korfhagen, 40 South Third Street, Batavia, Ohio 45103, for defendant-appellee.

JUDGES: YOUNG, J., WALSH, P.J., concurs. KOEHLER, J., dissents.

OPINION BY: YOUNG

OPINION

OPINION

YOUNG, J. Plaintiff-appellant, Harry Hill, appeals the Clermont County Court of Common Pleas decision that affirmed the denial of Hill's application for a building certificate and enjoined Hill from violating the Tate Township Zoning Resolution. The issue here is whether the building in question was exempt from zoning regulation pursuant to R.C. 519.21(A) as a structure to be used incident to an agricultural purpose.

Hill owns a 61.9 acre parcel of land located in an agriculturally zoned district of Tate Township, Clermont County, Ohio. On October 25, 1994, the Tate Township Zoning Inspector contacted Hill about a structure being built on Hill's property. Hill informed the inspector that the structure was a "garage addition." Hill's son, Richard, also [*2] subsequently told the inspector that the structure was a garage addition. The zoning inspector advised Hill and his son that construction of the building violated setback requirements set forth in the Tate Township Zoning Resolution (the "zoning resolution").

After a hearing, the Tate Township Board of Zoning Appeals (the "Board") denied Hill's application for a zoning certificate for the structure. 1 The Board did not believe that Hill was constructing the building for use incident to an agricultural purpose and thus concluded that the structure was subject to the zoning resolution's setback requirements. Pursuant to R.C. Chapter 2506, Hill filed notice of appeal in the Clermont County Court of Common Pleas on January 5, 1995. The Board filed an answer and a counterclaim seeking to enjoin Hill from violating the zoning resolution. On July 14, 1995, Hill filed a motion to submit additional evidence and testimony. The common pleas court held an evidentiary hearing on August 16, 1995. By decision issued September 22, 1995, and supplemental decision dated November 7, 1995, the lower court upheld the Board's decision. On December 21, 1995, the court issued a final judgment entry that [*3] enjoined Hill from violating the Tate Township Zoning Resolution.

1 The Tate Township Zoning Resolution requires an applicant to file with the Zoning Administrator to obtain a zoning certificate. The Zoning Administrator apparently directed Hill to file directly with the Board of Zoning Appeals.

On appeal to this court, Hill argues under a single assignment of error that the lower court erroneously affirmed the Board's decision and enjoined him from violating the zoning resolution. The parties apparently agree that the structure in question does not meet applicable setback acquirements set forth in the zoning resolution. Hill insists, however, that the structure was exempt from zoning regulation as a building incident to the use of the land for agricultural purposes. Hill specifically argues that the common pleas court failed to examine all of the evidence presented, that the zoning regulation was impermissibly vague, and that the Board's decision was unsupported by the evidence.

R.C. 519.02 [HN1] authorizes township [*4] zoning by providing that "the board of township trustees may in accordance with a comprehensive plan regulate by resolution *** the uses of land for trade, industry, residence, recreation, or other purposes in the unincorporated territory of such township *** ." R.C. 519.21(A), however, limits a township's zoning authority as follows:

Except as otherwise provided in division (B) of this section, sections 519.02 to 519.25 of the Revised Code confer no power on any township zoning commission, board of township trustees, or board of zoning appeals to prohibit the use of any land for agricultural purposes or the construction or use of buildings or structures incident to the use for agricultural purposes of the land on which such buildings or structures are located ***, and no zoning certificate shall be required for any such building or structure.

[HN2] A structure may be "incident to the use for agricultural purposes of the land" where the structure is "directly and immediately" related to an agricultural use, or is "usually or naturally and inseparably" dependent upon an agricultural use. State v. Huffman (1969), 20 Ohio App. 2d 263, 269-70, 253 N.E.2d 812. Whether land is used for an [*5] agricultural purpose so as to be exempt from township zoning pursuant to R.C. 519.21 is a factual determination for the trier of fact. Id. at 269; see, also, 1962 Ohio Atty.Gen.Ops.No. 3440 (structure used only as a dwelling house for a person engaged in agriculture was not a structure incident to an agricultural use of land so as to be exempt by the terms of R.C. 519.21).

Hill complains that there was insufficient evidence to support a finding that the structure at issue was not being constructed for use incident to an agricultural purpose. [HN3] In reviewing a zoning board's decision, this court is bound to presume that the decision was reasonable and valid. Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals (1993), 66 Ohio St. 3d 452, 456, 613 N.E.2d 580. On appeal, therefore, the burden is necessarily upon the appellant to rebut the presumption of validity. Courts reviewing an administrative decision must weigh the evidence in the record to determine whether there is a preponderance of reliable, probative, and substantial evidence to support the decision; a reviewing court, however, should not substitute its judgment for that of the agency. Dudukovich [*6] v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St. 2d 202, 207, 389 N.E.2d 1113.

There is a preponderance of reliable, probative, and substantial evidence in the record to support a determination that the structure in question was not being constructed for agricultural purposes. Hill and his son both initially told the zoning inspector that the structure was being built as a "garage addition." Photographs of the structure indicate that it strongly resembles a garage. 2 Neither Hill nor his sons had previously farmed the land. The lower court also determined that Hill did not own the necessary machinery to farm the land. The Board's determination that the building was not to be used for agricultural purposes is therefore supported by competent credible evidence in the record.

2 2. "Garage" has been defined as "a building or compartment of a building used for housing an automotive vehicle." Webster's Third New International Dictionary (1981) 934.

Hill complains that the lower court did not consider all of the [*7] evidence presented at trial. There is simply no indication, however, that the common pleas court did not consider all of the evidence in arriving at its final decision. Instead, it is apparent that neither the Board nor the common pleas court found Hill's evidence persuasive.

Hill also apparently does not believe that the zoning resolution adequately defines what activities fall within the definition of "agricultural use." [HN4] The zoning resolution, however, need not delineate every possible use that may be deemed "agricultural." The zoning resolution is subject to interpretation by the zoning inspector and the Board, and, of course, that interpretation is subject to review by the court of common pleas and by this court. This court has concluded that the Board's interpretation of the zoning resolution in light of the pertinent facts was reasonable.

The common pleas court did not err in affirming the Board's decision to deny Hill a zoning certificate and in enjoining Hill from violating the zoning resolution. Hill's single assignment of error is therefore overruled.

Judgment affirmed.

WALSH, P.J., concurs.

KOEHLER, J., dissents.

DISSENT BY: KOEHLER

DISSENT

KOEHLER, J., dissenting [*8] . Land use regulations are just that. It is the actual use of the land, not the possible, speculative, or intended use which must be considered.

R.C. 519.21(A) prohibits interference with uses of land incidental to agriculture. How appellant ultimately uses his garage addition should determine the issue. If the structure is not used as incident to agriculture, then such use could be enjoined. Appellant would then suffer the consequences of his decision.

The decision of the trial court should be vacated and the cause dismissed. Therefore, I dissent.