Three Wide Entertainment v. Athens Bd. of Zoning Appeals

Citations: 2011 Ohio 2304; 194 Ohio App. 3d 1; 954 N.E.2d 191Docket: 10CA33

Court: Ohio Court of Appeals; May 10, 2011; Ohio; State Appellate Court

Original Court Document: View Document

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The City of Athens Board of Zoning Appeals appeals a decision by the Athens County Court of Common Pleas, which vacated the board's denial of zoning permits for Three Wide Entertainment to operate an adult-entertainment business. The court found that the board applied the incorrect legal standard in denying the permits. In December 2007, Three Wide submitted an application for a 'Private Club/Assembly Hall' for dancing and entertainment, which was referred to the board. After a March 2008 hearing, the board unanimously denied the application, stating it needed to determine if the proposed use was permitted and the parking requirements. 

In May 2008, Three Wide submitted three more applications for different uses, each describing operation as a sexually oriented business. The Zoning Administrator denied these applications based on the board's prior resolution. The board again upheld the denial after a hearing. Three Wide appealed to the court, which ruled that the board had erred in its legal assessment but did not require the approval of the permits or provide specific instructions for the board. The board contends that the common pleas court erred by concluding it applied the wrong standards, noting that the transcripts indicated the board may have understood its role and applicable laws.

An administrative appeal under R.C. Chapter 2506 is being addressed, governing the roles of common pleas and appellate courts in reviewing final orders or decisions. The common pleas court can determine if an order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by substantial evidence, and may affirm, reverse, vacate, modify, or remand the decision. Appeals from the common pleas court to appellate courts are limited to questions of law and do not allow the appellate court to weigh evidence as extensively as the common pleas court. The appellate court's role is to review the trial court’s legal application for abuse of discretion, defined as an unreasonable or arbitrary attitude, while maintaining a narrow scope of review. In this case, the common pleas court found that the board applied the incorrect legal standard when denying permit applications, necessitating an examination of whether the correct legal standard was applied and if there was any abuse of discretion. The analysis will also include a review of the relevant sections of the Athens City Code prior to April 7, 2008, specifically regarding the duties of the zoning administrator.

Property owners can appeal zoning administrator decisions to the Board of Zoning Appeals (BZA) under A.C.C. 23.07.03(A), which allows for administrative review of any alleged errors made by the zoning inspector or other officials. The BZA's powers are limited by A.C.C. 23.07.04 and can only exercise authority granted by the city council as per the Ohio Revised Code.

The property in question, owned by Three Wide, is situated in a B-3 Zone, the least restrictive zone except for industrial zones. Principal permitted uses in B-3 Zones are outlined in A.C.C. 23.04.07 and include uses permitted in B-2D Zones, which cover entertainment establishments that must be at least 100 feet from any residential zone. A.C.C. 23.04.07(A)(12) allows for other uses determined by the BZA to be of a similar character to those permitted.

The BZA held hearings on Three Wide's permit applications on March 11 and May 13, 2008, concluding that the proposed business did not qualify as a principal permitted use in a B-3 Zone and was not of the same general character as specified uses. However, the common pleas court vacated the BZA's decision without concluding on the business's qualification, citing that the board did not apply the correct legal standards in their review. The court noted instances where board members demonstrated confusion about their roles and incorrectly referenced standards not applicable to their review, such as moral considerations and community appropriateness.

The common pleas court determined that the standards and criteria for evaluating a proposed use under the Athens City Zoning Code were not appropriately applied by the board. The board's review was improperly expanded beyond whether Three Wide’s proposal qualified as a principal permitted use or was of a similar character to those uses specified in the zoning code. Instead of adhering to this standard, the board considered extraneous factors, such as the existing businesses in the area and the appropriateness of the proposed use for the community. These considerations were deemed outside the board's purview and should have been addressed through legislative action by the City Council.

While some board members recognized their role and stated that morality was not a factor in their decision-making, the overall sentiments expressed by board members and participants reflected a bias against the proposed entertainment use, driven by concerns over potential moral decay and negative impacts on the neighborhood. 

The reviewing court confirmed that it did not possess the authority to reassess the evidence as the common pleas court did. Its role was limited to evaluating whether the lower court applied the correct legal standard and whether it abused its discretion. Following a thorough review of the record, the court found that the common pleas court had correctly identified the legal standard and that its decision was justified. Consequently, the board's assignment of error was overruled, and the original judgment was affirmed.