OMNI Property Companies appealed the October 25, 2021 decision of the Lucas County Court of Common Pleas, which denied its administrative appeal regarding the Sylvania Township Board of Zoning Appeals' rejection of its conditional use permit application. The proposed project involved constructing a memory care, assisted living, and congregate care residential facility on approximately 10 acres at two locations on Whiteford Road, authorized under R.C. 519.14 and Sylvania Township Zoning regulations.
The facility design included an 18-unit memory care building, a 41-unit assisted living facility, a 94-unit congregate care building, and eight independent living villas, all connected by enclosed corridors. The property would feature two ingress and egress points on Whiteford Road, a 100-space parking lot, public utilities, a sidewalk, and an eight-foot privacy fence due to nearby residences.
On January 22, 2020, the Toledo-Lucas County Plan Commission staff recommended approval of the permit, citing compatibility with surrounding uses, compliance with zoning requirements, and a lack of adverse impact on neighboring properties. The court affirmed the lower court's decision, finding no abuse of discretion.
Approval of the conditional use request is contingent upon 33 compliance conditions related to sanitary sewer regulations, site grading, a traffic study, road and sidewalk regulations, fire services, landscaping, a privacy fence, use of cement board siding, refuse collection restrictions, and low-profile signage approval. The TLCPC fully recommended approval, and the STPZD staff report supported it for five reasons: alignment with the Sylvania Township Zoning Resolution, suitable transition between residential and commercial uses, consistency with surrounding residential uses, minimal detriment to nearby properties, and adequate public service provisions. The STPZD report added four conditions: installation of sidewalks along Whiteford and Summerfield Roads, an eight-foot privacy fence, downward-directed exterior lighting, and the combination of three parcels into one. OMNI accepted all conditions.
At a public hearing on February 3, 2020, neighboring property owners opposed the request, citing concerns about increased traffic, potential impacts on property enjoyment and values, and the risk of sex offenders being near a school. Specific objections included the proximity of a service drive to residential living areas. The BZA reviewed evidence, including staff reports, the Sylvania Township Land Use Plan, relevant zoning provisions, a traffic impact study, and letters of support. On March 9, 2020, the BZA denied the permit, citing the need for substantial, reliable evidence and clarifying that subjective opinions were insufficient. The BZA noted that while traffic volume on Whiteford Road is high, most residents would not drive, the project would create 60-80 jobs, and traffic impacts would be minimal (less than a 2% increase). OMNI planned to install left turn lanes to mitigate traffic concerns, but the service road's proximity to a residence raised additional issues.
The BZA concluded that a conditional use application could only be granted if it aligns with the Township Zoning Resolution and the Sylvania Township Land Use Plan. The application must meet specific criteria outlined in STZ Resolution 2503(A)(E). These criteria include consistency with zoning objectives, harmony with the area's character, adequate public services, absence of detrimental impacts on welfare, and appropriate traffic management.
The BZA found the proposed development inconsistent with zoning classifications A-4 and R-A, thus failing STZR 2503(A). It determined that the project would not harmonize with the existing character of the vicinity, violating STZR 2503(B). However, it concluded that the development would be adequately served by public utilities and would have minimal traffic impact, satisfying STZR 2503(C). The proximity of a service road to a residence raised concerns about traffic and noise, leading to a failure to meet STZR 2503(D). Finally, the board acknowledged traffic mitigation measures for vehicular approaches, fulfilling STZR 2503(E).
As a result of not meeting all requirements of STZR 2503, the BZA unanimously denied the conditional use request. OMNI subsequently appealed the decision to the Lucas County Court of Common Pleas, claiming that the BZA's denial was arbitrary and not supported by credible evidence. OMNI criticized the BZA for considering neighbor opinions, which centered on traffic, sex offenders, and maintaining neighborhood character, arguing that the proposed residential care facility was a permitted conditional use and should not be denied based on its deviation from surrounding uses.
The Board of Zoning Appeals (BZA) maintained that its decision was based solely on evidence within the record, allowing lay witness testimony regarding traffic effects but admitting only the formal traffic report from OMNI. Speculative testimony about an increase in sex offenders was deemed inadmissible, while witness observations about the area's character were accepted. The BZA contended that OMNI failed to prove that the proposed facility aligned with the objectives of the STZ Resolution or the 2018 Land Use Plan, noting that the facility's size and scope were inconsistent with the A-4 rural residential designation and detrimental to at least one neighboring property.
On October 25, 2021, the trial court denied OMNI’s appeal, rejecting claims that the BZA relied on public opinion and asserting that OMNI received a fair hearing. The court found that OMNI was represented by competent counsel, had opportunities to present its case and cross-examine witnesses, and that the inclusion of irrelevant testimony did not undermine the BZA's judgment. The court confirmed that testimonies from neighbors were fact-based and could be evaluated independently from unsupported assertions.
Regarding the merits, the court clarified that while a residential care facility is a conditional use in an R-4 district, approval is not guaranteed. It cited the STZR, Section 2503, which mandates that the requested use must be consistent with zoning objectives. The court concluded that the BZA's denial was justified based on a thorough examination of the proposed use, location, and surrounding context. OMNI subsequently appealed this decision, arguing that the trial court's affirmation of the BZA's denial was legally erroneous.
OMNI's appeal encompasses three primary arguments: (1) the trial court limited its appellate review of the BZA's decision; (2) the BZA based its decision on unsubstantiated testimony from the February 3, 2020 hearing; and (3) the BZA's conclusion that the proposed facility was incompatible with the neighborhood lacked competent evidence.
The review process for administrative appeals is governed by R.C. Chapter 2506, particularly R.C. 2506.04, which allows the court to evaluate whether the BZA's decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by substantial evidence. The common pleas court is required to presume the BZA's decision is valid, placing the burden on the appellant (OMNI) to prove otherwise.
In contrast, the appellate court's review is more constrained, focusing solely on legal questions and evaluating whether the common pleas court abused its discretion. The appellate court must affirm unless it determines the trial court's decision lacks substantial evidence.
OMNI argues that the trial court misapplied the standard of review by failing to properly weigh evidence and erroneously disregarding substantial testimony that supported the BZA's decision, asserting that such a review should not dismiss competent evidence merely because other testimony may have been deemed less relevant or probative.
OMNI contends that the trial court's interpretation of R.C. 2506.04 undermines the obligation to assess all evidence in the record to determine if the decision is supported by substantial, reliable, and probative evidence. OMNI criticizes the court for adopting an 'indissociable tie' standard, arguing this approach trivializes the statutory requirement by focusing on speculative and unsubstantiated testimony regarding increased traffic and the classification of the proposed facility. OMNI asserts that the court improperly weighed this testimony, which lacks a solid foundation, while ignoring competent evidence. The court clarified that while it must weigh the evidence, it is not obligated to include unsubstantiated opinions in its assessment. It upheld that only reliable and probative evidence, as defined by R.C. 2506.04, should be considered, reaffirming its duty to disregard pure opinion testimony without factual support. OMNI also argues that the board improperly relied on unsworn evidence from neighboring property owners, including statements read by their attorney and unsworn emails. OMNI claims the common pleas court erred by not addressing these improper communications. During the February 3, 2020 hearing, attorney Richard Wolff represented neighbors Glenn and Terri Swimmer, providing the board with packets that included statements and a survey related to the proposed development.
Mr. Wolff expressed the Swimmers' opposition to the proposed OMNI facility, citing its incompatibility with the residential character of the neighborhood and the project's high density on an already congested road. He highlighted that their home is only 30 feet from the facility’s driveway, which would result in noise disturbances from service vehicles adversely affecting their enjoyment of their property. OMNI provided unsworn written statements during the hearing, none of which were disputed, and the evidence presented was deemed properly considered.
The trial court recognized email correspondence regarding the facility but noted that it was not formally introduced as evidence, and the BZA Chairman had forwarded it to counsel for review. Consequently, the BZA’s decision did not reference these documents.
OMNI argued that the BZA's denial of its application lacked sufficient competent evidence, particularly regarding the claim that the proposed use was not harmonious with the surrounding area. It cited R.C. 519.14(C), which allows for conditional zoning certificates if specified uses are included in the zoning resolution, acknowledging that certain uses might not inherently conflict with zoning objectives but depend on surrounding circumstances for compatibility.
OMNI referenced a relevant case, Angels for Animals, Inc. v. Beaver Twp. Bd. of Zoning Appeals, where a conditional use permit for an on-site crematory was initially denied but later reversed upon appeal. The appellate court found that opposition from residents and unsupported lay opinions did not constitute sufficient evidence for denial. It emphasized that a zoning board cannot reject a conditional use permit simply due to local opposition or differences from surrounding uses, as such a denial would effectively rezone the property without proper legislative action.
The court differentiated its ruling from the precedent set in Koch v. Bd. of Zoning Appeals, where the trial court’s denial of a conditional use was upheld based on the standard of substantial evidence. In contrast, in the case at hand, the board’s decision was analyzed through more extensive evidence, including a traffic impact study presented in support of the application for a conditional use permit to build an assisted living facility. The court referenced Heiney v. Sylvania Twp., where the denial was reversed due to lack of substantial evidence, highlighting that speculative concerns from witnesses did not outweigh the probative evidence provided.
Conversely, in Warren Family Funeral Homes, the court upheld the trial court's denial of a crematorium permit based on significant evidence against the application, including a study on property values and resident testimonies. The decision emphasized that the balance of testimony and evidence regarding property impact and congestion was sufficient for the trial court to make its determination without abusing its discretion.
Witness testimonies indicated existing congestion and accessibility issues, with evidence showing that other similar facilities were better situated. Ultimately, the court upheld the trial court’s decision affirming the Board of Zoning Appeals' denial of OMNI's application for a conditional use permit, concluding that the decision was supported by substantial, reliable evidence. The judgment from the Lucas County Court was affirmed, with costs of the appeal assigned to OMNI.
