Al-Khatib v. Harrison Twp. Bd. of Zoning Appeals
| Decision Date | 29 April 2022 |
| Docket Number | 29299 |
| Parties | AMAR AL-KHATIB Plaintiff-Appellee v. HARRISON TOWNSHIP BOARD OF ZONING APPEALS Defendant-Appellant |
| Court | Ohio Court of Appeals |
Civil Appeal from Common Pleas Court Trial Court Case No 2021-CV-1139
GARY C. SCHAENGOLD, Atty. Reg. No. 0007144, Attorney for Plaintiff-Appellee
SCOTT D. PHILLIPS, Atty. Reg. No. 0043654 and AMELIA N BLANKENSHIP, Atty. Reg. No. 0082254, Attorneys for Defendant-Appellant
{¶ 1} The Harrison Township Board of Zoning Appeals ("Board") appeals from an order reversing its denial of a Certificate of Zoning Compliance. The appellee is Amar Al-Khatib, who is the sole and managing member of Jack Boy, LLC, an Ohio limited liability company doing business as Coronette Market. Al-Khatib attempted to obtain the certificate for purposes of operating a convenience store.
{¶ 2} According to the Board, its decision denying the certificate was supported by substantial, reliable, and probative evidence. The Board also argues that the trial court improperly substituted its judgment for that of the Board. Finally, the Board contends that the trial court improperly concluded that an illness that prevented a prior owner from continuing his use of property was not reasonably interpreted as a "voluntary" discontinuance of a nonconforming use.
{¶ 3} We conclude that the trial court's order was not unreasonable or an abuse of discretion. The court found that illness which prevented a property owner from continuing his use of the property did not constitute "voluntarily" discontinuing a nonconforming use. Because the Board's zoning ordinance and zoning statutes do not define the term "voluntarily," the common meaning as an act of will of one's own choice applied. The trial court's conclusion that the owner's illness was involuntary and did not cause discontinuance therefore was reasonable. There was also no affirmative evidence establishing a manifest intention to abandon the nonconforming use.
{¶ 4} In addition, the trial court did not improperly substitute its judgment for that of the Board. While the court mentioned a few facts that were irrelevant to the issue of a nonconforming use, this discussion simply reinforced the fact that the Board's decision was not based on the issue before it, which was whether the prior property owner had voluntarily discontinued a nonconforming use. Accordingly, the judgment of the trial court will be affirmed.
{¶ 5} According to the administrative record filed in the trial court, on December 17, 2020, Al-Khatib applied for a certificate of zoning compliance for a property located at 2599 Coronette Avenue in Harrison Township. According to the application, Al-Khatib intended to operate a convenience store selling soft drinks, snacks, beer, wine, tobacco, groceries, and lottery tickets. On January 13, 2021, the township zoning administrator denied the application.
{¶ 6} The administrator informed Al-Khatib that the property was zoned residential (R-4), and convenience stores were not permitted. While a commercial use had previously been allowed as a nonconforming use, the administrator noted that the convenience store had been voluntarily closed for more than two years, and the nonconforming use had expired.
{¶ 7} After receiving the denial, Al-Khatib appealed to the Board on January 29, 2021. The Board then scheduled a public hearing on the issue, to be held on March 8, 2021. A staff report provided to the Board offered two options: (1) upholding the administrator's decision as an accurate interpretation of the zoning code; or (2) finding that the administrator erroneously interpreted the zoning code. In the latter circumstance, the Board could modify the administrator's decision and could potentially approve the certificate with or without modifications.
{¶ 8} At the March 8, 2021 hearing, Emily Crow presented the staff report to the Board. Hearing Transcript ("Tr."), p. 2-6. Crow did not discuss the issue of voluntary discontinuance of the use at that time, although her staff report mentioned that "discontinuance of a nonconforming use of land or a building for a period of more than two years removes the existing nonconforming use status." Staff Report (March 5, 2021), p. 3.
{¶ 9} During the hearing, Al-Khatib's attorney indicated that a grocery had been located on the property for around a half-century. It was called Bill's Market, and Bill then passed the store to his son, "Bud," who operated it for a number of years. However, about four years previously, ill health had forced Bud to close the store. Id. at p. 8.
{¶ 10} During the hearing, Al-Khatib testified and indicated that he would like to open a grocery store in the area because the residents had experienced a tornado and had lost a Kroger store. The nearest grocery was a Wal-Mart located 3.3 miles away. Al-Khatib further stressed that he had contacted many community members and the reaction had been positive. The nearest neighbor had also created a petition in favor of the store. Al-Khatib stated that he wanted to operate a full-service market, with staples being bread, milk, eggs, fruits, and vegetables, and that while tobacco and alcohol would be offered, the store's main purpose would be the groceries themselves. Id. at p. 10-13.
{¶ 11} According to Crow, the grocery store had existed before zoning was put in place and had continued as a nonconforming use. Id. at p. 13-14. There was no dispute at the hearing about the fact that the previous owner had become ill and that more than two years had lapsed since he had operated the store. Id. at p. 14 and 17.
{¶ 12} During the hearing, various community members also testified, including Elesha Snyder, Tom Schindler, Cathy Grubb, Rose Lovely, and David McDowell. Snyder, the operator of a family restaurant in the area, stated that she had been speaking to customers for months about the issue and had heard nothing but praise for the opening of the store. Tr. at p. 18-19. Schindler owned rental properties in the area and said he had been at the market when it was operating. He also commented that having a market for his tenants would be beneficial. Id. at p. 21-22.
{¶ 13} Grubb was a neighbor who felt the prior market had been safe for her grandchildren. She favored Al-Khatib's store if it contained food staples, had no drug paraphernalia, and had no alcohol sales at the front. Id. at p. 23-24. Lovely, another neighbor, had lived right next to the store since around 1948. She had posted a petition online and had 222 signatures in favor of the store, with no negative comments. Id. at p. 26-28. In addition, Lovely stated that the property had always been a market until Bud got sick. Id. at p. 28. Finally, McDowell (who appeared to live in the area) said that he would make sure no problems occurred in the area. Id. at p. 29-30.
{¶ 14} After the testimony ended, the Board president asked for comments from anyone opposed to Al-Khatib's store, but no one responded. Id. at p. 30-31. The Board members then discussed the situation. Nothing was said about interpreting the zoning resolution; the discussion primarily centered on whether the Board members felt having a store in the location was a good or bad idea for the neighborhood. Id. at p. 31-38. Earlier, during the testimony, one board member had asked Al-Khatib's counsel how the term "voluntary" would be construed, and counsel had replied that it would be a "commonsense approach to the use of the term for the Board to adopt as its own." Id. at p. 16.
{¶ 15} Following the discussion, the Board voted on a motion to uphold the administrator's decision. Id. at p. 39. Two members voted for the motion, and two opposed it. Id. at p. 41. As a result, the administrator's decision to deny the certificate was upheld. Id. at p. 42.
{¶ 16} The Board then sent a written notice of its decision to Al-Khatib, who timely filed an administrative appeal in the trial court. After the appeal was filed, Al-Khatib filed a motion asking the court for permission to supplement the record with an affidavit from Dallas Sweigart, Jr. (known as "Bud"), who was the previous owner of Bud's Corner Market. However, the trial court overruled the request.
{¶ 17} After the parties filed briefs, the trial court issued an order on October 14, 2021, reversing the Board's decision. The Board timely appealed from the court's order.
{¶ 18} The Board's sole assignment of error states that:
The Trial Court Erred by Reversing the Decision of the Harrison Township Board of Zoning Appeals.
{¶ 19} Under this assignment of error, the Board has asserted three reasons why the trial court's decision was incorrect: (1) the Board's decision was supported by substantial, reliable, and probative evidence; (2) the trial court substituted its own judgment for that of the Board and considered irrelevant evidence; and (3) public policy supported terminating the nonconforming use. Before we discuss these points, we will set forth the applicable standards of review.
{¶ 20} The appeal in this case was taken pursuant to R.C. 2506.01(A), which allows appeal to the common pleas court from decisions of political subdivisions. Review standards in this situation are well-settled. A common pleas court "must weigh the evidence in the record, and whatever additional evidence may be admitted pursuant to R.C 2506.03, to determine whether there exists a preponderance of reliable, probative and substantial evidence to support the agency decision." Dudukovich v. Lorain Metropolitan Hous. Auth., 58 Ohio St.2d 202, 207, 389 N.E.2d 1113 (1979). However, ...
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