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Source: Legal > States Legal - U.S. > Ohio > Find Cases > OH State Cases, Combined
Terms: northwood home owners zanesville (Suggest Terms for My Search)

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2007-Ohio-6996, *; 2007 Ohio App. LEXIS 6118, **
NORTHWOOD HOME OWNERS ASSOCIATION, ET AL, Plaintiffs-Appellants -vs- CITY OF ZANESVILLE,
ET AL, Defendants-Appellees
Case No. CT2007-0016
COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT, MUSKINGUM COUNTY
2007-Ohio-6996; 2007 Ohio App. LEXIS 6118
December 26, 2007, Date of Judgment Entry
PRIOR HISTORY: [**1]
CHARACTER OF PROCEEDING: Administrative appeal from the Muskingum County Court of Common
Pleas, Case Nos. CH2004-0260 and CF2005-0609.
DISPOSITION: Affirmed.
CASE SUMMARY
PROCEDURAL POSTURE: Appellant home owners association (HOA) sought review of judgments
from the Muskingum County Court of Common Pleas (Ohio), which affirmed decisions by appellee, a
city board of zoning appeals (BZA). The BZA had found that a zoning change had been made to
appellee owner's property from multi-family residential use to commercial use.
OVERVIEW: The owner's property was adjacent to the HOA's residential community. The property
was previously zoned for high density multi-family use. After comprehensive zoning for the city was
enacted and a new zoning map was adopted, the HOA challenged the alleged rezoning of the
owner's property for an office park, which was a commercial zoning designation. The HOA raised the
issue to the city planning commission, asserting that a zoning change to the owner's property on
the zoning map was inaccurate. The planning commission disagreed, which decision was affirmed by
the BZA and appealed to the trial court. The HOA also brought a second matter directly to the BZA,
seeking an interpretation of the zoning map. The BZA found that the property was zoned for an office
park, and the HOA sought further review. The trial court affirmed both decisions. On further review,
the court found that the trial court did not err as a matter of law or abuse its discretion under R.C.
2506.04 in affirming the administrative decisions, as they were supported by substantial evidence.
The zoning map was found accurate, based on the supporting testimony, such that there was no
violation of Evid. R. 1002 and 1004.
OUTCOME: The court affirmed the judgments of the trial court.

CORE TERMS: zoning, common pleas, map, matter of law, reliable, best evidence rule, assignment
of error, preponderance, probative evidence, abuse of discretion, standard of review, capricious,
photograph, recording, ordinance, parcel, questions of law, substantial evidence, administrative
agency, original writing, probative, destroyed, accuracy, zoning change, zoning ordinances, subject
property, office park, recommendation, incorrect, asking

LEXISNEXIS® HEADNOTES

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Real Property Law > Zoning & Land Use > Administrative Procedure
HN1

Zanesville, Ohio, Zoning Ordinance § 1105.13 provides the Zanesville, Ohio, Board of
Zoning Appeals may only reverse a decision of the Zanesville, Ohio, Planning Commission if
it was: (1) arbitrary or capricious; (2) was based on an erroneous finding of a material fact;
(3) constituted an abuse of discretion; or (4) was based on an erroneous interpretation of
the Zanesville Zoning Code or zoning law. More Like This Headnote

Administrative Law > Judicial Review > Standards of Review > General Overview
Real Property Law > Zoning & Land Use > Judicial Review
HN2

Construing the language of R.C. 2506.04, the standard of review to be applied by Ohio
common pleas courts and courts of appeals in R.C. Chapter 2506 administrative appeals has
been distinguished. A common pleas court considers the "whole record," including any new
or additional evidence admitted under R.C. 2506.03, and determines whether the
administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or
unsupported by the preponderance of substantial, reliable, and probative
evidence. More Like This Headnote

Administrative Law > Judicial Review > Reviewability > Questions of Law
Administrative Law > Judicial Review > Standards of Review > Abuse of Discretion
Administrative Law > Judicial Review > Standards of Review > Substantial Evidence
Real Property Law > Zoning & Land Use > Judicial Review
HN3

The standard of review to be applied by an Ohio court of appeals in an R.C. 2506.04 appeal
is "more limited in scope" than that of a common pleas court. Section 2506.04 grants a
more limited power to the court of appeals to review the judgment of the common pleas
court only on "questions of law," which does not include the same extensive power to weigh
the preponderance of substantial, reliable and probative evidence, as is granted to the
common pleas court. It is incumbent on the trial court to examine the evidence. Such is not
the charge of the appellate court. The fact that the court of appeals, or the Ohio Supreme
Court, might have arrived at a different conclusion than the administrative agency is
immaterial. Appellate courts must not substitute their judgment for those of an
administrative agency or a trial court absent the approved criteria for doing so. Appellate
review, therefore, is properly limited to determining whether, as a matter of law, a decision
of the court of common pleas is supported by a preponderance of reliable, probative, and
substantial evidence. Additionally, within the ambit of "questions of law" for appellate court
review would be abuse of discretion by the common pleas court. The term "abuse of
discretion" implies the court's attitude is unreasonable, arbitrary or
unconscionable. More Like This Headnote

Evidence > Documentary Evidence > Best Evidence Rule

HN4

The "best evidence rule" provides that to prove the content of a writing, recording, or
photograph, an original writing, recording, or photograph is required, except as otherwise
provided in these rules. Evid. R. 1002. The "best evidence rule" rests on the fact that an
original writing is more reliable, complete and accurate as to its contents and meaning. The
original is not required, and other evidence is admissible, if: 1) All originals are lost or have
been destroyed, unless the proponent lost or destroyed them in bad faith; 2) The original is
not obtainable; 3) The original is in possession of the opponent; or 4) The writing,
recording, or photograph is not closely related to a controlling issue. Evid. R.
1004. More Like This Headnote | Shepardize: Restrict By Headnote

COUNSEL: For Plaintiffs-Appellants: SAMUEL N. LILLARD
, ELIABETH J. BIRCH, Columbus, OH;
WILLIAM J. TAYLOR
, SCOTT D. EICKELBERGER
, Zanesville, OH.
For Defendant-Appellee: MARK W BASERMAN

, Millersburg, OH.

JUDGES: Hon: W. Scott Gwin , P.J., Hon: William B. Hoffman , J., Hon: Patricia A. Delaney , J.
Hoffman , J., and Delaney , J., concur.
OPINION BY: W. Scott Gwin
OPINION

Gwin , P.J.
[*P1] The Northwood Home Owners Association appeals two judgments of the Court of Common
Pleas of Muskingum County, Ohio, which affirmed the decisions of the Board of Zoning Appeals of the
City of Zanesville. Appellants assigns two errors to the common pleas court:
[*P2] "I. THE TRIAL COURT'S DECISION THAT THE ZANESVILLE BOARD OF ZONING APPEALS'
INTERPRETATION OF ORDINANCE 90-19 WAS SUPPORTED BY RELIABLE, PROBATIVE AND SUBSTANTIAL
EVIDENCE WAS ERRONEOUS AS A MATTER OF LAW.
[*P3] "II. THE TRIAL COURT'S DECISION NOT TO APPLY THE BEST EVIDENCE RULE WAS INCORRECT
AS A MATTER OF LAW."
[*P4] The Northwood Home Owners Association is a residential community in Zanesville,
Muskingum County, Ohio. It appeals from two separate determinations of [**2] the Board of Zoning
Appeals with different procedural postures. Both of these appeals deal with the zoning of a parcel of
land of approximately 10.5 acres, adjacent to the Northwood properties. Appellee The Genesis Health
System owns the property, and also owns and operates a hospital facility known as the Bethesda
Campus. From 1973 to 1990, the property was zoned RM-2, high density multi-family use. In 1990, the
City of Zanesville enacted comprehensive zoning for the entire city, and adopted a new zoning district
map. The issue is whether the subject property was rezoned O-2, office park, a commercial zoning
designation, in 1990.
[*P5] In the first appeal, appellant brought the matter before the Planning Commission, arguing the
zoning map showing the change was incorrect, and asking the Planning Commission to modify it. The
Planning Commission reviewed the matter, and decided to make no recommendation to City Council to
modify the zoning or change the map.
[*P6] Appellant then appealed the matter to the Board of Zoning Appeals. HN1 Section 1105.13 of
the zoning ordinances provides the Board of Zoning Appeals may only reverse a decision of the Planning
Commission if it was (1) arbitrary or capricious; [**3] (2) was based on an erroneous finding of a

material fact; (3) constituted an abuse of discretion; or (4) was based on an erroneous interpretation of
the Zanesville Zoning Code or zoning law. The Board of Zoning Appeals denied the appeal, finding the
Planning Commission's decision did not meet the criteria under which the Board could reverse it. From
this decision, appellant appealed to the Common Pleas Court.
[*P7] In the second case, appellant brought the matter directly before the Board of Zoning Appeals,
asking it to interpret the zoning map which showed the zoning change. The Board of Zoning Appeals
found the subject properties are zoned O-2, office park. Appellant appealed this decision to the Court of
Common Pleas.
[*P8] The trial court's judgment entry of March 30, 2007 states it reviewed the minutes of the
Planning Commission meetings, and determined the Commission only examined the current zoning of
the parcel, and not the 1990 zoning process or the 1990 ordinance enactment. The court found
appellant had failed to put forth any evidence before the Planning Commission indicating the current
zoning required a change, and for this reason, the Planning Commission correctly decided to make
[**4] no recommendation it be changed.
[*P9] Addressing the second appeal, the court found the city offered a map, along with supporting
evidence, indicating the map for 1990 which showed the zoning change from RM-2 to O-2 was accurate.
The court found appellant presented the testimony of Don Mason, who was the Mayor of Zanesville in
1990, and Robert Guentter, who was the Associate Planner for the City in 1990. Neither could identify
the map offered by the City as correct, and neither recalled the zoning of the subject parcel had been
changed in 1990.
[*P10] The trial court found neither of the Board of Zoning Appeals' decisions was arbitrary or
capricious and both were supported by a preponderance of substantial, reliable, and probative evidence.
The court affirmed both decisions of the Board of Zoning Appeals.
[*P11] In Henley v. City of Youngstown Board of Zoning Appeals, 90 Ohio St.3d 142, 735 N.E.2d 433,
2000 Ohio 493, the Ohio Supreme Court explained: HN2 "[c]onstruing the language of R.C. 2506.04,
we have distinguished the standard of review to be applied by common pleas courts and courts of
appeals in R.C. Chapter 2506 administrative appeals. The common pleas court considers the 'whole
record,' including [**5] any new or additional evidence admitted under R.C. 2506.03, and determines
whether the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or
unsupported by the preponderance of substantial, reliable, and probative evidence. See Smith v.
Granville Twp. Bd. of Trustees (1998), 81 Ohio St.3d 608, 612, 1998 Ohio 340, 693 N.E.2d 219, 223,
citing Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d 202, 206-207, 12 O.O.3d 198,
201-202, 389 N.E.2d 1113, 1116-1117.
[*P12] HN3 "The standard of review to be applied by the court of appeals in an R.C. 2506.04 appeal
is 'more limited in scope.' (Emphasis sic.) Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, 12 OBR 26,
30, 465 N.E.2d 848, 852. 'This statute grants a more limited power to the court of appeals to review the
judgment of the common pleas court only on 'questions of law,' which does not include the same
extensive power to weigh 'the preponderance of substantial, reliable and probative evidence,' as is
granted to the common pleas court.' Id. at fn. 4. 'It is incumbent on the trial court to examine the
evidence. Such is not the charge of the appellate court. * * * The fact that the court of appeals, or this
court, might [**6] have arrived at a different conclusion than the administrative agency is immaterial.
Appellate courts must not substitute their judgment for those of an administrative agency or a trial court
absent the approved criteria for doing so.' Lorain City School Dist. Bd. of Edn. v. State Emp. Relations
Bd. (1988), 40 Ohio St.3d 257, 261, 533 N.E.2d 264, 267." Henley at 147.
[*P13] Appellate review, therefore, is properly limited to determining whether, as a matter of law, the
decision of the court of common pleas is supported by a preponderance of reliable, probative, and
substantial evidence. Additionally, " '[w]ithin the ambit of "questions of law" for appellate court review
would be abuse of discretion by the common pleas court.' " Id. at 148, 735 N.E.2d 433, citing Kisil, at
34. The Supreme Court has frequently defined the term "abuse of discretion" as implying the court's
attitude is unreasonable, arbitrary or unconscionable, see, e.g. Blakemore v. Blakemore (1983), 5 Ohio

St. 3d 217 at 219, 5 Ohio B. 481, 450 N.E.2d 1140.
I.
[*P14] Appellant's first assignment of error argues the decision of the trial court was erroneous as a
matter of law.
[*P15] In the first appeal, the court of common pleas found appellant had not presented any evidence
[**7] upon which the Planning Commission could recommend the zoning be changed. In the second
appeal, essentially, both parties submitted evidence on the accuracy and authenticity of the 1990 zoning
map, and the fact finder found appellees' evidence more persuasive. We have reviewed the record, and
we find, based on our limited standard of review, the court of common pleas did not err as a matter of
law, nor did it abuse its discretion, when it affirmed the decisions of the Board of Zoning Appeals.
[*P16] The first assignment of error is overruled.
II.
[*P17] In its second assignment of error, appellants argue the trial court erred as a matter of law in
not applying the best evidence rule to the question of the accuracy of the zoning map. HN4 The "best
evidence rule" provides, "[t]o prove the content of a writing, recording, or photograph, the original
writing, recording, or photograph is required, except as otherwise provided in these rules * * *." Evid.R.
1002. The "best evidence rule" rests on the fact that an original writing is more reliable, complete and
accurate as to its contents and meaning, see United States v. Holton (C.A.D.C.1997), 325 U.S. App.
D.C. 360, 116 F.3d 1536, 1545. The original is not required, and other evidence [**8] is admissible, if:
1) All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad
faith; 2) The original is not obtainable; 3) The original is in possession of the opponent; or 4) The
writing, recording, or photograph is not closely related to a controlling issue, Evid. R. 1004.
[*P18] Basically, appellant argues the map which was or should have been attached to the 1990
zoning ordinances was lost and not published as a part of Ordinance 90-19, so the court should have
accepted the testimony of the former mayor and the former city zoning administrator who did not recall
any change in the zoning of the property in question. Again, the issue essentially is whether or not the
map presented by the city was accurate. The fact finder determined it was accurate, based on the
evidence presented by the city. The trial court's decision does not violate the best evidence rule.
[*P19] We find the trial court did not err as a matter of law or abuse its discretion in affirming the
decisions of the Board of Zoning Appeals. Accordingly, the second assignment of error is overruled.
[*P20] For the foregoing reasons, the judgments of the Court of Common Pleas of Muskingum
County, Ohio, [**9] are affirmed.
By Gwin, P.J.,
Hoffman, J., and
Delaney, J., concur
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgments of the Court of

Common Pleas of Muskingum County, Ohio, are affirmed. Costs to appellants.
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY
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