[Cite as Willow Grove, Ltd. v. Olmsted Twp. Bd. of Zoning Appeals, 2021-Ohio-2510.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

WILLOW GROVE, LTD., : 

 

 Plaintiff-Appellee/ : 

 Cross-Appellant, 

 : No. 109319 

 v. 

 : 

OLMSTED TOWNSHIP BOARD OF 

ZONING APPEALS, ET AL., : 

 

 Defendants-Appellants/ : 

 Cross-Appellees. 

 

JOURNAL ENTRY AND OPINION 

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, 

AND REMANDED 

RELEASED AND JOURNALIZED: July 22, 2021 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-15-844279 

 

Appearances: 

Berns Ockner & Greenberger, L.L.C., and Jordan Berns, 

Sheldon Berns, and Paul M. Greenberger, for 

appellee/cross-appellant. 

Fishel Downey Albrecht & Riepenhoff L.L.P., and David A. 

Riepenhoff, for appellants/cross-appellees. 
MICHELLE J. SHEEHAN, J.: 

Defendants-appellants/cross-appellees Olmsted Township and 

Olmsted Township Board of Zoning Appeals (“BZA”) appeal the judgment of the 

trial court that ordered the BZA to issue a zoning certificate to plaintiffappellee/cross-appellant Willow Grove, Ltd. (“Willow Grove”) for the purpose of 

developing 202 residential townhomes on its property in Olmsted Township. We 

affirm the trial court judgment that held the proposed development was not subject 

to setback requirements and that the proposed community center and pool were 

subject to parking-space requirements. But because the trial court’s opinion 

instructed the BZA to issue a zoning certificate that did not conform to the zoning 

laws in effect, we reverse the judgment of the trial court in part. 

I. PROCEDURAL HISTORY AND FACTS 

 A. The Procedural History of the Application for Zoning Certificate 

On June 3, 2013, Willow Grove submitted an application for a zoning 

certificate to develop property in Olmsted Township. At that time, the property was 

subject to the Olmsted Township Zoning Resolution (“OTZR”) adopted March 9, 

2000 and amended as late as May 2012.1 The application was denied, and Willow 

Grove filed a declaratory judgment action seeking to have certain administrative 

provisions of the OTZR declared unlawful. On appeal, the trial court found certain 

1 On May 22, 2013, the OTZR was amended and the property was rezoned effective 

July 1, 2013, which amendment would prohibit the proposed development. 

However, those amendments are not applicable to this appeal. 
provisions of the OTZR unlawful, which decision was affirmed on appeal. Willow 

Grove, Ltd. v. Olmsted Twp., 2015-Ohio-2702, 38 N.E.3d 1133 (8th Dist.). 

On January 8, 2015, Olmsted Township Zoning Inspector James 

McReynolds denied the application, citing nine instances in which the application 

deviated from the OTZR. Willow Grove appealed the decision to the BZA. The BZA 

sustained five of the nine deviations cited by the zoning inspector and denied the 

application because: 

1. The proposed townhomes did not meet setback requirements under 

OTZR 230.05(a); 

2. The proposed swimming pool was rejected as a conditional use 

under OTZR 230.03(c); 

3. The proposed community center did not meet the parking-space 

requirements under OTZR 310.02(h)(2); 

4. The proposed swimming pool did not meet the parking-space 

requirement of OTZR 310.02(e)(10); and 

5. The proposed swimming pool did not meet the setback 

requirements of OTZR 270.04. 

As to setback requirements of the proposed townhomes, the BZA 

determined that the proposed street in Willow Grove’s application was a Local 

Interior and Private Street under the definitions in the OTZR and that as such, the 

townhomes would have to be set back 35 feet. The application proposed a setback 

of 25 feet. 

The BZA determined that the proposed swimming pool was a 

conditional use of the property under OTZR 230.02(c), not an accessory use of the 
property subject to the requirements of OTZR 230.02(d), and that because of this 

status, the application did not comply with the 75 foot setback requirement found in 

OTZR 270.04. 

Regarding parking-space requirements, the BZA determined that the 

proposed community center would be a semipublic building and was subject to 

parking-space requirements pursuant to OTZR 310.02(h)(2). The BZA also 

determined that the swimming pool would be a semipublic building and was subject 

to the parking-space requirements pursuant to OTZR 310.02(e)(10). 

On April 16, 2015, Willow Grove appealed the BZA decision denying 

its application to the Cuyahoga County Court of Common Pleas pursuant to R.C. 

2506.04. In its appeal, it argued that the BZA erred in finding that 1) the proposed 

development violated setback requirements, 2) the swimming pool was only 

permitted as a conditional use, 3) the community center must comply with 

applicable parking-space requirements, and 4) the swimming pool must comply 

with applicable parking-space requirements. 

 B. The Property at Issue and the Requested Zoning Certificate 

The trial court received briefing and heard argument on Willow 

Grove’s appeal. The trial court issued written findings of fact and conclusions of law 

resolving Willow Grove’s appeal. In its written findings of fact and conclusions of 

law the trial court found that Willow Grove owns property in Olmsted Township 

located off Bagley Road, between the Olmsted Township High and Middle Schools. 

(Findings of Fact and Conclusions of Law (“FOF”) at p. 1.) The property is adjacent 
to an existing right-of-way, Bagley Road. Id. at p. 1-2. Willow Grove submitted an 

application for a building certificate to develop the property as one lot into 202 

residential townhomes, with an internal street that would run through the property. 

Id. The internal street would be private and not intended for the use of the public 

at large. Id. at p. 2. Each unit would be set back from the street 25 feet and have a 

two-car garage and driveway connecting to a street that runs through the property. 

Id. 

As part of the development, Willow Grove proposed building a 1,664 

square foot community center and a 2,600 square foot community pool for the 

benefit of residents and guests. Id. at p. 2-3. The community center and pool would 

be set back less than 75 feet from any principal building, and the community center 

and pool would not be constructed in any yard of any individual townhome. Id. at 

p. 3. The application further included eight parking spaces to service both the 

community center and pool. Id. 

 C. The Judgment of the Trial Court 

As to Willow Grove’s first alleged error, the trial court sustained the 

objection. It overruled the BZA determination that the property was subject to 

specific setbacks. Id. at p. 8. It found that the OTZR 230.05(a) states “the setback 

of a principal building from an existing public right-of-way shall not be less than the 

distance set forth in Schedule 230.05 for the type of street, as defined in Chapter 

110.” The trial court found that the street proposed in the application was not 

subject to setback requirements in OTZR 230.05(a) because the proposed street 
would not become a public right-of-way and because the proposed street was not in 

existence. FOF at p. 7-8. 

As to the second alleged error, the trial court overruled the BZA 

determination that the proposed swimming pool was a conditional use of the 

property. The trial court determined that the proposed swimming pool was an 

accessory use of the property. FOF at p. 11. The trial court reasoned that in the 

application, the principal use of the property would be the development of 202 

townhomes, not the proposed swimming pool, because OTZR 110.02(b) defined an 

accessory use as a “use of land incidental to the principal use of a lot or building 

located on the same lot.” FOF at p. 8-9. Because the trial court determined that the 

proposed pool was an accessory use of the property, it found that the setback 

requirements did not apply to the swimming pool. 

As to Willow Grove’s third and fourth assignments of error, the trial 

court affirmed the BZA determination that both the proposed community center 

and swimming pool were subject to the parking-space requirement found in 

OTZR 310.04 because OTZR 310.02 mandates that “accessory off-street parking 

spaces shall be proved as a condition precedent to the occupancy or use of any 

building, structure of land in conformance with the provisions of this chapter 

whenever...a building is constructed or a new use is established.” FOF at p. 13. 

Having affirmed in part and reversed in part the BZA determination on Willow 

Grove’s application, the trial court remanded the matter to the BZA “with 

instructions to issue a zoning certificate in accordance with this opinion.” Id. 
II. LAW AND ARGUMENT 

 A. Standard of Review 

R.C. Chapter 2506 governs appeals of administrative decisions to 

include boards of zoning appeals. Cleveland Clinic Found. v. Bd. of Zoning Appeals, 

141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 22. The common pleas court 

and the court of appeals apply different standards of review of an appeal of an 

administrative decision. Austin v. Cuyahoga Metro. Hous. Auth., 8th Dist. 

Cuyahoga No. 107247, 2019-Ohio-636, ¶ 22. 

A trial court reviews a zoning appeal pursuant to R.C. 2506.04, which 

provides that “the court may find that the order, adjudication, or decision is 

unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the 

preponderance of substantial, reliable, and probative evidence on the whole record.” 

R.C. Chapter 2506 allows for the common pleas court to examine the entirety of the 

record and make both factual and legal determinations. Cleveland Clinic Found., 

2014-Ohio-4809 at ¶ 24. In making its determinations, the common pleas court 

may only reverse a board of zoning appeals decision if that decision is “not supported 

by a preponderance of substantial, reliable, and probative evidence.” Id. 

An appeal of a court of common pleas decision under R.C. 2506.04 

may be taken “on questions of law.” An appeal pursuant to R.C. 2506.04 “requires 

that court to affirm the common pleas court, unless the court of appeals finds, as a 

matter of law, that the decision of the common pleas court is not supported by a 

preponderance of reliable, probative and substantial evidence.” Cleveland Clinic 
Found. v. Cleveland Bd. of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 

23 N.E.3d 1161, ¶ 23, quoting Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 

848 (1984). Our review is thus limited, and we may reverse a trial court’s 

determination “only when the common pleas court errs in its application or 

interpretation of the law or its decision is unsupported by a preponderance of 

evidence as a matter of law.” Id. at ¶ 30. 

 B. The Parking-Space Requirements and Issuance of a Zoning Certificate 

 Appellants’ first assignment of error challenges the propriety of the 

trial court’s decision to order the BZA issue a zoning certificate even though the trial 

court found the application did not conform to the OTZR. Appellants’ first 

assignment of error reads: 

While the trial court correctly overruled applicant Willow Grove, 

Ltd.’s Third and Fourth Assignments of Error on appeal under R.C. 

2506, and found that the proposed community center and swimming 

pool for the RMF-T development did not comply with the Olmsted 

Township Zoning Resolution, the court erred in thereafter remanding 

the case to the Township Board of Zoning Appeals (BZA) with an order 

to issue a zoning certificate despite finding that the development did 

not fully comply with the Township’s Zoning Resolution (OTZR). This 

error is reflected at R. Doc. 40, Pg. 13. 

In its cross-appeal, Willow Grove challenges the trial court’s 

underlying decision finding the community center and swimming pool are subject 

to the parking-space requirements in the OTZR. Willow Grove’s first and second 

cross-assignments of error in its cross-appeal read: 

Cross-assignment of Error No. 1. The Board of Zoning Appeals erred 

in determining that that the swimming pool incorporated into Willow 
Grove’s proposed development must comply with the parking-space 

requirement found in OTZR Schedule 310.04(e)(10). 

Cross-assignment of Error No. 2. The Board of Zoning Appeals erred 

in determining that the “community center” incorporated into Willow 

Grove’s proposed development must comply with the parking-space 

requirement found in OTZR Schedule 310.04(h)(2). 

 We address appellants’ first assignment of error in conjunction with 

Willow Grove’s cross-appeal because they are interrelated and the issues overlap. 

The trial court found that Willow Grove’s application did not comply with the OTZR 

because the application did not provide the required number of parking spaces for 

the community center and the swimming pool. In the cross-appeal, Willow Grove 

argues that the application did comply with the OTZR as to parking-space 

requirements, but argues that even if the application did not comply, the trial court 

had the authority to order the BZA to issue the zoning certificate because the 

proposed community center and pool are marked on the application “as permitted” 

and the application can be modified. 

We address Willow Grove’s cross-assignments of error first, because 

the resolution of these assignments of error are necessary to our determination of 

appellants’ first assignment of error. In its application, Willow Grove proposed 

building a 1,664 square foot community center and a 2,600 square foot community 

pool for the use of the townhome residents and their guests.2 Willow Grove’s 

2 At the BZA hearing, it was noted that the usable space of the building to calculate 

the parking space would be less than the total square footage of the building, with 

a suggestion that the usable space could be as low as 600 square feet. However, 
application contained a total of eight parking spaces for both the community center 

and the pool. OTZR 310.02(a) provides that “accessory off-street parking spaces 

shall be provided as a condition precedent to the occupancy or use of any building, 

structure of land in conformance with the provisions of this chapter whenever * * * 

a building is constructed or a new use is established.” (Emphasis added.) Off-street 

parking spaces for certain uses of property are required in OTZR 310.04. OTZR 

310.04(e)(10), sub-headed “Commercial Entertainment/Recreation Uses,” provides 

that swimming pools not associated with residences require one parking space per 

50 square feet of recreation area. Similarly, OTZR 310.04(h) requires “community 

centers” to have a minimum number of parking spaces based on the square footage 

of the building. 

Willow Grove argues that the trial court erred in finding that the 

parking-space requirements applied to its proposed development because the 

proposed community center and swimming pool are not principal uses of the 

property. Willow Grove supports this argument by noting that OTZR 310.04 is subheaded “Principal Building or Use,” and claims that the parking-space requirements 

in OTZR 310.04 therefore only apply to regulate the principal uses of the property. 

However, we do not read titles of sections of law substantively, but may consider 

them in resolving ambiguity. Dade v. Bay Village, 8th Dist. Cuyahoga No. 87728, 

2006-Ohio-6416, ¶ 28, citing R.C. 1.01. As such, the sub-heading in OTZR 310.04, 

even under that estimation, the eight proposed parking spaces fall short of the 

required number of parking spaces. 
“Principal Building or Use” is a guidepost, but does not necessarily mean that the 

section applies only to principal buildings or principal uses of property. 

Whether the swimming pool or community center is classified as a 

principal, accessory, or conditional use in the development does not affect whether 

the parking-space requirements apply because OTZR 310.02(a), which mandates 

the inclusion of minimum parking spaces, applies to any building or new use. As 

such, the proposed swimming pool and community center are subject to the parking 

regulations detailed in OTZR 310.04, regardless of whether they are determined to 

be principal, accessory, or conditional uses of the property. Accordingly, the trial 

court’s finding that the application did not conform to the OTZR regarding parkingspace requirements will not be disturbed on appeal and Willow Grove’s crossassignments of error are not well taken. 

 Having determined that the trial court did not err in finding the 

application was subject to parking-space requirements, we address appellants’ first 

assignment of error that challenges the trial court’s order to the BZA to issue a 

zoning certificate, despite its finding that Willow Grove’s application did not 

conform with the zoning regulations. 

An appeal of a zoning board decision is limited to questions of law. 

Moreover, a trial court’s review is limited to determining whether the decision is 

“unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the 

preponderance of substantial, reliable, and probative evidence on the whole record.” 

R.C. 2506.04. In this case, the trial court found that the that the application did not 
comply with parking-space requirements, but nevertheless ordered the BZA to issue 

a zoning certificate. However, a zoning certificate cannot be issued unless it fully 

complies with zoning regulations. R.C. 519.173 reads: 

No person shall locate, erect, construct, reconstruct, enlarge, or 

structurally alter any building or structure within the territory 

included in a zoning resolution without obtaining a zoning certificate, 

if required under section 519.16 of the Revised Code, and no such 

zoning certificate shall be issued unless the plans for the proposed 

building or structure fully comply with the zoning regulations then in 

effect. 

See also Jeffrey Mann Fine Jewelers, Inc. v. Sylvania Twp. Bd. of Zoning Appeals, 

6th Dist. Lucas No. L-08-1013, 2008-Ohio-3503, ¶ 25 (“Under the undisputed facts, 

the proposed sign did not comply with the zoning resolution. Issuance of the permit, 

therefore, violated R.C. 519.17.”) We have found that the issuance of a building 

certificate is “ministerial” and that “‘a zoning certificate shall not be issued unless 

the plans for the proposed building or structure fully comply with the zoning 

resolution in effect. R.C. 519.17.’” (Emphasis omitted.) Willow Grove, Ltd., 2015-

Ohio-2702 at ¶ 65, quoting Barrett Paving Materials, Inc. v. Bd. of Zoning Appeals, 

12th Dist. Clermont No. CA90-07-066, 1991 Ohio App. LEXIS 2961 (June 24, 1991). 

The trial court determined that Willow Grove’s application did not 

comply with the OTZR because it failed to meet parking-space requirements; thus, 

it found that the application did not fully comply with the zoning requirements. The 

law prohibits the issuance of a zoning certificate when an application does not fully 

3 OTZR 510.01 also reads in part that “no such Zoning Certificate shall be issued unless 

the plans for the proposed building or structure fully comply with the regulations set forth 

in this zoning resolution.” 
comply with applicable zoning regulation. By ordering the BZA to issue a zoning 

certificate for an application that did not conform to zoning regulations, the trial 

court exceeded the limits of its review and abused its discretion. Although Willow 

Grove argues that the trial court has the authority to order the issuance of a 

certificate and such certificate can be amended to conform to the OTZR, it has cited 

no provision in law or judicial precedent that allows for the issuance of a building 

permit that does not conform with applicable zoning regulations. Accordingly, 

appellants’ first assignment of error is well taken. 

 C. The Proposed Street and Applicable Setback Requirements 

Appellants’ second assignment of error challenges the trial court’s 

finding that building setback requirements in the OTZR are not applicable to the 

proposed street within the application. The trial court determined that “Applying 

setback requirements applicable to public rights-of-way to private streets or ways 

was erroneous. Therefore, the BZA unlawfully determined that the proposed 

development violates OTZR Section 230.05(a) and (d)(l)’s setback requirement.” 

FOF at p 7. Appellants’ second assignment of error reads: 

The trial court erred in sustaining applicant Willow Grove, Ltd.’s First 

Assignment of Error on appeal under R.C. 2506 and finding that the 

principal buildings in the proposed development were not required to 

be set-back at least 35 feet from the planned Local Street, despite the 

plain language of OTZR Section 230.05(a), and (d)(1)(a). This error 

is reflected at R.Doc. 40, Pg. 6-8. 

In its decision rejecting Willow Grove’s application, the BZA found 

that the proposed street was a “local street” as defined by OTZR 110.03(b)(95). 
OTZR 230.05 provides a schedule of building setback requirements, which schedule 

requires townhomes and apartments to have a 35-foot setback on local streets. 

Although the BZA determined the proposed street would be a local street, the trial 

court did not find that the setback requirements applied to the proposed street, 

regardless of its classification. Instead, the trial court found that OTZR 230.05(a) 

provides that “[t]he setback of a principal building from an existing public right-ofway shall not be less than the distance set forth in Schedule 230.95 for the type of 

street, as defined in Chapter 110.” FOF, p. at 6. (Emphasis added.) A right-of-way 

is defined in OTZR 110.02(b)(86) as a “a strip of land that taken, dedicated, or 

otherwise recorded as an irrevocable right-of-passage for use as a public way.” 

The trial court found that the proposed street would not become a 

public right-of-way after it was built. FOF at p. 7. OTZR 230.05(a) applies to 

existing public rights-of-way. As such, because the proposed street was not a public 

right-of-way, nor would it become one, the trial court properly found that the street 

was not subject to the building setback requirements in OTZR 230.05 and 

appellants’ second assignment of error is overruled. 

 D. The Proposed Swimming Pool as a Primary or Accessory Use of Property 

Appellants’ third assignment of error alleges that the trial court erred 

in finding that the proposed swimming pool was not subject to setback requirements 

found in OTZR 270.04. Appellants’ third assignment of error reads: 

The trial court erred in sustaining applicant Willow Grove, Ltd.’s 

Second Assignment of Error on appeal under R.C. 2506 and finding 

that the proposed pool to service the entire 202 townhome 
development need not comply with the OTZR’s plain language 

requiring that the pool be set back at least 75 feet from the street and 

property line under OTZR Section 270.04. This error is reflected at 

R.Doc. 40, Pg. 8 – 11. 

In its application, Willow Grove proposed building 202 townhomes 

on the property with the addition of a community center and a swimming pool. 

OTZR 110.02(103) defines principal use of property as being, “[t]he primary or main 

use of activity of a building or lot.” OTZR 110.02(102) defines accessory use as being 

a “use of land incidental to the principal use of a lot or building located on the same 

lot.” The trial court found that the principal use of the property in the application 

was the development of residential townhomes and that the proposed swimming 

pool was an accessory use of the property. FOF at p. 10. 

At issue in determining whether the pool requires any setback is the 

classification of the proposed swimming pool within the zoning regulations as either 

a principal, conditional, or accessory use of the property. Appellants argue that the 

proposed swimming pool is a conditional use of the property subject to the 75-foot 

setback requirement found in OTZR 270.04. Willow Grove argues that within its 

proposed development, the swimming pool is a permitted accessory use of the 

property, not a conditional use of the property and therefore the 75-foot setback 

requirement in OTZR 270.04 does not apply to the proposed swimming pool. 

OTZR Chapter 270 regulates conditional uses of property in 

residential districts. OTZR 270.01 provides that “certain types of principal uses are 

classified as conditional uses because of their uncommon or unique characteristics, 
infrequency of occurrence, large area requirements, or potential for significant 

impact on a particular district.” Thus, OTZR Chapter 270 and its requirements 

apply to principal uses of property located within residential districts. OTZR 270.03 

provides specific conditions for property uses, reading in pertinent part that 

Schedule 270.04 sets forth regulations governing minimum lot area, 

minimum lot width and minimum yard dimensions for principal and 

accessory buildings and parking areas for conditional uses in 

residential distracts that require lot area, width, and yard regulation 

different from the residential district regulations. 

OTZR 270.03(f). 

OTZR 270.04(7) specifically requires that a “swimming pool, public 

or private” have a 75-foot setback. To support their argument that the swimming 

pool is a conditional use of the property, appellants cite to OTZR 230.02, in which 

swimming pools are listed as “conditional” uses of property. They argue that because 

of this classification, OTZR 270.04 is to be applied to the pool. 

OTZR Chapter 230 provides regulations for multifamily residential 

districts. OTZR 230.02(b) and 230.02(c) provide that certain uses of property are 

permitted as “principal” or “conditional” uses as listed in schedule OTZR 230.03. 

OTZR 230.02(d) provides that certain uses “shall be permitted as an accessory use 

in any RMF district. Such use shall be permitted as a subordinate building or use 

when it is clearly incidental to and located on the same lot as the principal building 

or use.” OTZR 230.02(d)(2) provides a permitted accessory use of “Recreation and 

community facilities intended for use by residents of the development.” 
The trial court determined that the principal use of the property was 

to develop townhomes and that the proposed swimming pool was a permitted 

accessory use as listed in OTZR 230.02(d). The trial court further found that the 

“evidence before the BZA established that the proposed development’s swimming 

pool is (1) incidental to the principal use of the property (attached single-family 

dwellings), (2) located on the same lot as the principal use because the property will 

be developed as condominiums, and (3) intended for use by residents and invited 

guests.” FOF at p. 10. The trial court then classified the proposed swimming pool as 

an accessory use of the property pursuant to OTZR 230.02(d)(2), not as a 

conditional use under OTZR 230.03(h). FOF at p. 10. Accordingly, OTZR 270.04 

does not serve to make the proposed pool a conditional use of the property. Because 

the swimming pool is a permitted accessory use of the property, appellants’ 

argument that OTZR 270.04 applies is not well taken and we affirm the trial court’s 

determination. Appellants’ third assignment of error is overruled. 

III. CONCLUSION 

The trial court’s resolutions of Willow Grove’s assigned errors 

regarding the BZA decision are affirmed. However, because R.C. 519.17 prohibits 

the issuance of a zoning certificate that does not fully comply with zoning 

regulations, we find the trial court erred in ordering the BZA to issue a zoning 

certificate in this case. 

Judgment affirmed in part and reversed in part, and this matter is 

remanded to the trial court to amend its order. 
 It is ordered that appellants/cross-appellees and appellee/cross-appellant 

share the costs herein taxed. 

 The court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

____________________________ 

MICHELLE J. SHEEHAN, JUDGE 

ANITA LASTER MAYS, J., CONCURS; 

MARY J. BOYLE, A.J., CONCURS IN PART AND DISSENTS IN PART (WITH 

SEPARATE OPINION ATTACHED) 

MARY J. BOYLE, A.J., CONCURRING IN PART AND DISSENTING IN PART: 

I fully agree with the majority’s analysis and conclusions that the 

proposed community center and swimming pool failed to comply with the OTZR’s 

parking-space requirements and that the trial court therefore erred in ordering the 

BZA to issue a zoning certificate. But I respectfully dissent as to the Township’s 

second assignment of error. 

I would sustain the Township’s second assignment of error because I 

find that Willow Grove’s proposed street is an “existing right-of-way” and that the 

townhomes are therefore subject to OTZR 230.05’s 35-foot setback requirement for 

local streets. OTZR 110.02(b)(87) defines “right-of-way” as “[a] strip of land taken, 
dedicated, or otherwise recorded as an irrevocable right-of-passage for use as a 

public way.” OTZR 230.05(d) includes “local street” as a subheading under setbacks 

for existing rights of way and specifies that townhouses must be set back 35 feet from 

local streets. Under OTZR 110.02(b)(95), a local street is “primarily for providing 

access to residential or other abutting property.” Willow Grove’s proposed street 

would be primarily for providing access to residential townhomes and provides a 

right-of-passage for the public. And although the street was not “existing” at the 

time Willow Grove filed its application for a zoning certificate, it would need to be 

built before the townhomes. In other words, at the time the townhomes would be 

built, the street would be “existing.” Therefore, the BZA’s decision that the 

townhomes needed a 35-foot setback from the street was not unconstitutional, 

illegal, arbitrary, capricious, unreasonable, or unsupported by the record, and I find 

that the trial court abused its discretion in holding that the BZA’s decision was 

unlawful. 

However, this court need not reach the merits of the Township’s 

second and third assignments of error. As the majority explains, a zoning certificate 

can be issued only if the proposed plans fully comply with the zoning regulations. 

R.C. 519.17. Regardless of whether the townhomes or the swimming pool met the 

OTZR’s setback requirements, we have found that the proposed plans do not comply 

with the OTZR’s parking-space requirements. Thus, regardless of the resolution of 

the Township’s second and third assignments of error, I agree with the majority that 

the trial court erred in ordering the BTA to issue a zoning certificate because Willow 
Grove’s proposed plans did not fully comply with the parking requirements. If 

Willow Grove were to file a new application with changes to its parking spaces or 

setbacks, the OTZR amendments that went into effect after Willow Grove filed its 

current application would prohibit Willow Grove from developing townhomes on 

the property. See Olmsted Township Zoning District Map as amended May 22, 

2013, incorporated into OTZR Section 120.02 (zoning the property as a single 

family, R-40 zone). 

Accordingly, although I disagree with the majority’s conclusion 

regarding the setback requirements for the townhomes, I would not reach the merits 

of this assignment of error. Thus, I respectfully concur in part and dissent in part. 
KEYWORDS 

R.C. 2506.04; appeal of zoning board determination; R.C. 519.17. 

An appeal of a court of common pleas decision under R.C. 2506.04 may be taken on 

questions of law. Appellate review is limited, and the court may reverse a trial 

court’s determination when the common pleas court errs in its application or 

interpretation of the law or its decision is unsupported by a preponderance of 

evidence. R.C. 519.17 prohibits the issuance of a zoning certificate when an 

application for a zoning certificate does not fully comply with applicable zoning 

regulation. The trial court erred by ordering the issuance of a zoning certificate after 

it found that the application did not fully comply with applicable zoning regulations.