[Cite as Three Wide Entertainment v. Athens Bd. of Zoning Appeals, 194 Ohio App.3d 1, 2011-Ohio-2304.] 

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ATHENS COUNTY 

THREE WIDE 

ENTERTAINMENT et al., : 

 : 

 : 

 Appellees, : Case No. 10CA33 

 : 

 v. : 

 : Released: May 10, 2011

CITY OF ATHENS BOARD : 

OF ZONING APPEALS, : DECISION AND JUDGMENT

 : ENTRY

 Appellant. : 

_____________________________________________________________ 

APPEARANCES:

Carlile, Patchen & Murphy, L.L.P., and Scott R. Mergenthaler, for 

appellees. 

Patrick J. Lang, Athens Director of Law, for appellant. 

_____________________________________________________________ 

Per Curiam. 

{¶1} Appellant, the City of Athens Board of Zoning Appeals, appeals 

the decision of the Athens County Court of Common Pleas. The board 

denied zoning permits of appellees, Three Wide Entertainment and 

Christopher Stotts, to establish an adult-entertainment business on property 
Athens App. No. 10CA33 2 

located in Athens’s general-business zone. Concluding that the board had 

applied the wrong legal standard, the Court of Common Pleas vacated the 

board’s decision denying the permits. After reviewing the record below, we 

cannot say that the court abused its discretion in finding that the board had 

exceeded its authority. Therefore, we overrule the board’s sole assignment 

of error and affirm the decision below. 

I. Facts 

{¶2} In December 2007, Three Wide submitted a zoning-permit 

application for a property located at 9, 11, and 13 Stimson Avenue, Athens, 

Ohio. The application listed the proposed use as “Private Club/Assembly 

Hall” and listed the description of the business as “dancing and 

entertainment without sale of alcohol.” Steven Pierson, the Zoning 

Administrator for the city of Athens, referred the application to the City of 

Athens Board of Zoning Appeals. 

{¶3} On March 11, 2008, the board held a hearing to determine 

whether to grant Three Wide’s application. At the hearing, the board stated 

that its function was to determine whether the proposed use requested in the 

application was a principally permitted use and, if so, how many parking 

spaces the business required. After the presentation of live testimony and 

written correspondence, the board discussed the permit application and 
Athens App. No. 10CA33 3 

Three Wide’s proposed business in detail. At the conclusion of the hearing, 

it denied the application by a 5-0 vote. 

{¶4} On May 13, 2008, Three Wide submitted three additional permit 

applications. Each permit proposed a different use: the first as 

“entertainment,” the second as a “nightclub,” and the third as a “theater.” 

Each of the three applications listed the business description as “operation of 

a sexually oriented business and/or adult cabaret and/or adult theatre with 

sexually oriented activity for patrons over the age of 18, without sale or 

service of alcohol * * *.” On March 25, 2008, Zoning Administrator 

Pierson sent Three Wide a notice of refusal for each application. Pierson’s 

refusal was based on the resolution adopted by the board denying the first 

permit application. On May 13, 2008, the board held another hearing to 

review Pierson’s decision. Once again, there was public comment and 

extensive discussion of the issue. At the conclusion of the hearing, the board 

again denied Three Wide’s permit applications. 

{¶5} Following the board’s decision, Three Wide filed a notice of 

appeal, pursuant to R.C. 2506, with the Athens County Court of Common 

Pleas. On appeal, the court subsequently determined that the board had 

applied the wrong legal standard in denying Three Wide’s permit 

applications. The court vacated the board’s decision, but stated that its 
Athens App. No. 10CA33 4 

judgment was not a judgment of reversal. Therefore, it did not require that 

the board approve Three Wide’s permits, nor did it remand the matter with 

particular instructions. Instead, its judgment simply returned the parties “to 

the starting point.” The board now appeals that decision. 

II. Assignment of Error 

The common pleas court erred in ruling that the City Board of 

Zoning Appeals applied the wrong legal standards when the court 

recognized that the transcripts also contained material indicating the 

board may have understood its role and the applicable legal standards. 

III. Standard of Review 

{¶6} The current matter involves an administrative appeal under R.C. 

Chapter 2506, which delineates the roles of common pleas and appellate 

courts: 

{¶7} “If an appeal is taken in relation to a final order, adjudication, or 

decision covered by division (A) of section 2506.01 of the Revised Code, 

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. Consistent with its findings, the court may affirm, reverse, 

vacate, or modify the order, adjudication, or decision, or remand the cause to 

the officer or body appealed from with instructions to enter an order, 

adjudication, or decision consistent with the findings or opinion of the court. 
Athens App. No. 10CA33 5 

The judgment of the court may be appealed by any party on questions of law 

as provided in the Rules of Appellate Procedure and, to the extent not in 

conflict with those rules, Chapter 2505. of the Revised Code.” R.C. 

2506.04. 

{¶8} In determining whether the administrative order is 

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

by the preponderance of substantial, reliable, and probative evidence,” the 

common pleas court must consider the entire record, including additional 

evidence admitted under R.C. 2506.03. Henley v. Youngstown Bd. of Zoning 

Appeals (2000), 90 Ohio St.3d 142, 147, 735 N.E.2d 433. 

{¶9} As contrasted with reviews by common pleas courts, reviews by 

appellate courts under R.C. 2506.04 are “more limited in scope.” Id., 

quoting Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, 465 N.E.2d 848. 

“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.” Henley at 147, quoting Kisil at 34, 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 * * * might have 
Athens App. No. 10CA33 6 

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.” Henley at 147, quoting Lorain City School Dist. Bd. of Edn. v. 

State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 261, 533 N.E.2d 264. 

{¶10} Accordingly, “the role of an appellate court in a[n] R.C. 

2506.01 appeal is limited to reviewing questions of law, which the court 

reviews de novo, and to determining whether the trial court abused its 

discretion in applying the law.” Fahl v. Athens, 4th Dist. No. 06CA23, 

2007-Ohio-4925, at ¶13, citing Kisil at 34, fn. 4, and Lawson v. Foster

(1992), 76 Ohio App.3d 784, 603 N.E.2d 370. “The term ‘abuse of 

discretion’ connotes more than an error of law or of judgment; it implies that 

the court’s attitude is unreasonable, arbitrary or unconscionable.” In re Jane 

Doe 1 (1991), 57 Ohio St.3d 135, 137, 566 N.E.2d 1181. 

{¶11} Thus, in the case sub judice, our scope of review is very 

narrow. Here, the common pleas court concluded that the board used the 

wrong legal standard in denying Three Wide’s permit applications. 

Therefore, we focus on whether the court applied the correct legal standard 

and whether it abused its discretion in applying that standard. 
Athens App. No. 10CA33 7 

IV. Legal Analysis 

{¶12} Our analysis first requires an overview of the pertinent sections 

of the Athens City Code (“A.C.C.”) as it existed prior to April 7, 2008.1

 The 

City of Athens Zoning Code is contained in Title 23 of the A.C.C. Within 

that title, Chapter 23.06 creates the office of zoning administrator and 

establishes the office’s duties. Among those duties is determining whether a 

proposed use of property is a principal permitted use, as specifically 

described in A.C.C. Chapter 23.04, or whether a proposed use is of the same 

general character as a principal permitted use. 

{¶13} Under A.C.C. 23.07.03(A), property owners are allowed to 

appeal decisions of the zoning administrator to the board: “Administrative 

review: The BZA shall have the power to hear and decide appeals, filed as 

hereinafter provided, where it is alleged by the appellant that there is error in 

any order, requirement, decision, determination, grant or refusal made by the 

zoning inspector or other administrative official in the enforcement and 

interpretation of the provisions of the zoning code.” A.C.C. 23.07.03(A). 

The powers of the board are limited by A.C.C. 23.07.04: “The BZA may 

 

1

 On April 7, 2008, the city of Athens amended its zoning code to include the regulation of sexually 

oriented businesses. Because those amendment pre-date Three Wide’s permit applications, they do not 

govern the current appeal. 
Athens App. No. 10CA33 8 

exercise only those powers expressly and specifically granted to it by the 

city council in accordance with the Ohio Revised Code.” 

{¶14} The property of Three Wide at issue is located in a B-3 Zone. 

The B-3 Zone is the least restrictive zone except for the industrial zone. The 

principal permitted uses of B-3 Zones are listed in A.C.C. 23.04.07. That 

section specifies a number of permitted uses, but the first paragraph of the 

section also allows as a principal permitted use “[a]ny use permitted and as 

regulated in the B-2D Zones * * *.” In turn, the principal permitted uses of 

B-2D Zones include: “Entertainment — Night clubs, theaters, billiard 

parlors, pool halls, bowling alleys, and similar enterprises shall be at least 

100 feet from any R-Zone.” A.C.C. 23.04.06(A). 

{¶15} Finally, A.C.C. 23.04.07(A)(12) is also relevant to our analysis. 

That section states that permitted uses of B-3 Zones also include: “Other 

uses — Any other use which is determined by the BZA to be of the same 

general character as the above permitted uses * * *.” Thus, under the 

Athens City Code, the board’s review was limited to determining whether 

the proposed use was either one listed under A.C.C. 23.04.07(A), whether it 

qualified as “entertainment” under A.C.C. 23.04.06, or whether it was of the 

same general character of the uses listed in those sections. 
Athens App. No. 10CA33 9 

{¶16} The board held hearings on Three Wide’s various permit 

applications on two different dates, March 11 and May 13, 2008. At both 

hearings, it determined that Three Wide’s proposed business did not qualify 

as a B-3 Zone principal permitted use as specified in the A.C.C. The board 

also determined that the proposed business was not of the same general 

character as the specified principal permitted uses. 

{¶17} In vacating the board’s decision, the common pleas court did 

not determine whether or not Three Wide’s proposed business fit within the 

A.C.C.’s definition of a principal permitted use of a B-3 Zone. Rather, after 

reviewing the transcripts of the two hearings, the court simply determined 

that the board did not employ the proper legal standards in denying the 

permit applications. 

{¶18} The court noted that the transcripts cast doubt on whether 

members of the board fully understood their roles. The court then listed a 

number of instances in which various board members seemed to apply 

inapplicable standards, standards outside the scope of their review. Specific 

examples included: (1) more than one board member expressed surprise and 

confusion that the board’s duties encompassed more than handling 

variances, (2) a member repeatedly referred to the “immorality” of Three 

Wide’s proposed use and seemed to use that as a factor, (3) a member 
Athens App. No. 10CA33 10 

wrongly expressed the scope of the board’s review as determining whether 

Three Wide’s business would be similar to “what’s currently in this * * * 

neighborhood,” (4) a member stated that it was the board’s job to determine 

“what is appropriate for the community,” and (5) members referred to and 

applied standards relating to the granting of variances. 

{¶19} As the common pleas court stated in its decision, the standards 

and criteria listed above are not relevant in determining whether a proposed 

use qualifies as a principal permitted use under the Athens City Zoning 

Code. The proper scope of the board’s review under these circumstances is 

limited to determining whether Three Wide’s proposed use of the property 

qualified as a principal permitted use, as specified in the zoning code, or 

qualified as “the same general character” as those specified uses. Instead of 

limiting itself to this standard, the board relied on extraneous considerations. 

Instead of focusing only on what uses were allowed by the code, the board 

indicated that its decision was based largely on what kind of businesses were 

already in the area. The board was equally mistaken to the extent that its 

decision was based on whether the proposed use was appropriate for the 

community. As the common pleas court noted, “these were concerns that 

should have been (and were, as of the 4-7-08 Code amendments) properly 

addressed by legislative action of City Council * * *.” 
Athens App. No. 10CA33 11 

{¶20} The court noted that in addition to the inappropriate factors 

discussed and applied by the board, the transcripts also contained some 

evidence that members of the board did understand their role. We agree 

with that finding. For example, one member stated that the morality of the 

proposed use was not what they were determining and that the board’s role 

was to “see if any of those definitions that are in the Code can be made to 

apply to the business application that is being presented here.” However, we 

agree with the common pleas court that “the overwhelming sentiments 

expressed by board members and hearing participants were distaste for the 

contents of Appellants’ proposed entertainment, and fear of Stimson Avenue 

becoming an area fostering vice and concomitant moral, physical, and 

economic harm to nearby families, traditional businesses, and the ‘plan for 

the neighborhood.’ ” 

{¶21} Further, under our narrow standard of review, we do not have 

the same authority as the common pleas court to weigh the evidence. 

Therefore, we cannot simply substitute our judgment for that of the court 

below. Our role is merely to decide whether the court below applied the 

correct legal standard and whether it abused its discretion in finding that the 

board applied the wrong legal standard. After a complete examination of the 

record, including the transcripts of the two hearings, we find that the court 
Athens App. No. 10CA33 12 

applied the correct standard and we cannot say that the court’s decision was 

unreasonable, arbitrary or unconscionable. Accordingly, we overrule the 

board’s sole assignment of error and affirm the court’s decision. 

 

Judgment affirmed. 

HARSHA, P.J., and ABELE and MCFARLAND, JJ., concur. 

___________________