[Cite as Cheng v. Symmes Twp. Bd. of Zoning Appeals , 2024

- Ohio

- 2882.]



## IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

YIWEI CHENG,

JARROD TUCKER,

10007 BENTCREEK, LLC,

AARON LANDOLT,

and

KRISTIN LANDOLT,

Plaintiffs

- Appellants,

VS

.

SYMMES TOWNSHIP BOARD OF ZONING APPEALS,

and

SYMMES TOWNSHIP,

Defendants

- Appellees. :

:

:

:

:

:

:

:

:

:

:

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: APPEAL NO

. C

- 2306 68 TRIAL NO S

. A

- 2203841

A

- 2203842 A

- 2203843

O P I N I O N.

Civil A ppeal From : Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Judgment Entered

Date of Judgment Entry on Appeal: July 31, 2024OHIO FIRST DISTRICT COURT OF APPEALS

2 Keating Muething & Klekamp, PLL, Sophia R. Holley and Taylor V. Trout
, for Plaintiff s

- Appell ants , Schroeder, Maundrell, Barbiere & Powers and Scott A. Sollmann
, for Defendant s

Appell ees

.OHIO FIRST DISTRICT COURT OF APPEALS

3 B ERGERON , Presiding Judge.


### {¶1} Blowback against short

- term residential rentals like Airbnb prompted

Symmes Township to regulate, if not outlaw, the rentals by enact ing new zoning

restrictions requiring a conditional use permit for the operation of such rentals

. The

problem was that several property owners, including a ppellants Yiwei Cheng and

Jarrod Tucker (“Cheng”), 10007 Bentcreek
, LLC
, (“Bentcreek LLC”), and Aaron and

Kristin Landolt (“Landolts”) (together, “Appellants”) had previously purchased

residential property and operate d them as short

- term rental s before the recent

regulation

. When the township zoning inspector came knocking, he issued Appellants

notice of their respective zoning violations. Believing that the operation of their

respective properties as short

- term rentals constituted prior legal nonconforming

uses, Appellants each appealed their notices of violation to a ppellee Symmes

Township Board of Zoning Appeals (“Zoning Board”). The Zoning Board denied their

appeals, and the trial court ultimately agreed, concluding th at short

- term rental s w ere

not a legal nonconforming use because the properties were never used as single

- family

dwellings by Appellants (a conclusion never reached by the Zoning Board)

. Appellants

now appeal. Having carefully reviewed the evidence and the record, we sustain

Appellants’ sole assignment of error and reverse the trial court’s judgment.

I

. 

### {¶2} Appellants each purchase d a property in Symmes Township with the

intent to rent their respective propert ies as a short

- term rental through Airbnb.

Appellants exclusively operated the properties as short

- term rentals

— the use of the

properties is not contested in the underlying case or on appeal. And all three

properties were operational as rentals (with documented bookings) by February 2022.OHIO FIRST DISTRICT COURT OF APPEALS

4 

### {¶3} The three properties fall within the “B” residential zoning district.

Symmes Township permits the following uses in “B” districts: agriculture, public and

private forests and wildlife reservations, and single

- family dwellings. Additionally,

Symmes Township permits certain uses ( like bed and breakfasts) within “B” districts

contingent upon the township’s approval of a conditional use zoning permit.



### {¶4} In May 2022, the Symmes Township Board of Trustees adopted

Resolution G2022

- 52, which amended the Symmes Township Zoning Resolution (“the

Resolution”). Resolution G2022

- 52 defined “short

- term rental” as “[a] dwelling unit

or portion thereof, which is offered or provided to a guest by a short term rental owner

or operator for a fee for a term of less than thirty (30) days.” And it classified short

term rentals as conditional uses, requiring conditional use zoning permits.



### {¶5} None of the property owners sought a conditional use permit.

Resolution G2022

- 52 took effect in June 2022, and within a few weeks, a Symmes

Township zoning inspector issued notices of violation to Appellants

— determining that

their properties were being operated as commercial short

- term rentals without

pending applications for conditional use permits. Asserting that their use of the

properties as short

- term rentals constituted a legal nonconforming use , Appellants

each appealed their notices of violation t o the Zoning Board.



### {¶6} In October 2022, the Zoning Board heard the three appeals, ultimately

concluding that because the Zoning Board had previously interpreted the properties

as bed and breakfasts and later as hotels/motels (both of which require a conditional

use permit) , and Appellants failed to seek such permits, “the short

- term rental use of

the subject propert[ies were] not lawfully being made at the time the amendment

became effective.” Appellants immediately appealed the administrative decision, andOHIO FIRST DISTRICT COURT OF APPEALS

5 pursuant to their joint motion to consolidate, the three appeals were consolidated. In

June 2023, the magistrate heard oral arguments. And in July 2023, the magistrate

issued her decision

— reversing the administrative decisions of the Zoning Board and

determining that the operation of the properties as short

- term rentals constituted a
legal nonconforming use (without explaining the reasoning underlying her

conclusion).



### {¶7} The Township and the Zoning Board objected to the magistrate’s

decision. In October 2023, the trial court heard oral arguments, and the following

month , it issued its final decision, rejecting the magistrate’s decision and affirming the

Zoning Board’s conclusion that the operation of the properties as short

- term rentals

was not a legal nonconforming use. Specifically, the trial court reasoned that because

Appellants exclusively used the properties as short

- term rentals (and never as single

family residenc es for themselves)
, the properties did not fall within the common

definition of “ single

- family dwelling
, ” and thus, the initial use of the properties was

not legal. Appellants now appeal, challenging the trial court’s determination in a

single assignment of error

.

II

. 

### {¶8} In Appellants’ sole assignment of error, they contend that the trial court

erred when it rejected the magistrate’s decision holding that their properties were legal

nonconforming uses. To advance their argument, they present two issues for our

review: (1) the trial court erred in its interpretation of the Resolution ; and (2) the trial

court erred in holding that the properties are not entitled to prior nonconforming

status. We first outline the standard of review and then address each argument in

turn.OHIO FIRST DISTRICT COURT OF APPEALS

6 

### {¶9} Because courts generally defer to administrative agencies, the trial court

can only “reverse a final decision of a board of zoning appeals if, after a review of the

complete record, it finds that the board’s ‘decision is unconstitutional, illegal
, arbitrary, capricious, unreasonable, or unsupported by the preponderance of

substantial, reliable, and probative evidence.’ ” Willow Grove, Ltd. v. Olmsted Twp.

Bd. of Zoning Appeals
, 169 Ohio St.3d 759, 2022

- Ohio

- 4364, 207 N.E.3d 779, ¶ 16,

quoting R.C. 2506.04. This court’s review of a trial court’s decision on an appeal from

a zoning authority is even “narrower and more deferential

. ” Cleveland Clinic Found.

v. Bd. of Zoning Appeals
, 141 Ohio St.3d 318, 2014

- Ohio

- 4809, 23 N.E.3d 1161, ¶ 25 , citing Kisil v. Sandusky
, 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984).



### {¶10} But while we “must defer to the [trial] court’s factual findings, * * * we

need not defer to any legal conclusions.” Willow Grove at ¶ 17, citing Siltstone

Resources, L.L.C. v. Ohio Pub. Works Comm.
, 168 Ohio St.3d 439, 2022

- Ohio

- 483,

200 N.E.3d 125, ¶ 15 . Thus, when question s of law exist regarding statutory

construction, this court reviews the issue de novo. Id. at ¶ 16

- 17 , citing Cleveland

Clinic Found. at ¶ 25, citing Lang v. Dir., Ohio Dept. of Job & Family Servs.
, 134 Ohio

St.3d 296, 2012

- Ohio

- 5366
, 982 N.E.2d 636, ¶ 12. And regarding questions of

interpretation, “[w]e interpret municipal ordinances and resolutions in the same

manner as statutes. ” Id. at ¶ 18
, citing Shampton v. City of Springboro
, 98 Ohio St.3d

457, 2003

- Ohio

- 1913, 786 N.E.2d 883, ¶ 30. Because this case hinges on a question

of interpretation of an ordinance

— there are no factual disputes

— we review the trial

court’s decision de novo

.OHIO FIRST DISTRICT COURT OF APPEALS

7 A.



### {¶11} First, Appellants contest the trial court’s interpretation of the

Resolution, ascribing error to its determination that the properties were not single

family dwelling s (which was a lawful property use) because Appellants never occupied

their respective propert ies

. To determine whether the trial court erred when it

interpreted the meaning of single

- family dwelling, we first look to the language of the

Resolution. When “ the meaning of the resolution is clear by a plain reading of its text,

[] we apply the resolution as written.” Id. , citing Wilson v. Lawrence
, 150 Ohio St.3d

368, 2017

- Ohio

- 1410, 81 N.E.3d 1242, ¶ 11.


### {¶12} The Resolution does not define single

- family dwelling. It does,

however, define the terms “ dwelling ” and “ family
, ” a nd generally, we derive meaning

from a provision in the context of the ordinance in its entirety

. Cleveland Clinic

Found.
, 141 Ohio St.3d 318, 2014

- Ohio

- 4809, 23 N.E.3d 1161, at ¶ 35. The Resolution

defines dwelling as “[a]ny structure or portion thereof which is designed or used for

residential purposes.” And family is defined as “a person or group of persons

occupying a premises and living as a single housekeeping unit but as distinguished

from a group occupying a boarding house, fraternity/sorority house, hotel or other

type of contractual living quarters.” Further, for words that are undefined, the

Resolution provides that they “shall be construed as defined in the Hamilton County

Building Code and in normal dictionary usage.” The Hamilton County Building Code

also lacks a definition for single

- family dwelling, so we are left with the related

definitions and the common usage of the term

. 

### {¶13} The properties are indisputably dwellings: they are structures designed

for residential purposes

. And according to the plain language of the Resolution, theOHIO FIRST DISTRICT COURT OF APPEALS

8 properties are seemingly occupied by one “family” at a time. When examining whether

a property is occupied by a single “family,” the distinction between short

- term and

long

- term rentals largely collapses
, creating logical inconsistencies with the Zoning

Board’s reliance on any distinction. A member of the Zoning Board, in the initial

hearing on the violations
, clarified that long

- term rentals (rentals for periods of at least

30 days) constituted a legal use of property: “[W]e are not telling the individua l that

you cannot have a rental. We’re just saying that you now have new restrictions, 30 days

or more, and you can still have your rental.” L ike persons occupying long

- term rentals,

persons occupying short

- term rentals are “living as a single housekeeping unit” during

their rental period (regardless of whether that period happens to be 3 , 29 , or 30 days).

And unlike the exceptions to the definition of “family” explicitly enumerated in the

resolution ( boarding house, fraternity/sorority house, and hotel), the properties at

issue are rented as a whol e unit by one group, not rented by distinct individuals or

groups on a room

- by

- room basis

. 

### {¶14} Turning to the common usage of single

- family dwelling, the trial court

volunteered the following definitions in its decision:

a freestanding building designed for occupancy by one family

(Cincinnati, Ohio, Code of Ordinances, Title XIV, Section 1401

- 01

- S9);

a dwelling either attached or semidetached, arranged, intended or

designed to be occupied by a single family (Codified Ordin ance of the

City of Euclid, Ohio Section 1321.16); a residen ce housing one family or

household or one that is designed for one family only (Definitions

uslegal.com/s/single

- family

- dwelling

- house/).OHIO FIRST DISTRICT COURT OF APPEALS

9 Examining these definitions (and without explaining its rationale), the trial court

concluded that because “[n]one of the three properties in this case was ever used as a
single

- family dwelling by the current owners * * * the initial use was not legal and

cannot now qualify as a legal

- nonconforming use.” (Emphasis added).



### {¶15} These three definitions are certainly not the only ways to define single

family dwelling. But given that the trial court relied upon them and that the parties

do not advance any alternative definitions, we proceed by reacting to the definitions

presented to us. By their plain language
, the se definitions lack any requirement that

the property owner ever occupied the property. Rather, the crux of these definitions

is for what use the property was designed , not how it is currently operated. From these

definitions, it seems clear that, at minimum, the term single

- family dwelling

encompasses property designed for use by a single family. We see no oblig ation in any

of these definitions that any particular person, or indeed anyone at all, actually inhabit

the property. For instance, if a single

- family dwelling sits vacant, that does not change

its character into something other than a single

- family dwell ing. The plain language

of the term “single

- family dwelling” thus supports Appellant s’ interpretation of that

term rather than the trial court’s.



### {¶16} And regardless, zoning regulations are “ in derogation of the common

law and deprive the property owner of uses to which the owner would otherwise be

entitled.” Cleveland Clinic Found.
, 141 Ohio St.3d 318, 2014

- Ohio

- 4809, 23 N.E.3d

1161, at ¶ 34, citing In re Appeal of Univ. Circle, Inc.
, 56 Ohio St.2d 180, 184, 383

N.E.2d 139 (1978). Therefore, even if after analyzing the plain language of the related

definitions and common usage of single

- family dwelling, we found the term

ambiguous, we must “ strictly construe [] ” zoning regulations in favor of the propertyOHIO FIRST DISTRICT COURT OF APPEALS

10 owner. Id.
, citing Saunders v. Clark Cty. Zoning Dept.
, 66 Ohio St.2d 259, 261, 421

N.E.2d 152 (1981). Because “single

- family dwelling” is undefined, it does admit of

some ambiguity, but no definition presented to us supports the Zoning Board’s

determination. And even if we harbored some doubt on this point, we must construe
the term in Appellants’ favor.



### {¶17} Ratifying these conclusions
, the Zoning Board and the trial court relied

on inconsistent rationale s to support their determinations that the properties were not

legal nonconforming uses. In the Zoning Board’s decision, it found that
, since 2021
,
it interpreted the properties to require conditional use permits . In 2021, the Zoning

Board’s inspector first cited the properties, claiming they needed conditional use

permits because they were operating as bed and breakfasts . B ut later
, seemingly

acknowledging that the properties did not fall within the Resolution’s definition of a
bed and breakfast ( because, as the trial cou rt concluded, they we re not owner

occupied)
, the Zoning Board changed its mind, modifying its classification of the

properties to hotels/motels
, which also require conditional use permits

. Because

Appellants did not seek conditional use permit s , the Zoning Board concluded that “the

short

- term rental use of the subject propert[ies ] was not lawfully being made at the

time the amendment became effective

. ”



### {¶18} Before the trial court
, perhaps appreciating the problems with their

positions, the Zoning Board and Symmes Township shifted their argument , claiming

that the use of the properties as short

- term rentals was not a legal nonconforming use

because it was “commercial activity ” ( and largely abandoning the argument that they

required conditional use permits as hotels/motels )

. But this created another

inconsistency because , as mentioned above, the Zoning Board itself had previouslyOHIO FIRST DISTRICT COURT OF APPEALS

11 conceded that the use of propert y as long

- term rentals

— also inherently commercial in

nature

— was legal.



### {¶19} Recognizing the logical problems in the Zoning Board’s interpretation
,

t he trial court relied on yet another rationale

— determining that while a single

- family

dwelling was a legal use of the property, the “initial use was not legal” because

Appellants themselves never used their respective propert ies as single

- family

residence s

. The court seemingly reached this conclusion on its own, as the Zoning

Board never advocated this point. The lack of any consistency here across the

justifications offered by the Zo ning Board and the trial court betrays the weakness in

their foundations . And notably, from the perspective of the homeowner, the

conflicting justifications create further confusion regarding the purported restricted

uses of their property (pointing us further in the direction of construing the definition

in Appellants’ favor)

. 

### {¶20} Accordingly
, in light of the plain meaning of the terms defined in the

Resolution, the common usage of single

- family dwelling, and the presumption to

construe any ambiguity in favor of the property owners, we interpret the term single

family dwelling to include the properties at issue

.

B.



### {¶21} Next, Appellants argue that because the trial court improperly

concluded that the properties were not single

- family dwellings, it erred when it held

that the property owners did not lawfully operate the properties as short

- term rentals

prior to the enactment of the Resolution. The Resolution defines a nonconforming use

as “[a]ny use lawfully being made of any land, building, or structure on the effective

date of these regulations or any amendment t hereto rend er ing such useOHIO FIRST DISTRICT COURT OF APPEALS

12 nonconforming, which does not comply with all of the regulations of this Resolution

or any amendment thereto .” To prove a nonconforming use, the party must show ( 1)

the use existed prior to the enactment of the regulation
, and ( 2) the use in question

was lawful when it was commenced. Verbillion v. Enon Sand & Gravel, LLC
, 2021

-

Ohio

- 3850, 180 N.E.3d 638, ¶ 120 (2d Dist.). And “[t]he party asserting a non

conforming use of property has the burden of proving such use.” Id.



### {¶22} Here, the parties have never disputed that the properties were
operated as short

- term rentals prior to the enactment of the Resolution; rather, they

disputed the legality of this use. Thus, because we hold that the definition of single

family dwelling includes these properties (however utilized)
, we necessarily conclude

that the trial court erred when it determined the use of the respective properties as

short

- term rentals was not a legal nonconforming use.

* * *



### {¶23} In light of the foregoing analysis, we sustain Appellants’ sole assignment

of error
, reverse the judgment of the trial co urt , and enter judgment in favor of

Appellants

. Judgment reversed and judgment entered

.


### C ROUSE and 

### W INKLER 

### , J J ., concur.

Please note :
The court has recorded its entry on the date of the release of this opinion

.