[Cite as Ney v. Schley , 2021-Ohio-1848.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JOHN NEY Plaintiff-Appellant

-vsMATTHEW SCHLEY, PLANNING & ZONING ADMINISTRATOR, ET AL Defendants-Appellees JUDGES: : Hon. Craig R. Baldwin, P.J. : Hon. W. Scott Gwin, J. : Hon. Patricia A. Delaney, J. : : : Case No. CT2020-0049 : : : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Muskingum CountyCourt of Common Pleas, Case No. CF2020-0070

JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: May 27, 2021

APPEARANCES: For Plaintiff-Appellant For Defendants-Appellees Schley & BZA

CARTER BROWN DAVID J. TARBERT 59 North Fourth Street Zanesville City Law Director Box 488 401 Market Street Zanesville, OH 43702 Zanesville, OH 43701 For: Appellee Cairn Recovery Holdings, LLC

MILES FRIES 320 Main Street Box 190 Zanesville, OH 44702[Cite as Ney v. Schley , 2021-Ohio-1848.]

Gwin, J., {¶1} Appellant John Ney (“Ney”) appeals the September 18, 2020 judgm ent entry of the Muskingum County Court of Common Pleas. The trial court affirmed the decision of appellee the City of Zanesville Board of Zoning App eals (“BZA”) approving a special use permit with conditions. Appellee Matthew Schley (“ Schley”) is the Community Development Director for the City of Zanesville and the Executi ve Secretary of the BZA. Facts & Procedural History {¶2} On November 12, 2019, Jarrett Barnhouse, on behalf of appellee Cairn Recovery Resources, LLC and Lifebridge Ohio, filed an applicati on with the BZA seeking a special use permit for the facility located at 216 Hazlett Co urt in Zanesville, Ohio. The applicant sought to establish a managed residence or group home where non-violent drug offenders would undergo a six-month outpatient program of rehab ilitation. In compliance with Zanesville zoning ordinances, a staff review of the applic ation was performed by BZA

staff. {¶3} After proper notice was issued, the application came before the BZA for hearing on February 13, 2020. At the beginning of the hearing, the BZA chairperson, Mr. Pat O’Brien (“O’Brien”) stated, “[t]he Board welcomes, values, and appreciates the various opinions and comments from members of the public; howev er, to ensure the meetings are respectful, peaceful, and orderly, it is necessary to establish rules to prevent disruption and allow the City’s business to be accomplished.” He continued, “anyone who would like to speak will have three – will have three minutes, and if additional time is needed, it will be voted on in three-minute increments at that time.” O’Brien also statedMuskingum County, Case No. CT2020-0049 3

that testimony would be limited to the issues concerning whethe r the application should be granted under the City of Zanesville zoning ordinances. {¶4} Counsel for the applicant presented the application and argued in favor of the special use permit. Several individuals spoke in favor of the application, and numerous individuals spoke against the application. {¶5} Appellant testified at the hearing. He stated, “most of the pr operty is in what’s called a PUD, a planned unit development. Okay? Its in tended use is not corporate gain. It’s supposed to provide special amenities and benefits to the community * * *.” Ney stated he believed the residents would get no bene fit from the proposed use. Ney questioned whether the applicant submitted a site plan and met all the appropriate design elements, citing R.C. 1155.04(A) and 1155.04(C). Ney de scribed his opinion of what the design and goals of the planned use community are. At the conclusion of his testimony, Ney stated, “any questions? I talked for hours on t his so I know it’s getting late. But, yes, planned use development. And I’m sure that th ere will be appeals to this, either side who wins, probably by way of Section 2506.01 appeal and/or Section 713.13, injunctive relief.” Ney then concluded his presentation. {¶6} At the conclusion of the hearing, the BZA approved the special use permit, with conditions, in a three to two vote. Schley memorialized t he approval in a written document and adopted the findings contained in the staff report . He listed the conditions of the special permit as follows: (1) the facility shall not b e utilized for the housing of persons on transitional control, nor who are otherwise under de tention as defined by R.C. 2921.01; (2) no violent offenders or sex offenders shall be per mitted to enter the programMuskingum County, Case No. CT2020-0049 4

and/or be housed at this location; and (3) the failure to compl y with conditions (1) and (2) will result in the termination of the granted special use permi t. {¶7} On February 26, 2020, appellant filed an administrative appeal to the Muskingum County Court of Common Pleas. Quadran LLC also filed an administrative appeal to the Muskingum County Court of Common Pleas on March 3 , 2020. The complaint states that Quadran is a “private limited liability c ompany who owns property in the Historic Overlay of the Putnam neighborhood in the City of Zanesville.” Both plaintiffs named two defendants: Schley, in his capacity as the City of Za nesville Planning and Zoning Administrator, and the BZA. The trial court consolidate d the two cases. {¶8} Quadran filed a motion for hearing for the submission of additi onal evidence on April 9, 2020. Quadran asserted it was not permitted to sub mit all of its evidence to the BZA, and those speaking in person were improperly limited i n their testimony. Quadran did not attach an affidavit to its motion. The BZA and Cairn filed separate memorandums in opposition to the motion. Quadran filed a reply brief, and attached to the reply brief the affidavit of John Litle (“Litle”). {¶9} Litle avers as follows: he was personally present for the Febr uary 13, 2020 hearing, he personally witnessed the instructions given by the BZA and Schley, he personally witnessed the testimony given at the hearing, he per sonally witnessed the BZA

state it would not take into consideration written evidence tha t was not presented in person at the hearing, he was personally aware of written evide nce that was not presented in person at the hearing, he personally spoke with me mbers of the community (and other interested persons) who stated that they chose not t o testify before the Board as they believed their testimony would be “cut off,” “denied,” or “ignored,” he wasMuskingum County, Case No. CT2020-0049 5

personally aware of additional evidence that was not presented to the BZA as a result of the BZA’s procedures/rules, he was personally present when the BZA instructed participants that it would not weigh the credibility of the app licant’s claims made in the application related to land use, he was personally present when the BZA accepted without question the claims of applicant and disregarded the concerns o f the public opposing the application, and he was personally present when the Board state d it would not consider information from community members related to how they arrived at their opinion on the application. {¶10} On June 19, 2020, Ney moved to join Quadran’s motion for submis sion of additional evidence. Ney did not submit his own affidavit, but stated in the body of his motion that he “agreed” with Litl e’s affidavit, and incorporate d it by reference. {¶11} Appellees filed a motion to strike the affidavit of Litle on Ju ne 23, 2020. The

trial court did not rule on the motion. {¶12} Quadran filed a motion for temporary restraining order and prel iminary injunction, asking the trial court to require Cairn to immediat ely stop all construction and/or modifications on the building. {¶13} The trial court issued a judgment entry on September 18, 2020. The trial court denied Quadran’s motion for temporary restraining order a nd preliminary injunction. The trial court further ruled that, “following a review of the pleadings and transcripts, the Court finds there was no ‘chilling effect’ by the actions of th e Board of Zoning Appeals. A full hearing was held and all proper evidence considered. Ther efore, the decision of the Board of Zoning Appeals is affirmed.”Muskingum County, Case No. CT2020-0049 6

{¶14} Appellant appeals the September 18, 2020 judgment entry of the Muskingum County Court of Common Pleas and assigns the followin g as error: {¶15} “I. THE TRIAL COURT’S DECISION TO NOT HOLD AN EVIDENTIARY

HEARING WAS IN ERROR. {¶16} “II. THE TRIAL COURT’S SEPTEMBER 18, 2020 ORDER AFFIRMING

THE DECISION OF THE ZANESVILLE BOARD OF ZONING APPEALS WAS IN

ERROR.” R.C. 2506 Appeals {¶17} R.C. 2506.04 sets forth the applicable standard of review for a court of common pleas in an administrative appeal. It provides as follo ws: * * * [T]he court may find that the order, adjudication, or dec ision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative ev idence on the whole record. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication, or decision, or rema nd the cause to the officer or body appealed from with instructions to enter an order, adjudication, or decision consistent with the findings or opini on of the court. The judgment of the court may be appealed by any party on quest ions 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. {¶18} The Ohio Supreme Court has distinguished the standard of review for the common pleas court and appellate court in Chapter 2506 administ rative appeals. Henley v. Youngstown Bd. of Zoning Appeals , 90 Ohio St.3d 142, 735 N.E.2d 433 (2000). TheMuskingum County, Case No. CT2020-0049 7

common pleas court considers the “whole record,” including any new or additional evidence admitted pursuant to R.C. 2506.03. Id. {¶19} As an appellate court, our standard of review in a R.C. 2506.04 appeal is “more limited in scope.” Kisil v. Sandusky , 12 Ohio St.3d 30, 465 N.E.2d 848 (1984). “This statute grants a more limited power to the court of appea ls to review the judgment of the common pleas court only on ‘questions of law,’ which doe s not include the same extensive power to weigh ‘the preponderance of substantial, rel iable, and probative evidence’ as is granted to the common pleas court.” Id. {¶20} Ultimately, the standard of review for appellate courts in a Se ction 2506 zoning appeal is whether the common pleas court abused its disc retion in making its determination pursuant to R.C. 2506.04. Weber v. Troy Twp. Bd. of Zoning Appeals , 5th Dist. Delaware No. 07 CAH 04 0017, 2008-Ohio-1163. These stand ards permit reversal only when the common pleas court errs in its application or int erpretation of the law or its decision is unsupported by a preponderance of the evidence as a matter of law. Cleveland Clinic Foundation v. Cleveland Bd. of Zoning Appeals , 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161.

I. {¶21} In his first assignment of error, appellant contends the trial court committed error in not holding a hearing for the submission of additional evidence. We review the trial court’s decision to allow or deny the introduction of add itional evidence pursuant to

R.C. 2506.03 under an abuse of discretion standard. Cooper State Bank v. City of

Columbus , 10th Dist. Franklin Nos. 14AP-414, 14AP-415, 2015-Ohio-2533.Muskingum County, Case No. CT2020-0049 8

{¶22} In reviewing an appeal under R.C. 2506, the common pleas court is “confined to the transcript of the administrative body, unless one of the conditions specified in R.C. 2506.03 appears on the face of the transcript or by affidavit.” Dvorak v.

Mun. Civil Serv. Comm. , 46 Ohio St.2d 99, 346 N.E.2d 157 (1976). The conditions in R.C. 2506.03(A) at issue in this case are as follows: (1) the transcript does not contain a report of all evidence admitted or proferred by the appellant ; (2) the appellant was not permitted to appear and be heard in person, or by the appellant ’s attorney, in opposition to the final order, adjudication, or decision, and to do any of the following: (a) present the appellant’s position, arguments, and contentions; (b) offer and examine witnesses and present evidence in support; * * * or (e) proffer any such evidence into the record, if the admission of it is denied by the officer or body appealed f rom. R.C. 2506.03(A)(2)(a) {¶23} Appellant first argues he was entitled to a hearing to submit a dditional evidence because he was not permitted to present his position a nd arguments. Specifically, appellant contends R.C. 2506.03(A)(2)(a) is appli cable in this case because has was limited to three minutes at the hearing, and three minu tes did not allow him to be heard on the complicated issue of planned unit development. {¶24} We disagree. At the beginning of the hearing, O’Brien stated t hat anyone who would like to speak would have three minutes. He further s tated, “if additional time is needed, it will be voted on in three-minute increments at th at time.” Ney testified at the hearing, specifically stating he believed the residents would g et no benefit from the proposed use and questioning whether the applicant submitted a site plan in accordanceMuskingum County, Case No. CT2020-0049 9

with Zoning Code 1155.04 (planned use development). At the con clusion of his testimony, he asked the BZA if they had any questions, and comp leted his presentation. {¶25} Appellant spoke for approximately one minute and thirty seconds . He discussed planned use development, but did not take up his enti re three-minute allotment. He did not inform the BZA that the planned use development issu e was “complicated,” or that it required further explanation from him or other witnesse s. Though O’Brien made it clear that appellant could have requested additional time and t he Board would vote on such a request, appellant never requested any additional time a nd never sought to supplement his presentation to the BZA. Ardire v. Westlake City Council , 8th Dist. Cuyahoga No. 99347, 2013-Ohio-3533. Accordingly, we find the t rial court did not commit error in finding appellant was not entitled to a hearing pursua nt to R.C. 2506.03(A)(2)(a). R.C. 2506.03(A)(2)(e) & R.C. 2506.03(A)(1) {¶26} Appellant next argues he was entitled to submit additional evid ence pursuant to R.C. 2506.03(A)(2)(e) because he was not permitted to proffer evidence into the record when the admission of such evidence was denied by th e BZA. Specifically, appellant contends the following statement by O’Brien demonstra tes that the letters

submitted to the BZA were not taken into consideration when it made its decision: “in order for evidence to be considered in the decision-making proc ess, it can only be given by people who are in attendance; otherwise, it will be hearsay. ” Appellant contends there were letters in opposition to the application that were not con sidered by the BZA in its decision-making because of O’Brien’s statement. {¶27} We first note that none of the letters appellant cites as being denied consideration by the BZA were letters that appellant attempted to introduce. R.C.Muskingum County, Case No. CT2020-0049 10

2506.03(A)(2)(e) specifically states the trial court should all ow additional evidence when “the appellant was not permitted * * * to proffer evidence.” A ppellant did not attempt to proffer any evidence in this case and failed to state through a proffer what other evidence or testimony it would have presented to the trial court that he was allegedly denied the opportunity to present. “The purpose of a proffer is to assist the reviewing court in determining whether the trial court’s exclusion of evidence aff ected the defendant’s substantial rights.” State v. Conkle , 2nd Dist. Montgomery No. 24161, 2012-Ohio-1772. {¶28} All of the letters submitted were included in a packet provided to each BZA member prior to the hearing. The letters in the packet include d some letters from individuals who spoke at the hearing (Steven Carrell, Lori Winc e, John Litle, Joseph Nezbeth, Rick Buck, Nicole Dickerson, Dale Swartzmiller), and i ncluded some letters from individuals who did not speak at the hearing (Brent Stubbins, J an Bradshaw, Jennifer Estep, Ron Kelso, John Leeber, Samantha Crawford, Chris Gookin, Dan Quinn). The sign-in sheets show that Chris Gookin, Dan Quinn, and Samantha Crawford attended the hearing. {¶29} Despite O’Brien’s statement, there was no prejudice to appellan t, because there was no rejection of any of the submitted letters. All of the letters were included as part of the BZA packet provided to each member prior to the hea ring. There is no

indication the BZA members did not review these letters. At le ast one of the board members spoke to a testifying witness about the letter she subm itted, and another board member spoke about the contents of another letter. {¶30} The additional evidence proposed by appellant was available fro m the record because all of the letters, both from those individuals who were present at theMuskingum County, Case No. CT2020-0049 11

hearing and from those who were not present at the hearing, wer e in the packet the BZA members had prior to the hearing. The record shows that all te stimony and exhibits offered were accepted and considered by the BZA. No additional submission of evidence before the common pleas court was necessary because all of the letters, including letters from individuals not present at the hearing, were contained in the record the BZA provided to the trial court for it to consider in making its decision. Ingram v. Bexley , 10th Dist. Franklin No. 14AP-627, 2015-Ohio-1011. {¶31} Accordingly, we find the trial court did not abuse its discreti on in finding appellant was not entitled to a hearing pursuant to R.C. 2506.0 3(A)(2)(e). {¶32} Similarly, appellant contends he was entitled to a hearing to p resent additional evidence pursuant to R.C. 2506.03(A)(1) because the “transcript does not contain a report of all evidence admitted or proffered by the a ppellant.” As detailed above, appellant did not proffer any evidence. Further, the transcrip t provided to both the trial

court and this Court contained all of the evidence the BZA had in making its determination, including all of the letters submitted. Appellant failed to id entify or present the court with any additional evidence admitted or proffered which was not inc luded in the record of the proceedings. Pay N Stay Rentals, LLC v. City of Canton , 5th Dist. Stark No. 2019 CA 00148, 2020-Ohio-1573. Thus, we find the trial court did not c ommit error in finding appellant was not entitled to a hearing pursuant to R.C. 2506.0 3(A)(1). R.C. 2506.03(A)(2)(b) {¶33} Appellant argues the trial court abused its discretion in denyi ng his motion for hearing to submit additional evidence because he was not pe rmitted to offer and present all of his evidence in support of his position pursuant to R.C. 2506.03(A)(2)(b).Muskingum County, Case No. CT2020-0049 12

Appellant specifically contends that due to misleading prelimin ary instructions by the BZA, he was not able to present all of his intended evidence. Appel lant cites the statements by Schley that the BZA should only consider testimony and evide nce relating to “land

use.” {¶34} When Schl ey introduced the applicatio n to the Board, he stated that, “per the American Planning Association, zoning pertains only to land and the uses of that land. Zoning does not pertain to the actions of specific people or gr oups of people when conducting business. As such, all decisions must be made in re lation to the use and the land upon which that use is being carried out.” In closing, Sc hley stated, “decisions by the BZA should be based solely on the facts that pertain to lan d, land use, and the impact surrounding uses have on one another. Individuals involved in this request should have no bearing on these proceedings.” {¶35} After Schley made these statements, one of the board members as ked him to clarify what he meant by his statement that individuals invo lved in the request have no bearing on the proceedings. Schley referenced a training he re cently attended and stated, “you can’t say this person is a bad guy and so we’re no t going to approve this because we think you are a bad guy. That’s all I was getting a t, not to take an individual and make a decision based on that individual’s personality, act ions, anything along those lines.” Schley clarified that anything that “pertains to the o peration” of the group facility “can absolutely be considered,” but the people who are operatin g it should not be

considered. {¶36} Schley’s comments to the BZA were based upon his recent trainin g, and was not in relation to any limitation of appellant, or the evid ence and testimony appellantMuskingum County, Case No. CT2020-0049 13

presented. Appellant does not indicate what evidence he sought to introduce in support of his testimony that did not relate to land use. When he spok e, appellant was never stopped by the Board from presenting any evidence in support of his position. Appellant failed to state through a proffer what evidence or testimony he would have presented to the trial court that he was allegedly denied the opportunity to present. See Smith v. Conventry Twp. Zoning Dept. , 9th Dist. Summit No. 23871, 2008-Ohio-2532. {¶37} Appellant contends the statement in Litle’s affidavit that he p ersonally spoke with members of the community (and other interested persons) wh o stated that they chose not to testify before the Board as they believed their te stimony would be “denied” or “ignored,” and Litle’s statement that he was personally pres ent when the BZA instructed participants that it would not weigh the credibility of the applicant’s claims made in the application related to land use, was sufficient to quali fy for a hearing to present

additional evidence. {¶38} As discussed above, there is no indication that appellant was n ot permitted to offer and present all of the evidence in support of his posi tion as is required by R.C. 2506.03(A)(2)(b). Litle states that “others,” not appellant, c hose not testify before the Board because of the alleged restrictions. Additionally, Litle ’s affidavit fails to allege that the Board did not permit him, appellant, or any of the other wi tnesses to offer and present all of their evidence; it simply states others “chose” not to t estify. Appellant and Litle failed to identify or proffer what evidence or testimony the Board wou ld not permit them to offer. {¶39} We find the trial court did not commit error in finding appella nt was not entitled to a hearing pursuant to R.C. 2506.03(A)(2)(b).Muskingum County, Case No. CT2020-0049 14

Affidavit {¶40} Appellant contends the trial court committed error in denying h is motion for hearing to take additional evidence because of the affidavit su bmitted by Litle. {¶41} If an affidavit is filed pursuant to R.C. 2506.03, the trial co urt must consider its content in its disposition of the case. Smith v. Coventry Twp. Zoning Dept. , 9th Dist. Summit No. 23871, 2008-Ohio-2532. Appellees filed a motion to strike the affidavit. However, the trial court did not rule on the motion. A trial c ourt’s failure to rule on a motion is deemed to be a denial of that motion for purposes of appella te review. Capital One Bank (USA), N.A. v. Rodgers, 5th Dist. Muskingum No. CT2009-0049, 2010-Ohio-4421. {¶42} In appellant’s brief, he argues that because there was no indic ation the trial court took Litle’s affidavit into consideration, the trial cour t committed error in denying the motion for hearing to submit additional evidence. We disagree with appellant. There is

no evidence that the trial court did not consider the affidavit . Rather, the trial court specifically stated it considered all of the pleadings and tran scripts in the case. The pleadings in this case included the affidavit by Litle; additio nally, the transcript from the BZA included Litle’s testimony and letter. {¶43} Further, mere allegations in an affidavit of one or more of the deficiencies listed in R.C. 2506.03 does not entitle an appellant to an addi tional evidentiary hearing. Green Vision Materials, Inc. v. Newbury Twp. Bd. of Zoning Appeals , 11th Dist. Geauga No. 2013-G-3136, 2014-Ohio-4290. “The mere filing of an affida vit does not automatically quicken the statutory right nor compel the Court of Common Plea s to take additional

evidence unless the record will s upport one of the deficiencies enumerated in the statute.”Muskingum County, Case No. CT2020-0049 15

Id. ; Hirsi v. Franklin Co. Dept. of Job & Family Services , 10th Dist. Franklin No. 13AP-39,

2014-Ohio-1804. {¶44} In this case, Litle avers in his affidavit that he was “person ally aware of written evidence that was not presented in person at the hearin g, he personally spoke with members of the community (and other interested persons) wh o stated that they chose not to testify before the Board * * * and he was personal ly aware of additional evidence that was not presented to the BZA.” However, Litle did not state what evi dence was allegedly not presented at the hearing, did not state which witnesses allegedly did not get to testify before the Board, or what additional evidenc e allegedly was not presented at the hearing. {¶45} The affidavit did not provide any details or explanation in sup port of the deficiencies listed. Moreover, as detailed above, the record d oes not demonstrate the existence of any of the alleged deficiencies. Accordingly, the trial court did not abuse its discretion in denying appellant’s motion for hearing to submit additional evidence. Appellant’s first assignment of error is overruled.

II. {¶46} In his second assignment of error, appellant contends the trial court committed error in affirming the decision of the BZA because th e trial court failed to review all of the pertinent evidence. Specifically, appellant argues the trial court did not review the “whole record” before making its determination because it d enied appellant’s motion for hearing for the submission of additional evidence. {¶47} As detailed above, we find the trial court did not commit error in denying appellant’s motion for hearing for the submission of additional evidence. In its judgmentMuskingum County, Case No. CT2020-0049 16

entry, the trial court specifically stated it reviewed and cons idered the pleadings and transcripts, and found the BZA properly held a full hearing and considered all the evidence in making its decision. Appellant’s second assignment of error is overruled. {¶48} Based on the foregoing, appellant’s assignments of error are ov erruled. {¶49} The September 18, 2020 judgment entry of the Muskingum County C ourt

of Common Pleas is affirmed. By Gwin, J., Baldwin, P.J. and Delaney, J., concur