[Cite as Shearer v. Millcreek Twp., 2009-Ohio-3820.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

UNION COUNTY 

 

CRAIG SCHEARER, 

 PLAINTIFF-APPELLANT, CASE NO. 14-09-13 

 v. 

MILLCREEK TOWNSHIP, ET AL., O P I N I O N 

 DEFENDANTS-APPELLEES. 

 

Appeal from Union County Common Pleas Court 

Trial Court No. 2008-CV-0414 

Judgment Affirmed 

Date of Decision: August 3, 2009 

 

APPEARANCES: 

Jeffrey D. Mackey for Appellant 

Rick Rodger for Appellees 
Case No. 14-09-13 

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SHAW, J. 

{¶1} Appellant Craig Shearer (“Craig”) appeals the April 3, 2009 decision 

of the Court of Common Pleas, Union County, Ohio affirming the decision of the 

Millcreek Township Board of Zoning Appeals (“Millcreek Township BZA”). 

{¶2} This matter stems from the operation of Shearer Landscaping at 

14136 Smart Cole Road, Ostrander, OH 43061 in Millcreek Township. This 

property is zoned U-1 Farm/Residential. Prior to the purchase of the property 

located at 14136 Smart Cole Road, Craig contacted the zoning inspector for 

Millcreek Township to inquire whether he could legally operate his business on 

the property. Millcreek Zoning Inspector, Steve Hall (“Hall”) informed Craig that 

his landscaping business qualified as an agricultural use. Craig purchased the 

property in late 2006 and began operating Shearer Landscaping on the property. 

{¶3} In March 2007, Hall issued a notice stating that the Shearers did not 

require a permit to operate the business on the Smart Cole Road property. At 

some point, a complaint was received concerning the use of the Smart Cole Road 

property. It appears that after the complaint, Hall requested an advisory opinion 

from the Union County Prosecutor as to whether Craig was using the property 

within the scope of the U-1 zoning requirements. The Union County Prosecutor 

issued an opinion that the landscaping business did not constitute an agricultural 

use of the property under Ohio law. 
Case No. 14-09-13 

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{¶4} A zoning violation was issued to Craig after Hall received the 

opinion of the Union County Prosecutor. The zoning violation notice was 

appealed to the Millcreek Township Board of Zoning Appeals, and a hearing was 

held on July 9, 2008. 

{¶5} At the hearing, Hall testified that nothing on the Smart Cole Road 

property indicated that a business was being run there. Unmarked trucks and 

lawnmowers were parked on the property, but there was no advertising or signage 

indicating the presence of the landscaping business. According to Hall, some 

neighbors had complained about people coming and going from the property, but 

that was the only indication of the presence of a business. 

{¶6} Craig testified that he did operate a commercial business at the 

Smart Cole Road property, specifically a landscaping business. He also testified 

that he did not operate a commercial nursery on the property and was not licensed 

to do so. Craig further testified that he did not grow items for his landscaping 

business on the property, but may hold items there for another use. 

{¶7} On July 9, 2008 the Millcreek Township Board of Zoning Appeals 

issued a decision denying Craig’s appeal of the Zoning Inspector’s Notice of a 

Violation as follows: 

The Millcreek Township BZA denies Mr. Shearer’s appeal of 

Zoning Inspector’s Notice of Violation, issued on May 7, 2008 to 

Mr. Craig Shearer on the basis of finding that Shearer 

Landscaping, operated by Mr. Shearer at 14136 Smart Cole 
Case No. 14-09-13 

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Road, Ostrander, OH 43061, is a service business, which is not 

an authorized use in a U1 district. 

{¶8} On August 8, 2008 Craig appealed the decision of the Millcreek 

Township Board of Zoning Appeals to the Union County Court of Common Pleas. 

{¶9} On December 5, 2008 Craig filed their brief arguing that his use of 

the property is a permitted use in a district zoned U-1. Millcreek Township BZA 

filed its brief on December 19, 2008. 

{¶10} On April 3, 2009 the trial court issued a judgment entry affirming 

the decision of the Millcreek Township BZA as supported by a preponderance of 

reliable, probative, and substantial evidence. 

{¶11} Craig now appeals, asserting two assignments of error. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT WAS INCORRECT IN AFFIRMING 

THE DECISION OF THE BOARD OF ZONING APPEALS IN 

THAT THE APPELLANT’S USE WAS PROPER UNDER 

THE U-1 FARM/RESIDENTIAL ZONING CATEGORY. 

ASSIGNMENT OF ERROR II

THE TRIAL COURT WAS INCORRECT IN AFFIRMING 

THE DECISION OF THE BOARD OF ZONING APPEALS 

WHEN IT FOUND THAT THE APPELLANT’S USE WAS 

IMPROPER BECAUSE APPELLANT WAS OPERATING A 

“SERVICE BUSINESS.” 

{¶12} For ease of discussion, we elect to address Craig’s assignments of 

error together. As an initial matter, we note that when reviewing the judgment of 
Case No. 14-09-13 

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the board of zoning appeals, the common pleas court considers the whole record, 

including any new or additional evidence admitted under R.C. 2506.03, and 

determines whether the administrative order is “unconstitutional, illegal, arbitrary, 

capricious, unreasonable, or unsupported by the preponderance of substantial, 

reliable, and probative evidence.” Briggs v. Dinsmore Twp. Bd. of Zoning Appeals 

(2005), 161 Ohio App.3d 704, 707, 831 N.E.2d 1063, see also Henley v. 

Youngstown Bd. of Zoning Appeals (2000), 90 Ohio St.3d 142, 147, 735 N.E.2d 

433. 

{¶13} Alternatively, this Court has concluded that “[t]he standard of 

review to be applied by the court of appeals in an R.C. 2506.04 appeal is ‘more 

limited in scope.’” Briggs, 161 Ohio App.3d at 707 citing 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. It 

is incumbent on the trial court to examine the evidence. Such is 

not the charge of the appellate court. * * * The fact that the 

court of appeals, or this court, might have arrived at a different 

conclusion than the administrative agency is immaterial. 

Appellate courts must not substitute their judgment for those of 

an administrative agency or a trial court absent the approved 

criteria for doing so. 

Briggs, 161 Ohio App.3d at 707-708. Furthermore, this Court has recognized that 

administrative appeals under R.C. 2506.04 are reviewed under an abuse of 
Case No. 14-09-13 

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discretion standard. Id. An abuse of discretion implies that the trial court's 

decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. 

{¶14} The Millcreek Township Zoning Code Section 6110 provides for the 

permitted uses of property zoned as U-1 Farm/Residential. In pertinent part, 

Section 6110(A)(iii) provides for the following uses: 

a. Agricultural uses as defined by the Ohio Revised Code 

iii. Wholesale and retail nurseries 

{¶15} Revised Code 519.01 defines Agriculture as follows: 

As used in section 519.02 to 519.25 of the Revised Code, 

“agriculture” includes farming; ranching; aquaculture; 

apiculture; horticulture; viticulture; animal husbandry, 

including, but not limited to, the care and raising of livestock, 

equine, and fur-bearing animals; poultry husbandry and the 

production of poultry and poultry products; dairy production; 

the production of field crops, tobacco, fruits, vegetables, nursery 

stock, ornamental shrubs, ornamental trees, flowers, sod, or 

mushrooms; timber; pasturage; any combination of the 

foregoing; the processing, drying, storage, and marketing of 

agricultural products when those activities are conducted in 

conjunction with, but are secondary to, such husbandry or 

production. 

{¶16} Specifically, Craig argues that the trial court erred in determining 

that their use of the property was improper given that the property was zoned U-1. 

“Zoning involves the regulation of land according to its nature and uses. A “use” 

is an activity permitted by the zoning classification applicable to the district in 
Case No. 14-09-13 

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which the land is situated.” Young v. Board of Zoning Appeals (February 4, 2000), 

2nd Dist. No. 17877. “Whether a particular use exists depends on the nature and 

purpose of the activity involved. That must be determined from the whole of the 

activity concerned, not merely with reference to one of its constituent parts.” Id. 

{¶17} Craig testified that he owned a landscaping business and that he kept 

the equipment used in the landscaping business at the Smart Cole Road property. 

Moreover, Craig testified that his landscaping crew would meet at the Smart Cole 

Road property in the mornings to gather the necessary equipment before heading 

to a job site. There appears to be no dispute in the record before us that Craig used 

the property to run a landscaping business. 

{¶18} Ohio courts have consistently held that a landscaping business does 

not fall within the meaning of agriculture as defined by R.C. 519.01. See State ex 

rel. Fox v. Orwig (Sept. 15, 1995), 11th Dist. No. 94-T-5100; Ghindia v. Buckeye 

Land Dev., LLC., 11th Dist. No. 2006-T-0084, 2007-Ohio-779; Petitti v. Plain Tp. 

Bd. Of Zoning Appeals, 5th Dist. No. 2003CA00179, 2003-Ohio-6849. 

{¶19} Based upon our review of the record, we find the trial court’s 

decision that Craig’s landscaping business is not an agricultural use does not 

constitute an abuse of discretion. Other courts have reached the same conclusion. 

Moreover, we find that the Millcreek Township BZA’s conclusion that Craig was 

running a “service business” to be of no consequence, where the Court of 
Case No. 14-09-13 

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Common Pleas correctly determined that Craig’s landscaping business was a 

prohibited use in an agricultural zone. Accordingly, Craig’s first and second 

assignments of error are overruled. 

{¶20} Based on the foregoing, the April 3, 2009 decision of the Court of 

Common Pleas, Union County, Ohio affirming the decision of the Millcreek 

Township Board of Zoning Appeals is affirmed. 

Judgment Affirmed 

WILLAMOWSKI and ROGERS, J.J., concur. 

/jlr