The Board of Zoning Appeals (“BZA”) of a political subdivision in Ohio is an administrative body which conducts “quasi-judicial” proceedings. BZA decisions can be appealed under Ohio Revised Code §2506.01. State ex rel. Travelcenters of Am., Inc. v. Westfield Township Zoning Comm (1999) 87 Ohio St.3d 161.
The BZA must establish a record of proceedings which, upon review by a court of common pleas, is not determined to be “unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record.” R.C. §2506.04. Therefore, a BZA should not consider evidence which is not probative. A defect in procedure, such as considering evidence which is not probative, could result in a reviewing court overturning a BZA decision.
In light of the fact that a BZA should only consider substantial, reliable and probative evidence, public comment should be very restricted if not completely prohibited as Ohio courts have determined that public comment is not probative evidence. “[T]he bulk of these [members of the public] are merely offering their subjective and speculative comments and unsubstantiated opinions. Such testimony cannot rise to the crest of the reliable, probative, and substantial evidence …” Adelman Real Estate Co. v. Gabanic, 109 Ohio App. 3d 689, 694.
At adjudicatory hearings (such as BZA hearings) the rights of specific persons are determined based upon the direct evidence presented, not public opinion. Adelman Real Estate Co. v. Gabanic (1996) 672 N.E.2d 1087. Therefore, witnesses must testify about relevant facts, not their subjective and unsubstantiated opinions. Id. The unsworn testimony of a witness is not evidence that the board may consider. Arcaro Bros. Builders, Inc. v. N. College Hill Zoning Bd. of Appeals (1966), 7 Ohio St. 2d 32, 218 N.E.2d 179.
A BZA hearing is open to the public, but it is not a public hearing where members of the general public may speak. In Re Rocky Point Plaza Corp. (1993) 621 N.E.2d 566. “The fact that adjudicatory hearings are to be open to the public does not result in their transformation into legislative public hearings with the corresponding right to receive input of public comment at that time.” Adelman Real Estate Co. v. Gabanic, 109 Ohio App. 3d 689, 694.
By its very design as an administrative, quasi-judicial body, a BZA functions differently than legislative bodies such as Planning Commission or City Council. “Generally speaking, addressing the concerns of the citizenry is a legislative function, not an administrative one. Administrative decisions must be based on evidence. Consequently, legal matters such as zoning variance decisions must be determined by facts, not subjective beliefs.” AT&T Wireless Servs. v. City of Streetsboro, 1998 Ohio App. LEXIS 2905 citing Libis v. Bd. of Zoning Appeals (1972) 292 N.E.2d 642.
The following case quote demonstrates both how a court takes a dismissive approach to opinions offered by members of the public to the BZA and how a court will credit BZA’s with the ability to make sophisticated decisions:
“The trial court’s primary objection to the evidence presented at the hearing was … that the statements offered by the members of the public, most of whom were neighbors of the [Applicant’s] operation, consisted of opinion rather than fact, and that such evidence did not rise to the level of reliable, probative, and substantial evidence. While we might agree with the trial court that the statements offered by [Applicant’s] neighbors were entitled to little weight, we do not agree that the presence of this testimony required the reversal of the BZA’s decision. The BZA mentioned the neighbors’ concerns in reaching its decision, but it also provided other specific reasons for its decision, and it is not apparent that the neighbors’ concerns were given great weight. We will not presume that the BZA was so unsophisticated as to have been unable to differentiate between the objective observations and the subjective opinions of the hearing participants where there was other evidence in the record to support its decision.” John P. Raisch, Inc. v. Board of Zoning Appeals, 1999 Ohio App. LEXIS 2732, 14-15 (Ohio Ct. App., Montgomery County June 18, 1999).
According to the Raisch court, a BZA is capable of making sophisticated decisions. The responsibility of a BZA to conduct quasi-judicial proceedings and establish a record which will withstand judicial review includes the responsibility to determine who is qualified to provide testimony. This is not to say that if public opinion makes its way into a BZA decision that the decision is invalid. However, the BZA walks a fine line by accepting such non-probative evidence because it runs the risk of a court later invalidating the decision based on the inclusion of such evidence. It is a safer route for the BZA to establish clear, consistent guidelines as to who will be permitted to testify and limit the amount of non-probative, subjective testimony presented.
Furthermore, not only can a citizen or community member be denied the opportunity to speak at a BZA hearing due to lack of standing, but that individual would also be denied the opportunity to appeal a BZA decision in the court of common pleas. “The private litigant has standing to complain of harm which is unique to himself. In contrast, a private property owner across town, who seeks reversal of the granting of a variance because of its effect on the character of the city as a whole, would lack standing because his injury does not differ from that suffered by the community at large. The latter litigant would, therefore, be unable to demonstrate the necessary unique prejudice which resulted from the board’s approval of the requested variance.” Willoughby Hills v. C. C. Bar’s Sahara, 64 Ohio St. 3d 24, 27 (Ohio 1992).
In conclusion, BZA’s should take care in what evidence is admitted into the record. When a decision is appealed, the reviewing court has the ability to overturn or remand a BZA’s decision if the court determines it was not based on substantial, reliable, and probative evidence.
By: Amy Blankenship.