Southgate Corp. v. Granville ( 2019 )

[Cite as Southgate Corp. v. Granville, 2019-Ohio-2188.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SOUTHGATE CORPORATION : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
VILLAGE OF GRANVILLE, ET AL. : Case No. 18-CA-108
:
Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 18-CV-00588
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 3, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
JOSEPH R. MILLER MICHAEL J. KING
CHRISTOPHER L. INGRAM 141 East Broadway
KARA M. MUNDY P.O. Box 514
52 East Gay Street Granville, OH 43023
P.O. Box 1008
Licking County, Case No. 18-CA-108 2
Columbus, OH 43216-1008
Wise, Earle, J.
{¶ 1} Defendants-Appellants, Village of Granville, Ohio and Village Council for
the Village of Granville, Ohio, appeal the November 2, 2018 decision and order of the
Court of Common Pleas of Licking County, Ohio, vacating a decision by the village limiting
the commercial uses of a development plan of Plaintiff-Appellee, Southgate Corporation.
FACTS AND PROCEDURAL HISTORY
{¶ 2} In January 2018, appellee submitted a planned development district
application with the Granville Planning Commission to develop approximately 57.5 acres
of vacant land. Appellee proposed a planned unit district (hereinafter "PUD") comprised
of single-family and multi-family dwellings and a limited mixed-use combination of
commercial uses. The Granville Planning Commission recommended that the application
be approved. Appellants approved appellee's plan, except they limited appellee's mixed-
use combination of commercial uses to four uses: business and professional offices and
financial institutions, specialty food shops, specialty retail shops, and restaurants.
Appellants cited Chapter 1171 of "the Granville Codified Ordinances and Comprehensive
Plan guidance regarding Future Land Uses, Preserving Small Town Character and
Strengthening the Tax Base" to support their decision.
{¶ 3} On June 8, 2018, appellee filed an administrative appeal contesting the
limitation with the Court of Common Pleas of Licking County, Ohio pursuant to R.C.
Chapter 2506. By decision and order filed November 2, 2018, the trial court vacated
appellants' decision, finding appellants had no authority to limit or condition the
commercial uses in approving appellee's PUD.
Licking County, Case No. 18-CA-108 3
{¶ 4} Appellants filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 5} "THE TRIAL COURT ERRED BY EFFECTIVELY HOLDING CHAPTER
1171 OF THE GRANVILLE PLANNING AND ZONING CODE TO BE
UNCONSTITUTIONAL ON ITS FACE, WITHOUT REGARD TO THE LAWFUL AND
REASONABLE MANNER IN WHICH IT WAS ACTUALLY APPLIED TO SOUTHGATE
CORPORATION'S PUD APPLICATION IN THIS CASE."
II
{¶ 6} "IF AN 'AS APPLIED' ANALYSIS IS CORRECTLY FOLLOWED, CHAPTER
1171 OF THE GRANVILLE PLANNING AND ZONING CODE IS NOT
UNCONSTITUTIONALLY VAGUE AND DID NOT DEPRIVE SOUTHGATE OF A RIGHT
TO DUE PROCESS."
I, II
{¶ 7} In both of their assignments of error, appellants claim the trial court erred in
finding Chapter 1171 of the Granville Planning and Zoning Code to be unconstitutional
and in fact, it is not unconstitutionally vague as applied. We disagree.
{¶ 8} Pursuant to R.C. 2506.04, in an administrative appeal, the common pleas
court considers the whole record, including any new or additional evidence, and
determines whether the administrative order is unconstitutional, illegal, arbitrary,
capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,
and probative evidence. In reviewing an appeal of an administrative decision, a court of
common pleas begins with the presumption the agency's determination is valid, and the
Licking County, Case No. 18-CA-108 4
appealing party bears the burden of showing otherwise. Hollinger v. Pike Township Board
of Zoning Appeals, 5th Dist. Stark No. 09CA00275, 2010-Ohio-5097.
{¶ 9} As an appellate court, our standard of review to be applied in an R.C.
2506.04 appeal is "limited in scope." Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d
848 (1984). "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 the substantial, reliable, and
probative evidence,' as is granted to the common pleas court." Id. at fn. 4.
{¶ 10} Ultimately, the standard of review for appellate courts in an R.C. Chapter
2506 appeal is "whether the common pleas court abused its discretion in finding that the
administrative order was or was not supported by reliable, probative, and substantial
evidence." See Weber v. Troy Township Board of Zoning Appeals, 5th Dist. Delaware
No. 07 CAH 04 0017, 2008-Ohio-1163. In order to find an abuse of discretion, we must
determine the trial court's decision was unreasonable, arbitrary or unconscionable and
not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450
N.E.2d 1140 (1983).
{¶ 11} "The standard of review for courts of appeals in administrative appeals is
designed to strongly favor affirmance" and "permits reversal only when the common pleas
court errs in its application or interpretation of the law or its decision is unsupported by a
preponderance of the evidence as a matter of law." Cleveland Clinic Foundation v.
Cleveland Board of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d
1161.
{¶ 12} In their appellate brief at 4, appellants argue the following:
Licking County, Case No. 18-CA-108 5
In the case at bar, the trial court effectively held Chapter 1171
unconstitutional on its face, as it 'vacated' Council's thoughtful limitation on
the combination of mixed commercial uses that could go into a PUD. The
trial court accepted and adopted Southgate's argument that it could put any
commercial use into the PUD that it chooses, without limitation.
Accordingly, the trial court has left the Village of Granville with no instance
in which it can limit the mixed commercial uses that any future developer
might choose to put in a PUD.
{¶ 13} In its decision and order filed November 2, 2018, the trial court determined
appellants had no authority to limit or condition the commercial uses in approving
appellee's PUD, finding the following:
The Court agrees with Southgate that Chapter 1171 does not restrict
the commercial uses permitted on property zoned PUD. Under Ohio law,
courts interpreting zoning ordinances must strictly construe restrictions on
the use of real property in favor of the property owner. Any ambiguities in
zoning provisions which restrict the use of one's land must be construed in
favor of the land owner because the enforcement of such a provision is an
exercise of police power that constricts property rights. And the local
government's authority to regulate uses of land cannot be extended to
include the authority to restrict uses not clearly proscribed in the ordinance.
Licking County, Case No. 18-CA-108 6
While it is clear that the Village gave careful and deliberate
consideration to Southgate's proposal, imposing restrictions and conditions
which were not set forth in the zoning ordinance results in an ad hoc spot
zoning. The imposition of non-existent restrictions or conditions are by
definition arbitrary as there are no guidelines or factors for consideration set
out in the code. There is no way for a property owner to anticipate what is
a permitted use or what the limitations on a use may be.
The problem with the Village's argument is that section
1171.02(A)(4), contains no definition for term "limited" which supports its
conclusions; nor are there guidelines as to what types of commercial uses
are permitted and how they might be limited. And the code contains no
criteria to guide Council in the exercise of its discretion.
While the Village argues that the restrictions were arrived [at] as a
result of a fair and reasonable process, they are not based upon any
authority in the code. Allowing Council to make its decisions on factors not
enumerated in the code is an invitation to subjective and arbitrary evaluation
of development plans.
Moreover, Village Council's reliance on its comprehensive plan to
inject additional requirements or conditions into the zoning code is not
permitted. A comprehensive plan "represents a community's policy toward
public and private development, it is not, like a zoning regulation, a law."
And even if Village Council were permitted to rely on its comprehensive plan
in evaluating Southgate's plan, the only evidence was that the development
Licking County, Case No. 18-CA-108 7
plan met the future land use intentions set forth in the comprehensive plan.
The same is true in determining whether it was proper for Village Council to
rely on any general statements of purpose and intent in the zoning code to
conclude that an otherwise permitted use should be denied. "To permit the
Council to rely upon general aspirations would effectively abrogate the
specific provisions which follow and grant the Council the ultimate authority
to determine village planning, with no guidelines to inform their decisions.["]
South Park, Ltd. Vs. Council of Avon, 2006-Ohio-2846. (Footnotes
omitted.)
{¶ 14} In reviewing the trial court's decision, we do not find it to be based on the
unconstitutionality of Chapter 1171 of the Granville Planning and Zoning Code. The trial
court analyzed the applicable zoning code sections and found appellants' decision to be
arbitrary and unsupported by the language therein.
{¶ 15} Upon review, we find the assignments of error do not raise issues
challenging the trial court's actual decision.
{¶ 16} Assignments of Error I and II are denied.
Licking County, Case No. 18-CA-108 8
{¶ 17} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Baldwin, J. concur.
EEW/db 516