Meyerson v. Fairlawn , 2022 Ohio 2255 ( 2022 )

[Cite as Meyerson v. Fairlawn, 2022-Ohio-2255.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
ADAM MEYERSON, et al. C.A. Nos. 29603
29788
Appellants/Cross-Appellees 29794
29797
v.
CITY OF FAIRLAWN, et al.
APPEAL FROM JUDGMENTS
Appellees/Cross-Appellants ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. CV-2019-03-1139
CV-2019-06-2013
DECISION AND JOURNAL ENTRY
Dated: June 30, 2022
HENSAL, Presiding Judge.
{¶1} Adam Meyerson, Cynthia Johnson-Meyerson, Eric Brown, and Constance Leigh
Brown, Trustee, (collectively the “Meyersons”) appeal orders of the Summit County Court of
Common Pleas that dismissed their administrative appeals of two decisions of the City of Fairlawn
Planning Commission. The City and the Crystal Clinic Orthopaedic Center have cross appealed.
For the following reasons, this Court affirms.
I.
{¶2} The Clinic owns property in Fairlawn and wanted to build an orthopedic hospital
building on it. Because hospitals are a conditionally permitted use within the area of the city where
the property is located, the Clinic applied for a conditional use permit. At the same time, it sought
approval of its preliminary site plan and requested a building height exception. The planning
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commission approved all the requests over the objection of the Meyersons and other residents who
live near the property. The Meyersons appealed the approval of the conditional use permit and
building height exception to the common pleas court, and the court reversed, concluding that the
planning commission did not properly consider whether the proposed height of the hospital would
be compatible with surrounding uses. It, therefore, remanded the matter to the planning
commission.
{¶3} After the remand, the planning commission granted another conditional use permit
and building height exception to the Clinic. Meanwhile, the planning commission also approved
a final site plan for the hospital. The Meyersons appealed both of those decisions. They did not,
however, obtain a stay of either decision, so the Clinic began construction of the hospital. After
construction began, the common pleas court determined that the appeal of the final site plan was
moot. It determined that the commencement of construction did not moot the appeal of the
conditional use permit, but upon review of the Meyersons’ argument, upheld the planning
commission’s decision. The Meyersons have appealed the denial of both of their administrative
appeals. Case number 29603 concerns the final site plan and case number 29788 concerns the
conditional use permit and building height exception. The City and the Clinic have cross-appealed
the common pleas court’s determination that the administrative appeal of the conditional use
permit was not moot. We will combine our consideration of the cross-appeals to the extent that
the issues they raise overlap.
II.
ASSIGNMENT OF ERROR IN CASE NUMBER 29603
THE COMMON PLEAS COURT ERRED BY DISMISSING AS MOOT
APPELLANTS’ R.C. CH. 2506 ADMINISTRATIVE APPEAL OF THE CITY OF
FAIRLAWN (“CITY”) PLANNING COMMISSION’S (“COMMISSION’S”)
MARCH 14, 2019[,] APPROVAL OF APPELLEE CRYSTAL CLINIC
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ORTHOPAEDIC CENTER’S (“CRYSTAL”) FINAL SITE PLAN (“FSP”) FOR
A MASSIVE 60-FOOT HIGH BUILDING CRYSTAL PROPOSES TO BUILD
NEXT TO OR NEAR APPELLANTS’ SINGLE-FAMILY HOMES BASED
SOLELY ON CRYSTAL’S COMMENCEMENT OF CONSTRUCTION EVEN
THOUGH NUMEROUS ELEMENTS OF THE FSP CHALLENGED BY
APPELLANTS HAVE NOT BEEN COMPLETED.
{¶4} The Meyersons argue that the common pleas court incorrectly concluded that their
administrative appeal of the approval of the final site plan was moot because construction of the
hospital had begun. Because the issue of mootness is a question of law, we review the common
pleas court’s decision de novo. Harris v. Akron, 9th Dist. Summit No. 24499, 2009-Ohio-3865, ¶
6.
{¶5} This Court has held that, if “an appeal involves the construction of a building * * *
and the appellant fails to obtain a stay of execution of the trial court’s ruling and construction
commences, the appeal is rendered moot.” Poulson v. Wooster City Planning Comm., 9th Dist.
Wayne No. 04CA0077, 2005-Ohio-2976, ¶ 7, quoting Schuster v. City of Avon Lake, 9th Dist.
Lorain No. 03CA008271, 2003-Ohio-6587, ¶ 8. That is the situation in this case. The Meyersons
did not obtain a stay of the common pleas court’s decision and, according to affidavits contained
in the record, construction of the building is complete. We, therefore, conclude that the appeal of
the final site plan is moot.
{¶6} The Meyersons argue that the mootness doctrine should not apply in this instance
because mootness cannot be caused by one of the parties to the dispute, citing Miner v. Witt, 82
Ohio St. 237 (1910), syllabus. In Miner, the Ohio Supreme Court held that “when, pending
proceedings in error in this court, an event occurs, without the fault of either party, which renders
it impossible for the court to grant any relief, it will dismiss the petition in error.” Id. The
Meyersons also cite Mills v. Green, 159 U.S. 651 (1895), in which the United States Supreme
Court explained that, if a builder persists in building a house even though it has received notice of
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a filing for injunction to restrain the building, the court is not deprived of the authority to address
the rights of the parties at the time of the commencement of the suit and “to compel the defendant
to undo what he has wrongfully done since that time, or to answer in damages.” Id. at 654. In this
situation, however, the Clinic received approval of the planning commission on its final site plan
and obtained a conditional use permit. It was legally permitted to begin construction. Although
the Meyersons appealed the planning commission’s decisions, they did not seek to stay the
approvals that the Clinic received. Accordingly, we cannot say that the Clinic was at “fault” or
acted “wrongfully” when it commenced construction of the hospital. In addition, although it was
the Clinic that requested the conditional use permit and final site plan, the decisions that the
Meyersons challenged on appeal to the common pleas court were by the planning commission.
The Clinic was the beneficiary of the planning commission’s decisions and had an interest in the
outcome of the administrative appeal, but its actions were not the subject of the appeal. The instant
appeal is another step removed of any actions by the Clinic and is of the common pleas court’s
dismissal of the Meyersons’ administrative appeal. This Court has no authority to order the Clinic
to undo what it has done or pay damages to the Meyersons. R.C. 2505.39.
{¶7} The Meyersons next argue that their entire appeal is not moot because, although
construction commenced, not all the elements they challenged have been completed and can still
be remedied. They also argue, citing Chafin v. Chafin, 568 U.S. 165 (2013), that if even a partial
remedy is available, the dispute is not moot. As previously noted, however, construction of the
hospital has finished.
{¶8} The Meyersons further argue that they have not only challenged the approval of the
final site plan but also the use of the hospital. Case number 29603, however, only concerns the
planning commission’s approval of the final site plan. Finally, the Meyersons argue that
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construction of the building does not preclude judicial review of improvements to the land. The
Meyersons did not make this argument to the common pleas court. To the contrary, they argued
to the common pleas court that the case was not moot even though work such as tree clearing and
excavation had commenced on the property because they were not contesting any changes to the
land. Upon review of the record, we conclude that the Meyersons have not established that an
exception to the mootness doctrine applies. Their assignment of error in case number 29603 is
overruled.
CLINIC’S FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DENYING CCOC’S MOTION TO DISMISS
THE UNDERLYING ADMINISTRATIVE APPEAL DUE TO MOOTNESS
WHERE THE ISSUE OF MOOTNESS WAS SUBJECT TO COLLATERAL
ESTOPPEL.
CITY’S SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY FAILING TO FOLLOW THE DOCTRINE OF
COLLATERAL ESTOPPEL IN DECIDING WHETHER TO DISMISS THE
UNDERLYING ADMINISTRATIVE APPEAL AS MOOT.
{¶9} The Clinic and City argue in their cross-appeals that the common pleas court should
have dismissed the administrative appeal of the conditional use permit as moot after it determined
that the administrative appeal of the final site plan was moot. They argue that, under the doctrine
of issue preclusion, an issue that was decided during a previous action may not be questioned again
in a subsequent action between the same parties. According to the City and Clinic, the two cases
involved the same parties, the parties had a full and fair opportunity to litigate the mootness issue
in the first administrative appeal, the issue of mootness had been decided by the time the common
pleas court decided the appeal of the conditional use permit, and the issue of mootness was
identical in both administrative appeals. See State v. Williams, 76 Ohio St.3d 290, 294 (1996)
(“The doctrine of collateral estoppel, or, more correctly, issue preclusion, precludes further action
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on an identical issue that has been actually litigated and determined by a valid and final judgment
as part of a prior action among the same parties or those in privity with those parties.”).
{¶10} We do not agree that the two administrative appeals presented an identical issue.
This Court has recognized that an administrative appeal that seeks to prevent the construction of a
building is different in nature than an administrative appeal that seeks to prevent the proposed use
of the building. Highland Square Mgt., Inc. v. Akron, 9th Dist. Summit Nos. 27211, 27372, 2015-
Ohio-401, ¶ 7. It has also held that a challenge “to the manner in which the structure will be used”
is not moot “merely because the structure has been built.” Id.{¶11} The administrative appeal of the final site plan concerned the City’s determination
that the construction plan complied with the requirements for setbacks, lights, parking,
landscaping, screening, open space, and stormwater management. It also involved whether the
building presented any health and safety concerns, whether it was accessible, whether the value of
adjacent properties would be protected, whether traffic would be adversely affected, whether it
was aesthetically attractive, and whether its height was similar to other nearby buildings. The
administrative appeal of the conditional use permit, however, concerned, among other things,
whether the proposed use of the property was harmonious with the character of the general vicinity,
whether a hospital would endanger the public health, safety, or general welfare, whether the
hospital would impede the development of the surrounding property, and whether it would be
negatively affected by the development of surrounding uses.
{¶12} Although there may be some similarities or overlap in the factors that the planning
commission had to consider in determining whether to approve the final site plan and whether to
issue a conditional use permit, we conclude that the two processes are different enough that the
common pleas court’s determination that the administrative appeal of the final site plan was moot
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did not preclude the Meyersons’ administrative appeal of the conditional use permit. The Clinic’s
first assignment of error and the City’s second assignment of error are overruled.
CLINIC’S SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DENYING CCOC’S MOTION TO DISMISS
THE UNDERLYING ADMINISTRATIVE APPEAL DUE TO MOOTNESS
BASED ON THE FINDING THAT THERE WAS NOT YET AN ORDER FROM
THE TRIAL COURT ALLOWING CONSTRUCTION OF CCOC’S
SPECIALITY ORTHOPAEDIC HOSPITAL.
{¶13} The Clinic next argues that the common pleas court incorrectly denied its motion
to dismiss the administrative appeal of the conditional use permit as moot because no court had
entered a final order that resolved the issues underlying the appeal. It appears that the Clinic
believes that the common pleas court would not dismiss the administrative appeal of the
conditional use permit on the basis of mootness because there had only been a decision by the
planning commission and not a prior decision of the common pleas court. According to the Clinic,
the doctrine of mootness can apply to appeals of administrative decisions. See Poulson, 2005-
Ohio-2976, at ¶ 2 (explaining that common pleas court dismissed administrative appeal after
construction approved by planning commission was completed).
{¶14} In considering the Clinic’s motion to dismiss, the common pleas court wrote that a
case is moot if the issues presented are no longer live, if the parties lack an interest in the outcome,
or if an event occurs that renders it impossible to grant the requested relief. It then quoted part of
the Fourth District Court of Appeals’ decision in Coates Run Property LL, LLC v. City of Athens
Board of Zoning Appeals, 4th Dist. Athens No. 15CA5, 2015-Ohio-4732. It highlighted a sentence
from the decision that indicated that an appeal is moot if an appellant has failed to obtain a stay of
a trial court’s order and construction has commenced. The court then wrote that there was no final
order of the common pleas court resolving the issues underlying the appeal and allowing
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construction. It went on to find that the issues remained a live controversy and were not moot just
because construction of the hospital commenced.
{¶15} The common pleas court’s statement that there had been no final order of that court
that resolved the issues involving the conditional use permit and allowing the construction of the
hospital was not inaccurate. Contrary to the Clinic’s assertion, we cannot say that the common
pleas court rejected the Clinic’s argument that an appeal is moot if construction has begun after an
administrative body has approved it. The decision is silent as to that issue. The court instead
determined that, in that appeal, the issues related to the conditional use permit were still live even
though construction of the hospital had begun. Thus, it concluded that the administrative appeal
was not moot. Upon review of the record, we conclude that the Clinic has failed to establish error
by the common pleas court. The Clinic’s second assignment of error is overruled.
CLINIC’S THIRD ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DENYING CCOC’S MOTION TO DISMISS
THE UNDERLYING ADMINISTRATIVE APPEAL DUE TO MOOTNESS
BASED ON THE FINDING THAT THERE REMAINED AN ACTUAL, LIVE
CONTROVERSY NOT RENDERED MOOT BY THE COMMENCEMENT OF
CONSTRUCTION OF CCOC’S SPECIALTY ORTHOPAEDIC HOSPITAL.
CITY’S FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY FAILING TO DISMISS THE
ADMINISTRATIVE APPEAL ON MOOTNESS GROUNDS AFTER THE
CRYSTAL CLINIC COMMENCED CONSTRUCTION OF THE PROJECT.
{¶16} The Clinic and City also argue that the common pleas court should have followed
this Court’s precedent that a case involving the construction of a building is moot if the appellant
fails to obtain a stay before construction commences. According to the Clinic and the City, because
the Meyersons did not obtain a stay of construction and it began, the common pleas court
incorrectly denied their motions to dismiss.
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{¶17} This Court will not decide issues if our decision “cannot affect the matter in issue
in the case before it.” Heaney v. Crystal Clinic Orthopaedic Center, LLC, 9th Dist. Summit No.
29579, 2020-Ohio-894, ¶ 6, quoting Miner, 82 Ohio St. at 238. Regarding construction cases, this
Court has determined that, “once construction begins, meaningful relief is unavailable because
‘the damage has already been done [and] the land has been permanently altered.’” Id. at ¶ 7,
quoting Neighbors for Responsible Land Use v. Akron, 9th Dist. Summit No. 23191, 2006-Ohio-
6966, ¶ 11. It, therefore, has held that, if “an appeal involves the construction of a building or
buildings and the appellant fails to obtain a stay of execution of the trial court’s ruling and
construction commences, the appeal is rendered moot.” Poulson, 2005-Ohio-2976, at ¶ 7, quoting
Schuster, 2003-Ohio-6587, at ¶ 8.
{¶18} On the other hand, if an appeal involves more than the mere construction of a
building and “also seeks to prevent the proposed uses of the building[,]” this Court has held that it
is not moot just because construction has begun. Highland Square Mgt., Inc., 2015-Ohio-401, at
¶ 7. “Challenges to the manner in which the structure will be used are not moot merely because
the structure has been built.” Id.{¶19} In their administrative appeal of the planning commission’s decision to grant a
conditional use permit, the Meyersons argued that the approval was illegal, arbitrary, capricious,
and unreasonable and was unsupported by the preponderance of substantial, reliable, and probative
evidence. Specifically, they argued that the hospital use was not compatible with the surrounding
land uses because, under the City’s zoning code, a hospital must be located on an arterial or
collector road. The Meyersons also argued that the hospital use was not compatible because it
includes plans to store explosive substances only 80 feet from their property and would not contain
enough parking for peak times. They also argued that the Clinic had misrepresented how well the
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landscaping would screen the building and rooftop structures, had used an improper definition of
the word compatible, and that the expert report submitted by the Clinic was rife with errors. Thus,
the Meyersons’ administrative appeal challenged more than construction-related issues. It raised
concerns about issues the hospital may present while in operation, specifically as to the amount of
traffic that would be flowing to and from the hospital, whether vehicles would spill into other
parking lots or onto nearby streets, and the persistent storage of explosive substances.
{¶20} The Clinic argues that the Meyersons did not challenge the use of the building as a
hospital but only the planning commission’s decision that it had satisfied the conditions to use the
property as a hospital. It, therefore, argues that Highland Square is distinguishable. We do not
agree. Although some of the Meyersons’ arguments challenge the process through which the
planning commission approved the conditional use permit or the adequacy of its decision, others
concern the underlying use of the property as a hospital and the affect it could have on the
surrounding area.
{¶21} The City, on the other hand, argues that Highland Square should not be followed
because it only briefly discussed mootness. It also argues that any discussion of mootness in the
opinion was dicta and that the case is distinguishable because it did not involve the construction
of a hospital. The City also argues that Highland Square should not apply to this case because the
Meyersons are only concerned about external effects that the operation of the hospital might have.
It further argues that the Ohio Supreme Court’s decision in State ex rel. Wood v. Rocky River, 166
Ohio St.3d 394, 2021-Ohio-3313, supersedes Highland Square.
{¶22} In Highland Square, the City of Akron argued that the appeal was moot because
construction of the building had commenced. Because this Court does not have authority to
address moot issues, it resolved the mootness question before proceeding to the merits of the
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appeal. App.R. 12(A)(1)(c); In re A.B., 9th Dist. Lorain No. 16CA010927, 2017-Ohio-4344, ¶ 17.
Accordingly, the determination of mootness in Highland Square was not dicta.
{¶23} Regarding the Meyersons’ concerns about the hospital’s external effects, there is
no information in Highland Square about why Highland Square Management opposed the
approval of the conditional use. It was not relevant to whether the appeal was moot. Finally, the
Wood decision involved whether a couple could obtain a writ of mandamus to stay the approval
of a development plan. The case did not involve the administrative appeal of a conditional use
permit and does not supersede Highland Square. State ex rel. Wood at ¶ 1-4.
{¶24} Upon review of the record, we conclude that the common pleas court correctly
determined that the Meyersons’ administrative appeal of the conditional use permit was not moot.
The Clinic’s third assignment of error and the City’s first assignment of error are overruled.
FIRST ASSIGNMENT OF ERROR IN CASE NUMBER 29788
THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO FIND THAT
THE COMMISSION’S RE-APPROVAL OF THE HEIGHT EXCEPTION FROM
36 FEET TO 49.5 FEET WAS ILLEGAL, ARBITRARY, CAPRICIOUS,
UNREASONABLE, OR UNSUPPORTED BY THE PREPONDERANCE OF
SUBSTANTIAL, RELIABLE, AND PROBATIVE EVIDENCE ON THE
WHOLE RECORD BECAUSE THE CONDITIONS FOR THAT APPROVAL
SET FORTH IN CODE §1274.03(C) WERE NOT MET.
{¶25} The Meyersons argue that the common pleas court incorrectly upheld the planning
commission’s approval of a building height exception. Unlike their appeal of the granting of the
conditional use permit, the Meyersons’ appeal of the building height exception is not controlled
by Highland Square. It only concerns the physical construction of the building, which has been
completed. Accordingly, upon review of the record, we conclude that the Meyersons’ appeal of
the building height exception is moot. See Poulson, 2005-Ohio-2976, ¶ 8. The Meyerson’s first
assignment of error in case number 29788 is overruled on that basis.
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SECOND ASSIGNMENT OF ERROR IN CASE NUMBER 29788
THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO FIND THE
COMMISSION’S APPROVAL OF THE PERMIT WAS ILLEGAL,
ARBITRARY, CAPRICIOUS, UNREASONABLE, OR WAS UNSUPPORTED
BY THE PREPONDERANCE OF SUBSTANTIAL, RELIABLE, AND
PROBATIVE EVIDENCE ON THE WHOLE RECORD BECAUSE
NUMEROUS CONDITIONS FOR THAT APPROVAL WERE NOT MET.
{¶26} The Meyersons also argue that the common pleas court incorrectly upheld the
planning commission’s approval of a conditional use permit. Under Revised Code Section
2506.04, a common pleas court considering an administrative appeal reviews the order at issue to
determine whether it is “unconstitutional, illegal, arbitrary, capricious, unreasonable, or
unsupported by the preponderance of substantial, reliable, and probative evidence on the whole
record.” The trial court may not simply substitute its judgment for that of the administrative
agency, but it may weigh the evidence in determining whether the record supports the agency’s
decision. Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-
4650, ¶ 13. The scope of an appellate court’s review of the common pleas court’s decision is even
“narrower and more deferential.” Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals,
141 Ohio St.3d 318, 2014-Ohio-4809, ¶ 25. It is “designed to strongly favor affirmance” and
focuses on questions of law. Id. at ¶ 30. Unlike the common pleas court, the court of appeals
may not weigh the evidence. Shelly Materials, Inc. v. City of Streetsboro Planning and Zoning
Comm., 158 Ohio St.3d 476, 2019-Ohio-4499, ¶ 17.
Apart from deciding purely legal issues, the court of appeals can determine whether
the court of common pleas abused its discretion, which in this context means
reviewing whether the lower court abused its discretion in deciding that an
administrative order was or was not supported by reliable, probative, and
substantial evidence.”
Id.13
{¶27} The Meyersons argue that the Clinic should not have been granted a conditional
use permit for multiple reasons. The City’s zoning code provides that the planning commission
may permit a conditional use if the use will conform to certain general criteria and additional
specific requirements. The general criteria are: 1) that the conditional use will be designed,
constructed, operated and maintained so as to be harmonious and appropriate with the prevailing,
existing, or intended character of the general vicinity; 2) that the establishment, maintenance, or
operation of the conditional use will not endanger the public health, safety, or general welfare; 3)
that the establishment of the conditional use in the proposed location will not impede the normal
and orderly development and improvement of the surrounding property for uses permitted in the
district; and, 4) that the conditional use will be minimally impacted in the future by surrounding
uses permitted by right that may be incompatible with the proposed conditional use. Codified
Ordinances of the City of Fairlawn 1287.02. There are numerous additional specific requirements
depending on the type of use and the zoning district in which the use will be located.
{¶28} The Meyersons argue that the hospital will not comply with the specific
requirement that a conditional use must conform to the regulations within the district in which it
is located. Id. at 1287.03(b). The first reason they argue the hospital will not comply is because
hospitals must be located on an arterial or collector roadway. The common pleas court found that
the road is a collector road because it connects a local road to an arterial road. Although the
Meyersons argue that a traffic impact study that was presented does not specify whether the road
is an arterial, collector, or local roadway, they have not challenged the common pleas court’s
analysis that the road is a collector road because it connects an arterial road to a local road.
{¶29} The Meyersons next argue that the hospital will violate a zoning requirement that
structures shall not be used in a manner as to adversely affect the surrounding area with dangerous
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or objectionable elements such as fire, gases, explosives, or other hazards. We note, however, that
this requirement applies to construction in all districts and is not one of the factors that the planning
commission had to consider in determining whether to approve a conditional use permit. Id. at
1248.02(a). In addition, the common pleas court found that petroleum, propane and liquid oxygen
cannot be housed on the premises without additional approvals that their storage will comply with
national fire protection standards. The Meyersons have not identified anything in the record that
indicates that the substances will be used in a manner as to adversely affect the surrounding area.
{¶30} The Meyersons next argue that the property does not contain enough parking to be
used as a hospital. The zoning code provides that applicants for a conditional use permit for a
hospital must demonstrate that the use will be compatible with surrounding land uses regarding
parking. Id. at 1287.06(n)(4). According to the Meyersons, at one time the plan for the property
included 404 parking spaces. The planning commission asked whether some of the spaces could
be eliminated to create more green space to help with run-off issues. The Clinic explained,
however, that it wanted to have enough spaces available for peak times. The Meyersons argue that
the final plan reduced the number of spots to 393, suggesting that the parking lot will be unable to
accommodate everyone and will push vehicles onto the street for parking. The Meyersons argue
that this adjustment demonstrates that the hospital is too large for the property.
{¶31} The common pleas court found that the final plan for the hospital provided for 166
more parking spaces than required by the city code, supporting the planning commission’s finding
that there would be adequate parking. The court also found that the Meyersons’ concern that the
parking lot would overflow was speculative. The City also points out that the testimony that the
Meyersons cite regarding the Clinic’s reluctance to reduce the number of parking spaces further
actually occurred during a hearing on the final site plan, at which time the number of parking spots
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was 393. The final number of parking spots, therefore, is not less than what the Clinic said was
needed to accommodate peak traffic. We conclude that the Meyersons failed to establish that the
hospital does not have enough parking to warrant approval of a conditional use permit.
{¶32} The Meyersons next challenge the testimony of one of the Clinic’s witnesses at the
planning commission meeting. According to the Meyersons, the witness was incorrect about the
extent to which the trees on the property would block views of the hospital from neighboring
homes. The Meyersons, however, have not established how this testimony led to error by the
planning commission or the common pleas court.
{¶33} The Meyersons also argue that the Clinic’s witness used an incorrect definition of
the term compatible. They argue that, because the term is not defined, the ordinary meaning of
the word must be used, which is, essentially, that items be capable of existing together
harmoniously. See Gamble v. Dobrosky, 89 Ohio St.3d 257, 259 (2000). The Meyersons allege
that the witness argued that the hospital use was compatible because it satisfied all the zoning
requirements. According to the Meyersons, if a use is compatible whenever it satisfies all the other
zoning requirements, the compatibility requirement becomes superfluous. The Fairlawn zoning
code requires an applicant for a conditional use permit for a hospital to “demonstrate that the use
will be compatible with the surrounding land uses, particularly with regard to traffic circulation,
parking, noise, and appearance.” Codified Ordinances of the City of Fairlawn 1287.06(n)(4).
{¶34} In its conclusions of fact, the planning commission found that the Clinic had
“demonstrated that the proposed use would be compatible with surrounding land uses, particularly
with respect to traffic circulation, parking, noise, and appearance.” It elaborated by explaining
that the hospital had been designed to comply with the City’s zoning requirements for parking,
lighting, landscaping, screening, and open space. A traffic study had also determined that it would
16
not have an adverse effect on traffic conditions in the surrounding area. It found that there was
adequate parking, that the hospital would not produce excess noise beyond the premises, and that
the lighting had been designed not to spill onto adjacent properties. The exterior was designed to
be attractive with earth tones that were similar to the appearance of other office buildings along
the road. The planning commission also found that the footprint of the building would be less than
eight percent of the area of the property and that over 50% of the property would be open space.
It also noted that the building would be more than 400 feet from any residences. It concluded that
“weighing and considering all of the testimony, exhibits, and other evidence in the administrative
record, including the hospital’s compatibility with the nearby residential uses, * * * the proposed
use will be compatible * * *.” We conclude that Meyersons have not established that the planning
commission or common pleas court incorrectly assessed whether the hospital would be compatible
with the surrounding area.
{¶35} Finally, the Meyersons argue that the report presented by the Clinic’s witness
contains numerous errors. They have not shown, however, that the planning commission or the
common pleas court relied on those allegedly incorrect statements in reaching their decisions.
{¶36} Upon review of the record, we conclude that the Meyersons have not established
that the common pleas court exercised improper discretion when it determined that the planning
commission’s approval of the conditional use permit was supported by reliable, probative, and
substantial evidence. The Meyersons’ second assignment of error in case number 29788 is
overruled.
III.
{¶37} The Meyersons’ assignments of error in case number 29603 and case number 29788
are overruled. The Clinic’s assignments of error in case number 29794 are overruled. The City’s
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assignments of error in case number 29797 are overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed equally to all parties.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
BENJAMIN J. OCKNER and MAJEED G. MAKHLOUF, Attorneys at Law, for
Appellants/Cross-Appellees.
18
WARNER MENDENHALL and LOGAN TROMBLEY, Attorneys at Law, for Appellants/Cross-
Appellees.
STEPHEN W. FUNK and JESSICA LOPEZ, Attorneys at Law, for Appellees/Cross-Appellants.
R. BRYAN NACE, Attorney at Law, for Appellees/Cross-Appellants.
CHRISTOPHER F. SWING, and DAVID SPORAR, Attorneys at Law, for Appellees/Cross-
Appellants.