Watson v. Cleveland ( 2017 )


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  • [Cite as Watson v. Cleveland, 2017-Ohio-2982.]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 104374
    DAVID D. WATSON
    PLAINTIFF-APPELLANT
    vs.
    CITY OF CLEVELAND, ET AL.
    DEFENDANTS-APPELLEES
    JUDGMENT:
    REVERSED AND REMANDED
    Civil Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CV-15-845662
    BEFORE: Keough, A.J., Kilbane, J., and S. Gallagher, J.
    RELEASED AND JOURNALIZED: May 25, 2017
    ATTORNEYS FOR APPELLANT
    John P. Slagter
    Tara J. Rose
    Anthony R. Vacanti
    Buckingham, Doolittle & Burroughs
    1375 East 9th Street, Suite 1700
    Cleveland, Ohio 44114
    ATTORNEYS FOR APPELLEES
    For City of Cleveland
    Barbara Langhenry
    City of Cleveland Law Director
    By: Carolyn M. Downey
    Assistant Director of Law
    601 Lakeside Avenue, Room 106
    Cleveland, Ohio 44114
    For East 123 St. Properties, Ltd.
    John W. Monroe
    Bruce G. Rinker
    Mansour, Gavin, L.P.A.
    North Point Towers
    1001 Lakeside Avenue, Suite 1400
    Cleveland, Ohio 44114
    KATHLEEN ANN KEOUGH, A.J.:
    {¶1} Appellant, David D. Watson, appeals from the trial court’s judgment
    affirming the decision of the city of Cleveland Board of Zoning Appeals that granted four
    area variances to East 123 St. Properties Ltd. to allow it to build a six-story 204-unit
    apartment building on a small lot in Cleveland’s Little Italy neighborhood. For the
    reasons that follow, we reverse the trial court’s judgment and remand for further
    proceedings consistent with this opinion.
    I.     Background
    {¶2} East 123 St. Properties Ltd. is the owner of property located at 1862 East
    123rd Street in Cleveland, Ohio. Visconsi Companies is the developer for the project at
    issue. The property is located in a B-2 semi-industrial district.
    {¶3} In October 2014, Visconsi submitted a building permit application for the
    project to the city of Cleveland’s building and housing department. The building and
    housing department denied the permit application and issued a notice of nonconformance.
    {¶4} Visconsi appealed the notice of nonconformance to the city’s Board of
    Zoning Appeals (the “Board”). The Board held a public hearing on January 5, 2015, and
    heard testimony from various interested parties.         Many documents, exhibits, and
    correspondence were also submitted at the hearing. The Board held another lengthy
    hearing on May 4, 2015, where it heard additional testimony. After the hearing, the
    Board voted in favor of granting the requested variances for the project. The Board
    adopted and ratified its decision on May 11, 2015.
    {¶5} Watson, who lives in a townhome directly across the street from the
    proposed project, appeared at the hearings and testified in opposition to the variances.
    He subsequently appealed the Board’s decision to the common pleas court pursuant to
    R.C. Chapters 2505 and 2506. After the parties filed briefs, the trial court affirmed the
    decision of the Board. The trial court’s decision in its entirety stated, “[t]he decision of
    the city of Cleveland Board of Zoning Appeals is hereby affirmed.” Watson timely
    appealed the trial court’s judgment.
    {¶6} This court sua sponte returned the matter to the trial court for the court to
    conduct the review required by R.C. 2506.04 and enter a judgment capable of appellate
    review. In our journal entry, we explained that because of the lack of detail in the trial
    court’s entry, we could not determine on what basis the trial court had affirmed the Board,
    and could not conduct the review required of us by statute in an administrative appeal.
    {¶7} Upon remand, the trial court issued another entry affirming the Board’s
    decision, this time stating:
    Pursuant to O.R.C. 2506.04 and based upon a review of the whole record
    and attendant briefs, this court finds the decision of the Cleveland Board of
    Zoning Appeals in this matter was not unconstitutional, illegal, arbitrary,
    capricious, unreasonable or unsupported by a preponderance of substantial,
    reliable and probative evidence. Therefore, the decision of the Board is
    hereby affirmed.
    II.     Law and Analysis
    {¶8} In his second assignment of error, Watson contends that the trial court’s
    decision affirming the Board should be reversed because its entry is insufficient to permit
    appellate review. We agree.
    {¶9} The scope of the trial court’s review in an appeal of a board of zoning appeals
    decision is set forth in R.C. 2506.04, which requires the trial court to examine the
    “evidence on the whole record” to determine if the agency’s decision is “unconstitutional,
    illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of the
    substantial, reliable, and probative evidence” in the record. Cleveland Clinic Found. v.
    Bd. of Zoning Appeals, 
    141 Ohio St. 3d 318
    , 2014-Ohio-4809, 
    23 N.E.3d 1161
    , ¶ 23.
    {¶10} As recognized by the Ohio Supreme Court, R.C. 2506.04 “requires” the trial
    court to examine the evidence in the record, “which in turn necessitates both factual and
    legal determinations.” Dudokovich v. Hous. Auth., 
    58 Ohio St. 2d 202
    , 207, 
    389 N.E.2d 1113
    (1979). The trial court “‘must give consideration to the entire record * * * and
    must appraise all such evidence as to the credibility of the witnesses, the probative
    character of the evidence and the weight to be given it.’” 
    Id., quoting Andrews
    v. Bd. of
    Liquor Control, 
    164 Ohio St. 275
    , 
    131 N.E.2d 390
    (1955), paragraph one of the syllabus.
    {¶11} The standard of review for the court of appeals in a R.C. 2506.04 appeal is
    much more limited in scope. Kisil v. Sandusky, 
    12 Ohio St. 3d 30
    , 34, 
    465 N.E.2d 848
    (1984). The statute grants a 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 evidence as is granted to the trial court.          Henley v.
    Youngstown Bd. of Zoning Appeals, 
    90 Ohio St. 3d 142
    , 147, 2000-Ohio-493, 
    735 N.E.2d 433
    .   Within the ambit of questions of law for appellate court review is abuse of
    discretion by the trial court. 
    Id., citing Kisil
    at fn. 4. The appellate court has a duty to
    affirm the common pleas court unless it finds, as a matter of law, that the decision of the
    common pleas court is not supported by a preponderance of reliable, probative, and
    substantial evidence. Cleveland Clinic Found., 
    141 Ohio St. 3d 318
    at ¶ 23; Kisil at 34.
    {¶12} This case is not a simple, straightforward matter, and the record is lengthy.
    The Board held two lengthy hearings at which many witnesses testified and numerous
    exhibits were introduced. Even a cursory review of the record demonstrates conflicting
    testimony regarding whether the variances should be granted. Nevertheless, in affirming
    the Board’s decision to grant the variances, the trial court’s entry makes no analysis
    whatsoever of the evidence in the record. It does not discuss any relevant testimony,
    does not identify what evidence the trial court found important or credible in affirming
    the Board, and does not provide any analysis applying the relevant law to the evidence
    presented to the Board.
    {¶13} Because the trial court’s opinion does not identify nor analyze any evidence
    that might have supported the Board’s decision, we would be required to perform a de
    novo review of the record to determine whether the Board’s decision was, in fact,
    supported by a preponderance of reliable, probative, and substantial evidence, as the trial
    court found. That is not our role, however, in our review of a trial court’s decision on an
    administrative appeal. “’It is incumbent on the trial court to examine the evidence.
    Such is not the charge of the appellate court. The appellate court is to determine only if
    the trial court has abused its discretion.’” 
    Henley, 90 Ohio St. 3d at 147
    , quoting Lorain
    City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 
    40 Ohio St. 3d 257
    , 261, 
    533 N.E.2d 264
    (1988).
    {¶14} A trial court is not required to issue a detailed opinion in an administrative
    appeal, nor is it required to issue findings of fact and conclusions of law pursuant to
    Civ.R. 52. Warrensville Ctr., Inc. v. Warrensville Hts., 
    20 Ohio App. 3d 220
    , 222, 
    485 N.E.2d 824
    (8th Dist.1984).       Nevertheless, “for an appellate court to conduct a
    meaningful review, sufficiently detailed reasoning should be specified in the trial court’s
    order.” Cross v. A-Best Prods. Co., 8th Dist. Cuyahoga No. 90388, 2009-Ohio-2039, ¶
    22.   Here, absent any explanation or analysis by the trial court of the evidence in the
    record, or any evidentiary basis for its decision, we cannot perform our limited review.
    {¶15} Accordingly, we sustain Watson’s second assignment of error, reverse the
    trial court’s judgment, and remand with instructions for the court to conduct the
    evidentiary analysis required by the statute and generate an entry capable of review by
    this court. See Redilla v. Avon Lake, 9th Dist. Lorain No. 12CA010204, 2013-Ohio-849,
    ¶ 8 (trial court’s judgment stating only that the zoning board’s decision was “supported by
    a preponderance of reliable, probative, and substantial evidence” reversed and matter
    remanded for trial court to conduct an appropriate review of the board’s decision and
    enter a judgment containing the court’s “full analysis” so as to be capable of review by
    the appellate court). Appellant’s other assignments of error are rendered moot by our
    decision and therefore need not be considered. App.R. 12(A)(1)(c).
    {¶16} Judgment reversed and remanded.
    It is ordered that appellant recover of appellees his costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate be sent to said court to carry this judgment into
    execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE
    MARY EILEEN KILBANE, J., CONCURS;
    SEAN C. GALLAGHER, J., DISSENTS
    

Document Info

Docket Number: 104374

Judges: Keough

Filed Date: 5/25/2017

Precedential Status: Precedential

Modified Date: 5/25/2017