Korey v. Hunting Valley Planning & Zoning Comm.

[Cite as Korey v. Hunting Valley Planning & Zoning Comm., 2021-Ohio-1881.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
SYLVIA KOREY, TRUSTEE, :
Plaintiff-Appellant, :
No. 109669
v. :
PLANNING AND ZONING :
COMMISSION OF THE VILLAGE
OF HUNTING VALLEY, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED
RELEASED AND JOURNALIZED: June 3, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-897414
Appearances:
Mansour Gavin, L.P.A., Anthony J. Coyne, Bruce G.
Rinker, Tracey S. McGurk, and Kathryn E. Weber, for
appellant.
Hauser Law, L.L.C., and Laura A. Hauser for The
Cleveland Restoration Society, Heritage Ohio, and The
National Trust for Historic Preservation, Amici, for
appellant.
Stephen L. Byron, Hunting Valley Law Director, and Todd
M. Raskin and David M. Smith, Counsel, for appellees.
EILEEN T. GALLAGHER, J.:
Appellant, Sylvia Korey, Trustee (“appellant”), appeals the trial court’s
judgment affirming the decision of the Planning and Zoning Commission of the
Village of Hunting Valley (“the Commission”) that denied her application for a
conditional-use permit and her amended request for a special-use permit. Appellant
raises the following assignments of error for our review:
1. The trial court abused its discretion in finding that the decision of
the [Commission] is not unconstitutional, illegal, arbitrary, capricious,
unreasonable, or unsupported by the preponderance of substantial,
reliable and probative evidence.
2. The trial court abused its discretion in concluding that the zoning
code as applied to appellant was constitutional without affording
appellant the opportunity to admit evidence or have a de novo hearing.
3. The trial court abused its discretion in granting appellee’s motion
for reconsideration of the trial court’s judgment entry granting
appellant’s motion to introduce additional evidence and convene a
hearing de novo.
After careful review of the record and relevant case law, we affirm in
part, reverse in part, and remand for the trial court to accept additional evidence
and conduct a de novo hearing to address appellant’s constitutional challenge to the
zoning code as applied to her property.
Procedural and Factual History
Appellant is the owner of a home, known as “Roundwood Manor,”
located in the Daisy Hill Subdivision in the Village of Hunting Valley, Ohio (“the
Village”). Roundwood Manor is a 55,000 square-foot residence that occupies 7.69-
acres of land. The property is located in the Village’s U-1 Single-Family House
District and has been used by appellant as a single-family dwelling for over 30 years.
Relevant to this appeal, the Village’ s zoning code provides that “no dwelling shall
be erected or altered to accommodate or make provision for more than one family
for each five acres of lot area.” Hunting Valley Codified Ordinances (“H.V.C.O.”)
1155.09.
In July 2017, appellant filed an application to obtain a conditional-use
permit pursuant to Chapter 1157 of the Village’s zoning code. The application sought
to convert Roundwood Manor into a multi-family structure that would contain six
luxury condominium suites. Appellant argued that the proposed conversion of
Roundwood Manor offered the best approach to preserving the historic architecture
of the home, which has been listed for sale since 2002. Appellant attached the
following documents in support of the application:
1. Appellant’s letter to Village officials;
2. Property information, including a copy of the warranty deed and a
property summary report;
3. Letters from various preservation organizations and the state’s
historic preservation office regarding the historic character and historic
significance of the property;
4. Proposed plans for the conversion of the property into six separate
units; and
5. Testimonials from Village residents who supported appellant’s
efforts to preserve the property.
In August 2017, a hearing was held to address the merits of appellant’s
application. On behalf of appellant, Michael Fleenor, the director of preservation
programs and services for the Cleveland Restoration Society, provided extensive
testimony regarding the historic significance of the property, including (1) the
property’s distinctive characteristics that represent the work of a master architect,
and (2) the property’s association with historical figures such as Oris Paxton Van
Sweringen and Mantis James Van Sweringen. Fleener also discussed the property’s
eligibility for historical registration in state and national preservation offices, and
provided the Commission with specific examples of historic single-family homes
that have been repurposed as luxury residential suites in the United States and
abroad.
Appellant also presented testimony from architect, Tony Paskevich
who described the scope and nature of the proposed renovation and provided the
Commission with preliminary drawings of the project. In addition, Village
residents, Bill O’Neill and Karen Doll, and historical scholars, Dan Ruminski and
Kathleen Crowther, testified on behalf of appellant’s proposal. Collectively, the
witnesses expressed their personal beliefs that the renovation and modified use of
Roundwood Manor was necessary to avoid the destruction of the historic property.
However, a trustee of the Daisy Hill Association, Jeff Karlovec, advised the
Commission that the Daisy Hill Association has consistently opposed the renovation
of Roundwood Manor because it is inconsistent with the single-family character of
the neighborhood.
Throughout the hearing, counsel for appellant argued that a
conditional-use permit was appropriate to assist appellant in “preserving the
characteristics and historic architectural qualities of [Roundwood Manor].” (Tr. 31.)
Although counsel “recognize[d] that the five-acre standard is the proverbial gold
standard for the Village,” he maintained that the circumstances presented in this
case were unique and warranted a conditional-use permit that would protect
appellant’s property rights while respecting the “aesthetic nature of Daisy Hill and
Hunting Valley.” (Tr. 30; 39.) In contrast, counsel for the Daisy Hill Association
argued that appellant did not qualify for a conditional-use permit under the zoning
code because Roundwood Manor was neither an educational institution or a historic
settlement as defined under Chapter 1157 of the zoning code.
At the conclusion of the hearing, the parties agreed to continue the
matter in order to receive input from the Village’s planning consultant, George
Smerigan. On August 25, 2017, Smerigan issued an opinion and report, stating that
it was his professional opinion that Chapter 1157 of H.V.C.O. did not authorize the
requested conditional use. In rendering his opinion, Smerigan noted that H.V.C.O.
1157.06 expressly establishes two uses that may result in the issuance of a
conditional-use permit: (1) new private educational institutions; and (2) historic
settlements as identified in Chapter 1159. Significantly, “multifamily dwellings are
not listed as one of the identified conditionally permitted uses.” Thus, because
Roundwood Manor is neither a private educational institution or a historic
settlement, Smerigan concluded that the Commission was not “empowered by
Chapter 1157 to grant a conditional zoning certificate for a six-unit multifamily
condominium” and that “any consideration to the contrary would create a situation
whereby the [Commission] could effectively amend the planning and zoning code
through an administrative action rather than the standard legislative process.”
Before a judgment was issued on the pending application, appellant
amended her application in light of Smerigan’s report, this time requesting a special-
use permit to preserve Roundwood Manor pursuant to Chapter 1155 of the Village’s
zoning code. In November 2017, zoning consultant, David Hartt, a Senior Advisor
of Planning Services for CT Consultants, Inc., submitted a letter to the Commission
on appellant’s behalf. In relevant part, Hartt expressed his position that the
Commission was authorized to issue a special-use permit pursuant to H.V.C.O.
1155.02(b)(7) and 1155.05(b) in order to “assure Roundwood Manor’s preservation
and continued contribution to the community.” Relying on the foregoing sections
of the zoning code, Hartt asserted that the Commission had authority to make
exceptions to the code when “unique and exceptional circumstances prevail,”
stating:
These exceptions ([H.V.C.O.] 1151.02; 1155.02(b)(7); and 1155.05(b)),
individually or in combination, permit consideration of proposals that
deviate from Hunting Valley’s traditional standard of one unit per five
acres.
In December 2017, the Commission heard testimony and took
evidence regarding the revised application. At the hearing, Hartt reiterated the
contents of his report and maintained that the zoning code “permitted consideration
of proposals that deviate from Hunting Valley’s traditional standard of one unit per
five acres.” (Tr. 3.) Hartt discussed the historic and public interests supporting the
project and opined that (1) “the historic preservation is a valid public interest,” (2)
“conversely, the public interest is not served if [Roundwood Manor] is neglected or
subject to demolition,” (3) an alternative use is necessary to “assure the preservation
and the economic viability of the property,” and (4) “the proposed use is the least
intrusive of all the alternatives.” (Tr. 11-12.) He explained that, in his view, the
renovation (1) will have adequate roadways, access and parking; (2) will have
adequate utilities; (3) will not adversely burden public services or facilities; (4) will
not result in destruction or loss of historic features of importance; (5) will not involve
uses or activity detrimental to persons or property; and (6) will not interfere with
the use of neighboring property. Hartt acknowledged that a six-unit building would
increase the activity on the property, but opined that the multi-family residential use
of the property would not change the essential character of the neighborhood and
would be less impactful than other possible Class U-2 (Residential-Special Permit)
uses that are identified in the zoning code. Hartt further opined that the application
would not set a detrimental precedent or otherwise undermine the five-acre zoning
requirement due to the unique structural and historical aspects of Roundwood
Manor, which he believed are not replicated in the Village.
At the conclusion of the December 2017 hearing, the parties agreed to
provide Smerigan the opportunity to issue a supplemental report in response to the
arguments posed in the revised application. The Commission further explained that
a final hearing would be required to address the contents of Smerigan’s
supplemental report.
On January 29, 2018, Smerigan issued a supplemental report. In
relevant part, Smerigan concluded that in his professional opinion, appellant’s
amended application for a special-use permit “cannot be approved.” Smerigan
explained as follows:
The applicant has submitted insufficient evidence for the Commission
to make the required findings for the granting of the requested special
permit as required by sections 1155.05 and 1155.02. There is, in fact,
clear evidence that the proposed development does not meet the
required standards for a special permit as they are set forth in those
sections of the Code. It is further my opinion that the proposed six-unit
multifamily condominium use would violate the minimum lot area per
dwelling unit provision of Section 1155.09 and that the mere desire for
historical preservation is insufficient to justify a variance to the
maximum density provision of the U-1 single-family house district.
In March 2018, the Commission held a third and final evidentiary
hearing. At the hearing, counsel for appellant read a letter from Fred Geis, a
property developer with Hemingway Development. In the letter, Geis described his
experience with high-end renovations and historic preservation. Having reviewed
all relevant materials, Geis stated that, in his professional opinion, the renovation of
Roundwood Manor was economically feasible.
In addition, counsel for appellant cross-examined Smerigan regarding
his supplemental report and recommendation. Smerigan reiterated his position
that the proposal would have a detrimental impact on the values of adjacent
properties and is inconsistent with use in a U-1 district, including the five-acre
density requirement for single-family dwellings. However, he conceded that the
zoning code provides the Commission with “a broad amount of discretion” to issue
a special-use permit. (Tr. 65-66.)
Finally, appellant provided extensive testimony regarding her efforts
to sell Roundwood Manor. She explained that the home has been on the market
since June 2002, and has only received one oral offer from an individual who
expressed an intent to demolish Roundwood Manor.
In April 2018, the Commission issued a final order denying appellant’s
request for a conditional-use permit and her amended request for a special-use
permit. In this order, the Commission agreed that H.V.C.O. 1155.02(b)(7) grants the
Commission broad discretion to issue special-use permits. Nevertheless, the
Commission determined that a property’s “historical significance” does not preempt
relevant zoning regulations, including the “five acre per residential unit” density
requirement, which “is the sine qua non of Hunting Valley’s Zoning Code.” Thus,
the Commission found, in relevant part:
In consideration of the facts identified herein, the Applicant’s request
for a Conditional Use Permit is denied because she has not requested
an established “conditionally permitted use,” which uses are identified
in Section 1157.06 of the Codified Ordinances. Applicant’s property has
not been designated as an “Historic District,” pursuant to Section
1159.02. Applicant’s property does not have sufficient acreage to be
zoned and developed under Chapter 1159. Chapter 1157 does not
contemplate a Conditional Use permit that may be issued
independently of regulations established elsewhere in the Code.
The Applicant’s request for a Special Use Permit is denied because it is
not “* * * in general keeping and compatible with the uses authorized
for a Class U-1 or Class U-2 classification * * *.” The residential density
is not consistent with every other residential development that has
been built in the Village since the five-acres per residential unit
requirement was enacted as law. The proposed use is also likely to
substantially injure the neighboring property and the entire Village.
In May 2018, appellant appealed the Commission’s decision to the
common pleas court pursuant to R.C. 2506.04.
In August 2018, appellant filed a motion to introduce additional
evidence and convene a hearing de novo. Appellant argued that a de novo hearing
was necessary to properly address constitutional issues that the Commission did not
have jurisdiction to consider. In support of her motion, appellant noted that the
clear mandate long articulated by the Eighth District Court of Appeals is that (1) the
constitutionality of a zoning ordinance “may be raised for the first time when the
landowner appeals an adverse administrative decision to the court of common
pleas,” and (2) “any constitutional issue so raised shall be tried originally in the
common pleas court with the court permitting the parties to offer additional
evidence.”
The Village opposed the motion, arguing that appellant “failed to
comply with the statutory requirements of R.C. 2506.03, and * * * failed to state a
valid constitutional claim which would warrant the submission of additional
evidence.”
In November 2018, the trial court granted appellant’s motion to
introduce additional evidence and convene a de novo hearing. In response, the
Village immediately filed a motion for reconsideration that urged the trial court to
determine that appellant failed to present a sufficient basis for the introduction of
additional evidence. Regarding appellant’s alleged constitutional claim, the Village
argued that appellant’s motion was “fatally flawed” because she merely challenged
the constitutionality of the Commission’s decision, as opposed to challenging the
constitutionality of the applicable sections of the Village’s zoning code. Thus, the
Village maintained that appellant’s administrative appeal must be confined to the
transcript that was filed with the court in accordance with R.C. 2506.02.
Appellant filed a brief in opposition to the motion for reconsideration,
arguing that her motion for an evidentiary hearing sufficiently articulated
constitutional claims and that the Village’s motion “ignores the record and
endeavors to reframe the law and the issues in this case inappropriately.”
In December 2018, the trial court granted the Village’s motion for
reconsideration and the matter was scheduled to “proceed on a briefing schedule on
the transcript from the original proceedings.”
In March 2019, appellant filed a brief in support of her administrative
appeal, raising two assigned errors:
1. The preponderance of the probative evidence on the whole record
demonstrates that appellant is entitled to receive the special zoning
permit, the denial of which is conversely unsupported by the
preponderance of probative evidence on the whole record, such that the
decision of the [Commission] constitutes an abuse of discretion.
2. The 5:1 acreage-to-residence zoning regulation as applied to
appellant’s property, unreasonably, arbitrarily, and unconstitutionally
denies appellant due process of law by failing to advance a legitimate
government interest; the Commission should be ordered to issue the
special permit to appellant.
In March 2020, the trial court affirmed the Commission’s decision,
stating, in relevant part:
This court agrees with the Commission’s decision. Appellant has
resided at the property for 30 years as her single-family dwelling. Mere
diminution of market value or interference with a property owner’s
personal plans regarding their property is insufficient to invalidate a
municipal ordinance or to entitle the property owner to a variance. * * *
As the crux of appellant’s reasoning relates to the marketability of her
home, appellant has failed to submit substantial, reliable, and
probative evidence to meet the special permit standards.
Appellant also argues that the ordinance is unconstitutional as applied
to her property. * * * Here, it is clear that the 5:1 ratio of acres to
dwellings has a reasonable relationship to the municipality’s ability to
maintain the character of the neighborhood. The Village has a rational
basis for denying the ordinance as the entire community developed as
a single-family dwelling neighborhood, and plaintiff’s interests in
increasing the marketability of the property does not render the Code
as applied to her property unconstitutional.
Appellant now appeals from the trial court’s judgment.
Law and Analysis
A. Denial of Special-Use Permit
In her first assignment of error, appellant argues the trial court abused
its discretion in finding that the decision of the Commission is not unconstitutional,
illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of
substantial, reliable, and probative evidence. Appellant contends that, contrary to
the trial court’s judgment, the evidence demonstrated that she was entitled to a
special-use permit under Chapter 1155 of the zoning code. Appellant presents no
arguments regarding the denial of her application for a conditional-use permit.
Decisions of administrative agencies are directly appealable to a court
of common pleas. “A common pleas court has jurisdiction to review final orders
issued by ‘any officer, tribunal, authority, board, bureau, commission, department,
or other division of any political subdivision of the state.’” Shelly Materials, Inc. v.
Streetsboro Planning & Zoning Comm., 158 Ohio St.3d 476, 2019-Ohio-4499, 145
N.E.3d 246, ¶ 12, quoting R.C. 2506.01(A). The trial court, under this review
process, essentially acts as an appellate court, and “‘may find that the order,
adjudication, or decision is unconstitutional, illegal, arbitrary, capricious,
unreasonable, or unsupported by the preponderance of substantial, reliable, and
probative evidence on the whole record.’” Id., quoting R.C. 2506.04. These grounds
for reversal are set forth in a disjunctive list, so each ground must be read to have a
distinct meaning. Id., citing Freedom Rd. Found. v. Ohio Dept. of Liquor Control,
80 Ohio St.3d 202, 205, 685 N.E.2d 522 (1997). “The presence of any one of the six
grounds listed in R.C. 2506.04 will therefore by itself justify a court of common
pleas’ reversal of an administrative order.” Id.Under the trial court’s standard of review, the ‘“court weighs the
evidence to determine whether a preponderance of reliable, probative, and
substantial evidence supports the administrative decision, and if it does, the court
may not substitute its judgment for that of’ the administrative agency.” Id. at ¶ 13,
quoting Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125,
2014-Ohio-4650, 28 N.E.3d 1182, ¶ 13. Nevertheless, “R.C. Chapter 2506 confers
on the common pleas courts the power to examine the whole record, make factual
and legal determinations, and reverse the board’s decision if it is not supported by a
preponderance of substantial, reliable, and probative evidence.” Cleveland Clinic
Found. v. Cleveland Bd. of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809,
23 N.E.3d 1161, ¶ 24, citing Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d
202, 207, 389 N.E.2d 1113 (1979).
The judgment of the court of common pleas may be appealed to the
appellate court on questions of law. R.C. 2506.04. “An appeal to the court of
appeals, pursuant to R.C. 2506.04, is more limited in scope and requires [the
appellate court] 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.” Kisil v. Sandusky,
12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984). That “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.” Henley v. Youngstown Bd. of
Zoning Appeals, 90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000), quoting Kisil at 34,
fn. 4. “In this context, a reversal ‘as a matter of law’ can occur only when, having
viewed the evidence most favorably to the decision, there are no facts to support the
common pleas court decision.” Kurutz v. Cleveland, 8th Dist. Cuyahoga No.
105899, 2018-Ohio-2398, ¶ 8. “In sum, the standard of review for courts of appeals
in administrative appeals is designed to strongly favor affirmance.” Cleveland Clinic
Found. at ¶ 30.
Thus, this court will only review the judgment of the trial court to
determine if the lower court abused its discretion in finding that the administrative
order was supported by reliable, probative, and substantial evidence. Cleveland v.
Posner, 188 Ohio App.3d 421, 2010-Ohio-3091, 935 N.E.2d 882, ¶ 12 (8th Dist.). “A
court abuses its discretion when a legal rule entrusts a decision to a judge’s
discretion, and the judge’s exercise of that discretion is outside of the legally
permissible range of choices.” State v. Hackett, Slip Opinion No. 2020-Ohio-6699,
¶ 19, citing United States v. E.I. du Pont de Nemours & Co., 366 U.S. 316, 372, 81
S.Ct. 1243, 6 L.Ed.2d 318 (1961) (Frankfurter, J., dissenting). Abuse-of-discretion
review is deferential and does not permit an appellate court to simply substitute its
judgment for that of the trial court. State v. Darmond, 135 Ohio St.3d 343, 2013-
Ohio-966, 986 N.E.2d 971, ¶ 34.
Chapter 1155 of the H.V.C.O. governs the zoning of districts and the
use of property in the Village. In order to regulate and restrict the use of buildings
and premises located in the Village, including “the location of single-family houses
and * * * the number of square feet lot area per family housed,” the Village is divided
into districts that each have permitted uses. The three “use districts” designated in
the zoning code are termed (1) “Class U-1 (Single-Family House),” (2) “Class U-3
(Institutional),” and (3) “Class CDD (Conservation Development District).” The
Village also permits a category of specially permitted uses termed “Class U-2
(Residential-Special Permit).” Under H.V.C.O. 1155.01, buildings and premises are
not permitted to be erected or used in the Village unless they conform with the
regulations prescribed in the zoning code for “use, height, and area districts in which
such building or premises are located.”
As stated, Roundwood Manor is located in a Class U-1, single-family
district. The classified use for this district is limited to “single-family dwellings.”
H.V.C.O. 1155.02(a)(1). Among other restrictions placed on single-family dwellings,
H.V.C.O. 1155.09(a) provides that “[n]o dwelling shall be * * * altered to
accommodate or make provision for more than one family for each five acres of lot
area.”
In this case, appellant sought to overcome the applicable density
restriction placed on her single-family residence by requesting a Class U-2 special-
use permit pursuant to H.V.C.O. 1155.02(b)(7). This catchall provision of the zoning
code authorizes the Commission to grant a special-use permit for
[a]ny use in general keeping and compatible with the uses authorized
for a Class U-1 or Class U-2 classification and which preserves
environmental values.
H.V.C.O. 1155.02(b).
The procedure for obtaining a special-use permit is governed by
H.V.C.O. 1155.05. The ordinance provides, in relevant part:
The Planning and Zoning Commission may, in specific cases, after
public notice and hearing and subject to such conditions and
safeguards as the Commission may establish, issue special permits for
Class U-2 uses and determine and vary the application of the use
district regulations herein established, which permission shall be
confirmed by resolution of Council before becoming effective, as
follows:
***
Permit in a use district any use deemed by the Commission to be in
general keeping with the uses authorized in such district, provided that
such use in such a location will not, in the judgment of the
[Commission], substantially injure the appropriate use of the
neighboring property.
H.V.C.O. 1155.05(b).
Thus, the relevant inquiry in this case is whether the proposed multi-
family use of Roundwood Manor is a permitted Class-U-2 use as defined under
H.V.C.O. 1155.02(b)(7) and, if so, whether the special use (1) is deemed by the
Commission to be in general keeping with the single-family dwelling use authorized
in a Class U-1 district and (2) will not substantially injure the appropriate single-
family use of the neighboring property.
Generally, “the question of whether or not a special permit should be
granted is committed to the sound discretion of the zoning board.” Town Ctr. Dev.
Co. v. Cleveland, 8th Dist. Cuyahoga No. 42379, 1980 Ohio App. LEXIS 13132, 5
(Dec. 18, 1980); see also Eckert v. Warren Cty. Rural Bd. of Zoning Appeals, 12th
Dist. Warren Nos. CA2017-06-095, CA2017-07-107, CA2017-07-108, and CA2017-
07-109, 2018-Ohio-4384, ¶ 70 (“[l]ocal zoning authorities have significant
discretion to determine whether or not a proposed use complies with the special
permit criteria, and courts will generally defer to their decisions.”). In this regard,
“‘[a]n administrative agency’s reasonable interpretation of local zoning codes is
recognized as an area of administrative expertise and is to be presumed valid.’” JP
Morgan Chase Bank, Inc. v. Dublin, 10th Dist. Franklin No. 10AP-965, 2011-Ohio-
3823, ¶ 11, quoting Glass City Academy Inc. v. Toledo, 179 Ohio App.3d 796, 2008-
Ohio-6391, 903 N.E.2d 1236, ¶ 18 (6th Dist.), citing Lamar Outdoor Advertising,
Inc. v. Dayton Bd. of Zoning Appeals, 2d Dist. Montgomery No. 20158, 2004-Ohio-
4796, ¶ 6, and Dick v. Kelleys Island Bd. of Zoning, 6th Dist. Erie No. E-86-63, 1987
Ohio App. LEXIS 7535 (June 19, 1987). Unless the interpretation of a local zoning
code is clearly in error, a court should defer to the administrative interpretation. In
re Aultman Hosp., 80 Ohio App.3d 134, 139, 608 N.E.2d 1104 (10th Dist.1992).
Such deference “is based upon an awareness that an administrative judgment is ‘* *
* the product of administrative experience, appreciation of the complexities of the
problem, realization of the statutory policies and responsible treatment of the
facts.’” Id., quoting Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities v.
Professionals Guild of Ohio, 46 Ohio St.3d 147, 151, 545 N.E.2d 1260 (1989).
Within this assignment of error, appellant challenges the trial court’s
determination that the Commission’s decision was supported by the preponderance
of substantial, reliable, and probative evidence in the record. Importantly, this
assigned error does not claim that the administrative decision was otherwise
unconstitutional, illegal, arbitrary, capricious, or unreasonable. Thus, our review is
limited to the evidentiary argument posed by appellant.
Regarding the requirements of H.V.C.O. Chapter 1155, appellant
argues the trial court arbitrarily upheld the Commission’s conclusion that her
proposed multi-family use of Roundwood Manor was not in general keeping with
the single-family dwelling use authorized in a Class U-1 district. Appellant notes
that Roundwood Manor will continue to be used for residential purposes and will
not be expanded beyond its current footprint. Appellant further contends she
presented substantial and credible evidence that her proposal would not
substantially injure the appropriate use of neighboring properties. Rather,
appellant suggests that the conversion of Roundwood Manor into a multi-family
residential property would constitute a “benefit to the community” because the
project would preserve a historic landmark without adversely impairing existing
public services or facilities, and without requiring additional roads, access, parking,
or water and septic systems.
In support of the foregoing arguments, appellant maintains that the
Commission and, in turn, the trial court “ignored” the objective conclusions reached
by her expert, David Hartt, while simultaneously relying on the subjective testimony
posed by the Village’s consultant, George Smerigan. Appellant argues that Smerigan
“failed to conduct the proper analysis under chapter 1155,” and articulated
unsubstantiated opinions that were premised on “mere speculations and
assumptions.”
Based upon our review of the hearing transcripts in this case, and in
light of our limited standard of review, we find the trial court’s affirmance of the
Commission’s decision to deny appellant’s request for a special-use permit is
supported by reliable, probative, and substantial evidence in the record. In this case,
it is undisputed that the proposed multi-family project could not comply with the
zoning code’s requirement that each single-family dwelling located within a Class U-
1 district have five acres of land. H.V.C.O. 1155.09. Given the express language of
the zoning code, we are unable to conclude that there are no facts to support the
common pleas court conclusion that “varying from the requirement of one single-
family residence per five acres would not be in general keeping and compatible with
uses authorized in the district.”
Moreover, the evidence submitted to the Commission supports the
trial court’s determination that the proposed six-unit condominium “would
substantially harm neighboring properties because it would create more noise,
traffic, and light in the Village.” Smerigan testified at length concerning the
significance of the five-acre density requirement and the negative impact the six-
unit condominium would have on neighboring properties. Smerigan explained that
the five-acre per dwelling requirement was “the core value” of the Village, and that
the proposed use of Roundwood Manor would harm the value of adjacent
properties. In his supplemental report, Smerigan summarized the substantial
injuries that would be caused to neighboring properties as follows:
In regards to the issue of adverse impacts on adjoining properties, the
additional dwellings will mean additional vehicular traffic. Based upon
Institute of Traffic Engineers traffic generation standards, the increase
will be at least four (4) times. Those coming and goings by residents
and their guests will also generate additional noise and activity that will
impact adjacent property owners. The likelihood of parties or
gatherings, which translate into increased traffic and noise, will be six
times more likely than for a single residence. The neighboring property
owners did not have an expectation that they would be living adjacent
to a multi-family building and the more intensive use of the land that
such use implies.
Smerigan reiterated his concerns during the March 13, 2018 evidentiary hearing,
stating that the proposed project would “change the nature and character of the
Village” and “adversely impact a fairly significant number of property owners.” (Tr.
62.) Smerigan testified that a variance of the density requirement under these
circumstances would lead to a significant increase in the population, thereby
resulting in changes to public services and utilities.
Notably, appellant’s own expert, Hartt, did not dispute that a six-
family unit building would result in an increase of activity when compared to a
single-family building. (Tr. 19.) We recognize that Hartt attempted to minimize the
potential impact of the proposed project by suggesting that the multi-family use
would result in less activity than would be produced by other Class U-2 uses
identified under H.V.C.O. 1155.02(b), such as municipal buildings, fire stations,
police stations, and private horse stables. Hartt’s comparative argument, however,
is unpersuasive as a matter of law. Pursuant to the zoning code, applications for
special-use permits must be resolved on a case-by-case basis and, as recognized by
the Commission, “the fact that a more objectionable [special use] could be proposed
for the site does not warrant the conclusion that [appellant’s] proposed use is
permissible.”
Although appellant asserts that there is no evidence to support the
Commission’s decision, her evidentiary argument inherently asks this court to weigh
the evidence presented on her behalf and arrive at a different conclusion than
reached by the Commission and the trial court. As discussed, this is not a situation
where no evidence was presented in support of the Commission’s decision. The
Village presented extensive testimony that outlined the ways in which appellant’s
special-use permit was not compatible with the use authorized in Class U-1 districts
and described the negative effects the proposed use would have on neighboring
properties. Although both sides presented the Commission with countervailing
evidence in support of their respective positions, “it is not for this court to weigh the
competing evidence or question the manner in which the evidence was weighed
below.” Vang v. Cleveland, 8th Dist. Cuyahoga No. 106519, 2018-Ohio-3312, ¶ 10,
citing Henley, 90 Ohio St.3d at 147, 735 N.E.2d 433.
Based on the foregoing, we find no error of law that would compel this
court to reverse the lower court’s decision to uphold the Commission’s denial of
appellant’s request for a special-use permit.
Appellant’s first assignment of error is overruled.
B. Denial of Opportunity to Admit Additional Evidence
In her second assignment of error, appellant argues the trial court
abused its discretion by summarily denying her request to admit additional evidence
in support of her claim that “the 5:1 acreage-to-residence zoning regulation” is
unconstitutional as applied to Roundwood Manor. Appellant contends that she was
entitled to a de novo hearing and the opportunity to supplement the record because
the evidence supporting her constitutional claim was not sufficiently addressed in
the administrative record.
It is well settled that “a zoning ordinance may be challenged as
unconstitutional on its face or as applied to a particular set of facts.” Jaylin Invests.,
Inc. v. Moreland Hills, 107 Ohio St.3d 339, 2006-Ohio-4, 839 N.E.2d 903, ¶ 11,
citing Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329, 55 N.E.2d 629 (1944),
paragraph four of the syllabus. When a zoning ordinance is challenged on its face,
“the challenger alleges that the overall ordinance, on its face, has no rational
relationship to a legitimate governmental purpose and it may not constitutionally
be applied under any circumstances.” Id. at ¶ 11, citing State ex rel. Bray v. Russell,
89 Ohio St.3d 132, 137, 729 N.E.2d 359 (2000). In contrast, when a zoning
ordinance is challenged as applied, the challenger is contesting the validity of the
ordinance as it applies to a particular parcel of property. Id. at ¶ 12, citing Yajnik v.
Akron Dept. of Health, Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d
632, ¶ 14.
A party raising an as-applied constitutional challenge must prove by
clear and convincing evidence that the statute is unconstitutional when applied to
an existing set of facts. Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-
546, 883 N.E.2d 377, ¶ 181. In such a situation, “the ordinance will be presumed to
be constitutional unless it is determined ‘beyond fair debate’ to be ‘clearly arbitrary
and unreasonable and without substantial relation to the public health, safety,
morals, or general welfare of the community.’” Jaylin at ¶ 13, quoting Goldberg
Cos., Inc. v. Richmond Hts. City Council, 81 Ohio St.3d 207, 690 N.E.2d 510 (1998),
syllabus.
In Ohio, “‘[a] constitutional facial challenge to a zoning ordinance is
improper in the context of an administrative appeal.’” Ziss Bros. Constr. Co., Inc. v.
Independence Planning Comm., 8th Dist. Cuyahoga No. 90993, 2008-Ohio-6850,
¶ 34, citing Cappas & Karas Invest., Inc. v. Cleveland Bd. of Zoning Appeals, 8th
Dist. Cuyahoga No. 85124, 2005-Ohio-2735. “‘[T]he proper vehicle for challenging
the constitutionality of an ordinance on its face is a declaratory judgment action.’”
Id. at ¶ 35. On the other hand, if an ordinance is challenged as applied to a particular
property, “considerations of judicial economy allow the common pleas court in an
administrative appeal to address the constitutionality of a zoning ordinance.” Id.
When an as-applied constitutional challenge is raised during an administrative
appeal, the issue for determination is whether the ordinance, in proscribing a
landowner’s proposed use of his land, has any reasonable relationship to the
legitimate exercise of police power by the municipality. Mobil Oil Corp. v. Rocky
River, 38 Ohio St.2d 23, 309 N.E.2d 900 (1974), syllabus.
In this case, appellant did not attempt to challenge the
constitutionality of H.V.C.O. 1155.09 on its face. Rather, the second assignment of
error set forth in appellant’s administrative appeal argued that the 5:1 acreage-to-
residence zoning regulation was unconstitutional as applied to her property.
Without having the opportunity to support her constitutional claim with additional
evidence, the trial court addressed and rejected appellant’s constitutional argument,
finding the density restriction “had a reasonable relationship to the municipality’s
ability to maintain the character of the neighborhood.”
This court has recognized that “an administrative agency, such as a
board of zoning appeals, cannot determine whether an ordinance is unconstitutional
as applied to a particular parcel.” Bencin v. Bd. of Bldg. & Zoning Appeals, 8th Dist.
Cuyahoga No. 92991, 2009-Ohio-5570, ¶ 10, citing Roy v. Cleveland Bd. of Zoning
Appeals, 145 Ohio App.3d 432, 763 N.E.2d 240 (8th Dist.2001); SMC, Inc. v. Laudi,
44 Ohio App.2d 325, 338 N.E.2d 547 (1975); Mobil Oil Corp. at 309; FRC of Kamms
Corner, Inc. v. Cleveland Bd. of Zoning Appeals, 14 Ohio App.3d 372, 471 N.E.2d
845 (8th Dist.1984); Scafaria v. Fairview Park, 8th Dist. Cuyahoga No. 61008, 1992
Ohio App. LEXIS 5709 (Nov. 12, 1992); Marquette Steel Co. v. Cleveland Bd. of
Zoning Appeals, 8th Dist. Cuyahoga No. 48397, 1985 Ohio App. LEXIS 5425 (Jan.
3, 1985). Thus, when an as-applied constitutional claim is raised for the first time
during an administrative appeal, “the constitutional claim shall be tried de novo in
the court of common pleas.” Scafaria at 6. In addition, the parties must be given
an opportunity to present additional evidence on the constitutional claim. Roy at
436, citing FRC at 373; see also Knight v. Cleveland Civ. Serv. Comm., 2016-Ohio-
5133, 76 N.E.3d 321, ¶ 27 (8th Dist.).
On appeal, the Village maintains that the trial court properly declined
appellant’s request to perform a de novo review. The Village argues that while
appellant’s motion to introduce additional evidence and convene a hearing de novo
characterized her constitutional claim as an “as-applied” challenge, the substance of
her argument constituted a challenge to the “constitutionality of the [Commission’s]
administrative decision denying her application for a special use permit.” Thus, the
Village contends that appellant’s argument posed issues concerning the
constitutionality of the administrative decision, and the procedures applied by the
Commission that must be resolved “based upon the evidentiary record that was
developed before the administrative body.”
In support of its position, the Village relies on this court’s decision in
Ziss, 8th Dist. Cuyahoga No. 90993, 2008-Ohio-6850. In Ziss, this court recognized
that the constitutionality of an ordinance as applied to the property in question can
be challenged as part as an administrative appeal under R.C. Chapter 2506. Id. at
¶ 36. However, this court affirmed the trial court’s denial of Ziss’s request to expand
the record because the substance of the constitutional argument was insufficient to
warrant additional evidence and a de novo hearing. This court explained that
although Ziss’s argument was phrased as an as-applied constitutional challenge, “it
fail[ed] to ‘attack the constitutionality of any particular statute.’” Rather, Ziss’s
constitutional argument attacked the acts or omissions of the administrative zoning
commission and, as such, was “‘a factual challenge to the procedure [of the zoning
commission], not a legal challenge to the constitutionality of the statute in
question.’” (Emphasis sic.) Id. at ¶ 44, quoting Lomaz v. Ohio DOC, 11th Dist.
Portage Nos. 2004-P-0071 and 2004-P-0072, 2005-Ohio-7052, ¶ 47.
After careful consideration, we are unpersuaded by the Village’s
reliance on Ziss. Notwithstanding appellant’s reference to the inadequacy of the
Commission’s “administrative decision,” we find the arguments posed in appellant’s
motion to introduce additional evidence and convene a hearing de novo can be
reasonably interpreted as a challenge to the constitutionality of the ordinance as
applied to her specific property. In the motion, appellant noted that she intended to
pursue constitutional arguments that the Commission did not have jurisdiction to
review, including her belief that the application of the zoning regulation to her
proposed use of her property did not “advance substantially the public health, safety,
and welfare of the community.” Citing this court’s decision in Roy, 145 Ohio App.3d
432, 763 N.E.2d 240, appellant advised the trial court of this court’s clear mandate
that “a challenge to the constitutionality of an ordinance, as applied to a particular
parcel, may also be brought pursuant to R.C. Chapter 2506,” and “must be tried de
novo by the common pleas court.” Appellant reiterated her constitutional argument
in her brief in support of her administrative appeal, stating that “isofar as [H.V.C.O.
1155.09] has been applied to her property to deny her a special permit, the
imposition of the regulation violated her constitutionally protected property rights
as an Ohioan.” In addition, appellant’s brief addressed relevant case law involving
analogues as-applied constitutional challenges to minimum lot sizes, and
maintained that no legitimate governmental interest was advanced by the
application of the Village’s five-acre density restriction to Roundwood Manor. Thus,
unlike the circumstances presented in Ziss, appellant’s constitutional argument
went beyond the Commission’s application and interpretation of the relevant zoning
codes, and undoubtedly raised an as-applied constitutional challenge to a specific
section of the zoning code that the Commission did not have the authority to
consider. See Bencin, 8th Dist. Cuyahoga No. 92991, 2009-Ohio-5570, at ¶ 12
(distinguishing the facts of Ziss).
Under these circumstances, we find the trial court erred by addressing
the merits of appellant’s as-applied constitutional challenge without permitting
appellant to offer additional evidence in support of her claim that the ordinance is
unconstitutional as applied to the subject property. In addition, the trial court erred
by failing to provide appellant the opportunity to present her constitutional claim at
a de novo hearing. The judgment of the trial court is reversed, in part, and the matter
is remanded for further proceedings consistent with this opinion.
Appellant’s second assignment of error is sustained. The third
assignment of error is rendered moot by our resolution of this assigned error.
III. Conclusion
Based on the forgoing, we affirm the trial court’s judgment upholding
the Commission’s denial of appellant’s request for a special-use permit. However,
we reverse the trial court’s judgment denying appellant’s motion to introduce
additional evidence and convene a de novo hearing. The matter is therefore
remanded for the trial court to conduct a de novo hearing upon providing appellant
the opportunity to present additional evidence in support of her argument that
relevant portions of the Village’s zoning code are unconstitutional as applied to
Roundwood Manor.
Judgment affirmed in part, reversed in part, and remanded for further
proceedings.
It is ordered that the parties share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas 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.
EILEEN T. GALLAGHER, JUDGE
LISA B. FORBES, P.J., and
EMANUELLA D. GROVES, J., CONCUR