[Cite as Speedway, L.L.C. v. Berea Planning Comm., 2014-Ohio-4388.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 101106




                           SPEEDWAY L.L.C., ET AL.
                                                PLAINTIFFS-APPELLEES

                                                   vs.

           PLANNING COMMISSION CITY OF BEREA
                                                DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-12-780197

           BEFORE:          Blackmon, J., Rocco, P.J., and Kilbane, J.

           RELEASED AND JOURNALIZED:                             October 2, 2014
ATTORNEYS FOR APPELLANT

Anthony R. Vacanti
John P. Slagter
Buckingham Doolittle & Burroughs, L.L.P.
One Cleveland Center, Suite 1700
1375 East Ninth Street
Cleveland, Ohio 44114

James N. Walters, III
Director of Law - City of Berea
11 Berea Commons
Berea, Ohio 44017

ATTORNEYS FOR APPELLEES

Anthony J. Coyne
Bruce G. Rinker
Justin J. Eddy
Tracey S. McGurk
Mansour, Gavin, Gerlack & Manos, L.P.A.
North Point Tower
1001 Lakeside Avenue, Suite 1400
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Planning Commission, city of Berea (“Planning Commission”)

appeals the trial court’s decision denying its motion to remand Speedway L.L.C.’s

(“Speedway”) Site Plan application to the Planning Commission and assigns the

following errors for our review:

       I. The trial court erred by failing to remand the Site Plan application back to
       the Berea Planning Commission for review under Berea Zoning Code
       Section 602.1, which this Court indicated contained the proper site plan
       approval criteria.

       II. The trial court erred by failing to engage in further proceedings
       consistent with this Court’s opinion and creating a judgment entry sufficient
       for appellate review.

       III. The trial court erred by failing to remand the matter back to Berea to
       legislatively adopt and apply constitutionally permissible site plan
       provisions.

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

       {¶3} In October 2011, after purchasing real estate from Westbridge, L.L.C.,

Speedway submitted an application to the Planning Commission seeking approval to

build a gasoline station in the city of Berea (“the City”) at 880 North Rocky River Drive

(“the Site”).   In its quest to build a gas station at the Site, Speedway sought a number of

approvals including the Site Plan approval; approval to demolish the existing structures

on the Site; approval of two height variances; approval of two different signs;

landscaping approval; and lighting approval.
       {¶4} At a hearing conducted on January 5, 2012, the Planning Commission voted

5-2 to deny approval of the Site Plan. As a result, Speedway requested that remaining

variances and demolition approvals be tabled and subsequently requested reconsideration

of the Site Plan application. The Planning Commission voted to reconsider Speedway’s

application, conducted a hearing on March 15, 2012, and voted 4-2 to deny the Site Plan

application.

       {¶5} On April 11, 2012, Speedway filed an administrative appeal in the common

pleas court, challenging the Planning Commission’s decision denying the Site Plan

application.     On November 30, 2012, the trial court affirmed the Planning

Commission’s decision to deny Speedway’s Site Plan application. On December 28,

2012, Speedway timely appealed the trial court’s decision affirming the Planning

Commission’s denial of the Site Plan application.

       {¶6} In Speedway L.L.C. v. Planning Comm. City of Berea, 8th Dist. Cuyahoga

No. 99341, 2013-Ohio-3433 (“Speedway I”), a decision dated August 8, 2013, we

concluded that the trial court’s decision upholding the Planning Commission’s decision to

deny the Site Plan application was unconstitutional, illegal, arbitrary, capricious, and

unreasonable and was not supported by reliable, probative, and substantial evidence.

Consequently, we reversed the judgment of the common pleas court, and remanded for

further proceedings consistent with our opinion.

       {¶7} Following our remand, the parties engaged in significant motion practice

that is not necessary to recount in detail herein. Of note, Speedway submitted a proposed
order to carry our mandate into effect. The Planning Commission opposed the proposed

order and filed a motion to have the matter remanded to its body for adjudication. The

trial court denied the request and issued an order stating that the Planning Commission’s

denial of Speedway’s Site Plan application was unconstitutional, illegal, arbitrary,

capricious, and unreasonable. The Planning Commission now appeals.

                          Remand of Administrative Appeal

       {¶8} We will address the first and third assigned errors together because of their

common basis in fact and law.     Within these assigned errors, the Planning Commission

argues the trial court abused its discretion by failing to remand Speedway’s Site Plan

application for a new review. An abuse of discretion connotes more than an error of law

or of judgment; rather, it implies the court’s attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶9} In the instant case, the Planning Commission asserts that the trial court

should have remanded the matter to the Planning Commission so they could determine

whether Speedway’s Site Plan application met the approval requirement under Berea

Zoning Code Section 602.1. For the reasons that follow, such action was unnecessary.

       {¶10} In Speedway I, we sustained the first and second assigned errors that

alleged:

       I. The Planning Commission’s decision to deny Speedway’s application is
       unconstitutional, illegal, arbitrary, capricious, and unreasonable based upon
       the record and warrants reversal on the merits.
       II. A preponderance of substantial, reliable, and probative evidence, taken
       as a whole, does not support the common pleas court’s decision to affirm
       the Planning Commission’s ruling.

       {¶11} In sustaining the above errors, we stated in pertinent part as follows:

       It is uncontroverted that the Site was zoned General Commercial at the time
       that Speedway submitted its application for a zoning permit. Zoning Code
       Chapter 301 governed permitted uses in a district zoned General
       Commercial. The City does not dispute appellants’ contention that, under
       §§ 301.1 and 301.5 of the Zoning Code, a gas station was listed as a
       principal, permitted use in a General Commercial district.

       Id. at ¶11.

       The Planning Commission’s decision rejecting Site-plan approval does not
       reference §§ 301.1 and 301.5 of the Zoning Code. Instead, the Planning
       Commission relied on subjective criteria, supporting its decision by
       reference to generic, aspirational language found in §§ 805.7(b), 100.1, and
       300.1 of the Zoning Code as well as the 2010 Berea Master Plan (“Master
       Plan”). The Planning Commission was not permitted to ignore specific and
       relevant Zoning Code provisions in rendering its decision regarding the Site
       plan.

       Id. at ¶12.

       In short, in rejecting the Site Plan application, the Planning Commission
       unlawfully relied on generalized “intentions”and “purposes” contained in
       the introduction to the Zoning Code itself, parallel language contained in
       the introduction to the Commercial District regulations, and the master plan.
       Instead of pointing to the specifics of the codified permitted uses, the
       Planning Commission improperly ignored relevant Zoning Code provisions
       in favor of general and subjective goals and aspirations. See S. Park, Ltd.
       v. Council of the City of Avon, 9th Dist. Lorain No. 05CA008737,
       2006-Ohio-2846, ¶ 16. As the Zoning Code specifically permits gas stations
       in the General Commercial district, the Planning Commission’s reliance on
       general aspirations was erroneous as a matter of law. See Id. at ¶ 12. The
       common pleas court abused its discretion in affirming the Planning
       Commission’s decision.

Id. at¶ 18.
      {¶12} Here, the clear import of our decision in Speedway I and as the excerpt

above illuminates, is that Site Plan application should have been granted had the Planning

Commission not chosen to ignore the specific and relevant zoning code provision. We

underscore that it is undisputed that at the time Speedway submitted the Site Plan

application, a gas station was listed as a principal, permitted use in a General Commercial

district. Thus, had the Planning Commission followed their own relevant code section,

there should have been no proper reason for Speedway’s Site Plan application to be

denied.

      {¶13} Thus, when we found that the trial court abused its discretion by affirming

the Planning Commission’s decision to deny Speedway’s Site Plan application, we were

in fact saying that the application should have been approved. Consequently, on remand,

in denying the Planning Commission’s request to remand the case to its body for final

adjudication, the trial court was properly following our mandate.

      {¶14} Nonetheless, the Planning Commission now argues that although a proposed

Site Plan falls within a permitted use, the Planning Commission is under no obligation to

approve the Site Plan. In support of its argument, the Planning Commission cites to

Key-Ads, Inc. v. Bd. of Cty. Commrs., 12th Dist. Warren No. CA2007-06-085,

2008-Ohio-1474, that concluded that an application for a permitted use may be denied if

it negatively impacts the health, safety, morals, and welfare of the general public and

neighboring property occupants.
       {¶15} The Planning Commission contends it is necessary for its body to review

Speedway’s Site Plan application under Berea Zoning Code Section 602.1. to allay

“substantial vehicular and pedestrian safety concern.”     In the instant case, when the

Planning Commission denied Speedway’s Site Plan application, the body included a

generalized statement in its conclusion of fact that “a commercial and industrial fueling

station located on the Site would contribute to increased traffic congestion and related

safety issues.”

       {¶16} However, although vehicular and pedestrian safety are to be considered in

determining whether to grant Site Plan approval under Section 602.1(c) of the code, our

review indicates traffic congestion is not a consideration under Section 602.1(c).

Further, unlike Key-Ads, Inc., the Planning Commission has not articulated what safety

issues are of concern.   Speedway insists the Planning Commission’s present assertion is

disingenuous, vague, and might even be pretextual.

       {¶17} What we do know is that while a trial court is authorized under R.C.

2506.04 to remand the matter back to the administrative body, it does not necessarily

follow that the trial court abuses its discretion by not remanding the matter to the

administrative body. See State ex rel. Chagrin Falls v. Geauga Cty. Bd. of Commrs., 96

Ohio St.3d 400, 2002-Ohio-4906, 775 N.E.2d 512. Here, given our clear mandate in

Speedway I, the trial court implicitly determined that the evidence supported the approval

of Speedway’s Site Plan application.
       {¶18} Finally, the Planning Commission argues the trial court should have

remanded the matter to its body to legislatively adopt and apply constitutionally

permissible Site Plan provisions. We find no merit in these assertions. In Speedway I,

we determined that the Planning Commission chose to ignore the relevant code

provisions, not that any of the Site Plan provisions were unconstitutional.

       {¶19} Based on the foregoing, we find no abuse of discretion in the trial court’s

decision to deny the Planning Commission’s request to remand the matter to its body.

Accordingly, we overrule the first and third assigned errors.

       {¶20} In the second assigned error, the Planning Commission argues the trial court

erred by failing to engage in further proceedings consistent with our opinion in Speedway

I. As previously noted, following our remand, the parties engaged in significant motion

practice.   During this time, the trial court implicitly determined that the evidence

supported the approval of Speedway’s

Site Plan application. Further, the trial court’s journal entry sufficiently made clear, that

based on the record, the Planning Commission’s decision to deny Speedway’s application

was unconstitutional, illegal, arbitrary, capricious, and unreasonable.         In our view,

nothing more needed to be said. Accordingly, we overrule the second assigned error.

       {¶21} Judgment affirmed.

       It is ordered that appellee recover from appellant 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.



_______________________________________
PATRICIA ANN BLACKMON, JUDGE

KENNETH A. ROCCO, P.J., and
MARY EILEEN KILBANE, J., CONCUR
