[Cite as Southgate Corp. v. Granville, 2019-Ohio-2188.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



SOUTHGATE CORPORATION                              :      JUDGES:
                                                   :      Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         :      Hon. Craig R. Baldwin, J.
                                                   :      Hon. Earle E. Wise, Jr., J.
-vs-                                               :
                                                   :
VILLAGE OF GRANVILLE, ET AL.                       :      Case No. 18-CA-108
                                                   :
        Defendants-Appellants                      :      OPINION




CHARACTER OF PROCEEDING:                                  Appeal from the Court of Common
                                                          Pleas, Case No. 18-CV-00588




JUDGMENT:                                                 Affirmed




DATE OF JUDGMENT:                                         June 3, 2019




APPEARANCES:

For Plaintiff-Appellee                                    For Defendants-Appellants

JOSEPH R. MILLER                                          MICHAEL J. KING
CHRISTOPHER L. INGRAM                                     141 East Broadway
KARA M. MUNDY                                             P.O. Box 514
52 East Gay Street                                        Granville, OH 43023
P.O. Box 1008
Licking County, Case No. 18-CA-108                                                      2


Columbus, OH 43216-1008
Wise, Earle, J.

      {¶ 1} Defendants-Appellants, Village of Granville, Ohio and Village Council for

the Village of Granville, Ohio, appeal the November 2, 2018 decision and order of the

Court of Common Pleas of Licking County, Ohio, vacating a decision by the village limiting

the commercial uses of a development plan of Plaintiff-Appellee, Southgate Corporation.

                        FACTS AND PROCEDURAL HISTORY

      {¶ 2} In January 2018, appellee submitted a planned development district

application with the Granville Planning Commission to develop approximately 57.5 acres

of vacant land. Appellee proposed a planned unit district (hereinafter "PUD") comprised

of single-family and multi-family dwellings and a limited mixed-use combination of

commercial uses. The Granville Planning Commission recommended that the application

be approved. Appellants approved appellee's plan, except they limited appellee's mixed-

use combination of commercial uses to four uses: business and professional offices and

financial institutions, specialty food shops, specialty retail shops, and restaurants.

Appellants cited Chapter 1171 of "the Granville Codified Ordinances and Comprehensive

Plan guidance regarding Future Land Uses, Preserving Small Town Character and

Strengthening the Tax Base" to support their decision.

      {¶ 3} On June 8, 2018, appellee filed an administrative appeal contesting the

limitation with the Court of Common Pleas of Licking County, Ohio pursuant to R.C.

Chapter 2506. By decision and order filed November 2, 2018, the trial court vacated

appellants' decision, finding appellants had no authority to limit or condition the

commercial uses in approving appellee's PUD.
Licking County, Case No. 18-CA-108                                                         3


       {¶ 4} Appellants filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶ 5} "THE TRIAL COURT ERRED BY EFFECTIVELY HOLDING CHAPTER

1171    OF    THE     GRANVILLE       PLANNING       AND     ZONING        CODE    TO    BE

UNCONSTITUTIONAL ON ITS FACE, WITHOUT REGARD TO THE LAWFUL AND

REASONABLE MANNER IN WHICH IT WAS ACTUALLY APPLIED TO SOUTHGATE

CORPORATION'S PUD APPLICATION IN THIS CASE."

                                             II

       {¶ 6} "IF AN 'AS APPLIED' ANALYSIS IS CORRECTLY FOLLOWED, CHAPTER

1171    OF    THE    GRANVILLE        PLANNING       AND    ZONING       CODE     IS    NOT

UNCONSTITUTIONALLY VAGUE AND DID NOT DEPRIVE SOUTHGATE OF A RIGHT

TO DUE PROCESS."

                                            I, II

       {¶ 7} In both of their assignments of error, appellants claim the trial court erred in

finding Chapter 1171 of the Granville Planning and Zoning Code to be unconstitutional

and in fact, it is not unconstitutionally vague as applied. We disagree.

       {¶ 8} Pursuant to R.C. 2506.04, in an administrative appeal, the common pleas

court considers the whole record, including any new or additional evidence, and

determines whether the administrative order is unconstitutional, illegal, arbitrary,

capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,

and probative evidence. In reviewing an appeal of an administrative decision, a court of

common pleas begins with the presumption the agency's determination is valid, and the
Licking County, Case No. 18-CA-108                                                          4

appealing party bears the burden of showing otherwise. Hollinger v. Pike Township Board

of Zoning Appeals, 5th Dist. Stark No. 09CA00275, 2010-Ohio-5097.

        {¶ 9} As an appellate court, our standard of review to be applied in an R.C.

2506.04 appeal is "limited in scope." Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d

848 (1984). "This statute grants a more limited power to the court of appeals to review

the judgment of the common pleas court only on 'questions of law,' which does not include

the same extensive power to weigh 'the preponderance of the substantial, reliable, and

probative evidence,' as is granted to the common pleas court." Id. at fn. 4.

        {¶ 10} Ultimately, the standard of review for appellate courts in an R.C. Chapter

2506 appeal is "whether the common pleas court abused its discretion in finding that the

administrative order was or was not supported by reliable, probative, and substantial

evidence." See Weber v. Troy Township Board of Zoning Appeals, 5th Dist. Delaware

No. 07 CAH 04 0017, 2008-Ohio-1163. In order to find an abuse of discretion, we must

determine the trial court's decision was unreasonable, arbitrary or unconscionable and

not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450

N.E.2d 1140 (1983).

        {¶ 11} "The standard of review for courts of appeals in administrative appeals is

designed to strongly favor affirmance" and "permits reversal only when the common pleas

court errs in its application or interpretation of the law or its decision is unsupported by a

preponderance of the evidence as a matter of law." Cleveland Clinic Foundation v.

Cleveland Board of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d

1161.

        {¶ 12} In their appellate brief at 4, appellants argue the following:
Licking County, Case No. 18-CA-108                                                       5




             In the case at bar, the trial court effectively held Chapter 1171

      unconstitutional on its face, as it 'vacated' Council's thoughtful limitation on

      the combination of mixed commercial uses that could go into a PUD. The

      trial court accepted and adopted Southgate's argument that it could put any

      commercial use into the PUD that it chooses, without limitation.

      Accordingly, the trial court has left the Village of Granville with no instance

      in which it can limit the mixed commercial uses that any future developer

      might choose to put in a PUD.



      {¶ 13} In its decision and order filed November 2, 2018, the trial court determined

appellants had no authority to limit or condition the commercial uses in approving

appellee's PUD, finding the following:



             The Court agrees with Southgate that Chapter 1171 does not restrict

      the commercial uses permitted on property zoned PUD. Under Ohio law,

      courts interpreting zoning ordinances must strictly construe restrictions on

      the use of real property in favor of the property owner. Any ambiguities in

      zoning provisions which restrict the use of one's land must be construed in

      favor of the land owner because the enforcement of such a provision is an

      exercise of police power that constricts property rights.       And the local

      government's authority to regulate uses of land cannot be extended to

      include the authority to restrict uses not clearly proscribed in the ordinance.
Licking County, Case No. 18-CA-108                                                       6


             While it is clear that the Village gave careful and deliberate

      consideration to Southgate's proposal, imposing restrictions and conditions

      which were not set forth in the zoning ordinance results in an ad hoc spot

      zoning. The imposition of non-existent restrictions or conditions are by

      definition arbitrary as there are no guidelines or factors for consideration set

      out in the code. There is no way for a property owner to anticipate what is

      a permitted use or what the limitations on a use may be.

             The    problem    with   the   Village's argument       is that   section

      1171.02(A)(4), contains no definition for term "limited" which supports its

      conclusions; nor are there guidelines as to what types of commercial uses

      are permitted and how they might be limited. And the code contains no

      criteria to guide Council in the exercise of its discretion.

             While the Village argues that the restrictions were arrived [at] as a

      result of a fair and reasonable process, they are not based upon any

      authority in the code. Allowing Council to make its decisions on factors not

      enumerated in the code is an invitation to subjective and arbitrary evaluation

      of development plans.

             Moreover, Village Council's reliance on its comprehensive plan to

      inject additional requirements or conditions into the zoning code is not

      permitted. A comprehensive plan "represents a community's policy toward

      public and private development, it is not, like a zoning regulation, a law."

      And even if Village Council were permitted to rely on its comprehensive plan

      in evaluating Southgate's plan, the only evidence was that the development
Licking County, Case No. 18-CA-108                                                       7


       plan met the future land use intentions set forth in the comprehensive plan.

       The same is true in determining whether it was proper for Village Council to

       rely on any general statements of purpose and intent in the zoning code to

       conclude that an otherwise permitted use should be denied. "To permit the

       Council to rely upon general aspirations would effectively abrogate the

       specific provisions which follow and grant the Council the ultimate authority

       to determine village planning, with no guidelines to inform their decisions.["]

       South Park, Ltd. Vs. Council of Avon, 2006-Ohio-2846.              (Footnotes

       omitted.)



       {¶ 14} In reviewing the trial court's decision, we do not find it to be based on the

unconstitutionality of Chapter 1171 of the Granville Planning and Zoning Code. The trial

court analyzed the applicable zoning code sections and found appellants' decision to be

arbitrary and unsupported by the language therein.

       {¶ 15} Upon review, we find the assignments of error do not raise issues

challenging the trial court's actual decision.

       {¶ 16} Assignments of Error I and II are denied.
Licking County, Case No. 18-CA-108                                             8


      {¶ 17} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Baldwin, J. concur.




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