[Cite as Rockford Homes, Inc. v. Canal Winchester City Council, 2014-Ohio-3609.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Rockford Homes, Inc.,                               :

                Appellant-Appellee,                 :
                                                                           No. 14AP-89
v.                                                  :                (M.C. No. 2013 EVA-60081)

City of Canal Winchester Council et al.,            :               (REGULAR CALENDAR)

                Appellees-Appellants.               :


                                          D E C I S I O N

                                    Rendered on August 21, 2014


                Kegler, Brown, Hill & Ritter LPA, Catherine A. Cunningham
                and Richard C. Brahm, for appellee.

                Frost Brown Todd LLC, Jennifer B. Croghan and Eugene L.
                Hollins, for appellants.

                      APPEAL from the Franklin County Municipal Court,
                                 Environmental Division
CONNOR, J.

        {¶ 1} Appellee-appellant, the City of Canal Winchester, appeals from a judgment
of the Franklin County Municipal Court, Environmental Division, reversing an order from
the Council for the City of Canal Winchester ("Council") which denied an application for a
development plan submitted by appellant-appellee, Rockford Homes, Inc. Because the
trial court failed to apply the correct standard of review, we reverse.
I. FACTS AND PROCEDURAL HISTORY

        {¶ 2} This is the second time that these parties have been before this court
regarding a development plan for certain property located in Canal Winchester. Rockford
owns the property and wishes to construct apartments on the property. The history of the
No. 14AP-89                                                                                      2


development of the property was detailed by this court in Rockford Homes, Inc. v. Canal
Winchester, 10th Dist. No. 09AP-827, 2010-Ohio-873 ("Rockford I") as follows:
                   This action arises out of attempts to develop a planned district
                   within the Village.1 On August 28, 1990, the Council of the
                   Village of Canal Winchester ("Council") enacted Ordinance
                   No. 59-90, changing the zoning of certain, described property
                   from Residential (R-2) to Planned Unit Development
                   ("PUD"), subject to 32 staff-recommended conditions, and
                   changing the Village zoning map accordingly. The rezoned
                   property was directly associated with a development known as
                   the Villages at Westchester, which was to include single family
                   residential, multi-family residential, and commercial uses.
                   The 9.112 acres that are the subject of this appeal are located
                   within the property rezoned by Ordinance No. 59-90. It is
                   undisputed that the staff-recommended conditions
                   incorporated into Ordinance No. 59-90, which refer to an
                   existing preliminary development plan for the Villages at
                   Westchester, established the development standards text for
                   the PUD.

                   On April 2, 2001, Council enacted Ordinance No. 17-01 in
                   response to a request for modifications to the preliminary
                   development plan associated with the Villages at Westchester.
                   Ordinance No. 17-01 changed an 11.06-acre parcel within the
                   PUD from multi-family residential use to open space and park
                   use and changed an 11-acre portion of a larger parcel within
                   the PUD from single-family residential use to multifamily
                   residential use. The ordinance imposed five supplemental
                   conditions, but stated that "all other provisions of Ordinance
                   No. 59-90 and [its] accompanying preliminary development
                   plan and development text shall remain in full force and
                   effect." The property at issue here is located within the parcel
                   reclassified for multi-family residential use by Ordinance No.
                   17-01.

                   On August 20, 2001, the Village amended Chapter 1173 of the
                   Canal Winchester Zoning Code (the "Code"), which governs
                   planned districts, including PUDs. Chapter 1173 contains
                   specific requirements for submission and approval of a
                   preliminary plan, development standards text, and
                   development plan as part of the process for rezoning and
                   developing property as a PUD.


1   Between our decision in Rockford I and the current appeal, Canal Winchester became a city.
No. 14AP-89                                                                  3


          In February 2003, pursuant to the development standards
          text set forth in Ordinance Nos. 59-90 and 17-01, the Village
          Planning and Zoning Commission ("P & Z") approved
          Rockford's Application for Site Plan for a 112-unit multi-
          family apartment development, known as Canal Crossing, and
          for a 60-unit multi-family condominium development, known
          as Eagle Ridge, within the Villages at Westchester. Rockford
          constructed the Eagle Ridge condominiums, commencing in
          2003, but it did not construct the Canal Crossing apartments.

          In 2005, Rockford requested approval to amend its plans for
          Canal Crossing from a 112-unit apartment development to a
          48-unit condominium development. P & Z approved
          Rockford's request on December 12, 2005. Again, Rockford
          did not build the Canal Crossing project, and its 2005
          development plan lapsed pursuant to Canal Winchester
          Codified Ordinance 1173.06(c), which states that if
          construction site improvements are not commenced within
          two years after P & Z approval, a new development plan must
          be approved before development may begin.

          In October 2008, Rockford submitted an Application for Site
          Development Plan (the "2008 application"), again requesting
          approval to develop Canal Crossing as a 112-unit apartment
          development, as originally approved in February 2003. At a
          November 10, 2008 meeting, P & Z considered the 2008
          application, which is described in the meeting minutes as a
          request to amend the development plan previously approved
          on December 12, 2005. Despite a staff recommendation that
          the 2008 application be approved, P & Z unanimously denied
          Rockford's application. In a letter dated November 12, 2008,
          P & Z notified Rockford of the denial and of its right to appeal
          to Council.

          Rockford appealed P & Z's denial of the 2008 application to
          Council, which held a public hearing on the appeal. Before
          opening the hearing for public comment, Council President
          Rick Deeds established that "this is not a re-zoning issue."
          Council then heard arguments from residents who opposed
          Rockford's 2008 application, primarily because they preferred
          the development of condominiums over the development of
          apartments on the property. After the public comments, Allan
          Neimayer, the P & Z Administrator, reiterated that the staff
          recommendation was for approval of the 2008 application
          because the accompanying development plan "met the code."
No. 14AP-89                                                                       4


                On January 5, 2009, Council issued Findings of Fact and
                Conclusions of Law, denying Rockford's 2008 application.
                Council described Rockford's 2005 and 2008 applications
                regarding the Canal Crossing development as requests to
                amend the preliminary plan and development text for the
                Villages at Westchester and rejected Rockford's argument that
                approval (or disapproval) of the 2008 application involved an
                administrative, rather than a legislative, action. Council
                treated the 2008 application as "an amalgamation of a new
                Preliminary Plan, Development Plan, and Development Text,"
                requiring Council approval, because it found that Rockford
                "no longer had a Preliminary Plan and Development Text
                incorporated into the zoning text for Canal Crossing."
                Alternatively, Council found that the 2008 application was a
                "request to amend the previously approved PUD Plan and
                Development Text." Under both theories, Council stated that
                it was acting legislatively and denied the 2008 application.

                Rockford appealed to the Franklin County Municipal Court,
                Environmental Division, pursuant to R.C. Chapter 2506.
                Rockford argued that Council erred by holding that the 2008
                application sought        legislative action     rather   than
                administrative action and also argued that Council's denial of
                the 2008 application was illegal, arbitrary, capricious,
                unreasonable, and unsupported by a preponderance of the
                substantial, reliable, and probative evidence. In response, the
                Village argued that the court lacked subject-matter
                jurisdiction because Council's denial of the 2008 application
                was a legislative action, not subject to appeal under R.C.
                Chapter 2506. The Village alternatively argued that Council's
                decision was supported by a preponderance of substantial,
                reliable, and probative evidence and should be affirmed.

                The municipal court rejected the Village's jurisdictional
                argument, determining that Council's denial of the 2008
                application was an administrative act, appealable under R.C.
                Chapter 2506. The court went on to conclude that Council's
                denial was capricious, arbitrary, and unsupported by a
                preponderance of the evidence. Accordingly, the court
                reversed Council's decision and remanded the matter for
                further proceedings.

Id. at ¶ 2-11
No. 14AP-89                                                                             5


      {¶ 3} In Rockford I, we determined that the trial court had jurisdiction to hear the
appeal, as the denial of the 2008 application by Council was an administrative act. We
further determined that there was no evidence to support the Council's denial of the 2008
application, noting that "the only possible evidence supporting a denial of Rockford's
2008 application stemmed from the testimony and statements of citizens at hearings
before P & Z and Council." Id. at ¶ 34. We noted that the public comments were irrelevant,
as "the sole question before P & Z and Council was whether Rockford's plan complied with
[the] requirements," of Chapter 1173 of the Codified Ordinances of Canal Winchester
("Ordinances"), the preliminary plan, and the development standards text. Id. We
affirmed the trial court's order reversing Council's decision and remanding the matter for
further proceedings.
      {¶ 4} Upon remand, the Planning & Zoning Commission of Canal Winchester ("P
& Z") administratively approved Rockford's 2008 application on June 1, 2010. Canal
Winchester's P & Z administrator, Andrew Dutton, informed Rockford of the approval,
and informed Rockford that pursuant to Ordinance 1173.06(c), construction had to begin
on the site within two years of the approval or the approval would lapse. Rockford did not
begin construction on the project by June 1, 2012, and the approved 2008 application
expired.
      {¶ 5} On August 3, 2012, Rockford submitted a final development plan
application ("2012 application") to construct a 112-unit apartment complex on the same
piece of property at issue in Rockford I. Canal Winchester received the 2012 application
on August 7, 2012.
      {¶ 6} On August 15, 2012, Dutton sent Rockford a letter setting forth conflicts
between the 2012 application and the applicable Ordinances. On November 19, 2012,
Rockford submitted amended exhibits to its 2012 application. P & Z held a public hearing
on the 2012 application on December 10, 2012. At the hearing, Rockford's attorney stated
that the 2012 application was "similar to the previously approved [2008] application
which had expired, except for for [sic] the reduction of 16-unit buildings to 12-unit
buildings." (Administrative Record, 14, hereinafter "Admin.R.")
      {¶ 7} On January 14, 2013, P & Z denied the 2012 application. Rockford appealed
the denial to Council, and Council held a public hearing on the matter on February 18,
No. 14AP-89                                                                             6


2013. At the February public hearing, counsel for Canal Winchester asked "if Rockford
acknowledge[d] that [a portion of] Cormorant [Drive was] not a dedicated public road."
(Admin.R. 6.) Cormorant Drive borders the proposed development, and would provide
vehicular access to the apartment complex. Bob Yoakum, the president of Rockford,
stated that Rockford was informed of the issue of Cormorant Drive being a private
roadway a couple of weeks prior to the February public hearing. Yoakum stated that he
was surprised to learn that a portion of Cormorant Drive was not a public road, as "a deed
was presented to the City in 2005," although he acknowledged that the deed "was never
recorded." (Admin.R. 6.) Yoakum noted that Rockford had installed Cormorant Drive "for
the City with the intent for it to be a city road." (Admin. R. 6.)
       {¶ 8} On March 18, 2013, Canal Winchester issued a decision denying Rockford's
2012 application. Council noted that Ordinances 1141.05(e) and 1141.06(f) required every
site plan to contain the location, width, size and intended purpose of all easements and
rights-of-way, and to state whether those easements or rights-of-way are to be publicly or
privately maintained. Council observed that Canal Winchester had accepted the first 525
+/- lineal feet of Cormorant Drive in 1998 through Ordinance 103-98, but further noted
that the remaining 425 +/- lineal feet of Cormorant Drive were never publically dedicated
or accepted by Canal Winchester. Accordingly, Council found that the latter portion of
Cormorant Drive was not a public road and determined that "[t]he final development plan
submitted by Rockford shows the entire existing portion of Cormorant Drive as public
right-of-way in direct contradiction to the clear and unambiguous requirements of R.C. §
723.03 and Sections 1141.05(e) and 1141.06(f) of the Codified Ordinances." (Admin.R. 2,
Conclusions of Law at 5, ¶ 6.) Council found Rockford's depiction of Cormorant Drive as a
public right-of-way to be a material misrepresentation, and Council denied the 2012
application "based on the misrepresentation * * * showing privately owned Cormorant
Drive as public roadway." (Admin.R., 2, Conclusions of law at 10, ¶ 8.)
       {¶ 9} Council then identified alternative reasons to support the denial of the 2012
application. Council noted that, as the development standards text in the preliminary
development plan did not set forth standards for the Stream Corridor Protection Zone
("SCPZ") contained in Ordinance 1175.05, applied to the 2012 application. Council noted
that a private drive was not a permitted use under the SCPZ, and noted that the 2012
No. 14AP-89                                                                                 7


application provided for a private drive to run over the O.P. Chaney Ditch, in violation of
Ordinance 1175.05(f). Council further noted that the preliminary development plan for
the property incorporated standards from the 1990 Codified Ordinances of Canal
Winchester ("1990 Ordinances"). Council noted that the 2012 application provided for
five detached garages on the property in violation of 1990 Ordinance 80.65.03(b), which
limited the amount of accessory structures on residential lots to two. Council further
noted that the 2012 application depicted a sign at the development entrance, and that the
1990 Ordinance 80.59.06 prohibited the sign.
       {¶ 10} On April 10, 2013, Rockford appealed Council's order denying the 2012
application to the Environmental Division of the Franklin County Municipal Court.
Rockford filed a brief with the trial court on August 30, 2013, noting that the 2012
application was "basically the same as the plan that was considered by this Court and the
court of appeals" in Rockford I. (Rockford's trial court brief, 4.) Rockford asserted that the
2012 application did not indicate "[t]he status of Cormorant Drive as a dedicated public
street or private street," and further noted that Canal Winchester had "not cited to any
requirement that Cormorant Drive be a public street in order for Rockford to develop and
use its property for apartments." (Rockford's trial court brief, 8, 20.) Rockford also noted
that the ditch crossing, neighborhood sign, and the five detached garages had been on the
2008 application, which P & Z had administratively approved. Rockford noted that the
property at issue was zoned multi-family residential, and asserted that the 1990
Ordinances cited by Canal Winchester applied to residential districts, and not to multi-
family residential districts. Rockford also asserted that the SCPZ, contained in Ordinance
1175, was inapplicable to the 2012 application, which only had to comply with Ordinance
1173, the preliminary plan, and the development text.
       {¶ 11} Canal Winchester filed its trial court brief on October 7, 2013. Canal
Winchester asserted that the "development plan submitted by Rockford Homes shows
Cormorant Drive as a public roadway." (Canal Winchester's trial court brief, 6.) Canal
Winchester asserted that engineering construction plans to be reviewed by the technical
review group had to comply with Ordinance 1141.06, which required every engineering
construction plan to state whether the easements and rights-of-way depicted thereon
were "to be publicly or privately maintained." Ordinance 1141.06(f). Canal Winchester
No. 14AP-89                                                                              8


asserted that, due to the misrepresentation of Cormorant Drive as a public right-of-way,
the 2012 application did not meet the requirements of R.C. 723.03 or Ordinances
1173.05(b)(3), 1173.04(a)(3)(G), 1141.05(e), and 1141.06(f). Canal Winchester also
asserted that "when there is a residential component to a mixed use PUD district, the
residential component obviously would be a 'residential district.' " (Canal Winchester's
trial court brief, 11.) Rockford filed its reply brief on November 8, 2013.
       {¶ 12} On January 8, 2014, the trial court issued a decision and entry reversing
Council's order. The court found Rockford's 2012 "plan to be essentially the same" as the
2008 application which was "approved by this Court and the Court of Appeals."
(Decision and Entry, 1.) The court stated that "an examination of the whole record [did]
not provide a preponderance of the evidence to support the application denial," and
found that Council's decision was "capricious, arbitrary, and unsupported by a
preponderance of the evidence." (Decision and Entry, 1.) The court did not mention or
address the issues regarding Cormorant Drive, the SCPZ, the detached garages, or the
neighborhood sign.
II. ASSIGNMENTS OF ERROR

       {¶ 13} Canal Winchester appeals, assigning the following errors:

              1. The Trial Court abused its discretion when it misapplied
              the law by not addressing Rockford Homes' failure to comply
              with Chapter 1173 requirements for its development plan by
              materially misrepresenting a public right of way that does
              not exist.

              2. The Trial Court abused its discretion when it misapplied
              the law by not addressing whether the after adopted
              ordinances passed to comply with federal and state
              mandates apply in a planned district when such standards
              are not in the planned district text or code.

III. FIRST ASSIGNMENT OF ERROR – TRIAL COURT FAILED TO APPLY
     CORRECT STANDARD OF REVIEW

       {¶ 14} Canal Winchester's first assignment of error asserts that the trial court
abused its discretion when it applied the incorrect standard of review. Specifically, Canal
Winchester asserts that by reversing Council's decision because the 2012 application
No. 14AP-89                                                                              9


was "essentially the same" as the 2008 application, the trial court failed to determine
whether Council's denial of the 2012 application was supported by a preponderance of
reliable, substantial and probative evidence. (Decision and Entry, 1.) We agree. Because
the trial court failed to utilize the correct standard of review, we must reverse the trial
court's order.
       {¶ 15} Rockford appealed Council's decision to the environmental division of the
municipal court pursuant to R.C. 2506.01. R.C. 1901.183(I) grants jurisdiction to the
environmental division of a municipal court to hear appeals from "any final order of any
* * * commission * * * that relates to a local building, * * * zoning * * * ordinance, or
regulation, in the same manner and to the same extent as in similar appeals in the court
of common pleas." R.C. 2506.01(A) states that "every final order * * * or decision of any
* * * commission, department, or other division of any political subdivision of the state
may be reviewed by the court of common pleas of the county in which the principal
office of the political subdivision is located."
       {¶ 16} R.C. 2506.04 provides the standard of review for appeals taken pursuant
to R.C. 2506.01. It provides as follows:
                 If an appeal is taken in relation to a final order, adjudication,
                 or decision covered by division (A) of section 2506.01 of the
                 Revised Code, the court 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. Consistent with its findings, the court may affirm,
                 reverse, vacate, or modify the order, adjudication, or decision,
                 or remand the cause to the officer or body appealed from with
                 instructions to enter an order, adjudication, or decision
                 consistent with the findings or opinion of the court. The
                 judgment of the court may be appealed by any party on
                 questions of law as provided in the Rules of Appellate
                 Procedure and, to the extent not in conflict with those rules,
                 Chapter 2505. of the Revised Code.

       {¶ 17} The Supreme Court of Ohio has explained that, in an R.C. Chapter 2506
administrative appeal, the trial court must consider "the 'whole record,' including any new
or additional evidence admitted under R.C. 2506.03, and determine[] whether the
administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or
No. 14AP-89                                                                               10


unsupported by the preponderance of substantial, reliable, and probative evidence."
Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147 (2000). While the
trial court may not "blatantly substitute its judgment for that of the agency, especially in
areas of administrative expertise," the trial court is charged with "weigh[ing] the
evidence in the record * * * to determine whether there exists a preponderance of reliable,
probative and substantial evidence to support the agency decision." Dudukovich v. Lorain
Metro. Housing Auth., 58 Ohio St.2d 202, 207 (1979).
       {¶ 18} The standard of review to be applied by the court of appeals is more
limited in scope. Henley at 147. R.C. 2506.04 " '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
substantial, reliable and probative evidence," as is granted to the common pleas court.' "
Id., quoting Kisil v. Sandusky, 12 Ohio St. 3d 30, 34 (1984) , fn. 4. Within the ambit of
" 'questions of law' " for appellate court review in administrative appeals under R.C.
2506.04 would be an abuse of discretion by the trial court. Id. at 148, quoting Kisil at fn.
4. Thus, while " '[i]t is incumbent on the trial court to examine the evidence,' " such is
not the charge of the court of appeals. Id., quoting Lorain City School Dist. Bd. of Edn.
v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261 (1988). An appellate court may not
substitute its judgment for that of the administrative agency or the trial court absent the
approved criteria for doing so. Id.
       {¶ 19} Although the trial court stated the correct standard of review in its
decision, the trial court failed to utilize the correct standard of review. Council denied
the 2012 application because it found that Rockford had misrepresented the status of
Cormorant Drive as being a public right-of-way. In the alternative, Council also stated
that the 2012 application violated the SCPZ and two of the 1990 Ordinances. Rockford
addressed all of these issues in its trial court brief, and specifically asserted that it had
never designated Cormorant Drive as either a private or public right-of-way on the 2012
application. The trial court failed to review the record and determine whether a
preponderance of substantial, reliable, and probative evidence supported Council's
determination that Rockford had misrepresented the status of Cormorant Drive, or
whether a preponderance of substantial, reliable, and probative evidence supported the
No. 14AP-89                                                                                  11


alleged violations of the SCPZ and the 1990 Ordinances. Instead, the trial court reversed
Council's decision upon finding that the 2012 application was essentially the same as the
2008 application.
       {¶ 20} Rockford asserts that the trial court's order was not in error, because the
doctrine of res judicata obligated Canal Winchester to approve the 2012 application. We
disagree. In Ohio, the doctrine of res judicata encompasses both issue preclusion, also
known as collateral estoppel, and claim preclusion. State ex rel. Nickoli v. Erie
MetroParks, 124 Ohio St.3d 449, 2010-Ohio-606, ¶ 21. " 'Claim preclusion prevents
subsequent actions, by the same parties or their privies, based upon any claim arising out
of a transaction that was the subject matter of a previous action.' " Nickoli at ¶ 21, quoting
Ft. Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d 392, 395
(1998). Under claim preclusion, a previous judgment is conclusive as to all claims that
were or might have been litigated in the first action. State ex rel. Schachter v. Ohio Pub.
Emps. Retirement Bd., 121 Ohio St.3d 526, 2009-Ohio-1704, ¶ 27. The doctrine of issue
preclusion provides that " 'a fact or a point that was actually and directly at issue in a
previous action, and was passed upon and determined by a court of competent
jurisdiction, may not be drawn into question in a subsequent action between the same
parties or their privies, whether the cause of action in the two actions be identical or
different.' " State ex rel. Davis v. Pub. Emps. Retirement Bd., 120 Ohio St.3d 386, 2008-
Ohio-6254, ¶ 27, quoting Ft. Frye Teachers Assn. at 395. Essentially, issue preclusion
prevents the re-litigation of facts and issues that the parties or their privies fully litigated
in a previous case. Glidden Co. v. Lumbermans Mut. Cas. Co., 112 Ohio St.3d 470,
2006-Ohio-6553, ¶ 44.
       {¶ 21} Res judicata may apply to administrative proceedings which are of a judicial
nature, where the parties have had an ample opportunity to litigate the issues involved in
the proceedings. Cleveland v. Assad, 10th Dist. No. 07AP-152, 2007-Ohio-4672, ¶ 9.
Compare Lamar Outdoor Advertising v. City of Dayton Bd. of Zoning Appeals, 12th Dist.
No. 18902, 2002-Ohio-3159, ¶ 18 (noting that res judicata could not apply to a notice
from a zoning inspector, as the notice was "a purely administrative determination, made
by an administrative officer ex parte"); Set Products, Inc. v. Bainbridge Twp. Bd. of
Zoning Appeals, 31 Ohio St.3d 260 (1987), syllabus (noting that "[r]es judicata will not
No. 14AP-89                                                                              12


bar the grant of an application for a [zoning] variance, after denial of a prior application
covering the same property, upon a showing of changed of circumstances").
       {¶ 22} Rockford asserts that this court "found that the 2008 Plan met the
requirements of the [Ordinances] that applied and remanded it for approval" in Rockford
I. (Appellee's brief, 32.) Rockford thus argues that because the "2012 Plan now before this
Court is identical to the 2008 Plan," Canal Winchester "was required to approve the 2012
Plan." (Appellee's brief, 32-33.) However, this court never found that the 2008 plan met
all of the applicable requirements of the Ordinances. Rather, we found no evidence to
support Council's denial of the 2008 application, as the only evidence in the record to
support the denial was comments made by concerned citizens during public hearings on
the 2008 application. Although we noted that the "P & Z Administrator stated to Council,
at the hearing on Rockford's appeal, that Rockford's 2008 application, in fact, complied
with all applicable requirements," we did not find that the 2008 application actually
satisfied all of the applicable requirements of Ordinance 1173, the preliminary plan or the
development text. Id. at ¶ 34. See id. at ¶ 23, quoting Ordinance 1173.06(b)(3) (noting that
"[i]f the development plan complies with [Ordinance] 1173, the previously approved
preliminary plan, and the development standards text, P & Z 'shall approve the plan' ").
Accordingly, whether the 2008 plan satisfied all of the applicable Ordinances was not an
issue which was determined by this court in Rockford I.
       {¶ 23} Moreover, because Rockford allowed its approved 2008 application to
expire, Rockford could not use that prior approval to force Canal Winchester to approve
the 2012 application. Ordinance 1173.06(c) provides that any development "must be
commenced within two years" of P & Z approval; "otherwise, no development of the land
shall take place until a new Development Plan is approved pursuant to this section."
Ordinance 1173.05(b) sets forth the basis for approval of a development plan, and
Ordinance 1173.06(b) sets forth the procedures for approval of a development plan.
Neither Ordinance allows for approval of a development plan based solely on a prior
approval of a similar plan. Thus, neither P & Z nor Council could have approved the 2012
application simply because it was similar to the 2008 application. By allowing the
approved 2008 application to expire, Rockford became obligated pursuant to Ordinance
1173.06(c) to submit a new development plan and go through the entire development plan
No. 14AP-89                                                                               13


approval process anew. Accordingly, Canal Winchester was entitled to deny the 2012
application if it found that the 2012 application violated Ordinance 1173, the previously
approved preliminary plan, or the development standards text, regardless of Canal
Winchester's findings on the 2008 application. Because Rockford allowed the approved
2008 application to expire, and the 2012 application was a new development plan which
had to be approved on its own merits, the instant appeal does not concern the same
transaction which was at issue in Rockford I.
       {¶ 24} Although the trial court stated in its decision that it had considered the
whole record, our review indicates otherwise. The trial court simply compared the 2008
application to the 2012 application, and reversed Council's decision because the 2012
application was similar to the 2008 application. As such, the trial court abandoned its
duty to consider the whole record and determine whether a preponderance of
substantial, probative, and reliable evidence supported Council's decision to deny the
2012 application based on the alleged misrepresentation of Cormorant Drive, or in the
alternative because of the alleged violations of the SCPZ and the 1990 Ordinances.
       {¶ 25} Accordingly, we find the trial court abused its discretion as it did not apply
the correct standard of review. Because "[t]he matter of what standard of review is
appropriate in any particular case is a question of law," where the trial court utilizes "the
incorrect standard of review in reaching its decision, its judgment may not stand." Copley
Twp. Bd. of Trustees v. Lorenzetti, 146 Ohio App.3d 450, 454 (9th Dist.2001). See also
White v. Summit Cty., 9th Dist. No. 21152, 2003-Ohio-1807, ¶ 8-11 (noting that, as the
"court of common pleas utilized the incorrect standard of review in reaching its decision,"
its decision was "erroneous as a matter of law, and its judgment may not stand"); Athenry
Shoppers Ltd. v. Planning and Zoning Comm., 10th Dist. No. 08AP-742, 2009-Ohio-
2230, ¶ 22, 26 (noting that "[a]lthough the trial court expressly identified the R.C.
2506.04 standard of review, the trial court did not consider all the evidence in the record
in determining that the preponderance of reliable, probative, and substantial evidence did
not support the commission's decision," and accordingly the trial court "erred as a matter
of law"); South Park, Ltd. v. Avon City Council, 9th Dist. No. 04CA008558, 2005-Ohio-
2153, ¶ 7; Glencairn Corp. v. Richfield Twp., 9th Dist. No. 22209, 2005-Ohio-1463, ¶ 13-
14.
No. 14AP-89                                                                              14


       {¶ 26} As the trial court failed to determine, based on the record, whether Council's
order was unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by
the preponderance of substantial, reliable, and probative evidence, the trial court's
decision is erroneous as a matter of law and cannot stand. On remand, the trial court
must review the entire record and determine whether Rockford misrepresented
Cormorant Drive as a public right-of-way on the 2012 application and, if Rockford did
misrepresent the status of Cormorant Drive, whether that misrepresentation was an
adequate ground upon which to deny the 2012 application. If the trial court finds that a
preponderance of substantial, reliable, and probative evidence does not support Council's
decision to deny the 2012 application based on the status of Cormorant Drive, then the
trial court must further determine whether the 2012 application violates the SCPZ and the
cited 1990 Ordinances, and if it does violate those provisions, whether those violations
were adequate grounds upon which to deny the 2012 application.
       {¶ 27} Based on the foregoing, Canal Winchester's first assignment of error is
sustained. Our ruling on Canal Winchester's first assignment of error renders its second
assignment of error moot.
IV. DISPOSITION
       {¶ 28} Having sustained Canal Winchester's first assignment of error, thereby
rendering Canal Winchester's second assignment of error moot, we reverse the judgment
of the Franklin County Municipal Court, Environmental Division, and remand the matter
to the trial court for proceedings consistent with this decision.
                                                       Judgment reversed; case remanded.
                             TYACK and BROWN, JJ., concur.
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