[Cite as E. Main St. Lofts v. Kent Planning Comm., 2019-Ohio-5312.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


 EAST MAIN STREET LOFTS,                                :             OPINION

                  Appellant,                            :
                                                                      CASE NO. 2019-P-0069
         - vs -                                         :

 THE CITY OF KENT PLANNING                              :
 COMMISSION,
                                                        :
                  Appellee.


 Civil Appeal from the Portage County Court of Common Pleas, Case No. 2017 CV 0297.

 Judgment: Affirmed.


 Elisa P. Pizzino, 697 West Market Street, Suite 102, Akron, OH 44303; Warner
 Mendenhall and Logan Trombley, The Law Offices of Warner Mendenhall, 190 North
 Union Street, Suite 201, Akron, OH 44304 (For Appellant).

 Eric R. Fink, 11 River Street, Kent, OH 44240 (For Appellee).



TIMOTHY P. CANNON, J.

        {¶1}      Appellant, Hallmark Campus Communities d.b.a. East Main Street Lofts

(“EMSL”), appeals from the May 7, 2019 judgment entry of the Portage County Court of

Common Pleas, affirming a decision of the City of Kent Planning Commission

(“Commission”) to deny a conditional zoning permit to construct the East Main Street

Lofts. For the following reasons, the trial court’s judgment is affirmed.
      {¶2}   The factual circumstances leading to the present appeal were articulated in

the previous appeal, East Main Street Lofts v. City of Kent Planning Comm., 11th Dist.

Portage No. 2018-P-0004, 2018-Ohio-5342, and are restated in relevant part as follows:

             On August 19, 2015, Hallmark Campus Communities (“Developer”),
             a real estate development company in Columbus, Ohio, applied for
             a site plan review and conditional zoning permit to construct the
             EMSL, a multi-family residential complex, in the city of Kent, Ohio.
             The development’s parking lot was to be constructed in neighboring
             Franklin Township. After Franklin Township denied the parking plan,
             the Developer submitted a revised application on August 26, 2016.
             The new plan placed the entire proposed development, which
             consists of two 4-story residential buildings, a parking lot, and a
             green area, in Kent. The size was reduced from 98 units of one- and
             two-bedroom apartments with a total of 362 beds to 94 units of one-
             and two-bedroom apartments with a total of 184 beds.

             The proposed development is primarily located in Kent’s
             “Commercial High Density Multifamily Residential” (“C-R”) district.
             Under Kent City Codified Ordinances (“KCO”) Section 1145.02(b)(3),
             multifamily dwellings are conditionally permitted in the C-R district
             subject to the requirements set out in KCO Section 1171.01(a)(5),
             (9), (11), (22), (37), and (38).

             The following zoning districts border the proposed development:
             Kent’s C-R district to the north and northwest; Kent’s “Multifamily
             Residential” (“R-4”) district to the south and southwest; and Franklin
             Township’s “General Commercial” (“C-1”) district to the east.

             Holly Drive extends into the development from Horning Road. This
             access point is located in Kent’s R-4 district. Horning Road continues
             East into Franklin Township’s “Single Family Residential” (“R-1”)
             district. Franklin Township’s C-1 district sits between the
             development and the R-1 district. Several single-family homes are
             located along Horning Road.

             At the request of the Commission, the Developer hired “EMH & T” to
             generate a Traffic Impact Study. The Developer presented its
             proposal to the Commission on October 4, 2016. In February 2017,
             Kent’s city staff found the proposed development either met the
             requirements for a conditionally permitted use under KCO Section
             1171.01 or was granted a variance by the Board of Zoning Appeals.




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The Developer again presented its case to the Commission on
February 21, 2017. Prior to any discussion, an oath was
administered to those members of the audience who wished to be
heard. Thereafter, Ryan Pearson, a representative of the Developer,
reviewed the site plan and proposal for EMSL. He answered
questions from the commissioners about changes that were made to
the plan pursuant to the Traffic Impact Study. He explained the city’s
traffic engineer and the Developer’s traffic engineer were both
involved in making the changes.

Doug Bender, Senior Traffic Engineer with EMH & T, discussed the
Traffic Impact Study on behalf of the Developer. Mr. Bender
explained the Traffic Impact Study considered five intersections in
the area and that changes were made to the site plan based on the
recommendations of the study. The Traffic Impact Study states: “All
study area intersections are predicted to operate acceptably with
existing conditions for vehicular traffic in the 2018 Build condition.
Consequently, no off-site improvements are recommended at this
time. A site-related improvement at the site entrance of Holly Drive
is recommended to consist of:

      • Install pedestrian crosswalks on all three approaches to the
      Horning Road/Holly Drive intersection and a stop bar on the
      Holly Drive approach.

      • Construct pedestrian landings at each crosswalk location.

      • Improve the sidewalk along the west side of Holly Drive to
      provide an eight-foot wide path

      • Improve the site connection for pedestrians/bikes to the
      adjacent Holly Park apartments

No other site-related improvements are warranted or recommended.

Following Mr. Bender’s discussion, several residents of Horning
Road and owners of property on Horning Road, from both Kent and
Franklin Township, provided comment. They expressed concerns
regarding how the development would affect their neighborhood.
One resident indicated the development would be “significantly
overbearing to the existing R-1 neighborhood.” The residents
explained that increased population density resulting from the
development would change the character of the neighborhood and
contribute to traffic congestion, increased crime rates, blight,
invasion of privacy, and pollution. In support, several neighbors
referred to a “Comprehensive Community Housing Study and Needs



                              3
Analysis” (“Housing Study”) published in 2016, which, in part,
analyzed housing supply and demand in the city of Kent.

The residents also expressed doubt over the findings of the Traffic
Impact Study. One resident indicated he thought the study was
biased, and several residents contested the study’s findings. In
response to the concerns, Mr. Bender explained he had worked with
the city staff to set up the parameters for the study. He further
explained the procedures used in conducting the study and stated
that pedestrian volumes were included in the study. Mr. Pearson also
addressed the concerns, explaining the Developer was not trying to
address all the community’s issues with traffic but would make
improvements to address certain pedestrian and bike connections.

After the public comment, Jennifer Barone, development engineer
from the city of Kent, addressed the Commission and reviewed the
proposed plan. She explained that the Traffic Impact Study was
reviewed by the city’s traffic engineer and the city engineer, who
found the information in the study was acceptable. She further
explained the city had plans to address traffic issues in the area. She
stated the city staff found the Developer met the requirements of “the
zoning code * * * with the changes and the variances that were
granted.”

The commissioners engaged in discussion and directed questions to
Mr. Pearson. Following the discussion, they unanimously voted to
deny the Developer’s conditional zoning permit and site plan to
construct EMSL.

Although no written decision was issued by the Commission, the
verbatim transcript of the meeting includes the following discussion
from each commissioner regarding his or her reasons for denying the
permit.

       Ms. Daniels: * * * I have a couple of issues here. Number one
       * * * what’s happening here is Kent State University which is
       creating half of the problem and what’s happening here is * *
       * I would say the law enforcement, the Police Department.
       They are having so many problems and issues. * * * [T]he
       biggest problem I’m having with this * * * is * * * on this drawing
       here there’s * * * 10 developments in there and we haven’t
       done a housing study since 11-13-05. I can bring that in the
       housing study where * * * it just feels to me * * * I’m for
       business. I’m for development. I’m for all that but I’m just
       feeling that this little area is overdone. You know. The other
       thing I’m having here is Kent, Ravenna, and Franklin



                                4
Township whatever is still the city. I mean we still need to be
compassionate with the people. And my issue should not be
* * * disturbing to existing or future neighborhood use and shall
not be detrimental to property in the immediate vicinity or the
community as a whole. We already know there’s going to be
some issues here. So that’s my two cents. And I don’t have
anything more to say.

***

Mr. Clapper: [L]ike Ms. Daniels said, my biggest concern is
the impact on the neighborhood and the properties
surrounding it * * * how it’s going to affect the long term
citizens of Kent and the property of the people who live around
there.

***

Ms. Edwards: * * * So some of the things I looked at is * * *
they just published in 2017 enrollment status for Kent State
and the freshman, sophomore and junior classes * * * have all
decreased by 5.47% * * * so going back to the housing study,
and knowing that there’s going to be less students from the
feeder schools and that there are on-line courses now * * * My
question now is that enrollment is going to continue to trend
down? That is * * * a big concern for me. And then I also think
about the residential houses there and are the people going
to want to live there? Are those going to turn into rental
properties? So you start to think about * * * the whole
neighborhood * * * dynamics changing * * * so with that being
said, I also have a concern with the buildings * * * the size of
them and being that they are on the R-4 side of the property.
* * * [A]nd its detrimental to the R-4 properties that are there
and so I have a hard time with it being harmonious with the
existing * * * surroundings as well.

***

The Kent R-4 properties * * * So those are some of * * * my
thoughts on that. Anybody else from the Planning
Commission have any further comments or questions?

Mr. Paino: Yeah * * * When I looked at the drawings over the
weekend * * * I said these are nice looking buildings * * *
They’re actually very nice looking buildings and I don’t
necessarily object to the overall site plan but I do object to



                        5
       where the buildings are located. I think they should be away
       from the residential area. I also think that the vehicular traffic
       should go to East Main Street * * * I think that Franklin
       Township should work with these developers in order to make
       that a reality because the reality is with the number of Franklin
       Township people in here and it’s Franklin Township’s problem
       * * * to update their roads so.

       ***

       Mr. Gargan: I felt that it would be detrimental to the
       surrounding area. I also considered the housing study the City
       of Kent did. And I think we over built a number of multifamily
       or student housing at the current rate.

       ***

       And I think they underestimated the impact of the traffic
       because I know the * * * Loop-Horning Road intersection is
       the worse intersection of Kent. I think that was totally
       downplayed by the Traffic Study.

       Ms. Daniels: * * * They’re building nice buildings, but * * * just
       the impact to the neighborhood. I mean I wouldn’t like to have
       a building looking down on me and I have small children[.]

On March 23, 2017, the Developer filed in the Portage County Court
of Common Pleas a notice of administrative appeal from the
Commission’s decision.

On October 24, 2017, the Developer filed a “Motion to Supplement
the Record” pursuant to R.C. 2506.03 on the grounds that the
transcript did not contain all the evidence. The motion was granted,
and both parties subsequently filed briefs.

On December 21, 2017, the trial court entered a “Judgment Entry on
Administrative Appeal pursuant to R.C. 2506.” The court stated it had
“reviewed the pleadings, the record, and the supplemented evidence
to the record.” The trial court stated the Commission “denied the
application and site plan alleging it violated” KCO Section
1107.05(a)(2), (3), (4), and (6).

The trial court’s judgment entry further states:

       The Court finds that the City of Kent Planning Commission’s
       reasons for denying the site plan for violations of KCO



                               6
                       1107.05(A)(3)(4) and (6) were not supported by competent
                       and credible evidence due to its reliance on unsubstantiated
                       and speculative public comments over expert evidence and
                       the features of the site plan.

                       The Court further finds that the City of Kent Planning
                       Commission’s reasons for denying the site plan for violations
                       of KCO 1107.05(A)(2)(3)(4) was arbitrary due to reliance on
                       the public comments of a minority of surrounding property
                       owners and non-residents to the detriment of the majority of
                       surrounding property owners and residents.

                       The Court further finds that the City of Kent Planning
                       Commission’s reason for denying the site plan for violations
                       of KCO 1107.05(A)(4) was illegal due to reliance on the
                       economic conclusions of a housing market study rather than
                       consider health, safety, welfare and morals as required by
                       zoning law.

                The trial court ordered that “Appellee’s denial of the Appellant’s site
                plan on February 21, 2017, is set aside and held for naught.” The
                trial court further ordered that the site plan be approved by the
                Commission.

                On January 4, 2018, the Commission filed a “Motion to Reconsider
                Based Upon New Case Law.” The Developer filed a response. The
                trial court did not rule on the motion.

Id. at ¶2-18.

       {¶3}     On appeal by the Commission, we affirmed in part, and reversed in part, the

ruling of the trial court. The matter was remanded for the trial court to consider the public

comments and Housing Study, in addition to the record filed therein. Id. at ¶56. After

considering the public comments and Housing Study as directed, and the other

information contained in the record, the trial court affirmed the decision of the Commission

to deny the permit.

       {¶4}     EMSL noticed a timely appeal from the trial court’s May 7, 2019 judgment

entry and raises two assignments of error which we consider together:




                                               7
              [1.] The trial court abused its discretion in finding the City of Kent
              Planning Commission’s denial of Appellant’s site plan under KCO
              1107.05(a)(3) was supported by a preponderance of reliable,
              probative and substantial evidence.

              [2.] The trial court abused its discretion in finding the City of Kent
              Planning Commission’s denial of Appellant’s site plan under KCO
              1107.05(a)(4) was supported by a preponderance of reliable,
              probative and substantial evidence.

       {¶5}   Upon review of an administrative appeal, a court of common pleas

considers whether the decision to grant or deny a certificate “is unconstitutional, illegal,

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

reliable, and probative evidence on the whole record.” R.C. 2506.04. Thereafter, an

appellate court’s review of the judgment of the trial court is more limited than that of the

court of common pleas. Jones v. Hubbard Twp. Bd. of Zoning Appeals, 11th Dist.

Trumbull No. 2014-T-0041, 2015-Ohio-2300, ¶7, citing Henley v. Youngstown Bd. of

Zoning Appeals, 90 Ohio St.3d 142, 147 (2000). “This court’s review is whether, as a

matter of law, the decision of the court of common pleas is supported by a preponderance

of reliable, probative, and substantial evidence.” Id., citing Kisil v. Sandusky, 12 Ohio

St.3d 30, 34 (1984). “‘While the court of common pleas has the power to weigh the

evidence, an appellate court is limited to reviewing the judgment of the common pleas

court strictly on questions of law.’” Carrolls Corp. v Willoughby Bd. of Zoning Appeals,

11th Dist. Lake No. 2005-L-110, 2006-Ohio-3411, ¶10, quoting Akwen, Ltd. v. Ravenna

Zoning Bd. of Appeals, 4th Dist. Portage No. 2001-P-0029, 2002-Ohio-1475, ¶17.

       {¶6}   The Supreme Court of Ohio, in Kisil, elaborated:

              This statute [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



                                             8
              evidence,’ as is granted to the common pleas court. Within the ambit
              of ‘questions of law’ for appellate court review would be abuse of
              discretion by the common pleas court.

Kisil, supra, at 34, fn. 4 (emphasis added).

       {¶7}   “[T]he common pleas court ‘is bound by the nature of the administrative

proceedings to presume that the decision of the administrative agency is reasonable and

valid[,]’ and the burden of demonstrating the invalidity of the agency’s decision rests with

the contesting party.” Battaglia v. Newbury Twp. Bd. of Zoning Appeals, 11th Dist.

Geauga No. 99-G-2256, 2000 WL 1804344, *3 (Dec. 8, 2000), quoting Community

Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 66 Ohio St.3d 452, 456

(1993). Further, a trier of fact has no duty to accept evidence, expert or otherwise, as

persuasive solely because it was not contradicted or challenged. McWreath v. Ross, 11th

Dist. Trumbull No. 2008-T-0035, 2008-Ohio-5855, ¶85, citing McCall v. Mareino, 138

Ohio App.3d 794, 799 (8th Dist.2000) and In re Baby Girl Doe, 149 Ohio App.3d 717,

2002-Ohio-4470, ¶75 (6th Dist.).

       {¶8}   However, “[w]hile the court of common pleas is required to examine the

evidence, the court of appeals may not weigh the evidence.” Shelly Materials, Inc. v. City

of Streetsboro Planning and Zoning Comm., Sup.Ct. Slip Opinion No. 2019-Ohio-4499,

¶17, citing Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125,

2014-Ohio-4650, ¶14. “Apart from deciding purely legal issues, the court of appeals can

determine whether the court of common pleas abused its discretion, which in this context

means reviewing whether the lower court abused its discretion in deciding that an

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




                                               9
evidence.” Id., citing Boice v. Ottawa Hills, 137 Ohio St.3d 412, 2013-Ohio-4769, ¶7,

citing Kisil, supra, at 34.

       {¶9}    An abuse of discretion is the trial court’s “‘failure to exercise sound,

reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54,

2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004).

       {¶10} Pursuant to KCO Section 1107.04, the Commission “shall hold a public

hearing to review the proposed development as presented on the submitted application,

plans and specifications in accordance with the standards established in this Zoning

Ordinance.” In its evaluation of the project, the Commission may consider “comments

from the administration or the general public[.]” The Commission “may instruct the

applicant or the administration to conduct additional studies, or seek expert advice.” KCO

Section 1107.04(a). Further, “[w]henever it feels necessary, the Commission may attach

conditions to the approval * * * in order to insure the health, safety or welfare of the public

as well as the integrity of an existing neighborhood in proximity to the development.” KCO

Section 1107.04.

       {¶11} KCO Section 1107.05 provides that an applicant for a conditional zoning

permit must “establish by clear and convincing evidence that the general standards of this

Zoning Ordinance, this Chapter and the specific standards pertinent to each proposed

use shall be met throughout the period of the proposed use.” KCO Section 1107.05

further provides, in pertinent part to the present appeal:

               The Planning Commission shall determine compliance or
               noncompliance and shall insure that the general standards, the
               specific standards and other terms of this Ordinance pertinent to the
               proposed use shall be satisfied by the completion and operation of
               the proposed development.




                                              10
              (a)    General Standards: The Planning Commission shall review
              the particular facts and circumstances of each proposed use in terms
              of the following standards and shall find that such use of the
              proposed location:

                     ***

                     (3) Shall not be hazardous or disturbing to existing or future
                     neighboring uses;

                     (4) Shall not be detrimental to property in the immediate
                     vicinity or to the community as a whole;

                     ***

       {¶12} The parties do not dispute that EMSL was required to satisfy each of the

standards set forth in KCO Sections 1107.05(a)(1) through (6) to obtain a conditional

zoning permit. The commissioners unanimously agreed the standards the Developer

failed to meet were those set forth in KCO Sections 1107.05(a)(3) and (4). KCO Section

1107.05(a)(4) is dispositive in the present matter. As previously noted, the trial court fully

considered the public comments and the Housing Study before concluding, in agreement

with the Commission, that the project would be “detrimental to property in the immediate

vicinity or to the community as a whole.” Although there was expert testimony to the

contrary, the Commission and the trial court were within their discretion to determine it to

be less credible than the public comments and Housing Study.

       {¶13} While EMSL argued during its presentation to the Commission that the

modified proposal was no longer a rent-per-bed model and would be targeted towards

young graduates and professionals in need of low-to-moderate income housing, the

semantical categorization is irrelevant. The important determination to be made was

whether the proposed housing, as demonstrated to the Commission and regardless of

categorization, should be approved. The Commission assessed the testimony, data, and



                                             11
evidence presented, and it determined that denial was appropriate based on KCO

Sections 1107.05(a)(3) and (4). Because EMSL failed to satisfy each of the standards

set forth in KCO Sections 1107.05(a)(1) through (6), denial of the permit was appropriate.

       {¶14} On remand, the trial court properly considered the Housing Study, public

comment, and the record before concluding that “there is competent, credible evidence

supporting the Planning Commission’s decision.”            This decision was based on

conclusions that the Housing Study did not support the proposed conditional use permit,

and that public sentiment was opposed to the project. These findings are supported by

the record and are not erroneous as a matter of law. As the Ohio Supreme Court has

stated, it would be inappropriate for this court to weigh the evidence—inter alia, the

Housing Study, public comment, and the record—which was properly considered by the

trial court. See Shelly Materials, supra, at ¶17.

       {¶15} EMSL argues that the law of the case doctrine prevents consideration of the

public comment; however, this is a misconstruction of our previous holding. While we

previously stated that, considered alone, “[w]e do not determine that the public comment

rose to the level of competent, credible evidence[,]” our directive to the trial court

specifically required it to “properly take into account the public comments and Housing

Study.” Id. at ¶34 & ¶56 (emphasis added). When the public comments are considered

in light of the findings of the Housing Study, they provide competent, credible evidence in

favor of denial of the permit.

       {¶16} Based on a review of the public comments, the Housing Study, and the

record of the proceedings, the trial court did not err, as a matter of law, in concluding that

the preponderance of the evidence supported the Commission’s decision to deny the




                                             12
permit on the basis that it would be detrimental to property in the immediate vicinity or to

the community as a whole under KCO Section 1107.05(a)(4).

       {¶17} EMSL’s first and second assignments of error have no merit.

       {¶18} The judgment of the Portage County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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