[Cite as Bainbridge v. Avon Lake, 2014-Ohio-4261.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

TIMOTHY BAINBRIDGE, et al.                                C.A. No.    14CA010524

        Appellees

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
AVON LAKE OHIO (CITY OF)                                  COURT OF COMMON PLEAS
                                                          COUNTY OF LORAIN, OHIO
        Appellant                                         CASE No.   13CV179987

                                DECISION AND JOURNAL ENTRY

Dated: September 29, 2014



        HENSAL, Judge.

        {¶1}    Appellant, the City of Avon Lake, Ohio Planning Department, appeals from a

judgment of the Lorain County Court of Common Pleas. This Court affirms.

                                                     I.

        {¶2}    Appellees, Timothy and Mary Ann Bainbridge, are the owners of three vacant

parcels in the Belmar Beach Subdivision in Avon Lake, Ohio. The parcels form a corner lot that

is bordered on the east by Richland Drive, an improved street, and on the south by Robinwood

Avenue, an unimproved street that currently exists only as a stub street. Robinwood Avenue

extends only so far as to border one of the three parcels owned by the Bainbridges.

        {¶3}    While in the process of listing the parcels for sale, the Bainbridges discovered that

Section 1220.06 of the Avon Lake Planning and Zoning Code required that, in order to build a

structure on the parcels, they would be required to pay for the extension of Robinwood Avenue

so that it would run the length of their property and install both sidewalks and utility service.
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They maintain that these requirements present a great financial burden which renders the parcels

unmarketable. The Bainbridges sought a waiver from the requirements of Section 1220.06 so

that a potential buyer could construct a home on the parcels with a driveway that accessed

Richland Drive without having to extend Robinwood Avenue and make the required

improvements.

       {¶4}     On March 5, 2013, the Bainbridges’ waiver request was considered by the Avon

Lake Municipal Planning Commission at its public meeting. A majority of the Commission

voted against granting the waiver. The Bainbridges appealed to the Lorain County Court of

Common Pleas, which reversed the Commission’s decision. Appellant has appealed raising one

assignment of error.

                                                II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED BY FINDING THAT THE ORDER OF CITY OF
       AVON LAKE, OHIO PLANNING COMMISSION (THE “PLANNING
       COMMISSION”) DENYING THE WAIVER FROM THE CITY’S BUILDING
       REQUIREMENTS REQUESTED BY TIMOTHY BAINBRIDGE AND MARY
       ANN BAINBRIDGE (THE “BAINBRIDGES”) “WAS ‘ARBITRARY,
       CAPRICIOUS, UNREASONABLE OR UNSUPPORTED BY THE
       PREPONDERANCE OF THE SUBSTANTIAL, RELIABLE AND PROBATIVE
       EVIDENCE ON THE WHOLE RECORD.’”

       {¶5}     Appellant argues that the trial court erred in reversing the Planning Commission’s

decision as the Bainbridges failed to satisfy their burden of proof in demonstrating that they were

entitled to a waiver of the Section 1220.06 improvement requirements. Specifically, Appellant

maintains that the Bainbridges presented no substantial, reliable and probative evidence in

support of a waiver because their request was only advanced through the oral arguments of legal

counsel, who allegedly was not sworn in as a witness at the public meeting. This Court disagrees.
                                                3


       {¶6}    Pursuant to Revised Code Section 2506.04, a common pleas court examining an

appeal from a municipal planning commission’s decision “may find that the * * * decision is

unconstitutional,   illegal,   arbitrary, capricious, unreasonable, or unsupported by the

preponderance of substantial, reliable, and probative evidence on the whole record.” Id. The

common pleas court may affirm, reverse, vacate, or modify the commission’s decision in

accordance with its findings. Id.; Frantz v. Ohio Planning Comm. of Wooster, 9th Dist. Wayne

No. 12CA0025, 2013-Ohio-521, ¶ 6. Section 2506.04 further provides that “[t]he judgment of

the [common pleas] court may be appealed * * * 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.”

       {¶7}    In Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142 (2000), the

Ohio Supreme Court clarified that “[t]he standard of review to be applied by the court of appeals

in an R.C. 2506.04 appeal is ‘more limited in scope’” than the standard of review applied by the

trial court. (Emphasis deleted.) Id. at 147, quoting Kisil v. Sandusky, 12 Ohio St.3d 30, 34

(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 substantial, reliable and probative evidence,’ as granted to

the common pleas court.” Id., quoting Kisil at fn. 4

       It is incumbent on the trial court to examine the evidence. Such is not the charge
       of the appellate court. * * * The fact that the court of appeals * * * might have
       arrived at a different conclusion than the administrative agency is immaterial.
       Appellate courts must not substitute their judgment for those of an administrative
       agency or a trial court absent the approved criteria for doing so.

Id., quoting Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257,

261 (1988). “Whether the trial court abused its discretion is ‘[w]ithin the ambit of questions of
                                                  4


law for appellate court review.’” Lee v. Lafayette Twp. Bd. of Zoning Appeals, 193 Ohio App.3d

795, 2011-Ohio-2086, ¶ 8 (9th Dist.), quoting Kisil at fn. 4. An abuse of discretion “implies that

the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983).

       {¶8}    Chapter 1220 of the Avon Lake Planning and Zoning Code sets forth certain

design standards for subdivisions. Section 1220.06 provides that “[a]ll pavements, sidewalks,

sewers and waterlines shall be extended to all boundary lines of the subdivision.” The parties

agree that this provision requires the Bainbridges, or any future owner(s), who wish to develop

the three parcels, to pay for and arrange the extension of Robinwood Avenue so that it runs the

length of the properties’ boundaries and install sidewalks and utilities.

       {¶9}    The Bainbridges requested a waiver under Section 1216.11 from the application

of Section 1220.06 to future development of their three parcels. Section 1216.11 authorizes the

Planning Commission to grant a waiver from any Chapter 1220 design standard when it

concludes that undue hardship may result from strict compliance with the Chapter. See Section

1216.11 of the Codified Ordinances of the City of Avon Lake. Section 1216.11(b) directs “the

developer” to submit an application in writing at the time that the preliminary plan is submitted

to the Planning Commission for approval. The application must “state fully the grounds for the

application and all the facts relied upon by the petitioner.” See Id. at Section 1216.11(b).

       {¶10} The Bainbridges submitted their application for a waiver on February 6, 2013.

Attached to the application was correspondence from them which stated that they purchased the

property in 2005 with the intention of building a home. According to them, they were unaware

of the Section 1220.06 requirements at the time they purchased the land. The Bainbridges

explained in their letter that they learned about the requirements after deciding not to build the
                                                 5


home and listing the property for sale. They wrote that, in order to build a home on the property,

they would have to pay to extend Robinwood Avenue 118 feet, install water, gas, sanitary and

storm sewer utility lines on the extended street, and provide adequate street lighting. The

Bainbridges stated that the Section 1220.06 requirements were an “insurmountable expense,”

“totally absurd,” and an “overwhelming hardship.”

       {¶11} Also attached to the application was correspondence from the Bainbridges’ real

estate agent, Jack Kinsner, which indicated there was a potential buyer for the property. He

opined that Section 1220.06 appears to apply only to land developers.          According to Mr.

Kinsner, the estimated cost of making the necessary improvements was $94,400, thus precluding

“anyone from ever improving” the parcels. He further estimated that the Bainbridges would only

receive a net profit of $52,500 upon sale of the property.

       {¶12} The application was considered by the Planning Commission at its March 5, 2013,

regular meeting.    Prior to considering any of the new items on its agenda, including the

Bainbridges’ application, the chairman requested that anyone in attendance who may speak that

evening be sworn under oath.        The transcript of the meeting reflects that the oath was

administered by the law director but fails to provide the names of the persons to whom the oath

was administered.

       {¶13} The Bainbridges’ application was presented to the Planning Commission by their

legal counsel. He proffered several photographs and a hand-drawn map to illustrate the area in

question. Mrs. Bainbridge spoke briefly toward the end of the presentation concerning whether

she wished to have the matter tabled to allow for additional time to explore a potential resolution

with the law director prior to the Planning Commission taking a formal vote on the application.

She told the Planning Commission that Mr. Bainbridge had spoken with the Avon Lake engineer
                                                6


before purchasing the property. According to Mrs. Bainbridge, the engineer told her husband

that there were “no problems” and that they could build a home on the parcels. After the

Bainbridges’ counsel requested that the Planning Commission vote on the application rather than

table it, a majority of the Commission voted to deny the waiver.

       {¶14} The Bainbridges appealed the Planning Commission decision to the Lorain

County Court of Common Pleas. The record was transmitted to the court and consisted of the

waiver application and attendant attachments, the transcript of the meeting along with copies of

the exhibits presented by the Bainbridges’ counsel at the meeting, the meeting minutes, and staff

comments from various Avon Lake municipal departments concerning the request. Both parties

also submitted briefs in support of their arguments.

       {¶15} The common pleas court found that the Planning Commission’s “order” was

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

and probative evidence on the whole record” under Revised Code Section 2506.04. The court

then “granted” Mr. and Mrs. Bainbridge’s “brief” and reversed the Planning Commission’s

“order.”

       {¶16} The Appellant argues that Mr. and Mrs. Bainbridge presented no evidence in

support of their waiver request because, with the exception of Mrs. Bainbridge’s remarks, their

attorney did not question any witnesses and his comments constituted oral argument rather than

substantive evidence for the Planning Commission’s consideration. According to the Appellant,

the common pleas court erred in reversing the Planning Commission’s decision as there was no

substantial, reliable and probative evidence on the whole record to consider in accordance with

Section 2506.04. Mr. and Mrs. Bainbridge contend that they had no control over how the

Planning Commission conducted its meeting. They further argue that the Planning Commission
                                                 7


should not be allowed to benefit from its decision to consider the matter in an informal manner

rather than something more akin to a court trial. Finally, the Bainbridges argue that, if the

Appellant is correct that only Mrs. Bainbridge’s comments were considered as evidence, her

comments were not refuted and that the Appellant should be estopped from denying their waiver

request as they relied on the assurances from the Avon Lake engineer that they could construct a

home on the property.1

       {¶17} The Appellant has failed to cite this Court to the record in support of their

assertion that the Bainbridges’ attorney was not sworn under oath. See App.R. 16(A)(7). It is

unclear after reviewing the transcript of the Planning Commission meeting whether their attorney

was administered the oath prior to speaking on their behalf. The transcript reflects that, before

the Commission considered any matters on its agenda that night, the chairman stated that, “[i]f

you think you’re gonna (sic) speak tonight to any of the issues, you must be sworn in. If you’re

not sworn in, you can’t officially speak before [the] Planning Commission. So even if you think

you might speak, it’s best to stand now and be sworn in * * *.” The transcript next reflects that

the law director administered the oath. The transcript does not, however, reveal who took the

oath. Mr. and Mrs. Bainbridges’ appellate brief does not address whether their attorney was

sworn under oath prior to speaking at the meeting.

       {¶18} We also note that the transcript reveals that the Planning Commission neither

objected to the testimony allegedly given without an oath having been administered, nor sought

to correct the alleged deficiency by administering the oath to the attorney.           Under these


       1
          While we need not address this argument as it is not dispositive of the appeal, we note
that, “as a general rule, the principle of estoppel does not apply against a state or its agencies in
the exercise of a governmental function.” Hortman v. Miamisburg, 110 Ohio St.3d 194, 2006-
Ohio-4251, ¶ 25, quoting Ohio State Bd. of Pharmacy v. Frantz, 51 Ohio St.3d 143, 145-146
(1990).
                                                8


circumstances, the argument could be made that the Appellant forfeited any alleged error or even

invited the error by conducting its meeting the way it did. See Concerned Richfield Homeowners

v. Planning & Zoning Comm., 9th Dist. Summit No. 25033, 2010-Ohio-4095, ¶ 8. See also

Stores Realty Co. v. City of Cleveland, Bd. of Bldg. Standards and Bldg. Appeals, 41 Ohio St.2d

41, 43 (1975) (“Had appellee objected to the unsworn testimony during the hearing, there is little

doubt that the chairman would have sworn the witness.”).

       {¶19} Regardless of whether the Appellant forfeited the error, the transcript reflects that

the Planning Commission did not base its decision on a lack of evidence presented under oath.

Rather, most of the Planning Commission members were concerned about the impact on

surrounding property owners if it granted the Bainbridges a waiver and Robinwood Avenue was

later extended.

       {¶20} Given that there is no definitive evidence that the Bainbridges’ attorney was not

sworn under oath prior to presenting their waiver request, the fact that Appellant failed to object

to the alleged lack of sworn testimony or remedy the situation by placing the attorney under oath,

and the Planning Commission did not base its decision on a lack of sworn testimony, this Court

is not persuaded by the Appellant’s argument that there was no “substantial, reliable and

probative evidence on the whole record” for the trial court to consider in accordance with

Section 2506.04.

       {¶21} Appellant further argues that, notwithstanding its argument concerning the lack of

sworn testimony, the Bainbridges also failed to set forth sufficient evidence that their requested

waiver would not be injurious to surrounding property owners. Section 1216.11(a) of the

Planning and Zoning Code of the City of Avon Lake sets forth the standard for the Planning

Commission to use when presented with a waiver application and provides that,
                                                  9


       [i]n making its decision, the [Planning] Commission shall take into account the
       nature of the proposed use of land and the existing use of land in the vicinity, the
       number of persons to reside or work in the proposed subdivision and the probable
       effect of the proposed subdivision upon traffic conditions in the vicinity. No
       waiver shall be granted unless the [Planning] Commission finds that:

       (1) There are special circumstances or conditions affecting such property such
           that the strict application of these regulations would deprive the applicant of
           the reasonable use of his or her land.

       (2) The waiver is necessary for the preservation and enjoyment of a substantial
           property right of the petitioner.

       (3) The granting of the waiver will not be detrimental to the public welfare or
           injurious to other property in the territory in which such property is situated.

The Appellant maintains that the Bainbridges’ evidence concerning the third requirement of the

absence of a detrimental effect on the public welfare or injurious effect on other property owners

was speculative, based on their own unsupported opinion and not corroborated by any evidence.

       {¶22} The Bainbridges’ attorney argued at the meeting that, if Robinwood Avenue was

extended in the future, both the Bainbridges and the surrounding property owners would be

assessed their proportionate share of the cost at the time of the extension. He further maintained

that the Planning Commission had allowed a property owner at the opposite end of Robinwood

Avenue to build on his property in the same manner as proposed by the Bainbridges without

having to extend the street and utility lines the length of his property.

       {¶23} The transcript of the meeting reflects that most of the Planning Commission

members were concerned about the impact that the proposed waiver would have on neighboring

properties if Robinwood Avenue was subsequently extended. The comments from the members

opposing the waiver stemmed in part from similar situations in other parts of the city concerning

who was responsible for installing the improvements when the Planning Commission had

granted a waiver and a surrounding property owner later sought to develop his property. The
                                                 10


arguments at the meeting suggested that the Belmar Beach Subdivision is an older subdivision

and that the platted lots do not conform to the lot sizes under the existing planning and zoning

code. The Bainbridges maintained that it was unlikely any of the neighboring parcels on

Robinwood Avenue would ever develop given the passage of time and the nonconforming lot

size.   In addition, their attorney represented that many of the properties were owned by

individuals who also owned parcels on Redwood Boulevard, which runs parallel to Robinwood

Avenue to the north. He stated that these owners used their Robinwood Avenue parcels for the

purposes of extending their back yards. Even if an owner further down Robinwood Avenue

wanted to develop, the Bainbridges argued, he would only pay his proportionate share of the cost

of extending the street and the utilities and they would also be assessed at that time.

        {¶24} Given the arguments presented by both sides on the issue, this Court cannot

conclude that the trial court abused its discretion in reversing the Planning Commission’s

decision. The substance of the Appellant’s argument is that the Bainbridges did not satisfy their

burden of persuasion to prove that neither the general public nor surrounding property owners

would be harmed if their waiver was granted. As noted above, this Court’s scope of review is

limited. We do not have the same power granted to the trial court to weigh “the preponderance

of substantial, reliable and probative evidence.” Henley, 90 Ohio St.3d at 147, quoting Kisil, 12

Ohio St.3d 30 at fn. 4. The Appellant’s argument is asking this Court to weigh the evidence and

reverse the trial court on that basis.     Given our limited scope of review, the appellant’s

assignment of error is overruled.

                                                 III.

        {¶25} The Appellant’s assignment of error is overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.
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                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT


WHITMORE, J.
MOORE, J.
CONCUR.

APPEARANCES:

ABRAHAM LIEBERMAN, Attorney at Law, for Appellant.

KENNETH P. FRANKEL, Attorney at Law, for Appellee.
