Homewood Corp. v. Dublin

[Cite as Homewood Corp. v. Dublin, 2014-Ohio-845.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Homewood Corporation, :

Appellant-Appellant, :

v. : No. 13AP-261

(C.P.C. No. 09CVF-07-10631)

City of Dublin, Ohio et al., :

(REGULAR CALENDAR)

Appellees-Appellees. :

D E C I S I O N

Rendered on March 6, 2014

Goldman & Braunstein, LLP, William A. Goldman and

Michael Braunstein, for appellant.

Frost Brown Todd LLC, Stephen J. Smith, Jennifer D.

Readler and Stephen J. Smith, for appellees.

APPEAL from the Franklin County Court of Common Pleas

T. BRYANT, J.

{¶1} Appellant, Homewood Corporation ("Homewood"), appeals from a

Franklin County Court of Common Pleas decision affirming a decision of the City of

Dublin's Planning & Zoning Commission ("Commission"). The Commission had denied

Homewood's final development plan application. For the following reasons, we affirm

the common pleas court's decision.

{¶2} Homewood sought approval of its final development plan for a 110-unit

multi-family development in Subarea 3 of the Northeast Quadrant Planned Unit

Development District. The preliminary development plan for this area was approved in

1990. Homewood first submitted its informal application to the Commission in

November 2007. After changes were made, Homewood submitted its plan a second

time in July 2008. The formal final development plan was submitted on June 18, 2009.

No. 13AP-261 2

After a hearing and receiving public comments, the Commission denied the final

development plan application.

{¶3} Homewood appealed to the Franklin County Court of Common Pleas

pursuant to R.C. 2506.04. Homewood presented two arguments to the common pleas

court: 1) since the final development plan was drafted within the applicable zoning

codes, the Commission should have approved the plan, and 2) that the Commission's

use of the Plan Approval Criteria and the Land Use Principles were inappropriate and

led to the Commission acting in a legislative capacity rather than an administrative

capacity. Appellee responded that the Commission acted in an administrative capacity

only and applied the code already in existence.

{¶4} The common pleas court found that the Commission acted in an

administrative capacity and that the Commission reviewed Homewood's final

development plan within the constraints of the Dublin City Code and the record

supported the Commission's determination to deny Homewood's final development

plan.

{¶5} Homewood filed a timely notice of appeal to this court, assigning as error

the following:

The trial court erred as a matter of law because it failed to

consider the whole record when determining whether there

existed a preponderance of reliable, probative, and

substantial evidence to support the Commission's decision.

{¶6} In this court, Homewood argues that the common pleas court erred as a

matter of law because the common pleas court did not review the entire transcript of

proceedings from the June 18, 2009 hearing, and if it had done so, it would have found

that a preponderance of the evidence did not support the Commission's decision.

{¶7} R.C. 2506.01(A) provides that every final order of any commission of any

political division 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, as follows:

Except as otherwise provided in sections 2506.05 to

2506.08 of the Revised Code, and except as modified by this

section and sections 2506.02 to 2506.04 of the Revised

Code, every final order, adjudication, or decision of any

officer, tribunal, authority, board, bureau, commission,

department, or other division of any political subdivision of

the state may be reviewed by the court of common pleas of

No. 13AP-261 3

the county in which the principal office of the political

subdivision is located as provided in Chapter 2505. of the

Revised Code.

{¶8} R.C. 2506.04 provides the standard of review, 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.

{¶9} "Although a review under R.C. 2506.04 is not de novo, it often resembles a

de novo proceeding because the reviewing court weighs the evidence in the “whole

record” in determining whether the administrative decision is supported by the

preponderance of substantial, reliable, and probative evidence." Athenry Shoppers Ltd.

v. Planning & Zoning Comm. of Dublin, 10th Dist. No. 08AP-742, 2009-Ohio-2230, ¶

16, citing Dudukovich v. Lorain Metro. Housing Auth., 58 Ohio St.2d 202, 206-07

(1979). A court of appeals applies a more limited standard of review than a common

pleas court in an appeal pursuant to R.C. 2506.04. A court of appeals does not have the

same extensive power to weigh the evidence and the statute permits only a review on

questions of law. Athenry at ¶ 18.

{¶10} By the assignment of error, Homewood contends that the common pleas

court erred as a matter of law because it failed to consider the whole record when it

determined that the decision was supported by the preponderance of substantial,

reliable, and probative evidence. Homewood argues that the common pleas court did

not consider the whole record because it did not consider all the testimony at the

June 18, 2009 hearing.

{¶11} The first person to testify at the hearing was Jennifer Rauch, who was

employed by the Commission and she presented the planning commission's staff report,

No. 13AP-261 4

recommending disapproval. The staff of the Commission reviews applications and

prepares a report. Rauch testified that the staff's review of the final development plan

determined that the reluctance of the applicant to depart from the general theme design

and product mix envisioned for the project do not meet the applicable review criteria or

the Land Use Principles outlined in the community plan. The staff report provides that

the layout of the proposal is incompatible with the character of the area and fails to

comply with the review criteria because it (1) fails to provide usable open space and

adequate tree preservation measures, (2) there is a repetitive use of large building

footprints, (3) the layout is dominated by the vehicle, (4) there is a lack of a pedestrian

environment, and (5) there is an abrupt change in neighborhood character. (Tr. 5-7.)

{¶12} Rauch then testified regarding specific issues with the proposal. She

stated that the staff concerns were as follows:

{¶13} (1) The design results in a loss of over 2,000 inches of trees, or half of the

existing trees because the proposed development pattern features long wide footprints

with buildings and driveways spread across the site and it features three large retention

ponds. (Tr. 7-8.) A greater variety of building types that cluster would provide a

greater number of dwelling units in less space and protect more trees. (Tr. 8.)

{¶14} (2) The three large retention ponds dominate the open space so that there

was not much usable open space and the proposed open space did not meet Land Use

Principles 2, 3 and 10 because of the lack of relationship between the usable open space

and the location of the buildings. (Tr. 8.)

{¶15} (3) Moreover, the poor relationship created between the usable open space

and the location of the buildings discouraged a pedestrian environment. (Tr. 9.) The

vehicular design of the site, rather than a design focused on pedestrians distinguishes

the proposal from the surrounding neighborhood. Also, the safety of pedestrians is an

issue based on the design because of the small interrupted sidewalk segments, front-

loaded garages and driveways.

{¶16} (4) The staff was concerned that although the facade materials alternate

between units, this repetition over 19 buildings prevented the creation of a lasting and

high quality neighborhood. (Tr. 10.)

{¶17} (5) Finally, minimal green space and the landscaping and the overall

character, including the massing and size of the buildings creates a stark contrast to the

No. 13AP-261 5

existing open space and single family uses in the existing neighborhood. Thus, the staff

concluded that the proposal does not meet Land Use Principles 1, 2, 3, 7 and 10. It is

incompatible with the character of the area and fails to comply with the review criteria

for approval of a final development plan. (Tr. 12-13.)

{¶18} Ben Hale, Jr., the legal representation for the applicant testified next. He

gave a brief history of the project. Hale also indicated that the proposal deviated from

the approved architecture plan. Hale discussed the fact that Homewood hired one of the

foremost demographers on multi-family sites to study the site in June 2008. The

demographer rated the site the highest rated development in the area therefore,

Homewood believes the proposal meets the standards. (Tr. 19.) He stated that

Homewood is not required to follow the community plan because it was not codified.

(Tr. 25, June 18, 2009 hearing.) He stated that Homewood is only required to meet the

text of the Planned Unit Development ("PUD"). (Tr. 21.)

{¶19} The architect for the project, Randall Woodings, also testified. Woodings

stated that he worked with the civic associations to create a workable plan. (Tr. 27-28.)

Homewood also tried to accommodate the Commission. (Tr. 29.) Homewood made

changes to the plan regarding the density, the tree loss, different styles of units, some

individual architecture, including different garage doors and front doors, four-sided

architecture and deeper roofs. (Tr. 31-34.) Woodings testified that Homewood took the

comments and attempted to change the proposal to accommodate the concerns. (Tr.

36.)

{¶20} Brett Page, a neighbor, testified that the neighbors' main concerns

involved the density of the units and that the character of the proposal was not similar

to the surrounding areas. The proposed buildings are too tall and massive and different

from the residential feel already established in the neighborhood. (Tr. 43-45.) Page

discussed that Homewood had been working with the neighbors to resolve their

differences.

{¶21} Another neighbor, Gerry Kosicki, testified. Kosicki agreed with the staff

evaluation and urged the Commission to reject the proposal because the proposal did

not harmonize with the surrounding single family neighborhood and it did not adhere to

the various Land Use Principles. (Tr. 48-49.)

No. 13AP-261 6

{¶22} The final testimony was from Barbara Bhattacharya, another neighbor.

Bhattacharya testified regarding the need to make the proposal more environmentally

friendly. She suggested the addition to the proposal of more native plants and rain

gardens and the removal of invasive plants.

{¶23} Following this testimony, the Commission members discussed their

individual concerns regarding the proposal. At the hearing on June 18, 2009, the

Commission was tasked with determining whether to grant or deny Homewood's final

development plan. The Commission concluded that Homewood's final development

plan did not conform with 153.055(B)(2), (4), (7) and (10) of the Dublin City Code. The

Dublin City Code Section 153.055(B) sets forth the criteria for the Commission to review

a proposed final development plan. It provides, as follows:

(B) Final development plan. In the review of proposed

planned developments, the Planning and Zoning

Commission shall determine whether or not the proposed

development, as depicted on the final development plan,

complies with the following:

(1) The plan conforms in all pertinent respects to the

approved preliminary development provided however, that

the Planning and Zoning Commission may authorize plans

as specified in § 153.053(E)(4);

(2) Adequate provision is made for safe and efficient

pedestrian and vehicular circulation within the site and to

adjacent property;

(3) The development has adequate public services and open

spaces;

(4) The development preserves and is sensitive to the natural

characteristics of the site in a manner that complies with the

applicable regulations set forth in this code;

(5) The development provides adequate lighting for safe and

convenient use of the streets, walkways, driveways, and

parking areas without unnecessarily spilling or emitting light

onto adjacent properties or the general vicinity;

(6) The proposed signs, as indicated on the submitted sign

plan, will be coordinated within the PUD and with adjacent

development; are of an appropriate size, scale, and design in

relationship with the principal building, site and

No. 13AP-261 7

surroundings; and are located so as to maintain safe and

orderly pedestrian and vehicular circulation;

(7) The landscape plan will adequately enhance the principal

building and site; maintain existing trees to the extent

possible; buffer adjacent incompatible uses; break up large

expanses of pavement with natural material; and provide

appropriate plant materials for the buildings, site and

climate;

(8) Adequate provision is made for storm drainage within

and through the site which complies with the applicable

regulations in this code and any other design criteria

established by the city or any other governmental entity

which may have jurisdiction over such matters;

(9) If the project is to be carried out in progressive stages,

each stage shall be so planned that the foregoing conditions

are complied with at the completion of each stage;

(10) The Commission believes the project to be in

compliance with all other local, state and federal laws and

regulations.

{¶24} The common pleas court was required to weigh the evidence in the record

to determine whether there was a preponderance of substantial, reliable and probative

evidence to support the Commission's decision. Homewood argues that the common

pleas court did not weigh the testimony of Hale and Woodings against Rauch's

testimony. Hale argued that Homewood's proposal met the standards for the

Commission's approval. However, the testimony demonstrates that Hale argued that

Homewood's proposal meets the text of the PUD, but did not need to meet the

community plan. His testimony did not directly address any of the concerns of any of

the witnesses against the proposal. Woodings' testimony, similarly, did not address any

of the current concerns of those testifying and the Commission, but attempted to explain

the changes Homewood had already made to the proposal in response to the civic

associations and the Commission. However, neither testified that the proposal does

meet the criteria of Dublin City Code 153.055(B).

{¶25} There were four other witnesses that testified recommending denial of the

proposal. Rausch gave the most detailed testimony explaining how the proposal did not

meet the code. But, Page also testified regarding the character of the proposal was not

No. 13AP-261 8

similar to the surrounding areas because the proposed buildings are too tall and massive

and different from the residential feel already established in the neighborhood. Kosicki,

testified in opposition to the proposal stating that the staff evaluation of the proposal

was correct. He urged the Commission to reject the proposal because it did not

harmonize with the surrounding single family neighborhood and it did not adhere to the

various Land Use Principles. Finally, Bhattacharya testified regarding the proposal's

need to be more environmentally friendly with the addition of more native plants and

rain gardens and the removal of invasive plants.

{¶26} Given all this testimony, the common pleas court did not err in finding

that there was a preponderance of substantial, reliable, and probative evidence to

support the Commission's denial of Homewood's proposal. The common pleas court

based its decision on the record before it. Merely because the common pleas court did

not detail the entire testimony presented, does not support Homewood's argument that

the common pleas court did not weigh the entire record, nor that the record does not

support the Commission's decision. Homewood's assignment of error is overruled.

{¶27} For the foregoing reasons, Homewood's assignment of error is overruled

and the judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

SADLER, P.J., and TYACK, J., concur.

T. BRYANT, J., retired, of the Third Appellate District

assigned to active duty under the authority of Article IV,

Section 6(C), Ohio Constitution.