# Homewood Corp. v. Dublin

> Ohio Court of Appeals · March 6, 2014 · 2014 Ohio 845

URL: https://www.frixlaw.com/law-library/cases/2706945

## Case

- **Court:** Ohio Court of Appeals
- **Decided:** March 6, 2014
- **Citations:** 2014 Ohio 845
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Tyack
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

[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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2706945. Public record. Not legal advice.