Branford Village Condominium Unit Owners' Assn v. City of Upper Arlington

467 N.E.2d 542, 12 Ohio App. 3d 120, 12 Ohio B. 440, 1983 Ohio App. LEXIS 11352

• Court: Ohio Court of Appeals
• Decided: August 18, 1983
• Docket: 82AP-410
• Status: Published

Opinions

Whiteside, P.J.

Defendant, city of Upper Arlington, appeals from a judgment of the Court of Common Pleas of Franklin County, enjoining Upper Arlington from proceeding with a pending action to appropriate land owned by plaintiffs. Upper Arlington raises four assignments of error, as follows:

“1. The Court below exceeded its authority by substituting its judgment for that of the duly constituted legislative body, the Council of the City of Upper Arlington.

“2. The Court below erred in issuing an injunction where, as shown, there was no basis in law or fact for such an order.

“3. The Court below erred in permitting into evidence the testimony of Plaintiffs’ ‘expert’ city planning consultant; and

“4. The finding of an inadequate roadway not comporting to code is against the manifest weight of the evidence.”

Upper Arlington commenced eminent-domain proceedings to appropriate the property in question for the purpose of constructing a service road behind a shopping center. The proposed service road would connect Reed-Henderson Center and Greentree Shopping Center and run behind property occupied by a MacDonald’s restaurant, a Sohio station and another commercial establishment.

Plaintiffs then brought this action seeking to enjoin Upper Arlington from proceeding with the eminent-domain proceedings claiming the preliminary legislation was void because of conflict of interest of a council member, that the taking was for a private, rather than a public, purpose and that defendant had abused its discretion because of inadequacy of the roadway. The trial court rejected the first two contentions.

Defendant states that the difference between the first two assignments of error is that the first deals with an abuse of power and the second with an abuse of discretion. However, the issues of these two as well as the fourth, overlap to such an extent that we shall essentially discuss them together.

Defendant first contends that a separate injunction action is improper because R.C. 163.09(B) affords an adequate remedy. While this is true as to some issues and some eminent-domain proceedings, this appropriation is for a public road, and R.C. 163.08 provides: “* * * when taken * * * for the purpose of making or repairing roads * * * open to the public, without charge, an answer may not deny the right to make the appropriation * * * or the necessity for the appropriation.” Where the issue cannot be raised in the eminent-domain proceedings, a separate injunction action may be brought to enjoin an abuse of municipal power. Sargent v. Cincinnati (1924), 110 Ohio St. 444; Emery v. Toledo (1929), 121 Ohio St. 257; In re Appropriation of Easements (1960), 170 Ohio St. 276 [10 O.O.2d 332], Thus, to this extent, the first assignment of error is not well-taken.

However, as defendant points out, the trial court cannot substitute its judgment for that of the Upper Arlington City Council but is limited to a determination of whether its action was arbitrary, unreasonable, or otherwise an abuse of discretion. Ohio Power Co. v. Diller (1969), 18 Ohio App. 2d 167 [47 O.O.2d 292]. Here, the trial court found the action of the Upper Arlington City Council to be unreasonable under the circumstances and, thus, an abuse of discretion.

The issue before us is not whether we agree with the factual findings of the trial court, but whether they are supported by competent credible evidence. See C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279 [8 O.O.3d 261], This is directly raised by the fourth assignment of error but also permeates the other assignments of error.

To determine whether or not the trial court’s determination is against the manifest weight of the evidence, it is first necessary to ascertain what those findings are. The trial court expressly made the following factual findings:

“It is the Court’s conclusion based upon all the testimony that the proposed roadway is inadequate and does not relate to the code requirements. The roadway appears to be too narrow to serve its proposed function. This would constitute a danger to public safety both as to vehicular traffic, pedestrians, bicyclists, oversized trucks and vans, and private cars.

“The narrowness of the proposed roadway indicates a significant danger to the safety of the public and the smooth and efficient movement of the traffic. Such hazards concern this Court and indicate that additional planning is necessary and proper.”

The significant finding of the trial court is to the effect that the proposed roadway constitutes a public nuisance. The trial court specifically found that, as proposed, the roadway would constitute “a significant danger to the safety of the public,” and further found that it constitutes a “hazard.” Earlier, the trial court found that the roadway as proposed “would constitute a danger to public safety.” R.C. 723.01 specifically requires a municipal corporation to keep all streets “open, in repair, and free from nuisance.” Necessarily, construction of a service road which would constitute a nuisance if constructed is not a proper public purpose. Defendant municipal corporation has no power or right to appropriate property in order to create a public nuisance. The trial court’s factual finding indicates that the roadway proposed to be constructed would constitute a public nuisance if constructed in the manner presently proposed. Thus, there can be no merit to defendant’s second assignment of error since there is a basis in law for the granting of the permanent injunction as granted by the trial court, unless its findings of fact are against the manifest weight of the evidence, which is the issue raised by the fourth assignment of error, not the second assignment of error.

It is inappropriate to refer and rely upon testimony of a city manager as to the intent of a city council in adopting an ordinance, even more so than it is to rely upon the testimony of a single council member as to the intent, since at least the council member could express his own view; whereas, a city manager does not even have a right to vote upon the ordinance. Yet, this is the type of evidence relied upon by the defendant to support the second assignment of error. The Upper Arlington City Manager’s testimony is entitled to no weight whatsoever as to the intent of the ordinance, it being inappropriate for that purpose, even though no\ objection was raised with respect thereto. The issue, of course, is what does the ordinance state, not what did the city manager think.

It is agreed by the parties that plaintiffs' Exhibit 6 was adopted by the city council as the Final Report Henderson Center Plan. While this plan, of necessity, is not detailed, it must be kept in mind that this is a platting type of plan, not a land-use plan pertaining to the specific land or construction plans for specific construction. More importantly, in this plan, there is a referral to a 1962 master plan of the city of Upper Arlington, which also relates to the area in question. Unfortunately, that master plan is not in evidence. On the other hand, there is nothing in that plan which specifically relates to the proposed improvement of the roadway in question. Rather, as all master-type plans, the provisions are general, indicating that pedestrian safety should be a concern in constructing streets. As to the city manager’s testimony, there is nothing in the evidence indicating any amendment or modification of the ordinance adopting the Final Report Henderson Center Plan or of the plan itself.

Upper Arlington does not have a specific subdivision regulation concerning service roads. It is clear, however, that a service road is a public street, or a minor street. Section 1203.08 of the Upper Arlington Subdivision Ordinances provides that: “Alleys, where platted, shall have a minimum width of twenty feet.” Here, there is no plat, and the provision does not apply. More importantly, as to minimum right-of-way width, Section 1203.06 provides that minor streets and dead-end streets must have a fifty-foot right-of-way. On the other hand, Section 1203.09(b) provides that minor streets may have a pavement width of only twenty-eight feet; whereas, Section 1203.09(c) provides that alleys and service drives shall have a minimum pavement width of twenty feet. The issue found by the trial court, however, was not the width of the pavement but, rather, the width of the right-of-way. The hazard created was the fact that the pavement with the curb, of necessity, would include almost the entire right-of-way contemplated to be used. This the trial court found to be a hazard partly because there was no place for pedestrians in the right-of-way if two cars passed each other. However, the subdivision regulations are not directly applicable and have no direct bearing upon the outcome herein. They do constitute a determination by city council as to what type of safety regulation is necessary in planning and platting for streets, including alleys and service drives, even though not necessarily applicable, inasmuch as we are not concerned with a subdivision but, rather, with an improvement by the city involving the appropriation of private property.

The right-of-way varies from twenty-two to thirty feet and, thus, would be in violation of Section 1203.06(d) of the Upper Arlington ordinances, if applicable, which requires a fifty-foot minimum right-of-way. The additional right-of-way would provide the room for the pedestrians noted by the trial court as being a need. Unfortunately, the trial court used the word “roadway” as referring to the entire right-of-way, rather than to the paved portion thereof, which does create some confusion. Thus, the second assignment of error is not well-taken.

The third assignment of error raises a crucial issue. The issue is the admissibility of the testimony of the plaintiffs’ expert witness upon which the trial court presumably relied in making its factual determinations.

Defendant contends that plaintiffs’ expert witness should not have been permitted to express his opinion as to the adequacy of the service road or its compliance with good planning concepts, citing Grisanti v. Cleveland (App. 1962), 89 Ohio Law Abs. 1. In that case, however, the issue was whether the trial court abused its discretion in excluding certain evidence. Here, the issue is whether the trial court abused its discretion in admitting the expert witness testimony since whether to admit expert testimony rests largely in the trial court’s discretion. See the ninth paragraph of the syllabus of Railroad Co. v. Defiance (1895), 52 Ohio St. 262; and the second and eighth paragraphs of the syllabus of Ohio Turnpike Comm. v. Ellis (1955), 164 Ohio St. 377 [58 O.O. 179].

No issue has been made as to the qualifications of the witness as an expert. The objection was to the relevancy and competency of the evidence and not to specific questions or answers. As to the basic determination, the establishment of a service road, the witness testified it was a “good plan,” and, thus, to that extent there could be no prejudice.

This expert not only testified that this particular improvement did not comport with the plan for the area in terms of providing for pedestrian travel, but also specifically expressed the opinion that the proposed improvement creates a safety problem. He further indicated that the plan previously adopted by Upper Arlington would call for a separate pedestrian walkway system, which is more desirable. Moreover, he indicated no provision for pedestrian travel constitutes an undesirable situation because of the danger involved. He further indicated that the narrowness of the roadway, twenty feet, would create some hazard with respect to truck traffic, apparently because of the width of the trucks and the difficulty in passing. Other evidence supports the same conclusions.

Evid. R. 702 sets forth the basis for admission of expert testimony. Evid. R. 401 defines “relevant evidence”. Even assuming the trial court could have excluded the testimony, and plaintiffs had no “right” to have such expert testimony admitted, we find no abuse of discretion in admitting the testimony under the circumstances reflected in the record since it meets the requirements of Evid. R. 401 and 702. The third assignment of error is not well-taken.

The evidence indicates that there is no place for pedestrian travel within the proposed right-of-way over a large portion of the length of the proposed service road except by walking in the paved portion of the roadway also used by vehicular traffic. It does not require any great expertise to recognize the safety hazard created if a pedestrian is walking on the roadway and two vehicles try to pass each other at the same location where the roadway is only twenty feet wide and the right-of-way is only twenty-two feet wide. Nor did defendant present any evidence contradicting the evidence of the safety hazards created by the plan in question. The fact that the remedy may be to appropriate more of plaintiffs’ land does not justify permitting the city to create a nuisance which constitutes a hazard both to pedestrian and vehicular traffic.

The trial court’s findings to the effect that a nuisance would be created and expressly that a safety hazard would be created are supported by competent credible evidence. This court cannot properly substitute. its judgment for that of the trial court as to which evidence to believe and which evidence not to believe. To reach the result urged by defendant, some evidence presented by defendant would have to be given greater credence than that presented by plaintiffs and, accordingly, plaintiffs’ evidence would be rejected. But, this was a matter for the trier of the facts, the trial court in this instance, and this court cannot appropriately substitute its judgment for that of the trial court as to the weight to be given to the evidence, or which evidence to believe and accept and which evidence to disbelieve and not accept. Only by substituting our judgment for that of the trial court and weighing the evidence independently and rejecting all the evidence favorable to the finding of the trial court can this court reach the conclusion urged by defendant. The judgment of the trial court is not against the manifest weight of the evidence, as will be discussed further, infra.

Returning to the first assignment of error, this was not a matter that the trial court substituted its judgment for that of the city council. That was not the issue presented or decided by the trial court, even though the trial court was required to and did defer to legislative wisdom where discretion was involved. However, we find no basis for sustaining that assignment of error. The very issues discussed in connection with the second, third and fourth assignments of error clearly indicate the impropriety of sustaining the first. Only if it be concluded that the trial court is powerless to enjoin an appropriation of property for the purpose of creating a public nuisance is the first assignment of error well-taken. On the contrary, the law is clear that the court of common pleas may enjoin the appropriation of property sought to be taken for the purpose of creating a public nuisance. In making the determination necessary for this assignment of error, as well as the second, it is necessary that this court refrain from picking and choosing which evidence to accept but, instead, we are bound to construe the evidence most strongly in favor of supporting the finding of the trial court, and only if, when so construed, reasonable minds could not reach the conclusion reached by the trial court can this court sustain either the first or second assignment of error. Here, the result in the court of common pleas was debatable as to whether clearly a public nuisance would be created, and defendant urges us to accept its evidence, rather than plaintiffs’. However, the proper test eis to consider plaintiffs’ evidence at its best, giving the advantage of every possible reasonable inference to plaintiffs and then determine whether or not that evidence so construed permits the findings of the trial court bearing in mind that that court must defer to legislative wisdom as to discretionary matters. When the proper test is applied, there can be no question but that the trial court’s findings are supported by the evidence and are not contrary to law as contended by the first two assignments of error. The first assignment of error must be overruled.

Having reviewed the evidence and the record, it is clear that, if the proper tests are applied, the trial court’s judgment must be affirmed. Construing the evidence most strongly in favor of plaintiffs, and the factual findings of the trial court, it is possible to make the factual findings which the trial court made. In making such conclusions, it was necessary for the trial court not to accept or not to believe certain testimony and evidence presented by defendant. However, this was the prerogative of the trial court, and this court cannot properly substitute its judgment for that of the trial court and reinstate the evidence rejected by the trial court in weighing the evidence and predicate a different conclusion upon such rejected evidence. To do so constitutes substituting our judgment for that of the trial court with respect to the weight to be given the evidence, not construing the evidence most strongly in favor of the factual findings reached by the trial court.

Further considering the fourth assignment of error, the manifest-weight issue, there is competent credible evidence supporting the factual findings of the trial court. Here, there necessarily is a very limited weighing of the evidence to determine whether or not the evidence is competent and credible. However, even after indulging in such limited weighing of the evidence, it is clear that there is competent credible evidence supporting the trial court’s finding. In weighing the evidence, the trial court was entitled to reject certain evidence and accept other evidence. If the evidence which the trial court chose to accept is competent and credible, we may not substitute our judgment for that of the trial court and determine the judgment to be against the manifest weight of the evidence merely because there is other evidence which the trial court rejected, which would permit a contrary result, and which this court would consider to be more credible than that accepted by the trial court. The test of manifest weight is not which evidence is more credible but, rather, whether or not the evidence relied upon by the trial court is competent and credible. The fourth assignment of error is not well-taken.

For the foregoing reasons, all four of plaintiffs’ assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

Strausbaugh, J., concurs. Moyer, J., dissents.