[Cite as Delfino v. Summit Cty. Planning Comm., 2024-Ohio-6089.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
DANIEL DELFINO, et al. C.A. No. 30769
Appellants
v. APPEAL FROM JUDGMENT ENTERED IN THE SUMMIT COUNTY, OHIO PLANNING COURT OF COMMON PLEAS COMMISSION, et al. COUNTY OF SUMMIT, OHIO CASE No. CV-2022-08-2963 Appellees
DECISION AND JOURNAL ENTRY
Dated: December 31, 2024
SUTTON, Presiding Judge.
{¶1} Plaintiffs-Appellants, Daniel Delfino and Mindy Delfino, appeal the judgment of
the Summit County Court of Common Pleas. This Court reverses.
I.
Relevant Background
{¶2} This appeal arises from the Delfinos’ administrative appeal, pursuant to Revised
Code Chapter 2506, of the Summit County Planning Commission’s July 28, 2022 decision denying
them a riparian setback variance for their property. The Delfinos purchased the property in August
2021, which is located at Lot 21 in the Forest of Kings Creek subdivision. Lot 21 is a vacant parcel
of land comprising approximately 2.5 acres. The Delfinos’ property contains two wetlands and
has a small intermittent stream that runs through the property. Summit County Ordinance
(“S.C.O.”) 937.05(c)(4) requires a 50-foot riparian setback on all sides of the stream, which
prohibits construction within the setback area. The two wetlands also require their own setbacks 2
pursuant to S.C.O. 937.05(e)(3)(B). The Delfinos want to build a ranch style home on this
property, and claim to have not known about the riparian setback requirements prior to the
purchase of the land.
{¶3} On April 25, 2022, the Delfinos, through their engineering firm, applied for a
variance from the riparian setback. Originally, the Delfinos applied for a variance which would
allow up to 44 feet of encroachment on the riparian setback. The Delfinos then modified their
application to request up to 30 feet of encroachment on the riparian setback. The planning
commission held its first hearing and requested the Delfinos provide them with a wetland
delineation report. On July 28, 2022, the planning commission held its second hearing on the
Delfino variance.
{¶4} At the July 28, 2022 hearing, the Delfinos submitted the wetland delineation report
and a revised plan showing a 30 foot encroachment on the riparian setback as per their modified
application. Several people testified including: (1) Dan Neff, the Delfinos’ engineer; (2) Patricia
Ryan, a zoning inspector for Richfield Township; (3) Sasha Mikheidze, a representative from the
Summit Soil and Water Conservation District; and (4) Joe Paradise, an employee from the Summit
County Engineer’s Office. After hearing testimony from these individuals, and based upon the
recommendation of Mr. Mikheidze, the planning commission voted 4-1 to deny the riparian
setback variance. In a correspondence dated August 31, 2022, the planning commission notified
the Delfinos of its denial of the variance stating: “[a]fter proper review and due consideration, the
Summit County Planning Commission denied your request of a Variance of the Riparian Setback
Regulations.” The correspondence did not contain any additional details regarding the denial of
the variance. 3
{¶5} Pursuant to R.C. 2506.04, the Delfinos filed an administrative appeal with the trial
court. In their appeal, the Delfinos argued the planning commission erred because it failed to apply
the correct riparian setback factors, as stated in S.C.O. 937.10(f), in denying the riparian setback
variance, and the preponderance of evidence in the record weighed in favor of granting the riparian
setback variance.
{¶6} The trial court affirmed the planning commission’s decision to deny the variance.
{¶7} The Delfinos timely appealed to this Court raising two assignments of error for our
review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY AFFIRMING THE COMMISSION’S DECISION TO DENY THE DELFINOS A RIPARIAN VARIANCE DESPITE THE FACT THE COMMISSION LOST ITS WAY AND APPLIED AN INCORRECT LEGAL STANDARD.
{¶8} In their first assignment of error, the Delfinos argue the trial court erred, as a matter
of law, by affirming the planning commission’s denial of the riparian setback variance in spite of
the commission applying an incorrect legal standard in making its determination.
{¶9} In Shelly Materials, Inc. v. City of Streetsboro Plan. & Zoning Comm’n, 2019-
Ohio-4499, ¶ 13, 17, the Supreme Court of Ohio stated:
We have said that the scope of review for a common pleas court in an R.C. Chapter 2506 administrative appeal is not de novo but that the appeal “‘often in fact resembles a de novo proceeding.’” Kisil v. Sandusky, 12 Ohio St.3d 30, 34 (1984), quoting Cincinnati Bell, Inc. v. Glendale, 42 Ohio St.2d 368, 370 (1975). “The court weighs the evidence to determine whether a preponderance of reliable, probative, and substantial evidence supports the administrative decision, and if it does, the court may not substitute its judgment for that of” the administrative agency. Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, ¶ 13. … [T]he court of common pleas has “the power to examine the whole record, make factual and legal determinations, and reverse the [administrative agency’s] decision if it is not supported by a preponderance of 4
substantial, reliable, and probative evidence.” Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, ¶ 24, citing [Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d 202, 207 (1979).].
A party who disagrees with a decision of a court of common pleas in an R.C. Chapter 2506 administrative appeal may appeal that decision to the court of appeals but only on “questions of law.” R.C. 2506.04. For this reason, we have stated that under R.C. 2506.04, an appeal to the court of appeals is “more limited in scope” than was the appeal to the court of common pleas. Kisil, 12 Ohio St.3d at 34. While the court of common pleas is required to examine the evidence, the court of appeals may not weigh the evidence. Independence, 142 Ohio St.3d 125, 2014-Ohio-4650, at ¶ 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 evidence. Boice v. Ottawa Hills, 137 Ohio St.3d 412, 2013-Ohio-4769, ¶ 7, citing Kisil at 34.
(Emphasis added.)
{¶10} Therefore, our determination in this matter is limited to “(1) whether the trial court
made any errors of law assigned on appeal, which we review de novo, and (2) whether the trial
court abused its discretion in applying the law.” Compass Homes, Inc. v. Upper Arlington Bd. of
Zoning, 2023-Ohio-2744, ¶ 13 (10th Dist.).
{¶11} Here, in making its decision regarding the Delfinos’ variance request, the planning
commission was required to consider the factors set forth in S.C.O. 937.10(f), which states:
In reviewing whether to grant variances, the . . . Summit County Planning Commission shall consider the following:
(1) The extent to which the requested variance impairs the functions of the riparian area. This determination shall be based on sufficient technical and scientific evidence as provided by the applicant and the agencies listed in subsections (a) through (e) above.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Delfino v. Summit Cty. Planning Comm., 2024-Ohio-6089.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
DANIEL DELFINO, et al. C.A. No. 30769
Appellants
v. APPEAL FROM JUDGMENT ENTERED IN THE SUMMIT COUNTY, OHIO PLANNING COURT OF COMMON PLEAS COMMISSION, et al. COUNTY OF SUMMIT, OHIO CASE No. CV-2022-08-2963 Appellees
DECISION AND JOURNAL ENTRY
Dated: December 31, 2024
SUTTON, Presiding Judge.
{¶1} Plaintiffs-Appellants, Daniel Delfino and Mindy Delfino, appeal the judgment of
the Summit County Court of Common Pleas. This Court reverses.
I.
Relevant Background
{¶2} This appeal arises from the Delfinos’ administrative appeal, pursuant to Revised
Code Chapter 2506, of the Summit County Planning Commission’s July 28, 2022 decision denying
them a riparian setback variance for their property. The Delfinos purchased the property in August
2021, which is located at Lot 21 in the Forest of Kings Creek subdivision. Lot 21 is a vacant parcel
of land comprising approximately 2.5 acres. The Delfinos’ property contains two wetlands and
has a small intermittent stream that runs through the property. Summit County Ordinance
(“S.C.O.”) 937.05(c)(4) requires a 50-foot riparian setback on all sides of the stream, which
prohibits construction within the setback area. The two wetlands also require their own setbacks 2
pursuant to S.C.O. 937.05(e)(3)(B). The Delfinos want to build a ranch style home on this
property, and claim to have not known about the riparian setback requirements prior to the
purchase of the land.
{¶3} On April 25, 2022, the Delfinos, through their engineering firm, applied for a
variance from the riparian setback. Originally, the Delfinos applied for a variance which would
allow up to 44 feet of encroachment on the riparian setback. The Delfinos then modified their
application to request up to 30 feet of encroachment on the riparian setback. The planning
commission held its first hearing and requested the Delfinos provide them with a wetland
delineation report. On July 28, 2022, the planning commission held its second hearing on the
Delfino variance.
{¶4} At the July 28, 2022 hearing, the Delfinos submitted the wetland delineation report
and a revised plan showing a 30 foot encroachment on the riparian setback as per their modified
application. Several people testified including: (1) Dan Neff, the Delfinos’ engineer; (2) Patricia
Ryan, a zoning inspector for Richfield Township; (3) Sasha Mikheidze, a representative from the
Summit Soil and Water Conservation District; and (4) Joe Paradise, an employee from the Summit
County Engineer’s Office. After hearing testimony from these individuals, and based upon the
recommendation of Mr. Mikheidze, the planning commission voted 4-1 to deny the riparian
setback variance. In a correspondence dated August 31, 2022, the planning commission notified
the Delfinos of its denial of the variance stating: “[a]fter proper review and due consideration, the
Summit County Planning Commission denied your request of a Variance of the Riparian Setback
Regulations.” The correspondence did not contain any additional details regarding the denial of
the variance. 3
{¶5} Pursuant to R.C. 2506.04, the Delfinos filed an administrative appeal with the trial
court. In their appeal, the Delfinos argued the planning commission erred because it failed to apply
the correct riparian setback factors, as stated in S.C.O. 937.10(f), in denying the riparian setback
variance, and the preponderance of evidence in the record weighed in favor of granting the riparian
setback variance.
{¶6} The trial court affirmed the planning commission’s decision to deny the variance.
{¶7} The Delfinos timely appealed to this Court raising two assignments of error for our
review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY AFFIRMING THE COMMISSION’S DECISION TO DENY THE DELFINOS A RIPARIAN VARIANCE DESPITE THE FACT THE COMMISSION LOST ITS WAY AND APPLIED AN INCORRECT LEGAL STANDARD.
{¶8} In their first assignment of error, the Delfinos argue the trial court erred, as a matter
of law, by affirming the planning commission’s denial of the riparian setback variance in spite of
the commission applying an incorrect legal standard in making its determination.
{¶9} In Shelly Materials, Inc. v. City of Streetsboro Plan. & Zoning Comm’n, 2019-
Ohio-4499, ¶ 13, 17, the Supreme Court of Ohio stated:
We have said that the scope of review for a common pleas court in an R.C. Chapter 2506 administrative appeal is not de novo but that the appeal “‘often in fact resembles a de novo proceeding.’” Kisil v. Sandusky, 12 Ohio St.3d 30, 34 (1984), quoting Cincinnati Bell, Inc. v. Glendale, 42 Ohio St.2d 368, 370 (1975). “The court weighs the evidence to determine whether a preponderance of reliable, probative, and substantial evidence supports the administrative decision, and if it does, the court may not substitute its judgment for that of” the administrative agency. Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, ¶ 13. … [T]he court of common pleas has “the power to examine the whole record, make factual and legal determinations, and reverse the [administrative agency’s] decision if it is not supported by a preponderance of 4
substantial, reliable, and probative evidence.” Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, ¶ 24, citing [Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d 202, 207 (1979).].
A party who disagrees with a decision of a court of common pleas in an R.C. Chapter 2506 administrative appeal may appeal that decision to the court of appeals but only on “questions of law.” R.C. 2506.04. For this reason, we have stated that under R.C. 2506.04, an appeal to the court of appeals is “more limited in scope” than was the appeal to the court of common pleas. Kisil, 12 Ohio St.3d at 34. While the court of common pleas is required to examine the evidence, the court of appeals may not weigh the evidence. Independence, 142 Ohio St.3d 125, 2014-Ohio-4650, at ¶ 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 evidence. Boice v. Ottawa Hills, 137 Ohio St.3d 412, 2013-Ohio-4769, ¶ 7, citing Kisil at 34.
(Emphasis added.)
{¶10} Therefore, our determination in this matter is limited to “(1) whether the trial court
made any errors of law assigned on appeal, which we review de novo, and (2) whether the trial
court abused its discretion in applying the law.” Compass Homes, Inc. v. Upper Arlington Bd. of
Zoning, 2023-Ohio-2744, ¶ 13 (10th Dist.).
{¶11} Here, in making its decision regarding the Delfinos’ variance request, the planning
commission was required to consider the factors set forth in S.C.O. 937.10(f), which states:
In reviewing whether to grant variances, the . . . Summit County Planning Commission shall consider the following:
(1) The extent to which the requested variance impairs the functions of the riparian area. This determination shall be based on sufficient technical and scientific evidence as provided by the applicant and the agencies listed in subsections (a) through (e) above.
(2) The soil type and natural vegetation of the parcel as well as the percentage of the parcel that is in the 100-year floodplain.
(3) The degree of hardship these regulations place on the applicant and the availability of alternatives to the proposed activity. 5
{¶12} In its order, the trial court addresses the first S.C.O. 937.10(f) factor by citing to
general comments made by two members of the planning commission regarding the grading
around the proposed house. The planning commission members state that the grading of the house
encroaches onto the wetland area which causes “disturbance.” However, these comments do not
reflect consideration of “sufficient technical and scientific evidence,” as required by S.C.O.
937.10(f)(1).
{¶13} As to the second S.C.O. 937.10(f) factor, the trial court correctly indicates the 100-
year floodplain was discussed, and the testimony reflected the parcel is not in the 100-year
floodplain. However, as to the “soil type and natural vegetation[,]” the trial court acknowledged
there was not extensive discussion, but that “Mr. Mikheidze did testify that the Delfinos’ plan
would impact the vegetation within the riparian setback.” This testimony does not address the soil
type or the natural vegetation of the parcel as required by S.C.O. 937.10(f)(2).
{¶14} Regarding the third S.C.O. 937.10(f) factor, the trial court highlighted testimony
from Mr. Paradise, of the Summit County Engineer’s office, wherein he commented on the size of
the proposed home and that it was “not a good lot for this particular house.” Mr. Paradise also
testified “[t]his is a buildable lot for a two-story home[.]” Although the trial court recognized that
Mr. Paradise testified as to a possible alternative, building a two-story house instead of a ranch
style home, as proposed by the Delfinos, this testimony does not address the degree of hardship
the regulations place on the Delfinos.
{¶15} As such, because the trial court only analyzed certain aspects of S.C.O.
937.10(f)(1), (2), and (3), and did not consider the remainder of its requirements in determining
whether the planning commission applied the correct legal standard in denying the Delfinos’ 6
variance and whether a preponderance of reliable, probative, and substantial evidence supports the
planning commission’s decision to deny the variance, the trial court erred as a matter of law.
{¶16} Thus, the trial court, in its review of the entire record, must determine if the Summit
County Planning Commission used the correct legal standard, as set forth in S.C.O. 937.10(f)(1),
(2), and (3), and in using that standard, whether a preponderance of reliable, probative, and
substantial evidence supports the planning commission’s decision to deny the Delfinos’ request
for a riparian setback variance.
{¶17} Accordingly, the Delfinos’ first assignment of error is sustained.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION IN AFFIRMING THE COMMISSION’S DECISION TO DENY THE DELFINOS A RIPARIAN VARIANCE BECAUSE SUCH DENIAL WAS ARBITRARY, CAPRICIOUS, AND UNSUPPORTED BY A [PREPONDERANCE] OF RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE.
{¶18} Based upon our resolution of the first assignment of error, the Delfinos’ second
assignment of error is moot.
III.
{¶19} For the reasons stated above, the Delfinos’ first assignment of error is sustained and
their second assignment of error is moot. The judgment of the Summit County Court of Common
Pleas is reversed and this cause is remanded for further proceedings consistent with this decision.
Judgment reversed; cause remanded.
There were reasonable grounds for this appeal. 7
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, 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 Appellees.
BETTY SUTTON FOR THE COURT
FLAGG LANZINGER, J. CONCURS.
HENSAL, J. CONCURS IN JUDGMENT ONLY.
APPEARANCES:
ANTHONY R. VACANTI, JOHN SLAGTER, and DANIELLE M. EASTON, Attorneys at Law, for Appellants.
ELLIOT KOLKOVICH, Prosecuting Attorney, and MARRETT W. HANNA and JOHN F. GALONSKI, Assistant Prosecuting Attorneys, for Appellee.