Korey v. Hunting Valley Planning & Zoning Comm.

2021 Ohio 1881

• Court: Ohio Court of Appeals
• Decided: June 3, 2021
• Docket: 109669
• Status: Published

Opinion

[Cite as Korey v. Hunting Valley Planning & Zoning Comm., 2021-Ohio-1881.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

SYLVIA KOREY, TRUSTEE, :

Plaintiff-Appellant, : No. 109669 v. :

PLANNING AND ZONING : COMMISSION OF THE VILLAGE OF HUNTING VALLEY, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; AND REMANDED RELEASED AND JOURNALIZED: June 3, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-18-897414

Appearances:

Mansour Gavin, L.P.A., Anthony J. Coyne, Bruce G. Rinker, Tracey S. McGurk, and Kathryn E. Weber, for appellant.

Hauser Law, L.L.C., and Laura A. Hauser for The Cleveland Restoration Society, Heritage Ohio, and The National Trust for Historic Preservation, Amici, for appellant.

Stephen L. Byron, Hunting Valley Law Director, and Todd M. Raskin and David M. Smith, Counsel, for appellees. EILEEN T. GALLAGHER, J.:

Appellant, Sylvia Korey, Trustee (“appellant”), appeals the trial court’s

judgment affirming the decision of the Planning and Zoning Commission of the

Village of Hunting Valley (“the Commission”) that denied her application for a

conditional-use permit and her amended request for a special-use permit. Appellant

raises the following assignments of error for our review:

1. The trial court abused its discretion in finding that the decision of the [Commission] is not unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence.

2. The trial court abused its discretion in concluding that the zoning code as applied to appellant was constitutional without affording appellant the opportunity to admit evidence or have a de novo hearing.

3. The trial court abused its discretion in granting appellee’s motion for reconsideration of the trial court’s judgment entry granting appellant’s motion to introduce additional evidence and convene a hearing de novo.

After careful review of the record and relevant case law, we affirm in

part, reverse in part, and remand for the trial court to accept additional evidence

and conduct a de novo hearing to address appellant’s constitutional challenge to the

zoning code as applied to her property.

Procedural and Factual History

Appellant is the owner of a home, known as “Roundwood Manor,”

located in the Daisy Hill Subdivision in the Village of Hunting Valley, Ohio (“the

Village”). Roundwood Manor is a 55,000 square-foot residence that occupies 7.69-

acres of land. The property is located in the Village’s U-1 Single-Family House District and has been used by appellant as a single-family dwelling for over 30 years.

Relevant to this appeal, the Village’ s zoning code provides that “no dwelling shall

be erected or altered to accommodate or make provision for more than one family

for each five acres of lot area.” Hunting Valley Codified Ordinances (“H.V.C.O.”)

1155.09.

In July 2017, appellant filed an application to obtain a conditional-use

permit pursuant to Chapter 1157 of the Village’s zoning code. The application sought

to convert Roundwood Manor into a multi-family structure that would contain six

luxury condominium suites. Appellant argued that the proposed conversion of

Roundwood Manor offered the best approach to preserving the historic architecture

of the home, which has been listed for sale since 2002. Appellant attached the

following documents in support of the application:

1. Appellant’s letter to Village officials;

2. Property information, including a copy of the warranty deed and a property summary report;

3. Letters from various preservation organizations and the state’s historic preservation office regarding the historic character and historic significance of the property;

4. Proposed plans for the conversion of the property into six separate units; and

5. Testimonials from Village residents who supported appellant’s efforts to preserve the property.

In August 2017, a hearing was held to address the merits of appellant’s

application. On behalf of appellant, Michael Fleenor, the director of preservation

programs and services for the Cleveland Restoration Society, provided extensive testimony regarding the historic significance of the property, including (1) the

property’s distinctive characteristics that represent the work of a master architect,

and (2) the property’s association with historical figures such as Oris Paxton Van

Sweringen and Mantis James Van Sweringen. Fleener also discussed the property’s

eligibility for historical registration in state and national preservation offices, and

provided the Commission with specific examples of historic single-family homes

that have been repurposed as luxury residential suites in the United States and

abroad.

Appellant also presented testimony from architect, Tony Paskevich

who described the scope and nature of the proposed renovation and provided the

Commission with preliminary drawings of the project. In addition, Village

residents, Bill O’Neill and Karen Doll, and historical scholars, Dan Ruminski and

Kathleen Crowther, testified on behalf of appellant’s proposal. Collectively, the

witnesses expressed their personal beliefs that the renovation and modified use of

Roundwood Manor was necessary to avoid the destruction of the historic property.

However, a trustee of the Daisy Hill Association, Jeff Karlovec, advised the

Commission that the Daisy Hill Association has consistently opposed the renovation

of Roundwood Manor because it is inconsistent with the single-family character of

the neighborhood.

Throughout the hearing, counsel for appellant argued that a

conditional-use permit was appropriate to assist appellant in “preserving the

characteristics and historic architectural qualities of [Roundwood Manor].” (Tr. 31.) Although counsel “recognize[d] that the five-acre standard is the proverbial gold

standard for the Village,” he maintained that the circumstances presented in this

case were unique and warranted a conditional-use permit that would protect

appellant’s property rights while respecting the “aesthetic nature of Daisy Hill and

Hunting Valley.” (Tr. 30; 39.) In contrast, counsel for the Daisy Hill Association

argued that appellant did not qualify for a conditional-use permit under the zoning

code because Roundwood Manor was neither an educational institution or a historic

settlement as defined under Chapter 1157 of the zoning code.

At the conclusion of the hearing, the parties agreed to continue the

matter in order to receive input from the Village’s planning consultant, George

Smerigan. On August 25, 2017, Smerigan issued an opinion and report, stating that

it was his professional opinion that Chapter 1157 of H.V.C.O. did not authorize the

requested conditional use. In rendering his opinion, Smerigan noted that H.V.C.O.

1157.06 expressly establishes two uses that may result in the issuance of a

conditional-use permit: (1) new private educational institutions; and (2) historic

settlements as identified in Chapter 1159. Significantly, “multifamily dwellings are

not listed as one of the identified conditionally permitted uses.” Thus, because

Roundwood Manor is neither a private educational institution or a historic

settlement, Smerigan concluded that the Commission was not “empowered by

Chapter 1157 to grant a conditional zoning certificate for a six-unit multifamily

condominium” and that “any consideration to the contrary would create a situation whereby the [Commission] could effectively amend the planning and zoning code

through an administrative action rather than the standard legislative process.”

Before a judgment was issued on the pending application, appellant

amended her application in light of Smerigan’s report, this time requesting a special-

use permit to preserve Roundwood Manor pursuant to Chapter 1155 of the Village’s

zoning code. In November 2017, zoning consultant, David Hartt, a Senior Advisor

of Planning Services for CT Consultants, Inc., submitted a letter to the Commission

on appellant’s behalf. In relevant part, Hartt expressed his position that the

Commission was authorized to issue a special-use permit pursuant to H.V.C.O.

1155.02(b)(7) and 1155.05(b) in order to “assure Roundwood Manor’s preservation

and continued contribution to the community.” Relying on the foregoing sections

of the zoning code, Hartt asserted that the Commission had authority to make

exceptions to the code when “unique and exceptional circumstances prevail,”

stating:

These exceptions ([H.V.C.O.] 1151.02; 1155.02(b)(7); and 1155.05(b)), individually or in combination, permit consideration of proposals that deviate from Hunting Valley’s traditional standard of one unit per five acres.

In December 2017, the Commission heard testimony and took

evidence regarding the revised application. At the hearing, Hartt reiterated the

contents of his report and maintained that the zoning code “permitted consideration

of proposals that deviate from Hunting Valley’s traditional standard of one unit per

five acres.” (Tr. 3.) Hartt discussed the historic and public interests supporting the project and opined that (1) “the historic preservation is a valid public interest,” (2)

“conversely, the public interest is not served if [Roundwood Manor] is neglected or

subject to demolition,” (3) an alternative use is necessary to “assure the preservation

and the economic viability of the property,” and (4) “the proposed use is the least

intrusive of all the alternatives.” (Tr. 11-12.) He explained that, in his view, the

renovation (1) will have adequate roadways, access and parking; (2) will have

adequate utilities; (3) will not adversely burden public services or facilities; (4) will

not result in destruction or loss of historic features of importance; (5) will not involve

uses or activity detrimental to persons or property; and (6) will not interfere with

the use of neighboring property. Hartt acknowledged that a six-unit building would

increase the activity on the property, but opined that the multi-family residential use

of the property would not change the essential character of the neighborhood and

would be less impactful than other possible Class U-2 (Residential-Special Permit)

uses that are identified in the zoning code. Hartt further opined that the application

would not set a detrimental precedent or otherwise undermine the five-acre zoning

requirement due to the unique structural and historical aspects of Roundwood

Manor, which he believed are not replicated in the Village.

At the conclusion of the December 2017 hearing, the parties agreed to

provide Smerigan the opportunity to issue a supplemental report in response to the

arguments posed in the revised application. The Commission further explained that

a final hearing would be required to address the contents of Smerigan’s

supplemental report. On January 29, 2018, Smerigan issued a supplemental report. In

relevant part, Smerigan concluded that in his professional opinion, appellant’s

amended application for a special-use permit “cannot be approved.” Smerigan

explained as follows:

The applicant has submitted insufficient evidence for the Commission to make the required findings for the granting of the requested special permit as required by sections 1155.05 and 1155.02. There is, in fact, clear evidence that the proposed development does not meet the required standards for a special permit as they are set forth in those sections of the Code. It is further my opinion that the proposed six-unit multifamily condominium use would violate the minimum lot area per dwelling unit provision of Section 1155.09 and that the mere desire for historical preservation is insufficient to justify a variance to the maximum density provision of the U-1 single-family house district.

In March 2018, the Commission held a third and final evidentiary

hearing. At the hearing, counsel for appellant read a letter from Fred Geis, a

property developer with Hemingway Development. In the letter, Geis described his

experience with high-end renovations and historic preservation. Having reviewed

all relevant materials, Geis stated that, in his professional opinion, the renovation of

Roundwood Manor was economically feasible.

In addition, counsel for appellant cross-examined Smerigan regarding

his supplemental report and recommendation. Smerigan reiterated his position

that the proposal would have a detrimental impact on the values of adjacent

properties and is inconsistent with use in a U-1 district, including the five-acre

density requirement for single-family dwellings. However, he conceded that the zoning code provides the Commission with “a broad amount of discretion” to issue

a special-use permit. (Tr. 65-66.)

Finally, appellant provided extensive testimony regarding her efforts

to sell Roundwood Manor. She explained that the home has been on the market

since June 2002, and has only received one oral offer from an individual who

expressed an intent to demolish Roundwood Manor.

In April 2018, the Commission issued a final order denying appellant’s

request for a conditional-use permit and her amended request for a special-use

permit. In this order, the Commission agreed that H.V.C.O. 1155.02(b)(7) grants the

Commission broad discretion to issue special-use permits. Nevertheless, the

Commission determined that a property’s “historical significance” does not preempt

relevant zoning regulations, including the “five acre per residential unit” density

requirement, which “is the sine qua non of Hunting Valley’s Zoning Code.” Thus,

the Commission found, in relevant part:

In consideration of the facts identified herein, the Applicant’s request for a Conditional Use Permit is denied because she has not requested an established “conditionally permitted use,” which uses are identified in Section 1157.06 of the Codified Ordinances. Applicant’s property has not been designated as an “Historic District,” pursuant to Section 1159.02. Applicant’s property does not have sufficient acreage to be zoned and developed under Chapter 1159. Chapter 1157 does not contemplate a Conditional Use permit that may be issued independently of regulations established elsewhere in the Code.

The Applicant’s request for a Special Use Permit is denied because it is not “* * * in general keeping and compatible with the uses authorized for a Class U-1 or Class U-2 classification * * *.” The residential density is not consistent with every other residential development that has been built in the Village since the five-acres per residential unit requirement was enacted as law. The proposed use is also likely to substantially injure the neighboring property and the entire Village.

In May 2018, appellant appealed the Commission’s decision to the

common pleas court pursuant to R.C. 2506.04.

In August 2018, appellant filed a motion to introduce additional

evidence and convene a hearing de novo. Appellant argued that a de novo hearing

was necessary to properly address constitutional issues that the Commission did not

have jurisdiction to consider. In support of her motion, appellant noted that the

clear mandate long articulated by the Eighth District Court of Appeals is that (1) the

constitutionality of a zoning ordinance “may be raised for the first time when the

landowner appeals an adverse administrative decision to the court of common

pleas,” and (2) “any constitutional issue so raised shall be tried originally in the

common pleas court with the court permitting the parties to offer additional

evidence.”

The Village opposed the motion, arguing that appellant “failed to

comply with the statutory requirements of R.C. 2506.03, and * * * failed to state a

valid constitutional claim which would warrant the submission of additional

In November 2018, the trial court granted appellant’s motion to

introduce additional evidence and convene a de novo hearing. In response, the

Village immediately filed a motion for reconsideration that urged the trial court to

determine that appellant failed to present a sufficient basis for the introduction of additional evidence. Regarding appellant’s alleged constitutional claim, the Village

argued that appellant’s motion was “fatally flawed” because she merely challenged

the constitutionality of the Commission’s decision, as opposed to challenging the

constitutionality of the applicable sections of the Village’s zoning code. Thus, the

Village maintained that appellant’s administrative appeal must be confined to the

transcript that was filed with the court in accordance with R.C. 2506.02.

Appellant filed a brief in opposition to the motion for reconsideration,

arguing that her motion for an evidentiary hearing sufficiently articulated

constitutional claims and that the Village’s motion “ignores the record and

endeavors to reframe the law and the issues in this case inappropriately.”

In December 2018, the trial court granted the Village’s motion for

reconsideration and the matter was scheduled to “proceed on a briefing schedule on

the transcript from the original proceedings.”

In March 2019, appellant filed a brief in support of her administrative

appeal, raising two assigned errors:

1. The preponderance of the probative evidence on the whole record demonstrates that appellant is entitled to receive the special zoning permit, the denial of which is conversely unsupported by the preponderance of probative evidence on the whole record, such that the decision of the [Commission] constitutes an abuse of discretion.

2. The 5:1 acreage-to-residence zoning regulation as applied to appellant’s property, unreasonably, arbitrarily, and unconstitutionally denies appellant due process of law by failing to advance a legitimate government interest; the Commission should be ordered to issue the special permit to appellant. In March 2020, the trial court affirmed the Commission’s decision,

stating, in relevant part:

This court agrees with the Commission’s decision. Appellant has resided at the property for 30 years as her single-family dwelling. Mere diminution of market value or interference with a property owner’s personal plans regarding their property is insufficient to invalidate a municipal ordinance or to entitle the property owner to a variance. * * * As the crux of appellant’s reasoning relates to the marketability of her home, appellant has failed to submit substantial, reliable, and probative evidence to meet the special permit standards.

Appellant also argues that the ordinance is unconstitutional as applied to her property. * * * Here, it is clear that the 5:1 ratio of acres to dwellings has a reasonable relationship to the municipality’s ability to maintain the character of the neighborhood. The Village has a rational basis for denying the ordinance as the entire community developed as a single-family dwelling neighborhood, and plaintiff’s interests in increasing the marketability of the property does not render the Code as applied to her property unconstitutional.

Appellant now appeals from the trial court’s judgment.

Law and Analysis

A. Denial of Special-Use Permit

In her first assignment of error, appellant argues the trial court abused

its discretion in finding that the decision of the Commission is not unconstitutional,

illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of

substantial, reliable, and probative evidence. Appellant contends that, contrary to

the trial court’s judgment, the evidence demonstrated that she was entitled to a

special-use permit under Chapter 1155 of the zoning code. Appellant presents no

arguments regarding the denial of her application for a conditional-use permit. Decisions of administrative agencies are directly appealable to a court

of common pleas. “A common pleas court has jurisdiction to review final orders

issued by ‘any officer, tribunal, authority, board, bureau, commission, department,

or other division of any political subdivision of the state.’” Shelly Materials, Inc. v.

Streetsboro Planning & Zoning Comm., 158 Ohio St.3d 476, 2019-Ohio-4499, 145

N.E.3d 246, ¶ 12, quoting R.C. 2506.01(A). The trial court, under this review

process, essentially acts as an appellate court, and “‘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.’” Id., quoting R.C. 2506.04. These grounds

for reversal are set forth in a disjunctive list, so each ground must be read to have a

distinct meaning. Id., citing Freedom Rd. Found. v. Ohio Dept. of Liquor Control,

80 Ohio St.3d 202, 205, 685 N.E.2d 522 (1997). “The presence of any one of the six

grounds listed in R.C. 2506.04 will therefore by itself justify a court of common

pleas’ reversal of an administrative order.” Id.

Under the trial court’s standard of review, 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.” Id. at ¶ 13,

quoting Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125,

2014-Ohio-4650, 28 N.E.3d 1182, ¶ 13. Nevertheless, “R.C. Chapter 2506 confers

on the common pleas courts the power to examine the whole record, make factual and legal determinations, and reverse the board’s decision if it is not supported by a

preponderance of substantial, reliable, and probative evidence.” Cleveland Clinic

Found. v. Cleveland Bd. of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809,

23 N.E.3d 1161, ¶ 24, citing Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d

202, 207, 389 N.E.2d 1113 (1979).

The judgment of the court of common pleas may be appealed to the

appellate court on questions of law. R.C. 2506.04. “An appeal to the court of

appeals, pursuant to R.C. 2506.04, is more limited in scope and requires [the

appellate court] to affirm the common pleas court, unless [it] finds, as a matter of

law, that the decision of the common pleas court is not supported by a

preponderance of reliable, probative and substantial evidence.” Kisil v. Sandusky,

12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984). That “does not include the same

extensive power to weigh ‘the preponderance of substantial, reliable and probative

evidence,’ as is granted to the common pleas court.” Henley v. Youngstown Bd. of

Zoning Appeals, 90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000), quoting Kisil at 34,

fn. 4. “In this context, a reversal ‘as a matter of law’ can occur only when, having

viewed the evidence most favorably to the decision, there are no facts to support the

common pleas court decision.” Kurutz v. Cleveland, 8th Dist. Cuyahoga No.

105899, 2018-Ohio-2398, ¶ 8. “In sum, the standard of review for courts of appeals

in administrative appeals is designed to strongly favor affirmance.” Cleveland Clinic

Found. at ¶ 30. Thus, this court will only review the judgment of the trial court to

determine if the lower court abused its discretion in finding that the administrative

order was supported by reliable, probative, and substantial evidence. Cleveland v.

Posner, 188 Ohio App.3d 421, 2010-Ohio-3091, 935 N.E.2d 882, ¶ 12 (8th Dist.). “A

court abuses its discretion when a legal rule entrusts a decision to a judge’s

discretion, and the judge’s exercise of that discretion is outside of the legally

permissible range of choices.” State v. Hackett, Slip Opinion No. 2020-Ohio-6699,

¶ 19, citing United States v. E.I. du Pont de Nemours & Co., 366 U.S. 316, 372, 81

S.Ct. 1243, 6 L.Ed.2d 318 (1961) (Frankfurter, J., dissenting). Abuse-of-discretion

review is deferential and does not permit an appellate court to simply substitute its

judgment for that of the trial court. State v. Darmond, 135 Ohio St.3d 343, 2013-

Ohio-966, 986 N.E.2d 971, ¶ 34.

Chapter 1155 of the H.V.C.O. governs the zoning of districts and the

use of property in the Village. In order to regulate and restrict the use of buildings

and premises located in the Village, including “the location of single-family houses

and * * * the number of square feet lot area per family housed,” the Village is divided

into districts that each have permitted uses. The three “use districts” designated in

the zoning code are termed (1) “Class U-1 (Single-Family House),” (2) “Class U-3

(Institutional),” and (3) “Class CDD (Conservation Development District).” The

Village also permits a category of specially permitted uses termed “Class U-2

(Residential-Special Permit).” Under H.V.C.O. 1155.01, buildings and premises are

not permitted to be erected or used in the Village unless they conform with the regulations prescribed in the zoning code for “use, height, and area districts in which

such building or premises are located.”

As stated, Roundwood Manor is located in a Class U-1, single-family

district. The classified use for this district is limited to “single-family dwellings.”

H.V.C.O. 1155.02(a)(1). Among other restrictions placed on single-family dwellings,

H.V.C.O. 1155.09(a) provides that “[n]o dwelling shall be * * * altered to

accommodate or make provision for more than one family for each five acres of lot

area.”

In this case, appellant sought to overcome the applicable density

restriction placed on her single-family residence by requesting a Class U-2 special-

use permit pursuant to H.V.C.O. 1155.02(b)(7). This catchall provision of the zoning

code authorizes the Commission to grant a special-use permit for

[a]ny use in general keeping and compatible with the uses authorized for a Class U-1 or Class U-2 classification and which preserves environmental values.

H.V.C.O. 1155.02(b).

The procedure for obtaining a special-use permit is governed by

H.V.C.O. 1155.05. The ordinance provides, in relevant part:

The Planning and Zoning Commission may, in specific cases, after public notice and hearing and subject to such conditions and safeguards as the Commission may establish, issue special permits for Class U-2 uses and determine and vary the application of the use district regulations herein established, which permission shall be confirmed by resolution of Council before becoming effective, as follows:

*** Permit in a use district any use deemed by the Commission to be in general keeping with the uses authorized in such district, provided that such use in such a location will not, in the judgment of the [Commission], substantially injure the appropriate use of the neighboring property.

H.V.C.O. 1155.05(b).

Thus, the relevant inquiry in this case is whether the proposed multi-

family use of Roundwood Manor is a permitted Class-U-2 use as defined under

H.V.C.O. 1155.02(b)(7) and, if so, whether the special use (1) is deemed by the

Commission to be in general keeping with the single-family dwelling use authorized

in a Class U-1 district and (2) will not substantially injure the appropriate single-

family use of the neighboring property.

Generally, “the question of whether or not a special permit should be

granted is committed to the sound discretion of the zoning board.” Town Ctr. Dev.

Co. v. Cleveland, 8th Dist. Cuyahoga No. 42379, 1980 Ohio App. LEXIS 13132, 5

(Dec. 18, 1980); see also Eckert v. Warren Cty. Rural Bd. of Zoning Appeals, 12th

Dist. Warren Nos. CA2017-06-095, CA2017-07-107, CA2017-07-108, and CA2017-

07-109, 2018-Ohio-4384, ¶ 70 (“[l]ocal zoning authorities have significant

discretion to determine whether or not a proposed use complies with the special

permit criteria, and courts will generally defer to their decisions.”). In this regard,

“‘[a]n administrative agency’s reasonable interpretation of local zoning codes is

recognized as an area of administrative expertise and is to be presumed valid.’” JP

Morgan Chase Bank, Inc. v. Dublin, 10th Dist. Franklin No. 10AP-965, 2011-Ohio-

3823, ¶ 11, quoting Glass City Academy Inc. v. Toledo, 179 Ohio App.3d 796, 2008- Ohio-6391, 903 N.E.2d 1236, ¶ 18 (6th Dist.), citing Lamar Outdoor Advertising,

Inc. v. Dayton Bd. of Zoning Appeals, 2d Dist. Montgomery No. 20158, 2004-Ohio-

4796, ¶ 6, and Dick v. Kelleys Island Bd. of Zoning, 6th Dist. Erie No. E-86-63, 1987

Ohio App. LEXIS 7535 (June 19, 1987). Unless the interpretation of a local zoning

code is clearly in error, a court should defer to the administrative interpretation. In

re Aultman Hosp., 80 Ohio App.3d 134, 139, 608 N.E.2d 1104 (10th Dist.1992).

Such deference “is based upon an awareness that an administrative judgment is ‘* *

* the product of administrative experience, appreciation of the complexities of the

problem, realization of the statutory policies and responsible treatment of the

facts.’” Id., quoting Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities v.

Professionals Guild of Ohio, 46 Ohio St.3d 147, 151, 545 N.E.2d 1260 (1989).

Within this assignment of error, appellant challenges the trial court’s

determination that the Commission’s decision was supported by the preponderance

of substantial, reliable, and probative evidence in the record. Importantly, this

assigned error does not claim that the administrative decision was otherwise

unconstitutional, illegal, arbitrary, capricious, or unreasonable. Thus, our review is

limited to the evidentiary argument posed by appellant.

Regarding the requirements of H.V.C.O. Chapter 1155, appellant

argues the trial court arbitrarily upheld the Commission’s conclusion that her

proposed multi-family use of Roundwood Manor was not in general keeping with

the single-family dwelling use authorized in a Class U-1 district. Appellant notes

that Roundwood Manor will continue to be used for residential purposes and will not be expanded beyond its current footprint. Appellant further contends she

presented substantial and credible evidence that her proposal would not

substantially injure the appropriate use of neighboring properties. Rather,

appellant suggests that the conversion of Roundwood Manor into a multi-family

residential property would constitute a “benefit to the community” because the

project would preserve a historic landmark without adversely impairing existing

public services or facilities, and without requiring additional roads, access, parking,

or water and septic systems.

In support of the foregoing arguments, appellant maintains that the

Commission and, in turn, the trial court “ignored” the objective conclusions reached

by her expert, David Hartt, while simultaneously relying on the subjective testimony

posed by the Village’s consultant, George Smerigan. Appellant argues that Smerigan

“failed to conduct the proper analysis under chapter 1155,” and articulated

unsubstantiated opinions that were premised on “mere speculations and

assumptions.”

Based upon our review of the hearing transcripts in this case, and in

light of our limited standard of review, we find the trial court’s affirmance of the

Commission’s decision to deny appellant’s request for a special-use permit is

supported by reliable, probative, and substantial evidence in the record. In this case,

it is undisputed that the proposed multi-family project could not comply with the

zoning code’s requirement that each single-family dwelling located within a Class U-

1 district have five acres of land. H.V.C.O. 1155.09. Given the express language of the zoning code, we are unable to conclude that there are no facts to support the

common pleas court conclusion that “varying from the requirement of one single-

family residence per five acres would not be in general keeping and compatible with

uses authorized in the district.”

Moreover, the evidence submitted to the Commission supports the

trial court’s determination that the proposed six-unit condominium “would

substantially harm neighboring properties because it would create more noise,

traffic, and light in the Village.” Smerigan testified at length concerning the

significance of the five-acre density requirement and the negative impact the six-

unit condominium would have on neighboring properties. Smerigan explained that

the five-acre per dwelling requirement was “the core value” of the Village, and that

the proposed use of Roundwood Manor would harm the value of adjacent

properties. In his supplemental report, Smerigan summarized the substantial

injuries that would be caused to neighboring properties as follows:

In regards to the issue of adverse impacts on adjoining properties, the additional dwellings will mean additional vehicular traffic. Based upon Institute of Traffic Engineers traffic generation standards, the increase will be at least four (4) times. Those coming and goings by residents and their guests will also generate additional noise and activity that will impact adjacent property owners. The likelihood of parties or gatherings, which translate into increased traffic and noise, will be six times more likely than for a single residence. The neighboring property owners did not have an expectation that they would be living adjacent to a multi-family building and the more intensive use of the land that such use implies.

Smerigan reiterated his concerns during the March 13, 2018 evidentiary hearing,

stating that the proposed project would “change the nature and character of the Village” and “adversely impact a fairly significant number of property owners.” (Tr.

62.) Smerigan testified that a variance of the density requirement under these

circumstances would lead to a significant increase in the population, thereby

resulting in changes to public services and utilities.

Notably, appellant’s own expert, Hartt, did not dispute that a six-

family unit building would result in an increase of activity when compared to a

single-family building. (Tr. 19.) We recognize that Hartt attempted to minimize the

potential impact of the proposed project by suggesting that the multi-family use

would result in less activity than would be produced by other Class U-2 uses

identified under H.V.C.O. 1155.02(b), such as municipal buildings, fire stations,

police stations, and private horse stables. Hartt’s comparative argument, however,

is unpersuasive as a matter of law. Pursuant to the zoning code, applications for

special-use permits must be resolved on a case-by-case basis and, as recognized by

the Commission, “the fact that a more objectionable [special use] could be proposed

for the site does not warrant the conclusion that [appellant’s] proposed use is

permissible.”

Although appellant asserts that there is no evidence to support the

Commission’s decision, her evidentiary argument inherently asks this court to weigh

the evidence presented on her behalf and arrive at a different conclusion than

reached by the Commission and the trial court. As discussed, this is not a situation

where no evidence was presented in support of the Commission’s decision. The

Village presented extensive testimony that outlined the ways in which appellant’s special-use permit was not compatible with the use authorized in Class U-1 districts

and described the negative effects the proposed use would have on neighboring

properties. Although both sides presented the Commission with countervailing

evidence in support of their respective positions, “it is not for this court to weigh the

competing evidence or question the manner in which the evidence was weighed

below.” Vang v. Cleveland, 8th Dist. Cuyahoga No. 106519, 2018-Ohio-3312, ¶ 10,

citing Henley, 90 Ohio St.3d at 147, 735 N.E.2d 433.

Based on the foregoing, we find no error of law that would compel this

court to reverse the lower court’s decision to uphold the Commission’s denial of

appellant’s request for a special-use permit.

Appellant’s first assignment of error is overruled.

B. Denial of Opportunity to Admit Additional Evidence

In her second assignment of error, appellant argues the trial court

abused its discretion by summarily denying her request to admit additional evidence

in support of her claim that “the 5:1 acreage-to-residence zoning regulation” is

unconstitutional as applied to Roundwood Manor. Appellant contends that she was

entitled to a de novo hearing and the opportunity to supplement the record because

the evidence supporting her constitutional claim was not sufficiently addressed in

the administrative record.

It is well settled that “a zoning ordinance may be challenged as

unconstitutional on its face or as applied to a particular set of facts.” Jaylin Invests.,

Inc. v. Moreland Hills, 107 Ohio St.3d 339, 2006-Ohio-4, 839 N.E.2d 903, ¶ 11, citing Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329, 55 N.E.2d 629 (1944),

paragraph four of the syllabus. When a zoning ordinance is challenged on its face,

“the challenger alleges that the overall ordinance, on its face, has no rational

relationship to a legitimate governmental purpose and it may not constitutionally

be applied under any circumstances.” Id. at ¶ 11, citing State ex rel. Bray v. Russell,

89 Ohio St.3d 132, 137, 729 N.E.2d 359 (2000). In contrast, when a zoning

ordinance is challenged as applied, the challenger is contesting the validity of the

ordinance as it applies to a particular parcel of property. Id. at ¶ 12, citing Yajnik v.

Akron Dept. of Health, Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d

632, ¶ 14.

A party raising an as-applied constitutional challenge must prove by

clear and convincing evidence that the statute is unconstitutional when applied to

an existing set of facts. Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-

546, 883 N.E.2d 377, ¶ 181. In such a situation, “the ordinance will be presumed to

be constitutional unless it is determined ‘beyond fair debate’ to be ‘clearly arbitrary

and unreasonable and without substantial relation to the public health, safety,

morals, or general welfare of the community.’” Jaylin at ¶ 13, quoting Goldberg

Cos., Inc. v. Richmond Hts. City Council, 81 Ohio St.3d 207, 690 N.E.2d 510 (1998),

syllabus.

In Ohio, “‘[a] constitutional facial challenge to a zoning ordinance is

improper in the context of an administrative appeal.’” Ziss Bros. Constr. Co., Inc. v.

Independence Planning Comm., 8th Dist. Cuyahoga No. 90993, 2008-Ohio-6850, ¶ 34, citing Cappas & Karas Invest., Inc. v. Cleveland Bd. of Zoning Appeals, 8th

Dist. Cuyahoga No. 85124, 2005-Ohio-2735. “‘[T]he proper vehicle for challenging

the constitutionality of an ordinance on its face is a declaratory judgment action.’”

Id. at ¶ 35. On the other hand, if an ordinance is challenged as applied to a particular

property, “considerations of judicial economy allow the common pleas court in an

administrative appeal to address the constitutionality of a zoning ordinance.” Id.

When an as-applied constitutional challenge is raised during an administrative

appeal, the issue for determination is whether the ordinance, in proscribing a

landowner’s proposed use of his land, has any reasonable relationship to the

legitimate exercise of police power by the municipality. Mobil Oil Corp. v. Rocky

River, 38 Ohio St.2d 23, 309 N.E.2d 900 (1974), syllabus.

In this case, appellant did not attempt to challenge the

constitutionality of H.V.C.O. 1155.09 on its face. Rather, the second assignment of

error set forth in appellant’s administrative appeal argued that the 5:1 acreage-to-

residence zoning regulation was unconstitutional as applied to her property.

Without having the opportunity to support her constitutional claim with additional

evidence, the trial court addressed and rejected appellant’s constitutional argument,

finding the density restriction “had a reasonable relationship to the municipality’s

ability to maintain the character of the neighborhood.”

This court has recognized that “an administrative agency, such as a

board of zoning appeals, cannot determine whether an ordinance is unconstitutional

as applied to a particular parcel.” Bencin v. Bd. of Bldg. & Zoning Appeals, 8th Dist. Cuyahoga No. 92991, 2009-Ohio-5570, ¶ 10, citing Roy v. Cleveland Bd. of Zoning

Appeals, 145 Ohio App.3d 432, 763 N.E.2d 240 (8th Dist.2001); SMC, Inc. v. Laudi,

44 Ohio App.2d 325, 338 N.E.2d 547 (1975); Mobil Oil Corp. at 309; FRC of Kamms

Corner, Inc. v. Cleveland Bd. of Zoning Appeals, 14 Ohio App.3d 372, 471 N.E.2d

845 (8th Dist.1984); Scafaria v. Fairview Park, 8th Dist. Cuyahoga No. 61008, 1992

Ohio App. LEXIS 5709 (Nov. 12, 1992); Marquette Steel Co. v. Cleveland Bd. of

Zoning Appeals, 8th Dist. Cuyahoga No. 48397, 1985 Ohio App. LEXIS 5425 (Jan.

3, 1985). Thus, when an as-applied constitutional claim is raised for the first time

during an administrative appeal, “the constitutional claim shall be tried de novo in

the court of common pleas.” Scafaria at 6. In addition, the parties must be given

an opportunity to present additional evidence on the constitutional claim. Roy at

436, citing FRC at 373; see also Knight v. Cleveland Civ. Serv. Comm., 2016-Ohio-

5133, 76 N.E.3d 321, ¶ 27 (8th Dist.).

On appeal, the Village maintains that the trial court properly declined

appellant’s request to perform a de novo review. The Village argues that while

appellant’s motion to introduce additional evidence and convene a hearing de novo

characterized her constitutional claim as an “as-applied” challenge, the substance of

her argument constituted a challenge to the “constitutionality of the [Commission’s]

administrative decision denying her application for a special use permit.” Thus, the

Village contends that appellant’s argument posed issues concerning the

constitutionality of the administrative decision, and the procedures applied by the Commission that must be resolved “based upon the evidentiary record that was

developed before the administrative body.”

In support of its position, the Village relies on this court’s decision in

Ziss, 8th Dist. Cuyahoga No. 90993, 2008-Ohio-6850. In Ziss, this court recognized

that the constitutionality of an ordinance as applied to the property in question can

be challenged as part as an administrative appeal under R.C. Chapter 2506. Id. at

¶ 36. However, this court affirmed the trial court’s denial of Ziss’s request to expand

the record because the substance of the constitutional argument was insufficient to

warrant additional evidence and a de novo hearing. This court explained that

although Ziss’s argument was phrased as an as-applied constitutional challenge, “it

fail[ed] to ‘attack the constitutionality of any particular statute.’” Rather, Ziss’s

constitutional argument attacked the acts or omissions of the administrative zoning

commission and, as such, was “‘a factual challenge to the procedure [of the zoning

commission], not a legal challenge to the constitutionality of the statute in

question.’” (Emphasis sic.) Id. at ¶ 44, quoting Lomaz v. Ohio DOC, 11th Dist.

Portage Nos. 2004-P-0071 and 2004-P-0072, 2005-Ohio-7052, ¶ 47.

After careful consideration, we are unpersuaded by the Village’s

reliance on Ziss. Notwithstanding appellant’s reference to the inadequacy of the

Commission’s “administrative decision,” we find the arguments posed in appellant’s

motion to introduce additional evidence and convene a hearing de novo can be

reasonably interpreted as a challenge to the constitutionality of the ordinance as

applied to her specific property. In the motion, appellant noted that she intended to pursue constitutional arguments that the Commission did not have jurisdiction to

review, including her belief that the application of the zoning regulation to her

proposed use of her property did not “advance substantially the public health, safety,

and welfare of the community.” Citing this court’s decision in Roy, 145 Ohio App.3d

432, 763 N.E.2d 240, appellant advised the trial court of this court’s clear mandate

that “a challenge to the constitutionality of an ordinance, as applied to a particular

parcel, may also be brought pursuant to R.C. Chapter 2506,” and “must be tried de

novo by the common pleas court.” Appellant reiterated her constitutional argument

in her brief in support of her administrative appeal, stating that “isofar as [H.V.C.O.

1155.09] has been applied to her property to deny her a special permit, the

imposition of the regulation violated her constitutionally protected property rights

as an Ohioan.” In addition, appellant’s brief addressed relevant case law involving

analogues as-applied constitutional challenges to minimum lot sizes, and

maintained that no legitimate governmental interest was advanced by the

application of the Village’s five-acre density restriction to Roundwood Manor. Thus,

unlike the circumstances presented in Ziss, appellant’s constitutional argument

went beyond the Commission’s application and interpretation of the relevant zoning

codes, and undoubtedly raised an as-applied constitutional challenge to a specific

section of the zoning code that the Commission did not have the authority to

consider. See Bencin, 8th Dist. Cuyahoga No. 92991, 2009-Ohio-5570, at ¶ 12

(distinguishing the facts of Ziss). Under these circumstances, we find the trial court erred by addressing

the merits of appellant’s as-applied constitutional challenge without permitting

appellant to offer additional evidence in support of her claim that the ordinance is

unconstitutional as applied to the subject property. In addition, the trial court erred

by failing to provide appellant the opportunity to present her constitutional claim at

a de novo hearing. The judgment of the trial court is reversed, in part, and the matter

is remanded for further proceedings consistent with this opinion.

Appellant’s second assignment of error is sustained. The third

assignment of error is rendered moot by our resolution of this assigned error.

III. Conclusion

Based on the forgoing, we affirm the trial court’s judgment upholding

the Commission’s denial of appellant’s request for a special-use permit. However,

we reverse the trial court’s judgment denying appellant’s motion to introduce

additional evidence and convene a de novo hearing. The matter is therefore

remanded for the trial court to conduct a de novo hearing upon providing appellant

the opportunity to present additional evidence in support of her argument that

relevant portions of the Village’s zoning code are unconstitutional as applied to

Roundwood Manor.

Judgment affirmed in part, reversed in part, and remanded for further

proceedings.

It is ordered that the parties share the costs herein taxed.

The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to the common pleas court to carry

this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

LISA B. FORBES, P.J., and EMANUELLA D. GROVES, J., CONCUR