COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71048 HYMAN BUILDERS, ING. : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION CITY OF SEVEN HILLS : : Defendant-appellant : : : OCTOBER 9, 1997 DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-287703 : JUDGMENT : Affirmed DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: MARY JO TIPPING, ESQ. PATRICK DICHERO, ESQ. ROGER M. SYNENBERG, ESQ. 6000 Lombardo Center, #120 Synenberg & Synenberg Seven Hills, OH 44131 222 Leader Building 526 Superior Avenue RICHARD PIGNATIELLO, ESQ. cLEVELAND, oh 44114 7325 Summitview Driver Seven Hills, OH 44131 2 PATTON, P.J. This appeal arises from the trial court's reversal of a city council's decision denying approval of a land developer's proposed subdivision plat. Appellant-City of Seven Hills ( city ) appeals the decision of the trial court reversing its decision denying Appellee-Hyman Builders, Inc.'s, ( Hyman ) plan to develop land into forty-eight sublots. Hyman had numerous discussions and meetings with the Seven Hills Planning Commission and city council over a period of fifteen months regarding the proposed plan. Initially, the planning commission approved Hyman's plan but the plan was subsequently rejected by city council. City council set forth six reasons for rejecting the plan. One of the reasons was that the plan included a cul-de-sac which was in violation of city ordinance 913.06, which precludes the use of cul-de-sacs in any new subdivisions. A second reason was the concern for the safety of downstream residents because of the potential for flooding and mudslides as a result of the new subdivision. Again, Hyman met with the planning commission and city council. Hyman explained that there were existing cul-de-sacs in new developments in Seven Hills and that the present cul-de-sac could be eliminated if the city sold Hyman a piece of land so the street could be extended. Also, Hyman stated it would build a retention basin to avoid possible flooding and mudslides. On March 2, 1995, the planning commission met. Hyman addressed the commission and stated it had resolved all the 3 problems. The planning commission rejected the plan based on the following: 1. Concerns for the safety and security of the people as it relates to the possibility of flooding and/or mudslides in an area identified as Bramblewood Estates or, as otherwise stated, the effects that the construction could have on downstream residents; and, 2. The existence of Section 913.06 of the Codified Ordinances of the City of Seven Hills relating to cul-de- sacs. City council met on March 13, 1995, and concurred with the planning commission's recommendation to reject approval for Hyman's development plan. Hyman appealed to the Cuyahoga County Court of Common Pleas ( trial court ), pursuant to R.C. 2506. The trial court reversed the city council decision stating: For the foregoing reasons, this Court finds Appellee's decision to reject Appellant's application for preliminary plat development plan as to the Mapleview- Simich subdivision based upon the two enumerated reasons for rejection to be illegal, arbitrary, unreasonable, and not supported by the preponderance of substantial, reliable and probative evidence on the record. The March 13, 1995 decision of the Seven Hills Council wherein it confirmed the Planning Commission's decision to deny preliminary approval of Appellant's preliminary plat for the Mapleview-Simich subdivision is reversed. On July 31, 1996, Seven Hills appealed the decision of the trial court to this court, asserting in its sole assignment of error the following: THE TRIAL COURT ERRED WHEN IT DECLARED APPELLANT'S MUNICIPAL ORDINANCE 913.06(f) IN VIOLATION OF THE CONSTITUTION OF THE STATE OF OHIO DUE TO IT'S ALLEGED ARBITRARY APPLICATION WHERE THERE WAS NO EVIDENCE ON THE RECORD OR PRESENTED BY APPELLEE THAT THE FOREGOING ORDINANCE HAS BEEN ARBITRARILY OR HAPHAZARDLY APPLIED. 4 The city argues first that the trial court erred in finding that it arbitrarily and haphazardly applied 913.06(F) where the record is devoid of any evidence of its application. Hyman maintains the record contains multiple references to reflect the arbitrary application and haphazard enforcement of the cul-de-sac ordinance. In support of this contention, Hyman cites the following three instances where members of city council and the planning commission referred to application of the ordinance: 1. At the Planning Commission meeting held on November 4, 1993, City Engineer Fulton stated that: Just from a planning stand point our city has a number of 3,000 foot long cul-de-sacs that don't go anywhere. 2. During the discussion period following the Commission's grant of preliminary approval at the April 7, 1994 meeting Council Liaison Miller stated as follows: I would like to point something out in the conversation. You mentioned an ordinance against cul de sacs. There's a problem with that ordinance. And the primary problem is that we have never exercised that ordinance and we have cul de sac streets. So you can't go back and exercise an ordinance if you haven't enforced it before. 3. Subsequent to Council Liaison Miller's statement of reasons for Council's rejection of preliminary approval at the Planning Commission meeting held May 5, 1994 the following exchange took place: Mr. Masek: I am a little concerned as a citizen with the area you are discussing with the cul de sacs because I have lived here almost 30 years and we've put cul de sacs in 5 for that length of time and as a resident I don't want to see a lot of money spent in litigation and I think we will see ourselves faced with that with the history we have and disallow cul de sacs. This is my personal opinion. Mr. Fitz: The cul de sac ordinance as such was never enforced in this City? Mr. Miller: My understanding is it was haphazardly enforced and that in itself is a problem. The enforcement has to be even all across the board. We will be researching that also. Based on this evidence the trial court held there is ample evidence in the record to support Appellant's argument that the City of Seven Hills has arbitrarily and haphazardly enforced City Ordinance 913.06(f) in violation of the Constitution of the State of Ohio. On an appeal to this court, pursuant to R.C. 2506, we are required to affirm the decision of the court of common pleas unless, as a matter of law, the decision of the court of common pleas is not supported by a preponderance of reliable, probative and substantial evidence. Kisil v. City of Sandusky (1984), 12 Ohio St.3d 30, 34. The comments in the record made by city officials indicate there are cul-de-sacs in the city and that ordinance 913.06(f) has been haphazardly enforced. The city's first argument fails. The city next argues that the trial court erred in finding the ordinance to be arbitrarily applied because Hyman did not submit evidence indicating the other cul-de-sacs in the city were put in 6 after the passage of the ordinance in 1968 and thus there was no basis upon which to reverse the city council's decision. The trial court based its reversal of the city council's decision on the comments made in the record by the council liaison stating the ordinance had been haphazardly enforced. Therefore, the city's argument that the trial court had no evidence upon which to base its decision because there was no evidence of post-1968 cul-de-sacs in the record is contradicted by the record. Lastly, the city submits Seven Hills Land Company General Partnership v. City of Seven Hills (Jan. 19, 1995), Cuyahoga C.P. No. 271047, unreported, where another trial court's holding was contrary to the instant holding based on the same ordinance and similar facts. In Seven Hills Land Company the trial court discussed the arbitrary enforcement of 913.06(f) and comments made in the record and stated the record is devoid of any evidence establishing this fact save for the isolated comments referenced above. The court in Seven Hills Land Company only referenced the comments and neither revealed their actual content nor whether the comments had any persuasive value. In contrast, in the instant case the trial court referred to comments made on the record and quoted them in its opinion and then relied on these comments to reverse the city council's decision. The facts in each case are similar and the ordinance in question, 913.06(f), is the exactly the same. However, the results are different because one trial court found comments made on the record to be probable, reliable, and substantial evidence while another 7 trial court did not. This contradiction does not pose a problem for this court because we are not bound by lower court decisions and we are guided by presumption that the findings of the trier-of- fact, in the underlying case, are indeed correct. Seasons Coal v. Cleveland (1984), 10 Ohio St.3d 77, 80. Based on the foregoing analysis, we find there was substantial, probative, and reliable evidence in the record upon which the trial court could base its decision. Accordingly, the city's assignment of error is overruled. Judgment affirmed. 8 It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Court of Common Pleas 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. SPELLACY, J. HOLMES, J.,* CONCURS. PRESIDING JUDGE JOHN T. PATTON (*SITTING BY ASSIGNMENT: ROBERT E. HOLMES, RETIRED JUSTICE OF THE OHIO SUPREME COURT) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .