COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71942 JOSEPH KABATEK, et al. : : Plaintiffs-appellants : : JOURNAL ENTRY vs. : and : OPINION CITY OF NORTH ROYALTON : CITY COUNCIL, et al. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 8, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 301,572 JUDGMENT : REVERSED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: TIMOTHY J. GRENDELL Attorney at Law Grendell & Targove 6060 Rockside Woods Blvd., #250 Independence, Ohio 44131 For defendant-appellees: ROBERT J. SINDYLA Director of Law 7425 Royalton Road North Royalton, Ohio 44133 TIMOTHY E. McMONAGLE, J.: -2- Plaintiffs-appellants, Joseph and Ludvika Kabatek ( appel- lants ), trustees and owners of property located in North Royalton, Ohio, appeal the judgment of the Cuyahoga County Common Pleas Court upholding North Royalton City Council's decision to deny appel- lants' application for a conditional use permit. For the reasons that follow, we reverse. The record reflects that appellants own 19.5 acres of residentially-zoned property located in the City of North Royalton ( City ). The property is encumbered by several oil and gas easements and is topographically unique in that a steeply sloping ravine borders the western portion of the property. In July 1995, the North Royalton City Council ( Council ) adopted Ordinance 95- 99, which amended the City's Zoning Code by creating a new section providing for single-family cluster development as a conditional use for property residentially zoned. As a result of this legislation, appellants applied for a conditional use permit on December 2, 1995, submitting with their application the plans for a 37-unit single-family cluster development. As part of the application review process, the City's engineer, Charles Althoff, and its building commissioner, Carl Gawelek, as well as Cuyahoga County Planner Carol Thaler, consid- ered whether appellants' proposed use met the qualifications for issuance of a conditional use permit. Finding that the standards and conditions were satisfied, all three recommended approval of the permit. -3- As required by the City's Zoning Code, a public hearing was held on December 20, 1995, to discuss appellants' cluster develop- ment plan. Attending this hearing on behalf of appellants was Civil Engineer Richard McCann, who presented appellants' plans to the North Royalton Planning Commission ( Planning Commission ). Also present at this hearing were several residents who opposed approval of the development. The Planning Commission denied the permit. Council did the same on January 2, 1996.1 Appellants appealed this decision to the Cuyahoga Court of Common Pleas under R.C. Chapter 2506, requesting reversal on the basis that Council's action was not supported by a preponderance of reliable, probative and substantial evidence. Finding to the contrary, the trial court denied appellants' appeal. Appellants timely appeal to this court, assigning the following errors for our review: I. THE TRIAL COURT ERRED AS A MATTER OF LAW, BY RULING AGAINST THE APPELLANTS AND TOTALLY DISREGARDING THE RECOMMENDATIONS OF THE CITY'S OWN EXPERTS WHO RECOMMENDED APPROVAL OF APPELLANTS' CONDITIONAL USE PERMIT. II. THE TRIAL COURT ABUSED ITS DISCRETION AS A MATTER OF LAW, BY AFFIRMING APPELLEES' DENIAL OF APPELLANTS' CONDITIONAL USE PERMIT BECAUSE THE CITY COUNCIL'S DECI- SION WAS NOT SUPPORTED BY PROBATIVE, RELIABLE AND SUBSTANTIAL EVIDENCE IN THE WHOLE RECORD. 1It appears from the parties' briefs that Council subsequently repealed the ordinance permitting cluster housing development and further re-zoned several hundred acres of residential land, including appellants' property, from half-acre lot residential to one-acre lot rural residential. -4- III. THE TRIAL COURT ERRED AS A MATTER OF LAW, BY AFFIRMING APPELLEES' DENIAL OF APPEL- LANTS' CONDITIONAL USE PERMIT BECAUSE SUCH DECISION WAS BASED UPON IMPROPER MOTIVES. I. Appellants' first two assignments of error are related and challenge the trial court's decision upholding Council's denial of their application for a conditional use permit. As such, they will be discussed together. At issue under these assignments of error is whether Council had the authority to deny appellants a conditional use permit if appellants had satisfied the conditional requirements as contained in the City's Zoning Code. It is undisputed that at the time of appellants' application, cluster housing developments were permitted as a conditional use under Section 1270.34(b) of the North Royalton Planning and Zoning Code. Section 1262.07 governs the procedures for obtaining conditional use permits and provides, in part: (a) In general. Conditional use permits shall be required for certain types of main uses, as defined in Section 1268.02, generally a pub- licly operated use or a facility which affects the public interest. Such use may be permit- ted and desirable in certain districts, but not without consideration in each case of the effect of the use upon neighboring land and the public need for the particular use at the particular location. *** Enumerated throughout this Zoning code are certain uses and the districts in which conditional uses may be permitted, provided the following standards are fulfilled and a conditional use permit is granted by the Planning Commission and approved by Council. -5- The standards to be fulfilled are listed in subsection (c), which provides that an application for a conditional use permit in a residential district will not be approved unless the following conditions and standards are satisfied: A. That the proposed use is properly located in relation to any adopted land use or street plan, particularly as to the col- lector and local street systems and pedestrian circulation; B. That when located on a local street the proposed use will generate the least possible traffic through a residential neighborhood; C. That the proposed use is necessary to serve the surrounding residential areas which cannot be served satisfactorily if the same use is located in a nearby less restrictive district where it may be permitted by right; D. That the location, design and operation of such use will not discourage the appropriate development or impair the value of the surrounding residential district; and E. That for temporary structures every con- ditional use permit shall be reviewed every six months and may be renewed only while the construction operations are pursued diligently. Appellants contend that the above conditions were satisfied and, therefore, they are entitled to a conditional use permit. Appellees, relying on subsection (a) of this section, maintain that approval is discretionary. Alternatively, appellees argue that, if not discretionary, appellants have failed to meet all the require- ments for cluster development under Section 1270.34, in particular the open-spaces requirement. -6- R.C. 2506.04 provides the appropriate standard that a court of common pleas must apply when reviewing a decision of an administra- tive agency. The common pleas court is required to weigh the evidence in the record, and whatever additional evidence is admitted under R.C. 2506.03, to determine whether a preponderance of the reliable, probative and substantial evidence exists to support the agency's decision. Dudukovich v. Housing Authority (1979), 58 Ohio St.2d 202, 207. If a preponderance of such evidence exists, then the trial court must affirm the decision; if it does not exist, the court may reverse, vacate, modify or remand. Id. An appellate court's authority, however, is not as extensive as that of the common pleas court. Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34; Howard v. Coventry Twp. Bd. of Zoning Appeals (1996), 110 Ohio App.3d 691, 693. The appellate court must affirm the decision of the trial court unless it finds, as a matter of law, that the decision is not supported by a preponderance of reliable, probative and substantial evidence. Kisil, supra at 34. Upon review of the record, we find that the trial court's decision is not supported by a preponderance of reliable, probative and substantial evidence. As appellants note, the city's engineer, its building commissioner and a county planner all recommended approval of the permit. The city engineer in particular discussed each of the five conditions and how each was satisfied. The county planner, while voicing some concern over the amount of open space, later seemed satisfied that appellants' proposed use complied with this requirement and ultimately recommended approval of the permit. -7- With the exception of an isolated negative comment by a member of the Planning Commission,2the bulk of opposition to the development was voiced by adjacent landowners. The City's Zoning Code terminology notwithstanding, the fact that an adjudicatory hearing is open to the public does not transform it into a legislative public hearing with the attendant right to receive public comment. See In re Rocky Point Plaza Corp. (1993), 86 Ohio App.3d 486, 491-492. A public hearing is one where members of the general public may speak and express their views on questions of governmental, political and policy considerations as to whether certain legislation should be adopted. An adjudication hearing, on the other hand, involves the determination of rights of specific persons and whether such rights should be granted. It is upon the evidence presented, and not public opinion, that such a determinationis made. Id. See, also, Adelman Real Estate Co. v. Gabanic (1996), 109 Ohio App.3d 689, 694. Moreover, [l]egal matters are determined by facts, not beliefs or desires. See Libis v. Bd. of Zoning Appeals (1992), 33 Ohio App.2d 94, 100; see, also, Hydraulic Press Brick Co. v. Council of Independence (1984), 16 Ohio App.3d 204, 208; Brooklyn Airport Assoc. v. Brooklyn (Dec. 8, 1994), Cuyahoga App. No. 66590, unreported. A decision rendered on the basis of public opinion does not rise to the level of reliable, probative and substantial evidence required under Kisil 2Planning Commission member Tom Koch, without any substantiation, rather subjectively remarked that he did not think that appellants' property [was] the spot for clusters *** . -8- and Dudukovich unless there are facts supporting those opinions. See Adelman, 109 Ohio App.3d at 694. Nonetheless, appellees rely on language in Section 1262.07(a) that states that conditional uses may be permitted and desirable in certain districts, but not without consideration in each case of the effect of the use upon neighboring land and the public need for the particular use at the particular location. Even if we were to find that this language overrides the conditions set forth in subsection (c), the record is bereft of any evidence that supports that the proposed development would have a negative impact on neighboring land or otherwise not satisfy a public need. We are mindful that the issuance of a conditional use permit is not a matter of right. See Gerzeny v. Richfield Twp. (1989), 62 Ohio St.2d 339. Nonetheless, a city cannot arbitrarily deny a property owner's use of land merely because the proposed use is no longer desired. Gillespie v. Stow (1989), 65 Ohio App.3d 601, 607; see, also, Hydraulic Press Brick, 16 Ohio App.3d at 208. This is precisely what occurred in this case and was over- looked on appeal to the trial court. The evidence before the Planning Commission and Council indicated that appellants' proposed use satisfied the conditions set forth in the City's zoning regulations. Notwithstanding the opinions of adjacent landowners, there did not exist a preponderance of reliable, probative and substantial evidence supporting the trial court's judgment. Consequently, the trial court erred in upholding the denial of appellants' application for a conditional use permit. -9- Accordingly, appellants' first and second assignments of error are well-taken and hereby sustained. II. In their third assignment of error, appellants contend that the denial of their conditional use permit was based upon impermis- sible motives. Due to our disposition of appellants' first two assignments of error, it is not necessary for us to review this assignment of error. See App.R. 12(A)(1)(c). Judgment reversed. -10- This cause is reversed. It is, therefore, considered that said appellants recover of said appellees their costs herein. It is ordered that a special mandate be sent to the Cuyahoga County 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. JOSEPH J. NAHRA, P.J. and ROBERT E. HOLMES, J.* CONCUR JUDGE TIMOTHY E. McMONAGLE 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 .