COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72781 TRI-COUNTY CONCRETE CO. : : Appellee : JOURNAL ENTRY : -vs- : AND : CITY OF NORTH ROYALTON : OPINION PLANNING COMMISSION : : Appellant : Date of Announcement of Decision: JUNE 11, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 320976 Judgment: AFFIRMED Date of Journalization: Appearances: For Appellee: For Appellant: TIMOTHY J. GRENDELL, ESQ. ROBERT J. SINDYLA, ESQ. Grendell & Targove Assistant Prosecutor 6060 Rockside Woods Blvd. City of North Royalton Independence, Ohio 44131 7425 Royalton Road North Royalton, Ohio 44133 -2- JAMES M. PORTER, J.: Appellant City of North Royalton Planning Commission appeals from the judgment of the Common Pleas Court reversing the decision of the Commission which denied appellee Tri-County Concrete Company's Phase III site plan for recycling concrete. The Commission contends the trial court's decision was not supported by the preponderance of the evidence and erred in holding the Commission's decision was arbitrary and unreasonable. For the reasons that follow, we find no error and affirm the trial court's judgment. Tri-County owns certain industrial zoned property (16 acres) located in the City of North Royalton, Ohio. Starting in 1996, Tri-County applied for a permit to construct a concrete batch plant and concrete recycling operation on the property. The City required that Tri-County obtain a variance because Tri-County's proposed uses were not specifically enumerated in the City's Zoning Code provisions concerning industrial use. Tri-County obtained a use variance from the Board of Zoning Appeals (BZA) of the City, subject to eighteen performance standards and restrictions governing the facility and its operation. These requirements did not include the enclosure of the recycling operation. Several residents challenged the variance. The Common Pleas Court upheld the validity of the variance in Mark Staron, et al. v. City of North Royalton, et al., C.P. Case No. 309157. There was no appeal from that ruling. -3- Tri-County applied for site plan approval from the Planning Commission in order to obtain the necessary building permits for construction of the facilities. Tri-County's property is surrounded on all four sides by properties that are also zoned General Industrial: (1) to the west the property is currently being used for the storage of remnant truck trailers; (2) to the east the property is occupied by a U-Haul storage facility; (3) to the north is vacant property; and (4) to the south a ravine exists. Tri- County sought site plan approval from the Commission for the construction of a multi-purpose concrete facility consisting of three phases: Phase I - an industrialized office unit; Phase II - a concrete batch processing plant; and Phase III - a concrete recycling plant. Following the issue of the use variance dated May 20, 1996, the Law Director of the City began researching the question of enclosing the Tri-County recycling operation. By a letter to the Planning Commission dated July 30, 1996, the Law Director stated that [u]pon reviewing the BZA's Use Variance it appears that the `operation' does not have to be enclosed, however, the Planning Commission does have authority to require fencing screening the operation from adjacent property. The legal memorandum dated July 11, 1996, enclosed with the letter, contained the following observations: Main Uses Permitted and Accessory Uses Permitted are defined in Section 1278.04 of the code. The use for which Tri-County was granted its variance is not one of the defined permitted uses. Tri-County therefore correctly argues that, since its intended use -4- of the property to operate a crusher is not a permitted use, the crusher operation is not required to be carried out within an enclosed building. The argument that because a use variance has been granted, operation of the crusher has been transformed into a permitted use and is therefore subject to Section 1278.00(b)(1) is fallacious because Main Uses Permitted is a defined term, and that definition is not changed by the granting of a variance. Thus, the crusher operation cannot be required to be enclosed within a building. The site plan approval came on for public hearing before the Planning Commission on November 20, 1996. After presentations by Tri-County's principal and counsel, and a lengthy discussion, the Commission approved Phases I and II of the site plan, but denied Phase III on the grounds that Tri-County's site plan was also subject to Sec. 1278.09 of the City's Zoning Code's requirement of enclosed buildings, notwithstanding the eighteen express requirements set forth in the use variance. Tri-County filed an administrative appeal from the Commission's ruling to the Common Pleas Court pursuant to R.C. 2506. The Common Pleas Court ruled: The evidence before this Court indicates that appellant has complied with the use variance and all EPA and state environmental regulations, and therefore, as a matter of law, the decision of the Planning Commission was arbitrary and unreasonable, and is ordered reversed by this Court. *** Tri-County is entitled to use Phase III as a concrete recycling facility. (Journal Entry, dated June 3, 1997). Appellant has timely appealed from the trial court's order. We will address appellant's assignments of error together as the arguments respecting same are intertwined. -5- I. THE TRIAL COURT ERRED WHEN ITS REVERSAL OF APPELLANT'S DECISION WAS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE. II. THE TRIAL COURT ERRED IN HOLDING THAT THE PLANNING COMMISSION'S DECISION TO DENY APPROVAL FOR PHASE III WAS ARBITRARY AND UNREASONABLE. This case presents for our review an appeal from a trial court's disposition of a R.C. Chapter 2506 administrative appeal from a Planning Commission ruling. The scope of review both at the trial court and appellate level was well established in Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34: When a zoning ordinance is enforced in an unreasonable and arbitrary manner, as in this case, it is the responsibility of the trial court, reviewing the action pursuant to R.C. Chapter 2506, to reverse the findings of the board of zoning appeals. The scope of review by the trial court is set forth in R.C. 2506.04, which requires the court to examine the substantial, reliable and probative evidence on the whole record. This court has noted in Cincinnati Bell v. Glendale (1975), 42 Ohio St.2d 368, 370 [71 O.O.2d 331], that *** [a]lthough a hearing before the Court of Common Pleas pursuant to R.C. 2506.01 is not de novo, it often in fact resembles a de novo proceeding. R.C. 2506.03 specifically provides that an appeal pursuant to R.C. 2506.01, `shall proceed as in the trial of a civil action,' and makes liberal provision for the introduction of new or additional evidence. A court of common pleas should not substitute its judgment for that of an administrative board, such as the board of zoning appeals, unless the court finds that there is not a preponderance of reliable, probative and substantial evidence to support the board's decision. This court pointed out in Dudukovich v. Housing Authority (1979), 58 Ohio St.2d 202, 207 [12 O.O.3d 198], [t]he key term is `preponderance.' The court went on further to explore the scope of review by -6- the appellate courts and found, [i]n determining whether the standard of review prescribed by R.C. 2506.04 was correctly applied by the Court of Common Pleas, both this court [the Supreme Court] and the Court of Appeals have a limited function. Id. In an R.C. Chapter 2506 administrative appeal of a decision of the board of zoning appeals to the common pleas court, the court, pursuant to R.C. 2506.04, may reverse the board if it finds that the board's decision is not supported by a preponderance of reliable, probative and substantial evidence. An appeal to the court of appeals, pursuant to R.C. 2506.04, is more limited in scope and requires that court to affirm the common pleas court, unless the court of appeals 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. We agree with the trial court that the Commission's action denying approval of Tri-County's Phase III site plan was not supported by a preponderance of reliable, probative and substantial evidence and that the Commission arbitrarily and unreasonably applied the requirements set forth in Sec. 1278.09 of the City's Zoning Code as a prerequisite to obtaining Phase III site plan approval. As the minutes of the Planning Commission's November 20, 1996 hearing make clear, the Commission based its denial of the Phase III site plan upon the fact that Tri-County's recycling operations would not be enclosed as required by Sec. 1278.09(B)(1) of the General Industrial District regulations of the Zoning Code. However, as detailed in the use variance itself and in the July 30, 1996 legal opinion of the City's law director and the legal memorandum dated July 11, 1996 on which it relied, that code provision was inapplicable to Tri-County's concrete facility. -7- Sec. 1278.04 of the City's Zoning Code provides for those general industrial uses that are permitted under the General Industrial District. However, the City had pre-determined in granting the use variance that Tri-County's proposed concrete batch and recycling facility was not a permitted use under Sec. 1278.04. Consequently, the requirements of enclosure set forth in Sec. 1278.09 did not apply to Tri-County's facility. The performance standards and restrictions to be applied to Tri-County's use did not stem from the general industrial performance standards, but proceeded directly from the use variance itself. The preamble of the use variance states: The Use Variance is hereby granted to the property located at 10155 Royalton Road, North Royalton, for the operation of a Concrete Batch Mixing Plant and Concrete Recycling Plant, provided that the following performance standards are complied with and the restrictions on occupancy and use are not violated. Failure to comply with any of the performance standards or violation of any of the restrictions hereinafter enumerated shall be considered grounds for revocation of the Use Variance. The express language of this preamble shows that the performance standards under the G-1 General Industrial Zoning District were not intended to and do not apply to the concrete facility. In granting the use variance, the Board of Zoning Appeals clearly sets forth eighteen performance standards and restrictions specifically applicable to Tri-County's concrete facility. The variance contains no reference that would require the recycling equipment to be enclosed. Moreover, the use variance does not rely upon other portions of the Zoning Code as a basis for its -8- authority. It is evident from the specific requirements set forth in Tri-County's use variance that the concrete facility would be governed, not by the Zoning Code, but by the variance itself. The City erroneously asserts that the granting of the use variance transforms the proposed concrete facility into a permitted use, thereby making it subject to the requirements of the Zoning Code. Section 1278.04 specifically defines the permitted uses which are governed by the Code. Because Tri-County's use is not listed in this section, and it was instead awarded a use variance for the facility, the code's enclosure requirements under Sec. 1278.09 are inapplicable to the facility. This conclusion is further supported by the last paragraph of Tri-County's use variance which states: The Permit User fully understands all of the conditions set forth herein, and acknowledged at the April 10, 1996 Meeting of the Board of Zoning Appeals, that the Permit User is able to comply with all of the conditions and agreed to be bound by the conditions set forth herein. This paragraph clearly communicates that the use variance was intended to be the binding agreement between Tri-County and the City. Its language establishes that the restrictions and conditions governing the concrete facility were set forth only in the variance. Accordingly, Tri-County's approved use was removed from the requirements of Sec. 1278.09 and it is strictly confined to the requirements and parameters in the use variance. Furthermore, the City itself acknowledged that the concrete facility was not governed by the enclosure requirements of Sec. -9- 1278.09. The City's own law department issued a memorandum which stated that upon reviewing the Board of Zoning Appeals' use variance, it appears that the operation does not have to be enclosed, however, the Planning Commission does have authority to require fencing, screening the operation from adjacent property. The July 11, 1996 legal memorandum states as follows: The argument that, because a use variance has been granted, operation of the crusher has been transformed into a permitted use and is therefore subject to Section 1279.09(b)(1) is fallacious because Main Uses Permitted is a defined term, and that definition is not changed by the granting of a variance. Thus, the crusher operation cannot be required to be enclosed within a building. This memorandum clearly supports Tri-County's position that an enclosed recycling facility was not required as its operation is restricted only by the use variance. We find no substantive or credible evidence to support the Planning Commission's denial of the Phase III site plan. It is evident that the Planning Commission assumed that Tri-County's site plan was subject to the requirements of Sec. 1278.09 of the City's Zoning Code. At the time of its decision, the Commission failed to consider the use variance performance standards that applied to the Phase III site plan. The recycling enclosure issue had been previously considered by the Board of Zoning Appeals when issuing Tri-County's use variance. In discussing the performance standards that would be required in the use variance, Board of Zoning Appeals member Robert Cebula stated that this is a different type of operation -10- than one that is in an enclosed building. (BZA Minutes, April 10, 1996 at p. 15). If the Board of Zoning Appeals desired that the performance standards encompass the enclosure of the recycling equipment, it would have included such a requirement in granting the variance. However, no such requirement is included in the eighteen performance standards and restrictions in the use variance. The record lacks any reliable, probative or substantial evidence to refute the July 11, 1996 memorandum prepared by the City's own law department which concurred with Tri-County's position that the crusher operation cannot be required to be enclosed within a building. Therefore, we find that the Planning Commission's denial of the Phase III site plan was not supported by a preponderance of reliable, probative or substantial evidence in the record. Accordingly, the Planning Commission acted in an unreasonable and arbitrary manner in requiring an enclosure of the recycling facility. Assignments of Error I and II are overruled. Judgment affirmed. -11- 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. BLACKMON, A.J., CONCURS. MICHAEL J. CORRIGAN, J., DISSENTS. (SEE DISSENTING OPINION ATTACHED) JAMES M. PORTER JUDGE 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. 112, Section 2(A)(1). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72781 TRI-COUNTY CONCRETE CO. : : : Appellee : : : DISSENTING OPINION -vs- : : CITY OF NORTH ROYALTON : PLANNING COMMISSION : : Appellant : : : DATE: JUNE 11, 1998 MICHAEL J. CORRIGAN, J., DISSENTING: I respectfully disagree with the majority. Although it is clear that the appellee sought and received a use variance on May 20, 1996, permitting the placement of a concrete facility from the Board of Zoning Appeals, this did not exempt it from thereafter obtaining permits and approval from the Planning Commission. The appellee, by its own actions, acknowledged the above by seeking site plan approval from the Planning Commission in Phases I, II and III. (See Planning Commission Minutes 11/20/96). Phases I and II were approved by the Planning Commission while Plan III was not. If the performance standards and restrictions flowed from the variance and not the Code, why did appellee appear before the Commission after the use variance had been granted? Contrary to the opinion of the majority -- and notwithstanding the granted use -2- variance -- I believe that the site plan and each of its three phases is subject to the City's Building Code. It would be ludicrous to rewrite the entire Code into each variance. It is clear that the Code was intended to be incorporated by reference in paragraph fifteen (15) of the use variance which states in part that: 15. The rights and remedies of the City herein are not exclusi ve and the City shall have all other rights, remedies, proceedings or courses of action available to the City generally under law *** . The majority expresses the view that the appellant was andating that the mobile portable crusher be enclosed in a uilding. The memorandum dated 7/11/96, submitted by the law irector to the Planning Commission, suggests that compliance with ection 1278.09 would be achieved in the case of the mobile ortable concrete recycling machine ( crusher ) by enclosing the ame with a fence. The majority accepts appellee's argument that the `use' ariance and its eighteen (18) subsections are all inclusive and xempts Tri-County from the mandates of the building code. I isagree and, therefore, would reverse the trial court and reinstate .