{¶ 3} Appellant, thereafter, appealed the decision of Appellee to the Lorain County Court of Common Pleas. In support of its appeal, Appellant supplemented the trial court record with numerous exhibits, including minutes from Council meetings and correspondence between the parties. Ultimately, the trial court affirmed Appellee's denial of Appellant's application, without articulating supporting rationale based upon the record before it. Appellant timely appealed the trial court's decision. This Court reversed, finding that the trial court had utilized an improper standard of review. See South Park Ltd. v. Avon, 9th Dist. No. 04CA008558,
{¶ 4} In its sole assignment of error, Appellant argues that reversal is appropriate on multiple grounds. Specifically, Appellant alleges that Appellee's decision was not supported by a preponderance of substantial, reliable, and probative evidence. We agree.
{¶ 5} Appellant appealed the decision of Appellee to the court of common pleas pursuant to R.C.
"considers the `whole record,' including any new or additional evidence admitted under R.C.
Pursuant to R.C.
{¶ 6} The standard of review used by this Court in an R.C.
{¶ 7} Therefore, when reviewing the judgment of a common pleas court which determined an appeal from an administrative agency, "[w]e must affirm the [trial court] unless that court's decision `is not supported by a preponderance of reliable, probative and substantial evidence.'" White v. Cty. of Summit,
9th Dist. No. 22398,
{¶ 8} In support of affirmance, Appellee urges that it acted within its authority and that Appellant failed to comply with the applicable zoning regulations. Upon review of the record, we disagree.
{¶ 9} Upon denying Appellant's motion, Councilman Julius noted that he did not feel that the project was in the best interest of the City. Councilman Gentz expressed his rationale for voting to deny the permit as follows:
"[T]here's nothing in here that tells me this is in the best interests of the City, there's nothing that tells me that this development could not have been placed before the City as traditional lots, there's nothing in here that would present us with any special circumstances to allow a cluster development, and that's the reason for my negative vote."
Councilwoman Easterday supported her negative vote by noting that she felt that the developer had not worked with the City enough and that the development could be significantly better. Councilwoman Hartwig voted against the permit based upon the fact that it proposed a cluster development and that she believed it was near high tension wires. Councilman Wearsch relied upon the preamble to the zoning ordinance and his belief that the property did not meet the green space requirements of the code to justify his negative vote. Councilman Kilroy gave no reason for his negative vote. Finally, Councilman Nickum voted in favor of granting the permit.
{¶ 10} As demonstrated above, of the six members who voted against granting the permit, nearly all relied in some part upon the preamble to the City's zoning code. Avon Planning and Zoning Code ("A.P.Z.C.") 1262.01 provides as follows:
"PURPOSE
"The R-1 and R-2 Residential Districts and their regulations are established in order to achieve, among others, the following purposes:
"(a) To implement the Master Plan policies by encouraging the development of residential areas with a range of housing types which encourage social and economic amenities necessary for well-balanced residential neighborhoods.
"(b) To regulate the density and distribution of population in accordance with the Master Plan to avoid congestion and provide adequate public services.
"(c) To protect the desirable characteristics and promote the stability of existing residential development and to protect adjacent properties from unreasonable obstruction of light and air.
"(d) To provide for proper location of institutions and other community facilities so as to increase the general convenience, safety and amenities within the community."
In relying upon the above, Council members urged that these provisions were prerequisites to obtaining a zoning permit. We disagree.
{¶ 11} By its plain language, Section 1262.01 does not create any zoning requirements. Rather, it details the overriding purposes which are to be achieved by the zoning regulations which follow. To permit the Council to rely upon the general aspirations set forth above would effectively abrogate the specific provisions which follow and grant the Council the ultimate authority to determine City planning, with no guidelines to inform their decisions.1 Further, enforcing such broad concepts, like whether a proposed development is in the best interest of the City, runs afoul of this Court's precedent. InGillespie v. Stow (1989),
{¶ 12} Simply stated, "[t]he city should not consider general aspirations in deciding whether a specific use contravened legislatively adopted standards for a generally permitted use. * * * Unless the city rezones that area, it must authorize uses consistent with its existing zoning code." Hydraulic Press BrickCo. v. Independence (1984),
{¶ 13} Next, we consider whether Councilman Wearsch's rationale for denying the permit is supported by the record. In his vote, Councilman Wearsch concluded the plan submitted by Appellant did not meet the green space requirements of the zoning. Specifically, Councilman Wearsch noted that two blocks of open space were used to meet the 30% requirement of A.P.Z.C. 1266.04, but only one of the blocks met the 100-foot minimum width requirement of A.P.Z.C. 1266.06. We find that Councilman Wearsch's position is unsupported by the record. A.P.Z.C. 1266.06 provides as follows:
"The minimum common open space required in Section 1266.04 [30%] shall be provided as follows:
"(a) The required common open space shall be located and designed to:
"(1) Be sufficiently aggregated to create large areas of planned open space.
"(2) Conserve significant natural features to the extent practicable.
"(3) Be easily accessible to residents of the cluster development.
"(4) Generally, be not less than 100 feet in width at any point, except for short segments which provide visual and pedestrian connections between larger open space areas.
"(5) Be interconnected with open space areas on abutting parcels, wherever possible, by open space corridors."
Councilman Wearsch's conclusion that Appellant did not comply with subsection 4 above is unsupported by the record and contradicted by Mr. Wearsch's own statements earlier in the zoning process.
{¶ 14} The record reflects that the Planning Commission initially expressed concern over the green space allotted in Appellant's original plans. Specifically, Bramhall Engineering Surveying Company, a consultant for the City, expressed concerns that the green space allotted in Appellant's original plans did not comply with the zoning requirements. Appellant, therefore, modified his plans in order to conform to the zoning requirements. Upon submitting the modified plans, Bramhall Engineering expressed no further concerns regarding the green space requirement. Mr. Wearsch begrudgingly conceded compliance when he noted, "The green space in the back [originally] didn't even reach the minimum 100-feet and he dumbed down the lots even more, as far as I was concerned, to get the 100-feetin the back."
{¶ 15} While we are cognizant of our limited scope of review, reversal in the instant matter is compelled by the record. Despite the allowance of cluster developments by its zoning ordinances, Council members refused to approve Appellant's proposed plan of development. Council members voted against the proposal despite the fact that Appellant complied with all of the applicable zoning ordinances. Further, this Court's review of the modified plat submitted by Appellant demonstrates that the green space requirements of Avon's zoning code were met.
{¶ 16} The record reflects that Council's vote was the result of the personal preferences of the Council members.2 The Council's decision was unsupported by any evidence, let alone a preponderance of reliable, probative and substantial evidence. As the Council members ignored their own zoning regulations and enforced their personal views to "decide the destiny of the City," we find that their actions were arbitrary, unreasonable, and illegal. The trial court, therefore, erred in affirming the Council's decision. Accordingly, Appellant's sole assignment of error is sustained.
Judgment reversed, And cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, 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(E). 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 Appellee.
Slaby, P.J., Carr, J., Concur.