Shelly Materials, Inc v. Streetsboro Planning & Zoning Comm. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Shelly Materials, Inc. v. Streetsboro Planning & Zoning Comm., Slip Opinion No. 2019-Ohio-
4499.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 

     SHELLY MATERIALS, INC., APPELLANT, v. THE CITY OF STREETSBORO
            PLANNING AND ZONING COMMISSION ET AL., APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as Shelly Materials, Inc. v. Streetsboro Planning & Zoning
                    Comm., Slip Opinion No. 

.]
Zoning—Surface mining as a permitted conditional use—Administrative appeals—
        R.C. 2506.04—Standard of review applicable to court of appeals’ review of
        decision of common pleas court in R.C. Chapter 2506 administrative
        appeal—Court of appeals in an administrative appeal may not reweigh the
        evidence.
   (No. 2018-0237—Submitted March 26, 2019—Decided November 5, 2019)
    APPEAL from the Court of Appeals for Portage County, No. 2017-P-0025,
                                   

.
                                 __________________
        STEWART, J.
                                   SUPREME COURT OF OHIO




         {¶ 1} The questions raised in this appeal concern the scope of review
conducted by a court of appeals in an R.C. Chapter 2506 administrative appeal. For
the reasons that follow, we conclude that the Eleventh District Court of Appeals
exceeded its scope of review in this case and we accordingly reverse the judgment
of the court of appeals and remand the cause to that court for further consideration
consistent with this opinion.
                               Facts and Procedural History
         {¶ 2} Appellant, Shelly Materials, Inc. (“Shelly”), entered into a mineral-
rights lease in 2015 for an approximately 225-acre horse-farm property, commonly
called Sahbra Farms, located in the city of Streetsboro (“the city”). The property
is zoned “R-R, Rural Residential District,” and at the time, surface mining was
allowed as a conditional use in a rural-residential district upon the approval of an
application for a conditional-use permit. Shelly leased the mineral rights of the
Sahbra Farms land to engage in surface mining of sand and gravel. When Shelly
entered into the lease, surface mining had been conducted on an adjacent property
by a different company for a number of years as a permitted conditional use.
         {¶ 3} Some city residents became aware of Shelly’s plan to convert the
horse farm into a mining operation and, under the name “Stop Sahbra Dig,”
submitted an application to amend the city’s zoning code to remove surface mining
as a conditional use in all districts where it was permitted, including in a rural-
residential district. The city’s planning and zoning director, an appellee in this
case,1 agreed with the residents and recommended to appellee Streetsboro Planning
and Zoning Commission that surface mining no longer be permitted as a conditional
use in any district. The commission then recommended that Streetsboro City
Council pass an ordinance to remove surface mining from the zoning code, and city
council eventually voted to do so. But because Shelly filed its application for a


1. The third appellee in this case is the city’s zoning inspector.




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                                   January Term, 2019




conditional-use permit to engage in surface mining before the ordinance took effect,
the parties agree that the ordinance amending the zoning code may not be applied
retroactively in this case.
        {¶ 4} The commission conducted three hearings on Shelly’s application,
after which it unanimously issued written findings of fact and conclusions of law
ultimately determining that “Shelly did not establish by clear and convincing
evidence that Shelly’s proposed conditional use met the relevant standards outlined
in the Streetsboro Codified Ordinances necessary for the issuance of a conditional
use permit.” Streetsboro Codified Ordinance 1153.03 sets forth the requirements
an applicant must meet to obtain a conditional-use permit:


                (a) The applicant shall be required to establish by clear and
        convincing evidence that the general standards of this Zoning
        Ordinance and this Chapter and the specific standards pertinent to
        each proposed use shall be met for the proposed use provided further
        that any requirements of this Zoning Ordinance for permitted use(s)
        within a district shall be applicable to any conditional use unless
        otherwise stated herein.
                (b) The Planning and Zoning Commission shall determine if
        the proposed use complies with these regulations and shall insure
        [sic] that the specific standards and requirements of this Zoning
        Ordinance pertinent to the proposed use shall be satisfied.
                (c) General Standards.         The Planning and Zoning
        Commission shall review the particular facts and circumstances of
        each proposed use in terms of the following standards and shall find
        adequate evidence showing that such use of the proposed location:




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               (1) Will be harmonious with and in accordance with the
       general objectives or with any specific objective of the Streetsboro
       Development Policy Plan of current adoption;
               (2) Will be designed, constructed, operated and maintained
       so as to be harmonious and appropriate in appearance with the
       existing or intended character of the general vicinity and that such
       use will not change the essential character of the same area;
               (3) Will not be hazardous or disturbing to existing or future
       neighboring uses;
               (4) Will not be detrimental to property in the immediate
       vicinity or to the community as a whole;
               (5) Will be served adequately by essential public facilities
       and services such as highways, streets, police and fire protection,
       drainage structures, refuse disposal, and school; or that the persons
       or agencies responsible for the establishment of the proposed use
       shall be able to provide adequately any such service[;]
               (6) Will have vehicular approaches to the property which
       shall be so designed as not to create an interference with traffic on
       surrounding public streets or roads.


(Underlining sic.)
       {¶ 5} Among other conclusions, the commission stated that “Shelly’s
proposed use would be detrimental to the properties in the immediate vicinity as a
whole and, thus, constitute[s] a substantial negative effect on neighboring property
values.” In reaching this conclusion, the commission rejected an opinion offered
by Shelly’s certified real-estate appraiser that surface mining would not adversely
affect the value of property located near the proposed surface mine, concluding that
the appraiser’s analysis was flawed because it contained “incongruent real estate




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comparisons.” The commission also stated that the appraiser’s testimony “showed
that the value of four out of five homes in Streetsboro would likely suffer if Shelly’s
proposed use were to operate in its proposed location.”
       {¶ 6} Shelly filed an R.C. Chapter 2506 appeal in the Portage County Court
of Common Pleas. The court referred the case to a magistrate, who issued a
decision that contained findings of fact and conclusions of law. The magistrate
concluded that the commission had made its determinations under the provisions
of the zoning code not based on admissible and probative evidence but on
subjective public-opinion comments that property values near the proposed use
would be adversely impacted. The magistrate concluded that Shelly had offered
“evidence” in the form of the opinion and report of a certified real-estate appraiser,
while the commission had relied only on what the magistrate characterized as
“unsubstantiated speculation about detrimental impact on property values” from
sources that included nonexpert testimony from the city’s planning and zoning
director. With the city having offered no “competent testimony from a witness
qualified to render opinions about property values,” the magistrate concluded that
the city planning and zoning director’s “unsubstantiated speculation is outweighed
by the evidence from [Shelly’s appraiser] as a matter of law.” The magistrate
further ultimately determined that Shelly had carried its burden of proof as to all
six requirements in Streetsboro Codified Ordinance 1153.03(c).
       {¶ 7} The court of common pleas adopted the magistrate’s decision over the
city’s objections, concluding that the commission acted arbitrarily and capriciously
by denying Shelly’s application for a conditional-use permit. The court held that
the commission’s denial of the application “is unsupported by the preponderance
of substantial, reliable, and probative evidence.” The court also determined that the
commission’s denial of the application was “arbitrary and capricious,” because the
commission had reviewed it in light of the city’s recent zoning change to prohibit
surface mining. The court stated that it was “probable” that the application “would




                                          5
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not have ever been approved, given the prevailing position of the City and residents
that surface mining is not in keeping with the Master Plan,” even though the city
“had the opportunity for nearly two years” prior to the filing of the application to
amend the zoning code to remove surface mining as a conditional use. (Emphasis
sic.) The court of common pleas thus determined that “[t]he underlying motivation
to deny the conditional use application emerges as a desire to deny all surface
mining as a conditional use, rather than because [Shelly] failed to satisfy the
standards set forth in” the city’s zoning code.
       {¶ 8} A divided panel of the Eleventh District Court of Appeals reversed
the judgment of the court of common pleas. The majority found the issue regarding
the fourth of the city zoning code’s six criteria for granting a conditional-use
permit—whether Shelly’s proposed use would be detrimental to property in the
immediate vicinity or to the community as a whole, Streetsboro Codified Ordinance
1153.03(c)(4)—to be “dispositive,” 

, 

 (11th
Dist.), and it accordingly did not address any other “separate issues” asserted in the
appeal, id. at ¶ 15, including arguments that the commission had correctly
determined that Shelly had failed to satisfy other provisions of Streetsboro Codified
Ordinance 1153.03(c) and additional arguments that went to other matters.
       {¶ 9} After acknowledging that Shelly’s expert “had 30 years of experience
as an appraiser and had submitted a 76-page report in support of his opinion,” id.
at ¶ 33, the majority nonetheless decided that the commission could have justifiably
concluded that Shelly’s expert lacked credibility, because he had “acknowledged
that the comparison properties utilized to form his opinion were further away from
the surface mine than the properties at issue,” id. at ¶ 36. In addition, the majority
stated that the expert had “acknowledged that some of the properties in the
comparison group were probably separated from mining operations by natural
buffers, such as woods, furthering [sic] distinguishing the comparison properties
from the properties at issue.” Id. After concluding that the commission had been




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                                January Term, 2019




justifiably entitled to reject the expert’s opinion, the majority held that Shelly had
failed to carry its burden to obtain the conditional-use permit. Id. at ¶ 37.
       {¶ 10} We accepted jurisdiction over Shelly’s appeal, 

,

, 

, to consider three propositions of law:


               1.   An administrative decision that is unconstitutional,
       illegal, arbitrary, capricious, or unreasonable, cannot be affirmed
       simply because it is supported by the preponderance of the evidence,
       nor can an unsupported decision be affirmed simply because it is not
       illegal or arbitrary; rather, a common pleas court must reverse if it
       finds any one of the statutory grounds for reversal of an
       administrative decision.
               2. It is the proper function of the court of common pleas in
       an appeal under Ohio Revised Code 2506.01 to evaluate the
       character of evidence to determine if it was “substantial, reliable,
       and probative.”
               3. It is not the function of a court of appeals in an appeal
       under Ohio Revised Code 2506.01 to review the common pleas
       court’s judgment de novo, but its review under R.C. 2506.04 is
       limited to “questions of law.” R.C. 2506.04.


                                      Analysis
       {¶ 11} Shelly’s principal argument is that the court of appeals exceeded the
narrow scope of its review and conducted a de novo review of the commission’s
findings by substituting its judgment for that of the common pleas court with
respect to the “dispositive” issue—whether the commission erred by finding that
Shelly’s expert lacked credibility.




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        {¶ 12} 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.” R.C.
2506.01(A). Acting as an appellate court, the common pleas court “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.” 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. See Freedom Rd. Found. v. Ohio Dept. of Liquor Control, 

, 

 (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.
        {¶ 13} We have said that the scope of review for a common pleas court in
an R.C. Chapter 2506 administrative appeal is not de novo but that the appeal “
‘often in fact resembles a de novo proceeding.’ ” Kisil v. Sandusky, 

, 

 (1984), quoting Cincinnati Bell, Inc. v. Glendale, 

, 

 (1975). “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. Independence v. Office of the
Cuyahoga Cty. Executive, 

, 

, 

. The court of common pleas may not “blatantly substitute its judgment for
that of the agency, especially in areas of administrative expertise.” Dudukovich v.
Lorain Metro. Hous. Auth., 

, 

 (1979).
Nevertheless, the court of common pleas has “the power to examine the whole
record, make factual and legal determinations, and reverse the [administrative
agency’s] decision if it is not supported by a preponderance of substantial, reliable,




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                                January Term, 2019




and probative evidence.” Cleveland Clinic Found. v. Cleveland Bd. of Zoning
Appeals, 

, 

, 

, citing

.
       {¶ 14} When considering Shelly’s application for a conditional-use permit,
the commission reviewed the standards set forth in Streetsboro Codified Ordinance
1153.03(c), including that the conditional use “[w]ill not be detrimental to property
in the immediate vicinity or to the community as a whole,” Streetsboro Codified
Ordinance 1153.03(c)(4). Addressing this standard, the commission determined
that “[t]he appraisal data offered by Shelly’s real estate appraiser did not reflect a
valid comparison between the subject property and neighboring properties and the
properties used in the appraiser’s report.”       For this reason, the commission
concluded that “Shelly’s real estate appraiser’s testimony was flawed and contained
incongruent real estate comparisons” and that the “appraiser’s testimony showed
that the value of four out of five homes in Streetsboro would likely suffer if Shelly’s
proposed use were to operate in its proposed location.”
       {¶ 15} The court of common pleas determined that the commission had
erroneously focused on the expert’s sales data for particular houses, as opposed to
his opinion that surface-mining operations would have no adverse effect on
property values for the community as a whole. The court, quoting Streetsboro
Codified Ordinance 1153.03(c)(4), stated that “the proper test is not the
unsubstantiated speculation regarding the sale of any particular house; the test is
whether the use will be ‘detrimental to property in the immediate vicinity or to the
community as a whole.’ ”        In considering the impact that Shelly’s mining
operations would have on the community as a whole, Shelly’s expert testified
before the commission that he had found no recent sales that he could use for
comparison that involved houses adjacent to property where mining operations
were currently being conducted on land that had shortly before been used for a
farm-type purpose. For that reason, he expanded his analysis to cover 12 house




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sales that had occurred since 2014 in the city and two neighboring townships that
also had active surface-mining operations, stating that all of the houses were in
relatively “close proximity” to nearby mining operations. The expert testified that
he had employed a methodology in which he “analyzed a distance from an existing
ongoing gravel and sand operation to the actual property that sold and tried to
analyze those particular sales to the average sales in the local neighborhood to see
if there’s any measurable effect.” After comparing 24 indicators, the expert in his
appraisal report concluded that “the majority of indicators show no effect for being
near an active gravel quarry. It is possible that unique locations of a residential
property could be impacted by gravel extraction activities, but as a whole general
property values show limited effect based on close proximity.” The expert thus
concluded that there was “little to no conclusive evidence” to show that sales of
property in close proximity to surface-mining operations were adversely affected.
       {¶ 16} The city’s planning and zoning director, who by his own admission
was “not an appraiser,” testified before the commission that Shelly’s application
should be denied, in part because of the proposed mining operation’s effect on
property values. The director stated his opinion that there were “shortcomings” in
Shelly’s expert appraiser’s analysis and explained what he viewed those
shortcomings to be. The court of common pleas concluded that the planning and
zoning director was not qualified to render an opinion about property appraisals
and that the director’s “unsubstantiated speculation is outweighed by the evidence
from [Shelly’s expert] as a matter law.”
       {¶ 17} A party who disagrees with a decision of a court of common pleas
in an R.C. Chapter 2506 administrative appeal may appeal that decision to the court
of appeals but only on “questions of law.” R.C. 2506.04. For this reason, we have
stated that under R.C. 2506.04, an appeal to the court of appeals is “more limited
in scope” than was the appeal to the court of common pleas. Kisil, 

, 

; see 

. While the court of common pleas is




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                                January Term, 2019




required to examine the evidence, the court of appeals may not weigh the evidence.
Independence, 

, 

, 

.
Apart from deciding purely legal issues, the court of appeals can determine whether
the court of common pleas abused its discretion, which in this context means
reviewing whether the lower court abused its discretion in deciding that an
administrative order was or was not supported by reliable, probative, and
substantial evidence. Boice v. Ottawa Hills, 

, 

,

, citing 

.
       {¶ 18} The Eleventh District reversed the judgment of the court of common
pleas on the grounds that the commission had a justifiable reason to reject Shelly’s
expert’s opinion, because “the comparison properties utilized to form his opinion
were further away from the surface mine than the properties at issue.” 2017-Ohio-
9342, 

. This was not a question of law for the court of appeals
to decide in an administrative appeal under R.C. 2506.04; it was a question
concerning the weight of the evidence to be given to the expert’s opinion.
       {¶ 19} The Eleventh District concluded that Shelly’s expert’s failure to use
appropriate comparables when offering his opinion that Shelly’s operations would
not be detrimental to property in the immediate vicinity was, in essence, a complete
failure of proof pursuant to Streetsboro Codified Ordinance 1153.03(c)(4). Experts
are not required to give precise opinions, but an expert’s opinion is normally offered
to a reasonable degree of certainty within the expert’s field. See State v. Beasley,

, 

, 

. To be sure, an
expert’s opinion may not be based on “mere possibility or speculation,” 

 but
when an expert’s opinion on the value of real estate is based on “comparables”
because there is no recent arms-length sale of the property in question, the appraisal
will be based on a professional’s judgment that the property will sell for a price
consistent with prices for similar and similarly situated properties. Absolute
certainty in land appraisals is not required, nor is it even possible, in most cases.




                                           11
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United States v. Glanat Realty Corp., 

 (2d Cir.1960) (“the
decisions are full of expressions recognizing that land value almost always depends
upon the hypothetical opinions of those generally familiar with transactions in the
neighborhood”).
       {¶ 20} In fact, at least one commission member during one of the hearings
before the commission acknowledged the difficulty of obtaining direct comparisons
of houses for purposes of appraisal when he questioned Shelly’s expert appraiser:


                [Commission member:] Did you find any comps at all—I
       grant you this would probably be very difficult—where you had
       property that was not already adjacent to a surface mine but rather
       was adjacent to a very pastoral, horse-farmish looking land and then
       became a surface mine and what would happen to the value of those
       farms?
                [Shelly’s expert:] Unfortunately not. I could not find—
                [Commission member:] That’s nearly impossible, I grant
you.


       {¶ 21} Given that the lack of comparable properties near the location of the
proposed surface mine made it difficult to ascertain whether mining operations
would be detrimental to property in the immediate vicinity, the opinion of an expert
appraiser was important.       No objections were made to Shelly’s expert’s
qualifications to render an opinion, so the validity of his appraisal was ultimately a
matter of credibility for the commission to determine. See Kokitka v. Ford Motor
Co., 

, 

 (1995). The court of common pleas,
acting within the scope of its review under R.C. Chapter 2506, weighed the expert’s
opinion differently than the commission. The court of appeals had no authority to
second-guess the decision of the court of common pleas on questions going to the




                                         12
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weight of the evidence supporting the commission’s findings. We accordingly
reverse the judgment of the court of appeals on the only issue it addressed.
        {¶ 22} The dissenting opinion criticizes us for not addressing the court of
appeals’ holding that that the trial court erred by putting the burden of proof on the
wrong party. No additional discussion is necessary—in its decision adopting the
magistrate’s decision, the trial court stated:


                A review of the record indicates that [Shelly] presented clear
        and convincing evidence during the Commission hearings relative
        to the general standards, the specific standards as to surface mining,
        and the specific objectives of the Master Plan. The Court finds that
        the Commission’s decision to deny the conditional use application
        is unsupported by the preponderance of substantial, reliable, and
        probative evidence.


        {¶ 23} Without question, the trial court properly recognized that Shelly had
the burden of proving its entitlement to the conditional-use permit by clear and
convincing evidence and that it had met that burden of proof. Indeed, the court of
appeals recognized the same thing, stating that “[t]he flaw is that the magistrate
fails to recognize that [Shelly] has the burden, and provided [the expert’s]
testimony lacks credibility, [Shelly] fails” (emphasis added), 

, 

. The court of appeals thus recognized that if the expert’s testimony
was credible, Shelly would have carried its burden of proof.
        {¶ 24} The dissent also asserts that the magistrate did not use the correct
standard of review and that the trial court’s “conclusory recitation of the zoning
ordinance’s requirements” cannot “magically turn the magistrate’s obvious
application of the wrong legal standard into something that passes legal muster.”
Dissenting opinion at ¶ 38. This assertion improperly elevates a magistrate’s




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decision over a judgment issued by a trial judge. “Civ.R. 53 places upon the court
the ultimate authority and responsibility over the [magistrate’s] findings and
rulings.” (Emphasis sic.) Hartt v. Munobe, 

, 

(1993). Thus, we have held that a trial court “has the responsibility to critically
review and verify to its own satisfaction the correctness of [a magistrate’s
decision].” Normandy Place Assocs. v. Beyer, 

, 

 (1982). It is for this reason that Civ.R. 53(D)(4)(b) gives the trial court the
authority to “adopt or reject a magistrate’s decision in whole or in part, with or
without modification.” And we emphasize that a magistrate’s decision is not
effective “unless adopted by the court.” Civ.R. 53(D)(4)(a). To assert that the
magistrate erred is to create a straw man: it makes no difference if the magistrate
used the wrong standard of review; what is important is that the trial court used the
correct standard of review.
       {¶ 25} The Eleventh District determined that its resolution of the issue
regarding Streetsboro Codified Ordinance 1153.03(c)(4) was dispositive of the
appeal, obviating the need for it to consider any of the various other issues raised
by the commission and the two city officials in their appeal from the decision of
the court of common pleas. Because those issues that were not addressed should
be resolved by the Eleventh District in the first instance, we remand this cause to
the court of appeals for further consideration consistent with this opinion.
                                                                 Judgment reversed
                                                               and cause remanded.
       KENNEDY and DONNELLY, JJ., concur.
       FISCHER, J., concurs in judgment only.
       DEWINE, J., dissents, with an opinion joined by O’CONNOR, C.J., and
ZIMMERMAN, J.
       WILLIAM ZIMMERMAN, J., of the Third District Court of Appeals, sitting for
FRENCH, J.




                                         14
                                January Term, 2019




                               _________________
       DEWINE, J., dissenting.
       {¶ 26} Let’s review what happened here. The City of Streetsboro passed an
ordinance allowing surface mines if the mine operator can show by clear and
convincing evidence that the mine will satisfy certain standards. Among those
standards is that the mine “[w]ill not be detrimental to property in the immediate
vicinity or to the community as a whole.” The Streetsboro Planning and Zoning
Commission reviewed an application for a conditional-use permit and found that
the company failed to meet this burden. But the court of common pleas overturned
the commission’s decision on the grounds that the commission had not provided
sufficient evidence justifying its rejection of the application. And the court of
appeals reversed, rightly noting that this put the burden on the wrong party, and
reinstated the commission’s decision.
       {¶ 27} Nevertheless, a majority of this court today reverses the court of
appeals. In doing so, the lead opinion neither analyzes whether Shelly Materials
provided clear and convincing evidence that it satisfied the ordinance’s
requirements nor addresses the failure of the trial court to actually apply that
standard. Instead, the lead opinion asserts that the obvious error in the magistrate’s
analysis—which was adopted by the court of common pleas—can be ignored
because of the trial court’s conclusory recitation of the proper standard of review
under the zoning ordinance. In short, the lead opinion disregards the evidentiary
standard in the city ordinance that the commission was lawfully required to apply.
It thereby effectively robs Streetsboro of the right to set the standards for granting
a conditional-use permit.
   The court of common pleas did not apply the right standard in reviewing the
                               commission’s decision
       {¶ 28} The determinative question in this case is what standard the court of
common pleas should have applied in reviewing the commission’s decision. On




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review of an administrative agency’s decision under R.C. 2506.04, “the Court of
Common Pleas must weigh the evidence in the record, and whatever additional
evidence may be admitted pursuant to R.C. 2506.03, to determine whether there
exists a preponderance of reliable, probative and substantial evidence to support the
agency decision.” Dudukovich v. Lorain Metro. Hous. Auth., 

, 

 (1979).
       {¶ 29} A complicating feature here is that the zoning ordinance imposes a
“clear and convincing” evidentiary standard. That is, under the ordinance, an
applicant must provide clear and convincing evidence that the proposed use will
satisfy each of six requirements. Streetsboro Codified Ordinance 1153.03. The
commission is legally bound to apply the terms of the zoning ordinance, including
any evidentiary standard contained therein. Hence, if a reviewing court is to assess
the commission’s decision, as required by R.C. 2506.04, it must ask whether the
commission applied the terms of the zoning ordinance, including the evidentiary
burden. As a result, when the zoning ordinance imposes a clear-and-convincing-
evidence requirement, the court of common pleas must, at a minimum, ask whether
the petitioning entity provided evidence of that quality.
       {¶ 30} Here, nothing in the court of common pleas’ decision assesses
whether Shelly Materials had provided clear and convincing evidence that the
proposed use would not “be detrimental to property in the immediate vicinity or to
the community as a whole” under Streetsboro Codified Ordinance 1153.03(c)(4).
The magistrate’s conclusions—adopted by the court of common pleas—first stated
that the commission’s findings were supported only by “unsubstantiated
speculation about detrimental impact on property values, not by substantial
probative evidence, and not by expert testimony.” The magistrate reached this
conclusion by entirely discounting the opinion of Streetsboro Planning and Zoning
Director John Cieszkowski. Thus the magistrate concluded that the commission’s
positive evidence (Cieszkowski’s opinion) was “outweighed by the evidence from




                                         16
                                January Term, 2019




Mr. Bidwell [Shelly Materials’ expert appraiser] as a matter of law.” In essence,
the magistrate reasoned that Shelly Materials provided some evidence and the
commission provided no credible competing evidence and hence, Shelly Materials
wins. That analysis might work if the burden was a preponderance of the evidence.
But, as I’ve explained, if the evidentiary burden set forth in the zoning ordinance is
not to be rendered a nullity, the court of common pleas should have asked whether
Shelly Materials provided clear and convincing evidence.
       {¶ 31} Clear and convincing evidence is “that measure or degree of proof
which will produce in the mind of the trier of facts a firm belief or conviction as to
the allegations sought to be established.” Cross v. Ledford, 

, 477,

 (1954). When a party must provide clear and convincing evidence,
the other party need not provide any competing evidence at all. Weak evidence can
fail to be clear and convincing even in the absence of competing evidence. By
implying that the commission had to provide some competing evidence and by
failing to assess the quality of the evidence in the record to determine whether it
was clear and convincing, the magistrate applied the wrong standard and
improperly placed a burden on the commission to present competing evidence. As
the court of appeals correctly noted, “the magistrate fails to recognize that [Shelly
Materials] has the burden, and provided Bidwell’s testimony lacks credibility,
[Shelly Materials] fails.” 

, 

. This is right, of
course, because evidence that lacks credibility is, by definition, not clear and
convincing.
                     The evidence presented to the commission
       {¶ 32} The lead opinion claims that the court of appeals erred by second-
guessing the court of common pleas’ decision on questions regarding the weight of
the evidence. But that mischaracterizes both what the court of appeals did and what
the record here shows. To see why, let’s review the record.




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       {¶ 33} Shelly Materials’ evidence regarding detrimental effects on
properties in the immediate vicinity came from its appraiser, Paul Bidwell. Bidwell
provided an analysis based on the sales of 12 comparator properties that were
chosen based on proximity to surface mines. He initially opined that there would
be “no adverse effect” on property values in the immediate vicinity. But he almost
immediately qualified this conclusion.        First, he conceded that many of the
comparator properties were much farther away from a mining site than the
properties at issue here would be and that some of the comparators had natural
buffers insulating them from the mine site. In other words, he admitted that many
of the “comparables” weren’t particularly useful in assessing the effect of a mine
on properties adjacent to the site. And he later clarified that his evidence did not
show that there would be no adverse effect. Rather, it only failed to show that there
would be an adverse effect. As Bidwell put it, “based on the information I have, I
can’t conclude one way or another” about the effect of the mine on the value of the
closest homes, “but I can say that there is not evidence to show a specific adverse
effect based on what I studied.” And he later further clarified that “even though the
immediate properties in the area potentially could have or see some possible effect,
the general area on which I’m concentrating for this conditional use permit * * * is
not conclusive for an adverse effect.”
       {¶ 34} Note what’s happened here. Bidwell first opined that there would
be no adverse effect on nearby properties. This is the one line picked up by the
magistrate. But when one reads on, it is clear that Bidwell thought only that his
evidence failed to show an adverse effect. That’s hardly a relevant result if one is
tasked with assessing whether there is clear and convincing evidence that there will
be no adverse effect. As the saying goes, the absence of evidence is not evidence
of absence.




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     The lead opinion makes the same mistake as the court of common pleas
       {¶ 35} The lead opinion claims that the court of appeals had “no authority
to second-guess the decision of the court of common pleas on questions going to
the weight of the evidence supporting the commission’s findings.” Lead opinion
at ¶ 21. By framing the issue as one of “second-guessing” the decision of the court
of common pleas regarding the weight of the evidence, the lead opinion commits
two errors. First, based on the record, the court of appeals didn’t have to reweigh
Bidwell’s testimony—it merely had to take Bidwell at his word. Bidwell admitted
that his evidence failed to show that the mine would not have detrimental effects
on neighboring properties.
       {¶ 36} Second, when the evidentiary burden is clear and convincing
evidence, a reviewing court must “examine the record to determine whether the
trier of facts had sufficient evidence before it to satisfy the requisite degree of
proof.” State v. Schiebel, 

, 

 (1990); Ford v.
Osborne, 

, 3, 

 (1887). And it must assess whether the
requisite quantum of evidence was produced, which, we have said, is “ ‘in essence’
” a legal question. Kisil v. Sandusky, 

, 

 (1984),
quoting Univ. of Cincinnati v. Conrad, 

, 

(1980). The lead opinion, like the court of common pleas, fails to assess whether
Shelly Materials met the burden of providing clear and convincing evidence.
       {¶ 37} The lead opinion goes to some length to explain that experts are “not
required to give precise opinions” and to highlight the difficulty of finding good
comparable properties that can be used to accurately assess the effect of a mine on
property values. Lead opinion at ¶ 19. Fine, but the ordinance requires clear and
convincing evidence, and we cannot ignore that requirement. The fact that it may
be difficult to locate good comparable properties cannot excuse a party from
meeting its evidentiary burden.




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                                 SUPREME COURT OF OHIO




        {¶ 38} The magistrate patently applied the wrong standard. The common
pleas judge adopted the magistrate’s reasoning without any independent analysis
about the disputed provisions in the ordinance. The lead opinion seems to believe
that the common pleas court’s conclusory recitation of the zoning ordinance’s
requirements can magically turn the magistrate’s obvious application of the wrong
legal standard into something that passes legal muster. I disagree.
        {¶ 39} The court of appeals would have reinstated the commission’s
decision. Because I believe that it is procedurally best to allow the court of common
pleas to apply the correct standard in the first instance, I would remand this case to
the trial court for it to apply the correct standard and determine whether Shelly
Materials met its burden of providing clear and convincing evidence that the
proposed use would satisfy all six standards under the zoning ordinance.2 Because
a majority of the court sees things differently, I respectfully dissent.
        O’CONNOR, C.J., and ZIMMERMAN, J., concur in the foregoing opinion.
                                   _________________
        Eastman & Smith, Ltd., Reginald S. Jackson Jr., Brian P. Barger, and Barry
W. Fissel, for appellant.
        Sutter O’Connell Co., Robert E. Cahill, and Matthew C. O’Connell, for
appellees.
        Brady, Coyle & Schmidt, Ltd., and Margaret G. Beck, urging reversal for
amici curiae Ohio Chamber of Commerce; NAIOP of Ohio, Inc.; National
Federation of Independent Business; Ohio Chemistry Technology Council; Ohio
Aggregates and Industrial Minerals Association; National Stone, Sand and Gravel


2. Shelly Materials claims that the commission’s decision should also have been overturned on the
grounds that the commission had an improper motive. But what Shelly Materials fails to realize is
that even if the commission had an improper motive, that does not automatically mean that the
permit should have been granted. Shelly Materials was required to provide clear and convincing
evidence to obtain a conditional-use permit. Whether it did so is something that our law requires
the court of common pleas to assess. It did not do so, and hence, we should remand for a proper
assessment.




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                                January Term, 2019




Association; Flexible Pavements of Ohio; Ohio Ready Mixed Concrete
Association; Ohio Forestry Association; Ohio Home Builders Association; and
Ohio Contractors Association.
                                _________________




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