[Cite as Kareem v. Toledo, 2016-Ohio-5754.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Basem Kareem, et al.                              Court of Appeals No. L-16-1057

        Appellants                                Trial Court No. CI0201502232

v.

City of Toledo, et al.                            DECISION AND JUDGMENT

        Appellees                                 Decided: September 9, 2016

                                              *****

        Jerome Parker and Howard B. Hershman, for appellants.

        Adam W. Loukx, Law Director, and Jeffrey B. Charles,
        Chief of Litigation, for appellees.

                                              *****

        OSOWIK, J.

        {¶ 1} This is an accelerated administrative appeal, pursuant to R.C. 2506.04, from

a February 29, 2016 judgment of the Lucas County Court of Common Pleas, affirming

the denial by Toledo City Council of a special use permit requested by appellants,

Horizon Investment Group (“Horizon”) and Basem Kareem, to operate a used car
business on commercial property near the intersection of Byrne Road and Hill Avenue in

Toledo. For the reasons set forth below, this court reverses the judgment of the trial

court.

         {¶ 2} Appellants set forth the following assignment of error:

               The court below erred in failing to overturn the decision of city

         Council regarding the grant of the special use permit requested by

         Appellants. The decision of both Council and the lower court were

         unsupported by reliable and probative evidence and were both arbitrary and

         unreasonable.

         {¶ 3} The following undisputed facts are relevant to this appeal. On

November 24, 2014, appellants filed a petition with Toledo City Council pursuant to

Toledo Municipal Code 1111.0706 requesting a special use permit for purposes of

operating a used motor vehicle business on commercial property owned by appellants.

         {¶ 4} On January 8, 2015, pursuant to the requirements mandated in the course of

consideration of a pending special use permit, a public hearing was held before the

Toledo Lucas County Plan Commission (“TLCPC”). At that hearing, it was noted that no

phone calls, letters, or any communications were received prior to the meeting by any

neighbors of the subject property either supporting or opposing the pending permit

request. In addition, it was subsequently noted that no one appeared in person at the

meeting to speak in opposition to the permit.




2.
       {¶ 5} At the hearing, it was conveyed on the record that the plan commission staff

had reviewed and considered the pending permit request and determined that the

proposed property use was consistent with the Toledo 20/20 comprehensive plan, was

compatible with adjacent property uses, was compliant with all relevant zoning code

provisions, and was compliant with the governing criteria for used motor vehicle retail

operations.

       {¶ 6} The transcript of the plan commission hearing further reflects that the plan

commission staff recommended approval of the permit subject to 20 enumerated

conditions. The conditions were designed to further ensure the integrity of the proposed

project. The applicant did not object to any of the conditions or request that they be

modified. The record reflects that following detailed discussions by the TLCPC of the

pending permit request, it was unanimously approved by the TLCPC. The process next

requires the permit to be forwarded to Toledo City Council for consideration and

ultimately a vote by council members.

       {¶ 7} On March 17, 2015, a public hearing was held before Toledo City Council to

enable members of the public to furnish witness testimony either supporting or opposing

the special use permit. The record reflects that at the Toledo City Council hearing on the

matter, the district councilman who represents the location in question stated at the outset

of the meeting, “I believe that placement of 90 or more used cars on this lot would have a

negative and detrimental impact on that community, so I urge you to vote no on this

particular application.”




3.
       {¶ 8} The record further reflects that one member of the public spoke in

opposition to the application. The witness furnished extensive testimony, the essence of

which was his belief that the building on the site of the proposed used-car operation

would be better suited as a site for meetings of his neighborhood group and also for use

for activities by area senior citizens. This testimony was not supported by evidence

suggesting potential viability of the alternative property uses desired by the witness. The

witness concluded in relevant part, “I’m sure that there, that can be a plan for this area

rather than a used car lot. I’m hoping that you would consider something else that would

be more beneficial to the entire community.”

       {¶ 9} Following the public hearing, the matter was subsequently sent for a full

vote by Toledo City Council. No recommendation regarding the permit was given by the

zoning committee which had conducted the public hearing. Toledo City Council denied

the special use permit.

       {¶ 10} In response to the denial of the permit by city council, appellants next

brought the matter before the Lucas County Court of Common Pleas. On February 29,

2016, the trial court denied appellants’ motion for judgment on the record, thereby

affirming the denial of the special use permit. In support, the trial court concluded that

appellants failed to demonstrate that the disputed adverse determination regarding the

special use permit was unsupported by the preponderance of evidence and was, therefore,

unreasonable. We do not concur.




4.
       {¶ 11} R.C. 2506.04 establishes that a trial court judgment pertaining to a zoning

dispute such as the one from which this case arises, “[M]ay be appealed by any party on

questions of law as provided in the Rules of Appellate Procedure.”

       {¶ 12} In conjunction with the above, it is well-established that the governing

standard of review in appeals of administrative zoning decisions directs that the trial

court’s decision be affirmed unless we find, as a matter of law, that the decision is not

supported by a preponderance of reliable, probative and substantial evidence. Jeffrey

Mann Fine Jeweler’s Inc. v. Sylvania Twp. Bd. of Zoning Appeals, 6th Dist. Lucas No.

L-08-1013, 2008-Ohio-3503, ¶ 16.

       {¶ 13} Based upon the above controlling legal framework, we must now assess the

record of evidence in this case in order to ascertain whether the trial court properly

upheld the denial of appellants’ special use permit.

       {¶ 14} We find that the relevant evidence in the record tending to favor the

granting of appellants’ special use permit is significant. It includes a TLCPC staff report

on the permit request unequivocally concluding the proposed use to be consistent with

the Toledo 20/20 plan, compatible with adjacent property uses, in compliance with all

applicable zoning codes, and in compliance with all used motor vehicle facility criteria.

       {¶ 15} The TLCPC staff recommendation of approval was bolstered by 20 specific

conditions attached to the approval designed to ensure not only would there be no

negative impact on surrounding properties, but also adherence to the conditions would




5.
result in various improvements to the property, such as new code compliant landscape

buffers.

       {¶ 16} The record reflects appellants did not object to any of the conditions or

request that any of them be modified. The record reflects that the motion by the TLCPC

to approve the permit passed unanimously.

       {¶ 17} The record further reflects that at the February 11, 2015 hearing of the

zoning and planning committee, appellant, appellant’s engineer, and counsel for appellant

furnished specific, relevant testimony in support of the permit request. The record shows

that council’s zoning committee made no recommendation on the permit prior the vote by

Toledo City Council.

       {¶ 18} The only testimony tending to disfavor the granting of appellants’

requested special use permit was limited and did not rise to the level of reliable and

probative evidence.

       {¶ 19} It included the statement of the district councilman generally stating that

granting the permit, “[W]ould have a negative and detrimental impact on that

community,” and urging that the permit request be denied. In addition, one concerned

area resident spoke at the zoning and planning committee meeting in opposition to the

permit suggesting without support that the commercial building owned by appellants

would be better utilized as a location for use by senior citizens and meetings of

neighborhood groups. Notably, this was found to be unreliable and it was disregarded by

the trial court.




6.
       {¶ 20} Lastly, one tenant of the commercial plaza adjacent to the site sent a letter

in opposition unilaterally concluding that the proposed use of the property would be

detrimental to property values.

       {¶ 21} Based upon the forgoing, the record reflects that the preponderance of

reliable, probative and substantial evidence in this matter favored granting the permit.

Wherefore, we find that the trial court’s affirmance of the permit denial was unreasonable

under the specific facts and circumstances of this case.

       {¶ 22} On consideration whereof, we find appellants’ assignment of error well-

taken. The judgment of the Lucas County Court of Common Pleas is hereby reversed.

Pursuant to App.R. 24, appellees are ordered to pay the costs of this appeal.


                                                                        Judgment reversed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
James D. Jensen, P.J.                                       JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




7.