[Cite as Watson v. Cleveland, 2017-Ohio-2982.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 104374

DAVID D. WATSON 

PLAINTIFF-APPELLANT 

vs. 

CITY OF CLEVELAND, ET AL. 

DEFENDANTS-APPELLEES 

JUDGMENT: 

REVERSED AND REMANDED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-15-845662 

BEFORE: Keough, A.J., Kilbane, J., and S. Gallagher, J. 

RELEASED AND JOURNALIZED: May 25, 2017 
ATTORNEYS FOR APPELLANT 

John P. Slagter 

Tara J. Rose 

Anthony R. Vacanti 

Buckingham, Doolittle & Burroughs 

1375 East 9th Street, Suite 1700 

Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEES 

For City of Cleveland 

Barbara Langhenry 

City of Cleveland Law Director 

By: Carolyn M. Downey 

Assistant Director of Law 

601 Lakeside Avenue, Room 106 

Cleveland, Ohio 44114

For East 123 St. Properties, Ltd. 

John W. Monroe 

Bruce G. Rinker 

Mansour, Gavin, L.P.A. 

North Point Towers 

1001 Lakeside Avenue, Suite 1400 

Cleveland, Ohio 44114
KATHLEEN ANN KEOUGH, A.J.: 

{¶1} Appellant, David D. Watson, appeals from the trial court’s judgment 

affirming the decision of the city of Cleveland Board of Zoning Appeals that granted four 

area variances to East 123 St. Properties Ltd. to allow it to build a six-story 204-unit 

apartment building on a small lot in Cleveland’s Little Italy neighborhood. For the 

reasons that follow, we reverse the trial court’s judgment and remand for further 

proceedings consistent with this opinion. 

I. Background

{¶2} East 123 St. Properties Ltd. is the owner of property located at 1862 East 

123rd Street in Cleveland, Ohio. Visconsi Companies is the developer for the project at 

issue. The property is located in a B-2 semi-industrial district. 

{¶3} In October 2014, Visconsi submitted a building permit application for the 

project to the city of Cleveland’s building and housing department. The building and 

housing department denied the permit application and issued a notice of nonconformance. 

{¶4} Visconsi appealed the notice of nonconformance to the city’s Board of 

Zoning Appeals (the “Board”). The Board held a public hearing on January 5, 2015, and 

heard testimony from various interested parties. Many documents, exhibits, and 

correspondence were also submitted at the hearing. The Board held another lengthy 

hearing on May 4, 2015, where it heard additional testimony. After the hearing, the 

Board voted in favor of granting the requested variances for the project. The Board 

adopted and ratified its decision on May 11, 2015. 
{¶5} Watson, who lives in a townhome directly across the street from the 

proposed project, appeared at the hearings and testified in opposition to the variances. 

He subsequently appealed the Board’s decision to the common pleas court pursuant to 

R.C. Chapters 2505 and 2506. After the parties filed briefs, the trial court affirmed the 

decision of the Board. The trial court’s decision in its entirety stated, “[t]he decision of 

the city of Cleveland Board of Zoning Appeals is hereby affirmed.” Watson timely 

appealed the trial court’s judgment. 

{¶6} This court sua sponte returned the matter to the trial court for the court to 

conduct the review required by R.C. 2506.04 and enter a judgment capable of appellate 

review. In our journal entry, we explained that because of the lack of detail in the trial 

court’s entry, we could not determine on what basis the trial court had affirmed the Board, 

and could not conduct the review required of us by statute in an administrative appeal. 

{¶7} Upon remand, the trial court issued another entry affirming the Board’s 

decision, this time stating: 

Pursuant to O.R.C. 2506.04 and based upon a review of the whole record 

and attendant briefs, this court finds the decision of the Cleveland Board of 

Zoning Appeals in this matter was not unconstitutional, illegal, arbitrary, 

capricious, unreasonable or unsupported by a preponderance of substantial, 

reliable and probative evidence. Therefore, the decision of the Board is 

hereby affirmed. 

II. Law and Analysis

{¶8} In his second assignment of error, Watson contends that the trial court’s 

decision affirming the Board should be reversed because its entry is insufficient to permit 

appellate review. We agree. 
{¶9} The scope of the trial court’s review in an appeal of a board of zoning appeals 

decision is set forth in R.C. 2506.04, which requires the trial court to examine the 

“evidence on the whole record” to determine if the agency’s decision is “unconstitutional, 

illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of the 

substantial, reliable, and probative evidence” in the record. Cleveland Clinic Found. v. 

Bd. of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 23. 

{¶10} As recognized by the Ohio Supreme Court, R.C. 2506.04 “requires” the trial 

court to examine the evidence in the record, “which in turn necessitates both factual and 

legal determinations.” Dudokovich v. Hous. Auth., 58 Ohio St.2d 202, 207, 389 N.E.2d 

1113 (1979). The trial court “‘must give consideration to the entire record * * * and 

must appraise all such evidence as to the credibility of the witnesses, the probative 

character of the evidence and the weight to be given it.’” Id., quoting Andrews v. Bd. of 

Liquor Control, 164 Ohio St. 275, 131 N.E.2d 390 (1955), paragraph one of the syllabus. 

{¶11} The standard of review for the court of appeals in a R.C. 2506.04 appeal is 

much more limited in scope. Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848 

(1984). The statute grants a limited power to the court of appeals to review the judgment 

of the common pleas court only on questions of law, which does not include the same 

extensive power to weigh the evidence as is granted to the trial court. Henley v. 

Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147, 2000-Ohio-493, 735 N.E.2d 

433. Within the ambit of questions of law for appellate court review is abuse of 

discretion by the trial court. Id., citing Kisil at fn. 4. The appellate court has a duty to 
affirm the common pleas court unless it 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. Cleveland Clinic Found., 141 Ohio St.3d 318 at ¶ 23; Kisil at 34. 

{¶12} This case is not a simple, straightforward matter, and the record is lengthy. 

The Board held two lengthy hearings at which many witnesses testified and numerous 

exhibits were introduced. Even a cursory review of the record demonstrates conflicting 

testimony regarding whether the variances should be granted. Nevertheless, in affirming 

the Board’s decision to grant the variances, the trial court’s entry makes no analysis 

whatsoever of the evidence in the record. It does not discuss any relevant testimony, 

does not identify what evidence the trial court found important or credible in affirming 

the Board, and does not provide any analysis applying the relevant law to the evidence 

presented to the Board. 

{¶13} Because the trial court’s opinion does not identify nor analyze any evidence 

that might have supported the Board’s decision, we would be required to perform a de 

novo review of the record to determine whether the Board’s decision was, in fact, 

supported by a preponderance of reliable, probative, and substantial evidence, as the trial 

court found. That is not our role, however, in our review of a trial court’s decision on an 

administrative appeal. “’It is incumbent on the trial court to examine the evidence. 

Such is not the charge of the appellate court. The appellate court is to determine only if 

the trial court has abused its discretion.’” Henley, 90 Ohio St.3d at 147, quoting Lorain 
City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261, 533 

N.E.2d 264 (1988). 

{¶14} A trial court is not required to issue a detailed opinion in an administrative 

appeal, nor is it required to issue findings of fact and conclusions of law pursuant to 

Civ.R. 52. Warrensville Ctr., Inc. v. Warrensville Hts., 20 Ohio App.3d 220, 222, 485 

N.E.2d 824 (8th Dist.1984). Nevertheless, “for an appellate court to conduct a 

meaningful review, sufficiently detailed reasoning should be specified in the trial court’s 

order.” Cross v. A-Best Prods. Co., 8th Dist. Cuyahoga No. 90388, 2009-Ohio-2039, ¶ 

22. Here, absent any explanation or analysis by the trial court of the evidence in the 

record, or any evidentiary basis for its decision, we cannot perform our limited review. 

{¶15} Accordingly, we sustain Watson’s second assignment of error, reverse the 

trial court’s judgment, and remand with instructions for the court to conduct the 

evidentiary analysis required by the statute and generate an entry capable of review by 

this court. See Redilla v. Avon Lake, 9th Dist. Lorain No. 12CA010204, 2013-Ohio-849, 

¶ 8 (trial court’s judgment stating only that the zoning board’s decision was “supported by 

a preponderance of reliable, probative, and substantial evidence” reversed and matter 

remanded for trial court to conduct an appropriate review of the board’s decision and 

enter a judgment containing the court’s “full analysis” so as to be capable of review by 

the appellate court). Appellant’s other assignments of error are rendered moot by our 

decision and therefore need not be considered. App.R. 12(A)(1)(c). 

{¶16} Judgment reversed and remanded. 
It is ordered that appellant recover of appellees his costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court 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. 

 

KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE 

MARY EILEEN KILBANE, J., CONCURS; 

SEAN C. GALLAGHER, J., DISSENTS