dissenting.
{¶ 27} My approach to this case recognizes that a trial court hearing a case without a jury serves as the fact-finder and inter alia assesses the credibility of the witnesses who testify in the proceeding. It is the duty of the court to decide all disputed questions of fact and to assign such weight to the testimony of the various witnesses as the court, in its sole discretion, determines that testimony is entitled to receive. Further, the trial court may believe all, part, or none of the testimony of any of the witnesses. Here, the trial court did as required.
{¶ 28} In its written opinion, the trial court found the testimony of Jaylin’s witnesses to be credible and persuasive, and it also found the testimony of the Village’s witnesses unsupported by the evidence and not credible.
{¶ 29} In this instance, it is noteworthy that the trial court not only made specific findings, but also cited portions of the testimony in support of its conclusions. Despite this careful attention to detail, the appellate court challenged the trial court’s findings and, in my view, substituted its judgment for that of the trial court.
{¶ 30} In its opinion, the appellate court stated, “[I]n the absence of testimony to the contrary, the balance of DeYoung’s testimony need not be discounted merely because her conclusions regarding any potential violation of the Village’s hillside ordinance were based on a faulty premise.” 157 Ohio App.3d 277, 2004-Ohio-2689, 811 N.E.2d 113, ¶ 19. The appellate court also considered Jaylin’s witnesses — in particular, Terrence Gerson, stating that he “merely testified that the impact on the Chagrin River Basin would be ‘very small.’ Without more, it cannot be said that Jaylin proved beyond fair debate that the village’s environmental concerns were not valid or the ordinance was otherwise unconstitutional.” Id. The appellate court then, in series, reviewed Jaylin’s economic-impact testimony, that of Jaylin’s owner, and the appraisal testimony of Roger Ritley. The appellate court concluded that Jaylin’s testimony “regarding economic feasibility, however, does not invalidate the village’s environmental concerns or otherwise prove beyond fair debate that the village’s two-acre lot requirement bears no substantial relationship to the public health, safety, or welfare of the community.” Id. at ¶ 25.
{¶ 31} The law of appellate review in Ohio leaves no doubt that a reviewing court “must not substitute its judgment for that of the trial court where there exists some competent and credible evidence supporting the findings of fact ^.nd conclusions of law rendered by the trial court.” Myers v. Garson (1993), 66 Ohio St.3d 610, 616, 614 N.E.2d 742. Here, the appellate court invaded the province of the trial court with regard to the expert witnesses who testified before the trial *346court and superseded the trial court findings regarding the experts who testified for Moreland Hills.
Berns, Ockner & Greenberger, L.L.C., Sheldon Berns, and Benjamin J. Ockner, for appellant. ' Leonard A. Spremulli and Santo T. Incorvaia, for appellee. Byron & Byron Co., L.P.A., Barry M. Byron, and Stephen L. Byron, urging affirmance for amici curiae Ohio Municipal League and Cuyahoga County Law Directors Association.{¶ 32} While this court had settled the law in Goldberg Cos., Inc. v. Richmond Hts. City Council (1998), 81 Ohio St.3d 207, 690 N.E.2d 510, today’s majority decision, for all practical purposes, renders trials on proposed developments meaningless. Consider the impact of today’s decision as an affirmation of the appellate court’s view of the law: i.e., to consider only whether the ordinance in question satisfies the government’s concern for the environment, not whether the proposed development can meet that goal. On these facts, a two-acre, three-acre, four-acre, or even five-acre minimum would meet the government’s objective of environmental protection.
{¶ 33} As this court has recently stated, “In an ‘as applied’ challenge, the party challenging the constitutionality of the statute contends that the ‘application of the statute in the particular context in which he has acted, or in which he proposes to act, would be unconstitutional. The practical effect of holding a statute unconstitutional “as applied” is to prevent its future application in a similar context, but not to render it utterly inoperative.’ ” Yajnik v. Akron Dept. of Health, Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d 632, ¶ 14, quoting Ada v. Guam Soc. of Obstetricians & Gynecologists (1992), 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (Scalia, J., dissenting). In considering an as-applied constitutional challenge, such a trial should most certainly involve whether or not a proposed development meets or satisfies legitimate governmental concerns. And where a trial court has determined the credibility of the witnesses, an appellate court should not substitute its judgment on those matters.
{¶ 34} Excising consideration of the developer’s proposed development from consideration by the fact finder shifts the focus of a trial to a determination only of whether the local government zoning meets its objective and thereby effectively omits any meaningful consideration of how or whether a proposed plan also meets those objectives. It therefore renders trials all but meaningless. Accordingly, I dissent.
Pfeifer, J., concurs in the foregoing opinion. Frost Brown Todd, L.L.C., Scott D. Phillips, and Matthew C. Blickensderfer, urging affirmance for amicus curiae village of Indian Hill. David M. Benjamin, Solon City Law Director, urging affirmance for amicus curiae city of Solon, Ohio. Walter & Haverfield, L.L.P., R. Todd Hunt, and Frederick W. Whatley, urging affirmance for amici curiae Chagrin River Watershed Partners, Inc. and Cuyahoga Soil and Water Conservation District. McDonald Hopkins Co., L.P.A., Michael W. Wise, and Richard W. Cline, Shumaker, Loop & Kendrick, L.L.P., and Louis E. Tosi, Aronoff, Rosen & Hunt, Stanley J. Aronoff, and Richard A. Paolo, Keating, Muething & Klekamp, P.L.L., Joseph L. Trauth Jr., and Thomas M. Tepe Jr., urging reversal for amici curiae Associated Estates Realty Corporation, First Interstate Properties, Ltd., Forest City Enterprises, Inc., Goldberg Companies, Inc., Home Builders Association of Greater Cincinnati, Home Builders Association of Greater Cleveland, Home Builders Association of Greater Toledo, Ohio Home Builders Association, Inc., and Visconsi Companies, Ltd.