[Cite as Barry v. Bay Village Bd. of Zoning Appeals, 2017-Ohio-7244.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104999
GENE BARRY
PLAINTIFF-APPELLANT
vs.
CITY OF BAY VILLAGE, OHIO BOARD OF
ZONING APPEALS, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-15-855176
BEFORE: Kilbane, P.J., E.T. Gallagher, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: August 17, 2017
ATTORNEY FOR APPELLANT
Dominic J. Vannucci
22649 Lorain Road
Fairview Park, Ohio 44126
ATTORNEYS FOR APPELLEE
Gary A. Ebert
Charles W. Zepp
Seeley Savidge Ebert & Gourash Co.
26600 Detroit Road, Suite 300 - 3rd Floor
Westlake, Ohio 44145
MARY EILEEN KILBANE, P.J.:
{¶1} Plaintiff-appellant, Gene Barry (“Barry”), appeals the trial court’s judgment
affirming the decision of defendants-appellees, the city of Bay Village and the city of Bay
Village Board of Zoning Appeals (the “BZA”) (collectively referred to as “City”), to deny
Barry’s variance request. For the reasons set forth below, we affirm.
{¶2} In June 2015, Barry filed an application with the BZA for a setback
variance. Barry sought a variance from the 50-foot front yard setback requirement to
build a utility room onto his existing home. In his application, Barry explained that the
utility room was needed for storage of equipment, such as a lawn mower and lawn
furniture. Barry’s lot backs up to Lake Erie. The back end of Barry’s lot is built to the
property line. As a result, he could not build an addition in the back of his house.
{¶3} Barry previously received a 25-foot variance to build a garage on the front,
west end of the house. The utility room Barry sought to build would have been on the
east end of the house. This would have created a U-shaped house with the garage on the
left, the utility room on the right and the front entrance in the middle.
{¶4} The City’s front yard setback requirement is 50 feet. The existing utility
room already encroaches 14 feet into the setback area. Barry’s proposed storage room
would encroach an additional 10 feet into the setback, making the setback 26 feet instead
of 50 feet.
{¶5} In reviewing this variance request, the BZA was concerned that the lot was
already “really over-built.” The minutes from the BZA meeting state, in relevant part,
that “[b]etween the house and the paving, the construction is right up to the street.” The
board members were also concerned that “the property is all concrete in the front, and
there is a requirement that a certain portion of the property be grass.” The BZA
explained that when deciding whether to grant a variance, the board considers “the
significance of the size of the variance requested” and noted that Barry’s request
“represents a 50 percent reduction in the front setback, since a 14 foot setback had
previously been granted and this request is for an additional 10 feet.” The BZA voted to
deny Barry’s requested variance in July 2015.
{¶6} In September 2015, Barry submitted a new application decreasing the size
of the requested variance from 24 feet to 22 feet. This reduced the size of the addition
from 10 feet to 8 feet. The BZA considered this application at its October 1, 2015
meeting. The BZA reviewed its previous discussion at the July meeting where it was
noted that the property is already very densely built and a previous variance had been
granted on a setback for the garage. The consensus in July was that the property was
already dense enough. The BZA stated that it would be “going against the spirit of the
reason for the front yard setback to allow more because somebody wants more storage.”
After the discussion, the application was tabled and the BZA asked Barry to submit a new
proposal. As a result, Barry submitted a third application and reduced the requested
variance from 22 feet to 20 feet, thereby allowing for a six foot addition.
{¶7} At the November 2015 BZA meeting, Barry again explained that he needed
the utility room for storage of his maintenance equipment since his house does not have a
basement or an attic. Having the storage room for maintenance equipment would allow
him to park his cars in the two-car garage. Barry also cited the lack of alternative sites
on the property to address his problem. The BZA, however, was still concerned that
Barry’s property was “overbuilt” and his property already extended well into the setback
area. The BZA denied Barry’s third request.
{¶8} Barry then filed an administrative appeal pursuant to R.C. Chapter 2506,
challenging the City’s denial of his variance request. The common pleas court affirmed
the City’s decision, finding in relevant part:
After applying the law as set forth in Kisil v. Sandusky, 12 Ohio St.3d 30,
456 N.E.2d 848 (1984), and Duncan v. Middlefield, 23 Ohio St.3d 83, 491
N.E.2d 692 [(1986)] to the facts of this case, this court finds the board’s
decision is supported by substantial, reliable, and probative evidence.
Therefore, the board’s decision is affirmed.
{¶9} Barry requested findings of fact and conclusions of law. The trial court
denied his request. This appeal followed. Barry raises the following two assignments
of error for review.
Assignment of Error One
The trial court failed to apply the proper standard of review to the evidence
presented.
Assignment of Error Two
The trial court’s denial of appellant’s request for a variance of setback
requirements is against the manifest weight of the evidence.
Standard of Review
{¶10} In the first assignment of error, Barry argues the trial court failed to apply
the proper standard of review. He contends the trial court should have conducted a
review similar to a de novo review and should have provided findings and an explanation
for its decision.
{¶11} This court, however, has previously held that the common pleas court “‘has
no duty to issue findings of fact and conclusions of law in an appeal from the decision of
an agency of a political subdivision where the court does not function as a fact-finder in a
trial de novo.’” (Emphasis sic.) Ingle Inn, Inc. v. Brook Park, 8th Dist. Cuyahoga Nos.
54838 and 54839, 1989 Ohio App. LEXIS 191, * 13-14 (Jan. 19, 1989), quoting 3910
Warrensville Ctr. v. Warrensville Hts., 20 Ohio App.3d 220, 485 N.E.2d 824 (8th
Dist.1984), syllabus.
{¶12} Rather, in an administrative appeal, the common pleas court considers the
“‘whole record,’ including any new or additional evidence admitted under R.C. 2506.03,
and determines whether the administrative order is unconstitutional, illegal, arbitrary,
capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,
and probative evidence.” Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d
142, 147, 735 N.E.2d 433 (2000); Kisil, 12 Ohio St.3d 30, 456 N.E.2d 848. The
common pleas court must “not substitute its judgment for that of an administrative board,
such as the board of zoning appeals, unless the court finds that there is not a
preponderance of reliable, probative, and substantial evidence to support the board’s
decision.” Kisil at 34.
{¶13} Here, the trial court concluded the BZA’s decision was supported by
competent, credible evidence. In fact, the trial court stated that it found the BZA’s
decision to be “supported by substantial, reliable, and probative evidence.” Thus, the
trial court applied the appropriate standard of review.
{¶14} Accordingly, the first assignment of error is overruled.
Manifest Weight of the Evidence
{¶15} In the second assignment of error, Barry argues the trial court’s denial of his
request for a variance is against the manifest weight of the evidence. However, we do
not review the trial court’s judgment in administrative appeal under a manifest weight of
the evidence standard.
{¶16} Rather, R.C. 2506.04 grants a more 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
preponderance of substantial, reliable and probative evidence,’ as is granted
to the common pleas court.” [Kisil, 12 Ohio St.3d at fn. 4, 465 N.E.2d 848].
“It is incumbent on the trial court to examine the evidence. Such is not
the charge of the appellate court. * * * The fact that the court of appeals,
or this court, might have arrived at a different conclusion than the
administrative agency is immaterial. Appellate courts must not substitute
their judgment for those of an administrative agency or a trial court absent
the approved criteria for doing so.” Lorain City School Dist. Bd. Of Edn. v.
State Emp. Relations Bd.
Henley, 90 Ohio St.3d at 147, 735 N.E.2d 433.
{¶17} Thus, this court will review the judgment of the trial court only to determine
if the lower court abused its discretion in finding that the administrative order was
supported by reliable, probative, and substantial evidence. Wolstein v. Pepper Pike City
Council, 156 Ohio App.3d 20, 2004-Ohio-361, 804 N.E.2d 75, ¶ 21-22 (8th Dist.).
“‘The term “abuse of discretion” * * * implies that the court’s attitude is unreasonable,
arbitrary or unconscionable.’” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404
N.E.2d 144 (1980).
{¶18} Barry requested a variance of the City’s setback requirement, which relates
to area requirements. In deciding whether to grant an area variance, the Ohio Supreme
Court has instructed zoning boards to consider the applicant’s “practical difficulties.”
Kisil, 12 Ohio St.3d at 32-33, 465 N.E.2d 848; Duncan, 23 Ohio St.3d at 85-86, 491
N.E.2d 692. The factors to be considered and weighed in determining whether a
property owner seeking an area variance has encountered “practical difficulties” in the
use of his property include, but are not limited to:
(1) whether the property in question will yield a reasonable return or
whether there can be any beneficial use of the property without the
variance; (2) whether the variance is substantial; (3) whether the essential
character of the neighborhood would be substantially altered or whether
adjoining properties would suffer a substantial detriment as a result of the
variance; (4) whether the variance would adversely affect the delivery of
governmental services (e.g., water, sewer, garbage); (5) whether the
property owner purchased the property with knowledge of the zoning
restriction; (6) whether the property owner’s predicament feasibly can be
obviated through some method other than a variance; (7) whether the spirit
and intent behind the zoning requirement would be observed and substantial
justice done by granting the variance. See, generally, 3 Anderson,
American Law of Zoning (2 Ed.1977), Variances, Section 18.47 et seq.;
Wachsberger v. Michalis (1959), 19 Misc.2d 909, 191 N.Y. Supp.2d 621.
Duncan at 86.
{¶19} Bay Village Codified Ordinance 1127.04 sets forth the powers and duties of
the BZA. With respect to variances, Bay Village Codified Ordinance 1127.04(d), states
in relevant part:
Where there are practical difficulties or unnecessary hardships in the way of
carrying out the strict letter of the provisions of this Zoning Code, on appeal
from a decision of the Building Director the Board shall have the power in a
specific case, to vary or modify the application of any such provisions in
harmony with the general purpose and intent of this Zoning Code so that the
public health, safety, morals and general welfare may be secured and
substantial justice done. In granting a variance, after public notice, the
Board may require appropriate conditions and safeguards that they deem
necessary to protect, promote and improve the surrounding properties and
neighborhood. Such variance shall be limited to specific cases where the
following conditions also exist:
(1) The practical difficulty or unnecessary hardship inheres in and is
peculiar to the premises sought to be built upon or used because of physical
size, shape or other characteristics of such premises or adjoining premises
which differentiate such premises sought to be built upon or used will
create a difficulty or hardship caused by a strict application to the
provisions of this Zoning Code not generally shared by other lands or
structures in the same district.
(2) Refusal of the variance or modification appealed for will deprive the
owner of the premises sought to be built upon or used of substantial
property rights.
(3) Granting of the variance or modification appealed for will not be
contrary to the purpose and intent of the provisions of this Zoning Code.
{¶20} Courts have applied the Duncan factors in conjunction with local zoning
ordinances in determining whether to disturb the administrative decision, even if they are
not identical to the Duncan factors. Phillips v. Westlake Bd. of Zoning Appeals, 8th
Dist. Cuyahoga No. 92051, 2009-Ohio-2489, ¶ 54, citing Stickelman v. Bd. of Zoning
Appeals, 148 Ohio App.3d 190, 2002-Ohio-2785, 772 N.E.2d 683, ¶ 32 (2d Dist.).
{¶21} Furthermore, “‘no single factor controls in a determination of practical
difficulties; the inquiry should focus on the spirit rather than the strict letter of the zoning
ordinance so that substantial justice is done.’” Id. at ¶ 59, quoting Dyke v. Shaker Hts.,
8th Dist. Cuyahoga No. 83010, 2004-Ohio-514, ¶ 30. Thus, a variance may be denied
even if some factors weigh in favor of the property owner. Id. at ¶ 56, citing Stickelman.
{¶22} Barry argues that all of the Duncan factors point to practical difficulties.
We disagree. Barry cannot demonstrate how his need for more storage is “peculiar” to
his premises. The restrictions to the backyard are not unique. Barry acknowledges that
all of the houses on the lake in his neighborhood share the same restriction. The variance
does not deny Barry of “substantial property rights.” Although a utility room would
make storing maintenance equipment easier, surplus storage is not a substantial property
right.
{¶23} Furthermore, the BZA was concerned that the requested variance was
substantial. If the proposed addition were added to the existing structure, there would be
a 20-foot variance from the 50-foot setback requirement, which equated to a variance of
40 percent. Barry’s garage already encompasses a 25-foot variance. Barry argues that
because he already has a 25-foot variance for the garage, he should receive a 20-foot
variance for the storage room. His garage provides a space for storage and also caused
his property to be “overdeveloped.” Therefore, Barry’s need for a storage room does
not outweigh the City’s right to maintain its zoning requirements.
{¶24} Additionally, Barry admitted that he purchased the property with knowledge
of the zoning restrictions. Furthermore, Barry has not demonstrated that the proposed
utility room provides his only storage option. The BZA decided that the lot was
“overbuilt” already and concluded that Barry’s desire to increase storage and solve a door
problem are “not good enough reasons to go against the ordinance and grant another
variance.” It would be “going against the spirit of the reason for the front yard setback to
allow more because somebody wants more storage.” Based on the foregoing, the trial
court properly concluded that the BZA’s decision was supported by substantial, reliable,
and probative evidence.
{¶25} The second assignment of error is overruled.
{¶26} Judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas 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.
MARY EILEEN KILBANE, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR