The opinion
[Cite as 3620 Superior Ave., L.L.C. v. Cleveland Bd. of Zoning Appeals, 2012-Ohio-365.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97040
3620 SUPERIOR AVENUE, LLC
PLAINTIFF-APPELLANT
vs.
CITY OF CLEVELAND
BOARD OF ZONING APPEALS
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-744510
BEFORE: Keough, J., S. Gallagher, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: February 2, 2012
ATTORNEYS FOR APPELLANT
Avery S. Friedman
Patrick R. Kramer
Friedman & Associates
701 The City Club Building
850 Euclid Avenue
Cleveland, OH 44114-3358
ATTORNEYS FOR APPELLEE
Barbara Langhenry
Interim Director of Law
BY: Carolyn M. Downey
Assistant Law Director
601 Lakeside Avenue, Room 106
Cleveland, OH 44114
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Plaintiff-appellant, 3620 Superior Avenue, LLC, appeals the trial court’s
judgment affirming the decision of defendant-appellee, City of Cleveland Board of
Zoning Appeals (the “Board”), to deny a variance modification requested by appellant.
For the reason that follow, we affirm.
{¶ 2} Appellant is the owner of property located at 3620 Superior Avenue in
Cleveland, which was originally operated as a carry-out restaurant. In July 2007,
appellant applied for and was granted a variance to change its business operations to a
restaurant – bar establishment. In August 2010, appellant again applied for a variance
modification to change the business operations use from a restaurant – bar to a nightclub,
which would extend the hours of operation to 2:30 a.m.
{¶ 3} On September 16, 2010, the Building and Housing Department issued a
Notice of Non-Conformance to appellant, which denied their request to extend the hours
of operations to 2:30 a.m. A second Notice of Non-Conformance was issued in
November, which denied the variance request because the nightclub would have been
within 500 feet of a church or a residential district, the required amount of off-street
parking was unavailable, and any expansion or substitution of a non-conforming use
requires the Board’s approval.
{¶ 4} Following the first Notice of Non-Conformance, appellant filed an appeal
with the Board seeking a use variance. In November 2010, the Board conducted a public
hearing on appellant’s appeal where it heard and considered testimony both for and
against approval of the change of use variance. Following the hearing, the Board
unanimously denied appellant’s application.
{¶ 5} Appellant then requested that the Board conduct a new hearing based on
evidence it had obtained indicating that the Board had relied on racially-motivated
testimony and evidence from only one witness and thus, its decision denying appellant’s
application was discriminatory. The Board denied appellant’s request, finding that no
new evidence was presented. Moreover, when the Board reviewed appellant’s request
for reconsideration, the Board unanimously agreed that its decision would have been the
same even if the alleged biased and discriminatory testimony was excluded from
consideration.
{¶ 6} Appellant filed an administrative appeal in the Court of Common Pleas
pursuant to R.C. 2506.01, challenging the Board’s denial of its appeal and request for a
new hearing. The matter was briefed by both parties and the common pleas court issued
a written decision affirming the Board’s decisions denying appellant’s appeal and request
for a new hearing.
{¶ 7} It is from this decision that appellant appeals, raising the following two
assignments of error for review:
[I.] Where the record exists which contains irrefuted [sic] evidence of
intentional racial discrimination against the appellant before a board of
zoning appeals, the trial court abuses its discretion in either not reversing
the denial of a modification of a variance or, at the very least, remanding
the matter for a new hearing requiring the board to consider such evidence.
[II.] Where the record exists which contains irrefuted [sic]evidence of
intentional racial discrimination against the appellant before a board of
zoning appeals, a board of zoning appeals improperly denied a hearing
which would have permitted consideration of such evidence.
{¶ 8} Because the issues raised within each assigned error are interrelated, they
will be addressed together.
{¶ 9} In Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142,
2000-Ohio-493, 735 N.E.2d 433, the Ohio Supreme Court distinguished the standard of
review to be applied by common pleas courts and appellate courts in R.C. Chapter 2506
administrative appeals. The Henley court stated:
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.
The standard of review to be applied by the court of appeals in an R.C.
2506.04 appeal is “more limited in scope.” “This statute 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.” “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.” (Citations omitted.) Id. at 147.
{¶ 10} Thus, this court will review the judgment of the trial court only to determine
if it abused its discretion in finding that the administrative order was supported by
reliable, probative, and substantial evidence. See Wolstein v. Pepper Pike City Council,
156 Ohio App.3d 20, 2004-Ohio-361, 804 N.E.2d 75, ¶ 21-22. An abuse of discretion
“‘implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’”
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).
{¶ 11} In this case, we find that the trial court did not abuse its discretion. The
written decision by the trial court found that reliable, probative, and substantial evidence
was presented supporting the Board’s denial of appellant’s application. The trial court
specifically determined that the record demonstrated that the Board did not solely rely on
one witness’s testimony to reach its decision. As the trial court noted, multiple witnesses
testified before the Board, including a local councilman, indicating that granting the
change of use request would have an adverse impact on the community. Moreover, as
the Notice of Non-Conformance indicated, the nightclub – dance hall would have been
within 500 feet of a church or residential district, which is not allowable, and the amount
of off-street parking available was insufficient to support such an establishment.
{¶ 12} We further note that the only entity making the denial of the use variance a
racial issue is the appellant. While one witness may have had a personal bias against the
appellant or ulterior motive in testifying against approval of the use variance, nothing in
the record demonstrates that the witness’s personal bias or motives impacted the Board’s
decision. The record does not contain any evidence that the Board members (who
actually make the decision) acted in a discriminatory manner,“that its conclusions were
formulated” in any way “on racially-motivated evidence” in denying the variance, or that
its intent in denying the variance was an attempt to discriminate against the appellant.
{¶ 13} Moreover, appellant asks this court to review the evidence presented at the
Board hearing and to substitute our judgment for the Board. Appellant makes no
argument demonstrating the trial court’s error; rather, it reiterates the testimony and
evidence initially presented to the Board, which was the basis for the appeal below. Our
review is limited in scope and does not include the same extensive power to weigh the
evidence as is granted to the common pleas court. Henley, 90 Ohio St.3d 142, 147.
{¶ 14} Accordingly, the trial court did not abuse its discretion in affirming the
Board’s denial of appellant’s appeal and request for a new hearing. We find appellant’s
assignments of error to be without merit; they are thus overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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, JUDGE
SEAN C. GALLAGHER, P.J., and
KENNETH A. ROCCO, J., CONCUR