concluding that a common pleas court correctly determined that a denial of a variance was arbitrary and unreasonable, in part, because the record contained sufficient evidence from which the common pleas court could conclude that the applicant was treated differently from similarly situated property owners
How later courts described this case
- concluding that a common pleas court correctly determined that a denial of a variance was arbitrary and unreasonable, in part, because the record contained sufficient evidence from which the common pleas court could conclude that the applicant was treated differently from similarly situated property owners
- denial of variance to convert residence to duplex was arbitrary in light of the neighboring CT Page 3378 area containing duplexes existing on lots of insufficient size and nearby lot recently being granted a variance
- considering neighborhood and recent variance grant to nearby home
Written by the judges who cited it.
The opinion
Locher, J.,
dissenting. The first paragraph of the syllabus in Consolidated Mgmt., Inc. v. Cleveland (1983), 6 Ohio St. 3d 238 , reads as follows:
“Generally, where a purchaser of commercial property acquires the premises with knowledge of certain zoning restrictions, he must accept the limitations on the usages of such property, and may not demand a variance based upon the claimed hardship due to such limitations.”
In effect, the majority today finds a difference between commercial property and residential property for variance purposes. Appellant readily admits to having knowledge of the zoning restrictions applicable to his residential property when he purchased it in 1981 for investment purposes, yet is now permitted to ignore such restrictions. This is a suh silentio reversal of Consolidated Mgmt., Inc., since there should be no difference in the present context between commercial and residential uses.
The majority misinterprets the holding in Consolidated Mgmt., Inc. as requiring some sort of a previous attempt to secure a variance before knowledge is imputed. This was not the holding of that case. No distinction was made as to how the knowledge is gained. Rather, a landowner who buys with knowledge, however gained, “* * * has created his own hardship and generally cannot thereafter apply for a zoning variance based on such hardship.” Id. at 242 .
The majority makes much of the fact that a neighboring landowner to appellant was granted a multifamily variance from a previous commercial use. This commercial use, however, was a nonconforming use that was eliminated by the variance. Hence, the present use of that property is more restricted than its previous use, and is now more closely tailored to the zoning plan than before. Thus, the neighborhood was upgraded by the granting of that variance. This is far different from what has occurred in the case herein: appellant is permitted to vary his previously conforming use into a downgrading use outside the bounds of the zoning code.
The real problem with this court’s holding today, though, is the abrogation of the home rule power of appellee city to enforce its zoning code. The property in question is less than one-half of the required two-family area dimensions. There is no question here of any arbitrariness on the part of appellee. Zoning has long been an established power of the municipality, with the burden on the claimant to show that a zoning board’s refusal to grant a variance is unreasonable, arbitrary, or capricious. Consolidated Mgmt., Inc., *37 supra, at 240; C. Miller Chevrolet v. Willoughby Hills (1974), 38 Ohio St. 2d 298 [ 67 O.O.2d 358 ]. The court of appeals was correct in citing the knowledge of appellant, the large size disparity, and the distinguishable circumstances of the neighboring parcel in holding for appellees.
For the foregoing reasons, I must therefore dissent.
Celebrezze, C.J., and Holmes, J., concur in the foregoing dissenting opinion.