McDermott v. Bd. of Zoning Appeals

[Cite as McDermott v. Bd. of Zoning Appeals, 2024-Ohio-1780.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

CHRISTINA MCDERMOTT, TRUSTEE, :

Plaintiff-Appellant, :

No. 113123

v. :

BOARD OF ZONING APPEALS,

CITY OF CLEVELAND, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: May 9, 2024

Administrative Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-23-976105

Appearances:

Mark Stephen Shearer, for appellant.

Mark D. Griffin, Director of Law, and Michael T.

Mahoney, Assistant Director of Law, for appellee City of

Cleveland.

MARY J. BOYLE, J.:

Appellant, Christina McDermott, Trustee of the Christina McDermott

Trust (“appellant”), appeals the trial court’s decision affirming the Cleveland Board

of Zoning Appeals’ (“BZA”) denial of appellant’s request for a zoning variance. For

the reasons that follow, the judgment is affirmed.

I. Facts and Procedural History

In June 2019, appellant purchased the property at 4750 Hinckley

Avenue in Cleveland, Ohio (“property”) assuming that it was commercial property

based on previous use, how it was advertised for sale, and county tax records. The

property is approximately five acres of mostly vacant land, with residential

properties in the area. Appellant leased it to Rapid Water Response and Invisible

Excavations LLC.

In 2020, the appellant constructed a 2,776 square foot storage

structure as an addition to the preexisting 100-year-old commercial structure on the

property. The new storage structure was built on a preexisting foundation from

1920. Appellant maintained that it was built to appease neighbors and a

councilperson who complained about equipment being stored in the yard.

Appellant asserted he was unable to apply for a permit because city hall was closed

to the public during the pandemic. Eventually, appellant submitted a site plan

application asking to erect a 2,776 square foot storage structure that had already

been built. That application was approved on November 12, 2021. Thereafter,

appellant applied for a building permit as required.

On November 19, 2022, the City of Cleveland Department of Building

and Housing denied the appellant’s application for permit and issued a “Notice of

Non-Conformance.” The denial was based on Cleveland Codified Ordinances

(C.C.O.) 337.02, which states that a storage structure is not permitted in a one-

family residential district, as well as C.C.O. 359.01, which states that no enlargement

or expansion of a nonconforming use shall be permitted except as a variance under

the terms of Chapter 329. This “Notice of Non-Conformance” was appealed to the

BZA, and the appellant applied for a variance as well.

A public hearing was held, and the BZA heard testimony from

numerous witnesses. The appellant argued that R.C. 713.15 prohibits cities from

imposing restrictions on properties that continue a prior use, explaining that the

appellant and its predecessors used the property for a commercial purpose and the

structure continued a prior use because it was built on a preexisting foundation that

predated Cleveland’s zoning code. In essence, appellant argued that the zoning code

did not apply to the property or the structure. The appellant also asked, in the

alternative, for a variance arguing practical difficulty.

Testimony was presented that the property was zoned for residential

use since 1929, that there were no variances on file, and that only one permit was

issued in 1999 to demolish a 20x20, one-story wood framed building and garage.

The zoning administrator explained that once a structure is removed it cannot be

rebuilt without a variance. Six neighbors opposed the requested variance claiming

sewer issues and too much traffic. A councilwoman opposed it, as well.

Four out of five board members attended the hearing. Two voted to

deny a variance. Two voted to grant a variance, including the chief city planner who

confirmed the historic use of the property as commercial and stated that the sewer

issues were not due to the new structure. Nevertheless, the requested variance was

denied according to rule,1 and the decision of the Building and Housing Department

was upheld.

That decision was appealed to the Cuyahoga County Court of

Common Pleas pursuant to R.C. Chapters 2505 and 2506. At the trial court,

appellant argued that the zoning code did not apply and that the BZA applied the

incorrect standard of review for a variance. The trial court affirmed the decision of

the BZA stating:

This cause is before the court upon appellant’s notice of appeal of the

Board of Zoning Appeals and the City of Cleveland’s decision denying

appellant’s request for a zoning variance. After consideration of the

entire record, this court affirms the findings of the Board of Zoning

Appeals and finds that its decision is not unconstitutional, illegal,

arbitrary, capricious, unreasonable, nor unsupported by the

preponderance of substantial, reliable, and probative evidence on the

whole record.

(Journal Entry, August 3, 2023).

This appeal was taken. Appellant raises the following assignments of

error for review:

Assignment of Error I: The Board of Zoning Appeals improperly

denied permission to the McDermott Trust to retain its structure as the

property’s use predated the City of Cleveland’s Zoning Ordinances.

Assignment of Error II: Even if a variance were necessary, the

Board of Zoning Appeals applied the wrong legal standard.

For the reasons set forth below, we affirm.

1 When only four voting members are present, a concurring vote of three is required

to change a decision. See C.C.O. 329.01(g).

II. Law and Analysis

A. Standard of Review

The Ohio Supreme Court has explained that for an administrative

appeal pursuant to R.C. 2506.01, the common pleas court considers the whole

record and determines whether the administrative order is “unconstitutional,

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

substantial, reliable, and probative evidence.” Independence v. Office of the

Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d 1182, ¶

13-14, quoting R.C. 2506.04. See also Henley v. Youngstown Bd. of Zoning

Appeals, 90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000); 1415 Kenilworth, LLC v.

Cleveland, 8th Dist. Cuyahoga No. 111249, 2023-Ohio-300, ¶ 25. The trial court

weighs the evidence to determine whether a preponderance of reliable, probative,

and substantial evidence supports the administrative decision, and if it does, the

trial court may not substitute its judgment for that of the board. Id., citing

Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d 202, 207, 389 N.E.2d 1113

(1979).

The standard of review for this court is even more limited. Henley at

147, citing Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984); Gregory

v. Cuyahoga Cty., 8th Dist. Cuyahoga No. 108192, 2020-Ohio-2714, ¶ 23. We

review the lower court’s judgment only on questions of law, and further, we do not

have the same extensive authority to weigh the evidence. Id. at 147. This court is to

determine whether the trial court abused its discretion. Kisil at 34, fn. 4. We must

affirm unless we find, as a matter of law, that the trial court’s decision is not

supported by a preponderance of reliable, probative, and substantial evidence. Id.

at 34. “In this context, a reversal ‘as a matter of law’ can occur only when, having

viewed the evidence most favorably to the decision, there are no facts to support the

common pleas court decision.” Gregory at ¶ 24, quoting Kurutz v. Cleveland, 8th

Dist. Cuyahoga No. 105899, 2018-Ohio-2398, ¶ 8.

B. The Zoning Codes Apply

Both assignments of error are interrelated and pertain to a structure

that was built without a permit. Appellant maintains that the property is not subject

to the residential zoning codes because its commercial use predates the zoning

codes, arguing that the property’s use is “grandfathered” in, citing R.C. 713.15.

Appellant also argues that it has not expanded the nonconforming use because the

structure was built on a preexisting foundation; therefore the use did not change,

and no permit or variance was required. BZA contends that the residential zoning

codes apply and that storage structures are prohibited in residential areas unless a

variance is issued.

R.C. 713.15, often referred to as a “grandfather clause” states:

The lawful use of any dwelling, building, or structure and of any land

or premises, as existing and lawful at the time of enacting a zoning

ordinance or an amendment to the ordinance, may be continued,

although such use does not conform with the provisions of such

ordinance or amendment, but if any such nonconforming use is

voluntarily discontinued for two years or more, or for a period of not

less than six months but not more than two years that a municipal

corporation otherwise provides by ordinance, any future use of such

land shall be in conformity with sections 713.01 to 713.15 of the Revised

Code. The legislative authority of a municipal corporation shall provide

in any zoning ordinance for the completion, restoration,

reconstruction, extension, or substitution of nonconforming uses upon

such reasonable terms as are set forth in the zoning ordinance.

Cleveland City Council enacted C.C.O. 359.01(a) to implement R.C.

713.15. Hornyak v. Bd. of Zoning Appeals, 8th Dist. Cuyahoga No. 43179, 1981 Ohio

App. LEXIS 10507 (May 28, 1981), fn. 1. C.C.O. 359.01 (a) codifies the grandfather

clause and sets forth how to enlarge, expand, substitute, or change the

nonconforming use, and states:

Except as provided in Section 347.06 and Chapter 351, a use of building

or land lawfully existing on the effective date of this Zoning Code or of

any amendment or supplement thereto, or for which a permit has been

lawfully issued, may be continued even though such use does not

conform to the provisions of this Zoning Code for the use district in

which it is located, but no enlargement or expansion shall be permitted

except as a variance under the terms of Chapter 329, and no

substitution or other change in such nonconforming use to other than

a conforming use shall be permitted except by special permit from the

Board of Zoning Appeals. Such special permit may be issued only if

the Board finds after public hearing that such substitution or other

change is no more harmful or objectionable than the previous

nonconforming use in floor or other space occupied, in volume of trade

or production, in kind of goods sold or produced, in daily hours or other

period of use, in the type or number of persons to occupy or to be

attracted to the premises or in any other characteristic of the new use

as compared with the previous use.

(Emphasis added.)

A “non-conforming” use means the “use of a building or premises that

does not conform to the regulations of the use district in which it is located.”

C.C.O. 325.52. “An established nonconforming use runs with the land, and hence a

change in ownership will not destroy the right to continue the use.” Marietta v. Bd.

of Trustees for Washington Cty. Woman’s Home, 2020-Ohio-5144, 161 N.E.3d 736,

¶ 71 (4th Dist.), quoting 8A Eugene McQuillin, The Law of Mun. Corp. § 25.188, at

59 (3d ed. 2018). “However, generally speaking, the character of the nonconforming

use must be the same for the change in ownership not to effect a valid

nonconforming use.” Id.

The “burden of proving a nonconforming use is on the party claiming

the use.” Stumpff v. City of Riverside Bd. of Zoning Appeals, 2d Dist. Montgomery

No. 28589, 2020-Ohio-4328, ¶ 13, quoting Penewit v. Spring Valley Bd. of Zoning

Appeals, 2d Dist. Greene No. 2019-CA-6, 2019-Ohio-3200, ¶ 32; Cleveland v.

Abrams, 8th Dist. Cuyahoga Nos. 89904 and 89929, 2008-Ohio-4589, ¶ 45. To

prove a nonconforming use, a landowner must show by a preponderance of the

evidence that “the use [was] in existence prior to the enactment of [any applicable]

land use regulation[s],” and that the use was “lawful at the time [it] was established.”

(Citations omitted.) Id., citing Belich v. Olmsted Falls, 8th Dist. Cuyahoga Nos.

84537 and 84807, 2005-Ohio-190, ¶ 16; Wooster v. Entertainment One, Inc., 158

Ohio App.3d 161, 2004-Ohio-3846, 814 N.E.2d 521, ¶ 48 (9th Dist.).

The evidence in the record establishes that there was a commercial

structure on the property initially; however, that structure was removed in 1999.

Because the property has been zoned as residential since 1929, according to R.C.

713.15 and C.C.O. 359.01(a), once the structure was demolished, a variance must be

issued to rebuild. Although the appellant built the new structure on the old

foundation, it was still built without a variance or a permit. Therefore, the structure

violated the zoning code.

Accordingly, we overrule appellant’s first assignment of error.

C. Unnecessary Hardship is the Proper Standard

Turning to the denial of the requested variance, we note that a BZA is

afforded wide latitude in deciding whether to grant or deny a variance. 1415

Kenilworth, LLC, 8th Dist. Cuyahoga No. 111249, 2023-Ohio-300, ¶ 25, citing

Schomaeker v. First Natl. Bank, 66 Ohio St.2d 304, 309, 421 N.E.2d 530 (1981);

Kisil at 35. A board’s decision to deny a variance is accorded a presumption of

validity, and the burden of demonstrating the decision’s invalidity rests with the

contesting party. Id., citing Consol. Mgt., Inc. v. Cleveland, 6 Ohio St.3d 238, 240,

452 N.E.2d 1287 (1983). The fact that the appellate court may arrive at a different

conclusion than the administrative agency is immaterial; courts are forbidden from

substituting their judgment for that of an administrative agency or trial court absent

the approved criteria for doing so. Id., citing Franklin v. Berea, 8th Dist. Cuyahoga

No. 93894, 2010-Ohio-4350, ¶ 18.

Appellant argues that the BZA applied the incorrect standard of

review at the hearing. Appellant alleges that the lesser standard of “practical

difficulties” should have been applied, and thus a variance should have been

granted. We disagree.

The city of Cleveland grants the BZA the power, in a specific case, to

vary or modify the application of the zoning code “[w]here there is practical difficulty

or unnecessary hardship in the way of carrying out the strict letter” of the code. See

C.C.O. 329.03(a). This includes the power to “permit the extension or enlargement

of a building or use, or the erection of an additional building, upon the premises

lawfully occupied by such building or use on November 5, 1929.”

C.C.O. 329.03(d)(2). However, C.C.O. 329.03(b) limits the BZA’s authority to grant

a variance to specific cases where the following conditions are shown:

(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 the premises * * * which

differentiate it from other premises in the same district and create a

difficulty or hardship caused by a strict application of the provisions of

this Zoning Code not generally shared by other land or buildings in the

same district;

(2) Refusal of the variance appealed for will deprive the owner of

substantial property rights; and

(3) Granting of the variance appealed for will not be contrary to the

purpose and intent of this Zoning Code.

The burden to prove the three conditions set forth in C.C.O. 329.03(b)

is on the party seeking the variance, and the failure to establish all three conditions

requires the board to deny the requested variance. ProTerra, Inc. v. Cleveland Bd.

of Zoning Appeals, 2020-Ohio-6739, 164 N.E.3d 1086, ¶ 22-24 (8th Dist.). See also

Consol. Mgt., Inc., 6 Ohio St.3d 238, 242, 452 N.E.2d 1287 (1983); Cleveland v.

Patrick Realty, 8th Dist. Cuyahoga No. 90349, 2008-Ohio-4243, ¶ 24.

There are two distinct types of zoning variances — use variances and

area variances, and the BZA is authorized to grant both types of variances. Id., citing

Schomaeker, 66 Ohio St.2d 304, 307, 421 N.E.2d 530 (1981). “A use variance

permits land uses for purposes other than those permitted in the district as

prescribed in the relevant regulation,” such as allowing “a commercial use in a

residential district.” Id., quoting Schomaeker at 306-307. “Area variances do not

involve uses, but rather structural or lot restrictions,” such as “relaxation of setback

lines or height restrictions.” Id. Use variances are subject to higher scrutiny and

require a showing of “unnecessary hardship” while area variances are subject to the

lesser standard of “practical difficulties.” 1415 Kenilworth at ¶ 25, citing Franklin at

¶ 27; Duncan v. Middlefield, 23 Ohio St.3d 83, 85, 491 N.E.2d 692 (1986).

In this case, appellant asked for a use variance arguing that if the

property was unable to be used as commercial property appellant and its tenants

would suffer economically. Additionally, appellant argued that they would suffer a

substantial financial loss if forced to take down the structure; therefore, a use

variance should have been granted. Because appellant is asking for a use variance,

the “unnecessary hardship” standard applies.

A use variance is normally awarded when a board of zoning appeals

allows property to be used in a way that is not expressly or implicitly permitted by

the relevant zoning code. 6957 Ridge Rd., L.L.C. v. Parma, 8th Dist. Cuyahoga No.

99006, 2013-Ohio-4028, ¶ 14-18, citing Battaglia v. Newbury Twp. Bd. of Zoning

Appeals, 11th Dist. Geauga No. 99-G-2256, 2000 Ohio App. LEXIS 5755 (Dec. 8,

2000). The governing test for a use variance is whether a particular zoning

ordinance creates an “unnecessary hardship” with respect to the use of the property.

Id., citing Fisher-Yan v. Mason, 11th Dist. Geauga No. 99-G-2224, 2000 Ohio App.

LEXIS 4352, 12-13 (Sept. 22, 2000). A zoning regulation “imposes an unnecessary

hardship which will warrant a variance only where the hardship is unique to a

particular owner’s property.” Id., quoting Johnson’s Island Invest. Group, LLC v.

Marblehead Bd. of Zoning Appeals, 6th Dist. Ottawa No. OT-11-023, 2012-Ohio-

1667, citing Fox v. Shriver-Allison Co., 28 Ohio App.2d 175, 181, 275 N.E.2d 637 (7th

Dist.1971). Unnecessary hardship does not exist unless the property is unsuitable

for any of the uses permitted by the zoning resolution. Id., citing In re Appeal of

Dinardo Constr., Inc., 11th Dist. Geauga No. 98-G-2138, 1999 Ohio App. LEXIS

1430 (Mar. 31, 1999).

The determination of whether an unnecessary hardship exists is one

of fact entrusted to the board’s discretion. Nigro v. Parma, 8th Dist. Cuyahoga No.

82594, 2003-Ohio-6637, ¶ 9-10, citing Schomaeker, 66 Ohio St. 2d 304, 421 N.E.2d

530 (1981). The mere fact that property can be put to a more profitable use does

not, in itself, establish a necessary hardship where less profitable alternatives are

available within the zoning classification. Id., citing Consolidated Mgt., Inc., 6 Ohio

St.3d at 242, 452 N.E.2d 1287. In order for the unnecessary hardship test to be

applicable, it must be determined that any potential hardship was not self-created

or self-imposed. 6957 Ridge Rd., L.L.C. v. Parma, 8th Dist. Cuyahoga No. 99006,

2013-Ohio-4028, ¶ 14-18, citing Massasauga Rattlesnake Ranch, Inc. v. Hartford

Twp. Bd. of Zoning Appeals, 11th Dist. Trumbull Nos. 2011-T-0060 and 2001-T-

0061, 2012 Ohio 1275.

Here, the appellant was aware that a permit was needed to rebuild a

structure on the property. There was testimony that an attempt was made to get a

permit but that due to the pandemic, the appellant was unable. Nevertheless, the

appellant went forth with the construction of the structure without a permit.

Appellant cannot now claim a financial hardship when the hardship was self-

created.

Because appellant cannot establish an unnecessary hardship, we need

not address whether the refusal of the variance will deprive the owner of substantial

property rights or whether the granting of the variance is contrary to the purpose

and intent of the zoning code. Accordingly, we overrule appellant’s second

assignment of error.

III. Conclusion

After a thorough review of all the evidence in the record, we cannot

say as a matter of law that the BZA’s denial of appellant’s requested variance is

unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by a

preponderance of the evidence on the whole record. As such, the trial court did not

err in coming to the same conclusion.

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.

_________________________

MARY J. BOYLE, JUDGE

LISA B. FORBES, P.J., and

EMANUELLA D. GROVES, J., CONCUR