[Cite as Lee v. Lafayette Twp. Bd. of Zoning Appeals, 193 Ohio App.3d 795, 2011-Ohio-2086.]




STATE OF OHIO                        )                           IN THE COURT OF APPEALS
                                     )ss:                        NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                     )

LEE ET AL.,                                                      C.A. No.          10CA0077-M

         Appellants,

         v.                                                      APPEAL FROM JUDGMENT
                                                                 ENTERED IN THE
LAFAYETTE TOWNSHIP BOARD OF                                      COURT OF COMMON PLEAS
ZONING APPEALS ET AL.,                                           COUNTY OF MEDINA, OHIO
                                                                 CASE No.   09CIV2436
         Appellees.

                                    DECISION AND JOURNAL ENTRY

Dated: May 2, 2011

APPEARANCES:

J. Douglas Drushal and Andrew P. Lycans, for appellants.

Dean Holman, Medina County Prosecuting Attorney, and Tom J. Karris and David J. Folk,
Assistant Prosecuting Attorneys; and Michael L. Laribee, for appellees.


         WHITMORE, Judge.

         {¶1}     Appellants, William and Nicole Lee, appeal from the judgment of the Medina

County Court of Common Pleas in favor of appellees, the Lafayette Township board of Zoning

Appeals and the Schwab family trust. This court reverses.

                                                           I

         {¶2}     Elizabeth Schwab’s family built a small cottage on their Chippewa Lake lot in the

mid-1930s and transferred the property within their family through quit-claim deeds until it came

into Schwab’s possession, as trustee for the trust, in 1997. In July 1999, the cottage on the

property was destroyed after a storm caused a tree to fall on it. Schwab razed the cottage instead
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of rebuilding it, and the lot, which is lakeside property, has remained free of any structures since

that time. After Schwab razed the cottage, there was no impediment blocking the view of the

lake from the adjacent lot.

       {¶3}    In 2006, the Lees purchased the lot adjacent to the trust’s lot and renovated their

property to maximize their view of the lake. They learned in 2009, however, that Schwab was

seeking to build a structure on the trust’s property, the dimensions of which would interfere with

their view. Specifically, Schwab sought to build a 1,032 square foot, one and one-half story

house on the trust’s 2,662 square foot lot. Because the proposed building plans for the house

conflicted with several zoning resolutions, Schwab sought five variances. Schwab’s zoning

application asked the board to approve variances with respect to the following Lafayette

Township Zoning Resolutions: (1) the minimum lot size, pursuant to Section 301.4-A-1, (2) the

minimum setback, pursuant to Section 301.5-A, (3) the minimum east-side yard width, pursuant

to Section 301.5-B, (4) the minimum west-side yard width, pursuant to Section 301.5-B, and (5)

the minimum square footage for a single-family dwelling, pursuant to Section 214-A-1-2.

       {¶4}    The board held a public hearing on the requested variances on November 5, 2009.

Schwab and the Lees spoke at the hearing, as did numerous other concerned residents of the area.

At the end of the hearing, the board voted on the variances and approved them.1 The board

issued a formal decision approving all five variances on November 12, 2009.




1
  We note that the transcript from the board’s public hearing contains a discrepancy with regard
to the vote of the board members. One of the members, Lisa Takach, moved to grant all five
variances at issue. Her motion was seconded, and the chair called the vote. The transcript then
lists Takach as voting against all five variances. Because the variances were granted by a
majority and Takach’s vote either way does not change that fact, the discrepancy has no bearing
on the board’s ultimate decision. This court merely notes the discrepancy for purposes of the
record.
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       {¶5}    On December 11, 2009, the Lees filed a notice of appeal in the Medina County

Court of Common Pleas, challenging the board’s decision. The trust sought to intervene in the

action as the owner of the property to which the variances applied, and the trial court permitted

the intervention. The Lees, the board, and the trust all filed briefs in support of their positions.

On June 9, 2010, the court affirmed the board’s decision to allow the variances.

       {¶6}    The Lees now appeal from the court’s judgment and raise four assignments of

error for our review. For ease of analysis, we consolidate the assignments of error.

                                                 II

                                Assignment of Error Number One

                      The common pleas court erred in failing to sufficiently detail its
               reasoning in such a way as to allow the appellate court to conduct a
               meaningful review of the decision.

                                Assignment of Error Number Two

                       The common pleas court erred by failing to properly apply the
               practical difficulties standard.

                               Assignment of Error Number Three

               The decision of the board and the common pleas court is not supported by
               the evidence in the record.

                                Assignment of Error Number Four

                      The common pleas court erred by allowing the board to “correct”
               the zoning resolution’s “mistake” in applying rural residential zoning
               requirements to Chippewa Lake by way of variances.

       {¶7}    In the foregoing assignments of error, the Lees argue that the trial court erred by

affirming the board’s decision to grant the trust’s requested variances. Specifically, they argue

that the court erred by (1) failing to set forth any analysis in its judgment that would allow for a

meaningful review on appeal, (2) adopting the board’s flawed application of the practical-
                                                  4


difficulties test, and (3) affirming a decision that is not supported by the evidence in the record

and is the result of an ad hoc response to an unworkable zoning scheme.

       {¶8}    Administrative appeals initiated under R.C. 2506.04 require the trial court to

“consider[] the entire record before it and ‘determine[] whether the administrative order is

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

preponderance of substantial, reliable, and probative evidence.’ ” Summit Cty. v. Stoll, 9th Dist.

No. 23465, 2007-Ohio-2887, at ¶ 9, quoting Henley v. Youngstown Bd. of Zoning Appeals

(2000), 90 Ohio St.3d 142, 147. Based on its review, the trial court may “affirm, reverse, vacate,

or modify the order.” R.C. 2506.04. The trial court’s judgment “may be appealed by any party

on questions of law.” Id. Whether the trial court abused its discretion is “[w]ithin the ambit of

‘questions of law’ for appellate court review.” Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34,

fn. 4. An appellate court’s review in such an instance, however, “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.” Henley, at 147; Kisil at 34, fn. 4. Rather, we must affirm

the trial court’s decision if such evidence exists in the record. Summit Cty. v. Stoll, 9th Dist. No.

24681, 2009-Ohio-6615, at ¶ 6, citing Kisil at 34. “Appellate courts must not substitute their

judgment for those of an administrative agency or a trial court absent the approved criteria for

doing so.” Henley at 147.

       {¶9}    “The standard for granting a variance which relates solely to area requirements

should be a lesser standard than that applied to variances which relate to use *.*.*; it is sufficient

that the application show practical difficulties.” Kisil at syllabus.

               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
                                                5


       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.

Duncan v. Middlefield (1986), 23 Ohio St.3d 83, syllabus. “[N]o single factor controls in

a determination of practical difficulties.” Id. at 86. “The key to this standard is whether

the area zoning requirement, as applied to the property owner in question, is reasonable.”

Id.


       {¶10} While the trust, through Schwab, sought five separate variances in this case, they

all stem from Schwab’s desire to build one structure, a single-family dwelling. Due to the

diminutive size of the trust’s lot, the placement of virtually any structure on it presents a

difficulty in terms of zoning. For purposes of context, we outline the size of the variances sought

by the trust. To conform to Zoning Resolution Section 301.4-A-1’s requirement that all lots

containing a single-family dwelling be a minimum of 87,120 square feet (two acres), the trust

sought a variance of 84,458 feet to build a dwelling on its 2,662 square foot lot. To conform to

Section 301.5-A’s minimum setback requirement of 80 feet, the trust sought a 64- foot variance.

To conform to Section 301.5-B’s requirement that side yards have a minimum width of 15 feet,

the trust sought a seven-foot variance for the east side of its property and an eight-foot variance

for the west side of its property. Finally, to conform to Section 214-A-1-2’s requirement that

single-family dwellings without basements contain a minimum of 1,400 square feet, the trust

sought a 368 foot variance for its proposed 1,032 square foot dwelling.
                                                  6


       {¶11} After a careful review of the record, this court concludes that the proper remedy

in this matter is a remand to the trial court. The record here does not support the conclusion that

the trial court considered the board’s interpretation and application of Lafayette Township

Zoning Resolution Section 706. Section 706 reads as follows:

                        In any district in which single family dwellings are permitted, a
               single family dwelling *.*.* may be erected on any legal lot of record at
               the effective date of adoption or amendment of this Resolution,
               notwithstanding limitation imposed by other provisions of this Resolution,
               provided all such lots are approved by the Medina County Health
               Department for on-site sewer and water facilities, if applicable. This
               provision shall apply even though such lot fails to meet the requirements
               for area or width, or both, that are generally applicable in the district
               provided that yard dimensions and requirements other than those applying
               to area or width, or both, of the lot shall conform to the current regulations
               for the district in which such lot is located. Variances of requirements
               listed in Article III of this Resolution other than lot area or lot width shall
               be obtained only though action of the board * * *.

Thus, Section 706 constitutes a grandfathering provision, whereby single family dwellings may

be erected on lots that were “legal lot[s] of record” at the time of the zoning resolution’s

adoption, regardless of the fact that those lots do not meet certain requirements pertaining to area

or width. We read Section 706 as a provision that exempts eligible lots from certain area and

width requirements such that a variance would be unnecessary.

       {¶12} The trial court did not refer to Section 706 in upholding the trust’s variances,

almost all of which requested area and width deviations. Although Section 706 was discussed at

the public hearing before the board, the result of that discussion is troubling. At the hearing, the

zoning inspector stated the following:

                        [B]asically what [Section 706] is saying is [the trust’s lot] is a lot
               of record and it’s a current lot of record and technically it’s a buildable lot.
               The fact that you can’t put a house on there that you would like to put, it’s
               still a viable lot – it’s not a taking. But [Section 706 is] saying that if they
               can’t meet the lot requirements as far as setbacks and all those good
               things, then it shall be obtained only through the action of the board of
                                                 7


               Zoning Appeals. So the board of Appeals can, if it wants to, grant
               variances to the side yards and setbacks so that a house can be put on it.

As further explained below, Section 706’s plain language and the zoning inspector’s statements

about the section are less than clear.

       {¶13} Lafayette Township’s Zoning Resolution splits lot requirements and yard

requirements into two distinct sections, Sections 301.4 and 301.5. The “lot requirement” section

sets forth restrictions for minimum lot area, frontage, and width, while the “yard requirements”

section sets forth restrictions for minimum setbacks, side-yard widths, and rear yard depths. The

definitional section of the zoning resolution also separately defines “lot” and “yard.” Even so,

the “lot” definition appears to encompass “yard[s]” to some extent. See Lafayette Township

Zoning Resolution, Art. XII, Definitions: Lot (“[A] lot is a recorded parcel of land of sufficient

size to meet minimum zoning requirements for use, coverage, and area, and to provide such

yards * * * as are herein required”). Moreover, the zoning inspector’s comments at the public

hearing add to the confusion. The zoning inspector commented that Section 706 applies if

owners “can’t meet the lot requirements as far as setbacks.” According to the zoning resolution,

however, setbacks are yard requirements, not lot requirements. See Lafayette Township Zoning

Resolution, Section 301.5(A). It is unclear, then, whether the zoning inspector and the board

consider “yard[s]” to be encompassed within the term “lots” for purposes of Section 706.

Section 706’s plain language also adds to the confusion.

       {¶14} The full text of Section 706, as it pertains to single family dwellings, is quoted

above. The portion of concern here reads as follows:

                This provision shall apply even though such lot fails to meet the
       requirements for area or width, or both, that are generally applicable in the district
       provided that yard dimensions and requirements other than those applying to
       area or width, or both, of the lot shall conform to the current regulations for the
       district in which such lot is located.
                                                8




(Emphasis added.)     Initially, we note that the zoning resolution contains a provision and

definition only for yard “requirements,” not yard “dimensions.” More important, however, it is

unclear whether the emphasized portion of the text means (1) that area and width requirements,

regardless of whether they are lot requirements or yard requirements, will not apply to eligible

lots; or (2) that area-and-width lot requirements will not apply to eligible lots, but yard

requirements will still apply and necessitate a variance.         Section 706 is entitled only

“Nonconforming Lots of Record,” but the zoning resolution does not contain a provision for

nonconforming yards. Thus, either Section 706 encompasses yard requirements in addition to lot

requirements, or the zoning resolution does not exempt yard requirements in any instance.

       {¶15} Because virtually all the variances here are area-and-width related, the

interpretation of Section 706 is a crucial determination. It is necessary, therefore, for the trial

court to consider the board’s interpretation and application of Section 706 in the first instance

and determine what effect it has on the variances at issue here. To the extent that the Lees argue

within their second and third assignments of error that the board and the trial court did not

consider Section 706, we find merit in that assertion. In light of our conclusion that this matter

must be remanded for the trial court to address Section 706, we do not reach the Lees’ additional

arguments attacking the breadth of the trial court’s analysis and the board’s ultimate decision to

grant the trust’s variances. Those additional arguments are premature at this time.

                                                III

       {¶16} The Lees’ second and third assignments of error are sustained, in part, to the

extent that they challenge the application of Lafayette Township Zoning Resolution Section 706.

We do not address the remainder of their assignments of error, as they are premature. The
                                                9


judgment of the Medina County Court of Common Pleas is reversed, and the cause is remanded

for further proceedings consistent with the foregoing opinion.

                                                                               Judgment reversed

                                                                             and cause remanded.


       CARR, J., concurs.

       BELFANCE, P.J., concurs separately.

       BELFANCE, Presiding Judge, concurring.

       {¶17} I concur because the trial court should interpret Section 706 of the Lafayette

Township Zoning Resolution in the first instance. I write separately to emphasize that the trial

court should not feel constrained by what may be perceived as this court’s interpretation of

Section 706. While this court has listed two possible interpretations of Section 706, these may

not be the only reasonable interpretations. Further, I would note that it is also possible that the

record before the trial court may not provide sufficient evidence to allow for a meaningful

interpretation and application of Section 706; if that is the case, it should be determined whether

additional evidence can be taken pursuant to R.C. 2506.03 or whether a remand to the Lafayette

Township Board of Zoning Appeals is necessary.
