[Cite as Simpson v. Cleveland, 2019-Ohio-5334.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

JACQUELINE SIMPSON, ET AL.,                       :

                Plaintiffs,                       :
                                                          Nos. 107820 and
                v.                                :       108447

CITY OF CLEVELAND BOARD OF                        :
ZONING APPEALS, ET AL.,
                                                  :
                Defendants-Appellees.
                                                  :
[Appeal by Jeanne Carney-Hagan
                                                  :
                Plaintiff-Appellant.]


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: December 26, 2019


     Administrative Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CV-18-893247


                                           Appearances:

                Nee Law Firm, L.L.C., Matthew M. Nee, and Leigh S.
                Prugh, for appellant.

                Barbara A. Henry, Director of Law, and Carolyn M.
                Downey, Assistant Director of Law, for appellee City of
                Cleveland.

                Mansour Gavin, L.P.A., John W. Monroe, Tracey S.
                McGurk, and Kathryn E. Webber, for appellee Dieter
                Sumerauer.
ANITA LASTER MAYS, J.:

                 Defendant-appellant    Jeanne       Carney-Hagan   (“Carney-Hagan”)

appeals the trial court’s decision to affirm the Cleveland Board of Zoning Appeals’

(“the BZA”) decision to grant a variance to their neighbor, plaintiff-appellee, Dieter

Sumerauer (“Sumerauer”). Pursuant to App.R. 3(B), we have consolidated the two

appeals for the purpose of disposition, as they contain the same facts and issues. We

affirm the trial court’s decision in both appeals.

I.    Facts and Procedural History

                 When Sumerauer purchased his home, it did not include a garage on

the property. Consequently, Sumerauer applied for a zoning variance to permit

construction of a new building on his property that included a 3-car garage with a

second floor study and living suite.          The new building would consist of

approximately 2,100 additional square footage. The previous garage1 did not violate

any setback requirements and did not require a variance. However, the proposed

structure required a variance due to its height. The new structure required a setback

of 31 feet. The additional living space pushed the garage within five feet of the

property line.

                 The BZA held a hearing on Sumerauer’s variance request. Sumerauer

argued that he needed approval for the variance because it was difficult to comply

with the current building code due to the irregular shape of the lot. Sumerauer




      1   The prior owner demolished the previous garage.
acknowledged that he could build the garage on the opposite side of the house within

code regulations, but it would block views of the lake on his street.

               Several neighbors opposed the variance arguing:

      1.     The massive addition/suite was not consistent with single-
             family residence zoning because it was the equivalent of a new
             dwelling * * * a second dwelling, on a home that is zoned for
             single family;

      2.     There was no practical difficulty requiring the construction of
             such a large, multi-room addition with a substantially larger, 3-
             car garage, rather than simply re-building a smaller garage as
             originally configured;

      3.     There was no practical difficulty that required the new addition
             to be located on the south side of the house, when Sumerauer
             admitted it could be built on the north side without violating
             any code restrictions;

      4.     There was no practical difficulty because current conditions did
             not interfere with any beneficial use of the house, which
             Sumerauer purchased and has been fully able to live in;

      5.     Construction of a 2-story addition within 5 feet of the property
             line would destroy the privacy in neighbors backyards and
             interfere with their enjoyment of their own property;

      6.     Construction of a 2-story addition within 5 feet of the property
             line would block lakeshore views of the neighbors, interfering
             with enjoyment and reducing the value of the neighboring
             properties;

      7.     Crowding a 6,000-plus square foot residence into a 15,000
             square foot lot would interfere with the character and beauty of
             that neighborhood, the large green spaces in the back, that were
             not crowding people in there.
Additionally, Sumeraurer’s architectural drawings demonstrated that the

proposed addition would only be five feet away from combustible materials, thus

openly raising the prospect of a fire hazard to adjoining properties.

               At the conclusion of the hearing, the BZA granted Sumerauer’s

request for a variance, stating:

      [t]he Board finds that the appeal should be granted as there is clearly
      a practical difficulty in complying with the code due to the unusual
      shape of the property; and refusal of the variance would deprive the
      owner of substantial property rights; and granting the appeal will not
      be contrary to the purpose and intent of the Zoning Code.

BZA Resolution, Exhibit A to Notice of Appeal to Trial Court.

               As a result of the BZA’s decision, several neighbors filed an

administrative appeal in the Cuyahoga County Court of Common Pleas. The trial

court did not conduct a hearing, but rather issued a decision based on the briefs filed

by each party. The trial court affirmed the BZA’s decision citing the factors to be

considered in Duncan v. Middlefield, 23 Ohio St.3d 83, 491 N.E.2d 692 (1986),

under the “practical difficulties” test.

               In response, Carney-Hagan filed this appeal assigning two errors for

our review:

      I.      The trial court abused its discretion by failing to independently
              analyze the Duncan factors or explaining its rationale for
              supporting the Board of Zoning Appeals’ decision; and

      II.     The trial court’s judgment was against the manifest weight of
              the evidence because the Duncan factors weighed in favor of
              denying the variance.
II.   Analyzing the Duncan Factors

      A.     Standard of Review

              Accordingly,

      [a] party who disagrees with a decision of a court of common pleas in
      an R.C. Chapter 2506 administrative appeal may appeal that decision
      to the court of appeals but only on “questions of law.” R.C. 2506.04.
      For this reason, we have stated that under R.C. 2506.04, an appeal to
      the court of appeals is “more limited in scope” than was the appeal to
      the court of common pleas. Kisil [v. Sandusky], 12 Ohio St.3d 34, 465
      N.E.2d 848; see id. at ¶ 34, fn. 4. While the court of common pleas is
      required to examine the evidence, the court of appeals may not weigh
      the evidence. Independence [v. Office of the Cuyahoga Cty.
      Executive], 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d 1182, at
      ¶ 14. Apart from deciding purely legal issues, the court of appeals can
      determine whether the court of common pleas abused its discretion,
      which in this context means reviewing whether the lower court abused
      its discretion in deciding that an administrative order was or was not
      supported by reliable, probative, and substantial evidence. Boice v.
      Ottawa Hills, 137 Ohio St.3d 412, 2013-Ohio-4769, 999 N.E.2d 649,
      ¶ 7, citing Kisil at 34.

Shelly Materials, Inc. v. Streetsboro Planning & Zoning Comm., Slip Op.

No. 2019-Ohio-4499, ¶ 17.

      B.     Whether the Trial Court Conducted an Independent
             Analysis of the Evidence Under the Duncan Factors
             and Explained Its Rationale for Concluding That There
             Was Adequate Evidence to Support the Decision of the
             Board of Zoning Appeals.

              This court, as permitted by statute, can only review the trial court’s

decision that the BZA’s decision was supported by reliable, probative, and

substantial evidence. The trial court, however, “‘weighs the evidence to determine

whether a preponderance of reliable, probative, and substantial evidence supports

the administrative decision, and if it does, the court may not substitute its judgment
for that of’ the administrative agency.’” Streetsboro Planning & Zoning Comm. at

¶ 13, quoting Independence, 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d 1182,

at ¶ 13.Carney-Hagan argues that the trial court did not conduct an independent

analysis of the evidence as it applies to Duncan. The trial court, in its decision, listed

the seven factors from Duncan to be considered in determining whether a property

owner has encountered practical difficulties.

      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, 19 Misc.2d 909, 191 N.Y. Supp.2d 621
      (1959).

Duncan, 23 Ohio St.3d at 86, 491 N.E.2d 692.

               The trial courted quoted Duncan, stating, “[n]o single factor controls;

rather a variance may be granted even if some factors weigh in favor of a landowner,

or are inconclusive.” The trial court then reviewed the evidence presented by both

parties and the testimony given at the BZA’s hearing on the variance.
               Although the trial court did not conduct a line by line analysis of the

Duncan factors, it did consider the arguments of both parties in light of the factors

listed in Duncan. In its decision, the trial court noted some of the practical

difficulties Sumerauer encountered stating, “[a]t the hearing, substantial evidence

was presented of the difficulty in strictly complying with regulation given the lot’s

narrow depth from the street and the efforts made by the architect to minimize

impact of the proposed structure on the neighbors while attempting to enhance the

general neighborhood.” The trial court also noted that “relocation of the project

would not be functional to the existing house.” In addition, the trial court stated

that the neighbors “did not provide evidence at the hearing that the variance

impacted anything other than a potential obstruction of a view.” This further

demonstrates that the trial court conducted a meaningful review of the evidence.

               The trial court also explained its rationale for concluding that there

was adequate evidence to support BZA’s decision, stating, “[t]he BZA found that

Appellee showed (1) practical difficulty in conforming to the regulations; (2) that he

was being deprived of substantial property rights if required to strictly conform to

regulations; and (3) the variance was not contrary to intent of the City of Cleveland’s

Zoning Code, under Section 329.03(b).” Additionally, the trial court noted that the

evidence presented by the neighbors “is not properly considered because none of the

exceptions above apply to the proffered evidence.”

               The trial court also considered the local councilman’s testimony who

stated:
       This is an unusual shaped lot and I can sympathize with the concerns
       of losing views. I just lost the only lake view I had to Battery Park.
       They build the next phase and from my back window on the second
       floor we had a magnificent view. I lost that, but I understand that and
       supported the Variance request to build those townhomes. Views
       aren’t always guaranteed and in order for this parcel and this house to
       function well, we have to design homes and support projects that not
       only short term benefits but benefit that structure 40, 50, 100, 75
       years down the road. So, far all the reasons for the process to move
       forward, the support of the Nearwest Design Review, our Planning
       Department engaging the Edgewater Homeowners’ Association, I’m
       here to support the Variance request as well.

(Tr. 52-53.).

                 Given the extensive rationale the trial court provided in its opinion,

we find that the trial court did not abuse its discretion by failing to independently

analyze the Duncan factors or explaining its rationale for supporting the Board of

Zoning Appeals’ decision. Duncan, 23 Ohio St.3d 83, 491 N.E.2d 692.

                 Based on existing law, Carney-Hagan’s first assignment of error is

overruled.

III.   Manifest Weight of the Evidence

       A.       Standard of Review

                 As previously stated,

       [w]hile the court of common pleas is required to examine the
       evidence, the court of appeals may not weigh the evidence.
       Independence, 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d 1182,
       at ¶ 14. Apart from deciding purely legal issues, the court of appeals
       can determine whether the court of common pleas abused its
       discretion, which in this context means reviewing whether the lower
       court abused its discretion in deciding that an administrative order
       was or was not supported by reliable, probative, and substantial
       evidence. Boice * * *, 137 Ohio St.3d 412, 2013-Ohio-4769, 999
       N.E.2d 649, citing Kisil[, 12 Ohio St.3d at 34, 465 N.E.2d 848], at 34.
Streetsboro Planning & Zoning Comm., 2019-Ohio-4499, at ¶ 17.

              We are unable to review whether the trial court’s judgment was

against the manifest weight of the 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.” (Emphasis added.)
      Kisil at 34. “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.” Id. at fn. 4. “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., 40 Ohio St.3d
      257, 261, 533 N.E.2d 264, 267 (1988).

Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147, 2000-

Ohio-493, 735 N.E.2d 433.

              Also,

      [i]n reviewing this type of decision under R.C. 2506.04, an appellate
      court cannot engage in any reweighing of the evidence; instead, the
      scope of our consideration is limited to determining if the trial court
      abused its discretion. Miller v. Willowick, 11th Dist. No. 2006-L-148,
      2007-Ohio-465, ¶ 23. Under the precedent of this court, the term
      “abuse of discretion” is one of art, connoting judgment exercised by a
      court which does not comport with reason or the record. Caudill v.
      Thomas, 11th Dist. No. 2009-P-0087, 2011-Ohio-524, at ¶ 17, citing
      Gaul v. Gaul, 11th Dist. No. 2009-A-0011, 2010-Ohio-2156, at ¶ 24.

Salotto v. Wickliffe Bd. of Zoning Appeals, 193 Ohio App.3d 525, 2011-Ohio-1715,

952 N.E.2d 1174, ¶ 30 (11th Dist.).
              Therefore, Carney-Hagan’s second assignment of error is overruled.

              Judgment is affirmed.

      It is ordered that the appellees recover from 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.



_________________________________
ANITA LASTER MAYS, JUDGE

MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
