[Cite as Faith Walk Fellowship Church v. Cleveland, 2014-Ohio-5035.]



                Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA



                                 JOURNAL ENTRY AND OPINION
                                         No. 100666



                            FAITH WALK FELLOWSHIP CHURCH


                                                          PLAINTIFF-APPELLANT

                                                    vs.

                                 CITY OF CLEVELAND, ET AL.

                                                          DEFENDANTS-APPELLEES




                                             JUDGMENT:
                                              AFFIRMED



                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-12-783304

        BEFORE: Stewart, J., Boyle, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                     November 13, 2014
ATTORNEY FOR APPELLANT

James H. Hewitt, III
Hewitt Law, L.L.C.
3043 Superior Avenue, First Floor
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Director of Law

BY: Carolyn M. Downey
Assistant Law Director
City of Cleveland, Law Department
City Hall, Room 106
601 Lakeside Avenue
Cleveland, OH 44114
MELODY J. STEWART, J.:

       {¶1} Appellant Faith Walk Fellowship Church owns a single-family residence in a

single-family residential district. It sought a variance to use the house as a church (a permitted

use in a single-family residential district) and to install a gravel parking lot for six vehicles on an

adjacent, vacant lot. The application was denied on grounds that the proposed use did not

conform to setback requirements, that accessory off-street parking spaces must be paved, and that

Faith Walk failed to incorporate a means of screening the proposed parking spaces.                The

Cleveland Board of Zoning Appeals (“board”) conducted a hearing on Faith Walk’s appeal and

denied the variance request on grounds that it would have an adverse affect on neighboring

property owners, would be inconsistent with the character of the surrounding neighborhood, and

that granting a variance would be contrary to the purpose and intent of the city’s zoning code.

The court of common pleas affirmed the board’s decision.             The sole assignment of error

complains that the court erred by affirming the board of zoning appeals.

                                                   I

       {¶2} Faith Walk argues that the board improperly focused on whether a church should be

a permitted use rather than whether Faith Walk faced practical difficulties in using its property as

a church without the requested variances. It maintains that a church is a permitted use for a

one-family district, so the only question the board should have considered is whether Faith Walk

would have practical difficulties in using the house as a church unless the variance was granted.

                                                  A

       {¶3} A court of appeals can only conduct a limited review of a common pleas appellate

decision in an administrative appeal — we can review the judgment of a lower court only on

questions of law; we do not have the same extensive power to weigh the preponderance of
substantial, reliable, and probative evidence as is granted to the lower courts.         Henley v.

Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000).

                                                  B

       {¶4} Although the house is located in a residential district, Cleveland Codified Ordinance

337.02(f)(1) permits “churches and other places of worship” if they are located not less than 15

feet from any adjoining premises in a residential district.

       {¶5} We agree with Faith Walk that, all other prerequisites being met, it did not need

permission from the city to convert an existing one-family house into a church. Although Faith

Walk’s application for a variance sought permission “to use the house * * * as a Church in a

residential area,” that request was unnecessary. When a zoning code permits a certain use for

property, the property owner requires no further approval from the zoning authority to convert

land to a permitted use.

       {¶6} The difficulty for Faith Walk was that it did not satisfy the necessary prerequisites to

establishing its right to convert the house to a church. Cleveland Ordinance 337.02(f)(1) permits

“[t]he following buildings and uses, if located not less than fifteen (15) feet from any adjoining

premises in a Residence District not used for a similar purpose: (1) Churches and other places

of worship, but not including funeral chapels or mortuary chapels[.]”

       {¶7} The house that Faith Walk wished to use as a church was less than 15 feet from the

adjoining premises.

       {¶8} Faith Walk maintains that the board should have construed the words “adjoining

premises” to mean the house situated on the adjoining lot (located more than 15 feet from Faith

Walk’s house), not the adjoining lot itself. The word “premises” is undefined in the city’s

zoning code, so we give it a plain and ordinary meaning. See State v. Anthony, 96 Ohio St.3d
173, 2002-Ohio-4008, 772 N.E.2d 1167, ¶ 11. The word “premises” is used in various statutes

to mean both the land and structures on the land. For example, R.C. 5739.01(K) defines the

word “premises” for tax code purposes as including “any real property or portion thereof [.]”

And R.C. 2925.01(P) states that an offense is committed within the vicinity of a school when

“the offender commits the offense on school premises, in a school building, or within one

thousand feet of the boundaries of any school premises * * *.” In both statutes, the word

“premises” is plainly used to indicate not only structures and dwellings, but the lands on which

those structures or dwellings are located.   See also Miller v. Dayton, 42 Ohio St.3d 113, 114,

537 N.E.2d 1294 (1989) (noting that in the context of recreational user immunity, R.C.

1533.18(A) defines “premises” as “all privately owned lands, ways, waters, and any buildings

and structures thereon * * *”).

       {¶9} Employing the ordinary meaning of the word “premises,” the court did not err by

finding that the house Faith Walk wished to use as a church was less than 15 feet from any

adjoining premises.

                                                II

       {¶10} With it established that Faith Walk could not use a house located in a single-family

residential district as a church unless the house was located 15 feet or more from an adjoining

premise, Faith Walk needed an area variance to use its house as a church.

                                               A

       {¶11} Unlike the more stringent “use” variance, an “area” variance will be granted upon a

showing of “practical difficulties rather than unnecessary hardship.” Boice v. Ottawa Hills, 137

Ohio St.3d 412, 2013-Ohio-4769, 999 N.E.2d 649, ¶ 12.            Cleveland Codified Ordinance
329.03(b) limits the board’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.

       {¶12} The burden to prove the three conditions set forth in Cleveland Codified Ordinance

329.03(b) is on the party seeking the variance, and the failure to establish all three conditions

require the board to deny the requested variance. See Consol. Mgt., Inc. v. Cleveland, 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.

                                                   B

       {¶13} The application for variance raised two separate issues: first, whether Faith Walk

would have practical difficulty using the house as a church without the requested variance;

second, whether it would have practical difficulty operating a church without the addition of six,

off-street parking spaces. The board found that Faith Walk will not suffer an unreasonable

hardship if refused a variance “since [it is] not denied any use of the property not also denied

other owners in that district similarly situated[.]”

       {¶14} Faith Walk argues that the board addressed the wrong issue. It maintains that the

board should have considered whether the denial of an area variance would have caused it
practical difficulty or unnecessary hardship in operating the house as a church, not whether it

suffered any hardship because the house could continue to be used as a residence. Faith Walk’s

argument raises a question of law that is within our authority to review on appeal.

        {¶15} A defining aspect of area variances is that the practical difficulties-undue hardship

standard refers to the characteristics of the land, not conditions personal to the owner of the land.

 See, e.g., Hulligan v. Columbia Twp. Bd. of Zoning Appeals, 59 Ohio App.2d 105, 109, 392

N.E.2d 1272 (9th Dist.1978) (“issuance of a variance must be based upon evidence

demonstrating that a literal application of zoning regulations on a specific parcel of property

would result in an unnecessary hardship unique to that property”); Schellhardt v. Mercer Cty.

Commrs., 182 Ohio App.3d 639, 2009-Ohio-1919, 914 N.E.2d 437, ¶ 17 (3d Dist.). In other

words, Faith Walk had to show that the 15-foot setback requirement does not refer to conditions

personal to it as the owner of the land in question but rather refers to the conditions especially

affecting the lot in question.

        {¶16} There was no evidence that Faith Walk could not erect on the property a church

that conformed to setback requirements. That it could not use the existing structure on the land

for use as a church was a condition personal to Faith Walk, not the property.

        {¶17} What is more, the existing conforming use of Faith Walk’s property as a

single-family residence in a single-family residential district shows that the characteristics of the

land did not demonstrate practical difficulty in complying with the applicable zoning ordinance.

The land could be, and has long been, put to use as a single-family residence. Although the land

could also be put to use as a church (assuming all other prerequisites were met), the fact that

Faith Walk’s house did not satisfy the setback requirements for a church did not mean that the

land could not continue to be put to use as a single-family residence. Again, Faith Walk’s
difficulties with the 15-foot setback requirement are personal to its preferred way to use the land,

not the property itself. We find no evidence of any physical or topographical attributes of the

property that impose limitations on conforming uses, so the practical difficulties-undue hardship

criteria were not met.

                                                 C

       {¶18} Having rejected Faith Walk’s argument that the board erred by refusing to grant an

area variance from the 15-foot setback requirement in order to use the existing house as a church,

we believe that Faith Walk’s request for a variance to have an accessory, off-street parking lot is

arguably moot. As we understand it, Faith Walk’s need to build an unpaved, off-street accessory

parking lot is based on it being able to use the house as a church. With our affirmance of the

court’s decision to affirm the board’s refusal to grant an area variance to the church, that need no

longer exists.

       {¶19} Even if the matter of a variance for an unpaved, off-street accessory parking lot

continues to exist, we find no error with respect to the board’s conclusions rejecting Faith Walk’s

argument that it would have practical difficulty operating a church without the addition of six,

off-street parking spaces.

       {¶20} In Duncan v. Middlefield, 23 Ohio St.3d 83, 491 N.E.2d 692 (1986), the Ohio

Supreme Court set forth the following, nonexclusive list of factors to be considered and weighed

when determining whether a property owner has encountered practical difficulties in the use of

property:

       (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.
Id. at syllabus.

       {¶21} The board found that “[t]he proposed change to the one family house would be an

adverse impact upon neighboring property owners with the limitations for parking and additional

traffic that would accompany the assembly use.” The board also found that to establish a use for

a church in the midst of what are predominantly one-family homes “would be inconsistent with

the character of the surrounding neighborhood.” Finally, the board found that refusing the

variance would not result in unreasonable hardship because Faith Walk would not be denied any

use of the property not also denied to other similarly-situated owners.

       {¶22} Faith Walk has not argued that the board committed errors of law in rejecting the

requested variance — it essentially argues that the board’s application of the Duncan factors and

its findings rejecting the claim of practical difficulties it would have in operating the house as a

church were erroneous. Those findings are factual in nature and beyond our limited review of

questions of law. We have no choice but to affirm that aspect of the court’s decision.

       {¶23} Judgment affirmed.

       It is ordered that appellee recover of appellant its 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 Cuyahoga County

Court of Common Pleas 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.
MELODY J. STEWART, JUDGE

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