[Cite as Kurtock v. Cleveland Bd. of Zoning Appeals, 2014-Ohio-1836.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 100266




                                     JULIE KURTOCK
                                                          PLAINTIFF-APPELLANT

                                                    vs.

                             CLEVELAND BOARD OF
                            ZONING APPEALS, ET AL.
                                                          DEFENDANTS-APPELLEES




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                 Administrative Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-12-786398

        BEFORE: S. Gallagher, P.J., Stewart, J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                         May 1, 2014
ATTORNEY FOR APPELLANT

Alan J. Rapoport
25700 Science Park Drive, Suite 270
Beachwood, OH 44122


ATTORNEYS FOR APPELLEES CLEVELAND BOARD OF
ZONING APPEALS AND CITY OF CLEVELAND

Barbara A. Langhenry
Director of Law

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


ATTORNEYS FOR APPELLEE KAREN O’MALLEY, INC.

Thomas J. Scanlon
Harvey Labovitz
Julie A. Perkins
Collins & Scanlon, L.L.P.
3300 Terminal Tower
50 Public Square
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:

       {¶1} Appellant Julie Kurtock appeals the judgment of the Cuyahoga County Court

of Common Pleas that affirmed the decision of the Cleveland Board of Zoning Appeals to

grant a use variance to appellee Karen O’Malley, Inc. (“O’Malley”). For the reasons

stated herein, we reverse and remand the matter for further proceedings.

       {¶2} O’Malley owns the “Harp,” a bar-restaurant that offers live music three times

per week. O’Malley filed an application with the city of Cleveland’s Department of

Building and Housing for a “music” use variance to present outdoor entertainment on a

patio. The city’s zoning administrator not only denied the application, but informed

O’Malley that the Harp had been illegally presenting live music because doing so was not

a permitted use in a general retail business district and because the restaurant was not

located more than 500 feet from a residence district.

       {¶3} The Cleveland Board of Zoning Appeals (the “board”) reversed the city’s

decision and granted a use variance over the objection of Kurtock, a local resident who

complained about loud music from the restaurant. The board granted the variance to

permit live music three nights per week and required O’Malley to comply with the terms

of a “Good Neighbor Agreement” in which O’Malley and a local neighborhood

organization agreed to certain terms and conditions about how and when the Harp would

have live music.

       {¶4} Kurtock filed an administrative appeal naming the board as a defendant,

along with O’Malley. The lower court granted a motion to dismiss the board as a party
and gave appellant leave to file an amended notice of appeal. Kurtock filed an amended

notice of appeal naming appellee city of Cleveland as a party.

       {¶5} The lower court affirmed the board’s decision. This appeal followed.

       {¶6} Kurtock’s first assignment of error claims that the court erred by dismissing

the board as a party. We find no merit to this argument. The board was not a party to

the action, but rather was the body that decided whether the issuance of the variance was

appropriate. Safest Neighborhood Assn. v. Athens Bd. of Zoning Appeals, 4th Dist.

Athens Nos. 12CA32, 12CA33, 12CA34, and 12CA35, 2013-Ohio-5610, ¶ 11. Further,

the board is not a party to an appeal from a case it decides. Id.; see also Russell v.

Dublin Planning & Zoning Comm., 10th Dist. Franklin No. 06AP-492, 2007-Ohio-498, ¶

19. Kurtock’s first assignment of error is overruled.

       {¶7} Kurtock’s second assignment of error claims the lower court abused its

discretion by granting the use variance.

       {¶8} When we review a court of common pleas decision in an administrative

appeal, our standard of review is far more circumscribed than that used by the court of

common pleas when it sits in an appellate capacity. The court of common pleas has the

authority to “find that the order, adjudication, or decision is unconstitutional, illegal,

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

reliable, and probative evidence on the whole record.” R.C. 2506.04. Unlike the court

of common pleas, we do not have the same extensive power to weigh the preponderance

of substantial, reliable, and probative evidence that is granted to the lower courts. We
can only review the lower court for errors of law. Henley v. Youngstown Bd. of Zoning

Appeals, 90 Ohio St.3d 142, 147, 2000-Ohio-493, 735 N.E.2d 433.

       {¶9} Initially, we must recognize that the issue of Kurtock’s standing to bring an

administrative appeal was raised before the lower court, yet it was not addressed in the

court’s decision. Because standing is a jurisdictional requirement for an administrative

appeal, the lower court should have determined standing in the first instance.

       {¶10} In an administrative appeal, standing is a jurisdictional prerequisite that can

be raised at any stage of the proceedings and may also be addressed sua sponte. Safest

Neighborhood Assn., 4th Dist. Athens Nos. 12CA32, 12CA33, 12CA34, and 12CA35,

2013-Ohio-5610, at ¶ 10, 34. The party seeking to appeal has the burden of proof to

establish standing. Id. at ¶ 20.

       {¶11} “[A] third party property owner has standing to appeal an administrative

agency decision under R.C. 2506.01 when that property owner actively participated at the

administrative hearing and has been directly affected by the decision.”              Safest

Neighborhood Assn. at ¶ 24. One is directly affected, as distinguished from the public at

large, when the party can demonstrate a unique harm.          Id. at ¶ 26.    For instance,

concerns regarding increased traffic alone have generally been regarded as affecting the

public at large, while evidence showing a diminution in property value because of an

administrative decision has been found to constitute a direct effect sufficient to confer

standing. Id.
      {¶12} It appears from the record that the only evidence to demonstrate Kurtock’s

residence was within 500 feet of the Harp was Kurtock’s testimony that it was. In any

event, the “directly affected” determination is not in any way dependent on what persons

are entitled to notice under the municipal code. Am. Aggregates Corp. v. Columbus, 66

Ohio App.3d 318, 322, 584 N.E.2d 26 (10th Dist.1990). Rather, the appropriate inquiry

for standing is whether the private litigant has complained of “harm which is unique to

himself[,]” as opposed to the community at large, in an administrative appeal from a

zoning decision.   Willoughby Hills v. C. C. Bar’s Sahara, 64 Ohio St.3d 24, 27,

1992-Ohio-111, 591 N.E.2d 1203.

      {¶13} In order to have standing, Kurtock must establish she is directly affected and

suffers a unique harm as a result of the variance. Kurtock testified to the noise from the

Harp affecting her right to “peace and quiet.” Arguably, noise was a concern shared

equally by the neighboring community as reflected by the entering of the good neighbor

agreement. As the board found, “there is an understanding through a Good Neighbor

Agreement that those concerns of noise will be mitigated and to the greatest possible

extent through engineering, through design of the stage, and design of useful equipment,

outside especially.” The board included the conditions of the good neighbor agreement

when granting the variance. Although a noise-based injury may provide a basis for

unique harm, the injury must be more than speculation and supported by credible

evidence.
       {¶14} We find the matter should be remanded to the lower court for consideration

of Kurtock’s standing. The lower court should determine whether Kurtock has shown

her concerns for excessive noise are substantiated and establish a unique harm.

       {¶15} Presuming Kurtock has standing, the matter should be returned to the

Cleveland Board of Zoning Appeals for a determination of the practical difficulty or

unnecessary hardship requirement under Cleveland Codified Ordinances (“CCO”)

329.03(b). Pursuant to CCO 329.03(b), the board’s authority to grant a variance is

limited 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.

       {¶16} The burden to prove the three conditions set forth in CCO 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. 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. The board is required to “make a finding on each of the

three (3) conditions as they apply in each specific case as a prerequisite for the granting of
the variance.” CCO 329.03(c); Zurow v. Cleveland, 61 Ohio App.2d 14, 20, 399 N.E.2d

92 (8th Dist.1978).

        {¶17} Our review reflects that the board failed to make all of the predicate findings

necessary to grant a use variance. The board made findings on two of the three required

conditions set forth in CCO 329.03(b): it found that refusing O’Malley’s appeal would

deprive her of substantial property rights and that granting the variance would not be

contrary to the purposes and intent of the zoning code. The board made no mention of

“practical difficulty or unnecessary hardship” inherent in and peculiar to the premises that

differentiate it from other premises in the same zoning district.

        {¶18} We recognize that although the board did not specifically make a finding of

practical difficulty or unnecessary hardship, this requirement was considered by the board

in reaching its decision. As reflected in the transcript of proceedings, the board was

aware of the requirements under the ordinance. Each subsection of CCO 329.03 is to be

read and applied in para materia. Consol. Mgt., Inc., 6 Ohio St.3d at 242, 452 N.E.2d

1287.

        {¶19} The record also demonstrates that evidence was offered on this point. The

transcript reflects that the board chairman inquired into what hardship would happen if

the variance were not granted. The attorney for O’Malley responded that a lack of music

would result in a 30 percent reduction in persons coming, resulting in a significant

detriment to the business.      Also, evidence was presented that the Harp had been

operating with music for 13 years and sought the variance to become code compliant.
The board recognized that O’Malley had kept a positive business presence during that

time and had made property improvements to enhance the economic development of a

retail corridor along Detroit Avenue.      A “good neighbor agreement”       was reached

between O’Malley and the local neighborhood organization and submitted to the board

prior to the hearing. The board considered that O’Malley agreed to certain conditions

concerning the times during which music could be played and that the concerns of noise

would be mitigated to the greatest possible extent.

       {¶20} Despite any consideration of practical difficulty or unnecessary hardship, the

board did not make the requisite finding.       The determination should be left to the

discretion of the board, and additional evidence may be considered upon any remand.

       {¶21} With the absence of findings going to all three of the conditions required to

obtain a variance under CCO 329.03(b), the board had no authority to issue the variance.

Therefore, the lower court’s affirmance of the board’s decision was an error of law. The

second assignment of error is sustained.

       {¶22} The matter is remanded to the lower court for consideration of Kurtock’s

standing, and if standing is found, for the lower court to remand the matter to the

Cleveland Board of Zoning Appeals to address the required finding of unnecessary

hardship under CCO 329.03(b).        Pending resolution of these issues upon remand,

O’Malley shall be permitted to continue existing operations in conformance with the good

neighbor agreement.

       {¶23} Judgment reversed; cause remanded.
       It is ordered that appellant recover of appellees 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.



SEAN C. GALLAGHER, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., CONCURS;
MELODY J. STEWART, J., CONCURS IN PART AND DISSENTS IN PART (WITH
SEPARATE OPINION)


MELODY J. STEWART, J., CONCURRING IN PART AND DISSENTING IN PART:

       {¶24} I agree that the court’s affirmance of the board of zoning appeals’ decision

to grant O’Malley a variance must be vacated. The board did not address the issue of

practical difficulty or unnecessary hardship, so the court erred as a matter of law by

affirming a variance that issued in error. I respectfully dissent from the majority’s dicta

regarding standing and whether this reversal can be viewed as a remand to allow the

board to make a finding that it did not make below.

                                              I

       {¶25} In its brief to this court, the city concedes that the court’s failure to address

standing means that standing is no longer an issue: “[t]he common pleas court did not

address the issue of standing. Therefore, it is not properly before this court.” The
reason why the court did not address standing is because the city’s argument was

frivolous. The city’s zoning ordinances prohibit a restaurant like the Harp from offering

live music unless it is located at least 500 feet from a residential district. The city

claimed that Kurtock did not live within 500 feet of the Harp, but it arrived at that

conclusion by calculating the driving distance from the Harp to Kurtock’s house. The

proper method of determining distance is by drawing a straight line from the edge of the

Harp’s property to Kurtock’s house; colloquially, “as the crow flies.”       There is no

question that Kurtock’s house is within a 500-foot radius of the Harp, so she plainly had

standing. The court showed the city mercy by not addressing that argument.

       {¶26} The majority now offers a standing argument that the city did not raise: it

suggests that Kurtock has not shown a “unique” harm sufficient to confer standing

because everyone else in the “neighboring community” was likewise subjected to music

emanating from the Harp. This begs the question of who has standing to challenge the

variance. If Kurtock, a resident living within 500 feet of the Harp, lacked standing to

oppose the variance, no one would have standing to object.         That is an untenable

conclusion.

                                             II

       {¶27} The majority also engages in dicta to suggest that the board’s failure to

make any finding on the unnecessary hardship factor is an omission that can be cured on

remand because O’Malley offered evidence of unnecessary hardship in its application to

the board. There are two difficulties with this dicta.
       {¶28} First, it incorrectly assumes that the board’s failure to make all of the

required findings somehow means that this case is still open and subject to remand to rule

on the unnecessary hardship requirement. That the board did not make a finding on

unnecessary hardship must be viewed as a failure of proof such that a variance could not

issue and this case is now over. We reached this same conclusion in Cleveland v. Patrick

Realty, 8th Dist. Cuyahoga No. 90349, 2008-Ohio-4243, where we found that the city’s

board of zoning appeals failed to make a finding on all of the requirements necessary to

grant a variance under Cleveland Codified Ordinances 329.03(b), so “the trial court

should have found that ‘there is not a preponderance of reliable, probative and substantial

evidence to support the board’s decision.’” Id. at ¶ 35 (citation omitted). We thus

mandated that the trial court enter “final judgment” in favor of the party opposing the

variance. Id. If O’Malley wishes to further pursue a variance, it must begin anew by

filing a new application for a variance.

       {¶29} Second, I see no basis from which it can be concluded that the board simply

omitted making a finding on unnecessary hardship.         I agree that O’Malley offered

evidence on unnecessary hardship, but that evidence was legally insufficient to prove the

requirement. O’Malley told the board that the Harp suffered a “30 percent reduction in

persons coming in” on nights when it did not present live music. A 30 percent reduction

in “persons” coming in does not necessarily correlate to a 30 percent reduction in

revenue. But the Harp did not play music on the majority of nights when it was open, so

it is better to say that O’Malley’s business improved by 30 percent when she offered live
music. Viewed in that light, she was seeking the variance because live music was better

for business, not because her business was unprofitable without music.          The Ohio

Supreme Court has made it plain that “the mere fact that one’s property can be put to a

more profitable use does not, in itself, establish an unnecessary hardship where less

profitable alternatives are available within the zoning classification.” Consol. Mgt., Inc.

v. Cleveland, 6 Ohio St.3d 238, 242, 452 N.E.2d 1287 (1983). The board’s failure to

make a finding of unnecessary hardship could thus be viewed as it not finding any

evidence for that requirement.
