[Cite as Cimino v. Cleveland Hts. Bd. of Zoning Appeals, 2011-Ohio-1803.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 95350



                                     WILLIAM CIMINO
                                                  PLAINTIFF-APPELLANT

                                                     vs.


THE CLEVELAND HEIGHTS BOARD OF ZONING APPEALS,
                    ET AL.

                                                  DEFENDANTS-APPELLEES



                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-696825

        BEFORE: Kilbane, A.J., Sweeney, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: April 14, 2011
ATTORNEY FOR APPELLANT

Frank J. Cimino
250 South Chestnut Street
Suite 18
Ravenna, Ohio 44266

ATTORNEYS FOR APPELLEES

John H. Gibbon
Director of Law
City of Cleveland Heights
Laurie A. Wagner
First Assistant Director of Law
Brendan D. Healy
Assistant Director of Law
40 Severance Circle
Cleveland Heights, Ohio 44118




MARY EILEEN KILBANE, A.J.:

       {¶ 1} Plaintiff-appellant, William Cimino (Cimino), appeals the trial

court’s judgment affirming the decision of defendants-appellees, the city of

Cleveland Heights Board of Zoning Appeals and the city of Cleveland Heights

(collectively referred to as “City”), to deny Cimino’s variance request.

Finding no merit to the appeal, we affirm.

       {¶ 2} In June 2006, Cimino purchased a home located on Middleton

Road in Cleveland Heights, Ohio.      The house was in disrepair and had

numerous code violations, including six violations pertaining to the detached
two-car garage on the property. During the closing on the property, Cimino

executed a form acknowledging that he received the City’s inspection report

and that he was responsible for correcting any code violation within 90 days

after the property transfer. The City subsequently gave Cimino a series of

extensions to replace the garage. During that time, it became apparent that

the garage could not be repaired and needed to be completely rebuilt.

      {¶ 3} In March 2009, Cimino submitted an application for a zoning

variance from Cleveland Heights Codified Ordinances 1121.09(b) and

1161.03(a)(1). Section 1121.09(b) provides that “[t]wo (2) off-street enclosed

parking spaces shall be provided for each dwelling unit, either in a garage

that is attached to and integrated with or in one (1) that is detached and

accessory to the dwelling unit.       Furthermore, all parking areas shall be

provided, designed and constructed in accordance with the accessory use

standards in Section 1121.12 and the parking requirements in Chapter 1161”

and Section 1161.03(a)(1) provides that single-family dwellings shall have two

enclosed parking spaces.      Cimino sought a variance to permit him to not

have a garage on the property.1

      {¶ 4} In May 2009, the City conducted a hearing on Cimino’s variance

request. Cimino presented his testimony and evidence on his behalf. The

City denied Cimino’s application and gave him until June 28, 2009, to rebuild

the required two-car garage on the property. On June 26, 2009, Cimino filed


      1Cimino   had the garage demolished and planted a garden in its place.
an administrative appeal pursuant to R.C. Chapter 2506, challenging the

City’s denial of his variance request. The common pleas court affirmed the

City’s decision, finding that it was supported by the preponderance of

substantial, reliable, and probative evidence.

      {¶ 5} Cimino now appeals to this court, raising the following three

assignments of error for review.

      ASSIGNMENT OF ERROR ONE

      “The trial court erred to the prejudice of [Cimino] when it overruled the
      request in [Cimino’s] brief and a subsequent motion filed by [Cimino] to hold
      an evidentiary hearing in light of the fact that no conclusions of fact were
      submitted with the transcript by the Board of Zoning Appeals for the [City.]”

      ASSIGNMENT OF ERROR TWO

      “The Common Pleas Court of Cuyahoga County erred to the prejudice of
      [Cimino] in holding that the City’s denial of [his] variance request was not
      arbitrary, capricious, and unreasonable, and was supported by a
      preponderance of the substantial, reliable, and probative evidence.”

      ASSIGNMENT OF ERROR THREE

      “The trial court erred to the prejudice of [Cimino] by not reviewing the entire
      transcript of the hearing of May 20, 2009[.]”

                                     Standard of Review

      {¶ 6} In Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d

142, 2000-Ohio-493, 735 N.E.2d 433, the Ohio Supreme Court distinguished

the standard of review to be applied by common pleas courts and appellate

courts in R.C. Chapter 2506 administrative appeals.                  The Henley court

stated:
      “The common pleas court considers the ‘whole record,’
      including any new or additional evidence admitted under
      R.C. 2506.03, and determines whether the administrative
      order is unconstitutional, illegal, arbitrary, capricious,
      unreasonable, or unsupported by the preponderance of
      substantial, reliable, and probative 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.) ‘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.’ ‘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.’” (Citations omitted.) Id. at 147.

      {¶ 7} Thus, this court will review the judgment of the trial court only to

determine if the lower court abused its discretion in finding that the

administrative order was supported by reliable, probative, and substantial

evidence.   See Wolstein v. Pepper Pike City Council, 156 Ohio App.3d 20,

2004-Ohio-361, 804 N.E.2d 75, ¶21-22. An abuse of discretion “‘implies that

the   court’s   attitude   is   unreasonable,    arbitrary   or   unconscionable.’”

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140,

quoting State v. Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d 144.

                                    Evidentiary Hearing
       {¶ 8} In the first assignment of error, Cimino argues that the trial court erred when it

did not hold an evidentiary hearing because the transcript prepared by the City failed to

contain conclusions of fact.

       {¶ 9} We note that in an action under R.C. 2506.01, the trial court is “confined to the

transcript” filed by the administrative agency, unless certain exceptions apply.             See R.C.

2506.03(A).     Pertinent to this case, a hearing on the appeal is required if “the officer or body

failed to file with the transcript conclusions of fact supporting the final order, adjudication, or

decision.”    R.C. 2506.03(A)(5); see, also, R.C. 2506.03(B).

       {¶ 10} In Ziss Bros. Constr. Co., Inc. v. Independence Planning Comm., Cuyahoga

App. No. 90993, 2008-Ohio-6850, ¶17, this court held that statements made by planning

commission members explaining their reasons for denying a zoning application, which were

included in the transcript, constituted conclusions of fact.         The Ziss court found that “the
                                                                 2




Planning Commission presented detailed findings of fact at the June 6, 2006 hearing as

evidenced by the minutes which it provided Ziss and the public.                Each of the Planning

Commission members expressed their reasoning for denying Ziss’s application, unlike [Felder

v. City Planning Comm. of Pepper Pike (Apr. 26, 1979), Cuyahoga App. No. 38663]. Thus, it

cannot be said that the Planning Commission failed to file findings of fact with the transcript.”      3




       2A“conclusion of fact” is an “‘inference drawn from subordinate or evidentiary
facts.’” Union Oil Co. of California v. Mayfield Hts. Bd. of Zoning Appeals (Jan. 15,
1987), Cuyahoga App. No. 52017, quoting Black’s Law Dictionary 5th Ed.
       3In Felder, this court “held that the minutes were deficient and failed to satisfy the transcript
requirement set forth in R.C. 2506.02 and R.C. 2506.03 because it merely stated ‘[a]fter presentation
        {¶ 11} In the instant case, a review of the transcript reveals that several Board of

Zoning Appeals members expressed their reasoning for denying Cimino’s application, citing

past precedent, practical difficulty, and a complete absence of any indication that Cimino’s

property was somehow different than the surrounding property.             One member found that “this

situation came about because [Cimino] built a garden instead of a garage and he was aware of

it.   Whether he was aware of it when he moved in, there was money in escrow, his contractor

told him about what was required[.]”          Another member found that if Cimino’s application

was granted, the Board would be setting “precedent and * * * there is no practical

difficulty[.]”   A third member stated “we are a board with a specific mandate, and in the

absence of any showing that there is something different about [Cimino’s] property that is

different from all others * * * we can’t just do that.     We cannot change the zoning code.”

        {¶ 12} Based on the foregoing, it is clear that the City presented findings of fact at the

hearing.   Just as in Ziss, we cannot say in the instant case that the City failed to file findings

of fact with the transcript.    As such, the trial court was not required to hold an evidentiary

hearing.

        {¶ 13} Therefore, the first assignment of error is overruled.




                                              Variance Criteria


and discussion * * *,’ and thereafter a vote was taken.”   Ziss at ¶26.
       {¶ 14} In the second assignment of error, Cimino asks this court to reverse the trial

court’s decision on the basis that the City did not adequately evaluate the evidence before it.

       {¶ 15} Cleveland Heights Codified Ordinances 1115.07 sets forth the standard for the

factors to be considered in order for the Board of Zoning Appeals to grant a variance request.

These factors are similar to the factors set for by the Ohio Supreme Court in Duncan v.

Middlefield (1986), 23 Ohio St.3d 83, 491 N.E.2d 692, certiorari denied (1986), 479 U.S. 986,

107 S.Ct. 576, 93 L.Ed.2d 579, for determining whether a “practical difficulty” exists.

       {¶ 16} The Duncan Court explained the practical difficulties test as follows:

       “[A] property owner encounters ‘practical difficulties’ whenever an area
       zoning requirement (e.g., frontage, setback, height) unreasonably deprives him
       of a permitted use of his property. The key to this standard is whether the
       area zoning requirement, as applied to the property owner in question, is
       reasonable. * * * 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.” Id. at 86.
        {¶ 17} Cimino presents evidence that he claims demonstrates practical difficulties

warranting the variance.     As a result, he claims the City’s decision was arbitrary, capricious,

and unreasonable.

        {¶ 18} We find the instant case analogous to this court’s decision in Franklin v. Berea,

Cuyahoga App. No. 93894, 2010-Ohio-4350.              In Franklin, we affirmed the trial court’s

judgment upholding the Berea Planning Commission’s decision granting nine variances to a

community church.       On appeal, the neighboring property owners argued that the church

failed to meet the practical difficulties test set forth in Duncan.

        {¶ 19} In reviewing the record, the Franklin court found that:

        “the Commission considered the Duncan factors and further concluded that
        the evidence weighed in favor of granting the subject variances under every
        factor except one. The trial court subsequently found that the Commission
        properly applied the Duncan factors and that its decision was supported by a
        preponderance of reliable, probative, and substantial evidence. Although the
        neighbors present arguments as to why each factor should militate against
        granting the variances, the Church presented evidence contradicting the
        neighbors’ claims and evidence of the practical difficulties the property faces.
         To the extent that the Commission found the Church’s evidence and
        arguments more compelling, we cannot substitute our judgment on appeal.
        See [Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, 465 N.E.2d 848]. Nor
        can we say as a matter of law that the decision of the trial court to affirm the
        decision of the Commission was not supported by a preponderance of reliable,
        probative, and substantial evidence.” Id. at ¶32.

        {¶ 20} In the instant case, the trial court found no evidence in favor of granting the

variance under the factors set forth in Duncan.        The trial court further found that Cimino

“failed to meet his burden of establishing that enforcement of the Code sections at issue would

result in practical difficulty.”   Just as in Franklin, here “we cannot substitute our judgment on
appeal.”    Rather, we must affirm the trial court’s decision if it is “supported by a

preponderance of reliable, probative and substantial evidence.” Kisil at 34.

       {¶ 21} A review of the record in the instant case supports the conclusion that Cimino

failed to demonstrate practical difficulty.   Cimino was aware of the zoning provisions related

to the garage before he purchased the property, when he received the point of sale inspection

report advising him of the repairs needed to bring the garage up to code.     He demolished the

garage and chose to plant a garden, rather than rebuilding the garage.       In addition, Cimino

did not demonstrate a special condition or circumstance that exists on his property, and there

was no evidence to support his contention that building a garage will not yield a reasonable

return on his investment in the property.         Furthermore, the variance Cimino seeks is

substantial in that it eliminates the entire garage structure, as opposed to requesting a variance

for a single-car garage.   Lastly, the variance Cimino seeks is inconsistent with the spirit and

intent of the zoning code, which is intended to protect property values in residential areas.

The City’s preservation planner testified at the hearing that a garage is commonly perceived as

a necessity, not an amenity.

       {¶ 22} Based on the foregoing, we find as a matter of law that the trial court’s

judgment affirming the City’s decision to deny Cimino’s variance request was supported by a

preponderance of reliable, probative, and substantial evidence.

       {¶ 23} Accordingly, the second assignment of error is overruled.

                                         Evidence in Transcript
         {¶ 24} In the third assignment of error, Cimino cites to two other variance applications

that were heard before the City.         Cimino argues that the City’s decision to deny his

application was arbitrary, capricious, and unreasonable because it was inconsistent with the

decisions rendered in these two other applications.

         {¶ 25} However, Cimino cannot rely on the evidence submitted in these cases to

support his position.    As we previously stated, in an action under R.C. 2506.01, the trial court

is “confined to the transcript” filed by the administrative agency, unless certain exceptions

apply.    R.C. 2506.03(A).     The transcript consists of “all the original papers, testimony, and

evidence offered, heard, and taken into consideration in issuing the * * * decision.”     See R.C.

2506.02. “‘If [the] transcript is deficient or incomplete, R.C. 2506.03 provides for the trial

court to conduct an evidentiary hearing to “fill in the gaps.”’ Manlou v. Cleveland Civ. Serv.

Comm., Cuyahoga App. No. 83214, 2004-Ohio-1112, ¶11, quoting Stein v. Geauga Cty. Bd.

of Health, Geauga App. No. 2002-G-2439, 2003-Ohio-2104.                The Manlou court further

explained that “the court is obligated to conduct an evidentiary hearing ‘where the transcript of

the administrative proceeding is incomplete, either because it did not contain all of the

evidence which actually was presented or because the appealing party’s right to be heard and

present evidence was infringed in some manner.’”          Id. at ¶12, quoting Schoell v. Sheboy

(1973), 34 Ohio App.2d 168, 296 N.E.2d 842.

         {¶ 26} In the instant case, there is no reason to “fill in the gaps” because the transcript

is complete.    Cimino relies on two application hearings that were decided after the denial of
his variance application.    These applications were not part of Cimino’s hearing and the City

did not rely upon these cases when it issued its decision with respect to Cimino’s variance

request.     Moreover, Cimino waived this error by failing to raise the issue at the trial court.

See Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41, 322 N.E.2d 629 (where the Ohio

Supreme Court held that the doctrine of waiver can be applied to administrative appeals.)     As

such, Cimino’s argument lacks merit.

       {¶ 27} Therefore, the third assignment of error is overruled.

       {¶ 28} Judgment is affirmed.

       It is ordered that appellees 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 EILEEN KILBANE, ADMINISTRATIVE JUDGE

JAMES J. SWEENEY, J., and
SEAN C. GALLAGHER, J., CONCUR
