[Cite as K. Hovnanian Oster Homes, LLC v. Lorain Zoning Bd. of Appeals, 2015-Ohio-5317.]


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

K. HOVNANIAN OSTER HOMES LLC                             C.A. No.        14CA010677

        Appellee

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
LORAIN OHIO ZONING BOARD OF                              COURT OF COMMON PLEAS
APPEALS (CITY OF)                                        COUNTY OF LORAIN, OHIO
                                                         CASE No.   13CV179899
        Appellant

                                DECISION AND JOURNAL ENTRY

Dated: December 21, 2015



        SCHAFER, Judge.

        {¶1}    Defendant-Appellant, the City of Lorain, Ohio Board of Zoning Appeals

(“Board”), appeals the judgment of the Lorain County Court of Common Pleas reversing the

Board’s decision to deny the request of Plaintiff-Appellee, K. Hovnanian Oster Homes, LLC’s

(“K. Hovnanian”) for a riparian setback variance. For the reasons set forth below, we affirm.

                                                    I.

        {¶2}    K. Hovnanian is a homebuilding company that owns an approximately 30-acre

parcel of land in Lorain, Ohio. This parcel of land is located near the confluence of the East

Branch of Beaver Creek and its North Stem. However, because this parcel of land abuts an

existing watercourse in the City of Lorain, it is subject to certain city regulations. See Lorain

Codified Ordinance (“L.C.O.”) 1533.07(a). One such regulation, which is at issue in this case,

requires a riparian setback of at least 75 feet “on both sides of all watercourses draining an area

greater than one half square mile and up to and including 20 square miles.” L.C.O. 1533.08.
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       {¶3}    K. Hovnanian plans on developing this unimproved land for a residential

subdivision. On January 2, 2013, the City of Lorain Planning Commission, which has the same

members as the Board of Zoning Appeals, preliminarily approved K. Hovnanian’s development

plan subject to its concerns regarding storm water management issues.              K. Hovnanian

subsequently filed an application with the Board for an area variance so that it could encroach

upon the mandated 75-foot riparian setback. Specifically, K. Hovnanian sought a variance to

reduce the setback to 25 feet in the open areas for storm water management purposes and 50 feet

in the lots to allow for the construction of backyards and lawn maintenance. K. Hovnanian also

hired a local company, Hydrosphere Engineering, to conduct a detailed flood plain study and

analysis. Hydrosphere Engineering prepared a report from its findings, which K. Hovnanian

provided to the Board for consideration. After hearing testimony of representatives from both

the City of Lorain and K. Hovnanian on March 6, 2013, the Board expressed grave concerns

regarding potential flooding and denied K. Hovnanian’s requested variance.

       {¶4}    Pursuant to R.C. 2506.01(A), K. Hovnanian filed an administrative appeal with

the Lorain County Court of Common Pleas. The trial court ultimately determined that the Board

applied the incorrect legal standard when determining K. Hovnanian’s request and failed to

properly consider the factors enumerated in L.C.O 1533.14. The trial court also found that the

Board’s decision was not supported by a preponderance of substantial, reliable, and probative

evidence to support a denial of the requested area variance. As such, the trial court reversed the

Board’s decision and ordered that the Board approve K. Hovnanian’s requested variances.

       {¶5}    The Board filed this timely appeal, raising one assignment of error for our review.
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                                               II.

                                     Assignment of Error

       The trial court erred as a matter of law by holding that the Lorain Board of
       Zoning Appeals’ denial of the Appellee’s request for variance was
       unsupported by a preponderance of substantial [sic] reliable, and probative
       evidence presented on the whole record and by ordering the Lorain Zoning
       Board of Appeals to approve said request for variance.

       {¶6}    In its sole assignment of error, the Board argues that the trial court erred by

reversing its decision denying K. Hovnanian’s variance application. We disagree.

       {¶7}    Pursuant to R.C. 2506.04, a common pleas court examining an appeal from a

zoning board's decision “may find that the * * * decision is unconstitutional, illegal, arbitrary,

capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and

probative evidence on the whole record.” Id. The common pleas court may affirm, reverse,

vacate, or modify the commission's decision in accordance with its findings. Id.; Frantz v. Ohio

Planning Comm. of Wooster, 9th Dist. Wayne No. 12CA0025, 2013–Ohio–521, ¶ 6. R.C.

2506.04 further provides that “[t]he judgment of the [common pleas] court may be appealed * *

* on questions of law as provided in the Rules of Appellate Procedure and, to the extent not in

conflict with those rules, Chapter 2505. of the Revised Code.”

       {¶8}    In Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142 (2000), the

Supreme Court of Ohio clarified that “[t]he standard of review to be applied by the court of

appeals in an R.C. 2506.04 appeal is ‘more limited in scope’” than the standard of review applied

by the trial court. (Emphasis deleted.) Id. at 147, quoting Kisil v. Sandusky, 12 Ohio St.3d 30,

34 (1984). “‘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
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same extensive power to weigh “the preponderance of substantial, reliable and probative

evidence,” as is granted to the common pleas court.’” Id., quoting Kisil at 34, 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 * * * 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.”

Id., quoting Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257,

261 (1988). An appellate court's determination of an administrative appeal is limited to whether

the trial court abused its discretion. Lorain City School Dist. Bd. of Educ. at 261. An abuse of

discretion “implies that the court's attitude is unreasonable, arbitrary or unconscionable.”

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶9}    Here, the Board advances three arguments to establish error in the trial court

proceedings.   First, the Board disputes the trial court’s finding that the Board applied the

incorrect legal standard when determining whether to deny K. Hovnanian’s application for an

area variance. “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.” Kisil at syllabus.

Accordingly, “[a]n application for an area variance need not establish unnecessary hardship; it is

sufficient that the application show practical difficulties.”    Id.   Following Kisil, the Court

subsequently decided Duncan v. Village of Middlefield, 23 Ohio St.3d 83 (1986), where it held

that a property owner seeking an area variance must demonstrate that the application of an area

zoning requirement to his property is inequitable and unreasonably deprives him of a permitted

use of his property. Id. at 86. In Duncan, the Court also articulated a non-exhaustive list of

factors to consider when determining whether a property owner seeking an area variance has
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encountered practical difficulties in the use of his property. Id. These factors 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 syllabus. L.C.O. 1533.14 contains a number of factors aside from the Duncan factors that

the Board must first consider before ruling on an application for an area variance.

       {¶10} According to the Board’s appellate brief, “the record [of the Board meeting]

evidences that the Board did not find that ‘practical difficulties’ were encountered by [K.

Hovnanian].” However, after thoroughly reviewing the record, we agree with the trial court’s

finding that the Board appeared confused as to which legal standard to apply in this matter. The

transcript of the Board meeting indicates that the only reference made to a legal standard

pertained to the higher “unnecessary hardship” standard that is only applicable in use variance

cases, not area variance cases. As such, the record indicates that the Board applied the wrong

legal standard to K. Hovnanian’s requested variance and we cannot determine that the trial court

erred in finding that the Board applied the incorrect legal standard.

       {¶11} Second, the Board disputes the trial court’s finding that the Board did not properly

consider the criteria set forth in L.C.O. 1533.14, which states that:

       (a)   The City of Lorain may grant a variance from this regulation as provided
             herein. In determining whether there is unnecessary hardship or practical
             difficulty such as to justify the granting of a variance, the City of Lorain
                                         6


      shall consider the potential harm or reduction in riparian and/or wetland area
      functions that may be caused by a proposed structure or use.

(b) In making a variance determination, the City of Lorain shall consider the
    following:

(1) Varying the front, rear and side yard setback before the riparian and wetland
    setbacks are varied.

(2) Variances should not be granted for asphalt or concrete paving in the riparian
    and wetland setbacks in any situation where gravel or porous pavement (i.e.,
    porous payers, and similar products) will do the job.

(c)   In making a variance determination, the City of Lorain may consider the
      following:

(1)   A parcel existing at the time of passage of this ordinance is made
      unbuildable.

(2)   The soil type natural vegetation of the parcel, as well as the percentage of
      the parcel that is in the 100-year floodplain. The criteria of the City of
      Lorain's flood damage prevention regulations may be used as guidance when
      granting variances in the 100-year floodplain.

(3)   The extent to which the requested variance impairs the flood control, soil
      erosion control, sediment control, water quality protection, or other
      functions of the riparian and/or wetland area. This determination shall be
      based on sufficient technical and scientific data.

(4)   The degree of hardship this regulation places on the landowner, and the
      availability of alternatives to the proposed activity.

(5)   Soil disturbing activities permitted in a riparian and/or wetland setback
      through variances should be implemented in order to minimize clearing to
      the extent possible, and to include Best Management Practices necessary to
      minimize soil erosion and maximize sediment control.

(6)   The presence of significant impervious cover, or smooth vegetation such as
      maintained lawns, in riparian setback areas compromises their benefits to the
      City of Lorain.

(7)   A reduction in storm water infiltration into the soil in wetland areas will
      occur.

(8)   A requested above ground fence does not increase the existing area of
      mowed grass or lawn.
                                                 7



(Emphasis added.) Thus, L.C.O. 1533.14(b) contains two factors that the Board must consider

when making a variance determination, whereas subsection (c) of the ordinance contains a list of

eight factors that the Board may, but is under no obligation to, consider when making a variance

determination.

       {¶12} Here, the trial court noted that the Board failed to make findings of fact before

ruling on K. Hovnanian’s variance application. Thus, the trial court reviewed the transcript of

the Board meeting and determined that the Board failed to consider the mandatory factors prior

to ruling on K. Hovnanian’s application. The trial court then weighed the presented evidence

and concluded that the Board’s denial of K. Hovnanian’s application was not supported by a

preponderance of substantial, reliable and probative evidence to justify the denial of the

requested area variance at issue in this case.

       {¶13} After reviewing the record, we agree with the trial court’s determination that the

Board did not properly consider the mandatory factors enumerated in L.C.O. 1533.14 prior to

denying K. Hovnanian’s variance application. A review of the March 6, 2013 Board meeting

transcript indicates that not all of the L.C.O. 1533.14(b) factors were discussed. Moreover, the

Board’s appellate brief fails to argue that the Board properly considered all of the requisite

factors before ruling against the variance application. See App.R. 16(A)(7).

       {¶14} Lastly, the Board contends that the trial court erred by discounting the import and

credibility of the City of Lorain citizens who voiced opposition to K. Hovnanian’s variance

request at the Board meeting. However, the trial court’s weighing of evidence is a question that

is beyond the scope of an appellate court’s review. See R.C. 2506.04. As such, we reject the

Board’s argument on this point.
                                                 8


       {¶15} For these reasons, we cannot conclude that the trial court abused its discretion by

reversing the Board’s ruling denying K. Hovnanian’s application for an area variance.

       {¶16} The Board’s assignment of error is overruled.

                                                III.

       {¶17} With the Board’s sole assignment of error having been overruled, the decision of

the Lorain County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
                                        9


WHITMORE, J.
CONCURS.

HENSAL, P. J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

PATRICK D. RILEY, Law Director, and MALLORY J. HOLMES, Assistant Law Director, for
Appellant.

BRUCE RINKER and ANYTHONY COYNE, Attorneys at Law, for Appellee.
