[Cite as Burlington Coat Factory of Texas, Inc. v. Howland Twp. Bd. of Zoning Appeals, 2019-Ohio-2173.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


 BURLINGTON COAT FACTORY                                :           OPINION
 OF TEXAS, INC., et al.,
                                                        :
                  Appellants,                                       CASE NO. 2018-T-0098
                                                        :
         - vs -
                                                        :
 HOWLAND TOWNSHIP BOARD OF
 ZONING APPEALS,                                        :

                  Appellee.                             :


 Civil Appeal from the Trumbull County Court of Common Pleas.
 Case No. 2018 CV 00506.

 Judgment: Affirmed.


 Cherry Lynne Poteet and Douglas W. Ross, Daniel Daniluk, LLC, 1129 Niles-Cortland
 Road, SE, Warren, OH 44484 (For Appellants).

 James F. Mathews, Baker, Dublikar, Beck, Wiley & Mathews, 400 South Main Street,
 North Canton, OH 44720 (For Appellee).



TIMOTHY P. CANNON, J.

        {¶1}      Appellants, Burlington Coat Factory of Texas, Inc. and Howland Commons,

LLC (collectively, “Appellants”), appeal from a decision of the Trumbull County Court of

Common Pleas, affirming the denial of a variance for signage usage by the Howland

Township Board of Zoning Appeals (“Appellee”). The variance denial is based on the
factoring analysis detailed in Duncan v. Middlefield, 23 Ohio St.3d 83 (1986) (“Duncan”).

We affirm the trial court’s judgment.

       {¶2}   On January 17, 2018, Appellants requested a variance with respect to a

Burlington Coat Factory location at 2230 Niles-Cortland Road in Howland Township

(“Burlington”). Appellants requested additional square foot area for signage due to its

distance from the main roadway, which was documented in a Hardship Visibility Study

submitted with the application. Burlington is set back from the roadway anywhere from

965 to 1380 feet, depending on the measure point, and is also subject to sloping, which

hinders visibility.   Therefore, Appellants requested an additional 50% increase in

allowable signage space to increase the size of Burlington’s sign.

       {¶3}   A hearing was conducted by Appellee on February 15, 2018, where

testimony and the Hardship Visibility Study were presented.             Appellee denied the

application for a variance by a 4-1 vote, applying each of the Duncan factors for “practical

difficulties,” before concluding that the zoning restriction for wall signage currently in place

was reasonable.

       {¶4}   Appellants filed an appeal in the Trumbull County Court of Common Pleas

on March 15, 2018. The parties each briefed the trial court, and Appellants also submitted

a “Notice of Filing Documents to Supplement the Transcript” on July 11, 2018.

       {¶5}   The supplemental filing contained variance applications, meeting minutes,

transcripts, decisions of the board, and other documents.                  These documents

demonstrated that at least eight other businesses in or around the shopping center where

Appellants were requesting a variance for Burlington had been granted the same or

similar wall sign variances—including a request for the exact same variance at the same




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location as Burlington for the previous Linens-N-Things business. The Linens-N-Things

request, which was granted, also balanced the Duncan factors before determining that a

50% variance was warranted. Further, the various requests included applications with

more substantial wall-size requests than Appellants’ and an application claiming less of

a hardship by way of the distance from the main road.

       {¶6}   After the parties’ briefings and the filing of the supplemental documentation,

the trial court denied Appellants’ appeal, finding the following, in pertinent part:

              The transcript and record of the hearing clearly demonstrates [sic]
              [Appellee] conducted its own discussion and analysis utilizing the
              Duncan factors. Despite no opposition to the request from the public,
              [Appellee] ultimately denied the variance request for additional
              signage by the majority of the board. [Appellee] issued the following
              relevant Findings of Fact: “Conducting an analysis under Duncan, a
              majority of the BZA finds that: (i) the Property can yield a reasonable
              return or there can be a beneficial use of the Property without the
              requested variance; (ii) the variance as requested is substantial . . .
              (iii) the Property owner purchased the property with knowledge of the
              zoning restriction; * * * (v) granting the variance would not satisfy the
              spirit and intent behind the zoning requirement, and substantial
              justice does not require granting the variance.

              In reviewing the decision of [Appellee] in the limited capacity this
              appeal provides according to the statute, the Court cannot find the
              decision was unconstitutional, illegal, arbitrary, capricious,
              unreasonable, or unsupported by the proper evidence.

       {¶7}   Appellants noticed a timely appeal and assert one assignment of error for

our review:

              The trial court committed prejudicial error in affirming the decision of
              Appellee, Howland Township Board of Zoning Appeals, to deny the
              application of Appellants, Burlington Coat Factory of Texas, Inc. and
              Howland Commons, LLC, for an area variance to increase the
              square footage for wall signage at the Burlington store, as the
              decision was unreasonable, arbitrary and capricious.




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       {¶8}   Upon review of an administrative appeal, a court of common pleas

considers whether the decision to grant or deny a certificate “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. Thereafter, an

appellate court’s review of the judgment of the trial court is more limited than that of the

court of common pleas. Jones v. Hubbard Twp. Bd. of Zoning Appeals, 11th Dist.

Trumbull No. 2014-T-0041, 2015-Ohio-2300, ¶7, citing Henley v. Youngstown Bd. of

Zoning Appeals, 90 Ohio St.3d 142, 147 (2000). “This court’s review is whether, as a

matter of law, the decision of the court of common pleas is supported by a preponderance

of reliable, probative, and substantial evidence.” Id., citing Kisil v. Sandusky, 12 Ohio

St.3d 30, 34 (1984) (emphasis added). “‘While the court of common pleas has the power

to weigh the evidence, an appellate court is limited to reviewing the judgment of the

common pleas court strictly on questions of law.’” Id., quoting Carrolls Corp. v Willoughby

Bd. of Zoning Appeals, 11th Dist. Lake No. 2005-L-110, 2006-Ohio-3411, ¶10.

       {¶9}   The Supreme Court of Ohio, in Kisil, elaborated:

              This statute [2506.04] 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. Within the ambit
              of ‘questions of law’ for appellate court review would be abuse of
              discretion by the common pleas court.

Kisil, supra, at 34, fn. 4 (emphasis added).

       {¶10} We recognize that the Ohio Supreme Court has delineated two standards

depending on the type of variance at issue: (1) the “practical difficulties” standard for

granting a variance that relates only to area requirements, and (2) the “unnecessary




                                               4
hardship” standard for granting a variance that relates to a use variance. Id. at syllabus;

Duncan, supra, at 85-86.

       {¶11} In adopting the lesser “practical difficulties” standard for area variances, the

Supreme Court stated: “[w]hen the variance is one of area only, there is no change in the

character of the zoned district and the neighborhood considerations are not as strong as

in a use variance.” Kisil, supra, at 33 (quotation omitted).

       {¶12} We note that appellate districts are not consistent as to whether townships

must apply the separate standards for use and area variances, because Kisil and Duncan

involved municipalities, not townships. This court has applied the separate standards for

use and area variances to townships, reasoning as follows:

              Although both Kisil and Duncan involved municipalities rather than
              townships, this court believes that the Supreme Court intended a
              unified standard of review in area variance cases notwithstanding the
              language contained in R.C. 519.14. This belief is based upon the
              fact that the underlying character type of an “area” variance or “use”
              variance does not change depending upon whether application is
              made to a municipal or township authority. Regardless of the
              distinctions between municipalities and townships, one simple fact
              remains the same: area variances do not alter the character of the
              zoning district and neighborhood considerations are less significant
              than in use variance cases. Accordingly, this court will apply the
              holding of the Fifth District in Barr v. Monroe Twp. Bd. of Zoning
              Appeals (May 23, 1990), Licking App. No. CA–3499, unreported,
              1990 WL 70101, adopting the practical difficulties standard in
              township area variance exercises.

Zangara v. Twp. Trustees of Chester Twp., 77 Ohio App.3d 56, 59 (11th Dist.1991)

(emphasis deleted). Therefore, we apply the “practical difficulties” standard to the matter

sub judice.

       {¶13} The “practical difficulties” standard for area variances, as outlined in Duncan

by the Ohio Supreme Court, states:




                                             5
             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.

Duncan, supra, at the syllabus (emphasis added).

      {¶14} “Further, the factors listed in Duncan are not exclusive and a court may

consider other things in making its decision.” Kennedy v. Bd. of Trustees of Milton Twp.,

7th Dist. Mahoning No. 08 MA 263, 2010-Ohio-1405, ¶51.

      {¶15} R.C. 2506.03 restricts the evidence a trial court can review on appeal from

a decision of a board of zoning appeals:

             (A) The hearing of an appeal taken in relation to a final order,
             adjudication, or decision covered by division (A) of section 2506.01
             of the Revised Code shall proceed as in the trial of a civil action, but
             the court shall be confined to the transcript filed under section
             2506.02 of the Revised Code unless it appears, on the face of that
             transcript or by affidavit filed by the appellant, that one of the
             following applies:

             (1) The transcript does not contain a report of all evidence admitted
             or proffered by the appellant.

             (2) The appellant was not permitted to appear and be heard in
             person, or by the appellant’s attorney, in opposition to the final order,
             adjudication, or decision, and to do any of the following:

             (a) Present the appellant’s position, arguments, and contentions;




                                              6
              (b) Offer and examine witnesses and present evidence in support;

              (c) Cross-examine witnesses purporting to refute the appellant’s
              position, arguments, and contentions;

              (d) Offer evidence to refute evidence and testimony offered in
              opposition to the appellant’s position, arguments, and contentions;

              (e) Proffer any such evidence into the record, if the admission of it is
              denied by the officer or body appealed from.

              (3) The testimony adduced was not given under oath.

              (4) The appellant was unable to present evidence by reason of a lack
              of the power of subpoena by the officer or body appealed from, or
              the refusal, after request, of that officer or body to afford the appellant
              opportunity to use the power of subpoena when possessed by the
              officer or body.

              (5) The officer or body failed to file with the transcript conclusions of
              fact supporting the final order, adjudication, or decision.

       {¶16} None of the circumstances contained in R.C. 2506.03(A) are applicable.

None of the information filed in Appellants’ supplemental filing was proffered to Appellee

during the hearing on the variance. Therefore, the trial court was confined to the transcript

of the proceedings and could not consider Appellants’ supplemental filing.

       {¶17} The order denying the variance demonstrated that Appellee considered the

Duncan factors in detail before arriving at its decision. Some discussion was had as to

the previous granting of a variance to one business in the shopping center; however, the

full extent of the decisions on granting area variances was not before Appellee.

       {¶18} The trial court’s judgment entry indicated that it considered the Board’s

findings under the Duncan analysis and concluded that “in the limited capacity this appeal

provides according to the statute, the Court cannot find the decision was unconstitutional,

illegal, arbitrary, capricious, unreasonable, or unsupported by the proper evidence.”




                                               7
Based on a review of only the transcript and evidence presented during the hearing, the

trial court did not err, as a matter of law, in concluding that the facts supported Appellee’s

decision by a preponderance of the evidence.

       {¶19} Appellants’ sole assignment of error has no merit.

       {¶20} The judgment of the Trumbull County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, J.,

MARY JANE TRAPP, J.,

concur.




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