[Cite as Barry v. Bay Village Bd. of Zoning Appeals, 2017-Ohio-7244.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104999




                                         GENE BARRY
                                                           PLAINTIFF-APPELLANT

                                                     vs.


            CITY OF BAY VILLAGE, OHIO BOARD OF
                  ZONING APPEALS, ET AL.
                                                           DEFENDANTS-APPELLEES




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-15-855176

        BEFORE: Kilbane, P.J., E.T. Gallagher, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                          August 17, 2017
ATTORNEY FOR APPELLANT

Dominic J. Vannucci
22649 Lorain Road
Fairview Park, Ohio 44126



ATTORNEYS FOR APPELLEE

Gary A. Ebert
Charles W. Zepp
Seeley Savidge Ebert & Gourash Co.
26600 Detroit Road, Suite 300 - 3rd Floor
Westlake, Ohio 44145
MARY EILEEN KILBANE, P.J.:

       {¶1} Plaintiff-appellant, Gene Barry (“Barry”), appeals the trial court’s judgment

affirming the decision of defendants-appellees, the city of Bay Village and the city of Bay

Village Board of Zoning Appeals (the “BZA”) (collectively referred to as “City”), to deny

Barry’s variance request. For the reasons set forth below, we affirm.

       {¶2} In June 2015, Barry filed an application with the BZA for a setback

variance. Barry sought a variance from the 50-foot front yard setback requirement to

build a utility room onto his existing home. In his application, Barry explained that the

utility room was needed for storage of equipment, such as a lawn mower and lawn

furniture. Barry’s lot backs up to Lake Erie. The back end of Barry’s lot is built to the

property line. As a result, he could not build an addition in the back of his house.

       {¶3} Barry previously received a 25-foot variance to build a garage on the front,

west end of the house. The utility room Barry sought to build would have been on the

east end of the house. This would have created a U-shaped house with the garage on the

left, the utility room on the right and the front entrance in the middle.

       {¶4} The City’s front yard setback requirement is 50 feet. The existing utility

room already encroaches 14 feet into the setback area. Barry’s proposed storage room

would encroach an additional 10 feet into the setback, making the setback 26 feet instead

of 50 feet.
       {¶5} In reviewing this variance request, the BZA was concerned that the lot was

already “really over-built.” The minutes from the BZA meeting state, in relevant part,

that “[b]etween the house and the paving, the construction is right up to the street.” The

board members were also concerned that “the property is all concrete in the front, and

there is a requirement that a certain portion of the property be grass.”       The BZA

explained that when deciding whether to grant a variance, the board considers “the

significance of the size of the variance requested” and noted that Barry’s request

“represents a 50 percent reduction in the front setback, since a 14 foot setback had

previously been granted and this request is for an additional 10 feet.” The BZA voted to

deny Barry’s requested variance in July 2015.

       {¶6} In September 2015, Barry submitted a new application decreasing the size

of the requested variance from 24 feet to 22 feet. This reduced the size of the addition

from 10 feet to 8 feet. The BZA considered this application at its October 1, 2015

meeting. The BZA reviewed its previous discussion at the July meeting where it was

noted that the property is already very densely built and a previous variance had been

granted on a setback for the garage. The consensus in July was that the property was

already dense enough. The BZA stated that it would be “going against the spirit of the

reason for the front yard setback to allow more because somebody wants more storage.”

After the discussion, the application was tabled and the BZA asked Barry to submit a new

proposal. As a result, Barry submitted a third application and reduced the requested

variance from 22 feet to 20 feet, thereby allowing for a six foot addition.
       {¶7} At the November 2015 BZA meeting, Barry again explained that he needed

the utility room for storage of his maintenance equipment since his house does not have a

basement or an attic. Having the storage room for maintenance equipment would allow

him to park his cars in the two-car garage. Barry also cited the lack of alternative sites

on the property to address his problem. The BZA, however, was still concerned that

Barry’s property was “overbuilt” and his property already extended well into the setback

area. The BZA denied Barry’s third request.

       {¶8} Barry then filed 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 in relevant part:

       After applying the law as set forth in Kisil v. Sandusky, 12 Ohio St.3d 30,
       456 N.E.2d 848 (1984), and Duncan v. Middlefield, 23 Ohio St.3d 83, 491
       N.E.2d 692 [(1986)] to the facts of this case, this court finds the board’s
       decision is supported by substantial, reliable, and probative evidence.
       Therefore, the board’s decision is affirmed.

       {¶9} Barry requested findings of fact and conclusions of law. The trial court

denied his request. This appeal followed. Barry raises the following two assignments

of error for review.

                                  Assignment of Error One

       The trial court failed to apply the proper standard of review to the evidence
       presented.

                                 Assignment of Error Two

       The trial court’s denial of appellant’s request for a variance of setback
       requirements is against the manifest weight of the evidence.
                                   Standard of Review

       {¶10} In the first assignment of error, Barry argues the trial court failed to apply

the proper standard of review. He contends the trial court should have conducted a

review similar to a de novo review and should have provided findings and an explanation

for its decision.

       {¶11} This court, however, has previously held that the common pleas court “‘has

no duty to issue findings of fact and conclusions of law in an appeal from the decision of

an agency of a political subdivision where the court does not function as a fact-finder in a

trial de novo.’” (Emphasis sic.) Ingle Inn, Inc. v. Brook Park, 8th Dist. Cuyahoga Nos.

54838 and 54839, 1989 Ohio App. LEXIS 191, * 13-14 (Jan. 19, 1989), quoting 3910

Warrensville Ctr. v. Warrensville Hts., 20 Ohio App.3d 220, 485 N.E.2d 824 (8th

Dist.1984), syllabus.

       {¶12} Rather, in an administrative appeal, 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.” Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d

142, 147, 735 N.E.2d 433 (2000); Kisil, 12 Ohio St.3d 30, 456 N.E.2d 848.               The

common pleas court must “not substitute its judgment for that of an administrative board,

such as the board of zoning appeals, unless the court finds that there is not a
preponderance of reliable, probative, and substantial evidence to support the board’s

decision.” Kisil at 34.

       {¶13} Here, the trial court concluded the BZA’s decision was supported by

competent, credible evidence. In fact, the trial court stated that it found the BZA’s

decision to be “supported by substantial, reliable, and probative evidence.” Thus, the

trial court applied the appropriate standard of review.

       {¶14} Accordingly, the first assignment of error is overruled.

                             Manifest Weight of the Evidence

       {¶15} In the second assignment of error, Barry argues the trial court’s denial of his

request for a variance is against the manifest weight of the evidence. However, we do

not review the trial court’s judgment in administrative appeal under a manifest weight of

the evidence standard.

       {¶16} Rather, R.C. 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.” [Kisil, 12 Ohio St.3d at fn. 4, 465 N.E.2d 848].
        “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.” Lorain City School Dist. Bd. Of Edn. v.
       State Emp. Relations Bd.

Henley, 90 Ohio St.3d at 147, 735 N.E.2d 433.
       {¶17} 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. Wolstein v. Pepper Pike City

Council, 156 Ohio App.3d 20, 2004-Ohio-361, 804 N.E.2d 75, ¶ 21-22 (8th Dist.).

“‘The term “abuse of discretion” * * * implies that the court’s attitude is unreasonable,

arbitrary or unconscionable.’” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404

N.E.2d 144 (1980).

       {¶18} Barry requested a variance of the City’s setback requirement, which relates

to area requirements. In deciding whether to grant an area variance, the Ohio Supreme

Court has instructed zoning boards to consider the applicant’s “practical difficulties.”

Kisil, 12 Ohio St.3d at 32-33, 465 N.E.2d 848; Duncan, 23 Ohio St.3d at 85-86, 491

N.E.2d 692.     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. See, generally, 3 Anderson,
       American Law of Zoning (2 Ed.1977), Variances, Section 18.47 et seq.;
       Wachsberger v. Michalis (1959), 19 Misc.2d 909, 191 N.Y. Supp.2d 621.

Duncan at 86.

       {¶19} Bay Village Codified Ordinance 1127.04 sets forth the powers and duties of

the BZA. With respect to variances, Bay Village Codified Ordinance 1127.04(d), states

in relevant part:

       Where there are practical difficulties or unnecessary hardships in the way of
       carrying out the strict letter of the provisions of this Zoning Code, on appeal
       from a decision of the Building Director the Board shall have the power in a
       specific case, to vary or modify the application of any such provisions in
       harmony with the general purpose and intent of this Zoning Code so that the
       public health, safety, morals and general welfare may be secured and
       substantial justice done. In granting a variance, after public notice, the
       Board may require appropriate conditions and safeguards that they deem
       necessary to protect, promote and improve the surrounding properties and
       neighborhood. Such variance shall be limited to specific cases where the
       following conditions also exist:

       (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 such premises or adjoining premises
       which differentiate such premises sought to be built upon or used will
       create a difficulty or hardship caused by a strict application to the
       provisions of this Zoning Code not generally shared by other lands or
       structures in the same district.

       (2) Refusal of the variance or modification appealed for will deprive the
       owner of the premises sought to be built upon or used of substantial
       property rights.

       (3) Granting of the variance or modification appealed for will not be
       contrary to the purpose and intent of the provisions of this Zoning Code.

       {¶20} Courts have applied the Duncan factors in conjunction with local zoning

ordinances in determining whether to disturb the administrative decision, even if they are
not identical to the Duncan factors. Phillips v. Westlake Bd. of Zoning Appeals, 8th

Dist. Cuyahoga No. 92051, 2009-Ohio-2489, ¶ 54, citing Stickelman v. Bd. of Zoning

Appeals, 148 Ohio App.3d 190, 2002-Ohio-2785, 772 N.E.2d 683, ¶ 32 (2d Dist.).

         {¶21} Furthermore, “‘no single factor controls in a determination of practical

difficulties; the inquiry should focus on the spirit rather than the strict letter of the zoning

ordinance so that substantial justice is done.’” Id. at ¶ 59, quoting Dyke v. Shaker Hts.,

8th Dist. Cuyahoga No. 83010, 2004-Ohio-514, ¶ 30. Thus, a variance may be denied

even if some factors weigh in favor of the property owner. Id. at ¶ 56, citing Stickelman.

         {¶22} Barry argues that all of the Duncan factors point to practical difficulties.

We disagree. Barry cannot demonstrate how his need for more storage is “peculiar” to

his premises. The restrictions to the backyard are not unique. Barry acknowledges that

all of the houses on the lake in his neighborhood share the same restriction. The variance

does not deny Barry of “substantial property rights.” Although a utility room would

make storing maintenance equipment easier, surplus storage is not a substantial property

right.

         {¶23} Furthermore, the BZA was concerned that the requested variance was

substantial. If the proposed addition were added to the existing structure, there would be

a 20-foot variance from the 50-foot setback requirement, which equated to a variance of

40 percent. Barry’s garage already encompasses a 25-foot variance. Barry argues that

because he already has a 25-foot variance for the garage, he should receive a 20-foot

variance for the storage room. His garage provides a space for storage and also caused
his property to be “overdeveloped.”      Therefore, Barry’s need for a storage room does

not outweigh the City’s right to maintain its zoning requirements.

       {¶24} Additionally, Barry admitted that he purchased the property with knowledge

of the zoning restrictions. Furthermore, Barry has not demonstrated that the proposed

utility room provides his only storage option.        The BZA decided that the lot was

“overbuilt” already and concluded that Barry’s desire to increase storage and solve a door

problem are “not good enough reasons to go against the ordinance and grant another

variance.” It would be “going against the spirit of the reason for the front yard setback to

allow more because somebody wants more storage.” Based on the foregoing, the trial

court properly concluded that the BZA’s decision was supported by substantial, reliable,

and probative evidence.

       {¶25} The second assignment of error is overruled.

       {¶26} Judgment is affirmed.

       It is ordered that appellee recover of appellant 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.




MARY EILEEN KILBANE, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
