[Cite as Buckley v. Solon, 2011-Ohio-3468.]




               Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 95805




                                  MITCHELL BUCKLEY
                                                PLAINTIFF-APPELLANT

                                                 vs.


                                CITY OF SOLON, ET AL.

                                                DEFENDANTS-APPELLEES




                                              JUDGMENT:
                                              AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-711706
      BEFORE: Kilbane, A.J., Blackmon, J., and Cooney, J.

    RELEASED AND JOURNALIZED: July 14, 2011
ATTORNEY FOR APPELLANT

Richard A. F. Mendelsohn
32790 Ledge Hill Drive
Solon, Ohio 44139

ATTORNEYS FOR APPELLEES

Shana A. Samson
Rademaker, Matty, McClelland & Greve
55 Public Square
Suite 1775
Cleveland, Ohio 44113

Todd D. Cipollo
Todd D. Cipollo Co., L.P.A.
33977 Chardon Road
Suite 100
Willoughby Hills, Ohio 44094

Thomas G. Lobe
Thomas G. Lobe Co., L.P.A.
614 West Superior Avenue
Suite 1300
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:

      {¶ 1} Plaintiff-appellant, Mitchell Buckley (Buckley), appeals the trial

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

Solon, the Solon Planning Commission, and the Solon Board of Zoning

Appeals (collectively referred to as “City”), to deny Buckley’s variance

requests. Finding no merit to the appeal, we affirm.

      {¶ 2} Buckley testified that he built a “tree house” (referred to as

“second accessory structure”) in the backyard of his home located on

Pettibone Road in Solon, Ohio, in 1999. Buckley added a base to this second

accessory structure in 2006.     Buckley claims the base was added for

structural support.   The second accessory structure is 16 feet high, with

doors on the first and second levels, and a pulley for hoisting objects to the

top level. He uses the second accessory structure to store his son’s camping

equipment. Buckley also has another storage structure in his backyard that

was built in approximately 1977, which he uses to store firewood.

      {¶ 3} In July 2009, Buckley filed an application with the Solon

Planning Commission, seeking a variance to “allow [the second accessory

structure] to stay intact” in addition to the other storage structure in his
backyard.    Buckley sought a variance from Solon Codified Ordinance

1287.06(1)(B) and (1)(B)(3), which provide in pertinent part:

      “1. The following Accessory Structures and uses shall be
      permitted within residential zoning districts subject to
      the requirements specified herein, and provided that the
      total area of such uses does not exceed twenty-five
      percent (25%) coverage of the rear yard area of the lot: *
      * * B.    STORAGE BUILDINGS * * * AND SIMILAR
      STRUCTURES – In addition to one (1) detached garage,
      one (1) accessory storage building, * * * or similar
      structure shall be permitted on a lot subject to the
      following requirements: * * * 3. MAXIMUM HEIGHT –
      Detached storage buildings * * * and similar structures
      shall not exceed twelve (12) feet in height above the
      existing grade.”

      {¶ 4} On August 11, 2009, the City conducted a hearing on Buckley’s

variance requests.   Buckley testified that the second accessory structure

was built in 1999, and the base was added in 2006. He testified that the top

portion of the second accessory structure was used for storage. Specifically,

his son’s Boy Scout equipment.      He also testified about the sentimental

value of the second accessory structure. The City considered Buckley’s “tree

house” as a storage structure.     In an effort to resolve the matter, the

application was tabled in order to give Buckley the opportunity to discuss the

issue with his neighbors and the Solon Planning Department.

      {¶ 5} On August 25, 2009, the matter was heard again by the City.

The Planning Director indicated that he met with Buckley and the parties

and they were unable to resolve their issues.         The City then denied
Buckley’s variance requests.    Buckley appealed the denial to Solon City

Council, which met with Buckley in October 2009. City Council requested

that Buckley meet again with the Planning Director and neighbors to reach a

compromise. At the November 2009 meeting, the parties were still unable

to resolve the matter. The Planning Director testified that Buckley failed to

obtain a permit when he originally built the second accessory structure.

The Planning Director further testified that in 1999, Solon Codified

Ordinance 1287.06(1)(B) and (1)(B)(3), permitted only one accessory building

up to 12 feet on residential property. The City denied Buckley’s application.

      {¶ 6} Then in December 2009, Buckley filed an administrative appeal

pursuant to R.C. Chapter 2506, challenging the City’s denial of his variance

requests. The common pleas court affirmed the City’s decision, finding that

it was supported by the preponderance of substantial, reliable, and probative

evidence. The trial court stated in pertinent part:

      “There is no evidence in the record that Solon deviated
      from the appropriate standard in determining whether
      * * * Buckley was entitled to a variance for the accessory
      structures located on his property.        Based on the
      evidence before it, the Solon City Council correctly
      determined that * * * Buckley was not entitled to a
      variance in accordance with Section 1290.01(b) of the
      Solon Code.”

      {¶ 7} It is from this order that Buckley now appeals, raising the

following six assignments of error for review.
ASSIGNMENT OF ERROR ONE

“The trial court erred when it declined to grant any of [Buckley’s] requests to
expand the record where: (1) [Buckley] raised both constitutional and
factual issues that were not sufficiently covered by the existing record; (2)
where there were items missing from the record; and (3) where no
conclusions of fact were filed with the record.”

ASSIGNMENT OF ERROR TWO

“The trial court erred in not finding that the property was protected as a
non-conforming use.”

ASSIGNMENT OF ERROR THREE

“The trial court erred in finding that [the City] correctly applied the practical
difficulty test * * * were the matter cited by the [City] was a change in use of
[the ‘tree house’] thereby creating a use variance requiring application of the
test of undue hardship[.]”

ASSIGNMENT OF ERROR FOUR

“The trial court erred in finding [the City’s] application of the zoning
provisions to [Buckley’s] property was constitutional[.]”

ASSIGNMENT OF ERROR FIVE

“The trial court [erred] when it found the actions of [the City] were [a]
lawful application of the zoning provisions despite evidence that the
enforcement in this case was primarily addressed at the exterior condition of
[Buckley’s] property and therefore constitutes an impermissible reliance on
aesthetics.”
      ASSIGNMENT OF ERROR SIX

      “The trial court erred in finding that the decisions by the planning

      commission and council [were] supported by a preponderance of substantial,

      reliable, and probative evidence on the whole record and was not

      unconstitutional, illegal, arbitrary, capricious, [or] unreasonable.”

                                  Standard of Review

      {¶ 8} 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.

       {¶ 9} 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.

                                Requests to Expand the Record

       {¶ 10} In the first assignment of error, Buckley argues the trial court erred when it

denied his requests to expand the record because:        (1) his constitutional claims were not

sufficiently addressed in the record; (2) documents are missing from the record; and (3) the

transcript prepared by the City failed to contain conclusions of fact.        Buckley contends

because of time constraints “the issues of:   (1) [the] unconstitutionality [of the ordinances] as

applied; (2) equal protection; (3) procedural due process; (4) substantive due process; and (5)

vagueness due to all the different standards being applied for finding [his] property to be in

violation” entitle him to an expansion of the record.     He also argues there are gaps in the
record with regard to the “pre-existing non-conforming use” of the second accessory

structure.   Lastly, he argues the record should have been expanded because the transcript

prepared by the City failed to contain conclusions of fact.

       {¶ 11} We find the instant case analogous to this court’s decision in Ziss Bros. Constr.

Co., Inc. v. Independence Planning Comm., Cuyahoga App. No. 90993, 2008-Ohio-6850.

In Ziss, the appellant (Ziss) like Buckley, argued that the trial court should have granted its

request to expand the record.   We noted 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

enumerated in R.C. 2506.03 apply.     Id. at ¶18-19.   Pertinent to Ziss and the instant case:

       “(A) The hearing of an appeal taken in relation to a final order, adjudication,
       or decision covered by [R.C. 2506.01(A)] shall proceed as in the trial of a
       civil action, but the court shall be confined to the transcript filed under [R.C.
       2506.02] 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.

                                             ***

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

       (B) If any circumstance described in divisions (A)(1) to (5) of this section
       applies, the court shall hear the appeal upon the transcript and additional
       evidence as may be introduced by any party. At the hearing, any party may
       call, as if on cross-examination, any witness who previously gave testimony
       in opposition to that party.” R.C. 2506.03(A)(1), (5), and (B).
          {¶ 12} After reviewing the transcript submitted to the trial court, we 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.
                                                                                                       1




Ziss at ¶27.     This court found that “the Planning Commission presented detailed findings of

fact at the June 6, 2006 hearing as evidenced by the minutes that it provided to 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.”2
                                                Id.

          {¶ 13} Ziss also argued, like Buckley, that the trial court should have conducted a

hearing on the constitutional issues.         We noted “‘the constitutionality of the ordinance as

applied to the property in question can be challenged as part of an appeal under R.C. Chapter

2506.”’     Id. at ¶36, quoting Recreational Facilities, Inc. v. Hambden Twp. Bd. of Trustees

(1995), Geauga App. No. 93-G1819.          As such, this court has held that:

          “‘In addressing the constitutionality of properly enacted zoning ordinances,
          courts must presume their validity. A zoning ordinance will be found

          1A
          “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.

            Felder, this court “held that the minutes were deficient and failed to satisfy the transcript
          2In

requirement set forth in R.C. 2506.02 and R.C. 2506.03 because it merely stated ‘[a]fter presentation
and discussion * * *,’ and thereafter a vote was taken.” Ziss at ¶26.
       unconstitutional as applied only if its requirements are clearly arbitrary and
       unreasonable and are unrelated to the public health, safety or general welfare.
         The burden of proving that a zoning ordinance is unconstitutional is on the
       person making such an assertion. Further, ‘a person wishing to attack an
       ordinance as unconstitutional * * * may not rely on mere allegations or
       conclusions of law that the ordinance is not based on health, safety, morals or
       general welfare, but must introduce competent and relevant evidence to
       support his position * * *.”’ Bd. of Bldg. and Zoning Appeals of the City
       of Highland Hts., Ohio v. Grande (1996), Cuyahoga App. No. 69082.
       (Internal citations omitted.)” Id. at ¶36.

       {¶ 14} In Ziss, the trial court denied Ziss’s motion for a hearing on constitutional

issues because it already reviewed the matter on constitutional grounds under R.C. 2506.04,

and thus, it was limited to the transcript and any evidentiary exceptions set forth in R.C.

2506.03.   Id. at ¶39.   On appeal, we agreed, stating that: “‘the mere filing of an affidavit

does not automatically quicken the statutory right nor compel the Court of Common Pleas to

take additional evidence unless the record will support * * * one of the deficiencies

enumerated in the statute * * *.’”   Id. at ¶40, quoting 12701 Shaker Blvd. Co. v. City of

Cleveland (1972), 31 Ohio App.2d 199, 211, 287 N.E.2d 814.          Furthermore, Ziss did not

argue that it was entitled to admit additional evidence pursuant to any exception set forth in

R.C. 2506.03.   Id. at ¶41.

       {¶ 15} In the instant case, Buckley filed a brief in support of expanding the record, a

motion to expand the record, a motion for oral hearing, and a brief broadly alleging the

unconstitutionality of the ordinances as applied.   Buckley’s constitutional arguments did not

actually challenge the constitutionality of the zoning ordinances, but rather were a factual
challenge.   We also note that Buckley did not submit an affidavit with any of these motions.

 The trial court denied these motions, stating:

       “Upon consideration of the evidence in the record and arguments of counsel
       contained in the briefs, the court affirms the decision of [the City] finding
       that its decision was based on the preponderance of substantial, reliable, and
       probative evidence, and was not unconstitutional, illegal, arbitrary,
       capricious, or unreasonable. * * * In addition, throughout the pendency of
       this administrative appeal, [Buckley] has sought permission from this court
       to expand the record on appeal. This court has previously denied
       [Buckley’s] request indicating that he failed [to present] sufficient cause
       pursuant to R.C. 2506.03 to expand the record. Again, the court will deny
       [Buckley’s] request (found in his reply brief) to expand the record as he has
       not presented sufficient cause pursuant to R.C. 2506.03.”

       {¶ 16} Just as in Ziss, here, the trial denied Buckley’s motions for a hearing on

constitutional issues because it already reviewed the matter on constitutional grounds under

R.C. 2506.04, and thus, it was limited to the transcript and any evidentiary exceptions set

forth in R.C. 2506.03.    Therefore, we find that the trial court properly denied Buckley’s

motion for a hearing and his motions to expand the record.

       {¶ 17} With regard to the conclusions of fact, a review of the transcript reveals that

the City expressed its reasoning for denying Buckley’s application.      The Planning Director

stated that there are two accessory structures on Buckley’s property and the height of the

second accessory structure exceeds the height allowed by the ordinance by four feet.      The

Planning Director explained that the denial was “based on the fact that there was no practical

difficulty to justify two accessory structures and a height variance.”   Buckley was given the
opportunity at both August 2009 meetings and the October and November 2009 meetings to

explain why he should be permitted to have two accessory structures on his property and why

he should be allowed to have an accessory structure exceeding the allowable height by four

feet.   The City determined that Buckley’s references to other properties with more than one

accessory structure and sentimental reasons for the second accessory structure were not

enough to establish practical difficulties.

        {¶ 18} Based on the foregoing, we do not find that the trial court erred when it denied

Buckley’s requests to expand the record.      Furthermore, 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 a hearing.

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

                                      Non-Conforming Use

        {¶ 20} In the second assignment of error, Buckley argues that his property should

have been protected as a “grandfathered” non-conforming use because the accessory

structures were in place prior to the enactment of the Solon Ordinances.          In support of his

argument, Buckley relies on statements made by the Planning Commissioner that he believed

the second accessory structure was built around 1997 because he knew some of the Boy

Scout troops involved with the construction of the original structure.
        {¶ 21} We note that “[t]he [zoning] board is a public body, and therefore its decision

on the application for a variance must be accorded a presumption of validity; the burden of

showing that the decision is erroneous rests on the party contesting the decision.” C. Miller

Chevrolet, Inc. v. Willoughby Hills (1974), 38 Ohio St.2d 298, 302, 313 N.E.2d 400, citing

McCauley v. Ash (1954), 97 Ohio App. 208, 124 N.E.2d 739; 8A McQuillin, Municipal

Corporations (3 Ed. [1965]), 424, Section 25.327, 168 A.L.R. 13, 146.           Moreover, on

appeal, we “‘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[.]’”   (Citations omitted.) Henley at 147.

        {¶ 22} In the instant case, Buckley failed to provide evidence supporting his

contention that the structures were built prior to the enactment of the ordinances.         He

testified the first structure was built in approximately 1977 and that he rebuilt the

structure in 2003. Buckley further testified the second accessory structure was built in

1999 and that he added a base to this structure in 2006.   The Planning Director testified that

the City has required building permits since at least 1993 and that Buckley never obtained a

permit for the top portion or the base of the second accessory structure, or the reconstruction

of the other storage structure in 2003.   The Planning Director also testified that at the time
the second accessory structure was built, only one accessory building was allowed on the

property.    Based on the foregoing, it is clear that the City considered Buckley’s

“grandfathered” argument and rejected it.

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

                                          Variance Criteria

       {¶ 24} In the third assignment of error, Buckley argues the trial court erred in finding

that the City correctly applied the practical difficulties test.    He claims that he sought a use

variance as opposed to an area variance. “A use variance permits land uses for purposes

other than those permitted in the district as prescribed in the relevant regulation.               An

example of a use variance is a commercial use in a residential district.          Area variances do

not involve uses, but rather structural or lot restrictions.    An example of an area variance is

relaxation of setback lines or height restrictions.” Schomaeker v. First Natl. Bank of Ottawa

(1981), 66 Ohio St.2d 304, 306-307, 421 N.E.2d 530.       3




       {¶ 25} Here, Buckley requested to have two accessory structures on his property and

to exceed the height restriction for his second accessory structure.        As a result, his requests


       3In  making its determination to grant or deny a use variance, the board of zoning appeals must
determine whether enforcement of the resolution will cause the property owner an “unnecessary
hardship.” Set Prods., Inc. v. Bainbridge Twp. Bd. of Zoning Appeals (1987), 31 Ohio St.3d 260,
263, 510 N.E.2d 373. “Unnecessary hardship” results when it is not economically feasible to put the
property to a permitted use under its present zoning classification due to characteristics unique to the
property. Hulligan v. Columbia Twp. Bd. of Zoning Appeals (1978), 59 Ohio App.2d 105, 109, 392
N.E.2d 1272, quoting Fox v. Johnson (1971), 28 Ohio App.2d 175, 181, 275 N.E.2d 637.
are for area variances.    When seeking an area variance, it must be determined whether a

property has encountered practical difficulties in the use of the property.

       {¶ 26} 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, the Ohio Supreme 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.

       {¶ 27} A review of the record in the instant case reveals that Buckley failed to present

any evidence of practical difficulty at his meetings with the City. Buckley did not

demonstrate a special condition or circumstance that exists on his property, and there was no

evidence indicating that the house without the second accessory structure will not yield a
reasonable return on his investment in the property.           Buckley testified that he uses the

second accessory to store his son’s camping equipment.         However, he has another accessory

structure in his backyard that he uses for storage.      Furthermore, the members of the Planning

Commission noted that the second accessory structure is visible from the neighbor’s house

and the street.

        {¶ 28} The City’s position was that Buckley used the second accessory structure as

another storage facility, rather than a “tree house.”     The City noted that the second accessory

structure has a hoist to carry items to the top level.     While Buckley did state that the second

accessory structure has sentimental value, this is not evidence of practical difficulty.      The

City explained “the denial was based on the fact that there was no practical difficulty to

justify two accessory structures and a height variance.”       Lastly, the variances Buckley seeks

are inconsistent with the spirit and intent of the zoning code, which is to limit the amount and

size of storage structures on the property.

        {¶ 29} Based on the foregoing, we find that the trial court correctly applied the

practical difficulties test.

        {¶ 30} Accordingly, the third assignment of error is overruled.

                               Constitutionality of Zoning Ordinances

        {¶ 31} In the fourth assignment of error, Buckley argues the trial court erred when it

found the City’s application of the zoning provisions to his property was constitutional.      He
claims his due process rights were violated because the ordinances as applied to his property

do not bear a reasonable relationship to a legitimate public purpose and are not a valid use of

police powers.

       {¶ 32} In Brown v. Cleveland (1981), 66 Ohio St.2d 93, 95, 420 N.E.2d 103, the Ohio

Supreme Court stated that: “zoning ordinances which are enacted pursuant to a municipality’s

police powers are presumed valid until the contrary is clearly shown by the party attacking

the ordinance.”

       {¶ 33} In the instant case, Buckley failed to demonstrate that the ordinances are

unconstitutional.   He claims his property is constitutionally protected as pre-existing

non-conforming use.    However, Buckley has not established that the structures qualify as

pre-existing non-conforming use.    The ordinances were enacted to limit the amount and size

of storage structures on residential property.     Therefore, we cannot say that the City

exercised its power in an arbitrary and unreasonable manner and its decision has no

substantial relation to the public health, safety, morals, or general welfare. Jaylin Invests.,

Inc. v. Moreland Hills, 107 Ohio St.3d 339, 2006-Ohio-4, 839 N.E.2d 903, ¶10, citing Euclid

v. Ambler Realty Co. (1926), 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303.

       {¶ 34} Accordingly, the fourth assignment of error is overruled.

                                    Reliance on Aesthetics
       {¶ 35} In the fifth assignment of error, Buckley argues that the City improperly relied

on aesthetics when denying his variance requests.      He claims that the City based its decision

primarily on aesthetic reasons and, as such, improperly used its police power.        In support of
                                                                                  4




his argument, he relies on Hudson v. Albrecht, Inc. (1984), 9 Ohio St.3d 69, 458 N.E.2d 852,

where the Ohio Supreme Court held that: “[t]here is a legitimate governmental interest in

maintaining the aesthetics of the community and, as such, aesthetic considerations may be

taken into account by the legislative body in enacting zoning legislation.”       Id. at paragraph

one of the syllabus.

       {¶ 36} As previously discussed, zoning ordinances are presumed to be constitutional

“until the contrary is clearly shown by the party attacking the ordinance.” Brown at 95.          A

zoning ordinance will not be disturbed unless it is shown that the action taken by the

municipality in denying the property owner the unrestricted use of his property is arbitrary,

capricious, and bears no reasonable relationship to health, safety, morals, or general welfare.

Ambler Realty at 395.

       {¶ 37} In the instant case, Buckley failed to demonstrate that the City’s decision was

arbitrary and capricious and bears no reasonable relationship to health, safety, morals, or

general welfare of the municipality.      The ordinances limit accessory structures to one per



       4We    note that “the principal argument generally voiced against [such] ordinances * * * is
that the ordinance is not based on the health, safety, morals or general welfare of the community but
that its primary objective is one of aesthetic considerations and this renders the ordinance
property and twelve feet in height.   The City’s primary concern was that Buckley used the

second accessory structure as a storage facility rather than a “tree house.”     Therefore, we

find Buckley’s argument unpersuasive.

       {¶ 38} Accordingly, the fifth assignment of error is overruled.

                                  Preponderance of Evidence

       {¶ 39} In the sixth assignment of error, Buckley argues that the City’s decision to

deny his application was arbitrary, capricious, and unreasonable because the record was

deficient.   He claims there are problems with the “nature of the ‘evidence’ included, gaps,

and the absence of conclusions of fact.”

       {¶ 40} As 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.




unconstitutional.” Pepper Pike v. Landskroner (1977), 53 Ohio App.2d 63, 69, 371 N.E.2d 579.
       {¶ 41} In the instant case, there is no reason to “fill in the gaps” because the transcript

is complete.   There is no dispute that Buckley has two accessory structures on his property

and that the second accessory structure exceeds the height limit by four feet.       He testified

that he used the second accessory structure to store his son’s belongings.          Furthermore,

members of the Planning Commission believed the second accessory structure was used as

storage.   The second accessory structure had a hoist, which indicated that heavy items might

be lifted to the top level of this structure.   The City gave Buckley several opportunities to

resolve the situation with the Planning Director and neighbors.     The City also gave Buckley

numerous opportunities to present his case.       In response, Buckley maintained the second

accessory structure had sentimental value and questioned the City about structures on

neighboring properties.    The City explained that the denial was “based on the fact that there

was no practical difficulty to justify two accessory structures and a height variance.”

       {¶ 42} Based on the foregoing, we find the trial court’s judgment affirming the City’s

decision to deny Buckley’s variance requests was supported by a preponderance of reliable,

probative, and substantial evidence.

       {¶ 43} Accordingly, the sixth assignment of error is overruled.

       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

PATRICIA A. BLACKMON, J., and
COLLEEN CONWAY COONEY, J., CONCUR
