[Cite as 3620 Superior Ave., L.L.C. v. Cleveland Bd. of Zoning Appeals, 2012-Ohio-365.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 97040




                        3620 SUPERIOR AVENUE, LLC
                                                           PLAINTIFF-APPELLANT

                                                     vs.

                           CITY OF CLEVELAND
                        BOARD OF ZONING APPEALS
                                                           DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                     Case No. CV-744510

        BEFORE:           Keough, J., S. Gallagher, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: February 2, 2012
ATTORNEYS FOR APPELLANT

Avery S. Friedman
Patrick R. Kramer
Friedman & Associates
701 The City Club Building
850 Euclid Avenue
Cleveland, OH 44114-3358


ATTORNEYS FOR APPELLEE

Barbara Langhenry
Interim Director of Law

BY: Carolyn M. Downey
Assistant Law Director
601 Lakeside Avenue, Room 106
Cleveland, OH 44114




KATHLEEN ANN KEOUGH, J.:

       {¶ 1} Plaintiff-appellant, 3620 Superior Avenue, LLC, appeals the trial court’s

judgment affirming the decision of defendant-appellee, City of Cleveland Board of

Zoning Appeals (the “Board”), to deny a variance modification requested by appellant.

For the reason that follow, we affirm.

       {¶ 2} Appellant is the owner of property located at 3620 Superior Avenue in

Cleveland, which was originally operated as a carry-out restaurant.     In July 2007,

appellant applied for and was granted a variance to change its business operations to a

restaurant – bar establishment. In August 2010, appellant again applied for a variance
modification to change the business operations use from a restaurant – bar to a nightclub,

which would extend the hours of operation to 2:30 a.m.

      {¶ 3} On September 16, 2010, the Building and Housing Department issued a

Notice of Non-Conformance to appellant, which denied their request to extend the hours

of operations to 2:30 a.m.       A second Notice of Non-Conformance was issued in

November, which denied the variance request because the nightclub would have been

within 500 feet of a church or a residential district, the required amount of off-street

parking was unavailable, and any expansion or substitution of a non-conforming use

requires the Board’s approval.

      {¶ 4} Following the first Notice of Non-Conformance, appellant filed an appeal

with the Board seeking a use variance. In November 2010, the Board conducted a public

hearing on appellant’s appeal where it heard and considered testimony both for and

against approval of the change of use variance.       Following the hearing, the Board

unanimously denied appellant’s application.

      {¶ 5} Appellant then requested that the Board conduct a new hearing based on

evidence it had obtained indicating that the Board had relied on racially-motivated

testimony and evidence from only one witness and thus, its decision denying appellant’s

application was discriminatory. The Board denied appellant’s request, finding that no

new evidence was presented. Moreover, when the Board reviewed appellant’s request

for reconsideration, the Board unanimously agreed that its decision would have been the
same even if the alleged biased and discriminatory testimony was excluded from

consideration.

      {¶ 6} Appellant filed an administrative appeal in the Court of Common Pleas

pursuant to R.C. 2506.01, challenging the Board’s denial of its appeal and request for a

new hearing. The matter was briefed by both parties and the common pleas court issued

a written decision affirming the Board’s decisions denying appellant’s appeal and request

for a new hearing.

      {¶ 7} It is from this decision that appellant appeals, raising the following two

assignments of error for review:

      [I.] Where the record exists which contains irrefuted [sic] evidence of
      intentional racial discrimination against the appellant before a board of
      zoning appeals, the trial court abuses its discretion in either not reversing
      the denial of a modification of a variance or, at the very least, remanding
      the matter for a new hearing requiring the board to consider such evidence.

      [II.] Where the record exists which contains irrefuted [sic]evidence of
      intentional racial discrimination against the appellant before a board of
      zoning appeals, a board of zoning appeals improperly denied a hearing
      which would have permitted consideration of such evidence.

      {¶ 8} Because the issues raised within each assigned error are interrelated, they

will be addressed together.

      {¶ 9} 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.” “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.

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

if it 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, 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).

       {¶ 11} In this case, we find that the trial court did not abuse its discretion. The

written decision by the trial court found that reliable, probative, and substantial evidence

was presented supporting the Board’s denial of appellant’s application. The trial court

specifically determined that the record demonstrated that the Board did not solely rely on

one witness’s testimony to reach its decision. As the trial court noted, multiple witnesses

testified before the Board, including a local councilman, indicating that granting the

change of use request would have an adverse impact on the community. Moreover, as

the Notice of Non-Conformance indicated, the nightclub – dance hall would have been

within 500 feet of a church or residential district, which is not allowable, and the amount

of off-street parking available was insufficient to support such an establishment.

       {¶ 12} We further note that the only entity making the denial of the use variance a

racial issue is the appellant. While one witness may have had a personal bias against the

appellant or ulterior motive in testifying against approval of the use variance, nothing in

the record demonstrates that the witness’s personal bias or motives impacted the Board’s

decision.   The record does not contain any evidence that the Board members (who

actually make the decision) acted in a discriminatory manner,“that its conclusions were

formulated” in any way “on racially-motivated evidence” in denying the variance, or that

its intent in denying the variance was an attempt to discriminate against the appellant.
       {¶ 13} Moreover, appellant asks this court to review the evidence presented at the

Board hearing and to substitute our judgment for the Board.           Appellant makes no

argument demonstrating the trial court’s error; rather, it reiterates the testimony and

evidence initially presented to the Board, which was the basis for the appeal below. Our

review is limited in scope and does not include the same extensive power to weigh the

evidence as is granted to the common pleas court. Henley, 90 Ohio St.3d 142, 147.

       {¶ 14} Accordingly, the trial court did not abuse its discretion in affirming the

Board’s denial of appellant’s appeal and request for a new hearing. We find appellant’s

assignments of error to be without merit; they are thus overruled.

       Judgment affirmed.

       It is ordered that appellee 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.



KATHLEEN ANN KEOUGH, JUDGE

SEAN C. GALLAGHER, P.J., and
KENNETH A. ROCCO, J., CONCUR
