[Cite as 6957 Ridge Rd., L.L.C. v. Parma Bd. of Zoning Appeals, 2013-Ohio-4028.]




                    Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99006


                             6957 RIDGE ROAD, L.L.C.
                                                  PLAINTIFF-APPELLANT

                                                    vs.

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


                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-767257

            BEFORE:          Blackmon, J., Keough, P.J., and E.T. Gallagher, J.

            RELEASED AND JOURNALIZED:                             September 19, 2013
                                                     -i-
ATTORNEYS FOR APPELLANT

John P. Slagter
Anthony R. Vacanti
Buckingham, Doolittle & Burroughs, L.L.P.
1375 E. 9th Street, Suite 1700
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEES

Timothy G. Dobeck
Director of Law

By: Bruce M. Courey
Assistant Law Director
City of Parma
6611 Ridge Road
Parma, Ohio 44129
PATRICIA ANN BLACKMON, J.:

      {¶1}   Appellant 6957 Ridge Road, L.L.C. (“Owner”) appeals the trial court’s

decision upholding the Parma City Council’s (“the City”) denial of a use variance.

Owner assigns the following errors for our review:

      I. The trial court erred by affirming the City’s denial of Owner’s variance
      request because such denial was arbitrary, capricious, and unsupported by a
      preponderance of reliable, probative and substantial evidence.

      II. The trial court erred by ruling that the continued application of the
      residential zoning to the property is constitutional because such continued
      application violates substantive due process and equal protection.

      III. The trial court erred by ruling that Owner was provided a
      constitutionally sufficient fair and impartial hearing on its variance.

      {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

      {¶3} On September 30, 2010, Owner purchased a residential property located at

6957 Ridge Road in the city of Parma, Ohio. The property is zoned for single-family

use, but is located between both residential and commercial properties. It is flanked on

the south by the Stearns Homestead, which is a Parma historical site containing a

numerous variety of farm animals, and on the north by Fifth Third Bank.

      {¶4} On May 11, 2011, Owner filed an application to have the property rezoned

from single-family residential to retail and commercial. The city of Parma’s Planning
Commission (“Planning Commission”) voted to recommend that the City approve the

rezoning request, but the City declined to approve the request.

       {¶5} Thereafter, Owner applied to the Parma Board of Zoning Appeals (“BZA”)

for a use variance pursuant to Chapter 1127 of Parma Codified Ordinances. On August

9, 2011, the BZA arrived at a split 2-2 vote on the issue due to the absence of one BZA

member. The matter was able to be presented to the City after one member changed his

vote from “no” to “yes” to arrive at 3-1.

       {¶6} On September 21, 2011, a Special Planning Committee meeting was

conducted wherein the Owner, along with planning experts, appraisal experts, and

engineering experts presented testimony in support of granting the variance.

Immediately after the meeting the City, in an 8-0 vote, denied the requested variance.

       {¶7} On October 20, 2011, Owner filed an administrative appeal, pursuant to

R.C. Chapter 2506, in the trial court. On August 30, 2012, the trial court affirmed the

City’s denial of Owner’s request for variance. Owner now appeals.

                               Denial of Variance Request

       {¶8} In the first assigned error, Owner argues the trial court erred when it

affirmed the City’s denial of the requested use variance.

       {¶9} Administrative appeals taken from a township board of zoning appeals are

governed by R.C. Chapter 2506. Shultz v. Mantua, 11th Dist. Portage No. 2011-P-0054,

2012-Ohio-1459.     The appeal is first addressed to the court of common pleas of that
county. Id., R.C. 2506.01.

      {¶10} In Henley v. Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147,

2000-Ohio-493, 735 N.E.2d 433, the Ohio Supreme Court explained the applicable

standard of review as follows:

      [W]e have distinguished the standard of review to be applied by common

      pleas courts and courts of appeals in R.C. Chapter 2506 administrative

      appeals. 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. See Smith v. Granville Twp.

      Bd. of Trustees, 81 Ohio St.3d 608, 612, 1998-Ohio-340, 693 N.E.2d 219

      (1998), citing Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d 202,

      206-207, 389 N.E.2d 1113 (1979), * * *.

      The standard of review to be applied in an R.C. 2506.04 appeal is “more
      limited in scope.” Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, 12 OBR
      26, 465 N.E.2d 848, 852. “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.” Id. at 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. Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd.
       (1988), 40 Ohio St.3d 257, 261, 533 N.E.2d 264, 267.” Id. at 147.

       {¶11} Thus, our more limited review requires us to “affirm the common pleas

court, unless [we find], as a matter of law, that the decision of the common pleas court is

not supported by a preponderance of reliable, probative and substantial evidence.”

Cummings v. Cleveland, 8th Dist. Cuyahoga No. 99200, 2013-Ohio-2541, quoting Kisil,

12 Ohio St.3d at 34, 465 N.E.2d 848. Within the ambit of “questions of law” includes

whether the common pleas court abused its discretion. Henley at 148.              Abuse of

discretion connotes more than an error of law or of judgment; rather, it implies the court’s

attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶12} A board of zoning appeals maintains wide latitude in deciding whether to

grant or deny a variance.         Culkar v. Brooklyn Hts., 192 Ohio App.3d 383,

2011-Ohio-724, 949 N.E.2d 103 (8th Dist.), citing Schomaeker v. First Natl. Bank of

Ottawa, 66 Ohio St.2d 304, 309, 421 N.E.2d 530 (1981). In making its determination to

grant or deny a variance, the board of zoning appeals must determine whether

enforcement of the resolution will cause the property owner an unnecessary hardship. Id.,

citing Set Prods., Inc. v. Bainbridge Twp. Bd. of Zoning Appeals, 31 Ohio St.3d 260, 263,

510 N.E.2d 373 (1987).

       {¶13} In the instant case, Owner applied for a “use” variance for the subject

property based on a claim of unnecessary hardship. Specifically, Owner argues that the
unnecessary hardship is grounded in the location of the property; primarily that the

residentially-zoned property is surrounded by commercial properties.

      {¶14} Preliminarily, we note a use variance is normally awarded when a board of

zoning appeals allows property to be used in a way that is not expressly or implicitly

permitted by the relevant zoning code.       Battaglia v. Newbury Twp. Bd. of Zoning

Appeals, 11th Dist. Geauga No. 99-G-2256, 2000 Ohio App. LEXIS 5755 (Dec. 8, 2000).

The governing test for a use variance is whether a particular zoning ordinance creates an

“unnecessary hardship” with respect to the use of the property.     Fisher-Yan v. Mason,

11th Dist. Geauga No. 99-G-2224, 2000 Ohio App. LEXIS 4352, 12-13 (Sept. 22, 2000).

       {¶15} A zoning regulation “imposes an unnecessary hardship which will warrant a

variance only where the hardship is unique to a particular owner’s property.” Johnson’s

Island Invest. Group, LLC v. Marblehead Bd. of Zoning Appeals, 6th Dist. Ottawa No.

OT-11-023, 2012-Ohio-1667, citing Fox v. Shriver-Allison Co., 28 Ohio App.2d 175,

181, 275 N.E.2d 637 (7th Dist.1971). Unnecessary hardship does not exist unless the

property is unsuitable for any of the uses permitted by the zoning resolution. In re Appeal

of Dinardo Constr., Inc., 11th Dist. Geauga No. 98-G-2138, 1999 Ohio App. LEXIS 1430

(Mar. 31, 1999).

       {¶16} In order for the unnecessary hardship test to be applicable, it must be

determined that any potential hardship was not self-created or self-imposed. Massasauga

Rattlesnake Ranch, Inc. v. Hartford Twp. Bd. of Zoning Appeals, 11th Dist. Trumbull
Nos. 2011-T-0060 and 2001-T-0061, 2012-Ohio-1275.

       {¶17} A party purchasing a property with knowledge of zoning restrictions cannot

claim unnecessary hardship caused by those restrictions for the purposes of obtaining a

use variance. Kisil, 12 Ohio St.3d at 33, 465 N.E.2d 848, citing Consolidated Mgt., Inc.

v. Cleveland, 6 Ohio St.3d 238, 452 N.E.2d 1287 (1983), paragraph one of the syllabus

(“the requirement of an unnecessary hardship suffered by a landowner seeking a variance

could not be met when the landowner purchased the property with knowledge of the

zoning restrictions”); Norris v. Chester Twp. Bd. of Trustees, 11th Dist. Geauga No.

90-G-1585, 1991 Ohio App. LEXIS 3885 (Aug. 16, 1991) (noting that Kisil can be “read

as denying a use variance whenever a party acquires property with knowledge of the

zoning restrictions”).

       {¶18} This court has also held that where a purchaser of property acquires the

premises with knowledge of the zoning restrictions, he has created his own hardship and

generally cannot thereafter apply for a zoning variance based on such hardship. Nigro v.

Parma, 8th Dist. Cuyahoga No. 82594, 2003-Ohio-6637, citing Consolidated Mgt., Inc.

       {¶19} Here, when Owner testified before the City, he indicated that he knew the

property was zoned residential when he made the purchase. In fact, the record indicates

that the property was being used as a residence at the time of the purchase. The record

also indicates that Owner presented no evidence that he has attempted to use the property

as a residence since the purchase. Pivotally, Owner testified that he bought the property
based on its “awesome location” and bought it with the intentions of having it rezoned

retail and commercial.

       {¶20} Consequently, based on the established case law discussed above, Owner

cannot now claim that the residential zoning that the property was purchased with created

the unnecessary hardship that would warrant the City granting a use variance.       Owner

created his own hardship and is not entitled to a use variance to relieve such a condition.

See Consolidated Mgt., Inc. at 242, Kisil at 33.

       {¶21} Nonetheless, Owner argues that purchase of a property with notice of zoning

regulations does not automatically bar him from challenging the regulation. In support

of this argument, Owner cites, among others, Craig v. Babcock, 11th Dist. Portage No.

90-P-2248, 1991 Ohio App. LEXIS 3653 (Aug. 2, 1991).

       {¶22} However, in Craig, although the court reasoned that a purchase with

knowledge of zoning restrictions does not in all circumstances dictate denial of a use

variance, the court specifically stated that the self-imposed hardship rule militates only

against those who acquire property intending to use the land for a prohibited purpose,

speculating that the use variance would be available or might be obtained through

affirmative efforts. Id.

       {¶23} Owner’s action falls squarely into the behavior that the self-imposed

hardship rule works against. As previously noted, Owner testified that he bought the

property with knowledge of the residential zoning, but with intentions of obtaining a
variance. This is exactly the scenario the court in Craig concluded would exclude an

owner from obtaining a use variance on the basis of unnecessary hardship.

Consequently, Craig does not provide the support the Owner advances.

       {¶24} Based on the foregoing, we cannot find, as a matter of law, that the trial

court’s judgment affirming the decision of the City, due to the self-imposed nature of the

asserted unnecessary hardship, is not supported by a preponderance of reliable, probative,

and substantial evidence.    Accordingly, we overrule the first assigned error.

                         Constitutionality of Zoning Regulation

       {¶25} In the second assigned error, Owner argues that the trial court erred by

ruling that the continued application of the residential zoning is constitutional.

       {¶26} A party challenging the constitutionality of a zoning ordinance can do so in

two different ways. First, there can be a facial challenge to a zoning law. This means

that the party challenges the ordinance on the basis that it lacks any rational relationship

to a legitimate governmental purpose and therefore the law cannot be applied under any

circumstances. State ex rel., Bray v. Russell, 89 Ohio St.3d 132, 137, 2000-Ohio-116,

2000-Ohio-117, 2000-Ohio-119, 729 N.E.2d 359. Second, a party may challenge the law

as being unconstitutional “as applied.” This means that an otherwise valid law is rendered

invalid when enforced against the party making the challenge. Yajnik v. Akron Dept. of

Health, Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d 632.

       {¶27} In the instant case, Owner challenges the continued residential zoning
classification as being unconstitutional as applied to his property.      In Jaylin Invests.,

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

Supreme Court set forth the applicable law for “as applied” zoning challenges of the kind

involved here. The issue centers on the exercise of legislative power to enact laws that

bear a substantial relation to the public health, safety, morals, or general welfare of the

community. Id. at 13. The Ohio Supreme Court went on to set forth the applicable

standard:

       In a constitutional analysis, the object of scrutiny is the legislative action.
       The zoning ordinance is the focal point of the analysis, not the property
       owner’s proposed use, and the analysis begins with a presumption that the
       ordinance is constitutional. The analysis focuses on the legislative judgment
       underlying the enactment, as it is applied to the particular property, not the
       municipality’s failure to approve what the owner suggests may be a better
       use of the property. If application of the zoning ordinance prevents an
       owner from using the property in a particular way, the proposed use is
       relevant but only as one factor to be considered in analyzing the zoning
       ordinance’s application to the particular property at issue. Id. at 18.

       {¶28} Section 1127.09 of the Parma Codified Ordinances, outlining the reasons for

granting a use variance, states in pertinent part as follows: “(c) Where granting a variance

will not be materially detrimental to the public welfare or injurious to the property or

improvements in the neighborhood in which the property is located. * * *.”

       {¶29} As previously noted, Owner applied for a use variance to have the subject

property rezoned for retail or commercial use.         However, Owner never gave any

indication of what retail or commercial use was contemplated. At the hearing, several

residents of homes on the street located directly behind the subject property, as well as a
representative of the adjacent Stearns Homestead, expressed concerns about flooding.

The record indicates that a creek divides the subject property and the street directly

behind.    The residents opined that, depending on the kind of retail or commercial

endeavor, there could be significant water run-off leading to flooding of the creek and

their homes.

       {¶30} We conclude that the potential for flooding could harm the adjacent

properties and was a valid concern that the City had to consider in deciding whether to

grant the requested variance.    Thus, the zoning law at issue bears a “substantial” relation

to the public health, safety, morals, or general welfare, and compels our affirmance of the

trial court’s finding that the city’s zoning classification is constitutional as applied to the

subject property. Accordingly, we overrule the second assigned error.

                                Fair and Impartial Hearing

       {¶31} In the third assigned error, Owner argues that the trial court erred in finding

that he was afforded a constitutionally sufficient fair and impartial hearing on its variance

request.

       {¶32} R.C. 2506.03 provides that the trial court, in hearing the appeal from the

administrative agency, shall be confined to the transcript filed pursuant to R.C. 2506.02,

unless it appears that the appellant was not permitted by the agency to cross-examine

witnesses purporting to refute his position, arguments, and contentions, or the testimony

adduced before the administrative agency was not given under oath. R.C.
2506.03(A)(2)(c) and 2506.03(A)(3).

      {¶33} In the instant case, Owner argues he was deprived a fair and impartial

hearing because certain city council members refused to recuse themselves, publicly

stated their opinions against the variance prior to the meeting, and failed to swear in all

witnesses.

      {¶34} As discussed above, because of Owner’s self-imposed hardship, the denial

of the requested use variance was proper.        We also concluded that the continued

residential zoning of the subject property was constitutional.      In addition, we have

combed through the record provided, thoroughly reviewed the transcript of the hearing,

and can find no evidence to support Owner’s assertions. Much to the contrary, the

record reveals that Owner was given sufficient opportunity to present all arguments in

support of the requested variance.

      {¶35} Further, we note that when the BZA vote was split 2-2, a member who had

voted against the variance, changed his vote to “yes” to provide Owner the opportunity to

present the matter to the city council. Consequently, we find no merit in Owner’s

argument.

      {¶36} Nonetheless, Owner alleges that at the special planning meeting convened to

discuss whether to grant the use variance, certain city council members acted in the dual

capacity of judge and litigant. In support of his allegation, Owner argues that Council

Member Galinas’s response following the testimony of expert planner, David Hart,
amounted to prohibited testifying. Hart, while testifying in support of granting a use

variance, opined about the unique nature of the subject property.      In response, council

member Galinas stated:

      And just for the record, in my experience in 20 years of selling real estate,
      20 plus years, every particular house that I’ve ever sold is unique. So
      unique is a relative to me and you and every house in America. They’re all
      unique because every parcel is unique and every home is unique. So that
      word unique, it doesn’t mean anything to me in this particular situation. * *
      *.

      {¶37} We conclude that this response was simply commentary, and not testimony;

consequently, it does not impact on the outcome of this case. Owner’s argument is not

well taken. Accordingly, we overrule the third assigned error.

      {¶38} Judgment 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.




PATRICIA ANN BLACKMON, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
