[Cite as Simpson v. Cleveland,
2019-Ohio-5334.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JACQUELINE SIMPSON, ET AL., :
Plaintiffs, :
Nos. 107820 and
v. : 108447
CITY OF CLEVELAND BOARD OF :
ZONING APPEALS, ET AL.,
:
Defendants-Appellees.
:
[Appeal by Jeanne Carney-Hagan
:
Plaintiff-Appellant.]
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 26, 2019
Administrative Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-893247
Appearances:
Nee Law Firm, L.L.C., Matthew M. Nee, and Leigh S.
Prugh, for appellant.
Barbara A. Henry, Director of Law, and Carolyn M.
Downey, Assistant Director of Law, for appellee City of
Cleveland.
Mansour Gavin, L.P.A., John W. Monroe, Tracey S.
McGurk, and Kathryn E. Webber, for appellee Dieter
Sumerauer.
ANITA LASTER MAYS, J.:
Defendant-appellant Jeanne Carney-Hagan (“Carney-Hagan”)
appeals the trial court’s decision to affirm the Cleveland Board of Zoning Appeals’
(“the BZA”) decision to grant a variance to their neighbor, plaintiff-appellee, Dieter
Sumerauer (“Sumerauer”). Pursuant to App.R. 3(B), we have consolidated the two
appeals for the purpose of disposition, as they contain the same facts and issues. We
affirm the trial court’s decision in both appeals.
I. Facts and Procedural History
When Sumerauer purchased his home, it did not include a garage on
the property. Consequently, Sumerauer applied for a zoning variance to permit
construction of a new building on his property that included a 3-car garage with a
second floor study and living suite. The new building would consist of
approximately 2,100 additional square footage. The previous garage1 did not violate
any setback requirements and did not require a variance. However, the proposed
structure required a variance due to its height. The new structure required a setback
of 31 feet. The additional living space pushed the garage within five feet of the
property line.
The BZA held a hearing on Sumerauer’s variance request. Sumerauer
argued that he needed approval for the variance because it was difficult to comply
with the current building code due to the irregular shape of the lot. Sumerauer
1 The prior owner demolished the previous garage.
acknowledged that he could build the garage on the opposite side of the house within
code regulations, but it would block views of the lake on his street.
Several neighbors opposed the variance arguing:
1. The massive addition/suite was not consistent with singlefamily residence zoning because it was the equivalent of a new
dwelling … a second dwelling, on a home that is zoned for
single family;
2. There was no practical difficulty requiring the construction of
such a large, multi-room addition with a substantially larger, 3-
car garage, rather than simply re-building a smaller garage as
originally configured;
3. There was no practical difficulty that required the new addition
to be located on the south side of the house, when Sumerauer
admitted it could be built on the north side without violating
any code restrictions;
4. There was no practical difficulty because current conditions did
not interfere with any beneficial use of the house, which
Sumerauer purchased and has been fully able to live in;
5. Construction of a 2-story addition within 5 feet of the property
line would destroy the privacy in neighbors backyards and
interfere with their enjoyment of their own property;
6. Construction of a 2-story addition within 5 feet of the property
line would block lakeshore views of the neighbors, interfering
with enjoyment and reducing the value of the neighboring
properties;
7. Crowding a 6,000-plus square foot residence into a 15,000
square foot lot would interfere with the character and beauty of
that neighborhood, the large green spaces in the back, that were
not crowding people in there.
Additionally, Sumeraurer’s architectural drawings demonstrated that the
proposed addition would only be five feet away from combustible materials, thus
openly raising the prospect of a fire hazard to adjoining properties.
At the conclusion of the hearing, the BZA granted Sumerauer’s
request for a variance, stating:
[t]he Board finds that the appeal should be granted as there is clearly
a practical difficulty in complying with the code due to the unusual
shape of the property; and refusal of the variance would deprive the
owner of substantial property rights; and granting the appeal will not
be contrary to the purpose and intent of the Zoning Code.
BZA Resolution, Exhibit A to Notice of Appeal to Trial Court.
As a result of the BZA’s decision, several neighbors filed an
administrative appeal in the Cuyahoga County Court of Common Pleas. The trial
court did not conduct a hearing, but rather issued a decision based on the briefs filed
by each party. The trial court affirmed the BZA’s decision citing the factors to be
considered in Duncan v. Middlefield, 23 Ohio St.3d 83,
491 N.E.2d 692 (1986),
under the “practical difficulties” test.
In response, Carney-Hagan filed this appeal assigning two errors for
our review:
I. The trial court abused its discretion by failing to independently
analyze the Duncan factors or explaining its rationale for
supporting the Board of Zoning Appeals’ decision; and
II. The trial court’s judgment was against the manifest weight of
the evidence because the Duncan factors weighed in favor of
denying the variance.
II. Analyzing the Duncan Factors
A. Standard of Review
Accordingly,
[a] party who disagrees with a decision of a court of common pleas in
an R.C. Chapter 2506 administrative appeal may appeal that decision
to the court of appeals but only on “questions of law.” R.C. 2506.04.
For this reason, we have stated that under R.C. 2506.04, an appeal to
the court of appeals is “more limited in scope” than was the appeal to
the court of common pleas. Kisil [v. Sandusky], 12 Ohio St.3d 34,
465
N.E.2d 848; see id. at ¶ 34, fn. 4. While the court of common pleas is
required to examine the evidence, the court of appeals may not weigh
the evidence. Independence [v. Office of the Cuyahoga Cty.
Executive], 142 Ohio St.3d 125,
2014-Ohio-4650,
28 N.E.3d 1182, at
¶ 14. Apart from deciding purely legal issues, the court of appeals can
determine whether the court of common pleas abused its discretion,
which in this context means reviewing whether the lower court abused
its discretion in deciding that an administrative order was or was not
supported by reliable, probative, and substantial evidence. Boice v.
Ottawa Hills, 137 Ohio St.3d 412,
2013-Ohio-4769,
999 N.E.2d 649,
¶ 7, citing Kisil at 34.
Shelly Materials, Inc. v. Streetsboro Planning & Zoning Comm., Slip Op.
No.
2019-Ohio-4499, ¶ 17.
B. Whether the Trial Court Conducted an Independent
Analysis of the Evidence Under the Duncan Factors
and Explained Its Rationale for Concluding That There
Was Adequate Evidence to Support the Decision of the
Board of Zoning Appeals.
This court, as permitted by statute, can only review the trial court’s
decision that the BZA’s decision was supported by reliable, probative, and
substantial evidence. The trial court, however, “‘weighs the evidence to determine
whether a preponderance of reliable, probative, and substantial evidence supports
the administrative decision, and if it does, the court may not substitute its judgment
for that of’ the administrative agency.’” Streetsboro Planning & Zoning Comm. at
¶ 13, quoting Independence, 142 Ohio St.3d 125,
2014-Ohio-4650,
28 N.E.3d 1182,
at ¶ 13.Carney-Hagan argues that the trial court did not conduct an independent
analysis of the evidence as it applies to Duncan. The trial court, in its decision, listed
the seven factors from Duncan to be considered in determining whether a property
owner has encountered practical difficulties.
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, 19 Misc.2d 909, 191 N.Y. Supp.2d 621
(1959).
Duncan, 23 Ohio St.3d at 86,
491 N.E.2d 692.
The trial courted quoted Duncan, stating, “[n]o single factor controls;
rather a variance may be granted even if some factors weigh in favor of a landowner,
or are inconclusive.” The trial court then reviewed the evidence presented by both
parties and the testimony given at the BZA’s hearing on the variance.
Although the trial court did not conduct a line by line analysis of the
Duncan factors, it did consider the arguments of both parties in light of the factors
listed in Duncan. In its decision, the trial court noted some of the practical
difficulties Sumerauer encountered stating, “[a]t the hearing, substantial evidence
was presented of the difficulty in strictly complying with regulation given the lot’s
narrow depth from the street and the efforts made by the architect to minimize
impact of the proposed structure on the neighbors while attempting to enhance the
general neighborhood.” The trial court also noted that “relocation of the project
would not be functional to the existing house.” In addition, the trial court stated
that the neighbors “did not provide evidence at the hearing that the variance
impacted anything other than a potential obstruction of a view.” This further
demonstrates that the trial court conducted a meaningful review of the evidence.
The trial court also explained its rationale for concluding that there
was adequate evidence to support BZA’s decision, stating, “[t]he BZA found that
Appellee showed (1) practical difficulty in conforming to the regulations; (2) that he
was being deprived of substantial property rights if required to strictly conform to
regulations; and (3) the variance was not contrary to intent of the City of Cleveland’s
Zoning Code, under Section 329.03(b).” Additionally, the trial court noted that the
evidence presented by the neighbors “is not properly considered because none of the
exceptions above apply to the proffered evidence.”
The trial court also considered the local councilman’s testimony who
stated:
This is an unusual shaped lot and I can sympathize with the concerns
of losing views. I just lost the only lake view I had to Battery Park.
They build the next phase and from my back window on the second
floor we had a magnificent view. I lost that, but I understand that and
supported the Variance request to build those townhomes. Views
aren’t always guaranteed and in order for this parcel and this house to
function well, we have to design homes and support projects that not
only short term benefits but benefit that structure 40, 50, 100, 75
years down the road. So, far all the reasons for the process to move
forward, the support of the Nearwest Design Review, our Planning
Department engaging the Edgewater Homeowners’ Association, I’m
here to support the Variance request as well.
(Tr. 52-53.).
Given the extensive rationale the trial court provided in its opinion,
we find that the trial court did not abuse its discretion by failing to independently
analyze the Duncan factors or explaining its rationale for supporting the Board of
Zoning Appeals’ decision. Duncan, 23 Ohio St.3d 83,
491 N.E.2d 692.
Based on existing law, Carney-Hagan’s first assignment of error is
overruled.
III. Manifest Weight of the Evidence
A. Standard of Review
As previously stated,
[w]hile the court of common pleas is required to examine the
evidence, the court of appeals may not weigh the evidence.
Independence, 142 Ohio St.3d 125,
2014-Ohio-4650,
28 N.E.3d 1182,
at ¶ 14. Apart from deciding purely legal issues, the court of appeals
can determine whether the court of common pleas abused its
discretion, which in this context means reviewing whether the lower
court abused its discretion in deciding that an administrative order
was or was not supported by reliable, probative, and substantial
evidence. Boice …, 137 Ohio St.3d 412,
2013-Ohio-4769,
999
N.E.2d 649, citing Kisil[,
12 Ohio St.3d at 34,
465 N.E.2d 848], at 34.
Streetsboro Planning & Zoning Comm.,
2019-Ohio-4499, at ¶ 17.
We are unable to review whether the trial court’s judgment was
against the manifest weight of the 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.)
Kisil at 34. “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,
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., 40 Ohio St.3d
257, 261,
533 N.E.2d 264, 267 (1988).
Henley v. Youngstown Bd. of Zoning Appeals,
90 Ohio St.3d 142, 147, 2000-
Ohio-493, 735 N.E.2d 433.
Also,
[i]n reviewing this type of decision under R.C. 2506.04, an appellate
court cannot engage in any reweighing of the evidence; instead, the
scope of our consideration is limited to determining if the trial court
abused its discretion. Miller v. Willowick, 11th Dist. No. 2006-L-148,
2007-Ohio-465, ¶ 23. Under the precedent of this court, the term
“abuse of discretion” is one of art, connoting judgment exercised by a
court which does not comport with reason or the record. Caudill v.
Thomas, 11th Dist. No. 2009-P-0087, 2011-Ohio-524, at ¶ 17, citing
Gaul v. Gaul, 11th Dist. No. 2009-A-0011, 2010-Ohio-2156, at ¶ 24.
Salotto v. Wickliffe Bd. of Zoning Appeals,
193 Ohio App.3d 525,
2011-Ohio-1715,
952 N.E.2d 1174, ¶ 30 (11th Dist.).
Therefore, Carney-Hagan’s second assignment of error is overruled.
Judgment is affirmed.
It is ordered that the appellees recover from 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.
_________________________________
ANITA LASTER MAYS, JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
