COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60883 FRANK G. CULKAR : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : VILLAGE OF BROOKLYN HEIGHTS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 2, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. 162475. JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Anthony Coyne, Esq. 2150 Illuminating Building Cleveland, OH 44113-1994 For Defendant-Appellant: Mary G. Balazs, Esq. Johnson, Balazs & Angelo 3600 Terminal Tower Cleveland, OH 44113 -2- DAVID T. MATIA, C.J.: Defendant-appellant appeals the judgment of the Cuyahoga County Court of Common Pleas which reversed the decision of the Zoning Board of Appeals for the Village of Brooklyn Heights. Appellant finds error with the trial court's decision to grant plaintiff-appellee several variances. On review, based on the reasons adduced below, we reverse the judgment of the trial court. STATEMENT OF THE FACTS Plaintiff-appellee, Frank G. Culkar, is owner of a certain tract of land in the Village of Brooklyn Heights. The property is approximately three acres, almost all of which is hillside except for an irregularly shaped area of approximately one-half acres. Appellee Culkar proposed to construct a mini-storage facility consisting of four buildings on this property. The proposed mini-storage facility is a permitted use in a limited industrial district for which the property is zoned. Appellee Culkar applied to the Village for five variances to construct his proposed project. Appellee needed these variances of five separate zoning code sections to build the storage facility. STATEMENT OF THE CASE A. THE CASE BEFORE THE ZONING BOARD OF APPEALS Plaintiff-appellee land owner Frank G. Culkar, first applied to the Board of Zoning Appeals on June 26, 1986. Appellee's matter was continued to the next meeting of the Board which met on July 10, 1986. That Board also continued the matter to July 24, 1986. On July 24, 1986, an extensive hearing was -3- conducted by the Zoning Board of Appeals. Appellee Culkar appeared with counsel and presented his position. Several witnesses, including neighbors of the Culkar property, the Building Commissioner and council members presented their concerns. After all the evidence was presented, the Board voted to grant the variance with stipulations. On August 5, 1986, the Zoning Board's decision then went to Village Council for approval. The Council voted at that meeting to disapprove the Zoning Board's decision. On October 28, 1986, appellee Culkar again approached the Zoning Board of Appeals requesting a variance of Section 152.83 (30 foot setback requirement) in regards to the same parcel of land. At the October 28, 1986 meeting, the Board heard testimony in regards to traffic concerns and the safety aspects of the proposed mini-storage facility. The Board secretary quoted Section 152.154 of the Village's Ordinances. This section outlined the general standards for granting variances. Based on this section of the Code, the concerns of the residents and the diverse safety factors, appellee Culkar's request for variance was this time denied by the Board of Zoning Appeals. On November 2, 1988, another public hearing was held by the Zoning Board of Appeals to consider appellee Culkar's application for variance of Section 152.64 (30 foot setback requirement). It was noted at this meeting that appellee's request also pertained to several other infractions of the Zoning Code. Also of concern to the Board was whether or not the granting of the variance -4- would be detrimental to the public health, safety, morale and general welfare of the Village and the property in appellee's neighborhood. The adjoining neighbors gave testimony regarding their concern about the traffic and the impact on the valuation of their property if appellee's proposed mini-storage facility was constructed. The Board of Zoning Appeals, after hearing all the evidence, once again denied appellee Culkar's request for a side-yard variance. On December 6, 1988, the Village Council did not approve or disapprove the Zoning Board's November 2, 1988 denial of appellee Culkar's request. Thus, on December 27, 1988, appellee timely appealed the Zoning Board's decision to the Cuyahoga County Court of Common Pleas, seeking de novo review of the Zoning Board's decision. B. THE CASE IN COMMON PLEAS COURT After filing the case in common pleas court, appellee Culkar motioned the trial court for leave to present evidence and for leave to file assignments of error and brief after the trial. Appellee wanted to present constitutional issues for the court's consideration. The court granted that motion. The issue before the court then became whether the zoning ordinances of the Village of Brooklyn Heights were unconstitutionally enforced in prohibiting the construction of a mini-storage facility upon the property of appellee-Culkar. -5- Considering that issue, on November 2, 1990, the trial court reversed the decision of the Board of Zoning Appeals, holding that the Village Ordinances were unconstitutionally applied to appellee Culkar. The court also ruled that appellee Culkar encountered practical difficulties because of the literal enforcement of the village ordinances. The trial court remanded the cause back to the Board ordering the Board to grant the variances and to direct the building official to issue a building permit to appellant. It is from this judgment, appellant Village now timely appeals. ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED IN FINDING THE DECISION OF THE ZONING BOARD OF APPEALS UNCONSTITUTIONALLY DEPRIVED THE PLAINTIFF OF HIS USE OF THE PROPERTY. Appellant argues in its first assignment of error that the trial court erred in its decision. Specifically appellant argues that the decision of the Zoning Board of Appeals did not unconstitutionally deprive appellee of his use of the property. This assignment of error is well taken. ISSUE: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING THE ZONING BOARD DECISION TO BE ARBITRARY, UNREASONABLE AND UNCONSTITUTIONAL The trial court determined that appellee-Culkar's application for a variance should have been granted by the Village of Brooklyn Heights because appellee-Culkar was able to -6- demonstrate practical difficulties arising from the literal enforcement of the village ordinances. Thus, the trial court found that the Zoning Board's decision to enforce the ordinances as they applied to Culkar was arbitrary, unreasonable and therefore unconstitutional. Zoning ordinances, as part of the local police power, have long been upheld and declared constitutional. Euclid v. Ambler Realty Co. (1926), 272 U.S. 365. In an appeal pursuant to R.C. Chapter 2506, which challenges the constitutionality of a zoning ordinance as applied, the issue for determination is whether the ordinance, in proscribing a landowner's proposed use of his land, has any reasonable relationship to the legitimate exercise of police power by the municipality. Superior Uptown v. Cleveland (1974), 39 Ohio St. 2d 36; Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St. 2d 23. In order to attack a zoning ordinance on constitutional grounds, a two part analysis is necessary. First, the party attacking the zoning ordinance must demonstrate beyond fair debate that the zoning classification denies them the economically viable use of their land, and secondly, they must show the zoning ordinance does not substantially advance a legitimate interest in the health, safety or welfare of the community. Columbia Oldsmobile, Inc. v. Montgomery (1990), 56 Ohio St. 60. The common pleas court when reviewing zoning board decisions is governed by R.C. 2506.04 which provides as follows: -7- The court may find that the order, adjudication, or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record *** The court of appeals when reviewing the common pleas court's decision under R.C. 2506.04 determines whether the common pleas court abused its discretion. Kisil v. Sandusky (1984), 12 Ohio St. 3d 30, 34. Thus, the issue here is whether the common pleas court abused its discretion when it reviewed the evidence presented and applied the R.C. 2506.04 standard reversing the Village of Brooklyn Heights Zoning Board. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219. Applying the two part test from Columbia Oldsmobile, supra, to the within evidence and record, we find it certain that the trial court abused its discretion when it reviewed the evidence presented and applied the R.C. 2506.04 standard reversing the Zoning Board's decision. In Ketchel v. Bainbridge Township (1990), 52 Ohio St. 3d 239, the Supreme Court stated: A reviewing court must be very reluctant to substitute its judgment for that of the body responsible for applying the zoning ordinances. The determination of the question of whether regulations prescribed by a zoning ordinance -8- have a real or substantial relation to the public health, safety, morals or general welfare if committed in the first instance to the judgment and discretion of the legislative body. Where such a judgment deals with control of traffic, volume of traffic, burden of traffic, effect upon valuation of property, municipal revenue to be produced to the City, expense of the improvement, land use consistent with the general welfare and development of the community as a whole or, in short, where the judgment is concerned with what has been official or detrimental to good community planning, it is in the first instance a legislative and not a judicial matter. The legislative, not the judicial, authority is charged with the duty of determining the wisdom of zoning regulations and the judicial judgment is not to be substituted for the legislative judgment in any case in which the issue or matter is fairly debatable. Citing Willott v. Beachwood, 175 Ohio St. 557 (1964). Accordingly, in Ketchel the court upheld the Township's decision that the use of property may be restricted to certain uses and that a three acre lot size advances a legitimate interest in the health, safety, and welfare of the community. On review in the case sub judice, the evidence suggests that the trial court did not properly consider the evidence that was before the Zoning Board. The evidence indicated that the Zoning Board and the Village Council had on three occasions reviewed appellee Culkar's application for a variance in regards to his mini-storage proposal. On the initial review, the Zoning Board granted the variance request with stipulations. The Village Council, however, did not affirm the Zoning Board decision. On the second and third reviews, the Zoning Board likewise declined -9- the application for several variances needed to proceed with the mini-storage project. The minutes of the November 2, 1988 Zoning Board meeting reads that the Chairman stated that the "ZBA could give relief to landlocked situations as long as it is done within the general standards for granting a variance. He added that this time is the third time at bat for this piece of property and each time it gets hung up on health and safety." At the end of the discussion on the issue, the members of the Board voted to deny the request for the variances "*** because the granting of the variances would be detrimental to the public health, safety, moral and general welfare of the village and injurious to the property in the neighborhood." That was the final decision on the application from the Zoning Board. The Village Council declined to affirm or reverse the Zoning Board's decision. On review, we find the Zoning Board decision based on the health, safety and general welfare concerns was a valid decision pursuant to the evidence presented to the Board by way of testimony and pursuant to Section 152.154 of the Codified Ordinances of the Village of Brooklyn Heights which outlines the general standards for granting variances: In granting variances the Board of Appeals shall keep in mind: (1) That the granting of the variance will not be contrary to the general purpose, intent or objective of this chapter. -10- (2) That the granting of the variance will not be detrimental to the public health, safety, moral and general welfare of the Village or injurious to the property in the neighborhood in which the variance is requested. (3) That the reasons for requesting the variance more than outweigh the reasons for holding to the strict letter of this ordinance. (4) The manner in which a variance will affect the future property owners. The Zoning Board had before it evidence that the neighborhood residents were opposed to the mini-storage units and were concerned with the traffic hazard. Letters from the Mayor of the Village and from Patrolman Wcislo were read into the minutes indicating the volume of traffic in the area. Based on the traffic count, the Board considered the potential hazard factor of the proposed variance request. Appellee commented that he had chosen the mini-storage facility because of the low traffic volume it would create. Appellee Culkar, however, stated that he had not considered any other type of building for the property other than the mini-storage facility. We find, therefore, that in applying the two-part analysis required by Columbia Oldsmobile to the within evidence and facts, appellee Culkar fails to overcome his burden of proof as to either prong of the test. First, appellee Culkar did not demonstrate beyond fair debate that the zoning ordinance denied -11- him the economically viable use of his land; and secondly, appellee failed to show the ordinance does not substantially advance a legitimate interest in the health, safety or welfare of the community. Columbia Oldsmobile, Inc., supra. We note that although the trial court reversed the Zoning Board's decision and reasoned that appellee Culkar faced practical difficulties arising from the literal enforcement of the ordinances, in response to appellee Culkar's petition for a writ of mandamus, the court granted a partial writ of mandamus instructing the Zoning Board of Appeals to state its reasoning in refusing to issue building permits for three of the mini-storage facilities. The trial court stated in that order that a mandamus would lie only if the Board could not justify its decision. We reason that since there is no order in the record for a full writ of mandamus, the trial court found the Village's justification for denying the building permits reasonable. The Village's motion in opposition to petition for mandamus indicated that the building permits were being held up by the Village Engineer because of dangerous ingress and egress to the property and because of the lack of the OBBC yard requirements. Thus, we find that the trial court itself, in denying a full writ of mandamus order, buttresses our finding that the Zoning Board had a legitimate interest in the safety and general welfare of the community in denying appellee Culkar's petition for variances. Accordingly, we find that the common pleas judgment that the Zoning Board's decision was arbitrary, capricious, unreasonable -12- and not supported by the preponderance of substantial, reliable and probative evidence on the whole record is without merit. We therefore hold that the common pleas court abused its discretion when it reviewed the evidence presented by the Village of Brooklyn Heights and the Board of Zoning Appeals. Kisil v. Sandusky, supra; Ketchel v. Bainbridge Township, supra. Accordingly, Assignment of Error I is well taken. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED IN FINDING THE PLAINTIFF DEMONSTRATED PRACTICAL DIFFICULTIES ARISING FROM THE LITERAL ENFORCEMENT OF THE ZONING ORDINANCES. Appellant in its second assignment of error argues that the trial court erred in finding that appellee demonstrated practical difficulties. Specifically, appellant argues that the appellee did not bear his burden of proof in regards to a finding of practical difficulties in his application for an area variance. This assignment of error is well taken. ISSUE: WHETHER APPELLEE CULKAR DEMONSTRATED PRACTICAL DIFFICULTIES Assignment of Error II charges that the trial court erred in finding the appellee demonstrated practical difficulties arising from the literal enforcement of the zoning ordinances. For the following reasons, we agree. The trial court improperly relied on Superior Uptown v. Cleveland (1974), 39 Ohio St. 2d 36, in reaching its judgment. Superior Uptown involved a municipality's zoning change. In -13- Superior Uptown, the state court affirmed the lower court which held that a rezoning ordinance was unconstitutional as it applied to the appellee in that situation. The pertinent rule, however, in Uptown holds that although a municipality may be justified in prohibiting certain uses on a specific parcel of realty, it may not do so by totally restricting the use of the property. The court in Superior Uptown opined on that issue: *** This court recently held in the syllabus of Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St. 2d 23, 309 N.E. 2d 900: "In an appeal, pursuant to R.C. Chapter 2506, which challenges the constitutionality of a zoning ordinance as applied, the issue for determination is whether the ordinance, in proscribing a landowner's proposed use of his land, has any reasonable relationship to the legitimate exercise of police power by the municipality." Superior Uptown, supra, at 39. We find that the trial court improperly relied on Superior Uptown for two reasons. The first reason follows from an interpretation of the rule in Superior. The trial court found that appellee Culkar had shown practical difficulties resulting from the literal enforcement of the zoning ordinance. To show practical difficulties, however, appellee had to show that he had been unreasonably deprived of a permitted use of his property. Duncan v. Village of Middlefield (1986), 23 Ohio St. 3d 83. The record and the evidence shows otherwise. As noted supra, at the October 28, 1986 meeting, the Chairman of the Zoning Board asked appellee Culkar if he had -14- investigated other possible permitted uses for the parcel of land, and appellee Culkar answered in the negative. At the November 2, 1988 meeting, appellee Culkar stated that he could possibly build a factory on the property but he thought that would generate more traffic. Presumptively, the record then indicates that appellee was not prohibited from using his property for some other permitted economic use, rather the record indicates that appellee preferred the requested use of his property. This of itself, however, does not rise to a practical difficulty. The state court in Duncan v. Village of Middlefield, supra, construed the meaning of "practical difficulties" and enunciated the factors to be considered in granting an area variance. While existing definitions of "practical difficulties" are often nebulous, it can safely be said that 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 practical difficulties standard differs from the unnecessary hardship standard normally applied in use variance cases, because no single factor controls in a determination of practical difficulties. A property owner is not denied the opportunity to establish practical difficulties, for example, simply because he purchased the property with knowledge of the zoning restrictions. Kisil, supra, at 33; cf. Consolidated Mgmt., Inc. v. Cleveland (1983), 6 Ohio St. 3d 238. The factors to be considered and weighed in determining whether a property owner seeking an area variance has encountered -15- 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. Duncan, supra, at 86. In Duncan, the property owners sought a variance for the construction of multi-family dwellings behind an existing duplex. The Duncan's lot was located in a district zoned for multi- family dwellings, but the lot was approximately twelve feet short of the frontage requirement for construction of such dwellings. As in our case, the Duncans thus sought an "area" rather than a "use" variance. In Kisil v. Sandusky, supra, the state court held in the syllabus: The standard for granting a variance which relates solely to area requirements should be a lesser standard than that applied to variances which relate to use. An application for an area variance need not establish unnecessary hardship; it is sufficient that the application show practical difficulties. -16- In adopting the lesser, practical difficulties standard for area variances, we relied, in part, upon the analysis of the New York Court of Appeals in Matter of Hoffman v. Harris (1966), 17 N.Y. 2d 138, 269 N.Y. Supp. 2d 119, 216 N.E. 2d 326. In Harris, the court effectively determined that in reviewing an application for an area variance, where "neighborhood considerations are not as strong as in a use variance," Id. at 144, the "spirit" rather than the "strict letter" of the zoning ordinance should be observed so that "substantial justice [is] done," id. at 147. In observing the spirit of an ordinance and attempting to do substantial justice, a zoning board of appeals or a reviewing court necessarily must weigh the competing interests of the property owner and the community. When an area variance is sought, therefore, the property owner is required to show that the application of an area zoning requirement to his property is inequitable. Duncan, supra, at 86. In Duncan, the state court did not find that the Duncans had demonstrated practical difficulties and we likewise in the within case do not find that appellee Culkar has demonstrated practical difficulties in regards to the application of the zoning ordinances or that the zoning requirement as applied to his property is inequitable. Upon consideration of the relevant factors for a practical difficulties determination, as enumerated above, surely, appellee Culkar did not encounter the practical difficulties necessary to warrant the approval of a variance. First, appellee Culkar himself stated that he had not investigated other permitted uses for his property. He also stated that he could possibly build a factory on the irregularly shaped parcel. The record indicates -17- that appellee Culkar presented no evidence to substantiate his allegations that the Board prevented economically viable use of the property by denying his application for variance. Second, whether or not the requested variance would be considered "substantial", the neighbors, officers from the Board of Building Standards, traffic experts and council members presented the court with credible evidence that the community would be altered and adjoining properties would suffer as a result of the variance. The record indicates, too, that appellee Culkar had a list of permitted uses from which to choose. Evidence from the trial proceeding indicated this: Q. Okay. This is the code for the Village of Brooklyn Heights. Could you read through there and tell me what some of the permitted uses are, starting on the next page? A. Make aircraft parts, police report vehicles, testing, inspection, laboratories, making of building materials, radio, TV broadcasting stations, more and more. Obviously you want me to get to your client's use. Q. No, I'm telling you those are all permitted uses here, are they not? A. That's correct. MR. HOLTZ: Limited industrial. (Tr. p. 98.) Therefore, appellee Culkar's predicament feasibly could be obviated through some method other than a variance. -18- Based on the foregoing, we find that appellee Culkar failed to demonstrate practical difficulties in the application of the zoning restrictions as applied to his irregularly shaped property. The "spirit" of the zoning ordinances in question is to permit limited industrial use in that area but to do so within the proscriptions of valid zoning regulations. In determining whether to grant the variances or not, the Zoning Board had to weigh the competing interests of the property owner and the community. A Zoning Board's authorization (or denial in this case) is presumed to be valid absent evidence that the Board's decision was unconstitutional, illegal, arbitrary, capricious, unreasonable or unsupported by the preponderance of substantial, reliable and probative evidence. Consolidated Management, Inc. v. City of Cleveland (1983), 6 Ohio St. 3d 238; McDonald's Corporation v. Village of Woodmere (1991), Cuyahoga App. No. 59567, unreported. Herein, we hold that the Zoning Board had before it, credible, competent, substantial and probative evidence that "granting of the variances would be detrimental to the public health, safety, moral and general welfare of the village and injurious to the property in the neighborhood." Therefore, the Zoning Board's decision that the community interests of safety and general welfare outweighed the economic interest of appellee Culkar was a valid determination rendered within the proscriptions of the zoning ordinances and will be upheld. Hence, the trial court's determination that appellee Culkar demonstrated practical difficulties resulting -19- from the application of the zoning restrictions to his property is without merit. Accordingly, Assignment of Error II is not well taken. A review of the evidence and the record supports a finding that the Zoning Board justifiably denied appellee's proposed variance request pursuant to the Village's legitimate exercise of its police power. Superior Uptown, supra; Kisil v. Sandusky, supra; Ketchel v. Bainbridge Township, supra. A reviewing court should be very reluctant to substitute its judgment for that of the Zoning Board. Ketchel v. Bainbridge, supra. Accordingly, the decision of the Zoning Board of Appeals is upheld and the judgment of the trial court is reversed. -20- This cause is reversed for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee its costs herein. 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. Exceptions. JOHN F. CORRIGAN, J. and JAMES D. SWEENEY, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .