COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61008 GUY D. SCAFARIA, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF FAIRVIEW PARK, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: November 12, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 178742 JUDGMENT: Reversed and Remanded DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: LUCIAN C. REGO, ESQ. THOMAS F. O'MALLEY, ESQ. 21270 Lorain Road 75 Public Square, Suite 1320 P.O. Box 26259 Cleveland, Ohio 44113 Fairview Park, Ohio 44126 PATRICK F. ROUCHE, ESQ. Law Director The Superior Building 815 Superior Ave., #2121 Cleveland, Ohio 44114 - 2 - DYKE, J.: Appellants, Guy D. Scafaria and Sandra Scafaria, applied to appellees, the City of Fairview Park and its Board of Building and Zoning Appeals, for a variance. After a hearing before the Board the variance was denied. Appellants appealed to the court of common pleas and moved to have the court allow additional evidence. The motion was granted and appellants submitted a number of documents. Without holding an oral hearing or acting upon a pretrial dispositive motion the court of common pleas affirmed the denial of the variance and appellants appealed to this court. Appellants had properly raised a constitutional claim but that claim was also resolved without a hearing. Since we conclude that the trial court erred in failing to hold an evidentiary hearing on the appeal and to try the constitutional claim de novo we do not reach the question of whether or not the denial of the variance was proper. I THE COMMON PLEAS COURT ERRED IN NOT CONDUCTING A HEARING WITH RESPECT TO NEWLY SUBMITTED EVIDENCE PURSUANT TO REVISED CODE SECTION 2506.03(A). R.C. 2506.03(A) states as follows: (A) The hearing of such appeal shall proceed as in the trial of a civil action, but the court shall be confined to the transcript as filed pursuant to section 2506.02 of the Revised Code 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 - 3 - admitted or proffered by the appellant; (2) The appellant was not per- mitted to appear and be heard in person, or by his attorney, in opposition to the final order, adjudication, or decision appealed from, and to do any of the following: (a) Present his position, arguments, and contentions; (b) Offer and examine witnesses and present evidence in support; (c) Cross-examine witnesses purporting to refute his position, arguments, and contentions; (d) Offer evidence to refute evidence and testimony offered in opposition to his position, argu- ments, and contentions; (e) Proffer any such evidence into the record, if the admission of it is denied by the officer or body appealed from. (3) The testimony adduced was not given under oath; (4) The appellant was unable to present evidence by reason of a lack of the power of subpoena by the officer or body appealed from or the refusal, after request, of such officer or body to afford the appellant opportunity to use the power of subpoena when possessed by the officer or body; (5) The officer or body failed to file with the transcript, conclu-sions of fact supporting the final order, adjudication, or decision appealed from; - 4 - If any circumstances described in divisions (A)(1) to (5) of this section applies, the court shall hear the appeal upon the transcript and such 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 such party. (Emphasis added.) Appellants submitted an affidavit (which asserted several of the grounds in R.C. 2506.03(A)(1) through (5)) and then filed a "motion to allow additional evidence." After the motion was granted appellant filed documents entitled additional evidence. The motion was unnecessary. Once the affidavit was filed and the required circumstances were established an oral hearing should have been scheduled. R.C. 2506.03 states: (A) The hearing ... shall pro- ceed as in the trial of a civil action, but the court shall be confined to the transcript ... unless ... [(A)(1) through (A)(5)] applies .... If any circumstance described in divisions (A)(1) to (5) of this section applies, the court shall hear the appeal upon the tran-script and such 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 testi-mony in opposition to such party. (Emphasis added.) The statute provides that the hearing proceed as in the trial of a civil action except that, unlike in a normal trial of a civil action, an oral hearing at which evidence may be - 5 - presented will only be required if any of the circumstances in R.C. 2506.03(A)(1) through (5) applies. Civil actions cannot be adjudicated on the merits without an oral hearing unless there is a motion for sum-mary judgment (inapplicable here) or other pre- trial disposition. Civil actions are not "submitted" on briefs and filed documents. The R.C. 2506.03 "hearing" is defined in the statute. Although a R.C. 2506.03 appeal is to proceed as in the trial of a civil action the trial court may rule on the transcript alone unless additional evidence is offered. R.C. 2506.03(A). ... The "hearing" in a R.C. 2506.03 appeal need not be oral and is confined to the tran- script, by the wording of the stat-ute, unless an exception applies and additional evidence was submitted. Dvorak v. Municipal Civil Service Comm. (1976), 46 Ohio St.2d 99. Huet v. Bedford Board of Zoning Appeals (April 9, 1992), Cuyahoga App. No. 62259, unreported. "An oral hearing is not required unless one of the deficiencies listed in R.C. 2506.03(A) [through (E)] is apparent ...." Savani v. Cleveland Heights Board of Zoning Appeals (March 24, 1988), Cuyahoga App. No. 53542, unreported. See also Savage Mfg. v. Adams Asphalt (April 12, 1979), Cuyahoga App. No. 38666, unreported. Thus, when any circumstance in R.C. 2506.03(A)(1) through (5) does not apply the trial court may "hear" the case without an "oral hearing" but if one does apply an oral hearing is required and, for example, "at the hearing any party may call, as if on cross-examination, any - 6 - witness who previously gave testimony in opposition to such party." The trial court erred in not holding an oral hearing. Assignment of error No. I is sustained. II THE COMMON PLEAS COURT ERRED IN FAILING TO PROCEED DE NOVO TO HEARING THE CONSTITUTIONAL ISSUES RAISED BY PLAINTIFFS/APPELLANTS. An administrative agency, such as the Board, cannot determine whether or not the ordinance is unconstitutional as applied. Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St.2d 23. The constitu-tional claim shall be tried de novo in the court of common pleas. S.M.C., Inc. v. Laudi ((1975), 44 Ohio App.2d 325. The parties must be given an opportunity to present additional evidence on the constitutional claim. Id.; Felder v. City Planning Comm. of Pepper Pike (April 26, 1979), Cuyahoga App. No. 38663, unreported at 7. "The failure to hold a hearing on the constitutional claim was error." Savani v. Cleveland Heights Board of Zoning Appeals (March 24, 1988), Cuyahoga App. No. 53542, unreported at 4. Unlike the hearing in an appeal of the decision of the Board the hearing on the constitutional claims is not limited to the transcript. The claim is tried as in an original action, see, S.M.C., and an oral hearing is required. The trial court erred in failing to have an oral hearing before ruling on the constitutional claim. Assignment of error No. II is sustained. III - 7 - THE COMMON PLEAS COURT ERRED IN FINDING THAT THE ZONING ORDINANCE WAS CONSTITUTIONAL AS APPLIED TO APPELLANTS' PROPERTY BY THE BOARD OF BUILDING AND ZONING APPEALS, SPECIFICALLY: A THE ZONING CODE AS APPLIED BY THE BOARD TO THE PROPERTY RESULTS IN DENIAL OF EQUAL PROTECTION OF THE LAWS. B THE ZONING CODE AS APPLIED BY THE BOARD TO THIS PROPERTY AMOUNTS TO A TAKING WITHOUT JUST COMPENSATION. IV THE COMMON PLEAS COURT ERRED IN DETERMINING THAT THE DECISION OF THE FAIRVIEW PARK BOARD OF BUILDING AND ZONING APPEALS WAS NOT ARBI- TRARY, CAPRICIOUS AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. a) THE BOARD WRONGLY APPLIED THE HARD- SHIP STANDARD RATHER THAN THE LESS STRINGENT PRACTICAL DIFFICULTIES STANDARD REQUIRED FOR LOCATION VAR- IANCES. b) THE DECISION OF THE BOARD WAS ARBITRARY, UNREASONABLE AND UN- SUPPORTED BY THE PREPONDERANCE OF SUBSTANTIAL, RELIABLE AND PROBATIVE EVIDENCE. c) THE VARIANCE REQUESTED MET ALL STANDARDS FOR ALLOWANCE UNDER THE FAIRVIEW PARK ZONING CODE. In light of the disposition of assignments of error Nos. I and II these assignments of error are moot. See App. R. 12(A)(1)(c). - 8 - The judgment of the trial court is reversed and this cause is remanded to the trial court. This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellees their 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. DAVID T. MATIA, C.J., CONCURS KRUPANSKY, J. DISSENTS (SEE ATTACHED DISSENTION OPINION) JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61008 : GUY D. SCAFARIA, ET AL. : : : DISSENTING Plaintiff-Appellants : : OPINION vs. : : : CITY OF FAIRVIEW PARK, ET AL. : : : Defendant-Appellees : : DATE: KRUPANSKY, J., DISSENTING: I respectfully dissent from the majority's opinion and would affirm the judgment of the common pleas court in its entirety. Appellants complain the common pleas court entered its judgment affirming the decision of the Board without conducting a formal oral evidentiary hearing. However, the record clearly demonstrates appellants were afforded a complete opportunity to litigate this matter. The majority's opinion reversing the judgment of the common pleas court flies in the face of the record and is contrary to existing authority construing R.C. 2506.03. - 2 - Appellants invited any procedural error in the common pleas court by filing a motion to submit documentary evidence in lieu of an oral hearing under R.C. 2506.03 and submitting the case to the common pleas court on briefs and the supplemented record. It is axiomatic that a party may not assert a claim of error on appeal when the party invited or induced the alleged error. Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d 20; Lester v. Leuck (1943), 142 Ohio St. 91, syllabus paragraph one; Frank v. Vulcan Materials Co. (1988), 55 Ohio App. 3d 153. Sound judicial policy dictates that a party not be permitted to invoke a particular procedure to present evidence in lieu of live testimony, await the ultimate determination and then seek to avoid the judgment if it is unfavorable as in the case sub judice. Frank v. Vulcan Materials Co., supra at 155-156 (jury trial limited to videotaped testimony only). The record demonstrates that appellants filed a "Motion to Allow Additional Evidence," accompanied by an affidavit asserting various deficiencies in the record filed by the Board in the common pleas court, without requesting an oral hearing. The common pleas court subsequently granted appellants' motion and an unlimited opportunity to submit whatever additional evidence appellants desired together with an extension of time to do so. Appellants ultimately filed "Plaintiff's [sic] Submission of Additional Evidence," comprised of 7 sets of depositions, photographs and substantial other material, without requesting an - 3 - oral hearing or purporting to reserve an opportunity for such a hearing. The common pleas court accordingly established a briefing schedule for the matter upon the record as supplemented rather than conducting an oral hearing. Appellants' "Assignments of Error and Brief" and reply brief in the common pleas court did not request any oral hearing and made arguments based upon the existing record as supplemented, stating in part as follows: We respectfully request therefore for all of the reasons stated herein that this Honorable Court enter a finding holding that the decision of the Fairview Park Board of Building and Zoning Appeals is unreasonable and unsupported by the preponderance of substantial reliable and probative evidence on the whole record before it including the additional evidence submitted herein. (Assignments of Error and Brief at 26). Appellants argue for the first time on appeal to the Court of Appeals that the common pleas court deprived them of an "oral hearing." However, appellants expressly acknowledged in the common pleas court that "[t]he matter was submitted to Court on Briefs and additional evidence submitted by Plaintiffs/Appellants." (Motion for New Trial at 3). The majority opinion completely ignores appellants' statement the matter was submitted to the common pleas court on the "whole record" in order to resurrect appellants' case. Remanding this matter for further proceedings constitutes a waste of judicial resources and is contrary to the doctrine of judicial economy. - 4 - Even if the common pleas court erred in failing to conduct an oral evidentiary hearing as the majority concludes, appellants have failed to demonstrate any resulting prejudice to warrant reversing or remanding the case for further proceedings. App. R. 12(B); McCreery v. City of Brecksville Bd. of Zoning Appeals, (Dec. 27, 1984), Cuyahoga App. No. 48396, unreported at 5; Franklin Twp. v. Marble Cliff (1982), 4 Ohio App. 3d 213 at 216- 217. Appellants have failed to demonstrate to the common pleas court or this Court of Appeals what additional evidence they would have presented at the oral hearing they induced the common pleas court not to conduct. Contrary to the majority opinion, this Court has held that absent "a demonstration that additional evidence introduced by appellant[s] would have resulted in a preponderance of the evidence changing in [their] favor, we cannot say that appellant[s were] prejudiced" by the procedure followed by the common pleas court. McCreery v. City of Brecksville Bd. of Zoning Appeals, supra at 5. Accord Franklin Twp. v. Marble Cliff, supra at 216-217. These same invited and harmless error principles likewise dispose of appellants' contentions relating to the "equal protection" and "taking" under their second assignment of error. Compare McCreery v. City of Brecksville Bd. of Zoning Appeals, supra at 6. Appellants' remaining third and fourth assignments of error lack merit since the respective judgments of the common pleas - 5 - court and the Board are amply supported by the record sub judice. R.C. 2506.04. Although appellants presented some evidence the Board granted variances in other "similar" cases to support their "equal protection" claim, the "burden of showing discriminatory enforcement is a heavy one and is not satisfied by a mere showing that others similarly situated have not been" treated in the same manner. See Elsaesser v. Hamilton Bd. of Zoning Appeals (1990), 61 Ohio App. 3d 641, 648-649. Appellants' "taking" argument was likewise properly rejected by the common pleas court. Appellants failed to demonstrate the challenged zoning ordinances as applied in this case amount to a taking of their property or renders their property valueless. Clark v. Woodmere (1985), 28 Ohio App. 3d 66, 68. Appellants' final assignment of error contesting the denial of their request for a variance likewise lacks merit. It is well established that decisions of a Board of Zoning Appeals denying requests for a variance as in the case sub judice are presumed to be correct. Consolidated Mgmt., Inc. v. Cleveland (1983), 6 Ohio St. 3d 238, 240. An appellate court must affirm a judgment of the common pleas court as in the case sub judice when the appellant fails to demonstrate that the Board's decision was "unconstitutional, illegal, arbitrary, capricious, unreasonable or unsupported by the preponderance of substantial reliable and probative evidence." Id. at 240. Appellate courts are not a "super Board of Zoning Appeals" and should decline to substitute - 6 - their judgment when the record contains substantial evidence to support the judgment of the common pleas court and Board of Zoning Appeals as in the case sub judice. Since the majority fails to adequately address these issues or demonstrate that remanding the case is warranted, I respectfully dissent. .