COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67314 : PATRICK McPHILLIPS, ET AL. : : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION THE CLEVELAND BOARD OF ZONING : APPEALS : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 1, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-236947 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: MITCHELL J. YELSKY, ESQ. SHARON SOBOL JORDAN, ESQ. Yelsky & Lonardo Co., L.P.A. Director of Law 1050 Leader Building DAVID ROBERTS, ESQ. Cleveland, Ohio 44114 Assistant Director of Law Room 106 - City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 - 2 - KARPINSKI, J.: This appeal arises from a judgment of the common pleas court affirming the denial of an application for a zoning variance from a one-family to five-family use. The record demonstrates plaintiffs-appellants Patrick and James McPhillips filed an application on June 12, 1992, for a use variance for a residential property located at 2900 Jay Avenue. The McPhillips purchased the property, which had previously been lawfully operated as a five-unit rooming house, following a foreclosure sale and expended $80,000 to restore the property. The City of Cleveland Department of Community Development Division of Building and Housing ("Housing Division") denied the application for a variance. The McPhillips timely appealed the denial of the use variance to the Cleveland Board of Zoning Appeals ("BZA"). The BZA conducted a public hearing on the appeal on July 13, 1992. The transcript of the hearing demonstrates the McPhillips filed a written brief with exhibits, presented additional evidence, and made various arguments during the hearing. Ten neighbors and the local councilwoman made statements in opposition to the requested use variance. The BZA denied the appeal in an order issued July 20, 1992. The McPhillips filed a notice of appeal from the decision of the BZA denying their request for the use variance in the common pleas court on August 12, 1992. The record demonstrates the - 3 - parties filed a series of briefs on addressing the merits of the BZA decision. The McPhillips filed a brief and assignments of error and reply brief to the City of Cleveland's brief in opposition. The common pleas court affirmed the decision of the BZA in the following order journalized April 22, 1994: It is the finding of this Court that the decision of the Cleveland Board of Zoning Appeals was supported by reliable, probative and substantial evidence and is in accordance with law, and is hereby affirmed. The McPhillips timely appeal from the judgment of the common pleas court raising three assignments of error. The McPhillips' first and second assignments of error follow: THE TRIAL COURT'S RULING, AFFIRMING THE JULY 20, 1992 RESOLUTION OF THE CLEVELAND BOARD OF ZONING APPEALS, IS CONTRARY TO THE LAWS OF THE STATE OF OHIO AND **329.03 OF THE CODIFIED ORDINANCES OF THE CITY OF CLEVELAND. THE TRIAL COURT'S RULING, AND THE JULY 20, 1992 DECISION OF THE CLEVELAND BOARD OF ZONING APPEALS ARE CONTRARY TO LAW; ARE ARBITRARY AND CAPRICIOUS; ARE UNSUPPORTED BY RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE; AND, ARE AN ABUSE OF DISCRETION. The McPhillips' first and second assignments of error lack merit. The McPhillips argue the record mandates granting the requested variance from a one-family to a five-family use since they presented sufficient evidence of "unnecessary hardship" and "practical difficulties" to support their request for a variance. They argue the BZA unreasonably exercised its discretion by denying the variance. Based on our review of the record, the McPhillips have failed to demonstratee any error. - 4 - It is well established that a common pleas court must affirm the decision of a board of zoning appeals denying a variance when the decision is not unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of the substantial, reliable, probative evidence on the whole record. R.C. 2506.04; Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34; Consolidated Mgmt., Inc. v. Cleveland (1983), 6 Ohio St.3d 238, 240. The standard governing zoning variances depends on the type of variance requested. Requests for variances in the "use" of a property are governed by the higher standard of "unnecessary hardship," whereas requests for "area" variances are governed by the lesser standard of "practical difficulties." Duncan v. Middlefield (1986), 23 Ohio St.3d 83, 85-86; Kisil v. Sandusky, supra at 32-33; Zangara v. Chester Twp. Trustees (1991), 77 Ohio App.3d 56, 58-59. The McPhillips spent most of their brief on appeal and argument before the BZA arguing they satisified the less stringent "practical difficulty" standard. However, the record demonstrates the McPhillips requested a "use variance"; therefore, the more stringent "unnecessary hardship" standard applies in this case. The McPhillips brief on appeal concedes they requested a "use variance," i.e., a variance from one-family to five-family use, but ignores the effect of this type of request on the standard for granting a variance. (Brief at p. 11.) Moreover, we note that even if the lesser "practical difficulties" standard applied as the McPhillips' - 5 - contend, the record supports the denial of the requested variance in this case. Compare Peterson v. Washington Ct. Athletic Club (1986), 28 Ohio App.3d 90. The record demonstrates the two blocks surrounding the McPhillips' 2900 Jay Avenue property contain twenty houses. These houses are mostly owner occupied; eleven houses are single- family dwellings, seven houses are two-family dwellings, one house is a three-family dwelling, and one house is a four-family dwelling. There are no rooming houses like that sought to be operated by the McPhillips. One neighbor testified she converted her eleven-unit rooming house located nearby at 1721 Fulton Avenue to a single family residence. (Tr. 57-61.) Another neighbor, who lived at 2900 Jay Avenue prior to the rehabilitation by the McPhillips, stated the variance should be denied. This witness described problems in the neighborhood created by transient residents and absentee landlords and described another project of the McPhillips as an "eyesore." (Tr. 65-67.) All parties recognized that there is an acute parking shortage in this area since most of the residences do not have off-street parking. The McPhillips' house located at 2900 Jay Avenue covered essentially the entire plot of land and had no off-street parking for any of the proposed five tenants. Finally, no variances of any kind have been granted in this area since the 1985 zoning ordinances changed the classification of this area to a two-family district. (Tr. 39-41.) - 6 - The McPhillips essentially argue the BZA should have granted the requested variance in this case since the McPhillips purchased and rehabilitated the premises which had previously been lawfully operated as a five-family rooming house. The McPhillips complain they expended $80,000 to rehabilitate the property after they obtained from the Cleveland Housing Division permits and a certificate that five units were authorized for the premises. The record demonstrates, however, that the revocation of these permits was the subject of prior litigation in which the BZA concluded the nonconforming use as a five-family rooming house had been abandoned. McPhillips v. City of Cleveland et al. (July 3, 1991), Cuyahoga App. No. 60687, unreported. These matters are res judicata and may not be raised in the appeal from the denial of their request for a variance in the case sub judice. The record demonstrates the premises located at 2900 Jay Avenue had considerably less than the minimum lot size and parking facilities required for five-family use. Under the circumstances, the McPhillips have failed to demonstrate the denial of their request for a variance from a one-family to a five-family use was unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of the substantial, reliable, probative evidence. Accordingly, the McPhillips' first and second assignment of error are overruled. The McPhillips' third assignment of error follows: - 7 - THE TRIAL COURT'S DENIAL OF A HEARING REQUESTED PURSUANT TO R.C. 2506.03 WAS PREJUDICIAL TO APPELLANT, AND WARRANTS REVERSAL. The McPhillips' third assignment of error lacks merit. The McPhillips contend the common pleas court improperly refused to conduct a hearing to permit them to supplement the record in this case. The McPhillips argue the transcript of proceedings demonstrates the BZA improperly denied them the opportunity to argue their case, present evidence, and cross- examine witnesses. Based on our review of the record, the McPhillips have failed to show any error. It is well established that in administrative appeals from the denial of a zoning variance a common pleas court is confined to the transcript unless it appears from the transcript or by affidavit that grounds exists to permit supplementation under R.C. 2506.03. The McPhillips did not file an affidavit in this case, and our review of the transcript demonstrates no grounds to supplement the record. The McPhillips contend the BZA refused to permit them to recite and present evidence to support the seven factors under Duncan v. Middlefield, supra, to establish practical difficulty for an area variance. The record, however, does not support this claim. The record demonstrates the McPhillips submitted a written brief concerning Duncan and these seven factors. During the hearing, the BZA Chair requested counsel to explain the facts of Duncan. Counsel stated he was unaware of the facts of Duncan - 8 - and was not denied an opportunity to make any argument concerning this case. The McPhillips also argue they were not permitted to cross- examine three witnesses at the hearing before the BZA. The transcript demonstrates, however, counsel for the McPhillips completed cross-examination of two of these three witnesses, viz., Mrs. Kurutz and Konajeski. By making no attempt to cross- examine Councilwoman Smith, the third witness, at the conclusion of her testimony, counsel for the McPhillips waived any right to cross-examine her. (Tr. 41-44.) Counsel subsequently raised this issue concerning cross-examination of the councilwoman for the first time after the councilwoman left the BZA hearing because of an emergency. (Tr. 69-70.) Accordingly, the McPhillips' third assignment of error is overruled. Judgment affirmed. - 9 - It is ordered that appellee recover of appellants its 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. Exceptions. LEO M. SPELLACY, P.J., and DAVID T. MATIA, J., CONCUR. DIANE KARPINSKI JUDGE 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 .