COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67883 STEVE PAWUK, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION CLEVELAND BOARD OF ZONING : APPEALS : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 22, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-266036 JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: RICHARD G. LILLIE (#0023744) JENNIFER KRIAUSKY (#0063431) 55 PUBLIC SQUARE, SUITE 1331 CLEVELAND, OHIO 44113 For Defendant-Appellee: SHARON SOBOL JORDAN (#0006731) Director of Law DENNIS A. MATEJKA (#0017288) Assistant Director of Law 601 LAKESIDE AVENUE - ROOM 106 CLEVELAND, OHIO 44114 - 2 - SPELLACY, P.J.: Steve Pawuk, owner, and Pinky's Famous Saloon, tenant, appeal from the decision of the court of common pleas to affirm the Cleveland Board of Zoning Appeals's ("BZA") denial of applications for a sign permit and building permit for the repair of an existing sign. Pawuk and Pinky's Famous Saloon raise two assignments of error: I. THE BOARD OF ZONING APPEALS' DECI- SION TO DENY PLAINTIFFS' APPEAL WAS ARBITRARY AND UNREASONABLE. II. THE LOWER COURT ERRED WHEN IT AFFIRMED THE DECISION OF THE BOARD OF ZONING APPEALS BECAUSE SAID DECISION IS AGAINST THE SUBSTANTIAL, RELIABLE AND PROBATIVE EVIDENCE ON THE WHOLE RECORD. The BZA denied the applications because the sign is too large. The sign is two hundred ten square feet; Cleveland Codified Ordinances Sections 350.14 and 350.15, enacted in 1990, limit the sign to eighty-six and a half square feet. At the BZA hearing, Fred Roberts, who operates Pinky's Famous Saloon, testified that the sign has existed since at least 1986. The permit history contains no permit for the sign. We address the assignments of error together. A court of common pleas reviews a BZA decision to determine whether it is supported by "a preponderance of reliable, probative, and substantial evidence ***." Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34; see, also, R.C. 2506.04. We review a court of common pleas decision to determine whether, as a matter of law, it is - 3 - "supported by a preponderance of reliable, probative, and substantial evidence." Kisil, at 34. Pawuk and Pinky's Famous Saloon argue the sign is a nonconforming use. A nonconforming use must have existed before the enactment of the land use regulation, Dublin v. Finkes (1992), 83 Ohio App.3d 687, 690, and have been lawful at the time it was established. Pschesang v. Terrace Park (1983), 5 Ohio St.3d 47, syllabus. The BZA asserts that the evidence fails to demonstrate that the sign existed before the 1990 enactment of Cleveland Codified Ordinances Sections 350.14 and 350.15. Roberts's testimony that the sign has existed since at least 1986, however, was uncontroverted. The BZA further asserts that, even if erected before 1990, the sign is unlawful because it was erected without a permit. The mere failure to obtain a permit, however, will not make a structure unlawful so as to preclude it from being a nonconforming use. 12701 Shaker Blvd. Co. v. Cleveland (1972), 31 Ohio App.2d 199, 208; Jones v. Petruska (Dec. 31, 1987), Cuyahoga App. No. 53177, unreported, page 3, cf. Beavercreek v. Fairmont Foods (July 27, 1984), Greene App. No. CA 83CA54, unreported. We find the decision of the court of common pleas unsupported by a preponderance of reliable, probative, and substantial evidence as a matter of law. Consequently, we reverse the judgment with respect to the denial of the application for the building permit to repair the existing sign. We affirm the judgment, however, with respect to the application for a sign permit. The BZA was not - 4 - required to issue a permit based on a nonconforming use. Although Pawuk and Pinky's Famous Saloon argue that they were entitled to a variance, they failed to raise this argument below. Accordingly, the assignments of error are well taken to the extent indicated. Judgment affirmed in part, reversed in part, and cause remanded. - 5 - It is ordered that appellee and appellants pay one-half the 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. ANN DYKE, J. and JOSEPH NAHRA, J., CONCUR. LEO M. SPELLACY PRESIDING 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 journalization, at which time .