COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70302 and 70303 : JAMES M. HAVEN and : SOLON-CHAGRIN ESTATES, INC. : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION : CITY OF SOLON : : Defendant-Appellee : : DATE OF ANNOUNCEMENT DECEMBER 5, 1996 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case Nos. 271779 and 275036 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: MICHAEL T. GAVIN, ESQ. CHARLES T. RIEHL, ESQ. ELI MANOS, ESQ. FREDERICK W. WHATLEY, ESQ. ANTHONY J. COYNE, ESQ. Walter & Haverfield Mansour, Gavin, Gerlack & Manos 1300 Terminal Tower Co., L.P.A. 50 Public Square 55 Public Square, Suite 2150 Cleveland, Ohio 44113-2253 Cleveland, Ohio 44113-1994 -2- PATRICIA ANN BLACKMON, P.J.: This is a consolidated appeal by plaintiffs-appellants, James M. Haven and Solon-Chagrin Estates, Inc., challenging the trial court's dismissal of its administrative appeal, declaratory judgment, and claim for damages under Section 1983, Title 42, U.S. Code. Haven and Solon-Chagrin Estates claim defendant-appellee, City of Solon, incorrectly denied them a variance, and assign the following errors for our review: I. THE DETERMINATION OF THE TRIAL COURT AFFIRMING THE DECISION OF THE COUNCIL OF THE CITY OF SOLON REVERSING THE GRANT OF THE VARIANCES BY THE PLANNING COMMISSION ACTING AS BOARD OF ZONING APPEALS TO THE APPELLANT IS UNREASONABLE, IN THAT THE REVERSAL BY THE COUNCIL IS NOT SUPPORTED BY THE PREPONDERANCE OF SUBSTANTIAL, RELIABLE AND PROBATIVE EVIDENCE. II. THE COURT OF COMMON PLEAS ERRED IN FINDING THAT THE DECISION OF COUNCIL FOR THE CITY OF SOLON REVERSING THE PLANNING COMMISSION, ACTING AS BOARD OF ZONING APPEALS, WAS CONSISTENT WITH THE CONSTITUTION OF THE UNITED STATES AND OF THE STATE OF OHIO AND WAS NOT ARBITRARY AND UNREASONABLE. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. Haven and Solon-Chagrin Estates were developing twenty residential lots in the last phase of a subdivision known as Chagrin Highlands Subdivision in the city of Solon. Haven and Solon-Chagrin also developed the street, Lochmoor Drive, giving access to the lots. The subdivision was located in an area zoned for single-family homes. Solon Codified Ordinance, section 1278.06 -3- required lots of a minimum of one acre with a minimum front yard setback of 100 feet. Deed restrictions required a foundation area of 3,000 square feet for each residence constructed. Haven's engineers and surveyors used Cuyahoga County Topographic Maps and counter maps prepared from aerial photographs to plan the construction of homes. After they developed Lochmoor Drive, a prospective buyer had a survey of the land prepared. In the survey, it was discovered that the topographical maps were in error. What appeared to be levelled land was actually the begin- ning of the crest of Chagrin River Valley; the discrepancy was 20 to 25 feet. The dense vegetation on the property had masked the top of the valley; consequently, the topographical maps did not accurately reflect the slope of the land. Haven applied to the city planning commission for a variance to permit him to build the houses with a setback of only 50 feet from the street instead of the 100 feet required under the ordinance. They referred the matter to the assistant city engineer. At the recommendation of the engineer, Haven hired an engineer to conduct a geotechnical study of the area. Haven's engineer found no signs of slope instability. He concluded a variance was necessary in order to avoid building houses within the slope. In the report, it was noted that special foundations would be required to assure the stability of the houses. After reviewing the study, the city engineer recommended the City grant the variance. -4- The planning commission then referred the request to the Cuyahoga Soil and Water Conservation District, United States Department of Agriculture. The conservationist stated the lots in question were "slippage prone" and recommended, as an alternative, that Lochmoor Drive be moved. The planning commission approved the requested variance, but Solon City Council, acting as the board of zoning appeals, rejected the variance. Haven resubmitted the request for variance and asked the planning commission to approve it so that he would have an opportunity to appear before city council and discuss the request. City council reviewed the request and denied it for the second time. In its decision, city council indicated it had considered the seven factors set forth in Duncan v. Middlefield (1986), 23 Ohio St.3d 83, and listed eight reasons for denying the variances. Haven filed an administrative appeal to the court of common pleas and Solon-Chagrin Estates, the company of which Haven is president, filed an action for declaratory relief. The two cases were consolidated by the court of common pleas. Haven sought the variance he requested, monetary damages, and a declaration that the application of the zoning ordinance was unconstitutional. The parties agreed to submit the case upon a set of stipulated facts. The common pleas court affirmed the decision by the Solon City Council and held the 100 foot setback requirement was not unconsti- tutional. This appeal followed. In the first assignment of error, Haven argues the trial court erred in affirming Solon's decision because it was not supported by -5- the preponderance of substantial, reliable, and probative evidence. The standard of review for zoning appeals to the court of appeals, under R.C. 2506.04 is limited in scope "*** and requires that court to affirm the common pleas court, unless the court of appeals finds, as a matter of law, that the decision of the common pleas court is not supported by a preponderance of reliable, probative, and substantial evidence." Cleveland Indus. Square, Inc. v. Cleveland Bd. of Zoning Appeals (1992), 83 Ohio App. 3d 301 at 306, quoting Dudukovich v. Housing Authority (1979), 58 Ohio St.2d 202, 207. In determining whether the decision of the common pleas court was supported by a preponderance of the evidence, this court must consider the factors set forth in Duncan v. Middlefield. The standard for granting a variance which relates to area is whether the application shows practical difficulties. Kisil v. Sandusky (1984), 12 Ohio St.3d 30 at the syllabus. In Duncan, at the syllabus, the court provided: 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 -6- the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance. In this case, there was a preponderance of substantial, probative, and reliable evidence in the record to support Solon's findings as it relates to the seven factors set forth in Duncan. (1) It is clear the property would yield a reasonable return and have a beneficial use without the variances. Houses could be built on the lots without the variances but would require special foundations and may also be built if the Lochmoor Drive was moved. (2) The other lots on Lochmoor drive met the required 100 foot setback. Therefore, a variance of 70 feet would be substantial. (3) The variances would alter the character of the neighborhood by bringing houses closer to the street where all the others complied with the 100 foot setback. Moreover, the engineers agreed that because of the slope of property and because the soil was slippage prone, there may be a need for additional variances once the work begins. (4) There is no evidence the variances would affect government services. (5) Haven knew of the zoning restrictions before he purchased the property, before he began his development project, and before he spent a substantial amount of money improving Lochmoor Drive. (6) The alternative solution to the variance would be to move Lochmoor Drive or build on the slope. (7) The city found the spirit and intent of the requirement would be violated and substantial justice would not be done by -7- granting a variance. This finding is clearly supported by the fact that, were a variance to be granted, there may be a need for further variances because of the slippage-prone nature of the land. In view of the factors set forth in Duncan, and the decisions of the Solon City Council and the common pleas court, we conclude the trial court properly affirmed the decision denying Haven a variance. In the second assignment of error, Haven argues the common pleas court erred in finding the variance was not unconstitu- tionally applied to the Chagrin-Highlands development. "A party who attacks a municipal zoning ordinance on constitutional grounds must prove, beyond fair debate, both that the enactment deprives him or her of an economically viable use and that it fails to advance a legitimate governmental interest." Gerijo, Inc. v. Fairfield (1994), 70 Ohio St.3d 223 at the syllabus. The record in this case clearly demonstrates there would be an economically viable use for the land notwithstanding the zoning ordinance which requires a 100 foot setback. The variance was requested, not to make the property economically viable, but to remedy a problem caused by inaccurate topographical maps and the failure of Haven's surveyors to perform a field survey of the land before planning the development. Had such a survey been conducted, Haven could have developed Lochmoor Drive accordingly without a variance. But for the surveying error, the variance would be totally unnecessary. Because of the error, Haven may be forced to expend another $663,000 to move Lochmoor Drive. Although that is a -8- costly mistake, it was his surveyor's mistake. Nonetheless, it does not change the economic viability of the land. Having concluded the denial of a variance of the 100 foot setback does not deprive Haven of an economically viable use for his land, we need not explore whether the ordinance was supported by a legitimate government interest. Accordingly, we conclude the Solon zoning ordinance was not unconstitutionally applied to the Chagrin-Highland development. 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. PORTER, J., and MCMONAGLE, J., CONCUR. PATRICIA ANN BLACKMON JUDGE "N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .