COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70439 LYNN POWERS, ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : : OPINION CITY OF ROCKY RIVER BOARD OF : ZONING APPEALS, ET AL. : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 7, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-286125. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-appellants: John P. Slagter, Esq. Slagter & Gunning, Ltd. 6000 Lombardo Center, #610 Cleveland, Ohio 44131-2579 For Defendants-appellees: David J. Matty Director of Law City of Rocky River c/o Rademaker, Matty McClelland & Greve 55 Public Square, Suite 1775 Cleveland, Ohio 44113 SWEENEY, JAMES D., P.J.: Plaintiffs-appellants Mark J. Powers, President of Pinnacle Homes d.b.a. Powermark Homes, Inc., and Lynn Powers (Powers) appeal the trial court's ruling affirming the decision made by the defendant-appellee the Rocky River Board of Zoning Appeals (BZA) denying an area variance. The appellants own two parcels of property located at 20796 and 20798 Detroit Road, Rocky River, Ohio. The total area of the properties is 5,500 square feet and the lots are zoned for a multi- family use. The minimum lot area for a two-family home under the Rocky River Codified Ordinances is 12,000 square feet. The appellants requested three variances for the minimum lot size, lot coverage and side yard requirements in order to construct a multiple family dwelling. The record of the hearing before the BZA consists of the following minutes of their February 9, 1995, meeting: 8. MARK POWERS, 20796-8 DETROIT ROAD - Lot area; coverage; side yard. Mr. Woods read the public hearing notice and list of property owners notified. Mr. Powers came forward with his plans for a proposed two family residence he wants to build at 20796-8 Detroit Road. Gerald Skoch (spokesperson) and 11 other residents from Morewood Parkway were present to protest the variance because the area where the proposed house is to be built is too cluttered and many residents already have drainage problems. In addition, the Morewood residents feel there is no hardship. After discussion, Mr. Stofer moved to deny Mark Powers a variance to Section 1143.02(a) for the - 3 - construction of a new two family residence at 20796-8 Detroit Road. Mr. Pempus seconded. 4 Ayes 0 Nays Since the first variance was denied, Mr. Powers withdrew his request for the remaining two variances. The appellants appealed this decision to the court of common pleas pursuant to R.C. 2506. In its opinion the trial court upheld the determination of the BZA. The appellant sets forth three assignments of error. The first assignment of error: I IT WAS ERRONEOUS FOR THE TRIAL COURT TO AFFIRM THE DECISION OF THE ROCKY RIVER BOARD OF ZONING APPEALS DENYING APPELLANTS' REQUEST FOR AN AREA VARIANCE WHICH ADMINISTRATIVE DECISION WAS CONTRARY TO OHIO LAW SINCE IT WAS BASED ON THE WRONG LEGAL STANDARD OF "UNNECESSARY HARDSHIP" RATHER THAN THE PROPER LEGAL STANDARD OF "PRACTICAL DIFFICULTIES." The appellants argue that the BZA applied an incorrect standard of review when arriving at their decision, and, had the correct standard been applied, the variance would have been granted. In an appeal, under R.C. Chapter 2506, from the denial of an application for a variance by a board of zoning appeals, there is a presumption that the board's determination is valid. C. Miller Chevrolet, Inc. v. Willoughby Hills (1974), 38 Ohio St.2d 298, syllabus 2. The burden of demonstrating the invalidity of a board's determinstion rests on the contesting party. Id. The - 4 - appellants correctly assert that the proper standard of review for an area variance was set forth in Duncan v. Middlefield (1986), 23 Ohio St.3d 83 as one of "practical difficulties." However, the record does not support the contention that the BZA erred by applying the incorrect standard. It is, in fact, not possible to glean from the record what standard was applied by the BZA. Assuming, as we must in the absence of any contrary indications, that the correct standard was applied, the appellant's first assignment of error is not well taken. The second assignment of error: II IT WAS ERRONEOUS FOR THE TRIAL COURT TO RULE THAT THE MATTER WAS FAIRLY DEBATABLE AND THAT IT WAS NOT GOING TO SUBSTITUTE ITS JUDGMENT FOR THE JUDGMENT OF THE ROCKY RIVER BOARD OF ZONING APPEALS SINCE THE BOARD HAS EXPERTISE IN ZONING WHEN THE WRONG LEGAL STANDARD WAS APPLIED BY THE BOARD. In the second assignment of error the appellants take issue with the trial court's use of the fairly debatable analysis in its opinion. The appellants again assert that the BZA applied the wrong standard of review and claim an entitlement to a remand for an analysis under the correct legal standard. The appellee concedes that the trial court's analysis was partially incorrect, but, in light of the balance of the opinion, argues that it is a harmless error. A review of the court's opinion shows that it found no evidence to indicate that the BZA used the incorrect "unnecessary - 5 - hardship" standard of review instead of the correct standard of "practical difficulties." The court went on to apply the correct standard, "practical difficulties," and ultimately affirmed the BZA. The trial court went on to state that it would not substitute its opinion for that of the BZA. This last paragraph of the opinion, whether or not incorrect, does not change the fact that the court ultimately arrived at the correct decision. The appellant's second assignment of error is overruled. The third assignment of error: III IT WAS ERRONEOUS FOR THE TRIAL COURT TO AFFIRM THE DECISION OF THE ROCKY RIVER BOARD OF ZONING APPEALS WHICH DECISION WAS CONTRARY TO OHIO REVISED CODE SECTION 2506 SINCE THE BOARD'S DECISION WAS ARBITRARY, CAPRICIOUS, UNREASONABLE, OR UNSUPPORTED BY A PREPONDERANCE OF SUBSTANTIAL, RELIABLE, AND PROBATIVE EVIDENCE ON THE WHOLE RECORD. The appellant argues that the decision of the BZA was arbitrary, capricious, unreasonable and not supported by a preponderance of substantial, reliable and probative evidence. The appellants state that the homeowners failed to oppose the development of this land with any evidence, and that in order to place any type of multi-family unit on this land, a use in accordance with the zoning of the property, a variance is required. The appellants argue that the need for a variance to develop the property, along with the property's unique location and elevation, suffices to establish practical difficulties. - 6 - It is well established that a court of common pleas, absent an abuse of discretion, must affirm the decision of a board of zoning appeal 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; Consolidated Mgmt., Inc. v. Cleveland (1983), 6 Ohio St.3d 238; McPhillips v. Cleveland Board of Zoning Appeals (June 1, 1995), Cuyahoga App. No. 67314, unreported. 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. 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. A request for an area variance is governed by the lesser standard of practical difficulties. Duncan, supra; Kisil, supra. The trial court, in its opinion, held that: Factors to be considered in determining whether an owner has encountered practical difficulties in the use of his property are: (1) whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without a 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 - 7 - 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. Appellants do not submit evidence to support their allegations that there can be no use of the property without the variance or that the topography limits the only feasible use of the property to a two-family dwelling. The record does indicate that the requested variance is substantial. The lot is 5,500 sq. ft., the minimum required for a two-family dwelling is 12,000 sq. ft. The record includes a letter by Gerald Skoch, a resident who lives near the lot at issue. The letter states that there are already crowded conditions and traffic problems and requested that the variance be denied. (See letter 2-9-95). There were eleven other residents who appeared at the hearing in support of Mr. Skoch. In certain circumstances, substantial justice requires that the interests of community, neighborhood, and adjoining property owners be given due consideration. See Duncan v. Middlefield, supra. A minimum lot size requirement exists to prevent crowding and traffic congestion. In the case at bar, therefore, the opinions of the neighbors that there is congestion and crowding is relevant. The opinion indicates that the court found evidence to support the decision of the BZA under at least four of the seven requirements set forth in Duncan, supra. Given the trial court's analysis under the correct standard of review, and its review of the record, this court cannot not find an abuse of discretion. The appellant's third assignment of error is overruled. - 8 - Judgment affirmed. - 9 - It is ordered that appellees recover of appellants their 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. ANN DYKE, J., and TERRENCE O'DONNELL, J., CONCUR. JAMES D. SWEENEY PRESIDING 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 .