COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70562 MICHAEL BELICH, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION BOARD OF ZONING APPEALS, CITY : OF SOLON : : Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 17, 1997 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 241870 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFFS-APPELLANTS: FOR DEFENDANT-APPELLEE: Howard V. Mishler, Esq. Charles T. Riehl, Esq. The Atrium, Suite 108 Frederick W. Whatley, Esq. 30400 Detroit Road Walter & Haverfield P.L.L. Westlake, Ohio 44145-1855 1300 Terminal Tower, 50 Public Square Cleveland, Ohio 44113-2253 -2- ROCCO, J.: Plaintiff-appellant Michael Belich appeals from the trial court order which affirmed a decision of defendant-appellee the Board of Zoning Appeals, City of Solon, Ohio. The Board denied appellant's request for two variances with regard to his property. Appellant challenges the trial court's affirmance on the basis that the Board's decision was not supported by a preponderance of reliable, probative and substantial evidence. He also asserts the trial court improperly adopted appellee's Findings of Fact and Conclusions of Law in affirming appellee's decision. This court finds no foundation for either appellant's argument or his assertion, therefore, the trial court's order is affirmed. Appellant's property consists of a little less than an acre of land located on S.O.M. Center Road a short distance south of the Baldwin Road intersection on the eastern side of the road. Immediately to the north of appellant's property are five other similarly shaped lots. These six lots are contiguous to a shopping center, an apartment complex, and a residential area. Appellant purchased the property in 1959 and lived in the existing bungalow until approximately 1993. In 1982, because of some plans to develop the six lots, appellant and his neighbors petitioned the city of Solon to have their property rezoned from residential to "U-5A," i.e., general office. The general office zoning classification was created by the city in 1977; at its inception, the classification had a minimum lot size of two acres and width size of two hundred feet for -3- development. None of the six lots met these requirements; 1 however, the city's "Master Plan" c to be consolidated. The area was foreseen as a buffer between the residential lots and the shopping center and apartment buildings. In due course, the rezoning was accomplished. However, the consolidation of the lots never took place, as the various owners did not agree with development proposals. In 1988, a proposal was put forward to construct a children's day-care facility on appellant's lot. When the matter was presented to the city, neither the city planning commission nor the council would support the proposal because appellant's lot did not meet the size requirements for general office development. Eventually, the proposal was withdrawn. In June 1992, appellant received another proposal, this time from a dentist who desired to build an office on the property. Appellant formally applied for variances with regard to both the size and width of his property in order "to allow a reasonable use of the land or buildings." Appellant claimed strict compliance with the zoning would create both practical difficulties in developing the land and unnecessary or undue hardship since he would be unable to receive "the fair market value" of the property. Appellant's request was first considered by the Planning Commission. Appellant spoke at the meeting, as did his realtor and the dentist who put forth the 1 Quoted material is taken either from the Board's Transcript of Proceedings filed in the trial court or testimony and evidence adduced at the trial court hearing. -4- proposal. Thereafter, the city's planning director reviewed his previous reports made in 1988 concerning the six lots. He ultimately concluded the original plan to consolidate the lots was still the best approach to the problem. In September 1992, the Planning Commission denied appellant's request for variances. Appellant formally appealed the Planning Commission's decision to the Board of Zoning Appeals. On October 12, 1992, the matter was considered by the Board. Appellant appeared with counsel. Counsel argued appellant was faced with a "practical difficulty" because he was "retired and [now] living in Barberton." Counsel also argued granting the variances would cause no detriment to the city, but that because of the zoning requirements, appellant's lot could not be put to its intended use. The Board's chairman reminded appellant that although none of the six lots could individually meet the minimum development requirements, the owners had themselves requested the rezoning. He also noted that if appellant's requests were granted, a precedent would be set for the other five lot owners also to obtain variances, which would frustrate "the intent of the rezoning." The Board thus rejected appellant's request for variances. On November 2, 1992, appellant appeared before the city council, objecting to the Board's denial of his request. After some discussion on the matter, the council supported the Board's decision. -5- On November 4, 1992, pursuant to R.C. 2506.01, appellant filed an action against appellee in the Cuyahoga County Court of 2 Common Pleas. On January 7, 1993, appellee filed its T of Proceedings. Appellant filed a motion to introduce additional evidence pursuant to R.C. 2506.03. The trial court granted the motion and on March 14, 1996, held a bench trial. Appellant testified on his own behalf and introduced numerous exhibits into the record. Edward Suit, chairman of the city's Planning Commission, testified for appellee. At the conclusion of the testimony, the trial court invited the parties to submit proposed Findings of Fact and Conclusions of Law for its consideration. Ultimately, the trial court issued a single judgment entry in which it rendered judgment for appellee and also adopted appellee's proposed Findings of Fact and Conclusions of Law. It is from that order that appellant appeals. Appellant presents three assignments of error for this court's review. The first two are addressed together as follows: I. THE TRIAL COURT ERRED IN AFFIRMING THE DECISION OF THE CITY OF SOLON BOARD OF ZONING APPEALS OF OCTOBER 12, 1992, TO DENY PLAINTIFFS-APPELLANTS' (SIC) REQUEST FOR TWO AREA VARIANCES AS A MATTER OF LAW DUE TO THE FACT THAT SAID DECISION WAS NOT SUPPORTED BY A PREPONDERANCE OF RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE. II. THE TRIAL COURT ERRED AS IT ABUSED ITS DISCRETION IN AFFIRMING THE DECISION OF THE 2 On April 7, 1994, appellant filed an amended complaint adding a claim for a declaratory judgment that the zoning as applied to his property was unconstitutional. The claim was later dismissed and is thus not a subject of this appeal. -6- DEFENDANT-APPELLEE, SOLON BOARD OF ZONING APPEALS OF OCTOBER 12, 1992, TO DENY PLAINTIFFS-APPELLANTS' (SIC) REQUEST FOR TWO AREA VARIANCES IN THAT ITS DECISION WAS ARBITRARY, UNREASONABLE AND CAPRICIOUS. In these two assignments of error, appellant essentially argues the trial court's judgment for appellee was improper because the Board had little evidence upon which to base its decision. Appellant stresses three factors in making this argument: 1) the Board did not subject the witnesses who appeared at the hearing to an oath; 2) the Board members reminded appellant that he was one of the people who had caused the property to be rezoned to the U-5A classification; and 3) the Board "summarily" moved for a vote, preventing appellant from presenting all of his evidence before his request for variances was denied. In affirming appellee's decision to deny appellant's request, the trial court in this case acted pursuant to its authority under R.C. 2506.04. The supreme court has set forth the proper standard of appellate review of a R.C. 2506.04 appeal, stating: A court of common pleas should not substitute its judgment for that of an administrative board, such as the board of zoning appeals, unless the court finds that there is not a preponderance of reliable, probative and substantial evidence to support the board's decision. This court pointed out in Dudukovich v. Housing Authority (1979), 58 Ohio St.2d 202, 207 [12 O.O.3d 198], "[t]he key term is 'preponderance.'" The court went on further to explore the scope of review by the appellate courts and found, "[i]n determining whether the standard of review prescribed by R.C. 2506.04 was correctly applied by the Court of Common Pleas, both this court [the Supreme Court] and the Court of Appeals have a limited function." Id. In an R.C. Chapter 2506 administrative appeal of a decision -7- of the board of zoning appeals to the common pleas court, the court, pursuant to R.C. 2506.04, may reverse the board if it finds that the board's decision is not supported by a preponderance of reliable, probative and substantial evidence. An appeal to the court of appeals, pursuant to R.C. 2506.04, is more 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. [Footnote omitted.] Kisil v. Sandusky (1984), 12 Ohio St.3d 30 at 34. (Emphasis added.) Thus, in reviewing the trial court's decision, this court must determine whether the trial court abused its discretion when it affirmed appellee's denial of appellant's request for area variances. Red Garter, Inc. v. Cleveland Bd. of Zoning Appeals (1995), 100 Ohio App.3d 179 at headnote 1; Paris v. Board of Zoning Appeals of the City of Mayfield Heights (Dec. 31, 1992), Cuyahoga App. No. 63937, unreported. For its part, the trial court was required to presume appellee's action was valid; the burden of proving otherwise rested on appellant. C. Miller Chevrolet v. Willoughby Hills (1974), 38 Ohio St.2d 298, syllabus; Rotellini v. West Carrollton Bd. of Zoning Appeals (1989), 64 Ohio App.3d 17 at headnote 1. The standard for granting a variance which relates solely to "area" requirements is a lesser standard than that applied to variances which relate to use. The applicant for an area variance need not establish unnecessary hardship; it is sufficient that the applicant show practical difficulties. Kisil v. Sandusky, supra, at syllabus. -8- 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 the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance. Duncan v. Middlefield (1986), 23 Ohio St.3d 83, syllabus. Initially, two things must be noted concerning the factors appellant stresses to support his assignment of error. First, at the October 12, 1992 hearing, appellant neither requested an oath be given to witnesses nor objected to appellee's failure to require that formality. Under these circumstances, appellant has waived any error which may have occurred in this regard. Dudukovich v. Housing Authority (1979), 58 Ohio St.2d 202 at 206; Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41; Kandell v. City Council of Kent, Ohio (August 2, 1991), Portage App. No. 90-P-2255, unreported; cf., Arcaro Bros. Builders, Inc. v. Zoning Bd. of Appeals (1966), 7 Ohio St.2d 32. Second, the trial court permitted appellant to introduce additional evidence pursuant to R.C. 2506.03. The transcript of -9- the trial clearly reveals every item of evidence appellant introduced was admitted by the trial court. Therefore, the appropriate remedy for any error which occurred at the October 12, 1992 hearing was utilized and the trial court had a more than sufficient foundation upon which to base its judgment. See, e.g., Zannieri v. Norwalk Bd. of Bldg. & Zoning Appeals (1995), 101 Ohio App.3d 737; Gibralter Mausoleum Corp. v. Toledo (1995), 106 Ohio App.3d 80; cf., Kiger v. Albon (1991), 76 Ohio App.3d 301. Prior to rendering judgment for appellee, the trial court analyzed the quality of the evidence presented in light of Duncan v. Middlefield, supra, then determined appellant had not met his burden to show he had encountered practical difficulties in using his property. A review of the record supports the trial court's determination. Appellant testified he wanted the variances so that he could realize the "retirement income I had hoped to receive," i.e., a greater return on his investment in the property. Appellant's own expert appraiser, however, testified that even without the variances, appellant's property was worth $217,800 rather than the significantly lower amount appellant's realtor, who was not an expert, thought it was worth. Mr. Suit testified that as to the required U-5A lot size, appellant's square footage variance request was a reduction of over fifty percent; appellant's width variance request was a reduction of at least twenty-five percent. Hence, the variances were substantial. -10- Mr. Suit further testified that permitting appellant's variances would substantially affect the neighborhood and the delivery of governmental services in several ways. First, it would establish a precedent for the owners of the other five lots to also erect individual buildings instead of erecting one or two buildings on the combined lots. This in turn would lead to the necessity of creating one to two driveways for each building. Customers using the driveways would adversely impact the traffic pattern on S.O.M. Center Road, which, according to a traffic survey introduced into evidence, as many as 20,000 cars per day used in front of appellant's property. The resulting traffic congestion would hamper the delivery of police, fire and ambulance services through the area. It is undisputed that appellant petitioned the city to change the zoning of his property to the U-5A classification. Although he asserted he was not aware of the area requirements at the time he submitted his petition, those requirements had been in existence at the inception of the zoning classification. Thus, appellant's assertion neither is credible nor provides an excuse for his action. See, e.g., Consolidated Mgmt., Inc. v. Cleveland (1983), 6 Ohio St.3d 238; Peters v. The State Lottery Commission (Dec. 18, 1990), Franklin App. No. 90AP-194, unreported. Appellant testified his property could still be used for its current purpose, i.e., residential. He also admitted he could rent the house that still existed on the property, however, he simply did not "want to." However, he acknowledged that -11- "everybody [else] who signed the [rezoning] petition *** has been able to sell their property." Furthermore, appellant's own expert opined that the "highest and best use" of appellant's property would be its assembly with the adjoining lots and improvement for commercial purposes "in conformity with the codified ordinances of the city of Solon." (Emphasis added.) The codified ordinances of the city of Solon envisioned a comprehensive zoning pattern, one which would facilitate land use consistent with the general welfare of the community as a whole as well as traffic control and the delivery of municipal services. As the final factor to be considered in Duncan v. Middlefield, supra, implies, a city's development and implementation of a comprehensive zoning plan has historically been encouraged by both the state legislature and the Ohio Supreme Court. R.C. 519.02; Cassell v. Lexington Township Board of Zoning Appeals (1955), 163 Ohio St. 340. Indeed, the supreme court has recently reiterated that the city acts most responsibly when it considers what is beneficial or detrimental to good community planning, and that its judgment on such matters must be granted deference. See, e.g., Ketchel v. Bainbridge Twp. (1990), 52 Ohio St.3d 239; see, also, Cent. Motors Corp. v. Pepper Pike (1995), 73 Ohio St.3d 581. Mr. Suit testified that the intent of the U-5A zoning of the six lots was to enable the lots to be combined to permit commercial development in accordance with the city's "Master Plan." In this way, appellant's property eventually would be serving the spirit and intent behind the zoning. Mr. Suit's -12- testimony was supported by the record, which demonstrated this purpose from the inception of the reclassification of the six lots. A review of the record thus reflects appellant failed to demonstrate practical difficulties. Since the trial court's decision was supported by a preponderance of reliable, probative and substantial evidence, it neither erred nor abused its discretion in affirming appellee's denial of appellant's request for variances. Dudekovich v. Housing Authority, supra; Duncan v. Middlefield, supra. Accordingly, appellant's first two assignments of error are overruled. Appellant's third assignment of error states: III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN ADOPTING DEFENDANT-APPELLEE, BOARD OF ZONING APPEALS (SIC) FINDINGS OF FACT AND CONCLUSION (SIC) OF LAW Appellant apparently argues that since appellee denied his request for variances, the trial court's adoption of appellee's proposed Findings of Fact and Conclusions of Law was improper. In support of his argument, appellant directs this court's attention to certain facts set forth which he asserts were disputed. Appellant's argument remains unpersuasive. A trial court may adopt as its own a party's proposed findings of fact and conclusions of law as long as it has thoroughly read the document to ensure that it is completely accurate in fact and law. Adkins v. Adkins (1988), 43 Ohio App.3d 95, headnote 3. -13- Despite appellant's assertions to the contrary, a review of the facts adopted by the trial court reveals they were both accurate and based upon the evidence adduced in the record. Clearly, appellee's statements of facts were accurate, therefore, the trial court did not err in adopting them. Accordingly, appellant's third assignment of error is also overruled. The judgment of the trial court is affirmed, -14- It is ordered that appellee recover of appellant 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 Cuyahoga County 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. JAMES D. SWEENEY, C. J., AND *AUGUST PRYATEL, J., CONCUR JUDGE KENNETH A. ROCCO *(Sitting by assignment: Judge August Pryatel, retired, Eighth District Court of Appeals). 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 .