COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70965 R.J. WEISS DEVELOPMENT CO., : ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION THE BOARD OF ZONING APPEALS : ETC., ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : JULY 3, 1997 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-295288 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFFS-APPELLANTS: FOR DEFENDANTS-APPELLEES: Sheldon Berns, Esq. Joseph W. Diemert, Jr. Benjamin Ockner, Esq. 1360 S.O.M. Center Road Kahn, Kleinman, Yanowitz, & Mayfield Hts., Ohio 44124-2189 Arnson, Co., L.P.A. 2600 Tower at Erieview 1301 E. 9th St., #260 Cleveland, Ohio 44114 Benjamin Ockner, Esq. 2600 Tower at Erieview 1301 E. 9th Street Cleveland, Ohio 44114-1824 Roger J. Weiss, Esq. Goodman, Weiss, Miller, Freedman 100 Erieview Plaza 27th Fl., Erieview Tower Cleveland, Ohio 44114-1824 -2- ROCCO, J.: Appellants R.J. Weiss Development Company and Karen Harmon appeal the trial court's decision which affirmed the decision of the Village of Chagrin Falls Board of Zoning Appeals, finding that it was supported by a preponderance of the reliable, probative and substantial evidence in the record. Additionally, appellant appeals the trial court's failure to conduct a de novo hearing in this matter. As the trial court's decision was not an abuse of discretion, and appellant's dismissal of the declaratory judgment action prevented the trial court from holding a trial de novo, we affirm. Background On February 6, 1993, Roger Weiss (Weiss) entered into an Option and Purchase Agreement to acquire 21.6 acres of property in the Village of Chagrin Falls, Ohio (the property), from appellant Karen Harmon. The property is located approximately 400 feet away from the Chagrin River, and is zoned for single family residential use. Weiss subsequently assigned his option 1 to appellant R.J. Weiss D Appellant's engineer thereafter prepared and submitted a sketch of a proposed subdivision pursuant to Section 1161.04(a)(2) of the Village of Chagrin Falls Planning and Zoning Code (the Code). The sketch was presented to the Village of 1 As the assignments of error primarily deal with appellant R.J. Weiss Development Company, this court will hereinafter refer to appellant in the singular. -3- Chagrin Falls Planning and Zoning Commission (the Planning Commission) on March 15, 1993. On May 27, 1993, appellant met with representatives from the Village of Chagrin Falls (the Village) to discuss the preliminary plat prepared by appellant. On June 4, 1993, Weiss notified appellant Karen Harmon that he would be exercising the option for the purchase of the property. The Buffer Zone Ordinance On June 14, 1993, Council for the Village enacted Ordinance No. 1993-47, titled "An Emergency Ordinance Creating Section 1353.08 Establishing a Buffer Area Around Streams and Rivers" (hereinafter the Buffer Zone Ordinance or the Ordinance). The purpose of the Buffer Zone Ordinance was designated as follows: to limit impact of land uses on rivers in order to preserve and conserve the quality, purity, clarity and free-flowing condition of streams, maintain natural water temperatures, preserve aquatic and terrestrial plant and animal habitat, prevent erosion of stream banks, lessen the level of siltation of stream waters, and preserve valuable water resources in the interest of present and future generations. The coverage of the Ordinance is defined as: (b) Boundary. The buffer area shall be maintained along both sides of stream channels which have a mean surface width at normal low water of at least ten (10) feet or greater and wetlands as defined by the Army Corp. of Engineers and the United States Environmental Protection Agency (E.P.A.) The minimum boundary of the buffer area shall be set at one hundred twenty (120) feet in a horizontal plane outward from the normal low water mark of the stream channel. It shall be preserved in its natural state and shall be adjusted outward to include sensitive areas such as steep slopes, wetlands and wooded areas adjacent to the stream. Uses permitted in the buffer zone are limited to activities which will not significantly affect the natural quality of the area. -4- As an "emergency ordinance", the Ordinance became effective immediately, without the usual thirty day waiting period. The Chief Administrative Officer of the Village subsequently informed Weiss that the Buffer Zone Ordinance may affect the potential development of the property. On July 12, 1993, appellant's representatives again met with representatives of the Village. Weiss learned that the Village's interpretation of the Ordinance limited development of the property. Over the next several months, Weiss attempted to convince the Village to alter their interpretation of the Ordinance. Appellant's Proposals On January 3, 1995, appellant submitted a preliminary plat for the proposed Cherry Knoll Subdivision, along with alternative drawings, to be reviewed by the Planning Commission. On May 11, 1995, Thomas Colpetzer (Colpetzer), the Village Engineer, submitted a letter to the Chief Administrative Officer (hereinafter the Colpetzer letter) which evaluated the plat and noted several objections to the proposal. The objections included: 1. Angles in the street lines should be connected by a curve with a radius of not less than 300 feet for local streets. 2. Sublots 4 and 5 do not meet the minimum lot depth of 160 feet. 3. Based upon the determination that the wetlands are adjacent to the Chagrin River, the Buffer Zone extends 120 feet beyond the wetlands, which would interfere significantly with the proposal. 4. The developer would be required to obtain approval from the Corps of Engineers before filling in or changing the boundaries of the wetlands. -5- The Colpetzer letter also included concerns regarding steep slopes, grading, and roadway improvements. The Proceedings Below On May 15, 1995, a meeting of the Planning Commission was held, and appellant submitted a proposal titled "final plat" for 2 review. Appellant maintains this "final plat" (hereinafter plat) satisfied the objections raised in the Colpetzer letter regarding angles and minimum lot depth. The Planning Commission denied approval of the plat. On June 9, 1995, appellant gave notice of its appeal of the Planning Commission's decision to the Village of Chagrin Falls Board of Zoning Appeals (hereinafter the BZA or appellees). The BZA held hearings on September 5 and 6, 1995. After the hearings were concluded, the BZA determined that the Planning Commission had not abused its discretion when disapproving the plat. Furthermore, the BZA determined appellants were not entitled to a variance from the Buffer Zone Ordinance. The decision of the BZA was confirmed by the Council of the Village at a regular meeting on September 11, 1995. Pursuant to R.C. Chapter 2506, appellant thereafter filed a Notice of Appeal of the BZA's decision in the court of common pleas. Appellant also filed a declaratory judgment action. On December 13, 1995, the appeal and the declaratory judgment action were consolidated. Thereafter the trial court established a 2 The plat was incorrectly termed "final", as the Planning and Zoning Code Section 1161.04(k) permits the submission of a "final plat" only after a preliminary plat is approved. -6- briefing schedule and then a modified schedule. After the matter had been fully briefed, appellant filed several motions: for a separate hearing as to the constitutional claims, for a view of the premises, and to strike the affidavit of William Tomko. Appellees opposed all motions. On July 1, 1996, the trial court issued the following order: Motion for separate hearing filed by appellants is hereby DENIED. Motion to view premises filed by appellants is hereby DENIED. The Court further finds that the decision of the Chagrin Falls Board of Zoning Appeals is supported by a preponderance of reliable, probative and substantial evidence, and therefore this Court affirms the decision of the Board. The appellants R.C. 2506 appeal is hereby DENIED. The parties are instructed to file a Motion for Summary Judgment or Motion for Trial De Novo on the issue of the declaratory judgment action. The trial court did not rule on appellant's motion to strike the affidavit of Tomko. Appellant subsequently dismissed the declaratory judgment action pursuant to Civ.R. 41(A)(1). The trial court, noting the voluntary dismissal of the declaratory judgment action and the denial of the administrative appeal, filed a journal entry designating both cases as "final". Appellant timely filed a notice of appeal of the trial court's decision in this court. ASSIGNMENTS OF ERROR Appellant states three assignments of error. Appellant's first assignment of error states: I. THE TRIAL COURT ERRED IN FAILING TO CONDUCT A DE NOVO TRIAL AS TO APPELLANTS' CLAIM THAT 1353.08 OF THE BUILDING CODE OF THE VILLAGE OF CHAGRIN FALLS IS UNCONSTITUTIONAL AS -7- INTERPRETED AND APPLIED BY THE VILLAGE TO APPELLANT'S PROPERTY Appellant's first assignment of error contends that the trial court erred by failing to conduct a de novo trial on the issue of the constitutionality of the ordinance. It is appellant's position that the Buffer Zone Ordinance is unconstitutional as applied to the property, but that the matter cannot be determined without conducting a trial de novo in the court below. Appellant's Declaratory Judgment Action This court finds appellant's first assignment of error to be curious. The trial court, in its entry affirming the BZA's decision, also ordered the parties to submit motions for summary judgment or for de novo trial on the declaratory judgment action. Thus, the trial court clearly planned to entertain the issue of the constitutionality of the Ordinance separately from the appeal of the administrative decision, and indeed, apparently anticipated a trial de novo on the issue. Rather than comply with the trial court's directive, however, appellant voluntarily dismissed the declaratory judgment action pursuant to Civ.R. 41(A). Therefore, this court finds that appellant was deprived of a trial de novo on the constitutionality issue due to his own actions, and not the actions of the trial court. We find no error by the trial court of which appellant can complain. Appellant's first assignment of error is overruled. Appellant's second assignment of error states: -8- II. THE TRIAL COURT ERRED IN AFFIRMING THE DECISION OF THE BOARD OF ZONING APPEALS OF THE VILLAGE OF CHAGRIN FALLS Appellant's second assignment of error contends the trial court erred when it affirmed appellee's decision in the proceedings below. Standard of Review R.C. 2506.04 provides the appropriate standard which a court of common pleas must apply when reviewing a decision of an administrative agency. The common pleas court is required to weigh the evidence in the record, and whatever additional evidence is admitted pursuant to R.C. 2506.03, to determine whether a preponderance of the reliable, probative and substantial evidence exists to support the agency's decision. Dudukovich v. Housing Authority (1979), 58 Ohio St.2d 202, 207. However, the court must not blatantly substitute its judgment for that of the agency, particularly in areas of administrative expertise. Id. The authority of a court of appeals does not include the same extensive power to weigh 'the preponderance of substantial, reliable, and probative evidence' as is required of the common pleas court. Kisil v. Sandusky (1984), 12 Ohio St.3d 30, footnote 4. The standard of review for an appellate court in an administrative appeal pursuant to R.C. 2506 is quite narrow. Howard v. Coventry Twp. Bd. of Zoning Appeals (1996), 110 Ohio App.3d 691, 693. The appellate court must affirm the decision of the common pleas court unless it finds, "as a matter of law, that the decision of the common pleas court is not supported by a -9- preponderance of reliable, probative and substantial evidence." Id. quoting Kisil v. Sandusky, supra. See also Lesser v. Cleveland (1995), 102 Ohio App.3d 151, 156 (the court of appeals may reverse a decision by the common pleas court if the lower court's judgment is against the manifest weight of the evidence.) The Proceedings Below The BZA, following two evenings of proceedings, held that the Planning Commission did not abuse its discretion by failing to approve the plat. The BZA also denied appellant's request for a variance. The trial court found that the decision of the BZA was supported by a preponderance of reliable, probative and substantial evidence in the record. Thus, this court must now affirm the decision of the trial court unless we find that, as a matter of law, the trial court's decision is not supported by a preponderance of reliable, probative and substantial evidence. See Kisil v. Sandusky, supra; Howard v. Coventry Twp. Bd. of Zoning Appeals, supra. The Planning Commission voted to deny the proposed plat for the Cherry Knoll subdivision on the basis of the objections raised in the Colpetzer letter, particularly the objection that the Buffer Zone Ordinance would significantly encroach on the proposed development. According to appellant, the buffer zone includes 120 feet on either side of the Chagrin River as well as the actual wetlands. Colpetzer, on the other hand, interpreted the ordinance as applying a 120 foot buffer zone to all of the wetlands on the property. -10- In support of its position, appellant submitted documents and expert testimony. Appellant, first before the Planning Commission and later before the BZA, submitted testimony to demonstrate that the wetlands are not part of the Chagrin River. (Transcript of Hearing before the Planning & Zoning Commission (hereinafter P & Z Tr.) p. 21); Transcript of Hearing before the Village of Chagrin Falls Board of Zoning Appeals (hereinafter BZA Tr.) p. 85). In addition, appellant's expert testified that with appellant's planned use for the wetlands as stormwater management, "there's no way you're going counter to the intention of [the Buffer Zone Ordinance]." (BZA Tr. p. 97). The Village, on the other hand, relied on Colpetzer's conclusion that: *** with the wetlands adjacent to the river, the 120' buffer zone would extend beyond the boundary of the wetlands and encroach significantly in the proposed subdivision. The Village also looks to the plain language of the Ordinance to support their position. It interprets the buffer area to exist along both sides of stream channels and wetlands. However, this court's review of the evidence indicates that the Village has authority to reject appellant's preliminary plat, even adopting appellant's interpretation of the Buffer Zone Ordinance. The plat reveals that Subplot numbers 1, 4, 5, 19, and 20 have significant portions of the wetlands within their boundaries, although Weiss had testified the properties would not include the wetlands. (P & Z Tr. p. 46). The Zoning Code, at section 1165.05(d)(2) allows the Planning and Zoning Commission -11- to determine whether the proposal to be subdivided is "unsuitable for subdivision development" due to, inter alia, topography. Appellant's counsel suggests that the owner of a sublot would be prevented from building on these wetlands, as the approval of the United States Army Corps of Engineers would still be required. However, this suggestion is impractical at best. The area would require constant policing, and subdividing the wetlands may create many difficulties in the future. Thus, the Village had sufficient grounds to reject the plat as proposed. The Variance Appellant also contends that, if the appellee's interpretation of the ordinance is correct, then they should have been granted a variance. A variance is intended to permit amelioration of strict compliance of a zoning ordinance in individual cases. Consolidated Mgmt., Inc. v. Cleveland (1983), 6 Ohio St.3d 238, 240. It provides a flexible procedure to protect a property owner's constitutional rights. Id. (citations omitted). A board's authorization or denial of a variance is presumed to be valid, and the burden of showing the claimed invalidity rests upon the party contesting the determination. Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals (1993), 66 Ohio St.3d 452, 456 citing C. Miller Chevrolet v. Willoughby Hills (1974), 38 Ohio St.2d 298, paragraph two of the syllabus; McCauley v. Ash (1954), 97 Ohio App. 208, 216. Section 1111.07 of the Zoning Code provides that the Board of Zoning Appeals has the authority to grant a variance from the Zoning Code when certain criteria are met. These criteria -12- include: a) Where unnecessary hardships would result from the literal application of this Code ***. b) Where exceptional circumstances or conditions, only applicable to the property involved or to the intended use of the property, do not apply to other property within the same zone ***. c) Where granting a variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the neighborhood in which the property is located ***. d) That the granting of a variance will not be contrary to the general purpose, intent, and objectives of this Code or other adopted plans ***. Specifically, Section 1353.05 of the Village's Building Code provides for a variance procedure from the requirements of Chapter 1353, which includes the Buffer Zone Ordinance. Under section 1353.05(b): (5) Variances shall only be issued upon: A. A showing of good and sufficient cause; B. A determination that failure to grant the variance would result in exceptional hardship to the applicant; and C. A determination that the granting of a variance will not result in increased flood heights beyond that which is allowed in this chapter, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public as identified in subsection (a)(4) hereof or conflict with local laws or ordinances. The record illustrates that if the buffer zone extends 120 feet beyond the wetlands, the only access to the property is through the buffer zone, and even the existing driveway on the property would pass through the buffer zone. Thus, appellant -13- argues that the Buffer Zone Ordinance, as interpreted by the Village, deprives them of all economical viable use of their land; demonstrating good cause and an exceptional and unnecessary hardship. The testimony of an independent real estate appraiser, an expert for appellant, who evaluated the property with the buffer zone restricting all access to the property, estimated the current fair market value of the property to be zero. (BZA Tr. p. 241). In contrast, if the buffer zone around the wetlands was not included, he estimated the property value at $500,000. (BZA Tr. p. 243). However, the real estate appraiser did not take into account the possibility that the Village of Chagrin Falls might consider acquiring the property. (BZA Tr. p. 245). Furthermore, also in the record is a letter from the Director of Law of the Village to appellant where he reiterates the interpretation of the Buffer Zone Ordinance as creating a buffer zone extending from the wetland area. He also notes that: the Village would probably be amenable to your using the existing driveway to the home on the property and development of five or so homes off of this private drive ***. Thus, although appellant would not be able to construct its current subdivision plan, there is evidence it would not be deprived of all economic viable use of the land. The mere fact that property can be put to a more profitable use does not, in itself, establish an unnecessary hardship where less profitable -14- alternatives are available within the zoning classification. 3 Consolidated Mgmt Appellant has failed to demonstrate that an unnecessary hardship would result from the application of the Ordinance to the property. However, appellant correctly contends that the variance appellant seeks is not a "pure use variance", but is an area variance. See Kisil v. Sandusky, supra at 31-32. The property is already zoned for single family residential use. Appellant seeks a variance from the minimum boundary requirement established by the Ordinance. The standard adopted for area variances is less than the standard adopted for use variances. An application for an area variance need not establish unnecessary hardship; it is sufficient to show practical difficulties. Kisil v. Sandusky, supra at the syllabus. The court in Duncan v. Middlefield (1986), 23 Ohio St.3d 83, 86, clarified the definition of practical difficulties: [t]he 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 includes, 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 3 This action began with appellant seeking to subdivide the 21.6 acres of land he purchased for $500,000 into twenty-nine sublots for homes. The Village now interprets the Buffer Zone Ordinance to prevent any homes from being built on the property. It is clear that many alternative uses for the property exist. -15- 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. See also Haven v. Solon (December 5, 1996) Cuyahoga Cty. App. Nos. 70302, 70303, unreported. Applying the factors enumerated in Duncan to the action sub judice, appellant still failed to demonstrate that application of the Ordinance would be inequitable. There is still beneficial use of the property without the variance, the variance is substantial, adjoining property may suffer a detriment as a result of a variance, the property owner's predicament can be obviated through other methods, and the spirit and intent behind the Buffer Zone Ordinance would not be observed if the variance was granted. Thus, even under the lesser, practical difficulties standard, appellant has failed to demonstrate that he is entitled to a variance. The Colpetzer Letter Finally, appellant argues that the Planning Commission's denial of the plat could not be supported based on the Colpetzer letter, as the Planning Commission did not review the plat after appellant had made adjustments based on some of Colpetzer's objections. The record reveals that at least one of the objections in Colpetzer's letter has been remedied. There is no longer a dispute that sublots 4 and 5 are of sufficient minimum lot depth. (BZA Tr. p. 197). Additionally, appellant testified that it has eliminated the need to fill in any portion of a wetland. (BZA Tr. p. 26). -16- However, the Colpetzer letter also expressed concern over the Buffer Zone Ordinance, and noted that Village approval would be required before construction could proceed. This issue certainly has not been remedied. As this crucial issue was also a part of the Colpetzer letter, the Planning Commission could correctly deny the plat based on the letter. The trial court did not abuse its discretion in affirming the BZA's findings. Appellant's second assignment of error is overruled. Appellant's third assignment of error states: III. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANTS' MOTION TO STRIKE THE AFFIDAVIT OF COUNCILMAN, WILLIAM TOMKO, AND THE EXHIBITS THERETO. Appellant contends the trial court erred in failing to grant its motion to strike the affidavit of William Tomko and the attached exhibits, on the grounds the evidence was not part of the record before either the Planning Commission or the BZA and was not admissible pursuant to R.C. 2506.03. This motion was never ruled on by the trial court. Where a court fails to rule on a motion, it is presumed to be overruled. Solon v. Solon Baptist Temple Inc. (1982), 8 Ohio App.3d 347. Additional Evidence R.C. 2506.03 permits the introduction of additional evidence at the trial court level when either the transcript does not contain all evidence admitted or proffered by the appellant or the appellant was not able to appear and be heard, and was unable to present his case via one of the methods enumerated in the statute. The record indicates that appellees do not satisfy -17- the criteria in the statute. In addition, as no trial de novo was held, there was no reason for the court to consider evidence outside of the record. Appellees' additional evidence should not have been considered. However, as discussed above, there was ample evidence in the record upon which the trial court could have based its decision without resort to the additional evidence. Therefore, such error is harmless error, and does not warrant a reversal of the trial court's decision. Appellant's third assignment of error is not well taken. Appellant's assignments of error are overruled. The decision of the trial court is affirmed. -18- 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 M. PORTER, P.J., CONCURS; TERRENCE O'DONNELL, J., CONCURS IN JUDGMENT ONLY. JUDGE KENNETH A. ROCCO 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 .