COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72293 ROBERT CORSARO : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION CITY OF HIGHLAND HEIGHTS : BOARD OF BUILDING AND : ZONING APPEALS : : DEFENDANT-APPELLEE : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 5, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-308010. JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Timothy J. Grendell, Esq. Grendell & Targove, L.L.P. 6060 Rockside Woods Boulevard, #250 Independence, Ohio 44131 For Defendant-appellee: Timothy G. Paluf, Esq. 410 Leader Building Cleveland, Ohio 44114-1979 Stephen L. Byron, Esq. Interstate Square Building, #240 4230 State Route 306 Willoughby, Ohio 44094 -2- JAMES D. SWEENEY, J.: Plaintiff-appellant m the trial court's affirmance of defendant-appellee City of Highland Heights Board of Zoning Appeals' denial of an area variance for his property. For the reasons adduced below, we reverse. ew of the record indicates that Corsaro, a long-timRobert Corsaro ( home developer and builder in the City of Highland Heights, is an elderly gentleman over eighty years of age and is the owner of the subject property, a platted residential one-half acre lot, permanent parcel number 822-15-019, with 150 feet of frontage along Wilson Mills Road, a heavily-traveled four-lane thoroughfare in the City of Highland Heights, Ohio1. The Corsaro parcel measures 153 feet deep and is located at the corner of Wilson Mills Road and a fifty-foot easement along the east side of the parcel which is identified as Echo Lane. Residential homes surround the parcel to the east (the Storey property), west (the Henley property) and north (the Dasher property2), with the south side being Wilson 1The parcel was originally platted as residential in 1927 by the County Recorder, a time period which significantly predates the enactment of the City's 1963 Zoning Code. Corsaro purchased the parcel in 1964. 2The Dasher property, which is a deep lot containing a home built in 1923 which sits sideways to Wilson Mills Road on the lot and whose front door faces to the east, is identified as a Wilson Mills Road address. The Dashers have an easement, which is the same easement along the east boundary of Corsaro's parcel, identified by appellant as Echo Lane , which acts as the Dasher's driveway, emptying into Wilson Mills Road. The Corsaro parcel basically sits in the side yard of the Dasher homestead, with the Dasher garage having been built three feet over the Corsaro parcel's northern boundary line. Thus, if the Corsaro home is granted the variances sought and allowed to be built -3- Mills Road. The Corsaro parcel, which has had water and sewer service installed by appellant, is zoned as U-1 Residential pursuant to the City's Zoning Code, which was enacted in 1963. Pursuant to Highland Heights Codified Ordinance 1123.03, permitted uses in U-1 districts include single-family dwellings, and publicly owned parks, playgrounds and buildings. Also, Section 1123.08(a) provides the following setback restriction for appellant's parcel: The same distance from the street line as the average distance from the street line as buildings located on the same side of the street, and within four lots on both sides of said lot, but not less than (1963 - 65ft.; current 60 ft.). The difference in setback shall not be more than 10 ft. between adjoining lots insofar as possible. Appellant's Brief, at 3. (Emphasis in original.) The average setback of the homes in question to the east and west of this parcel on the same side of Wilson Mills Road is approximately 117 feet. See minutes of August 28, 1995 Planning Commission hearing, at 9. Both at the time Corsaro purchased the parcel, and at the present time, the parcel could not be built upon if the setback requirements above were enforced. Corsaro had made a prior attempt in 1989 to obtain permission from the City to build a private residence on the property, without success. In this most recent attempt to obtain a variance, Corsaro went to the City's Planning Commission meeting on August 28, 1995, with a sketch plan in hand. The sketch plan depicted a rectangular sideways to Wilson Mills Road, the Corsaro north side yard will run approximately seven feet from the Corsaro home before it runs into the side wall of Dasher's garage. -4- two-story home, 35.75 feet by 48.75 feet in dimension (3485.62 total square feet for a two-story structure), fronting Wilson Mills Road, which would require an approximately 20 foot setback variance from the minimally mandated 95 foot setback. After some discussion, the Planning Commission reconfigured the original sketch plan by requesting that the home be turned sideways (so as to not front the dedicated street, Wilson Mills Road, but instead front the structure facing the easement to the east, Echo Lane , which intersects with Wilson Mills Road) and specified the side yards and rear yard setback distances, and further advised Corsaro to return with a revised plan incorporating these revisions for further evaluation and consideration. See Exhibit E attached to Appellant's Brief for a copy of the revised sketch plan. Corsaro made the requested revisions and resubmitted the sketch plan at the Planning Commissions' meeting of November 27, 1995, seeking in the process area variances necessitated by the revisions. The three adjoining landowners (Storey, Henley and Dasher) appeared at this hearing and voiced their objections to the development, namely, (1) that the proposed development would be an eyesore and harm their property values, (2) that placing a home in front of the Dasher home would be confusing to people and businesses trying to locate the Dasher home, (3) that the numbering of the Dasher home and the proposed Corsaro home on Wilson Mills Road would be confusing to people, (4) that people near the parcel like the undeveloped look of the parcel in relation to their property, (5) and that adults and children in the area have grown accustomed over the years to -5- trespassing on the parcel in walking dogs on the parcel, riding bicycles over the parcel, playing on the parcel or otherwise using the parcel for their own use. The Planning Commission met on several occasions to discuss Corsaro's matter. The area variances sought include the following: (1) Variance of six (6) ft. From building line requirements of S1123.08 to place the building line at 95 ft. From Wilson Mills Road; (2) Variance to permit a house to front other than a dedicated street - Section 1101.18(b) and 1107.02; (3) Variance of ten (10) ft. from S1123.08; and (4) Variance of 5.75 feet from S1123.08 to permit the front depth at 57.25 feet. Appellant's Brief at 43. Corsaro also stated that, pursuant to the request of the Planning Commission so as to resolve an objection from his neighbor, Mr. Dasher (the neighbor to the North), he would grant a three foot easement for a waterline and access to that waterline for repairs in the future. See Planning Committee minutes of January 22, 1996, at 15-16. The Planning Commission unanimously denied the area variances at the close of the January 22, 1996, hearing. Corsaro appealed this denial to the City's Board of Zoning Appeals which, after lengthy public hearings on two dates (April 11 and May 2, 1996), 3Applying the requested variances, Corsaro's proposed home on the parcel would be located as follows: (1) 95 feet from Wilson Mills Road to the south, forming a side yard; (2) 55 feet from the Henley property to the west, which would form the back yard; (3) 59.25 feet from the easement to the east, which would form the front yard; and, (4) 10 feet from the Dasher property line to the north, forming a side yard. See minutes of the April 11, 1996 Board of Zoning Appeals, at 13-14. -6- upheld the denial of the area variances. The record before the Board indicates that Corsaro submitted a letter dated November 23, 1988, from the City's then law director, attorney Dale Feneli, addressed to the Zoning Commission and regarding Corsaro's first request for variances, stating in pertinent part the following: Mr. Corsaro need not apply for a variance on his lot size in accordance with Section 1123.08 of the Codified Ordinances as amended by the electorate on May 3, 1988. Since the subject parcel had already been platted and recorded of record it constitutes a non- conforming lot and any development of that lot should be in accordance with Section 1123.08 as previously constituted. Mr. Corsaro does, however, need to apply for variances on front and rear yard setbacks since he does not comply with the ordinance as it formerly existed. Corsaro also offered the testimony of Mr. Roger Ritley, a real estate economist and planning consultant, who stated generally that if the board ignored the insofar as possible language in the zoning code, a residence could not be built upon the property unless the variances were allowed. In further support of his request for variances, Corsaro offered a report authored by Mr. Robert C. Hill, a professional planning consultant and municipal planner. Mr. Hill's report opined the following: (1) that the insofar as possible language in the City's zoning code mandates that the variances be granted, otherwise it would be impossible to ever build a residential dwelling on the parcel using the mandated setback requirements; (2) that the variances sought should be granted due to the presence of practical difficulties in complying with the setback requirements; (3) the parcel can only be developed -7- if variances are granted; (4) granting the variances to allow the construction of a home in front of the existing Dasher home, turned sideways to Wilson Mills Road, will not result in a detriment to the health, safety and welfare of the community if grading was properly done, landscaping performed, and window alignments properly planned by Corsaro. Finally, Corsaro offered as evidence a survey of a nearby home located at Wilson Mills Road and Kennelwood Drive whose setback is closer to Wilson Mills Road than is the proposed Corsaro dwelling. The matter was then appealed to the trial court pursuant to R.C. 2506, et seq. On March 11, 1997, the trial court, based on the record provided and the briefs of the parties, affirmed the denial of the requested variances, stating: Based upon a preponderance of reliable, probative and substantial evidence on the whole record, the Court hereby affirms the Board of Zoning Appeals' decision to uphold the denial of Appellant's requested variances. That decision was properly based upon health, safety and welfare concerns and Appellant's interpretation of Highland Hts. Zoning Code Section 1123.08 is overly broad and his reliance on the insofar as possible language is misplaced. Journal Vol. 2057, page 632. This timely appeal from the trial court's March 11, 1997 final order presents four assignments of error for review. Prior to addressing these assignments, this court had cause to discuss, at length, general considerations involved in an appeal from the denial of an area variance in Belich v. Bd. of Zoning Appeals, City -8- of Solon (April 17, 1997), Cuyahoga App. No. 70562, unreported, 1997 WL 186779, at 3-4: 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 preponderanceof 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. 2506.04 administrative appeal of a decision 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 thedecision of the common pleas court is not supported by a preponderanceof reliable, probative and substantial evidence. [Footnote omitted.] Kisil v. Sandusky (1984), 12 Ohio St.3d 30 at 34. (Emphasis added.) -9- 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. 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 government services (e.g. water, sewer, garbage); (5) whether the property owner purchased the property with knowledge of the -10- 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. We now turn to the four assignments of error presented by the property owner. The first and second assignments will be discussed jointly since they present common issues of law and fact. I THE TRIAL COURT ERRED IN UPHOLDING THE HIGHLAND HEIGHTS' ARBITRARY, CAPRICIOUS AND UNREASONABLE DENIAL OF AREA VARIANCES REQUIRED FOR THE CONSTRUCTION OF A HOME ON APPELLANT'S ONE-HALF ACRE PLATTED, NONCONFORMING SINGLE FAMILY LOT, FRONTING ON WILSON MILLS ROAD. II THE TRIAL COURT ERRED BY UPHOLDING AREA VARIANCES NEEDED FOR THE RESIDENTIAL USE OF APPLICANT'S NONCONFORMING ONE-HALF ACRE LOT DUE TO PRACTICAL DIFFICULTIES, BECAUSE THE CITY'S DECISION WAS NOT SUPPORTED BY PROBATIVE, RELIABLE OR SUBSTANTIAL EVIDENCE OF RECORD. Having reviewed the record, it is evident that, if the variances are not granted to give relief from the setback requirements contained in the City's zoning code, the parcel, which is anything but a postage stamp sized lot as argued by the City, may not be developed for a residential dwelling. It is equally evident that the zoning code, by using the language insofar as possible, contemplates the potential for relief from the setback mandates to an owner of a non-conforming parcel. What is at issue -11- is whether there was a preponderance of reliable, probative and substantial evidence to support the trial court's decision in affirming the board's denial of the variances at issue. R.C. 2506.04. In answering this question, we must determine whether the trial court abused its discretion in determining that the landowner did not show practical difficulties pursuant to Kisil v. Sandusky, supra, and the non-exhaustive factors contained in Duncan v. Middlefield, supra. Examining the Duncan factors, we note that the first factor supports the landowner since the parcel cannot be developed for residential use absent the use of area variances. The second Duncan factor, whether the sought variances are substantial, also supports the landowner when viewing the totality of the four requested variances, which are cited at Appellant's Brief, at 4, and have been reproduced earlier in this opinion. Also see fn. 3, supra. The third Duncan factor, also inures to the support of the landowner. It has not been demonstrated that, under the first clause of this factor, the essential character of the neighborhood would be substantially altered. The neighborhood was, and will remain, single-family residential dwellings on the north side of Wilson Mills Road in the vicinity of the Corsaro parcel if the variances are granted. The second clause of the third factor, whether adjoining properties would suffer a substantial detriment as a result of the variance, is also, by the preponderance of the evidence, in support of the landowner. The detrimental effects -12- voiced by the adjoining landowners cannot, in totality, be considered to be a substantial detriment to the development of the Corsaro parcel. Mr. Dasher's speculations aside, there is no substantiation that people would not be able to locate his residence if Corsaro is given permission to build his proposed dwelling. The sketch plan submitted by Corsaro utilizes a separate driveway emptying onto Wilson Mills Road for the proposed Corsaro dwelling, one which would not obstruct or use Mr. Dasher's driveway in any way. With separate and distinct driveways, and the use of proper markings and/or numbering, it is difficult to imagine that persons or City safety forces seeking the residence of Mr. Dasher would be unable to locate it with rapidity and even drive up to the Dasher residence using Dasher's own driveway. The only detriments to Mr. Dasher are the following: (1) that his street number may change as a result of the proposed dwelling; (2) that he has fears of a drainage problem from water run-off from the Corsaro parcel; and, (3) the distance between his house and the proposed dwelling is too little. We do not believe that these impediments rise to the level of a substantial detriment. While Mr. Dasher's number may change, it may not. If it does, Mr. Dasher will undoubtedly be inconvenienced in having to make changes to his address on magazine/newspaper subscriptions, utility billings, stationery, etc., but this detriment is minimal when viewed in relation to the inability of a property owner to utilize his constitutionally protected private property rights. As to the fears of a drainage problem, we note that the objecting adjoining landowners put forth -13- no supporting evidence demonstrating that this, indeed, is a valid concern. Corsaro, on the other hand, produced an expert's report indicating that any problems inherent in the development of the parcel can be obviated through the use of proper grading and landscaping measures, which measures can be overseen and approved by the City during the planning and building process. As to the final concern of Mr. Dasher, the distance between the buildings, it is noted that the Corsaro's proposed dwelling would be approximately 7 to 10 feet from the wall of Mr. Dasher's garage, which is not an occupied structure. The view from Dasher's residence, which sits sideways on the lot in the same direction as would the Corsaro dwelling, to the Corsaro dwelling, would be interrupted by the Dasher garage. To alleviate this concern, as the expert report of Corsaro noted, landscaping methods and window placement on that wall of the Corsaro dwelling could be utilized to minimize the adverse impact of the southern view from Dasher's residence. There is no demonstrable evidence in the record, apart from idle speculation by Mr. Dasher that City safety forces would be confused by the new dwelling, that the fourth Duncan factor would be of benefit to the adjoining landowners. Instead, Corsaro's expert's report noted that the proposed dwelling posed no detrimental impact to the health or safety of the citizenry. Accordingly, this factor must be viewed by a preponderance of the evidence in favor of Corsaro. -14- The fifth Duncan factor clearly runs against Corsaro based on a preponderance of the evidence. While Corsaro testified that he did not know the parcel could not be developed at the time he purchased the parcel in 1964, it is equally clear that the zoning code was enacted in 1963 and it is a general statement of legal theory that ignorance of the law is no excuse. The sixth Duncan factor, by a preponderance of the evidence, is in favor of Corsaro. All the evidence suggests that the parcel can only be developed for its permitted use, a single-family dwelling, if the mandated setback requirements are relaxed by use of area variances. The seventh Duncan factor also is in favor of Corsaro by a preponderance of the evidence. The spirit and intent of the setback requirements in relation to the Corsaro parcel is to achieve a common setback for homes fronting along Wilson Mills Road. The City's zoning code recognizes that setback can and should be modified under appropriate circumstances through the use of the phrase insofar as possible. In summary, we conclude that Corsaro demonstrated practical difficulties by a preponderance of the evidence under the Duncan factors. Accordingly, the trial court abused its discretion in affirming the denial of the requested variances. The first and second assignments of error are affirmed. The remaining two assignments state the following: III THE TRIAL COURT ERRED BY UPHOLDING THE CITY'S ARBITRARY DENIAL OF APPELLANT'S USE OF HIS -15- PLATTED, PROPERLY ZONED SINGLE FAMILY ONE-HALF ACRE LOT FOR THE CONSTRUCTION OF A HOME THEREON. IV THE TRIAL COURT ERRED BY UPHOLDING THE CITY'S DENIAL OF MINIMAL AREA VARIANCES FOR THE APPELLANT'S CONSTRUCTION OF A HOME ON HIS PLATTED, ONE-HALF ACRE LOT BECAUSE THE SOLE BASIS FOR SUCH ARBITRARY DENIAL WAS UNFOUNDED OBJECTIONS MADE BY A FEW LOCAL RESIDENTS. By virtue of our decision in the first and second assignments of error above, the third and fourth assignments of error are moot and need not be discussed. See App.R. 12(A)(1)(c). Judgment reversed. -16- This cause is reversed. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said 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. TERRENCE O'DONNELL, P.J., and DIANE KARPINSKI, J., CONCUR. ______________________________ JAMES D. SWEENEY 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 .