COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72469 ALBERT CALTA, ET AL. : JOURNAL ENTRY : AND Plaintiffs-appellants: OPINION : -vs- : : CITY OF HIGHLAND HTS., : ET AL. : : Defendants-appellees: DATE OF ANNOUNCEMENT OF DECISION: MARCH 19, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CP-CV-294145 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: JOSEPH W. DIEMERT, JR., ESQ. TIMOTHY G. PALUF, ESQ. THOMAS M. HANCULAK, ESQ. 410 Leader Building 1360 S.O.M. Center Road 526 Superior Avenue Cleveland, Ohio 44124 Cleveland, Ohio 44114 EDWARD T. BRICE, ESQ. 214 East Park Street Chardon, Ohio 44024 -2- DYKE, P.J.: Albert and Carol Calta appeal from the judgment of the trial c ffirmed the decision of the Highland Heights Board of Building and Zoning Appeals (hereafter referred to as the BZA ) which granted Robert and Lorri Brice a variance to construct a ourt which afence partially within a swale that transects the Brice's ya For the reasons set forth below, we affirm. The record reflects that the Caltas reside at 697 Davidson Road, in Highland Heights. The rear portion of their property abuts the property of Robert and Lorri Brice who reside at 692 Miner Road. In April 1995, the Brices obtained a building permit to construct a split rail fence along the perimeter of their rear yard. It is undisputed that a shallow swale runs roughly diagonally across the rear portion of the yard. In addition, the Caltas complained that a drainage easement approximately forty feet wide extends across the back of the Brices' property, encompassing the swale.1The fence was therefore built in violation of Section 1123.21(c)(1) of the Planning and Zoning Code which provides that [n]o fence shall be constructed in any area that constitutes a recorded easement nor in any drainage swale. The code does authorize the granting of variances, however, where, inter alia, strict application of the provisions of the Zoning Code would 1The record contains evidence that the Brices' property is subject to a utility easement which was expressly granted. It is unclear whether a drainage easement was created by grant, implication, prescription or estoppel, see Kamenar Railroad Salvage, Inc. v. Ohio Edison, Inc. (1992), 79 Ohio App.3d 685, 689, but it is clearly outlined in the plat of the subdivision. -3- result in practical difficulties or unnecessary hardships[.] See Section 1113.10 of the Planning and Zoning Code. The Brices subsequently requested a variance for the fence. On June 12, 1995, the Highland Heights Planning and Zoning Commission (hereafter referred to as the PZC ) held a hearing on the matter. At this time, the Brices complained that they would suffer unnecessary hardship if prohibited from fencing in the area which includes the drainage swale because such prohibition would effectively deny them the use of forty percent of their rear yard. The Caltas insisted that the swale had to be left completely unobstructed in order to accommodate runoff water from eight acres of land in order to adhere to the longstanding policy of the city. Mr. Calta additionally complained that the fence changed the aesthetic look of his land. The PZC granted the requested variance on condition that: (1) the Brices assume all risk and responsibility for it in the event that the city damaged it during grading; (2) the Brices assume the responsibility for maintenance; and (3) the Brices install gates in the sections of the fence which cross the swale. The Brices installed split rail gates over the swale at an additional expense of $600. Mr. and Mrs. Calta appealed the decision of the PZC to the Highland Heights BZA, complaining that the fence could impede the flow of water through the swale during heavy rain and that they were being deprived of the `visual look' of the area. The BZA -4- heard the matter on July 31, 1995 and ultimately affirmed the decision of the PZC. On August 18, 1995, the Caltas filed a notice of appeal together with a complaint for declaratory and injunctive relief in the court of common pleas. Two months later, the Caltas moved for judgment on the pleadings because the BZA had not filed a transcript of the administrative proceedings with the lower court, contrary to the requirements of R.C. 2506.02. The trial court denied the motion, and the minutes of the July 31, 1995 BZA meeting were subsequently filed with the court. The Caltas renewed their motion, however, and averred that the BZA had failed to provide a complete record which included all of the documents and photographs which were introduced at the administrative levels. The court subsequently determined that a complete record had not been provided and it ordered that additional evidence could be presented pursuant to R.C. 2506.04. Thereafter, for reasons which are unclear from the record, the parties filed trial briefs with the court but did not adduce additional evidence. On December 16, 1996, the trial court determined that the Brices have met the standards for the issuance of the variance and it affirmed the decision of the Highland Heights BZA. The Caltas now appeal and assign three errors for our review. The first assignment of error advanced by the Caltas is as follows: -5- THE TRIAL COURT CLEARLY ERRED IN AFFIRMING THE DECISION OF THE BZA AND NOT GRANTING THE CALTAS' REQUESTS FOR DECLARATORY JUDGMENT AND AN INJUNCTION BECAUSE THE BRICES DID NOT MEET THE REQUISITE STANDARDS FOR A VARIANCE. Within this assignment of error, the Caltas assert that the Brices failed to meet the criteria for obtaining a variance, as set forth in Section 1113.10 of the Planning and Zoning Code. The Caltas maintain that there was an insufficient showing of practical difficulties or unnecessary hardship resulting from strict adher- ence to the prohibition against the construction of fences in recorded easement areas or drainage swales. We note, however, that the function of a reviewing court is not to determine, in the first instance, whether there is an unreasonable hardship or practical difficulty to justify the BZA's grant of the variance. See R.C. 2506.04; Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34. Rather, in an appeal taken pursuant to R.C. Chapter 2506, the board's authorization is presumed to be valid and the burden of showing the claimed invalidity rests upon the party contesting the determination. Consolidated Management, Inc. v. Cleveland (1983), 6 Ohio St.3d 238, 240; C. Miller Chevrolet v. Willoughby Hills (1974), 38 Ohio St.2d 298, paragraph two of the syllabus. Thus, 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 -6- 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 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. Kisil v. Sandusky, supra, at 34. In this instance, the record fails to demonstrate that the decision of the board was unconstitutional, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence. To the contrary, the prepon- derance of the evidence demonstrates that the Brices will be deprived of forty percent of their rear yard if prohibited from including the swale within the perimeter of their fence. The preponderance of the evidence suggests that the swale is relatively shallow. Finally, no evidence has been presented to indicate that the fence actually interferes with any runoff, and indeed, the split rail design of the fence would appear to preclude this problem. The record supports the conclusion that strict compliance with the zoning code in this instance would result in a significant deprivation of the full use of the subject property and would achieve questionable benefits. Accordingly, the decision of the BZA was not shown to be unconstitutional, arbitrary, capricious, unreasonable, or unsupported by the evidence. The first assignment of error is overruled. -7- The second assignment of error advanced by the Caltas is as follows: THERE WAS NO RATIONAL BASIS FOR THE TRIAL COURT'S DECISION BECAUSE THE VARIANCE IS UNLAWFUL UNDER THE HIGHLAND HEIGHTS ZONING CODE. Within this assignment of error, the Caltas complain that the grant of the variance effects a nonconforming use of the property. The Caltas also insist that the trial court erred in upholding the grant of the variance because it is undisputed that the fence was constructed in violation of Section 1123.21 of the Planning and Zoning Code. Finally, the Caltas complain that the grant of the variance violates well-settled law forbidding the construction of fences in easements. With regard to the first of these contentions, we cannot accept the claim that construction of the fence establishes a nonconforming use. Use is a term of art defined in Section 1101.16 as the purpose for which buildings *** may be *** occupied. Use districts include residential, business and manufacturing. See Chapter 1121 of the Planning and Zoning Code. Nonconforming uses are therefore determined in relation to such use district. See Chapter 1133. We further note that zoning regulations are in derogation of the common law and must be therefore be construed in favor of the landowner; the provisions of theses ordinances must be strictly construed and cannot be extended to include limitations not clearly prescribed. See, e.g., Sanders v. Clark (1981), 66 Ohio St.2d 259, 261. Accordingly, because the Brices are continuing to use their property for a single family -8- residence, we cannot agree that a nonconforming use has been created. With regard to the Caltas' additional claim that the variance violates Section 1123.21 of the Planning and Zoning Code, it is axiomatic that a variance allows a property owner to use his property in a manner that is otherwise prohibited by the zoning regulations. Nunamaker v. Board of Zoning Appeals (1982), 2 Ohio St.3d 115, 118, quoting Boston v. Montville Township Board of Appeals (1972), 32 Ohio Misc. 118, 120. Thus, by definition, the grant of a variance will result in derogation of some aspect of the zoning code. As to the final argument raised within this assignment of error, the Caltas rely upon Langhorst v. Reithmiller (1977), 52 Ohio App.2d 137, for the proposition that a servient tenant may not install a fence and gate in an easement area. We find this reliance misplaced. In Langhorst v. Reithmiller, supra, the court noted that the owner of the servient estate had granted the owner of the dominant estate an easement for ingress and egress. The court cited the general rule that a servient tenant may use his land for any purpose that does not interfere with the easement and held that where the easement is created by express grant, the owner of the servient estate has no right to erect a fence across the easement or along the middle line thereof, so as to obstruct the same, unless the grant specifically authorizes the construction of fences. Thus, insofar as it pertains to a dispute among private landowners concerning their respective rights in relation to an -9- easement for ingress and egress, and does not involve a landowner's attempt to obtain a variance to ameliorate strict compliance with a zoning code prohibition against the construction of a fence, Langhorst v. Reithmiller, supra, is inapposite to this matter. In any event, the BZA rejected the Caltas' contention that the fence would obstruct the flow of rainwater through the swale, and Langhorst v. Reithmiller, supra, is therefore distinguishable on that basis as well. The second assignment of error is without merit. The third assignment of error advanced by the Caltas is as follows: THE TRIAL COURT'S DECISION IS CLEARLY ERRONEOUS BECAUSE THE PZC ILLEGALLY USURPED THE LEGISLATIVE AUTHORITY OF THE HIGHLAND HEIGHTS CITY COUNCIL IN GRANTING THE VARIANCE. Within this assignment of error, the Caltas assert that the BZA did not adhere to the requirements of the Planning and Zoning Code and usurped legislative authority in granting the variance at issue. It is well-settled that a city may delegate tasks of interpretation of its zoning code to its board of zoning appeals. Rotellini v. West Carrollton Board of Zoning Appeals (1989), 64 Ohio App.3d 17, 21. In addition, as we noted in our discussion of the Caltas' second assignment of error, it is axiomatic that a variance allows a property owner to use his property in a manner that is otherwise prohibited by the zoning regulations. Nunamaker v. Board of Zoning -10- Appeals, supra. The authority to permit a variance does not include the authority to alter the character and use of a zoning district. Consolidated Management Inc. v. Cleveland, supra. Thus, by definition, a variance may not alter the zoning scheme or correct errors of judgment in zoning laws. See id. Moreover, the Highland Heights Planning and Zoning Code specifically provides for variances in instances where a literal application of these provisions would result in undue hardship to the property owner in question as a result of some peculiar condition or circumstance pertaining to a given piece of property. See Section 1101.17. As we also noted previously, the decision of the BZA was supported by a preponderance of reliable, probative, and substantial evidence. Moreover, the variance at issue simply resulted in the amelioration of the prohibition against construc- tion of fences in recorded easements or drainage swales; it did not accomplish a change in the zoning scheme itself or address a funda- mental judgment inherent to the zoning code. It did not accomplish by administrative or judicial fiat that which is ordinarily within the province of the legislature and is therefore not an unlawful delegation. Cf. Trademark Homes v. Avon Lake Board of Zoning Appeals (1993), 92 Ohio App.3d 214, 220. Accordingly, we are unable to conclude that the BZA improperly usurped legislative authority in granting the variance at issue. The third assignment of error is overruled. Affirmed. -11- -12- It is ordered that appellees 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. MCMONAGLE, J., AND CORRIGAN, J., CONCUR. ANN DYKE 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 .