K. Hovnanian Oster Homes, LLC v. Lorain Zoning Bd. of Appeals

[Cite as K. Hovnanian Oster Homes, LLC v. Lorain Zoning Bd. of Appeals, 2015-Ohio-5317.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
K. HOVNANIAN OSTER HOMES LLC C.A. No. 14CA010677
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LORAIN OHIO ZONING BOARD OF COURT OF COMMON PLEAS
APPEALS (CITY OF) COUNTY OF LORAIN, OHIO
CASE No. 13CV179899
Appellant
DECISION AND JOURNAL ENTRY
Dated: December 21, 2015
SCHAFER, Judge.
{¶1} Defendant-Appellant, the City of Lorain, Ohio Board of Zoning Appeals
(“Board”), appeals the judgment of the Lorain County Court of Common Pleas reversing the
Board’s decision to deny the request of Plaintiff-Appellee, K. Hovnanian Oster Homes, LLC’s
(“K. Hovnanian”) for a riparian setback variance. For the reasons set forth below, we affirm.
I.
{¶2} K. Hovnanian is a homebuilding company that owns an approximately 30-acre
parcel of land in Lorain, Ohio. This parcel of land is located near the confluence of the East
Branch of Beaver Creek and its North Stem. However, because this parcel of land abuts an
existing watercourse in the City of Lorain, it is subject to certain city regulations. See Lorain
Codified Ordinance (“L.C.O.”) 1533.07(a). One such regulation, which is at issue in this case,
requires a riparian setback of at least 75 feet “on both sides of all watercourses draining an area
greater than one half square mile and up to and including 20 square miles.” L.C.O. 1533.08.
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{¶3} K. Hovnanian plans on developing this unimproved land for a residential
subdivision. On January 2, 2013, the City of Lorain Planning Commission, which has the same
members as the Board of Zoning Appeals, preliminarily approved K. Hovnanian’s development
plan subject to its concerns regarding storm water management issues. K. Hovnanian
subsequently filed an application with the Board for an area variance so that it could encroach
upon the mandated 75-foot riparian setback. Specifically, K. Hovnanian sought a variance to
reduce the setback to 25 feet in the open areas for storm water management purposes and 50 feet
in the lots to allow for the construction of backyards and lawn maintenance. K. Hovnanian also
hired a local company, Hydrosphere Engineering, to conduct a detailed flood plain study and
analysis. Hydrosphere Engineering prepared a report from its findings, which K. Hovnanian
provided to the Board for consideration. After hearing testimony of representatives from both
the City of Lorain and K. Hovnanian on March 6, 2013, the Board expressed grave concerns
regarding potential flooding and denied K. Hovnanian’s requested variance.
{¶4} Pursuant to R.C. 2506.01(A), K. Hovnanian filed an administrative appeal with
the Lorain County Court of Common Pleas. The trial court ultimately determined that the Board
applied the incorrect legal standard when determining K. Hovnanian’s request and failed to
properly consider the factors enumerated in L.C.O 1533.14. The trial court also found that the
Board’s decision was not supported by a preponderance of substantial, reliable, and probative
evidence to support a denial of the requested area variance. As such, the trial court reversed the
Board’s decision and ordered that the Board approve K. Hovnanian’s requested variances.
{¶5} The Board filed this timely appeal, raising one assignment of error for our review.
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II.
Assignment of Error
The trial court erred as a matter of law by holding that the Lorain Board of
Zoning Appeals’ denial of the Appellee’s request for variance was
unsupported by a preponderance of substantial [sic] reliable, and probative
evidence presented on the whole record and by ordering the Lorain Zoning
Board of Appeals to approve said request for variance.
{¶6} In its sole assignment of error, the Board argues that the trial court erred by
reversing its decision denying K. Hovnanian’s variance application. We disagree.
{¶7} Pursuant to R.C. 2506.04, a common pleas court examining an appeal from a
zoning board's decision “may find that the * * * decision is unconstitutional, illegal, arbitrary,
capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and
probative evidence on the whole record.” Id. The common pleas court may affirm, reverse,
vacate, or modify the commission's decision in accordance with its findings. Id.; Frantz v. Ohio
Planning Comm. of Wooster, 9th Dist. Wayne No. 12CA0025, 2013–Ohio–521, ¶ 6. R.C.
2506.04 further provides that “[t]he judgment of the [common pleas] court may be appealed * *
* on questions of law as provided in the Rules of Appellate Procedure and, to the extent not in
conflict with those rules, Chapter 2505. of the Revised Code.”
{¶8} In Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142 (2000), the
Supreme Court of Ohio clarified that “[t]he standard of review to be applied by the court of
appeals in an R.C. 2506.04 appeal is ‘more limited in scope’” than the standard of review applied
by the trial court. (Emphasis deleted.) Id. at 147, quoting Kisil v. Sandusky, 12 Ohio St.3d 30,
34 (1984). “‘This statute grants a more limited power to the court of appeals to review the
judgment of the common pleas court only on “questions of law,” which does not include the
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same extensive power to weigh “the preponderance of substantial, reliable and probative
evidence,” as is granted to the common pleas court.’” Id., quoting Kisil at 34, fn. 4.
“It is incumbent on the trial court to examine the evidence. Such is not the charge
of the appellate court. * * * The fact that the court of appeals * * * might have
arrived at a different conclusion than the administrative agency is immaterial.
Appellate courts must not substitute their judgment for those of an administrative
agency or a trial court absent the approved criteria for doing so.”
Id., quoting Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257,
261 (1988). An appellate court's determination of an administrative appeal is limited to whether
the trial court abused its discretion. Lorain City School Dist. Bd. of Educ. at 261. An abuse of
discretion “implies that the court's attitude is unreasonable, arbitrary or unconscionable.”
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶9} Here, the Board advances three arguments to establish error in the trial court
proceedings. First, the Board disputes the trial court’s finding that the Board applied the
incorrect legal standard when determining whether to deny K. Hovnanian’s application for an
area variance. “The standard for granting a variance which relates solely to area requirements
should be a lesser standard than that applied to variances which relate to use.” Kisil at syllabus.
Accordingly, “[a]n application for an area variance need not establish unnecessary hardship; it is
sufficient that the application show practical difficulties.” Id. Following Kisil, the Court
subsequently decided Duncan v. Village of Middlefield, 23 Ohio St.3d 83 (1986), where it held
that a property owner seeking an area variance must demonstrate that the application of an area
zoning requirement to his property is inequitable and unreasonably deprives him of a permitted
use of his property. Id. at 86. In Duncan, the Court also articulated a non-exhaustive list of
factors to consider when determining whether a property owner seeking an area variance has
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encountered practical difficulties in the use of his property. Id. These factors 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.
Id. at syllabus. L.C.O. 1533.14 contains a number of factors aside from the Duncan factors that
the Board must first consider before ruling on an application for an area variance.
{¶10} According to the Board’s appellate brief, “the record [of the Board meeting]
evidences that the Board did not find that ‘practical difficulties’ were encountered by [K.
Hovnanian].” However, after thoroughly reviewing the record, we agree with the trial court’s
finding that the Board appeared confused as to which legal standard to apply in this matter. The
transcript of the Board meeting indicates that the only reference made to a legal standard
pertained to the higher “unnecessary hardship” standard that is only applicable in use variance
cases, not area variance cases. As such, the record indicates that the Board applied the wrong
legal standard to K. Hovnanian’s requested variance and we cannot determine that the trial court
erred in finding that the Board applied the incorrect legal standard.
{¶11} Second, the Board disputes the trial court’s finding that the Board did not properly
consider the criteria set forth in L.C.O. 1533.14, which states that:
(a) The City of Lorain may grant a variance from this regulation as provided
herein. In determining whether there is unnecessary hardship or practical
difficulty such as to justify the granting of a variance, the City of Lorain
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shall consider the potential harm or reduction in riparian and/or wetland area
functions that may be caused by a proposed structure or use.
(b) In making a variance determination, the City of Lorain shall consider the
following:
(1) Varying the front, rear and side yard setback before the riparian and wetland
setbacks are varied.
(2) Variances should not be granted for asphalt or concrete paving in the riparian
and wetland setbacks in any situation where gravel or porous pavement (i.e.,
porous payers, and similar products) will do the job.
(c) In making a variance determination, the City of Lorain may consider the
following:
(1) A parcel existing at the time of passage of this ordinance is made
unbuildable.
(2) The soil type natural vegetation of the parcel, as well as the percentage of
the parcel that is in the 100-year floodplain. The criteria of the City of
Lorain's flood damage prevention regulations may be used as guidance when
granting variances in the 100-year floodplain.
(3) The extent to which the requested variance impairs the flood control, soil
erosion control, sediment control, water quality protection, or other
functions of the riparian and/or wetland area. This determination shall be
based on sufficient technical and scientific data.
(4) The degree of hardship this regulation places on the landowner, and the
availability of alternatives to the proposed activity.
(5) Soil disturbing activities permitted in a riparian and/or wetland setback
through variances should be implemented in order to minimize clearing to
the extent possible, and to include Best Management Practices necessary to
minimize soil erosion and maximize sediment control.
(6) The presence of significant impervious cover, or smooth vegetation such as
maintained lawns, in riparian setback areas compromises their benefits to the
City of Lorain.
(7) A reduction in storm water infiltration into the soil in wetland areas will
occur.
(8) A requested above ground fence does not increase the existing area of
mowed grass or lawn.
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(Emphasis added.) Thus, L.C.O. 1533.14(b) contains two factors that the Board must consider
when making a variance determination, whereas subsection (c) of the ordinance contains a list of
eight factors that the Board may, but is under no obligation to, consider when making a variance
determination.
{¶12} Here, the trial court noted that the Board failed to make findings of fact before
ruling on K. Hovnanian’s variance application. Thus, the trial court reviewed the transcript of
the Board meeting and determined that the Board failed to consider the mandatory factors prior
to ruling on K. Hovnanian’s application. The trial court then weighed the presented evidence
and concluded that the Board’s denial of K. Hovnanian’s application was not supported by a
preponderance of substantial, reliable and probative evidence to justify the denial of the
requested area variance at issue in this case.
{¶13} After reviewing the record, we agree with the trial court’s determination that the
Board did not properly consider the mandatory factors enumerated in L.C.O. 1533.14 prior to
denying K. Hovnanian’s variance application. A review of the March 6, 2013 Board meeting
transcript indicates that not all of the L.C.O. 1533.14(b) factors were discussed. Moreover, the
Board’s appellate brief fails to argue that the Board properly considered all of the requisite
factors before ruling against the variance application. See App.R. 16(A)(7).
{¶14} Lastly, the Board contends that the trial court erred by discounting the import and
credibility of the City of Lorain citizens who voiced opposition to K. Hovnanian’s variance
request at the Board meeting. However, the trial court’s weighing of evidence is a question that
is beyond the scope of an appellate court’s review. See R.C. 2506.04. As such, we reject the
Board’s argument on this point.
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{¶15} For these reasons, we cannot conclude that the trial court abused its discretion by
reversing the Board’s ruling denying K. Hovnanian’s application for an area variance.
{¶16} The Board’s assignment of error is overruled.
III.
{¶17} With the Board’s sole assignment of error having been overruled, the decision of
the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
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WHITMORE, J.
CONCURS.
HENSAL, P. J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
PATRICK D. RILEY, Law Director, and MALLORY J. HOLMES, Assistant Law Director, for
Appellant.
BRUCE RINKER and ANYTHONY COYNE, Attorneys at Law, for Appellee.