12701 Shaker Blvd. Co. v. City of Cleveland

• Decision Date: 14 September 1972
• Parties: , 60 O.O.2d 324 SHAKER BLVD. CO., Appellant, v. CITY OF CLEVELAND et al., Appellees.
• Court: Ohio Court of Appeals

Page 199

31 Ohio App.2d 199

287 N.E.2d 814, 60 O.O.2d 324

SHAKER BLVD. CO., Appellant, v. CITY OF CLEVELAND et al., Appellees.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Sept. 14, 1972.

Syllabus by the Court

1. After all zoning requirements are satisfied, then, under the applicable Cleveland ordinances, an appeal from a denial of a request for a certificate of occupancy should be addressed to the Board of Building Standards and Appeals rather than to the Board of Zoning Appeals.

2. The building code of the City of Cleveland, which controls the structural quality in buildings, is administered by the Commissioner of Building whose jurisdiction includes the issuance of building permits. Denials of these permits except for denials based on zoning violations may be appealed only to the Board of Buildings Standards and Appeals whose rulings are reviewable on appeal by the Court of Common Pleas.

3. Zoning ordinances of the City of Cleveland control land use, and complaints generated by the application of zoning regulations are heard only by the Board of Zoning Appeals, whose rulings are reviewable on appeal by the Court of Common Pleas.

4. A permit which purports to allow a substantively illegal use is a nullity because such permit cannot legalize a use beyond the limits of the applicable zoning ordinances.

5. Mere failure to secure a permit for otherwise legal construction does not raise an impediment proscribing a non-conforming use. The imposition of criminal sanctions indicates a legislative judgment that such penalty is sufficient to induce compliance with such permit requirements, or in the alternative, to vindicate the City's interest in a failure to acquire a permit.

6. Any substantively illegal use (that is, in violation of the standards set by the building or zoning codes), never achieves the plateau allowed a 'pre-existent' nonconforming use. Construction and/or alterations not made in conformity with the applicable substantive zoning regulations cannot achieve the status of a pre-existent non-conforming legal use and can only be validated by a variance.

7. The doctrines of laches and estoppel do not apply to block municipal corporations in the reasonable exercise of governmental functions. Nor can there be a balancing of hardships on a theory of equity based on long term illegal use. That would encourage violations of zoning ordinances by holding out the prospect of an equitable cure for deliberate but long undiscovered transgressions.

8. Mere filing of an affidavit does not automatically quicken the statutory right to offer additional testimony in defense of one's property on appeal from a ruling of the Board of Zoning Appeals to the Court of Common Pleas, nor does it compel that court to take additional evidence, unless the record supports some one of the deficiencies enumerated in R.C. 2506.03.

9. Due process of law is not violated by reasonable procedural provisions governing appeals from administrative tribunals.

10. A review of the actions of the Board of Zoning Appeals is an appellate function of the Court of Common Pleas, and is not governed by R.C. 2315.22 (superseded by Rule 52, Ohio Rules of Civil Procedure) which is applicable only when 'questions of fact' are tried by a trial court.

Henry DuLaurence, Cleveland, for appellant.

Richard R. Hollington, Jr., Cleveland, Director of Law, for appellees.

DAY, Chief Justice.

For clarity the parties will be designated 'plaintiffs' and 'defendant' or 'defendants' as in the trial court. The defendant City of Cleveland may also be called the 'City' or 'Cleveland.'*

I.

This case comes here on appeal by the plaintiff from a decision of the Common Pleas Court rendered on review of a ruling by the Board of Zoning Appeals of the City of Cleveland.

The Court of Common Pleas affirmed. We affirm the Court of Common Pleas.

II.

Plaintiff assigns twelve errors:

I. The judgment of the Board of Zoning Appeals is null and void in that said body lacked jurisdiction as previously determined by this Court in Kovacic v. City of Cleveland, Case No. 27037.

II. Said judgment is contrary to the zoning ordinances of the City of Cleveland which do not restrict the number of rooms in a multiple-family zone.

III. The Board denied plaintiff-appellant use of its property despite the fact that the building was legally built within the provisions of the Zoning Code in effect at the time of its construction for 101 suites as presently used on the premises, and as permitted under Section 1281-13 (d) of the Cleveland Zoning Code of 1929. (Sec. 211-22 (1945)).

IV. The decision is contrary to the weight of the evidence as presented in the trial court by the transcript from the Board of Zoning Appeals and by the pertinent and applicable zoning ordinances as presented to the trial court.

V. That the decision attempts to enforce zoning provisions retroactively contrary to Article II, Section 28 of the Ohio Constitution and the Fifth and Fourteenth Amendments of the Constitution of the United States.

VI. That the decision of the Board was arbitrary and capricious and had no relationship to the health, welfare, morals and safety of the community.

VII. That the Board of Zoning Appeals required parking facilities beyond the requirements of Sec. 211-2.5 of the Zoning Code of the City of Cleveland in effect at the time of the construction of the subject building and that such was contrary to the provisions of O.R.C. 713.15 which permits the establishment and existence and continuation of a non-conforming use despite the subsequent change or amendment of an existing Zoning Law.

VIII. That the Board of Zoning Appeals is restricted by Charter to act as an appellate body and, therefore, had no right to act as an administrative body and sua sponte place additional parking requirements on the premises not held in violation by the Commissioner of Housing.

IX. The Board of Zoning Appeals had no right to hold arbitrarily without legislative provision that 300 square feet of parking space was required per car for each tenant when there is no such requirement in Section 5.1118 of the Zoning Code of Cleveland of 1949.

X. That Section 5.1118 of the Zoning Code of Cleveland is invalid, illegal and unconstitutional in that it is indefinite without definite standards or rules therein provided to guide the administrative officer and unlawfully delegates to an administrative officer legislative powers as prohibited under Article II, Section 1 of the Ohio Constitution.

IX. That the plaintiff-appellant was deprived of his constitutional rights and his day in court by being prevented from offering additional testimony in defense of his property as provided in Article I, and especially Article I, Section 16 of the Ohio Constitution, and contrary to Section I of the Fourteenth Amendment of the United States Constitution.

XII. The trial court failed to answer written interrogatories, which if answered would have required the Court to find for the plaintiff-appellant. Specifically, plaintiff-appellant inter alia placed the following interrogatories before the Court: (Interrogatories omitted.)

We are required by Rule 12, Appellate Rules, to dispose of each assigned error in writing. Assignments XI and XII are covered specifically under Section VII of this opinion. The balance of the opinion is devoted to considerations which answer the first ten. We find all twelve without merit.

III.

In 1945, a permit was issued by the City for a seven story apartment building of 98 suites and 85 parking spaces at 12701 Shaker Boulevard and construction began. Before the original construction was finished alterations on the premises resulted in the creation of 101 suites and 19 rooms. ¹

The permit issued for the original construction did not conform to existing zoning limits. That is, it permitted construction with less than one parking space for each suite. Moreover, the alterations were made without any permit, although the plaintiff contends the work done to alter the original construction was within an ordinance exception making a permit unnecessary (Sec. 1007(b), Code of Cleveland, 1924). ² Whether a permit was required or not, plaintiff insists that all the work done conformed to building and zoning standards applicable at the time of construction. The alleged conformance includes the claim that the original construction, and the original construction as altered, met the garage space requirements determined by law by the number of suites and individual families on the premises. ³ For its part the City contends that plaintiff relies on antiquated ordinances not in effect when the plaintiff 'sought a permit * * * for the purpose of adding three suites and nineteen rooming occupancies' and further that the original construction was illegal because when the permit issued it did not meet zoning ordinance requirements then in effect and the alterations fare no better because they were made without any permit. This argument boils down to a contention that the plaintiff does not have either a conforming or a non-conforming use and therefore seeks and needs a variance to legalize non-compliance with current zoning.

It is undisputed that 1962-1963 amendments to Cleveland zoning ordinances currently control zoning in the City. It is also conceded that the original construction and alterations made in this case could not meet the requirements imposed by the zoning ordinances as amended in 1962-1963.

With respect to the City's claim that plaintiff seeks a variance, plaintiff insists that it attempted to get a certificate of occupancy for the 101 suites and 19 rooming occupancies presently at 12701 Shaker Boulevard but that because of 'an arrangement between the various Cleveland Building and Zoning Departments, a person denied a certificate of occupancy because of alleged improper use and occupancy must appeal such a decision to the Board of Zoning Appeals in order to procure the...