C. Miller Chevrolet, Inc. v. City of Willoughby Hills

• Decision Date: 26 June 1974
• Docket Number: No. 73-852,73-852
• Citation: 313 N.E.2d 400,67 O.O.2d 358,38 Ohio St.2d 298
• Parties: , 67 O.O.2d 358 C. MILLER CHEVROLET, INC., Appellant, v. CITY OF WILLOUGHBY HILLS, Appellee.
• Court: Ohio Supreme Court

Page 298

38 Ohio St.2d 298

313 N.E.2d 400, 67 O.O.2d 358

C. MILLER CHEVROLET, INC., Appellant, v. CITY OF WILLOUGHBY HILLS, Appellee.

No. 73-852.

Supreme Court of Ohio.

June 26, 1974.

Syllabus by the Court

1. Evidence that the granting of an application for a zoning variance would result in increasing the value of the affected property is relevant when the existing zoning is contested, but such evidence does not in itself render the denial of the application for a variance unconstitutional.

2. In an appeal, under R.C. Chapter 2506, from the denial of an application for a variance by a zoning board of appeals, there is a presumption that the board's determination is valid, and the burden of showing invalidity of the board's determination rests on the party contesting that determination.

On November 18, 1970, appellant, C. Miller Chevrolet, Inc., acquired an option to purchase an eight-acre tract of land owned by Raymond Quiggin. The property, all of which was located in the city of Willoughby Hills, had approximately 400 feet of frontage on the east side of Bishop Road, and was situated midway between Eddy Road to the north and Chardon Road to the south. The land was also centrally located between areas of varying zoning classifications. The entire west side of Bishop Road, between Eddy and Chardon, was zoned either commercial or multi-family residential. A strip of land approximately 350 feet wide on the east side of Bishop Road between the south line of the subject property and Chardon Road was zoned commercial. The land on the east side of Bishop Road between the north line of the eight-acre tract and Eddy Road was zoned single-family residential, as was the property in question.

Appellant proposed to use the property for a new car dealership, which would employ 50 to 55 people. This use required either a rezoning of the property from residential to commercial or a zoning variance. Appellant chose to pursue the former alternative first, and submitted a rezoning request to the city council. This request sought rezoning for the entire tract. Council referred the request to the planning commission, which disapproved it. However, when the request was modified to include only the six acres abutting Bishop Road, ¹ the planning commission recommended that council approve it. Nevertheless, council rejected the request at the conclusion of a public hearing.

Having failed in its attempt to obtain a legislative zoning change, appellant requested a zoning variance from the city zoning inspector, who denied the request. Appellant then appealed to the Willoughby Hills Board of Zoning and Building Appeals. ² The board denied the request, and appellant appealed to the Court of Common Pleas, pursuant to R.C. Chapter 2506. The court allowed both sides to present evidence in addition to that contained in the record compiled before the board. On June 16, 1972, the court entered a judgment that the existing zoning, as applied to the premises in question, was 'arbitrary, capricious, confiscatory, unreasonable and unconstitutional.'

The Court of Appeals reversed, and entered final judgment in favor of appellee. The cause is now before this court pursuant to the allowance of a motion to certify the record.

Donaldson, Colgrove, Cardinal & Freed and Richard O. Colgrove, Painesville, for appellant.

Baker, Byron & Hackenberg and Barry M. Byron, Painesville, for appellee.

C. WILLIAM O'NEILL, Chief Justice.

The Court of Appeals, in reversing the judgment of the Court of Common Pleas, stated two reasons for its judgment. First, it held that appellant was an improper party to seek the variance, and, therefore, an improper party to appeal the denial thereof to the Board of Zoning and Building Appeals, and from there to the courts. Second, the Court of Appeals held that appellant failed to present evidence sufficient to overcome the presumption of validity that attached to the existing zoning. These reasons given by the Court of Appeals frame the issues presented to this court.

I.

The question of appellant's capacity to apply for and appeal from the denial of a zoning variance was raised for the first time by the Court of Appeals. Capacity was not an issue before either the city's zoning inspector, the Board of Zoning and Building Appeals, or the Court of Common Pleas. Subsequent to oral argument conducted before the Court of Appeals, that court ordered both parties to file additional briefs on 'the question of whether an optionee, in this case C. Miller Chevrolet, Inc., can prosecute an appeal of the refusal by a building inspector to grant a building permit.' In its additional brief, the appellee cited Section 1603.05 of its Regional Building Code, which requires that 'an application for a permit shall be obtained at the office of the building official signed by the owner or his authorized agent.' The Court of Appeals seized upon this provision to hold that since the permit application itself did not indicate that it was signed by either the owner (Quiggin) or his authorized agent, 'C. Miller Chevrolet was an improper party to apply for a building permit and therefore an improper party to appeal to the Board of Zoning and Building Appeals and the Common Pleas Court.' Upon the basis of the record before the Court of Appeals, this conclusion can not stand.

[1,2] In reviewing the judgment of a court, a Court of Appeals is guided by App.R. 12(A), which provides that the Court of Appeals need only pass upon errors assigned and briefed; errors not specifically pointed out in the record and separately argued by brief may be disregarded. Nevertheless, nothing prevents a Court of Appeals from passing upon an error which was neither briefed nor pointed out by a party. ³ However, as this court recently pointed out in Paulin v. Midland Mutl. Life Ins. Co. (1974), 37 Ohio St.2d 109, 307 N.E.2d 908, factual conclusions reached by a Court of Appeals must be based upon evidence in the record.

The decision of the Court of Appeals upon the issue of whether appellant was a proper party was premised upon the conclusion that the application involved in this case was one for a building permit. The record clearly disputes this finding, and discloses that the application was for a zoning variance. Since it is not clear whether Section 1603.05 of Willoughby Hills' Regional Building Code governs a request for a zoning variance, the Court of Appeals erred in utilizing that provision to hold appellant was an improper party in this case.

II.

The substantive issue to be decided in this case has been set forth, in general terms, in the syllabus of Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St.2d 23, 309 N.E.2d 900:

'In an appeal, pursuant to R.C. Chapter 2506, which challenges the constitutionality of a zoning ordinance as applied, the issue for determination is whether the ordinance, in proscribing a landowner's proposed use of his land, has any reasonable relationship to the legitimate exercise of police power by the municipality.'

Since the Willoughby Hills Board of Zoning and Building Appeals had authority to grant a use variance, the specific question for determination in this appeal is whether the board's denial of the variance request, which prohibited appellant's proposed use of the property, had any reasonable relationship to the exercise of the police power possessed by the city. The board is a public body, and therefore its decision on the application for a variance must be accorded a presumption of validity; the burden of showing that the decision is erroneous rests on the party contesting the decision. McCauley v. Ash (1954), 97 Ohio App. 208, 124 N.E.2d 739; 8 A McQuillin, Municipal Corporations (3 Ed.), 424, Section 25.327; 168 A.L.R. 13, 146.

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