Consolidated Management, Inc. v. City of Cleveland

• Decision Date: 17 August 1983
• Docket Number: No. 82-1055,82-1055
• Citation: 6 Ohio St.3d 238,6 OBR 307,452 N.E.2d 1287
• Parties: , 6 O.B.R. 307 CONSOLIDATED MANAGEMENT, INC. et al., Appellees, v. CITY OF CLEVELAND et al., Appellants.
• Court: Ohio Supreme Court

Page 238

6 Ohio St.3d 238

452 N.E.2d 1287, 6 O.B.R. 307

CONSOLIDATED MANAGEMENT, INC. et al., Appellees, v. CITY OF CLEVELAND et al., Appellants.

No. 82-1055.

Supreme Court of Ohio.

Aug. 17, 1983.

Syllabus by the Court

1. Generally, where a purchaser of commercial property acquires the premises with knowledge of certain zoning restrictions, he must accept the limitations on the usage of such property, and may not demand a variance based upon the claimed hardship due to such limitations.

2. The mere fact that one's property can be put to a more profitable use does not, in itself, establish an unnecessary hardship where less profitable alternatives are available within the zoning classification.

The facts in brief giving rise to this appeal are that the appellee, Consolidated Management, Inc., is the owner of a shopping center in Cleveland. The shopping complex consists of approximately thirty attached structures which form an L-shape configuration on the northeast corner of Fulton Road and Memphis Avenue. Appellee, Game Trek of Memphis Fulton, is a tenant of Consolidated, renting a building in the complex for the retail sale of clothing, such building facing Fulton Road.

The appellees filed an application with the Cleveland building commissioner for permission to commercially use the storeroom, leased by tenant Game Trek, as a game room with electronic video games, pinball machines, and a retail salesroom for video game equipment.

Appellant, city of Cleveland, claims that the portion of the complex fronting Fulton Road is zoned as a "Local Retail Business District," or a "Shopping Center District," neither of which permits usage for entertainment activities pursuant to the Codified Ordinances of the city of Cleveland, Section 343.01(b) (1979) and Section 343.04(a) (1951). Appellees, on the other hand, contend that the entire shopping complex is located within a "General Retail Business District," which would permit the use of the property for entertainment, amusement, or recreational purposes, according to Cleveland Ordinance Section 343.11(b) (1979).

The building commissioner denied the use of the storeroom in question for recreational purposes. Consolidated and its tenant appealed such denial to the Cleveland Board of Zoning Appeals ("board"). After notices to affected property owners and a public hearing, the board found that the appeal should be granted conditionally for the following reasons:

"1. The evidence establishes that * * * in 1950 the property was rezoned to a Local Retail and thereafter to a Shopping Center District; that Section 343.04 which governs uses in a Shopping Center District states as permitted ' * * * all uses permitted * * * in a Local Retail District' * * *.

"2. Local conditions and the evidence presented justify the Board in making the variance requested.

"3. The granting of the permit will not be harmful to neighboring properties or to their occupants.

"4. The refusal of this permit would work an unreasonable hardship upon the owner with no corresponding gain to the community * * *."

The appeal was granted by the board and the variance from the zoning ordinance authorized upon the condition that:

"[T]here be a sign posted in the window limiting the age of people in the establishment during school hours, 9 a.m. to 3 p.m., and that there be a person posted at the door enforcing same and further subject to the Certified Ordinances."

The city of Cleveland and its building commissioner appealed to the Court of Common Pleas of Cuyahoga County pursuant to R.C. Chapter 2506. The court of common pleas "denied" the appeal and, by so doing, in essence affirmed the board of zoning appeals. The city and the commissioner subsequently appealed to the court of appeals. In a split decision, the court of appeals affirmed the lower court's decision, holding that the board did not abuse its discretion in permitting this use as a variance, "even if this portion of the complex is within a more restrictive zoning classification."

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Harbarger, Kelleher, Treister, Klonowski & Carbone Co., L.P.A., David R. Harbarger and Stephen M. Klonowski, Cleveland, for appellees.

James E. Young, director of law, Michael A. Pohl and Irving Berger, Cleveland, for appellants.

HOLMES, Justice.

The issue before us centers on the statutory construction of certain provisions of the Cleveland zoning code and whether a variance was properly issued pursuant to such provisions. The lower courts, in construing the code, upheld the granting of appellees' variance without requiring evidence of unreasonable hardship or practical difficulty to the property in question. We disagree with this interpretation and, therefore, reverse the lower court's decision.

A variance is intended to permit amelioration of strict compliance of the zoning ordinance in individual cases. It is designed to afford protection and relief against unjust invasions of private property rights and to provide a flexible procedure for the protection of constitutional rights. Nunamaker v. Bd. of Zoning Appeals (1982), 2 Ohio St.3d 115, 443 N.E.2d 172; In re Appeal of Clements (1965), 2 Ohio App.2d 201, 207 N.E.2d 573 . Conversely, variances are not authorized to change zoning schemes or to correct errors of judgment in zoning laws. The authority to permit a variance does not include the authority to alter the character and use of a zoning district. Schomaeker v. First Natl. Bank (1981), 66 Ohio St.2d 304, 309, 421 N.E.2d 530 ; Fox v. Johnson (1971), 28 Ohio App.2d 175, 275 N.E.2d 637 ; see 8 McQuillin, Municipal Corporations (3 Ed.1976) 476, Section 25.160.

The board's authorization (or denial in a given case) is presumed to be valid, and the burden of showing the claimed invalidity rests upon the party contesting the determination. C. Miller Chevrolet v. Willoughby Hills (1974), 38 Ohio St.2d 298, 313 N.E.2d 400 , paragraph two of the syllabus; McCauley v. Ash (1954), 97 Ohio App. 208, 216, 124 N.E.2d 739 . A trial court, within an appeal pursuant to R.C. Chapter 2506, and a court of appeals, within an appeal pursuant to R.C. Chapter 2505, would accordingly be obliged to affirm the action taken by the board, absent evidence that the board's decision was unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence. ¹

The board granted the use variance by summarily stating that the refusal to issue the variance would work an unreasonable hardship upon the owner with no corresponding gain to the community. The board, however, failed to set forth any particular hardship in its finding. The trial court, and the court of appeals, affirmed the board's finding without requiring any affirmative evidence of unreasonable hardship or practical difficulty on the part of appellees. It is with this rationale that we disagree.

The Cleveland City Council, in Ordinance Section 329.03, ² has outlined the factors to be considered by the board when granting a variance. In affirming the board's action, the majority of the court of appeals relied solely on subsection 329.03(d)(1), which it held contained sufficient guidelines to grant the variance. This interpretation authorizes the board to extend a use into an adjacent zoning classification as long as sufficient conditions are given to "safeguard the character of the more restricted district." ³ In the absence of further guidelines, this interpretation gives the board virtually unlimited discretion in granting a variance and would be in violation of the settled prohibition against the unlimited delegation of legislative authority to an administrative tribunal. State, ex rel. Selected Properties, Inc., v. Gottfried (1955), 163 Ohio St. 469, 127 N.E.2d 371 ; Northern Boiler Co. v. David (1952), 157 Ohio St. 564, 106 N.E.2d 620 .

It is necessary that the board of zoning appeals read, and apply, each subsection of Ordinance Section 329.03 in pari materia. Accordingly, in order for the board to grant a specific variance, subsections 329.03(b)(1), (2) and (3) require that each applicant prove that the zoning classification presents an unnecessary hardship or practical difficulty to the intended use of the property; that refusal of the variance will deprive the owner of substantial property rights; and that the granting of the variance would not be contrary to the intent of the zoning code. ⁴ Here, we hold that the appellees have not sustained the burden of proving that they were entitled to the variance.

In the present case, appellees imposed the hardship upon themselves as they acquired an interest in the premises with knowledge of the zoning classification. Where a purchaser of commercial property acquires the premises with knowledge of the zoning restrictions, he has created his own hardship and generally cannot thereafter apply for a zoning variance based on such hardship. The record before us is void of any clear evidence of unnecessary hardship or practical difficulty except those created by appellees. The mere fact that appellees' property can be put to a more profitable use does not, in itself, establish an unnecessary hardship where less profitable alternatives are available within the zoning classification.

Finally, appellees contend that Ordinance Sections 343.01 and 343.02 are unconstitutional. Appellees put forward two main arguments: the zoning ordinances are arbitrary as written; and the ordinances provide for an unlawful delegation of authority to an administrative tribunal.

A zoning ordinance will be held unconstitutional if its provisions are clearly arbitrary and unreasonable, and have no substantial relation to the public health, safety, or general welfare. Village of Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; State, ex rel. City Ice & Fuel Co., v. Stegner (1929), 120 Ohio...