Kisil v. City of Sandusky

• Decision Date: 03 July 1984
• Docket Number: No. 83-1449,83-1449
• Citation: 465 N.E.2d 848,12 Ohio St.3d 30,12 OBR 26
• Parties: , 12 O.B.R. 26 KISIL, Appellant, v. CITY OF SANDUSKY et al., Appellees.
• Court: Ohio Supreme Court

Page 30

12 Ohio St.3d 30

465 N.E.2d 848, 12 O.B.R. 26

KISIL, Appellant, v. CITY OF SANDUSKY et al., Appellees.

No. 83-1449.

Supreme Court of Ohio.

July 3, 1984.

Syllabus by the Court

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. An application for an area variance need not establish unnecessary hardship; it is sufficient that the application show practical difficulties.

In the fall of 1981, plaintiff-appellant, Michael Kisil, purchased a single-family residence located at 508 Huron Avenue, Sandusky, Ohio. The zoning classification for the neighborhood, in which plaintiff's property is located, is R2F, residential two-family. In December 1981, plaintiff requested the approval of the city planning commission to convert the residence situated at 508 Huron to a duplex. The request was denied by the commission on January 13, 1982. The reason for the denial of plaintiff's request was that the lot on which the residence was located was insufficient in size to maintain a duplex, pursuant to Section 151.21 of the Sandusky Code of Ordinances. Section 151.21 requires that the minimum lot size for a two-family dwelling in R2F district is 2,750 square feet per unit or a total of 5,500 square feet. The plaintiff's property is only 2,100 square feet. The plaintiff further admitted to the commission that he knew, at the time of purchase, that the previous owner's request to convert the property to a multifamily residential use had been denied. The decision of the commission was affirmed on appeal by the Sandusky Zoning Code Board of Appeals on February 25, 1982.

On March 3, 1982, plaintiff filed a notice of appeal to the Court of Common Pleas of Erie County pursuant to R.C. Chapter 2506. He sought a reversal of the decision of the board as unreasonable, arbitrary and capricious. In his amended notice of appeal plaintiff further sought declaratory relief finding the enforcement of the minimum lot size requirement contained in Section 151.21 as unconstitutional, in that it violates the equal protection provisions of the United States Constitution and the Ohio Constitution. The trial court reversed the decision of the board, finding the denial of a variance to be unreasonable and arbitrary in view of a variance granted to a neighboring property owner and the entire character of the neighborhood. The court dismissed the request of plaintiff for declaratory judgment, finding the administrative appeal effectual to afford the relief plaintiff sought.

The defendants-appellees appealed the decision of the trial court. The appellate court reversed the trial court finding the substantial variance between plaintiff's lot size and the minimum requirement contained in Section 151.21, coupled with plaintiff's prior knowledge of the commission's denial of a similar request by the previous landowner, did not support a finding that the action of the board was unreasonable or discriminatory.

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

Murray & Murray Co., L.P.A., and William H. Bartle, Sandusky, for appellant.

Smith & Lehrer Co., L.P.A., and William H. Smith, Jr., Sandusky, for appellees.

CLIFFORD F. BROWN, Justice.

I

The parcel of land located at 508 Huron Avenue, Sandusky, Ohio, is a single-family residence which was erected before the 1956 enactment of the Sandusky city zoning ordinances. The area in which the property is situated was designated R2F by the 1956 ordinance. R2F zoning allows two-family dwellings and single-family dwellings. When plaintiff-appellant purchased the property in question in 1981, he did so for investment purposes with the idea of renting the residence. Appellant testified before the commission and board that he desired to convert the residence from a single-family to a two-family residence so as to make the rental property profitable.

The conversion of appellant's property to a duplex would not need the approval of the commission but for the fact that the lot on which the residence is situated is below the minimum area and yard requirements contained in the city zoning provisions. ¹ Appellant, therefore, sought a variance to allow the conversion of the residence. Such a variance is not a pure use variance. The variance sought by appellant is merely an area variance. It has been noted by other jurisdictions that the standard for granting a variance which relates to area requirements only should be a lesser standard than that applied to use variances.

The New York Court of Appeals when faced with a case quite similar to the present action explained, "[a]n applicant for an area variance need not establish special [unnecessary] hardship. It is sufficient to show practical difficulties * * *." Matter of Hoffman v. Harris (1966), 17 N.Y.2d 138, 144, 269 N.Y.Supp.2d 119, 123, 216 N.E.2d 326, 329. ² The court went on to cite the reason for such distinctions between use and area variances as being, " * * * [w]hen the variance is one of area only, there is no change in the character of the zoned district and the neighborhood considerations are not as strong as in a use variance." Id.

In this case the grant of a variance to appellant will not alter the character of the surrounding neighborhood. The record reveals that a vast majority of the surrounding neighborhood is at the present time being used as two-family residential rental property. In fact the lot directly north of appellant's property was granted a variance by the commission to be used as a multifamily residence, which is not only an area but a use variance. The residence granted this variance is on a lot which is smaller in area than the appellant's lot.

This court has recently addressed the issue of variances in Consolidated Mgmt., Inc. v. Cleveland (1983), 6 Ohio St.3d 238, 452 N.E.2d 1287. In that case the plaintiff sought a variance to convert his commercial property to a use which was outside the use permitted by the zoning ordinance. This court held that the requirement of an unnecessary hardship suffered by a landowner seeking a variance could not be met when the landowner purchased the property with knowledge of the zoning restrictions. Id. at paragraph one of the syllabus.

The instant case is a different situation. While appellant had prior knowledge of the commission's denial of a variance requested by the previous landowner, the decision entered by the commission at that time was never appealed. The granting of a variance to the appellant should not be judged on the traditional showing of an "unnecessary hardship" but on the lesser standard of a "practical difficulty." Because the standard which is used to guide the decision of the reviewing authorities is different in this action, the value of the precedent enunciated in Consolidated Mgmt., Inc. is minimal.

We are further persuaded that the common pleas court was correct when it found that the denial of the variance by the commission and board was unreasonable and arbitrary. An examination of the record reveals that the neighborhood in which appellant's parcel of land is situated contains many duplex residences. ³ A significant number of these residences are on lots insufficient in size, according to the zoning ordinances. Even more persuasive is the fact that the lot north of appellant's lot was recently granted a variance for a multifamily residence. The allowance of other duplexes on lots insufficient in size and the granting of a multifamily variance to a neighboring landowner, while denying appellant's request for a variance, is unreasonable and arbitrary enforcement of the zoning ordinances.

II

When a zoning ordinance is enforced in an unreasonable and arbitrary manner, as in this case, it is the responsibility of the trial court, reviewing the action pursuant to R.C. Chapter 2506, to reverse the findings of the board of zoning appeals. The scope of review by the trial court is set forth in R.C. 2506.04, which requires the court to examine the "substantial, reliable and probative evidence on the whole record." This court has noted in Cincinnati Bell v. Glendale (1975), 42 Ohio St.2d 368, 370, 328 N.E.2d 808 , that, " * * * [a]lthough a hearing before the Court of Common Pleas pursuant to R.C. 2506.01 is not de novo, it often in fact resembles a de novo proceeding. R.C. 2506.03 specifically provides that an appeal pursuant to R.C. 2506.01, 'shall proceed as in the trial of a civil action,' and makes liberal provision for the introduction of new or additional evidence."

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, 389 N.E.2d 1113 , "[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 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. ⁴

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