1415 Kenilworth, L.L.C. v. Cleveland

2023 Ohio 300

• Court: Ohio Court of Appeals
• Decided: February 2, 2023
• Docket: 111249
• Status: Published

Opinion

[Cite as 1415 Kenilworth, L.L.C. v. Cleveland, 2023-Ohio-300.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

1415 KENILWORTH, LLC, :

Plaintiff-Appellant, : No. 111249 v. :

CITY OF CLEVELAND, OHIO, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 2, 2023

Administrative Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-21-947529

Appearances:

Weston Hurd LLP and Matthew C. Miller, for appellant.

Mark Griffin, Cleveland Director of Law, and Carolyn M. Downey, Assistant Director of Law, for appellees.

FRANK DANIEL CELEBREZZE, III, P.J.:

Plaintiff-appellant 1415 Kenilworth, LLC (“appellant”) appeals from the

trial court’s order affirming the Cleveland Board of Zoning Appeals’ (“BZA”)

decision denying appellant’s request for an area variance. For the reasons that

follow, we affirm. I. Factual and Procedural History

In 2019, appellant acquired three parcels of land located at 1415

Kenilworth Avenue in Cleveland’s Tremont neighborhood consisting of a church,1 a

rectory, and a parking lot. Appellant acquired the parcels intending to construct a

five-story apartment building (“the Project”) on the parking lot and rectory parcels,

which, together, allowed appellant approximately 17,000 square feet to construct

the Project. Appellant met its first roadblock when the Cleveland Landmarks

Commission expressed that it would oppose appellant’s choice to raze the rectory

since it is a historic building. Appellant decided that instead of fighting the

Landmarks Commission, it would still attempt to build the Project, but now the

square footage was reduced to approximately 9,800 square feet.

The parcels at issue are zoned within Cleveland’s “Urban Form Overlay

District” (“the UF District”) that was established in 2017 to “foster a high level of

walkability and design quality for Cleveland’s urban streets” by encouraging

“pedestrian-oriented building features, preserving and enhancing the architectural

character of new and existing buildings and protecting public safety by minimizing

conflicts between vehicles and pedestrians.” Cleveland Codified Ordinances

(“C.C.O.”) 348.04(a).

In the UF District, all new residential constructions are statutorily

required to provide a set number of off-street parking spaces based on the number

1 The church was the former Holy Ghost Byzantine Catholic Church and is on the National Register of Historic Places. This designation prohibited appellant from razing the church and as a result, appellant later sold the parcel containing the church. of residential units proposed. C.C.O. 348.04(d)(4)(A). All parties agree that

pursuant to the ordinance, appellant was required to furnish at least 30 off-street

parking spaces within 400 feet of the building, as calculated by appellant’s proposal

that the Project would contain 46 residential units. Since appellant decided to forgo

the rectory space for the Project and was working with more limited space than

originally planned, appellant sought a zoning variance pursuant to C.C.O. 348.04(f).

Appellant applied for a variance excusing it from furnishing any off-street parking.

The application was rejected, and appellant appealed to the BZA.

On September 14, 2020, the BZA held a hearing on the matter. All

members of the BZA were present. David Maison, an architect, spoke on behalf of

appellant and detailed the Project’s planning history. Maison noted that appellant

first began looking at the property in 2019 intending to renovate the rectory.

Appellant quickly abandoned this idea after realizing that “the cost to renovate the

[rectory] exceeded market value when finished.” (Tr. 7.) Appellant then looked into

razing the rectory and using both the rectory and parking lot parcels to construct a

residential building but were met with opposition from the community and the

Landmarks Commission. Appellant decided to forgo any attempts to fight the

community and Landmarks Commission and, instead, reduced plans for the Project

to fit on just the parking lot parcel.

Brent Zimmerman, a project developer, also spoke on behalf of

appellant. Zimmerman highlighted the vision behind the Project, alluding to

planned features that eliminated the need for residents to own vehicles. Zimmerman noted that there would be “bike storage on each level” and “a bus stop

that goes right in front of the building,” and that it intended to pay all utilities to

make it an affordable place to live, noting that the approximated rent payments were

between $1,100 and $1,700 per month. (Tr. 10-11.) Zimmerman also testified that

“many respected think tanks around the country” predict that by 2030, 95 percent

of car traffic will be autonomous and that “car ownership is going to dwindle from

230 some million miles a year down to 44 million miles a year.” (Tr. 11.)

Zimmerman also noted that COVID-19 caused many people to begin working from

home, obviating the need for a vehicle. The Project was referred to as “a building for

the future.” Zimmerman also noted that the developers secured leases that provided

off-site parking for residents.

Cory Riordan of the Tremont West Development Corporation briefly

noted that Zimmerman’s ideas about future car ownership are not relevant and that

the real issue is the reality of the current parking situation and the numerous

Tremont residents and businesses whose lives will be affected by the variance.

Donald Petit of the Landmarks Commission stated that the Landmarks

Commission worked extensively with appellant to find a plan that satisfied all

involved parties. He stated that after much planning with appellant, the Landmarks

Commission ultimately supported the Project.

Several Tremont residents voiced their opposition to the Project. Susan

Scialabba noted that the area where the parcels are located is already congested and

overcrowded and that the neighboring St. Augustine Church where she is a parishioner already struggles to provide parking for parishioners and community

members attending other events there. She further stated that the public

transportation in the area is paltry, noting that the bus route runs once an hour and

it is on the opposite corner.

Matt Moss, the neighborhood planner from the Cleveland City

Planning Commission relayed that he spoke to the traffic commissioner, Rob Mavic,

who noted that while Lincoln Park, a community park located across the street, was

consistently full and utilized, Kenilworth Avenue itself was underutilized for

parking. Moss ultimately opined that he supported the variance after reviewing the

current underutilization of parking spaces in the area.

At the close of the meeting, Kelley Britt, a member of the BZA, stated

that she would like proof of the underutilized parking or proof that appellant

executed valid parking leases to secure off-site parking for residents before

approving the variance. The BZA ultimately postponed the vote to its next meeting.

At the second hearing on April 19, 2021, Maison testified again, this

time citing the results of a new parking study conducted by Transportation

Management Services. He discussed the results of the study, which observed the

area on a Thursday, Friday, and Saturday in February 2021 and indicated that each

study revealed over 200 available spots in the studied areas. Maison concluded that

the study demonstrated that there is not a parking problem contrary to what had

been described by the numerous residents opposing the Project. Moss testified again with the results of his own parking study. Moss

analyzed a “five-minute walk area” around the site and found that on average, over

a period of one month, there were 277 street parking spaces on the surrounding

streets. He testified that many areas of Kenilworth Avenue and Starkweather

Avenue prohibit street parking and noted that this was probably because “the curb

most lane and the right most lane on the north side” act as a turning lane for another

road, Scranton Road. (Tr. 49.) Moss suggested removing some of the signage

prohibiting parking from these underutilized areas. Moss admitted that his data

was not perfect, as the counts occurred during the pandemic when there were likely

less neighborhood visitors and less employees of local businesses filling the parking

spaces. Moss also specifically testified that unlike many of the other multi-family

housing projects being constructed in Tremont, this one was unique in that the

developers have such a small surface area to work with. Finally, Moss reiterated that

the Project was designed to encourage residents to walk, bike, or take public transit

and that creating these options may incentivize people to forgo using or owning

vehicles.

Councilman Kerry McCormack also spoke. McCormack stated that he

shared the goals of walkability that the developers appear to support but opposes

this Project. He noted that he introduced the UF District ordinances in 2017 after

extensive consultation with the planning department, the local block club, residents,

and community development corporations. He opined that appellant did not

provide any evidence that entitled it to a variance from these recently drafted ordinances and that it is not the function of the BZA to grant a variance unless it is

supported by evidence.

Scialabba again testified, citing the parking difficulties in the area as

well as citing the elderly, disabled parishioners of the church who will not be able to

walk even five minutes away. She also noted that the parking study submitted by

Maison failed to observe the traffic on Sunday, when St. Augustine Church has its

busiest services. In response to this, BZA Chairman Carol Johnson also noted that

none of the studies looked at parking beyond 6:00 p.m., when many people typically

return to their homes for the evening.

Kate O’Neil, a member of the local block club, shared her own findings

regarding cars in the area. She noted that the studies were flawed based on timing

and cited the slowed business operations of local businesses due to the COVID-19

pandemic. As an example, she cites area businesses working with severely reduced

staff and reduced attendance at church services. She also directed the BZA to a video

that she submitted on behalf of the local block club entitled “They Will Have Cars”

that demonstrated the already-problematic parking in the area.

Maison reiterated that appellant is facing hardship due to the size of

the parcel and the fact that it can no longer use the rectory space for the Project. He

notes that parking leases for 30 spots have been executed but conceded that some

of those leased parking spaces may not be available during the day. He defended

the parking study, noting that it did not observe anything past 6:00 p.m. because all

30 spaces would be available in the leased spaces at that time. Riordan pointed out that before the rectory parcel was removed from

the Project plans, the developers proposed only 26 units. He noted that once the

parcel size got smaller, the number of units somehow increased and all parking was

eliminated.

After all evidence was received, the BZA voted. Members Johnson,

Donovan, Britt, and Barnes all voted to deny the variance, and Member Faith

abstained from voting, stating that “people have been trying to manipulate me, so I

prefer not to make a vote.” (Tr. 94.)

The BZA issued a resolution memorializing the vote. In the

resolution, the BZA describes some of the evidence it considered in denying the

variance, stating:

WHEREAS, at the September 14, 2020 hearing extensive testimony was given by the appellant, neighbors, City Planning, the development corporation and Landmarks Commission[.] Concerns were raised by the neighbors that a large apartment building constructed without adequate parking would negatively affect their quality of life. Many neighbors stated that parking is already a problem in the area as it is a struggle to find on-street parking. It was stated that the impact will be greater on the church directly adjacent to the subject property as the parishioners rely on the on-street parking spaces. The neighbors submitted a video showing the average parking usage/availability over certain time periods during the day and evening. The appellants argued that parking is actually not an issue in the area and that many of their tenants will not have cars. They stated that they have parking agreements with nearby owners;(more than 400 feet away) and that public transportation is readily available. The Tremont West Development Corporation representative expressed opposition to the variance citing the new zoning classification as an Urban Form Overlay District that relieves some of the parking requirements but does not completely eliminate it. The Board requested that the appellant hire an independent party to conduct a Parking Study and the case was postponed[.] WHEREAS, April 19, 2021 the appellants presented the parking study. Matt Moss, the Neighborhood Planner also presented an impact study. Neighbors argued that the parking study is not accurate as it was taken during a pandemic when public events have been canceled and people are not patronizing the local restaurants and bars. Approximately 25 letters and emails of opposition were submitted. Approximately 4 letters of support were submitted. Councilman McCormack stated that the request is contrary to the purpose and intent of the zoning code; a rezoning was recently made at this site, the purpose of the new zoning designation was to reduce the overall required parking spaces by a percentage not to completely eliminate them[.]

Appellant appealed the BZA’s denial to the Cuyahoga County Court of

Common Pleas pursuant to R.C. 2506.01. The trial court affirmed the BZA’s denial

in a journal entry:

Upon consideration of the transcript and such additional evidence as the court has allowed to be introduced, the court affirms the order of the city of Cleveland board of zoning appeals, finding the order is not unconstitutional, illegal, arbitrary, capricious, unreasonable, nor unsupported by a preponderance of substantial, reliable, and probative evidence on the whole record.

Appellant appealed, assigning four errors for our review:

1. The Trial Court abused its discretion in finding that the decision of the Cleveland Board of Zoning Appeals (“BZA”) to uphold the decision of the Cleveland Planning Commission’s (“CPC”) denial of Appellant’s variance request is not supported by a preponderance of substantial, reliable and probative evidence.

2. The Trial Court abused its discretion in finding that the decision of the BZA to uphold the decision of the CPC’s denial of Appellant’s variance request was not arbitrary, capricious, and unreasonable.

3. The Trial Court abused its discretion because the Trial Court affirmed a BZA decision that applied the wrong legal standard for an area variance. 4. The Trial Court erred by not holding an evidentiary hearing pursuant to R.C. 2506.03 and allowing Appellant to supplement the record because the BZA’s application of Cleveland Codified Ordinance[s] (C.C.O.) 329.03(b) as to Appellant’s Property was unconstitutional.

II. Law and Analysis

Appellant’s first, second, and third assignments of error are all

interrelated and pertain to the BZA’s decision based on the evidence received. In

these assignments of error, appellant argues that the trial court erred in finding that

(1) the BZA’s denial of the variance is supported by a preponderance of substantial,

reliable, and probative evidence; (2) that the BZA’s denial of the variance was not

arbitrary, capricious, and unreasonable; and (3) the BZA applied the correct legal

standard for an area variance.

We first address the narrow scope of our appellate review. The Ohio

Supreme Court has explained that under R.C. Chapter 2506, the role of the common

pleas courts and appellate courts differ in reviewing appeals from political

subdivisions. Franklin v. Berea, 8th Dist. Cuyahoga No. 93894, 2010-Ohio-4350,

¶ 18, citing Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 735

N.E.2d 433 (2000). Common pleas courts are empowered to reverse the BZA’s

decision “if it finds that the board’s decision is unconstitutional, illegal, arbitrary,

capricious, unreasonable, or unsupported by a preponderance of reliable, probative

and substantial evidence” upon review of the entire record. R.C. 2506.04; Kisil v.

Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984). Appellate review of a

common pleas court’s decision pursuant to R.C. 2506.04 is limited to “questions of law.” Henley at 148; R.C. 2506.04. Questions of law are issues decided by a judge

that concern the application or interpretation of the law and a question of law “does

not include the same extensive power to weigh ‘the preponderance of substantial,

reliable, and probative evidence,’ as is granted to the common pleas court.” Franklin

at ¶ 20, quoting Kisil at 34, fn. 4. Appellate courts are required 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.” Id.; R.C. 2506.04.

We also note that a BZA is afforded wide latitude in deciding whether

to grant or deny a variance. Schomaeker v. First Natl. Bank, 66 Ohio St.2d 304,

309, 421 N.E.2d 530 (1981); Kisil at 35. A board’s decision to deny a variance is

accorded a presumption of validity and the burden of demonstrating the decision’s

invalidity rests with the contesting party. Consol. Mgt., Inc. v. Cleveland, 6 Ohio

St.3d 238, 240, 452 N.E.2d 1287 (1983). The fact that the appellate court may arrive

at a different conclusion than the administrative agency is immaterial; courts are

forbidden from substituting their judgment for that of an administrative agency or

trial court absent the approved criteria for doing so. Franklin at ¶ 20, citing Henley

at 147, citing Lorain City School Dist. Bd. of Edn. v. State Emp. Rels. Bd., 40 Ohio

St.3d 257, 261, 533 N.E.2d 264 (1988).

There are two distinct types of zoning variances — use variances and

area variances. Use variances are subject to higher scrutiny and require a showing

of “unnecessary hardship” while area variances are subject to the lesser standard of “practical difficulties.” Franklin at ¶ 27, citing Duncan v. Middlefield, 23 Ohio St.3d

83, 85, 491 N.E.2d 692 (1986). Neither party disputes that in the instant matter,

appellant sought an area variance.

C.C.O. 329.03 empowers the BZA to grant or deny variances and

provides the analysis that the BZA is required to employ in granting or denying such

variances:

(a) Conditions Requiring Variances.

Where there is practical difficulty or unnecessary hardship in the way of carrying out the strict letter of the provisions of this Zoning Code, the Board of Zoning Appeals shall have the power, in a specific case, to vary or modify the application of any such provisions in harmony with the general purpose and intent of this Zoning Code so that public health, safety, morals and general welfare may be safeguarded and substantial justice done.

(b) Limitation of Variance Powers. Such variance shall be limited to specific cases where:

(1) The practical difficulty or unnecessary hardship inheres in and is peculiar to the premises sought to be built upon or used because of physical size, shape or other characteristics of the premises or adjoining premises which differentiate it from other premises in the same district and create a difficulty or hardship caused by a strict application of the provisions of this Zoning Code not generally shared by other land or buildings in the same district;

(2) Refusal of the variance appealed for will deprive the owner of substantial property rights; and

(3) Granting of the variance appealed for will not be contrary to the purpose and intent of the provisions of this Zoning Code.

This section further instructs that when appealing to the BZA “the

appellant shall state and substantiate his or her claim that the three (3) conditions listed under division (b) of this section exist[.]” C.C.O. 329.03(c). “The BZA must

deny appellant’s request for a variance if they fail to satisfy even one of [the C.C.O.

329.03(b)] requirements.” On Point Professional Body Art v. Cleveland, 8th Dist.

Cuyahoga No. 87572, 2006-Ohio-5728, ¶ 18, citing In Re Appeal of Univ. Circle Inc.,

8th Dist. Cuyahoga No. 36612, 1978 Ohio App. LEXIS 9371, 11 (Jan. 12, 1978).

Finally, C.C.O. 329.04(b) notes that

[t]he Board shall have no power to authorize as a variance the construction or use of any new building which does not fulfil the requirements of the Zoning Code, * * * unless the Board determines that lack of parking space upon the premises of such building will not have a seriously adverse effect upon traffic conditions, or upon the neighborhood.

Caselaw further instructs that property owners seeking an area

variance must establish that without the variance, it would encounter “practical

difficulties” such that application of the zoning ordinance to the property is

inequitable. Duncan, 23 Ohio St.3d at 86, 491 N.E.2d 692. BZAs are instructed to

“weigh the competing interests of the property owner and the community, and the

property owner would be required to show that the application of an area zoning

requirement was inequitable.” CBS Outdoor, Inc. v. Cleveland Bd. of Zoning

Appeals, 8th Dist. Cuyahoga No. 98141, 2013-Ohio-1173, ¶ 16, citing Duncan at id.

The Duncan court lists seven factors that should be considered in determining

whether a property owner seeking a variance has encountered practical difficulties

warranting the variance. These 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.”

CBS Outdoor, Inc. at ¶ 17, quoting Duncan at id.

Where a situation exists, as it does here, where the local zoning

ordinances requires an analysis that differs from the Duncan factors, this court has

applied both. Barry v. Bay Village, 8th Dist. Cuyahoga No. 104999, 2017-Ohio-

7244, ¶ 20, citing Phillips v. Westlake Bd. of Zoning Appeals, 8th Dist. Cuyahoga

No. 92051, 2009-Ohio-2489, ¶ 54, citing Stickelman v. Bd. of Zoning Appeals, 148

Ohio App.3d 190, 2002-Ohio-2785, 772 N.E.2d 683, ¶ 32 (2d Dist.). We further note

that “no single [Duncan] factor controls in a determination of practical difficulties;

the inquiry should focus on the spirit rather than the letter of the zoning ordinance

so that substantial justice is done.” Dyke v. Shaker Hts., 8th Dist. Cuyahoga No.

83010, 2004-Ohio-514, ¶ 30. Thus, a variance may be denied even if some Duncan

factors weigh in favor of the property owner or are inconclusive. Stickelman at ¶ 32;

Duncan at id.

Appellant first argues that the trial court erred in failing to “weigh the

factors under Duncan and C.C.O. 329.03(b).” We note that Civ.R. 52 does not

require a trial court to issue a detailed opinion in an administrative appeal or any findings of fact or conclusions of law. 3910 Warrensville Ctr., Inc. v. Warrensville

Hts., 20 Ohio App.3d 220, 223, 485 N.E.2d 824 (8th Dist.1984). Appellant argues

that the trial court could not have considered the C.C.O. 329.03(b) analysis or the

Duncan factors because the transcript and resolution fail to discuss or analyze each

consideration individually. Appellant cites no law requiring such individual

consideration, and we note that R.C. 2506.04 allows a reviewing trial court to make

its determination based on “evidence on the whole record.” Even though the trial

court did not issue a detailed opinion or any findings of fact, we note that the entire

BZA record was made part of the trial court’s record and this matter is well-briefed.

As such, we are fully able to review this matter on appeal without a detailed opinion

or findings of fact. Kurutz v. Cleveland, 8th Dist. Cuyahoga No. 105899, 2018-Ohio-

2398, ¶ 4; McMillan v. Lakewood, 8th Dist. Cuyahoga No. 105463, 2018-Ohio-94,

¶ 21. We therefore proceed to examine the evidence that appellant proffered to

support each factor of C.C.O. 329.03(b) and Duncan.

Under C.C.O. 329.03(b)(1), appellant was required to show that strict

adherence to the off-street parking requirement would cause it practical difficulties.

Appellant’s singular allegation of practical difficulties is that the parcel that it is

utilizing is too small to accommodate both the Project and the necessary on-site

parking. Appellant argued that strict adherence to the parking requirement would

cause practical difficulty because it was forced to reduce the area for the Project “by

almost 40 percent to preserve the important rectory building.” (Tr. 85.) Since Duncan, 23 Ohio St.3d 83, 491 N.E.2d 692, contains a

framework for evaluating “practical difficulty,” we briefly review the evidence

submitted by appellant supporting each Duncan factor.

The first Duncan factor considers whether the property will yield a

reasonable return or whether there is a beneficial use of the property without the

variance. Appellant argues that the reasonable return is the building itself, citing

the extreme lengths that it went through to benefit the city of Cleveland and the

Tremont neighborhood, noting continued adherence to the city’s requests and

planning, as well as adherence to the goals of the UF District in that the Project

would make “a positive environmental and social impact.” Appellant’s argument

does not demonstrate practical difficulty that caused it to ask for the variance in the

first place, but rather offers mitigation for the concerns arising from the requested

variance. We commend the extensive planning and willingness to work with the

neighborhood, but this fact does not demonstrate how complying with the parking

mandates of the ordinance would cause practical difficulty. Appellant also has not

proffered any evidence suggesting that the Project is the only beneficial use of the

property.

The second Duncan factor considers whether the variance is

substantial. Appellant argues that the variance is not substantial because it acquired

two separate parking leases from neighboring properties that provide additional

parking spaces, mitigating any use of the street parking spaces that the residents

expressed concern about. Rebuttal evidence provided at the hearing suggests that these leases offer an imperfect solution because (1) the leases provide spaces that are

over 400 feet from the building in derogation of other zoning requirements (and

convenience to residents); and (2) the parking spaces may not be available at all

during the day. BZA Chairman Johnson specifically noted that in this situation, she

would not choose to use the leased spaces if she were carrying groceries to the

building and would attempt to find closer parking on the street near the building.

Appellant also notes that even without these leases, its parking study and Moss’s

parking study indicated that street parking was not a problem in the area. The local

block club refuted this testimony with their own parking study demonstrating the

opposite, and many of the letters of opposition cite existing concerns with parking

that the Project, without on-site parking, would likely exacerbate.

The third Duncan factor considers the variance’s effect on the

essential character of the neighborhood and the effect on adjoining properties.

Appellant argues that the Project is actually in line with the substantial character of

the neighborhood, citing all of the pedestrian friendly features that align with the

goals of the UF District. Appellant suggests that creating a residential building

without a parking lot will encourage residents to utilize public transportation,

walking, biking, and rideshare. The record reflects, however, that this argument is

not rooted in the reality of the neighborhood. While designed to be a pedestrian-

friendly area, many of the new residents will undoubtedly have vehicles. The 46

proposed units will result in, at the very least, 46 new residents to the neighborhood

who will have vehicles, and so will their roommates, children, partners, and visitors. These vehicles will need to be parked somewhere. We also note that the record is

full of testimony citing the current struggles of the neighboring St. Augustine Church

to ensure sufficient parking for parishioners and visitors as well as the testimony of

several community members with neighboring properties who also noted an

existing problem finding street parking.

The fourth Duncan factor considers whether the variance would affect

the delivery of governmental services such as water, sewer, and garbage. Appellant

did not argue the fourth Duncan factor in its brief, and our own review revealed no

evidence in the record suggesting that the variance would impede government

services.

The fifth Duncan factor considers whether the property owner

purchased the property with the knowledge of the zoning restriction. Appellant also

did not argue the fifth Duncan factor in its brief. We note generally that the UF

District and its zoning requirements were codified in 2017 and that appellant

purchased the subject parcels in 2019. Appellant does not attempt to establish that

it did not know about the ordinances prior to purchasing the parcels. Appellant only

demonstrates that unforeseen roadblocks with the parcels, such as the inability to

raze the rectory, forced it to work with a smaller space for the Project.

The sixth Duncan factor considers whether the issue necessitating the

variance can be obviated through a method other than a variance. Appellant argues

that there are no feasible alternatives because the only alternative is spending

“$30,000 per parking spot” which would ultimately cost “$1,170,000” to build the required parking spots. This argument is premised on the idea that the only use of

this parcel is a residential building and that any changes to the proposed structure

of the building, which has not been built yet, are out of the question. The record

reflects that in addition to the parking leases that appellant acquired, appellant also

talked with neighboring properties, Grace Hospital and the Ukrainian Museum,

about purchasing land for a parking lot or leasing spaces, but it does not appear that

these talks ever came to fruition. Further, in denying the variance, the BZA

suggested that while the UF District zoning encouraged reduced parking, it did not

support eliminating it completely to the detriment of the neighborhood. Indeed,

during the April hearing, Khalid Hawthorne of the Tremont West Development

Corporation reflected on the history of the Project, noting that “this is attempting to

create policy changes through a variance * * * which is not, * * * the [optimal]

scenario. Yet, if we actually sat down * * * put all our heads together we could come

up with a plan of action to move forward with a development here, but that requires

looking at all the parking in this area.” (Tr. 80.) Nothing in the record suggests that

appellant attempted to propose a variance that contemplated less than 30 spaces,

but more than zero spaces.

The seventh Duncan factor considers whether the spirit and intent

behind the zoning requirement would be observed and whether the variance

provides substantial justice. Appellant again recites that the variance comports with

the underlying goals of the UF District. Appellant also argues that substantial justice

was not done because the BZA granted the new owners of the church parcel a “no parking variance” three months after denying the instant variance. We note that

this is not properly in the record before us2 and could not have been considered in

the BZA’s record due to the fact that it occurred after the BZA held hearings and

issued the resolution. We nonetheless fail to see how a variance granted to a

neighboring parcel, which is unique and has its own set of practical difficulties based

on location, age, usage, and placement, demonstrates that denial of the variance is

at odds with substantial justice.

We further note that the spirit and intent of the zoning ordinance was

a major point raised during the hearings, particularly by Councilman McCormack,

who noted that typically variances are liberally granted based on outdated zoning

ordinances, but that the UF District ordinance was zoned in 2017 using community

input. McCormack suggested that absent a showing of practical difficulties and the

other factors in C.C.O. 329.03(b), the BZA should not approve the variance due to

the consideration that went into the UF District planning. In the BZA’s resolution,

it specifically found that the spirit and intent of the UF District was to promote less

parking spaces, but not eliminate them altogether.

Turning to the second factor that appellant was required to prove,

C.C.O. 329.03(b)(2), appellant was required to demonstrate that without the

variance, it would be deprived of substantial property rights. Appellant suggests

2 At the April hearing, Hawthorne alluded to this variance, noting that “[t]hat’s going to be coming to you for a variance for parking for an event center which would need * * * a variance of 40 something spaces, but they’re going to use valet parking[.]” These limited facts in the record before us already indicate that the nature, usage, and unique needs of the space are different from those of a residential building. that because it was unable to raze the rectory, it was deprived a substantial property

right. We first note that appellant chose, despite the Project size being reduced by

40 percent, to move forward with plans to construct a residential building instead

of taking steps to modify the Project or reconsider it altogether. Appellant

purchased the three parcels containing the church, rectory, and parking lot, likely

with the knowledge that at least the church and rectory were historical buildings,

which are often subject to backlash from community members and historical

societies who intend to preserve the buildings. We are also cognizant of appellant’s

argument that the cost of providing parking on the small surface area would be

costly. This court has held that economic hardship alone does not rise to the level

of substantial deprivation of property rights. Moulagiannis v. Cleveland Bd. of

Zoning Appeals, 8th Dist. Cuyahoga No. 84922, 2005-Ohio-2180, ¶ 27. This court

has also declined to find that substantial property rights are deprived when the

hardship is self-inflicted, as the evidence overwhelmingly supports in the case at bar.

On Point Professional Body Art, 8th Dist. Cuyahoga No. 87572, 2006-Ohio-5728,

at ¶ 23. We find that the record contains minimal, if any, evidence that appellant

would be denied a substantial property right without the requested variance.

Turning to the final factor, under C.C.O. 329.03(b)(3), appellant was

required to demonstrate that the variance would not be contrary to the purpose and

intent of the zoning ordinances. We find that this subsection is similar to the

seventh Duncan factor and, as discussed herein, appellant failed to demonstrate that

the denial of parking would be contrary to the purpose and intent of the zoning ordinances. We also take special note of C.C.O. 329.04(b) that specifically limits the

BZA’s power to grant a parking variance to situations where such variance “will not

have a seriously adverse effect upon traffic conditions, or upon the neighborhood.”

As already discussed, the record contains significant evidence demonstrating that a

residential building absent provided on-site parking could exacerbate an existing

parking problem. Indeed, several members of the neighborhood and community do

not necessarily appear opposed to the Project as a whole, but certainly the Project

absent any provided on-site parking that they believe would be detrimental to the

neighborhood.

Appellant also asserts that the BZA applied the wrong standard of

review in denying the variance request. In support of this, appellant notes that three

of the BZA members cited Councilman McCormack’s testimony in placing their

votes and suggests that these votes were cast exclusively at Councilman

McCormack’s urging that the variance is not warranted simply because the zoning

ordinance is new and represents the current will of the neighborhood. We disagree.

As already discussed, it is clear that Councilman McCormack believed that appellant

did not meet the evidentiary burden necessary to grant a variance. We further find

that the BZA was read the standard that it was to apply at the beginning of each

hearing, and nothing indicates that the BZA deviated from this standard in casting

their votes. See also Kurtock v. Cleveland Bd. of Zoning Appeals, 8th Dist.

Cuyahoga No. 100266, 2014-Ohio-1836, ¶ 18 (“As reflected in the transcript of

proceedings, the board was aware of the requirements under the ordinance.”). Applying the factors set forth in C.C.O. 329.03(b) as well as Duncan,

23 Ohio St.3d 83, 491 N.E.2d 692, we cannot find that the trial court’s decision is

not supported by a preponderance of reliable, probative, and substantial evidence.

Our limited appellate review does not allow us to weigh the evidence, but we find

that reliable, probative, and substantial evidence exists to support the BZA’s denial

as a matter of law. To the extent that the BZA was more compelled by the arguments

of those opposing the variance, we may not substitute our judgment on appeal. Kisil,

12 Ohio St.3d at 34, 465 N.E.2d 848. “We can only reverse an administrative appeal

based on evidentiary arguments if we conclude there is no evidence in support of the

agency’s decision.” Vang v. Cleveland, 8th Dist. Cuyahoga No. 106519, 2018-Ohio-

3312, ¶ 14. Such is not the case here. Based on the foregoing, we overrule appellant’s

first, second, and third assignments of error.

In its fourth assignment of error, appellant argues that the trial court

violated its due process rights by (1) failing to hold an evidentiary hearing, and (2)

not allowing appellant to supplement the record on appeal with evidence of the

BZA’s zoning decision on the church parcel that occurred after the instant matter

concluded.

R.C. 2506.03 governs hearings for appeals taken pursuant to

administrative agencies. Under this section, judicial review of an administrative

appeal is confined to the transcript unless the administrative agency files a deficient

or incomplete transcript. Koach v. Shaker Hts., 2017-Ohio-5748, 94 N.E.3d 987,

¶ 16 (8th Dist.). If it is apparent that the transcript is deficient or incomplete, the trial court must hold an evidentiary hearing if any one of the enumerated exceptions

in R.C. 2506.03 applies. CBS Outdoor, Inc., 8th Dist. Cuyahoga No. 98141, 2013-

Ohio-1173, at ¶ 40. Appellant fails to argue that the transcript was deficient or

incomplete, and our own review reveals that it was not. A full transcript was filed as

well as the full BZA record. We therefore overrule this assignment of error.

Appellant also argues that the BZA unconstitutionally applied C.C.O.

348.04(d)(4)(A) because it “explicitly based its denial of Appellant’s requested area

variance on inaccurate and misguided legal analysis of C.C.O. [348.04(d)(4)(A)]

resulting in the modifying of legal standards for an area variance.” We find no such

evidence supporting this, as already discussed herein. The BZA was read the correct

legal standard to apply at the beginning of both hearings. We have already

determined that the evidence in the record supports the BZA’s findings as applied

to the correct legal criteria set forth in C.C.O. 329.03(b), as well as the Duncan

factors. Appellant’s argument that the BZA applied a stricter standard based solely

on Councilman McCormack’s standards is without merit. We also note that

appellant fails to cite any laws indicating that this is a constitutional violation. We

have examined the available evidence in the record and determined that a

preponderance of reliable, probative, and substantial evidence exists to support the

BZA’s denial of the variance request and the trial court’s subsequent affirmation.

Regarding appellant’s argument that its constitutional rights were

violated, appellant cites no supporting law or any argument supporting such a

contention other than those related to evidence that this court has already evaluated. If an argument exists to support an assignment of error, it is not this court’s duty to

root it out or construct a foundation for appellant’s claim. UBS Fin. Servs. v.

Lacava, 2018-Ohio-3276, 118 N.E.3d 1008, ¶ 21 (8th Dist.), citing In re A.Z., 4th

Dist. Meigs No. 11CA3, 2011-Ohio-6739, ¶ 18; Coleman v. Davis, 4th Dist. Jackson

No. 10CA5, 2011-Ohio-506, ¶ 13.

We therefore overrule appellant’s final assignment of error.

III. Conclusion

After a thorough review of all of the evidence in the record, we cannot

say as a matter of law that the BZA’s denial of appellant’s variance is

unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by a

preponderance of substantial, reliable, and probative evidence on the whole record.

As such, the trial court did not err in coming to the same conclusion. We also

overrule appellant’s arguments that the UF District zoning ordinances were

unconstitutional as applied and that its due process rights were violated, finding no

evidence supporting these contentions.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and EILEEN T. GALLAGHER, J., CONCUR