Salotto v. Wickliffe Board of Zoning Appeals

952 N.E.2d 1174, 193 Ohio App. 3d 525
CourtOhio Court of Appeals
DecidedApril 8, 2011
DocketNo. 2010-L-049
StatusPublished
Cited by2 cases

This text of 952 N.E.2d 1174 (Salotto v. Wickliffe Board of Zoning Appeals) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salotto v. Wickliffe Board of Zoning Appeals, 952 N.E.2d 1174, 193 Ohio App. 3d 525 (Ohio Ct. App. 2011).

Opinion

Thomas R. Wright, Judge.

{¶ 1} This is an accelerated-calendar appeal, taken from a final judgment of the Lake County Court of Common Pleas. Appellant, Vittorio Salotto, seeks the reversal of the trial court’s determination to uphold the denial of an area variance regarding certain residential property. Essentially, appellant maintains that the trial court misapplied the governing standard for an area variance to the specific facts of this case.

{¶ 2} The subject real property is located on East 294th Street in Wickliffe, Ohio, and was bought by appellant in 1999. At the time of the purchase, the land contained only one building, a single-family residence. In addition, the dimensions of the lot were 75 feet by 100 feet.

{¶ 3} Subsequent to the initial construction of the residence, the zoning provisions of the Wickliffe Codified Ordinances were amended to place the property into an Rl-50 residential district. Pursuant to the new provisions, a lot in an Rl-50 residential district had to have minimum dimensions of 50 feet by 120 feet. Since the property in question was only 100 feet deep, it was considered a legal nonconforming lot. Furthermore, the new provisions indicated that only one single-family dwelling could be maintained on a lot in such a district.

{¶ 4} At some point after his purchase of the property, appellant built a barn/garage structure that was located cater-cornered from the existing residence. At first, appellant used the second structure to store certain equipment. However, once he had retired and had no further need for the storage area, he chose to make renovations to the structure and modify it into a separate rental residence. In doing so, appellant did not obtain any of the required permits from the city of Wickliffe.

{¶ 5} After the renovations had been completed, appellant attempted to give the modified second structure a distinct address and then leased the premises to a tenant. Within a relatively short period after the tenant had moved in, though, appellant received a notice of violation from the Wickliffe building commissioner. This notice stated that appellant’s actions in renovating the second structure had resulted in three violations of the Wickliffe Codified Ordinances, including the statutory requirement that a lot in an Rl-50 residential district could contain only one single-family dwelling.

{¶ 6} In response to the notice of violation, appellant submitted two requests for variances with appellee, the Wickliffe Board of Zoning Appeals. In his first request, he sought a variance from the requirement that the width or frontage of a lot had to be at least 50 feet. In this regard, appellant asked to be allowed to maintain the modified second structure on a new lot that would be only 39.4 feet [529]*529in width. In his second request, he sought a variance under which he would be permitted to split his property into two lots.

{¶ 7} Even though appellant’s second request was made at the express behest of the building commissioner, the board of zoning appeals ultimately chose to proceed solely on the first request. The public hearing on that request was held on October 22, 2009. At the start of the proceeding, the four members of the board asked the building commissioner a series of questions concerning the underlying situation. The majority of the questions focused upon the fact that although appellant’s written request had referred to only the “width” requirement for the new lot, other variances would have to be allowed before the second structure could be used as a residence. For example, it was noted that a variance from the “total land/area” requirement, i.e., 6,000 square feet, would be needed.

{¶ 8} In the second portion of the hearing, individuals from the audience were permitted to make statements before the board. As part of his presentation, counsel for appellant emphasized that the renovation of the second structure had vastly improved the appearance of the surrounding neighborhood and that the tax value of the property had increased. Counsel also indicated that appellant did not try to obtain the required permits, because he was “from the old school.” In addition, three members of the local community, including appellant’s daughter, gave statements in support of allowing him to use the second structure as a single-family dwelling.

{¶ 9} At the conclusion of the public meeting, the board of zoning appeals voted unanimously to deny appellant’s variance request. As the grounds for the decision, the members of the board again noted that appellant would technically need multiple variances to comply with the zoning code, and the percentage of deviation for many of those variances would be substantial. The board also noted that if appellant was permitted to establish the second lot, the width, or frontage, of the existing lot would be less than the 50-feet minimum. Approximately ten days after the date of the hearing, the board of zoning appeals issued its written determination denying the variance.

{¶ 10} Appellant immediately pursued an administrative appeal before the court of common pleas under R.C. Chapter 2506. In that appeal, appellant named both the city of Wickliffe and the board of zoning appeals as appellees. Once the underlying record of the board proceedings was filed at the trial level, each side submitted a brief on the final merits. No new evidence was heard by the trial court. In his brief, appellant asserted that the width or frontage variance should have been granted because the facts before the board had been sufficient to demonstrate that without the variance, he would experience practical difficulties in using his property. In response, appellees contended that (1) [530]*530appellant was seeking a use variance, not an area variance, and (2) he was not entitled to a use variance because he could not establish that the denial of the variance would result in an unnecessary hardship.

{¶ 11} Upon reviewing the board record and the respective briefs, the trial court rendered its judgment upholding the ruling of the board of zoning appeals. In the first part of its analysis, the trial court rejected appellees’ contention and expressly found that appellant was requesting an area variance. Despite this, the court then concluded that appellant had failed to satisfy the standard for showing the existence of a practical difficulty. Specifically, the trial court held that of the seven criteria under the governing standard, the evidence before the board had supported a finding against appellant as to four of the prongs. In light of this, the court ultimately found that the ruling of the board of zoning appeals had been supported by a preponderance of reliable, probative, and substantial evidence.

{¶ 12} In now contesting the merits of the trial court’s final decision, appellant has assigned the following as error:

{¶ 13} “The trial court erred as a matter of law in affirming the conclusion of the city of Wickliffe Board of Zoning Appeals that the plaintiff-appellant, Vittorio Salotto, had faded to establish ‘practical difficulties.’ ”

{¶ 14} At the outset of our legal analysis, we note that we agree with the trial court’s characterization of the nature of the relief that appellant sought in the underlying proceeding. As a general proposition, area variances involve requests to deviate from yard, setback, and height regulations. Miller v. Willowick, 11th Dist. No. 2006-L-148, 2007-Ohio-465, 2007 WL 314677, at ¶ 24.

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Cite This Page — Counsel Stack

Bluebook (online)
952 N.E.2d 1174, 193 Ohio App. 3d 525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salotto-v-wickliffe-board-of-zoning-appeals-ohioctapp-2011.