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Vang v. City of Cleveland

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 8, 2017

CAROL A. VANG, ET AL. PLAINTIFFS-APPELLANTS
v.
CITY OF CLEVELAND, ET AL. DEFENDANTS-APPELLEES

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-861452

         REVERSED AND REMANDED.

          ATTORNEY FOR APPELLANTS Paul J. Cristallo Cristallo & LaSalvia, L.L.P.

          ATTORNEYS FOR APPELLEES For City of Cleveland Barbara Langhenry Director of Law, City of Cleveland By: Carolyn M. Downey Assistant Director of Law.

          For Thomas Lenghan Thomas Lenghan, pro se.

          BEFORE: Keough, A.J., Stewart, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE.

         {¶1} Appellants, Carol A. Vang, Andrew P. Philbin, and Luis S. Sandoval (collectively "appellants"), appeal the decision of the common pleas court that affirmed the decision of the city of Cleveland Board of Zoning Appeals (the "Board") granting an area variance to defendant-appellee, Thomas Lenghan ("Lenghan"). For the reasons that follow, we reverse and remand.

         I. Background and Procedural History

         {¶2} Lenghan owns real property located at 1535 Vine Court in Cleveland, Ohio. In October 2015, he applied for a permit to construct four new townhomes on the property. The city of Cleveland Department of Building and Housing denied the application and issued a notice of nonconformance. The city predicated the denial on Cleveland Codified Ordinances ("C.C.O.") 337.031(g), which requires a 20-foot rear yard abutting a residential district. Lenghan proposed only a five-foot rear yard for the townhouses.

         {¶3} Lenghan appealed the denial to the Board. After issuing public notice, on February 29, 2016, the Board held a public hearing at which it heard testimony and accepted documentary evidence.

         {¶4} At the conclusion of the hearing, the Board voted 3-1 to grant the area variance. It subsequently ratified its decision in a written decision stating:

[T]he Board finds that the owner has established that: there are practical difficulties due to the fact that the lot is substantially more shallow than others on the street, only one variance is requested, the neighboring properties have similarly shallow rear yards, the townhouses will positively impact property values, the proposed development is consistent with the neighborhood, which is very densely developed, and the City, Councilman, Block Club and Ohio City, Inc. all support the project as being consistent with the zoning code and the City's plans for the neighborhood and therefore denial would deprive the appellant of substantial property rights and the variance is consistent with the purpose and intent of the zoning code.

         {¶5} Appellants appealed the Board's decision to the common pleas court pursuant to R.C. 2506.04. The trial court affirmed the Board's decision, finding that the Board's decision "was supported by a preponderance of reliable, probative, and substantial evidence, " and was not "unconstitutional, ...


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