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Barry v. City of Bay Village

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 17, 2017

GENE BARRY PLAINTIFF-APPELLANT
v.
CITY OF BAY VILLAGE, OHIO BOARD OF ZONING APPEALS, ET AL. DEFENDANTS-APPELLEES

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-855176

          ATTORNEY FOR APPELLANT DOMINIC J. VANNUCCI

          ATTORNEYS FOR APPELLEE GARY A. EBERT CHARLES W. ZEPP SEELEY SAVIDGE EBERT & GOURASH CO.

          BEFORE: Kilbane, P.J., E.T. Gallagher, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, PRESIDING JUDGE

         {¶1} Plaintiff-appellant, Gene Barry ("Barry"), appeals the trial court's judgment affirming the decision of defendants-appellees, the city of Bay Village and the city of Bay Village Board of Zoning Appeals (the "BZA") (collectively referred to as "City"), to deny Barry's variance request. For the reasons set forth below, we affirm.

         {¶2} In June 2015, Barry filed an application with the BZA for a setback variance. Barry sought a variance from the 50-foot front yard setback requirement to build a utility room onto his existing home. In his application, Barry explained that the utility room was needed for storage of equipment, such as a lawn mower and lawn furniture. Barry's lot backs up to Lake Erie. The back end of Barry's lot is built to the property line. As a result, he could not build an addition in the back of his house.

         {¶3} Barry previously received a 25-foot variance to build a garage on the front, west end of the house. The utility room Barry sought to build would have been on the east end of the house. This would have created a U-shaped house with the garage on the left, the utility room on the right and the front entrance in the middle.

         {¶4} The City's front yard setback requirement is 50 feet. The existing utility room already encroaches 14 feet into the setback area. Barry's proposed storage room would encroach an additional 10 feet into the setback, making the setback 26 feet instead of 50 feet.

         {¶5} In reviewing this variance request, the BZA was concerned that the lot was already "really over-built." The minutes from the BZA meeting state, in relevant part, that "[b]etween the house and the paving, the construction is right up to the street." The board members were also concerned that "the property is all concrete in the front, and there is a requirement that a certain portion of the property be grass." The BZA explained that when deciding whether to grant a variance, the board considers "the significance of the size of the variance requested" and noted that Barry's request "represents a 50 percent reduction in the front setback, since a 14 foot setback had previously been granted and this request is for an additional 10 feet." The BZA voted to deny Barry's requested variance in July 2015.

         {¶6} In September 2015, Barry submitted a new application decreasing the size of the requested variance from 24 feet to 22 feet. This reduced the size of the addition from 10 feet to 8 feet. The BZA considered this application at its October 1, 2015 meeting. The BZA reviewed its previous discussion at the July meeting where it was noted that the property is already very densely built and a previous variance had been granted on a setback for the garage. The consensus in July was that the property was already dense enough. The BZA stated that it would be "going against the spirit of the reason for the front yard setback to allow more because somebody wants more storage." After the discussion, the application was tabled and the BZA asked Barry to submit a new proposal. As a result, Barry submitted a third application and reduced the requested variance from 22 feet to 20 feet, thereby allowing for a six foot addition.

          {¶7} At the November 2015 BZA meeting, Barry again explained that he needed the utility room for storage of his maintenance equipment since his house does not have a basement or an attic. Having the storage room for maintenance equipment would allow him to park his cars in the two-car garage. Barry also cited the lack of alternative sites on the property to address his problem. The BZA, however, was still concerned that Barry's property was "overbuilt" and his property already extended well into the setback area. The BZA denied Barry's third request.

         {¶8} Barry then filed an administrative appeal pursuant to R.C. Chapter 2506, challenging the City's denial of his variance request. The common pleas court affirmed the City's decision, finding in relevant part:

After applying the law as set forth in Kisil v. Sandusky, 12 Ohio St.3d 30, 456 N.E.2d 848 (1984), and Duncan v. Middlefield, 23 Ohio St.3d 83, 491 N.E.2d 692 [(1986)] to the facts of this case, this court finds the board's decision is supported by substantial, reliable, and probative evidence. Therefore, the board's decision is affirmed.

         {¶9} Barry requested findings of fact and conclusions of law. The trial court denied his request. This appeal followed. Barry raises ...


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