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McMillan v. City of Lakewood

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 11, 2018

JOHN MCMILLAN, ET AL. PLAINTIFFS-APPELLANTS
v.
CITY OF LAKEWOOD, ET AL. DEFENDANTS-APPELLEES

         Administrative Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-830974

          ATTORNEYS FOR APPELLANTS Stephen M. Nowak Steve Nowak Law, L.L.C., Solvita McMillan

          ATTORNEYS FOR APPELLEES For City of Lakewood and City of Lakewood Board of Zoning Appeals Kevin M. Butler Law Director Jennifer L. Swallow Chief Assistant Law Director

          Also listed Daniel Oldfield, pro se

          BEFORE: S. Gallagher, J., E.A. Gallagher, A.J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, J.

         {¶1} Plaintiffs-appellants, John McMillan and Solvita McMillan, appeal the decision of the trial court that found appellants' administrative appeal moot and, alternatively, affirmed the decision of the Lakewood Board of Zoning Appeals ("Lakewood BZA") that granted a variance to an adjoining property owner. Upon review, we affirm.

         {¶2} The McMillans own a home in Lakewood, Ohio. In June 2014, their next-door neighbor, Daniel Oldfield, applied for a three-foot variance to a required ten-foot side-yard setback requirement in order to install an air conditioner condenser unit ("A/C unit") on the side yard of his property. On his application, Mr. Oldfield described his request as follows: "planning on a patio addition behind the 3 season porch, to maximize enjoyment of the river." In his letter to the Lakewood BZA requesting the area variance, Mr. Oldfield elaborated on his request, stating:

We are in the process of adding AC to our home and would like to place the condensing unit on the North side of our home & our neighbor's driveway. We are planning on adding a patio to the rear of our home in the next few years so that we can enjoy our backyard & also the view of the Rocky River.

         {¶3} At the June 19, 2014 public hearing of the Lakewood BZA, Mr. Oldfield's application was considered. Mr. Oldfield indicated that he was trying to locate the A/C unit in the most efficient location. He indicated that the requested placement for the A/C unit was the shortest distance to the basement furnace, and that in order to meet the ten-foot side-yard setback requirement, the lines would have to be run approximately 20 additional feet to the end of a screened-in porch on the back of the home.

         {¶4} Comments from Lakewood's city architect, Mike Molinski, were read into the record at the hearing. Mr. Molinski opposed the application and expressed that "there does not seem to be a reasonable hardship in this case. The applicant has plans to install a rear patio in the future, but there is ample rear yard to accommodate a patio and A/C unit." Mr. Molinski was not present at the hearing.

         {¶5} The McMillans also opposed the variance request. They expressed concerns with the close proximity of the proposed site of the A/C unit, which was opposite from their family room and the french doors that they keep open for ventilation during the warmer months for air circulation. At the hearing, Mrs. McMillan stated that the A/C unit would be too close to and visible from their family room. Although appellants previously had been granted a four-foot variance in order to install their own air conditioner unit, that request was supported by the McMillans' other neighbor, whose property was adjacent to the unit.

         {¶6} Mr. Oldfield countered that the condenser would be screened with perennial plantings. He also indicated that the proximity between the proposed location of the A/C unit and the McMillans' family room was 35 feet.

         {¶7} The Lakewood BZA granted the variance request with the following stipulations: "[1.] That the noise limit levels are met, [2.] That servicing of the unit can be done without going onto the neighbor's property, and [3.] [That] the unit was screened aesthetically." The variance application contained the notation "sound level 71." The BZA chairperson stated he authorized installation of the A/C unit that emitted a decibel ...


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