Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
APPELLANT Carrie Kurutz, pro se
ATTORNEYS FOR APPELLEES Barbara A. Langhenry Director of Law
City of Cleveland Carolyn M. Downey Assistant Director of Law
Justin M. Smith J.M. Smith Co., L.P.A.
BEFORE: Stewart, J., E.T. Gallagher, P.J., and S. Gallagher,
JOURNAL ENTRY AND OPINION
J. STEWART, J.
When 2515 Company L.L.C. applied for a use variance to sell
used motorcycles in a local retail business district within
the city of Cleveland, appellant Carrie Kurutz, a local
resident, objected on grounds that the proposed use would
destroy the residential character of the neighborhood.
Appellee city of Cleveland's Board of Zoning Appeals
("board") granted the variance, but with
significant restrictions on the manner in which 2515 Company
could operate the dealership. Kurutz appealed to the court of
common pleas, but the court summarily denied her appeal,
finding the board's decision to grant the variance was
supported by a preponderance of reliable, probative, and
substantial evidence. The primary issue in this appeal is
whether the court of common pleas erred as a matter of law by
Before reaching the primary issue on appeal, we consider
several tangential matters. Kurutz first argues that the
court's order affirming the board's decision was made
without any analysis or recitation of the evidence.
The court's judgment affirming the board's decision
the Court, having considered the entirety of the record, does
not find that the decision was unconstitutional, illegal,
arbitrary, capricious, unreasonable, or unsupported by the
preponderance of substantial, reliable, and probative
evidence on the whole record.
language tracks R.C. 2506.04:
If an appeal is taken in relation to a final order,
adjudication, or decision covered by division (A) of section
2506.01 of the Revised Code, the court may find that the
order, adjudication, or decision is unconstitutional,
illegal, arbitrary, capricious, unreasonable, or unsupported
by the preponderance of substantial, reliable, and probative
evidence on the whole record.
more was required of the court. See 3910 Warrensville
Ctr., Inc. v. Warrensville Hts., 20 Ohio App.3d 220,
222, 485 N.E.2d 824 (8th Dist.1984) ("We find no support
in [R.C. 2506.04] for appellant's proposition that the
common pleas court is required to issue written factual
findings in such appeals."); McMillan v.
Lakewood, 8th Dist. Cuyahoga No. 105463, 2018-Ohio-94,
We acknowledge that in Vang v. Cleveland, 8th Dist.
Cuyahoga No. 104994, 2017-Ohio-4187, we reversed a court of
common pleas decision in a zoning appeal for additional
findings because we could not determine whether the trial
court fulfilled its obligation under the statute to review
the evidence. The problem noted in Vang does not
exist in this case: the issues on appeal to the court of
common pleas were well-briefed, allowing us to conduct an
adequate review of the legal issue raised before us. We thus
Kurutz also argues that the court erred by affirming the
board's decision because Thomas Gillespie, who through a
different corporation owned 99 percent of 2515 Company,
represented the limited liability corporation in the hearing
before the board despite being a nonattorney (2515 Company
was represented by counsel in proceedings before the board,
but counsel did not attend the hearing before the board). We
agree with the city that Kurutz forfeited the right to raise
this as an issue ...