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Kurutz v. City of Cleveland

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 21, 2018

CARRIE KURUTZ PLAINTIFF-APPELLANT
v.
CITY OF CLEVELAND, ET AL. DEFENDANTS-APPELLEES

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-863172

          FOR 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, J.

          JOURNAL ENTRY AND OPINION

          MELODY J. STEWART, J.

         {¶1} 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 so finding.

         {¶2} 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.

         {¶3} The court's judgment affirming the board's decision states:

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.

         This 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.

         Nothing 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, ¶ 21.

         {¶4} 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 distinguish Vang.

         {¶5} 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 ...


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