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Burlington Coat Factory of Texas, Inc. v. Howland Township Board of Zoning Appeals

Court of Appeals of Ohio, Eleventh District, Trumbull

June 3, 2019

BURLINGTON COAT FACTORY OF TEXAS, INC., et al., Appellants,
v.
HOWLAND TOWNSHIP BOARD OF ZONING APPEALS, Appellee.

          Civil Appeal from the Trumbull County Court of Common Pleas. Case No. 2018 CV 00506.

          Cherry Lynne Poteet and Douglas W. Ross, Daniel Daniluk, LLC, (For Appellants).

          James F. Mathews, Baker, Dublikar, Beck, Wiley & Mathews, (For Appellee).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellants, Burlington Coat Factory of Texas, Inc. and Howland Commons, LLC (collectively, "Appellants"), appeal from a decision of the Trumbull County Court of Common Pleas, affirming the denial of a variance for signage usage by the Howland Township Board of Zoning Appeals ("Appellee"). The variance denial is based on the factoring analysis detailed in Duncan v. Middlefield, 23 Ohio St.3d 83 (1986) ("Duncan"). We affirm the trial court's judgment.

         {¶2} On January 17, 2018, Appellants requested a variance with respect to a Burlington Coat Factory location at 2230 Niles-Cortland Road in Howland Township ("Burlington"). Appellants requested additional square foot area for signage due to its distance from the main roadway, which was documented in a Hardship Visibility Study submitted with the application. Burlington is set back from the roadway anywhere from 965 to 1380 feet, depending on the measure point, and is also subject to sloping, which hinders visibility. Therefore, Appellants requested an additional 50% increase in allowable signage space to increase the size of Burlington's sign.

         {¶3} A hearing was conducted by Appellee on February 15, 2018, where testimony and the Hardship Visibility Study were presented. Appellee denied the application for a variance by a 4-1 vote, applying each of the Duncan factors for "practical difficulties," before concluding that the zoning restriction for wall signage currently in place was reasonable.

         {¶4} Appellants filed an appeal in the Trumbull County Court of Common Pleas on March 15, 2018. The parties each briefed the trial court, and Appellants also submitted a "Notice of Filing Documents to Supplement the Transcript" on July 11, 2018.

         {¶5} The supplemental filing contained variance applications, meeting minutes, transcripts, decisions of the board, and other documents. These documents demonstrated that at least eight other businesses in or around the shopping center where Appellants were requesting a variance for Burlington had been granted the same or similar wall sign variances-including a request for the exact same variance at the same location as Burlington for the previous Linens-N-Things business. The Linens-N-Things request, which was granted, also balanced the Duncan factors before determining that a 50% variance was warranted. Further, the various requests included applications with more substantial wall-size requests than Appellants' and an application claiming less of a hardship by way of the distance from the main road.

         {¶6} After the parties' briefings and the filing of the supplemental documentation, the trial court denied Appellants' appeal, finding the following, in pertinent part:

The transcript and record of the hearing clearly demonstrates [sic] [Appellee] conducted its own discussion and analysis utilizing the Duncan factors. Despite no opposition to the request from the public, [Appellee] ultimately denied the variance request for additional signage by the majority of the board. [Appellee] issued the following relevant Findings of Fact: "Conducting an analysis under Duncan, a majority of the BZA finds that: (i) the Property can yield a reasonable return or there can be a beneficial use of the Property without the requested variance; (ii) the variance as requested is substantial . . . (iii) the Property owner purchased the property with knowledge of the zoning restriction; * * * (v) granting the variance would not satisfy the spirit and intent behind the zoning requirement, and substantial justice does not require granting the variance.
In reviewing the decision of [Appellee] in the limited capacity this appeal provides according to the statute, the Court cannot find the decision was unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the proper evidence.

         {¶7} Appellants noticed a timely appeal and assert one assignment of error for our review:

The trial court committed prejudicial error in affirming the decision of Appellee, Howland Township Board of Zoning Appeals, to deny the application of Appellants, Burlington Coat Factory of Texas, Inc. and Howland Commons, LLC, for an area variance to increase the square footage for wall signage at the ...

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