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B.R. Knez Construction, Inc. v. Concord Township Board of Zoning Appeals

Court of Appeals of Ohio, Eleventh District, Lake

August 5, 2019

B.R. KNEZ CONSTRUCTION, INC., Appellant,
v.
CONCORD TOWNSHIP BOARD OF ZONING APPEALS, et al., Appellees, MOUNT ROYAL COMMUNITY ASSOCIATION, INC., Intervenor-Appellee.

          Appeal from the Lake County Court of Common Pleas, Case No. 2017 CV 000882.

         Judgment: Affirmed.

          Gillian Hall, B.R. Knez Construction, Inc., (For Appellant).

          Michael C. Lucas and Stephanie E. Landgraf, Wiles and Richards, (For Appellees).

          Christopher J. Freeman, (For Intervenor-Appellee).

          OPINION

          THOMAS R. WRIGHT, P.J.

         {¶1} Appellant, B.R. Knez Construction, Inc. (Knez), appeals the denial of its variance to build a home within a riparian setback, issued by appellee, the Concord Township Board of Zoning Appeals (Board). We affirm.

         {¶2} In 2016, Knez purchased an approximately 8.11-acre parcel of real property in Concord Township with the intent to divide the property into residential lots. The lot split application was submitted in June of 2016; approved by the Lake County Health Department in August of 2016; and divided into six parcels in November of 2016.

         {¶3} In July of 2016, Concord Township amended its zoning resolution and adopted riparian setback provisions governing construction and other soil disturbing activities within riparian setbacks along watercourses in the township.

         {¶4} After being denied a building permit for a single-family residence on one of the parcels, Knez sought a variance in March of 2017 from the newly enacted riparian provisions. The Mount Royal Community Association, Inc. (Mount Royal), a neighboring homeowner's association, opposed the variance based on its homeowners' concerns about increased water problems. After a hearing, the Board denied Knez's variance. Knez appealed to the court of common pleas, which affirmed the Board's decision.

         {¶5} Knez raises four assignments of error:

         {¶6} "[1.] The BZA's decision to deny minimal variances from the Riparian Setback Resolution was illegal, arbitrary, capricious, unreasonable, and unsupported by a preponderance of reliable, probative, and substantial evidence.

         {¶7} "[2.] The trial court erred as a matter of law by failing to provide an entry with sufficient findings of fact and analysis to permit appellate review.

         {¶8} "[3.] The trial court erred as a matter of law by failing to grant appellant's request for an evidentiary hearing even though it satisfied the requirements of R.C. 2506.03.

         {¶9} "[4.] The trial court erred by affirming the BZA's decision because the BZA exceeded its authority and engaged in legislative activity when it denied appellant's variance request and effectively rezoned appellant's property to open space."

         {¶10} R.C. 2506.04 dictates the trial court's and our standard of review when addressing an appeal from a final order by an administrative agency.

         {¶11} "Pursuant to R.C. 2506.04, in reviewing an administrative appeal, the common pleas court weighs the evidence presented on the whole record and determines whether the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence." Abdalla Ents. v. Liberty Twp. Bd. of Trustees, 12th Dist. Butler No. CA2011-03-052, 196 Ohio App.3d 204, 2011-Ohio-5085, 962 N.E.2d 865, ¶ 14.

         {¶12} "The judgment of the court may be appealed by any party on questions of law as provided in the Rules of Appellate Procedure * * *." R.C. 2506.04.

         {¶13} "An appeal to the court of appeals, pursuant to R.C. 2506.04, is more limited in scope and requires that court to affirm the common pleas court, unless the court of appeals finds, as a matter of law, that the decision of the common pleas court is not supported by a preponderance of reliable, probative and substantial evidence." Kisil v. City of Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984).

         {¶14} The appealing party has the burden of showing the decision is erroneous. One Neighborhood Condominium Assn. v. City of Columbus, Dept. of Pub. Utilities, Div. of Water, 10th Dist. Franklin No. 16AP-653, 2017-Ohio-4195, 92 N.E.3d 205, ¶ 13.

         {¶15} Knez first argues the trial court erred because it provided ample evidence that it suffers "practical difficulty" in constructing a home on the property in compliance with the township's regulations. The applicant seeking an area variance must establish practical difficulties in complying with applicable area zoning regulations if the variance is not granted. Kisil v. City of Sandusky, 12 Ohio St.3d 30, 465 N.E.2d 848 (1984) syllabus.

         {¶16} "[A] property owner encounters 'practical difficulties' whenever an area zoning requirement (e.g., frontage, setback, height) unreasonably deprives him of a permitted use of his property. The key to this standard is whether the area zoning requirement, as applied to the property owner in question, is ...


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