Court of Appeals of Ohio, Eleventh District, Lake
B.R. KNEZ CONSTRUCTION, INC., Appellant,
CONCORD TOWNSHIP BOARD OF ZONING APPEALS, et al., Appellees, MOUNT ROYAL COMMUNITY ASSOCIATION, INC., Intervenor-Appellee.
from the Lake County Court of Common Pleas, Case No. 2017 CV
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).
R. WRIGHT, P.J.
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.
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.
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.
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.
Knez raises four assignments of error:
"[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.
"[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.
"[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.
"[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."
R.C. 2506.04 dictates the trial court's and our standard
of review when addressing an appeal from a final order by an
"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.
"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.
"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
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,
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)
"[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 ...