2013 Ohio 1173
Ohio Ct. App.2013Background
- CBS Outdoor and CSX sought a variance to operate a tri-face billboard on CBS’s rail-adjacent property in Cleveland; the city prohibited digital billboards and defined changeable copy signs, creating tension over whether tri-face qualifies as automatic changeable copy.
- CBS converted the billboard to tri-face format without explicit written city approval and operated it for about a year before the city issued notices of violation and non-conformance.
- The city treated the tri-face as an automatic changeable copy sign under C.C.O. 350.10(j), leading to denial of the permit and continued enforcement against the sign.
- CBS and CSX appealed to the City of Cleveland Board of Zoning Appeals (BZA) in two cases: a violation appeal and a variance appeal; the Board denied both, focusing on the automatic-changeable-copy issue.
- The trial court remanded to apply the Duncan area-variance “practical difficulties” standard, but the transcript failed to include conclusions of fact supporting the Board’s Duncan analysis.
- On remand, the BZA held a hearing; the Board fractured 3-2-0 in voting to grant/deny the variance, but did not articulate conclusions of fact or reasons for the Duncan analysis, and the May 2011 resolution effectively denied the variance due to lack of three concurring votes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the record lacks Conclusions of Fact supporting Duncan analysis | CBS argues the Board failed to file conclusions of fact for Duncan | City asserts no such deficiency; transcript suffices | Remand required for missing Conclusions of Fact under 2506.03(A)(5) |
| Whether improper application of Duncan practical difficulties standard invalidates denial | CBS contends proper Duncan factors were not weighed | Board applied Duncan factors and substantial evidence supports denial | Remand to allow proper Duncan analysis and evidentiary weighing |
| Whether tri-face sign qualifies as a changeable copy sign under ordinance | Tri-face is manual (not automatic) and not forbidden by the code | Tri-face constitutes an automatic changeable copy sign under the code | Not separately resolved on these grounds; remand focuses on Duncan record adequacy |
| Whether the Board’s lack of three votes rendered the variance effectively denied | CBS argues improper target of three-concurring-vote requirement | Board’s vote defeat stands; express reasons needed | Moot due to remand for Duncan analysis and missing conclusions |
Key Cases Cited
- Schomaeker v. First Natl. Bank, 66 Ohio St.2d 304 (Ohio 1981) (variance standards; use vs area variance distinction)
- Kisil v. Sandusky, 12 Ohio St.3d 30 (Ohio 1984) (area variance requires practical difficulties, not unnecessary hardship)
- Duncan v. Middlefield, 23 Ohio St.3d 83 (Ohio 1986) (enumerated factors for practical difficulties in area variance analysis)
- Aria’s Way, LLC v. Bd. of Zoning Appeals, 173 Ohio App.3d 73 (Ohio Ct. App. 11th Dist. 2007) (remand when transcript lacks appropriate conclusions of fact)
- Card v. Cleveland Civ. Serv. Comm., 2010-Ohio-3200 (Ohio Ct. App. 8th Dist. 2010) (conclusions of fact must be filed with transcript; not merely in a letter)
- Brookside Auto Parts, Inc. v. Cleveland, 2009-Ohio-967 (Ohio Ct. App. 8th Dist. 2009) (record must show evidentiary basis; conclusions of fact required)
- Concerned Richfield Homeowners v. Planning & Zoning Comm., 2010-Ohio-4095 (Ohio Ct. App. 9th Dist. 2010) (minutes can suffice when they articulate reasoning)
- Global World Peace v. Mayfield Heights Planning Comm., 2010-Ohio-2213 (Ohio Ct. App. 8th Dist. 2010) (context where transcript lacks conclusions but record suffices)