2011 Ohio 1803
Ohio Ct. App.2011Background
- Cimino purchased a disrepaired home in Cleveland Heights with a detatched two-car garage that had multiple code violations.
- Cimino received the city’s inspection report at closing and acknowledged responsibility to remedy violations within 90 days.
- The city later extended deadlines; it became apparent the garage could not be repaired and needed to be rebuilt.
- Cimino applied for a variance to forgo required two-car garage under Cleveland Heights Codified Ordinances 1121.09(b) and 1161.03(a)(1).
- The Board denied the variance in May 2009 and ordered Cimino to rebuild by June 28, 2009.
- Cimino challenged the denial via administrative appeal; trial court affirmed, holding the decision supported by substantial, reliable, probative evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court should have held an evidentiary hearing. | Cimino argued the transcript lacked conclusions of fact. | City’s transcript included reasoning; no hearing required. | Overruled; transcript contained findings of fact. |
| Whether the variance denial was arbitrary, capricious, or unsupported by the evidence. | Cimino asserted practical difficulties warranting the variance. | City properly weighed Duncan factors and evidence supported denial. | Affirmed; denial supported by preponderance of reliable, probative evidence. |
| Whether the hearing transcript must be reviewed in its entirety to analyze the decision. | Cimino contends the transcript should be fully reviewed for consistency with other cases. | Transcript was complete; other cases cited post-denial not part of Cimino’s hearing. | Affirmed; no need to review other post-denial applications; transcript complete. |
Key Cases Cited
- Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142 (2000-Ohio-493) (controls scope of appellate review in R.C. 2506 appeals)
- Kisil v. Sandusky, 12 Ohio St.3d 30 (1984) (establishes standard for confirming administrative decisions with substantial evidence)
- Franklin v. Berea, 2010-Ohio-4350 (Ohio App.3d 2010) (duty of reviewing board to apply Duncan factors; defer to findings with substantial evidence)
- Ziss Bros. Constr. Co., Inc. v. Independence Planning Comm., 2008-Ohio-6850 (Ohio App.3d 2008) (transcript may contain findings of fact from minutes; importance of conclusions of fact)