Kurutz v. cleveland
2018 Ohio 2398
Ohio Ct. App.2018Background
- 2515 Company LLC sought a use variance to permit retail sale of used motorcycles in a property zoned "local retail district" in Cleveland; sale of motor vehicles is generally prohibited in that district.
- The city zoning administrator denied the permit; 2515 Company applied to the Cleveland Board of Zoning Appeals (the board).
- At the board hearing, owner Thomas Gillespie and a retailer (Whiskey Grade) described displaying up to 15 motorcycles as part of a retail concept; no servicing or test drives would occur.
- Neighbors, including appellant Carrie Kurutz (pro se), objected citing residential character, noise, and motorcyclist gatherings.
- The board granted the use variance but imposed conditions (limited hours, no servicing, no test drives, maximum 15 motorcycles).
- Kurutz appealed to the Cuyahoga County Court of Common Pleas; that court affirmed. On appeal to the Eighth District, the appellate majority reversed, finding no evidence of an "unnecessary hardship" peculiar to the property to justify a use variance, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the common pleas court’s brief affirmance complied with R.C. 2506.04 | Kurutz argued the trial court gave no analysis or factual findings, so review was inadequate | City and court argued the statutory language of R.C. 2506.04 did not require written factual findings; the court considered the record | Affirmed: the court’s summary language tracked R.C. 2506.04 and was sufficient |
| Whether nonlawyer Gillespie’s appearance for the LLC at the board hearing was grounds for reversal | Kurutz argued Gillespie improperly represented the LLC before the board | City argued Kurutz forfeited the issue by not raising it below | Held forfeited: Kurutz failed to raise the argument in the common pleas court |
| Whether a board member’s undisclosed pecuniary interest required reversal | Kurutz claimed concealment and improper influence despite recusal | City noted the member recused and did not vote; issue not raised below | Forfeited on appeal; recusal meant no vote and no demonstrated improper influence |
| Whether the board’s grant of a use variance was supported by a preponderance of reliable, probative, and substantial evidence (i.e., unnecessary hardship peculiar to the property) | Kurutz argued 2515 Company presented no evidence that denial would create an unnecessary hardship unique to the property; owner’s statements showed other uses were feasible | 2515 Company and the board argued the request fit neighborhood vision and economic realities; conditions were imposed to limit impacts | Reversed: appellate court concluded there was no evidence to show an unnecessary hardship peculiar to the property, so the use variance was unsupported and remanded |
Key Cases Cited
- Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142 (discussion that appellate court may not weigh evidence in administrative appeals)
- Cleveland Clinic Found. v. Bd. of Zoning Appeals, 141 Ohio St.3d 318 (standard that reversal occurs when no facts support common pleas court decision)
- Eastley v. Volkman, 132 Ohio St.3d 328 (distinguishing review for weight of evidence and matters of law)
- Kisil v. Sandusky, 12 Ohio St.3d 30 (abuse of discretion by common pleas court is a proper question of law on appeal)
- Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125 (scope of appellate review of administrative actions)
- 3910 Warrensville Ctr., Inc. v. Warrensville Hts., 20 Ohio App.3d 220 (8th Dist.) (R.C. 2506.04 does not require written factual findings by the common pleas court)