Marks v. Aurora Bd. of Zoning Appeals
2016 Ohio 5183
Ohio Ct. App.2016Background
- Three brothers (James, Douglas, Charles Marks) owned a 25-acre parcel as tenants-in-common; a partition action was pending. Charles sought to build a handicap-accessible home on a proposed 231.55-foot frontage lot, requiring an 18.45-foot area variance from the 250-foot frontage requirement in the Aurora Codified Ordinances.
- Aurora Board of Zoning Appeals (BZA) conditionally granted the 18.45-foot variance, effective only if the proposed lot split occurred.
- James (one cotenant and appellant) opposed the variance and administratively appealed the BZA decision to the Portage County Court of Common Pleas; that court affirmed the BZA. James appealed to the court of appeals.
- James raised three principal errors: (1) BZA decision lacked sufficient evidentiary support; (2) the common pleas court should have held an oral/evidentiary hearing; (3) the variance application was defective because not all cotenants were named/not all received proper notice.
- The majority affirmed the trial court, finding the BZA’s decision supported by a preponderance of substantial, reliable, and probative evidence, that any defect in administering oaths at the administrative hearing was waived, and that an individual cotenant may apply for a variance without the consent of all cotenants.
- Judge O’Toole dissented, concluding Douglas (a cotenant) did not receive the statutorily/ordinance-required notice of the July 10, 2013 hearing, depriving Douglas—and therefore James—of due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BZA’s grant of an 18.45-foot area variance was supported by a preponderance of substantial, reliable, and probative evidence | James: the variance improperly alters parceling and was unsupported; denial would not prevent reasonable use | BZA/Charles: variance is minor, practical difficulties would exist without it, and BZA considered ordinance factors | Affirmed: BZA decision supported by preponderance of evidence; 18.45 ft not substantial |
| Whether the common pleas court erred by not conducting an oral/evidentiary hearing | James: requested oral/evidentiary hearing; transcript suggests witnesses were not sworn, so additional evidence required | BZA/City: appellant did not specify statutory ground for additional hearing; unsworn testimony was not objected to and error is waivable | Affirmed: no basis shown under R.C. 2506.03(A)(3); omission of oath waived without objection |
| Whether a variance application must be signed/consented to by all cotenants and whether notice to Douglas was defective | James: application incomplete because not all owners named; Douglas did not receive proper notice per ordinance, depriving due process | BZA/City: ordinance requires only an owner to apply; each cotenant has separate title rights; Douglas received notice and counsel had prior involvement | Majority: application valid without all cotenants’ consent; notice challenge waived on appeal (not raised below). Dissent: notice insufficient under ordinance and deprived Douglas and James of due process |
Key Cases Cited
- Cleveland Clinic Found. v. Bd. of Zoning Appeals, 141 Ohio St.3d 318 (Ohio 2014) (scope of common pleas review of zoning board decisions under R.C. Chapter 2506)
- Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d 202 (Ohio 1979) (standard that board’s decision must be affirmed if supported by preponderance of substantial, reliable, and probative evidence)
- Kisil v. Sandusky, 12 Ohio St.3d 30 (Ohio 1984) (court of appeals limited to questions of law on appeal from common pleas in R.C. Chapter 2506 matters)
- Cincinnati Bell, Inc. v. Glendale, 42 Ohio St.2d 368 (Ohio 1975) (common pleas review of administrative zoning decisions permits introduction of additional evidence and both factual and legal determinations)
- Stores Realty Co. v. Cleveland Bd. of Bldg. Standards & Bldg. Appeals, 41 Ohio St.2d 41 (Ohio 1975) (omission of administering oath at administrative hearing is a waivable error)
- Mateo, 57 Ohio St.3d 50 (Ohio 1991) (due process requires meaningful notice and opportunity to be heard)