Smith v. Warren Cty. Rural Zoning Bd. of Zoning Appeals
2019 Ohio 1590
Ohio Ct. App.2019Background
- Norman B. Smith erected a wooden privacy fence (up to 12 ft in places) along the shared boundary with his brother in 2016; the Warren County Rural Zoning Code (Section 3.102.6(A)) limits front-yard fences to 4 ft.
- Smith applied for a variance in May 2017 to keep the nonconforming fence; he testified the fence ended harassment and restored peace with his brother.
- The Warren County Rural Board of Zoning Appeals (BZA) held a hearing, concluded the hardship was self-created and alternatives (landscaping/berm) existed, and denied the variance by a 2–1 vote.
- Smith appealed to the Warren County Court of Common Pleas under R.C. Chapter 2506; the magistrate affirmed the BZA, finding the hardship personal to Smith and not unique to the land.
- The common pleas court adopted the magistrate’s decision; Smith appealed to the Court of Appeals, which reviewed whether the lower court’s decision was supported by the preponderance of reliable, probative, and substantial evidence.
- The Court of Appeals affirmed: a variance cannot be granted for a hardship that is personal/self-created (a neighbor dispute), and Smith failed to show the hardship was unique to the land or that no reasonable alternatives existed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the common pleas court violated due process by relying on grounds not raised before the BZA | Smith: court relied sua sponte on self-created-hardship/alternative measures, depriving him of due process | BZA/Warren County: issues (self-created hardship, alternatives) were raised at the BZA hearing and before the common pleas court | Held: No due process violation; record shows BZA and common pleas heard and considered these issues |
| Whether denial based on a finding that the hardship was self-created exceeded statutory authority | Smith: statute/WCRZC do not limit “unnecessary hardship” to non‑self‑created conditions; BZA rewrote law | BZA: ‘‘unnecessary hardship’’ is a judicially understood term requiring uniqueness to the land; self‑created/personal hardships do not qualify | Held: BZA acted within authority; self‑created hardships and personal neighbor disputes do not satisfy the statutory ‘‘unnecessary hardship’’ standard |
| Whether Smith established an ‘‘unnecessary hardship’’ tied to land characteristics | Smith: proximity, lot shape, and house placement created a land-based hardship justifying the variance | BZA: record shows the problem stemmed from the neighbor relationship, not unique physical land characteristics; alternatives available | Held: Smith failed to show hardship unique to the land; hardship was personal/self‑created and insufficient for variance |
| Whether equity/fairness required granting a variance despite statutory standard | Smith: fairness and peace justify a few extra feet of fence; variance would not harm public interest | BZA: granting variance to resolve private disputes would undermine zoning and encourage nonconforming solutions; alternatives existed | Held: Equity does not override the statutory standard; permitting would improperly let owners ignore zoning to resolve private disputes |
Key Cases Cited
- Nunamaker v. Board of Zoning Appeals, 2 Ohio St.3d 115 (Ohio 1982) (variance authorizes maintaining a use prohibited by zoning)
- Kisil v. Sandusky, 12 Ohio St.3d 30 (Ohio 1984) (scope of appellate review for administrative appeals)
- Klein v. Hamilton Cty. Bd. of Zoning Appeals, 128 Ohio App.3d 632 (1st Dist. 1998) (applicant who created the hardship generally cannot obtain a variance)
- Fox v. Shriver-Allison Co., 28 Ohio App.2d 175 (7th Dist. 1971) (unnecessary hardship must be unique to the property)
- Consol. Mgmt., Inc. v. Cleveland, 6 Ohio St.3d 238 (Ohio 1983) (hardship is not unnecessary if the landowner imposed it)
- Stewart v. Vivian, 151 Ohio St.3d 574 (Ohio 2017) (undefined statutory terms are given their common, everyday meaning)