Posted by: Patricia Salkin | November 25, 2014

OH Appeals Court Upholds Denial of Area Variance to Church

Faith Walk Fellowship Church sought a variance to use the single family residence it owned as a church (which was a permitted use in a single-family residential district), and to install a gravel parking lot for six vehicles on an adjacent, vacant lot. The application was denied on grounds that the proposed use did not conform to setback requirements, that accessory off-street parking spaces must be paved, and that Faith Walk failed to incorporate a means of screening the proposed parking spaces. The Cleveland Board of Zoning Appeals denied the variance request on grounds that it would have an adverse effect on neighboring property owners, would be inconsistent with the character of the surrounding neighborhood, and that granting a variance would be contrary to the purpose and intent of the city’s zoning code. The court of common pleas affirmed the Board’s decision, and Faith Walk appealed.
Cleveland Ordinance 337.02(f)(1) permits “[t]he following buildings and uses, if located not less than fifteen (15) feet from any adjoining premises in a Residence District not used for a similar purpose: (1) Churches and other places of worship, but not including funeral chapels or mortuary chapels[.]” Faith Walk argued that the Board should have construed the words “adjoining premises” to mean the house situated on the adjoining lot (located more than 15 feet from Faith Walk’s house), not the adjoining lot itself. The court disagreed, finding the word “premises” was plainly used to indicate not only structures and dwellings, but the lands on which those structures or dwellings are located.

The court noted that the defining aspect of area variances is that the practical difficulties undue hardship standard refers to the characteristics of the land, not conditions personal to the owner of the land. Thus, Faith Walk had to show that the 15–foot setback requirement did not refer to conditions personal to it as the owner of the land in question but rather referred to the conditions especially affecting the lot in question. There was no evidence that Faith Walk could not erect on the property a church that conformed to setback requirements. That it could not use the existing structure on the land for use as a church was a condition personal to Faith Walk, not the property. Because Faith Walk had not argued that the board committed errors of law in rejecting the requested variance, the court affirmed the denial of the variance request.

Faith Walk Fellowship Church v City of Cleveland, 2014 WL 6065658 (OH App. 11/13/2014)

The opinion can be accessed at: http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2014/2014-ohio-5035.pdf


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