OH Appeals Court Finds No Substantial Evidence to Support the Board’s Decision to Grant Use Variance

This post was authored by Matthew Loeser, Esq.

2515 Company L.L.C. applied for a use variance to sell used motorcycles in a local retail business district within the City of Cleveland. Appellant Carrie Kurutz, a local resident, objected on grounds that the proposed use would destroy the residential character of the neighborhood. The City of Cleveland’s Board of Zoning Appeals granted the variance, but with significant restrictions on the manner in which 2515 Company could operate the dealership. Kurutz appealed to the court of common pleas, but the court denied her appeal, and found the Board’s decision to grant the variance was supported by a preponderance of reliable, probative, and substantial evidence.

Here, the record reflected that at no point in 2515 Company’s presentation to the Board did it touch on any aspect of how the denial of a use variance to sell motorcycles would cause it unnecessary hardship “not generally shared by other land or buildings in the same district.” Thomas Gillespie, who through a different corporation owned 99 percent of 2515 Company, admitted that he could have put the space to other uses, but said that doing so would not be in keeping with his vision for the neighborhood: “I can put a bar in there tomorrow. I could put a bar in any of these things because there’s enough cash flow and enough people walking around, but we as a community are trying not to do that and this is a perfect solution.” Gillespie further told the board that “I’m not going to lease the space to a tenant or use that doesn’t complement the rest of the neighborhood, complement the vision of the street, complement all the efforts I have put into the building itself.”

The court found that while the goal of preserving the character of the neighborhood was praiseworthy, that goal was not a basis for finding that an unnecessary hardship existed sufficient to grant a use variance. The court therefore held that there was no evidence to support the court’s finding that there was reliable, probative, and substantial evidence supporting Board’s decision to grant the use variance. Accordingly, the court reversed and remanded the case to the trial court for further proceedings.

Kurutz v City of Cleveland, 2018 WL 3089249 (OH App. 6/21/2018)