OH Appeals Court Holds Alleged “Unnecessary Hardship” was Self-Created

This post was authored by Matthew Loeser, Esq.

 

In this case appellant, Norman B. Smith, appealed the decision of the Warren County Court of Common Pleas. which affirmed the decision of the Warren County Rural Zoning Board of Zoning Appeals (“BZA”) to deny his application for a variance from the Warren County Rural Zoning Code (“WCRZC”). Specifically, the purpose of the variance was to keep in place a nonconforming fence he erected on his property in 2016. Approximately one-and-one half years after the fence was completed, Smith applied for a variance. The fence was a wooden privacy fence that stood between two to eight feet higher than what was permitted by the WCRZC. The section of the WCRZC at issue in this case, Section 3.102.6(A), prohibited any fence from standing greater than four feet in a front yard.

 

On appeal, Smith argued the common pleas court’s decision was improper since the BZA denied his application on “unlawful grounds” that went beyond the statutory authorization set forth by R.C. 303.14(B) and Section 1.307.5 of the WCRZC. Smith further contended that the Ohio Revised Code and the WCRZC must specifically define under what circumstances an “unnecessary hardship” exists to allow for a variance to be had. The court noted that the uniqueness of the hardship must stem from circumstances that are peculiar to the land, not the owner of the property. Salkin, American Law of Zoning, Section 13:16 (5th Ed.2010). Thus, contrary to Smith’s claim, a variance application could be denied where the alleged “unnecessary hardship” was self-created and personal to the property owner as opposed to the unique conditions peculiar to the land itself.

 

Smith next contended that the common pleas court erred by affirming the BZA’s decision because he provided sufficient evidence that the literal enforcement of the WCRZR would result in an “unnecessary hardship” to him. Smith supported this claim by noting the “physical dynamics of the property” being in “close proximity” and “having a shared boundary” to that of his brother’s neighboring property. The record reflected that rather than an issue that was unique to the conditions peculiar to Smith’s property, it was Smith’s contentious relationship with his brother that led Smith to erect the nonconforming fence at issue. As such, the “unnecessary hardship” alleged by Smith was self-created and personal to Smith due to his tumultuous relationship with his brother. Additionally, there was nothing in the record to indicate that planting trees or installing a berm as the BZA suggested would be insufficient to alleviate the problems between Smith and his brother. Accordingly, the court held that the common pleas court did not err by affirming the BZA’s decision denying Smith’s application for a variance.

 

Smith v Warren County Rural Zoning Board of Appeals, 2019 WL 1895857 (OH App. 4/29/2019)