Town Center Development Co. v. City of Cleveland

Per Curiam. The interior parcel is zoned B-Two Family. This is controlled by Section 337.03 of the Codified Ordinances of the City of Cleveland, which provides: “In a Two-Family District the following buildings and uses are permitted: “(a) Dwelling houses, each occupied by not more than two families and not more than two roomers or boarders. “(b) All other uses permitted and as regulated in a One-Family District. “(c) The Board of Zoning Appeals, after public notice and public hearing, and upon prescribing proper safeguards to preserve the character of the neighborhood, may grant special permits for the remodelling of existing dwelling houses or the erection of row houses to provide for more than two dwelling units but not more than six dwelling units in each building, provided that: “(1) The square feet of lot area to be allotted to each dwelling unit is in accordance with the area regulations included in Chapter 355. ' “(2) The dwelling units to be created will be not smaller than two rooms and a bathroom. “(3) There will be no exterior evidence that a remodelled dwelling house is occupied by more than two families, except such as may be permitted by the Board. “(4) The building when altered or erected and when occupied will conform to all the applicable provisions of the Budding and Housing Codes and as the Commissioner of Building and the Commissioner of Housing so certify. “(5) Garage space or hard surfaced and drained parking space will be provided upon the premises for the cars of the families to be accommodated on the premises at the rate of not less than one car per family.” [642] The appellant’s development was to fall within the ambit of Section 337.03(c). Even assuming that all of the requirements of that subsection, as set forth above, were met, the development would not have been possible unless the appellant was able to obtain access because the interior parcel is landlocked.1 The only possible access was through the smaller parcel which fronted West 166th Street. The appellant’s plan was to build a 24-foot wide private drive across the 40-foot wide lot. The lot is located in an A-One Family district. Section 337.02 of the Cleveland codified ordinances sets the parameters of permissible uses in A-One Family districts. The proposed private drive is not among the permitted uses. Consequently, a variance was necessary for the project to be built. The variance power is invested in the board of zoning appeals by Section 329.03 of the Cleveland codified ordinances. This section reads, in pertinent part: “(a) Conditions Requiring Variances. Where there is practical difficulty or unnecessary hardship in the way of carrying out the strict letter of the provisions of this Zoning Code, the Board of Zoning Appeals shall have the power, in a specific case, to vary or modify the application of any such provisions in harmony with the general purpose and intent of this Zoning Code so that public health, safety, morals and general welfare may be safe-guarded and substantial justice done.” The standard of review for a court in an appeal brought under R. C. 2506.01 et seq. is set forth in R. C. 2506.04. That section provides in pertinent part: “The court may find that the order, adjudication or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record.” In Dudukovich v. Housing Authority (1979), 58 Ohio St. 2d 202, 207, this court reviewed this language and stated: “ * * * If a preponderance of reliable, probative and substantial evidence exists, the Court of Common Pleas must [643] affirm the agency decision; if it does not exist, the court may reverse, vacate, modify or remand.” A review of the record reveals that the construction of appellant’s planned private road would lead to increased traffic on West 166th Street. Also, the road would terminate within the complex at a circle. There was testimony that the turning radius for the circle, 40 feet, would create a safety hazard because certain fire engines had a like turning radius. This would have created a hazard for any such fire engine when it had to leave the complex in an emergency. Lastly, the road would be in close proximity to houses which adjoined the small lot. Based upon these factors, we conclude that a preponderance of reliable, probative and substantial evidence supports the board’s decision not to grant the variance since it did not meet the standards set forth in Section 329.03 of the Cleveland codified ordinances. As the grant of the special permit for the interior parcel was predicated upon obtaining a variance for ingress and egress, the board was likewise correct in its decision not to grant the special permit. Accordingly, the judgment of the Court of Appeals is affirmed. Judgment affirmed. W. Brown, Locher, Holmes and Stephenson, JJ., concur. Celebrezze, C. J., Sweeney and C. Brown, JJ., dissent. Stephenson, J., of the Fourth Appellate District, sitting for Krupansky, J. Footnotes [1] The appellant’s principals previously owned the land which fronted upon Rocky River Drive, directly to the west of the interior parcel, but they sold it without reserving an easement for access to the interior parcel.