Reed v. Rootstown Township Board of Zoning Appeals

Per Curiam. R.C. 519.14(B) empowers a township board of zoning appeals to grant variances. The section states as follows: “The township board of zoning appeals may: * * * (B) Authorize, upon appeal, in specific cases, such variance from the terms of the zoning resolution as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the resolution will result in unnecessary hardship, and so that the spirit of the resolution shall be observed and substantial justice done.” The question presented is whether the board’s denial of appellants’ request for a variance amounts to an abuse of discretion and the unconstitutional confiscation of their property. Appellants challenge the board’s decision in two respects. First, they contend that the board’s enforcement of Sections 203-5(A)1 and 203-7(A)2 of the township zoning resolution, which require frontage on a public road meeting minimum standards, is arbitrary in this instance. Appellants point out that the private road in question has been used for forty years and several other single family homes are located on the private road, some of which were built after adoption of the zoning resolution. Even if we assume that this contention is well-taken, however, appellants’ second contention remains problematic. This second contention concerns the applicability of the O-C zoning, which requires a five acre minimum lot size pursuant to Section 301-3(A) of the township zoning resolution, to the subject property. Appellants argue that because their lot overlaps two districts (R-l and O-C), the less restrictive R-l requirements should obtain, notwithstanding that eighty to ninety percent of the lot falls within the O-C district and that any building would necessarily be located in the O-C portion of the lot. The appellants do not explain why they authorized the creation of a 2.834 acre lot as opposed to the five acre minimum required for O-C, other than to state that they did not learn until after the first appeal was taken to the trial court that the major portion of the lot fell in the O-C district. Moreover, the appellants do not discuss why they cannot now develop the subject property in conformity with the applicable minimum lot size. Thus the board seemed to have been correct in asserting that “[ajppellant has created his own hardship by arbitrarily in [56] structing his surveyor to draw lines that do not comply with the requirements contained in the Rootstown Zoning Resolution.” Cf. Town Center Development Co. v. Cleveland (1982), 69 Ohio St. 2d 640, 645 [23 O.O.3d 524] (William B. Brown, J., concurring) (no relief required for self-created hardship). For this reason, the instant case is distinguishable from Negin v. Bd. of Bldg. & Zoning Appeals (1981), 69 Ohio St. 2d 492 [23 O.O.3d 524], which involved a substandard-sized lot. In Negin, a plurality of this court determined at page 496 that the “net effect” of the board’s denial of a variance was that the property owner was “ ‘totally restricted’ in the use of his property in violation of constitutional guarantees.” In the case at bar appellants were not totally restricted in the use of their property. To the contrary, any hardship here was of appellants’ own making. Appellants also would rely on the amended stipulation of facts, paragraphs H and K of which state, respectively, that “[t]he Portage County Health Department has, after testing, approved the lot in question for a septic system and building” and “[t]he lands to the southeast of the lot which is the subject of this action, are swampy and marshy, but this lot is well drained and suitable for building,” in further support for their requested variance. The board contends, however, “that the Portage County Health Department has issued a septic permit and that a portion of this particular lot is on higher ground does not alter the swampy nature of the area or the reasons for zoning this particular district Open Space Conservation.” A review of Section 301-1 of the zoning resolution, which sets forth the purposes of the O-C district, indicates that the O-C district is intended to serve several ends. Section 301-1 states as follows: “This district is established for the following purposes: (1) to preserve and protect the values of distinctive geologic, topographic, botanic, historic, or scenic areas; (2) to protect the ecological balance of an area; (3) to conserve natural resources, such as river valley, and tracts of forest land; and (4) to reduce the problems created by intensive development of areas having excessively high water tables, or which are subject to flooding, or which are topographically unsuited for urban type uses.” These purposes, as enumerated in Section 301-1, are a reasonable and legitimate exercise of the police power, Euclid v. Ambler Realty (1926), 272 U.S. 365, and the board’s exercise of its discretion in this instance cannot be characterized as “arbitrary, confiscatory or unreasonable.” Willott v. Beachwood (1964) 175 Ohio St. 557 [26 O.O.2d 249]. For the reasons hereinbefore stated, the judgment of the court of appeals is affirmed. Judgment affirmed. Celebrezze, C.J., W. Brown, Sweeney and Locher, JJ., concur. [57] Holmes, J., dissents. C. Brown and J. P. Celebrezze, JJ., dissent separately. Footnotes [1] Section 203-5(A) of the township zoning resolution provides as follows: “Every principal building shall be located on a lot of record having frontage on a public or private street built to standards required of dedicated streets in the County.” [2] Section 203-7(A) provides in pertinent part as follows: “All residential streets and roads, both public and private, shall conform to all standards of a dedicated residential street as required by the Portage County Subdivision Regulations * *