
    Beerman v. City of Kettering.
    
      (No. 119247
    Decided November 22, 1965.)
    Common Pleas Court of Montgomery County.
   Cramer, J.

This cause is before tbe court on appeal from what we have heretofore determined to be the non-legislative action of the Kettering City Council in affirming the action of the Kettering Board of Zoning Appeals denying appellant a permit to construct a retail shopping facility on 12.4 acres of his land at the corner of Far Hills Avenue and David Boad in Kettering, Ohio.

The appellant seeks a reversal of that action of the City Council and an order from this court that appellant be granted such construction permit.

The appellant’s application to the Board of Zoning Appeals was for a zoning certificate allowing a variance in the zoning restrictions to permit this shopping facility, a prerequisite, of course, to the allowance of the permit to construct.

The evidence before this court consists of the following: The transcript of the proceedings had before the Zoning Board of Appeals and Kettering City Council; testimony given and exhibits received in evidence both in this court and in the Court of Appeals of Montgomery County, Ohio; only certain transcribed portions of the testimony taken in the mandamus action in the Court of Appeals were introduced here.

Such evidence, we believe, shows without much, if any, dispute, the following:

Appellant purchased some 34 acres of land from the Groby family, of which but 12.4 acres thereof are involved in this action. The property is located in the city of Kettering, Ohio, and fronts on Far Hills Avenue and on David Road back to a point opposite Mad River Road. Appellant planned to establish, what he terms, a shopping facility with self-contained parking on said acreage. Approximately eight and a half acres of the 12.4 acres are zoned R-3 residential, permitting four apartments to a building and the remainder R-l, which permits but single family residences with lots not less than 12,500 square feet. Thus, the zoning regulations do not permit the construction proposed by appellant.
Appellant applied for a zone ehange which was denied. He applied for a building permit to build a shopping facility which was refused by the building inspector. He appealed to the Zoning Board of Appeals for the permit and requested that it grant that variance from the zoning restrictions which would authorize the sought after building permit to be issued to him.
The Zoning Board of Appeals eventually, by a vote of 3 to 2 (the first vote taken resulted in a tie, 2-2 — only four of the five members were present) decided against appellant. An appeal to the City Council likewise resulted adversely to appellant, when the Council voted 5-2, to deny the application.
Appellant’s appeal to this court is brought under Chapter 2506, Revised Code. He seeks to reverse Council’s action and to have this court order that he be granted the permit.

Section 2506.04, Revised Code, provides:

“The court may find that the order, adjudication or decision is unconstitutional (sic), illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication or decision, or remand the cause to the officer or body appealed from with instructions to enter an order consistent with the findings or opinion of the court. The judgment of the court may be appealed by any party on questions of law pursuant to Sections 2505.01 to 2505.45, inclusive, of the Revised Code.”

The appellant centers his attack upon the “decision below” on the ground that it was “unreasonable or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record.” It is, therefore, asserted that we should set aside that action of Council and that this court “order the permit requested to issue with such variance as may be appropriate.”

The appellees contend that the appellant has not shown that the “decision below” was unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence. In support of their contention, they claim:

“(1) The application was really for a change of zoning, not just a variance, and that had been denied without appeal.
(2) Appellant bought the land with knowledge of the existing zoning, so suffered no hardship from the denial of a change.
“(3) The zoning ordinances clearly defined the districts.
“(4) There was no confiscation of appellant’s property by the denial of his application.
“(5) The denial of appellant’s application was necessary to maintain Kettering’s master plan for land use.
“ (6) The denial of appellant’s application was for the best interest of the entire district.
“(7) The action of the Council was neither an abuse of discretion, malicious nor prejudiced.”

Was Council’s decision unreasonable or unsupported by the preponderance of substantial, reliable and probative evidence ?

In resolving this issue, we must rely upon the evidence as furnished by the whole record and before appellant can have any of the relief sought he must establish — for upon him rests the burden of proof — the affirmative of this issue.

This is not a de novo appeal and this court has no power to determine the case de novo, at least, as to the evidence which was before the Board and Council. We, therefore, are not permitted to resolve this question in the light of the action we would have taken had we been a member of the Board or Council, on the evidence presented to those bodies. Our task, as we see it, is to determine the legal justification of their decision not only by what evidence was before such tribunals but also by the supplemental evidence submitted to this court. We believe that we are empowered to consider the evidence received by this court, de novo, and, if so, the weight thereof and the credibility of the witnesses are for our determination. In any event, the “whole record” must be considered in arriving at a conclusion. See Manning v. Straka, 117 Ohio App. 55 and Broad Miami Company v. Board, 185 N. E. 2d 76.

Having heretofore found that appellant is not estopped by the Court of Appeals’ judgment in the mandamus case and that the order here appealed from is an appealable order, we adhere to that ruling and give no further consideration to the reassertion of the claims of appellees in respect thereto. We also adhere to the ruling heretofore made, adverse to appellees’ claim, that the application of appellant is one for a change of zoning and not for a variance.

Section 929.13 of the Kettering Ordinances provides in part:

“Where, by reason of the exceptional narrowness, shallowness or unusual shape of a specific piece of property on the effective date of this zoning ordinance, or by reason of exceptional topographical conditions, or other extraordinary situation or condition of such piece of property, or of the use or development of property immediately adjoining the piece of property in question, the literal enforcement of the requirements of this Zoning Ordinance would involve practical difficulties or would cause undue hardship, unnecessary to carry out the spirit and purpose of the Zoning Ordinance, the Board shall have power to authorize a variance from such strict application, so as to relieve such hardship, and so that the spirit and purpose of this Zoning Ordinance shall be observed and substantial justice done.”

We first give attention to appellant’s claim that the decision denying the applied for variance is unreasonable.

The word “unreasonable” means:

“Not conformable to reason, irrational, not governed or influenced by reason; immoderate, exorbitant.”

In Volume 43 “Words and Phrases” P. 368 “unreasonable” is defined as “carrying the same idea as irrational, foolish, unwise, absurd, silly, preposterous, .senseless and stupid.”

Viewing the evidence submitted both to the Board and this court, in the light of the foregoing definitions of “unreasonable,” we conclude that the decision here appealed from is not unreasonable and may not be disturbed on the ground.

Is, then, the Board’s and Council’s decision, in which they fail to find that:

“the literal enforcement of the requirements of this Zoning Ordinance . . . would cause undue hardship to appellant, unnecessary to carry out the spirit and purpose of the Zoning Ordinance, unsupported by the preponderance of substantial, reliable and probative evidence on the whole record?”

Before we direct our attention to this primary issue, we must, we believe, determine whether the fact that, at the time of the appellant’s purchase of the land herein involved, his knowledge that it was restricted against commercial use, precludes him from claiming undue hardship resulting to him from the enforcement of such restrictions. Of course, if he is so precluded, this appeal must be dismissed.

The appellees argue that we must so find and in support of their position they cite the following authorities: Matter of Clark v. Board of Town of Hempstead, 301 N. Y. 86; State, ex rel. Bugden, etc., v. Kiefaber et al., 113 Ohio App. 523; Stolz v. Ellenstein, 81 A. 2d 476; Matter of Block Holding Corporation, 253 N. Y. S. 321; O’Brien Transfer, Inc. v. Great Neck, 152 N. Y. S. 2d 588; Blumberg v. Foriola, 8 App. Div. 2d 850, 190 N. Y. S. 2d 543, affirmed, 196 N. Y. S. 2d 989, 164 N. E. 2d 863; Dillard v. Village of North Hills, 94 N. Y. S. 2d 715; City of New Orleans v. Lanasa, 230 La. 289, 88 So. 2d 224; In re: Appeal of Michael Volpe, 384 Pa. 374, 121 A. 2d 97 and Bilbar Construction Company v. Board of Adjustment, 393 Pa. 62, 141 A. 2d 851.

The appellant, on the other hand, has cited us to the following cases and authorities: Oka v. Cole, 145 So. 2d 233; Schaible v. Board, 49 A. 2d 50; Mika Realty Corp. v. Horn, 225 N. Y. S. 2d 70; Murphy v. Kraemer, 182 N. Y. S. 2d 205; Griffin Construction Corp. v. Board, 205 A. 2d 313; Wilson v. Mountainside, 201 A. 2d 540; Arant v. Board, 126 So. 2d 100; Denton v. Zoning Board, 133 A. 2d 718; 2 Rathkopf, Law of Zoning and Planning, Third Edition, 1960, C. 48-20; School Committee v. Zoning Board, 133 A. 2d 734; State, ex rel., v. Konopka, 119 Ohio App. 513.

These cases and authorities bring ns to the conclusion that the weight of the authority is to the effect that while prior knowledge of the owner of existing zoning restrictions is an element in determining the existence of hardship, it does not necessarily bar his right to a variance.

It is our opinion, based upon the authorities, that the question whether an applicant is entitled to a variance because of undue hardship resulting to him from the literal enforcement of zoning restrictions is in no way dependent upon his knowledge or lack of knowledge of the existence of the zoning restrictions affecting his land.

The following assertion, made by appellant in his brief, has application here:

“If it may be said that a purchaser buys property with knowledge of the zoning restrictions, he is also presumed to have knowledge of his right to obtain a variance if the restrictions impose an unreasonable hardship upon him.”

Having found that appellant is not so precluded, we proceed to determine whether the “decision below” is unsupported by the “preponderance of substantial, reliable and probative evidence on the whole record” (including, of course, the evidence submitted to and received by this court).

Such a determination cannot be made without first deciding whether the “whole record” shows that the enforcement of the restrictions affecting appellant’s land causes him “undue hardship.”

The term “undue hardship” does not lend itself to precise definition, automatically resolving every case. However, it is to be given a reasonable construction (Heffernan v. Zoning Board of Review, 144 A. 674).

The authorities also advise that:

“The essential inquiry on an application for a variance on the ground of undue hardship is whether, in the circumstances exhibited, the denial thereof would constitute an unjust and unnecessary invasion of the fundamental right of property.” Scaduto v. Biofield, 20 A. 2d 649; National Lumber Products Company v. Ponzio, 42 A. 2d 753.

We are also told that in order for an appellant to be granted a variance on the ground of undue hardship, he must show factors sufficient to constitute such a hardship as would, in effect, deprive him of his property without compensation. Caleagno v. Webster, 41 N. Y. S. 2d 140.

It has also been said:

“That the term should be taken to refer to a hardship peculiar to the situation of the applicant, which is of such a degree of severity that its imposition is not necessary to carry out the spirit of the ordinance, and amounts to a substantial and unnecessary injustice to the applicant.” Eeffemcm, supra.

It is certainly clear that no one factor determines what is undue hardship but all relevant factors must be taken together in order to determine its existence or nonexistence.

What are the relevant factors here?

(1) The unsuitability of the land — 12.4 acres — for residential use (to which the zoning restricts it).

Such unsuitability being due to the present exceedingly heavy traffic (which is reasonably certain to worsen in the near future) on both Far Hills Avenue and David Road; the nearness of this property to that of the Groby’s which is being put to a business use; the nearness to it of a cemetery located immediately to the south of the land and across David Road; and the existence of the Huber apartments on the east side of Far Hills Avenue.

(2) The economic unfeasibility of developing this property for residential use. The building costs and expense of operation of an apartment project would be so great that a very substantial loss would be bound to occur.

The rental income would be wholly insufficient to cover the costs of operating and maintaining such a project, even if the units were fully occupied, a happening unlikely to occur, judging by the extent of lack of full occupancy of the Huber apartments.

The value of this acreage if commercially zoned would be many thousands of dollars more than its worth as presently zoned.

The authorities generally hold that the fact that the literal enforcement' of the zoning resolution in question would result in financial or pecuniary loss to the applicant does not, in itself, establish a case of undue or unnecessary hardship. However, where as here, it is not reasonably practicable to devote the land to a conforming use even that principle does not apply.

Appellant’s knowledge of the zoning restrictions affecting this land prior to its acquisition by him may, as heretofore indicated, be properly considered in the determination of the question whether the denial of his application would result in hardship to him. However, such knowledge is a factor of little, if any, significance here in view of the assurances which the evidence shows appellant felt (not without justification) he had prior to the purchase, that some change in the zoning would be made to permit the property to be put to commercial use. Furthermore, such prior knowledge, even without such assurances, ought not to be permitted to defeat the granting of a variance where its denial would result in a real and substantial hardship to the applicant.

The appellees argue that:

“The maximum possible enrichment of developers is not a controlling purpose of zoning.” Senior v. Zoning Commission, 153 A. 2d 415; State, ex rel. Grant, v. Kiefaber et al., 114 Ohio App. 279 and they cite 8 McQuillan on Municipal Corporations 82, Section 25.44 which was quoted in Cleveland Trust Company v. Brooklyn, 92 Ohio App. 351, as follows:
“The general rule is that hardship, limitation of use or diminution or increase of value of private property does not in itself render a zoning measure unconstitutional or invalid. Indeed, a zoning ordinance is not necessarily invalid although it is harsh and seriously depreciates the value of property involved. Nor is the test of the validity of a zoning measure its financial advantage or disadvantage to the owner arising from the measure or its enforcement.”
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“Mere diminution of market value or interference with the property owner’s personal plans and desires relative to his property is insufficient to invalidate a zoning ordinance or to entitle him to a variance. Similarly, the fact that property is more valuable for an excluded use does not in itself void a zoning restriction. Consistently with these principles, a zoning ordinance may classify property for residential purposes although it can more profitably or beneficially be used for commercial purposes * * * or for industrial purposes. * * *”

Such principles are hardly open to dispute. However, they apply primarily where there is under consideration the question whether a zoning measure is either “unconstitutional or invalid.” Neither infirmity is here claimed. Furthermore, it must be remembered that our question is whether the decision of “no undue hardship,” is supported on the whole record and not what will or will not suffice to strike down a zoning ordinance on the ground of its unconstitutionality or invalidity.

Having concluded, as we have, that the enforcement of the Zoning Ordinance which requires appellant’s land to be devoted to residential use would cause him undue hardship, it remains to be determined whether the preponderance of substantial, reliable and probative evidence (meaning, the evidence before the Board of Zoning Appeals, Council and this court) shows that result — undue hardship on appellant — was unnecessary “to carry out the spirit and purpose of the zoning ordinance.”

The preponderance of the evidence is defined as the greater weight of the evidence, evidence that is more probable, more persuasive and of greater probative value.

‘ ‘ The power to vary the application of zoning regulations * * * is commonly expressly limited to such variations or exceptions as are consistent or in harmony with, or not subversive or in derogation of, the spirit, intent, purposes, or general plan of such regulations.” 168 A. L. R. 37.

“In determining whether to grant a variation of the application of a zoning restriction to a particular piece of property, it is proper to take into consideration the effect of a grant of such variation on the zoning plan itself.” 58 Am. J ur. 1049, Section 200, Zoning.

In the case of Oklahoma City v. Harris, 126 P. 2d 988, the court said:

“It is the ‘spirit’ of the ordinance not to be unnecessarily oppressive or burdensome and injurious to an individual.”

Will the granting of the variance violate the “spirit” and purpose of and not be in harmony with the zoning ordinance? Will granting the application adversely affect the public health, safety, morals or general welfare of the community?

The appelles (sic) contend that the answer to this first question must be “yes.” That allowing the variance will do violence to Kettering’s plan and purpose not to establish a central business district. That appellant’s planned use of his land would create such a district and would be out of harmony with Kettering’s Master Plan.

We are unable to find on the “whole record” that Kettering had any plan, overall or specific, master or otherwise, which would not permit a central business district to be established within the confines of the city. Certainly, there is no documentary evidence of such plan in evidence here.

Furthermore, we cannot say that appellant’s commercial use of his land would produce a cental business district in Kettering. It would appear that the shopping facility appellant seeks to establish would no more produce a central business district than even larger shopping facilities already in existence in the city have produced.

The fact that Kettering has permitted the establishment of facilities similar to that planned by appellant evidences the absence of a general plan to exclude the kind of facility he proposes to create.

It is our opinion that, in view of the location of appellant’s land, it would not, if devoted to the commercial use he plans, be out of harmony with the zoning ordinance. This is particularly true for the remaining acreage of the tract will be devoted to single residence development in full conformity with the present zoning. Such use will prevent, in great measure, if not totally, the creation of the feared central business district.

The retention of the Ordinance’s restrictions as to the land is certainly not necessary for the preservation of the public health, safety or general welfare of the community.

The proximity of appellant’s property to existing shopping centers does not, of course, justify a refusal to the allowance of a commercial use of property. See Killeen Realty Co. v. East Cleveland, 169 Ohio St. 375 at p. 385.

The public safety will not be adversely affected by the use appellant plans to make of this property in so far as traffic is concerned. The effect on public safety would be more harmful if this property were developed for residential apartments as presently zoned, than if a shopping facility were created. Self-contained parking does much to eliminate the traffic hazards which so frequently attend, and are created by apartment house occupancy.

The evidence fully sustains appellant’s claim that the commercial use he plans to make of his property would neither cause neighboring residential property to be de-valuated nor have any adverse effect on the value or desirability thereof.

It is our conclusion that the proposed use of appellant’s property would not be out of harmony with the spirit and purpose of Kettering’s zoning nor with the needs and nature of the neighborhood; nor would it harm the public health, safety, morals or general welfare of the city; and that in the granting of the application “the spirit and purpose of the Ordinance” will be observed and substantial justice done.

We do not find, because the evidence does not support a finding, that those members of the Board and Council who opposed a granting of the variance in doing so abused their discretion in that they were “infected with malice, prejudgment, partiality, discrimination and conflict of interest.” Furthermore, there is nothing in this record which, in onr opinion, impugns the personal integrity of these officials or shows that there was bias or prejudice on the part of any of them against the appellant which played any part in their voting.

It is our finding that the preponderance of substantial, reliable and probative evidence supports the claim that the literal enforcement of the Ordinance’s requirements causes appellant undue hardship, unnecessary to carry out the spirit and purpose of the Zoning Ordinance.

We, therefore, find that the decision here appealed from is not supported by the preponderance of substantial, reliable and probative evidence on the whole record and ought to and, therefore, will be reversed.

The permit requested will be ordered to be issued with the variance requested by the appellant.

We find it unnecessary to pass on the other claims of appellant which, though asserted, were not seriously urged.

An entry may be prepared in accordance with this opinion.  