In the end, the Cleveland Clinic got its helipad

by Hannah Dankbar

Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals
(
Ohio Supreme Court, November 5, 2014)

The Board of Zoning Appeals of the City of Cleveland denied a permit to Cleveland Clinic Foundation and Fairview Hospital to build a helipad on the roof of a two-story addition to the hospital.

The land that the hospital sits on is zoned as a Local Retail Business District, meaning “a business district in which such uses are permitted as are normally required for the daily local retail business needs of the residents of the locality only.” (Cleveland Code of Ordinances (C.C.O.) 343.01(a)). The hospital has been granted many variances since this zoning was put in place.

In October 2010, the Clinic filed an application with the City’s Department of Building and Housing seeking approval of three construction projects, including the construction of the helipad. The City cited C.C.O. 343.01(b)(8), which says “accessory uses” are allowed “only to the extent necessary [and] normally accessory to the limited types of neighborhood service use permitted under this division,” and rejected all three projects.

The Clinic appealed to the Board of Zoning Appeals (BZA).  Opponents testified about potential noise and traffic problems.  The hospital representatives testified that almost all of the hospitals in the Cleveland metropolitan area have helipads, and that the use of helicopters in the transport of patients reduces travel time and, therefore, saves lives.   The BZA approved the other two projects, but denied the permit to construct the helipad citing C.C.O. 343.01(b)(8) by saying, “those uses that the Zoning Code characterizes as retail businesses for local or neighborhood needs would not involve a helipad as normally required for the daily local retail business needs of the residents of the locality.”

From here the Clinic appealed the denial to the Cuyahoga county Court of Common Pleas, who reversed the decision. This court used C.C.O. 343.01(b)(1) that provides that with limited exceptions, all uses permitted in the Multi-Family District are also permitted in the Local Retail Business District. Hospitals are expressly permitted in the Multi-Family district, and so the Court of Common Pleas concluded that a helipad is “customarily incident to” a hospital and therefore qualifies as an “accessory use.”

The BZA appealed to Eighth District Court of Appeals, who reversed again. The court found that ambiguity exists in C.C.O., and ultimately decided to give deference to the BZA and its original decision, saying “When the BZA reasonably relies on a code provision, its determination should hold so long as its decision is not unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record,” This is to be true regardless of the fact that the law requires any ambiguity in a zoning ordinance to be construed in favor of the property owner.

The Supreme Court of Ohio determined that the wrong standard of review was used by the Eighth District Court of Appeals. Rather than review the BZA’s decision for clear error, the Court of Appeals should have been reviewing the Court of Common Pleas decision, and only overruling the Court of Common Pleas if the decision is not supported by a preponderance of reliable, probative and substantial evidence. Reversal is only appropriate when there is an error in the application or interpretation of law.

The Supreme Court of Ohio refers to C.C.O. 325.02 and 325.721 (to define “accessory use”), 337.08 (types of buildings permissible in a Multi-Family District), and 343.01(b) (permitted buildings in a Local Retail Business District). “Given the record before us, we have little trouble concluding that the preponderance of substantial, reliable, and probative evidence supports the [Court of Common Pleas’] conclusion that helipads are customarily incident to hospitals, at least in Cleveland.”

Investigations by zoning board member outside the hearing process did not give rise to due process violation

by Kaitlin Heinen and Gary Taylor

Timothy Hutchinson v. Wayne Township Board of Zoning Appeals
(Ohio Court of Appeals, 12th Appellate District, September 10, 2012)

Tim Hutchinson filed an application for a conditional use permit from Wayne Township Board of Zoning Appeals (BZA) to operate a Halloween-themed nature walk on part of Jana Hutchinson’s farm, which was zoned A-1, agricultural district. The BZA held a hearing for Tim Hutchinson’s application in July of 2008. At this hearing, it was found that the nature walk would be open 6-8 weekends per year during the Halloween season from 5pm-midnight. Traffic would come from Wayne-Madison Road using two unpaved roads, while parking would be provided in nearby open fields. The BZA  found that Wayne-Madison Road is a narrow, two-lane, dead-end road with no lighting and with narrow berms that steeply slope into drainage ditches, although Hutchinson presented expert testimony from a traffic engineer that Wayne-Madison Road would be able to handle the additional traffic. The BZA also heard complaints from residents in the area, which addressed safety issues arising from the use of Wayne-Madison Road by drivers who are inexperienced with gravel roads as well as the peace and the security of the residents in area that may be affected by the increased traffic. The BZA adjourned the hearing in progress, expressing concern that Tim Hutchinson was not a proper applicant since he was only a tenant on the property and not the landowner. Jana Hutchinson was then joined on the application for a conditional use permit, and when the hearing resumed she provided additional information to BZA about security, traffic, road maintenance, and insurance for the nature walk.

In December of 2008, the hearing was reconvened. Tim Hutchinson testified that he estimated 500 cars would be expected at the nature walk each evening. However, BZA member Carleen Yeager stated that she had researched attendance at other Halloween-themed events and, to the contrary, 500 cars would be a “light night” and that nearly 1500 cars would be expected on a “good night.” Tim Hutchinson countered that the nature walk was new and that he was “starting off small.” At the end of the hearing, BZA member Jerry Gerber moved to deny the Hutchinsons’ application.  The vote was unanimous against the application. The Hutchinsons appealed the BZA’s oral denial of the application to the Butler County Court of Common Pleas and the case was remanded to the BZA for the issuance of a written decision.

In March of 2010, the BZA issued its written decision, which found that the Hutchinsons’ nature walk would be inconsistent and incompatible with the current uses of the surrounding area and would adversely affect the general welfare of neighboring residents in the area. The Hutchinsons’ appealed. In January of 2012, the common pleas court issued its decision that affirmed the BZA’s denial of the Hutchinsons’ application for a conditional use permit.

The issue before the Ohio Court of Appeals in this decision then is that “the common pleas court erred to the prejudice of the [appellants] by affirming the BZA’s decision.” The Hutchinsons claimed that the trial court erred in its affirmation of the BZA’s decision, even though the appellants had satisfied all requirements of the zoning resolution, and that the trial court erred in finding that their due process rights were not violated by BZA member Yeager’s outside investigation.

In regards to the Hutchinsons’ first claim, the township’s zoning code requires that conditional uses must meet several criteria, such as not adversely affecting the health, safety, comfort and general welfare of the surrounding area by threats of traffic hazards, noise disturbances, night lighting, fire hazards, etc. (Section 25.053). However, citing prior case law the court stated that satisfaction of these requirements does not make approval automatic, and that the township zoning code also requires the BZA to “give due regard to the nature and condition of all adjacent uses and structures” surrounding the proposed conditional use. After reviewing the record, the court found that the Hutchinsons did not satisfy all the requirements in the code. Despite the Hutchinsons’ presentation of an expert witness, the BZA had reason to find that the increased traffic would be incompatible with the surrounding area. Thus the trial court did not err in their decision to affirm the BZA’s denial on this count.

As for the due process violation alleged, “[t]he essence of due process dictates, at the very least, that an individual have an opportunity to be heard and to defend, enforce and protect his rights before an administrative body in an orderly proceeding.” Here, Yeager admitted to making “some calls” inquiring into the reasonable number of cars to be expected for a Halloween-themed event. The Hutchinsons argued that her statement negatively affected their ability to have a fair hearing, since they were not able to cross-examine Yeager’s informants as well as Yeager herself, at the risk of losing her vote. Again citing previous caselaw, the court stated that “[t]he combination of investigative, executive and adjudicative functions does not necessarily create a risk of bias or unfairness in an administrative adjudication.” The court noted that the BZA’s decision stated, in part, that it was denying appellants’ application because the Nature Walk “would significantly increase traffic flow, according to applicant’s testimony, by hundreds of cars each evening.” From this statement, according to the court, “it is clear that the BZA did not rely on Yeager’s view that as many as 1,500 cars would be traveling Wayne-Madison Road, but only that 500 cars would be on the road, as indicated by Tim Hutchinson.”

Further, the court noted that the BZA unanimously denied appellants’ application. Thus, even if Yeager’s statements demonstrated her own bias and prejudice toward the Nature Walk, the exclusion of her vote would not have altered the result.   No due process rights were violated.

The judgment of the trial court was affirmed, maintaining the denial of the Hutchinsons’ application for a conditional use permit to operate a Halloween-themed nature walk.

Owner of purchase option has standing to apply for variance in Nebraska

by Gary Taylor

Field Club Home Owners League v. Zoning Board of Appeals of the City of Omaha
(Nebraska Supreme Court, May 11, 2012)

Volunteers of America (VOA) proposed to build an apartment-style building for veterans in Omaha.  To construct the building as planned, VOA applied to the Omaha Zoning Board of Appeals (Board) for variances from area and use restrictions. The appellants, Field Club Home Owners League and Thornburg Place Neighborhood Association (Field Club) opposed the application. The Board granted the variances, concluding that the 1987 Code created an unnecessary hardship because it did not contemplate a project like VOA’s. The district court affirmed the Board’s decision, and Field Club appealed to the Nebraska Supreme Court.

Field Club argued that VOA lacked standing to request variances from the Board because VOA had not obtained a certificate of authority pursuant to Neb. Rev. Stat. 21-20,169(1), which provides that “[a] foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.”  The Nebraska Supreme Court found the provision inapplicable because, although VOA is a foreign corporation, VOA was not “maintaining” a court proceeding. It was Field Club that petitioned the district court and named VOA as a defendant.

Field Club also contended that because the owner of the property was Kiewit Construction Company, and not VOA, that VOA lacked standing because it had no legally cognizable interest in the property. The Supreme Court noted that the majority of courts that have considered the issue hold that a prospective purchaser under a purchase agreement subject to the grant of a variance or rezoning has standing to seek the change. Similarly, courts have held that the holder of an option to purchase property has standing to apply for a variance when the holder is bound to purchase the property if the variance is obtained or when the property owner anticipated that the option holder would seek the variance to complete the sale.  The Supreme Court agreed with these other jurisdictions, and further noted that the principles hold true in administrative proceedings as well as judicial proceedings.

However, the Supreme Court noted that Field Club did not raise the issue of standing until the case reached the Supreme Court.  Partly as a result of this, the record did not contain evidence addressing VOA’s interest in the property.  Therefore, the Supreme Court remanded the case to district court to receive additional evidence and determine whether VOA had sufficient interest in the property to seek the variances.

City not proper party to certiorari action against zoning board of appeals

by Gary Taylor

Acevedo v. The City of Kenosha and the Kenosha City Zoning Board of Appeals
(Wisconsin Court of Appeals, December 22, 2010)

In March 2007, Acevedo began operating a child day care center in the lower unit of a two-family residential dwelling zoned RG-1 General Residential District in the City of Kenosha. The property is owned by Acevedo’s mother; however, neither Acevedo nor her mother reside at the property.   In April 2009, Acevedo sought to obtain a license from the state to operate a second child day care center in the upper unit of the property.  A licensing supervisor from the Wisconsin Department of Children and Families (WDCF), contacted the City of Kenosha Zoning Coordinator, with concerns about licensing another child care center at the same residential property.  This inquiry for the first time alerted the City of Kenosha Department of Neighborhood Services and Inspections that Acevedo was seeking a license from WDCF to operate a child day care center in the upper unit of the property.  The zoning administrator informed Acevedo that the child day care center in the lower unit and the proposed child day care center in the upper unit violated the City of Kenosha zoning ordinance.  After informing Acevedo, the city also notified the property owner (Acevedo’s mother) of the zoning ordinance violation and included a directive to cease and desist all day care activities at the property by May 30, 2009.

In July 2009 Acevedo filed a request for an administrative appeal with the City of Kenosha Zoning Board of Appeals.  The matter came before the Board for an evidentiary hearing on August 13, 2009.  After testimony and evidence was received, the Board affirmed the interpretation of the City’s zoning ordinance by the zoning, and ordered that Acevedo cease and desist all day care operations at the property and remove a ground sign on the property.  On September 23, 2009, Acevedo filed a certiorari action in Kenosha county circuit court which initially named only the City as defendant.  The City moved to dismiss Acevedo’s lawsuit on the basis that the action failed to state a claim for which relief could be granted; specifically, that Acevedo’s claim should have been against the Zoning Board of Appeals, which, the City contended, is a separate body politic.  The City further asserted that the City was not a proper party to the action.  After the City filed its motion to dismiss, Acevedo amended her complaint to add the Board as a defendant.  The circuit court granted the City’s motion to dismiss.  Acevedo appealed the circuit court’s order to the Wisconsin Court of Appeals. 

The issue on appeal was whether the City is the proper party for a writ of certiorari challenging a decision of the Board.  The City contended that Acevedo’s request for a writ of certiorari, which by law is a request to compel action from a public body, cannot in fact compel any action from the City; i.e., that the City has no authority over the actions of the Zoning Board of Appeals.  After reviewing several prior cases raised by Acevedo, and the language of Wis. Stat. §§ 62.23(7)(e)10 and 68.13(1) the Court of Appeals sided with the city.  The language of § 62.23 “clearly and unambiguously conveys that the mechanism for an appeal of a board of appeals decision is an action in certiorari for review of the board’s decision.”  Likewise, § 68.13(1) conveys that the decision maker, i.e., the board, is the properly named party on certification, noting “why else would the court be instructed to ‘remand to the decision maker’?”

The Court of Appeals found that its interpretation of these statutes “is in harmony with the rule that the writ of certiorari must go to the board or body whose acts are to be reviewed, otherwise the court cannot obtain jurisdiction either of the subject matter or the persons composing the board.”

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