[Cite as Kurutz v. cleveland, 2018-Ohio-2398.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 105899 

 

CARRIE KURUTZ

PLAINTIFF-APPELLANT 

vs. 

CITY OF CLEVELAND, ET AL.

 DEFENDANTS-APPELLEES 

JUDGMENT: 

REVERSED AND REMANDED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-16-863172 

BEFORE: Stewart, J., E.T. Gallagher, P.J., and S. Gallagher, J. 

RELEASED AND JOURNALIZED: June 21, 2018 
FOR APPELLANT

Carrie Kurutz, pro se 

2606 Jay Avenue 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEES

Barbara A. Langhenry 

Director of Law 

City of Cleveland 

Carolyn M. Downey 

Assistant Director of Law 

601 Lakeside Avenue, Room 106 

Cleveland, OH 44114 

Justin M. Smith 

J.M. Smith Co., L.P.A. 

520 Tower East 

20600 Chagrin Boulevard 

Shaker Heights, OH 44122 
MELODY J. STEWART, J.: 

{¶1} When 2515 Company L.L.C. applied for a use variance to sell used motorcycles in a 

local retail business district within the city of Cleveland, appellant Carrie Kurutz, a local 

resident, objected on grounds that the proposed use would destroy the residential character of the 

neighborhood. Appellee city of Cleveland’s Board of Zoning Appeals (“board”) granted the 

variance, but with significant restrictions on the manner in which 2515 Company could operate 

the dealership. Kurutz appealed to the court of common pleas, but the court summarily denied 

her appeal, finding the board’s decision to grant the variance was supported by a preponderance 

of reliable, probative, and substantial evidence. The primary issue in this appeal is whether the 

court of common pleas erred as a matter of law by so finding. 

{¶2} Before reaching the primary issue on appeal, we consider several tangential matters. 

 Kurutz first argues that the court’s order affirming the board’s decision was made without any 

analysis or recitation of the evidence. 

{¶3} The court’s judgment affirming the board’s decision states: 

the Court, having considered the entirety of the record, does not find that the 

decision was unconstitutional, illegal, arbitrary, capricious, unreasonable, or 

unsupported by the preponderance of substantial, reliable, and probative evidence 

on the whole record. 

This language tracks R.C. 2506.04: 

If an appeal is taken in relation to a final order, adjudication, or decision covered 

by division (A) of section 2506.01 of the Revised Code, 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. 
Nothing more was required of the court. See 3910 Warrensville Ctr., Inc. v. Warrensville Hts.,

20 Ohio App.3d 220, 222, 485 N.E.2d 824 (8th Dist.1984) (“We find no support in [R.C. 

2506.04] for appellant’s proposition that the common pleas court is required to issue written 

factual findings in such appeals.”); McMillan v. Lakewood, 8th Dist. Cuyahoga No. 105463, 

2018-Ohio-94, ¶ 21. 

{¶4} We acknowledge that in Vang v. Cleveland, 8th Dist. Cuyahoga No. 104994, 

2017-Ohio-4187, we reversed a court of common pleas decision in a zoning appeal for additional 

findings because we could not determine whether the trial court fulfilled its obligation under the 

statute to review the evidence. The problem noted in Vang does not exist in this case: the issues 

on appeal to the court of common pleas were well-briefed, allowing us to conduct an adequate 

review of the legal issue raised before us. We thus distinguish Vang. 

{¶5} Kurutz also argues that the court erred by affirming the board’s decision because 

Thomas Gillespie, who through a different corporation owned 99 percent of 2515 Company, 

represented the limited liability corporation in the hearing before the board despite being a 

nonattorney (2515 Company was represented by counsel in proceedings before the board, but 

counsel did not attend the hearing before the board). We agree with the city that Kurutz 

forfeited the right to raise this as an issue on appeal because she failed to raise it below. 

Cleveland v. Cuyahoga Lorain Corp., 8th Dist. Cuyahoga No. 82823, 2004-Ohio-2563, ¶ 12. 
{¶6} Kurutz next argues that the court should not have affirmed the board’s decision 

because one of the board members willfully concealed a pecuniary conflict of interest in the 

application. This argument was not raised to the court below, so it is forfeited on appeal. In 

any event, the board member recused himself and did not vote on the application. Kurutz also 

argues that the recused board member swayed the outcome of the hearing by noting that his 

recusal meant that the request for a variance would need unanimous approval from the remaining 

three board members (one of the five board members did not attend the hearing). The recused 

board member merely stated the obvious; he did not demonstrate any attempt to sway the 

outcome of the hearing despite his recusal. 

{¶7} The main issue raised on appeal is that the court erred by affirming the board’s 

decision that 2515 Company demonstrated a need for the variance. Kurutz maintains that 2515 

Company failed to show by a preponderance of the evidence that it would suffer a hardship if the 

board did not grant the requested variance. 
{¶8} In administrative appeals, “[t]he judgment of the court [of common pleas] may be appealed 

by any party on questions of law as provided in the Rules of Appellate Procedure * * *.” 

(Emphasis added.) R.C. 2506.04. This intentionally deferential standard of review specifically 

denies the court of appeals the “power to weigh the evidence.” Henley v. Youngstown Bd. of 

Zoning Appeals, 90 Ohio St.3d 142, 148, 147, 735 N.E.2d 433 (2000). Instead, we are limited 

to finding, as a matter of law, that the court’s decision is not supported by a preponderance of 

reliable, probative, and substantial evidence. Cleveland Clinic Found. v. Bd. of Zoning Appeals, 

141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 27. In this context, a reversal “as a 

matter of law” can occur only when, having viewed the evidence most favorably to the decision, 

there are no facts to support the common pleas court decision. Just as “[t]here is a distinction 

between review for weight of the evidence in the courts of appeals and review by the Supreme 

Court of matters of law[,]” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 

N.E.2d 517, ¶ 18, so too is there a distinction under R.C. 2506.04 when the court of common 

pleas is the primary reviewing court and the court of appeals is the secondary reviewing court in 

an administrative appeal. 
{¶9} Despite this narrow standard of review, the Supreme Court has held that “[w]ithin 

the ambit of ‘questions of law’ for appellate court review would be abuse of discretion by the 

common pleas court.” Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984), fn. 4. 

See also Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 

2014-Ohio-4650, 28 N.E.3d 1182, ¶ 14. Included under this standard would be review of purely 

discretionary decisions made by the court of common pleas relating to the scope of the 

administrative appeal and, in particular, whether to go beyond the administrative transcript and 

allow additional evidence in the appeal. See R.C. 2506.03(A); Brenneman Bros. v. Allen Cty. 

Commrs., 2013-Ohio-4635, 3 N.E.3d 1231, ¶ 44 (3d Dist.). What is not included under this 

standard of review is the “discretionary” weighing of facts that is to be applied to a legal 

standard. This standard of review is akin to the standard applied in criminal cases with motions 

to suppress evidence: the trial court determines the facts and then applies the established law to 

those facts. To be clear, the prohibition on a court of appeals weighing evidence in an 

administrative appeal means that it cannot find that the court of common pleas abused its 

discretion in the way it weighed evidence. 

{¶10} With these precepts in mind, we turn to Kurutz’s argument that the court erred by 

affirming the board’s decision to grant a use variance. 
{¶11} The property is located in a local retail district. The city defines a “local retail 

district” as “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 Codified 

Ordinances 343.01(a). 2515 Company does not dispute that a motorcycle falls within the 

definition of an automobile, see Cleveland Codified Ordinances 325.481, nor does it dispute that 

the retail sale of automotive vehicles is prohibited in a local retail district — such sales are only 

permitted in a general business district (assuming that the gross weight of the vehicle does not 

exceed 6,000 pounds). See Cleveland Codified Ordinances 343.11(b)(2)(I)(4). After the city’s 

zoning administrator denied 2515 Company’s application for a permit to use the building as a 

“motor vehicle sales facility,” 2515 Company sought a use variance. 

{¶12} The city grants the board the power, in a specific case, to vary or modify the 

application of the zoning code “[w]here there is practical difficulty or unnecessary hardship in 

the way of carrying out the strict letter” of the code. Cleveland Codified Ordinances 329.03(a). 

 That power is limited, however, to a showing that (1) the practical difficulty or unnecessary 

hardship is peculiar to the premises and is not shared by other premises in the district and (2) and 

application of the code creates a difficulty or hardship caused by a strict application of the 

provisions of the zoning code not generally shared by other land or buildings in the same district. 

 Cleveland Codified Ordinances 329.03(b)(1). 
{¶13} The record shows that the building at issue was built in 1924, with a bowling alley 

in the basement, a post office on the first floor, and a hotel on the second and third floors. In 

1952, the first floor was converted for use in the manufacture of storm windows. In 1982, the 

city granted a variance request to use the first floor for retail and continue using the second and 

third floors as a hotel. The second and third floors have since been renovated to form eight 

apartments. 

{¶14} 2515 Company bought the building in May 2011, although Gillespie told the board 

that “I’ve been working on this since 2008.” He told the board that one-half of the first floor of 

the building is occupied by a clothing retailer whose merchandise is “based around a motorcycle 

kind of lifestyle, but it’s not motorcycle clothing in there.” Gillespie told the board that the 

retailer was looking to sell used motorcycles by “taking his very high-ended [sic] inventory and 

basically staging it as art that’s for sale in the place.” The retailer was said to be “basically 

decorating the space with motorcycles that will also be for sale.” The retailer would not service 

any motorcycles at the location (the retailer had other locations) and customers would not be able 

to test drive any of the motorcycles. The retailer told the board that he could easily display 10 to 

15 motorcycles in the space and that the space would look empty if he did not display the 

motorcycles. 

{¶15} Objections to the application for a variance were voiced by Kurutz and several 

other residents of the neighborhood. They noted that the retailer’s grand opening was attended 

by “50 to 100 motorcyclists who rode their motorcycles down the sidewalk,” requiring the police 

to “break up the activity and close it down.” They were concerned that increased motorcycle 

traffic, and the noise generated by the motorcycles, would be incompatible with the residential 

neighborhood. 
{¶16} The board granted the variance, finding that “refusal of the variance will create an 

unnecessary hardship particular to the property such that there will be no economically feasible 

use without the variances[.]” The board did, however, set several restrictions agreed to by the 

retailer: the retailer would be open Wednesday through Sunday, opening at 11 a.m. and closing 

no later than 7 p.m.; it could not service motorcycles; it could not sell motorcycle parts; it could 

not allow test drives of motorcycles; and it could only display 15 motorcycles at any given time. 

{¶17} At no point in 2515 Company’s presentation to the board did it touch on any aspect 

of how the denial of a use variance to sell motorcycles would cause it unnecessary hardship “not 

generally shared by other land or buildings in the same district.” A representative of a local 

neighborhood group told the board that the retailer “has been a really, really great addition to the 

neighborhood. They bring retail to a street that is very, very difficult to attract retail spaces to.” 

The representative told the board that the neighborhood group works hard to bring retailers into 

the neighborhood because “the retail uses that we have are frequently hanging by a thread.” 

{¶18} Gillespie agreed with the neighborhood representative that it would be difficult to 

“rent five thousand square feet, which is the total space, to retailers out there. No one will make 

it.” Nevertheless, Gillespie admitted that he could have put the space to other uses, but said that 

doing so would not be in keeping with his vision for the neighborhood: “I can put a bar in there 

tomorrow. I could put a bar in any of these things because there’s enough cash flow and enough 

people walking around, but we as a community are trying not to do that and this is a perfect 

solution.” He told the board that “I’m not going to lease [the space] to a tenant or use that 

doesn’t complement the rest of the neighborhood, complement the vision of the street, 

complement all the efforts I have put into the building itself.” 
{¶19} Gillespie’s comments show that this is not a case where an unnecessary hardship 

would exist because the space could not be put to any other use. His remarks made it clear that 

he could find other tenants for the space, but was being selective with his tenants to preserve the 

character of the neighborhood. This no doubt explains why Gillespie gave no indication that he 

would suffer any financial hardship if the requested variance was denied. See, e.g., Kurtock v. 

Cleveland Bd. of Zoning Appeals, 8th Dist. Cuyahoga No. 105755, 2017-Ohio-8890, ¶ 20 (use 

variance to play live music granted because business would be unable to survive economically 

without the substantial higher revenue brought in on days in which live music was performed). 

The goal of preserving the character of the neighborhood may be laudable, but that goal is not a 

basis for finding that an unnecessary hardship existed sufficient to grant a use variance. We 

therefore conclude that this is the rare case where there was no evidence at all to support the 

court’s finding that there was reliable, probative, and substantial evidence to support the board’s 

decision to grant the use variance. The fourth and fifth assignments of error are sustained. 

{¶20} Judgment reversed and remanded to the trial court for further proceedings 

consistent with this opinion. 

It is ordered that appellant recover of appellees costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common pleas 

court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

______________________________________________ 
MELODY J. STEWART, JUDGE 

EILEEN T. GALLAGHER, P.J., CONCURS; 

SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION) 

SEAN C. GALLAGHER, J., DISSENTING: 

{¶21} I respectfully dissent. Although Kurutz offered a passionate argument and intends 

the best for her local community in continuing to challenge the use variance granted to the local 

business, she has not asked us to consider Gillespie’s remark about filling the space with a bar 

“tomorrow” as being dispositive of this appeal. She has not referenced it in her briefing, let 

alone claimed that the remark definitively demonstrates the absence of an unnecessary hardship 

when considered in conjunction with the remaining evidence. 

{¶22} Her entire argument, in the issues advanced in the fourth and fifth assignments of 

error, is based on her conclusion that there is no evidence supporting the board’s decision to 

grant the use variance because (1) the owner of the retail space was aware of the zoning 

restrictions when the premises was leased to Whiskey Grade; (2) the property is located on a 

different street than described by Gillespie; (3) Gillespie erroneously described the area as being 

a commercial district instead of residential; and (4) the owner of Whiskey Grade did not present 

evidence at the hearing. Further, Kurutz contends that the local retail restrictions permit several 

uses, and therefore, no unnecessary hardship can be demonstrated — essentially claiming that a 

zoning ordinance must foreclose any and all uses of the property before an unnecessary hardship 

can be found. 

{¶23} Kurutz’s briefing, filed pro se, is limited, and she has not demonstrated the 

existence of reversible error. App.R. 16(A)(7). Further, the issue found dispositive by the 

majority was not advanced in the appellate briefing. The appellees have not been afforded an 
opportunity to brief the legal and factual analysis underlying the majority’s conclusion. State v. 

Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.2d 888, ¶ 21. I would affirm.