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Motion No. 5087189
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
MOTION FOR LEAVE TO FILE ANSWER INSTANTER
May 1,2023 18:40
Confirmation Nbr. 2845065
LAURA CYROCKIET. AL., ET AL CV 23 975151
vs.
Judge: JOAN SYNENBERG
CITY OF CLEVELAND ET. AL., ET AL
Pages Filed: 23
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
LAURA CYROCKI, ET AL., Case No: CV-23-975151
Appellants,
JUDGE JOAN SYNENBERG
vs.
CITY OF CLEVELAND, ET AL., MOTION FOR LEAVE TO FILE
APPELLANTS’ ASSIGNMENTS OF
Appellees.
ERROR AND MERIT BRIEF
INSTANTER
NOW comes Laura Cyrocki and Charles E. Hoven, (“Appellants”), pro se, and
moves this Honorable Court in the interests of justice, and pursuant to Local R. 39(H), to
allow them leave to file the attached Appellants’ Assignments of Error and Merit Brief
for the reasons set forth in the attached brief. The Appellants’ Assignments of Error and
Merit Brief was intended to be filed on April 28, 2023.
Respectfully submitted,
/s/ Laura Cyrocki____________
LAURA CYROCKI
11303 Hessler Road
Cleveland, OH 44106
Phone: (216) 288-9587
Email: Lcyrocki@hotmail.com
Appellant, pro se
/s/ Charles E. Hoven___________
CHARLES E. HOVEN
11301 Hessler Road
Cleveland, OH 44106
Phone: (216) 631-4608
Email: plainpress@gmail.com
Appellant, pro se
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BRIEF IN SUPPORT
Appellants attempted to file the Appellants’ Assignments ofError and Merit Brief
via the Cuyahoga County Clerk of Courts electronic filing system on April 28th, 2023,
however, Appellants’ were unable to do so because of an sudden error experienced with
converting the Word document to PDF in order to upload it to the e-file system. The
resulting technical difficulties caused a system error that was not rectified until today.
Appellant respectfully asks this Honorable Court for leave to file the Appellants’
Assignments of Error and Merit Brief instanter due to the technical issues.
Respectfully submitted,
/s/ Laura Cyrocki_______
LAURA CYROCKI
11303 Hessler Road
Cleveland, OH 44106
Phone: (216) 288-9587
Email: Lcyrocki@hotmail.com
Appellant, pro se
/s/ Charles E. Hoven_____
CHARLES E. HOVEN
11301 Hessler Road
Cleveland, OH 44106
Phone: (216) 631-4608
Email: plainpress@gmail.com
Appellant, pro se
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CERTIFICATE OF SERVICE
I certify that the foregoing Motion for Leave to file Appellants’ Assignments of
Error and Merit Brief Instanter was filed electronically on this 1st day of May, 2023.
Notice of this filing will be sent by operation of the Court's electronic filing system to
counsel of record for all parties. Parties and their counsel may access this filing through
the Court's system.
/s/ Laura Cyrocki____________
LAURA CYROCKI
Appellant, pro se
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
LAURA CYROCKI, ET AL., Case No: CV-23-975151
Appellants,
JUDGE JOAN SYNENBERG
vs.
CITY OF CLEVELAND, ET AL.,
Appellees.
ASSIGNMENTS OF ERROR AND MERIT BRIEF OF
APPELLANTS LAURA CYROCKI AND CHARLES E. HOVEN
Laura Cyrocki Mark D. Griffin, Esq. (0064141)
11303 Hessler Road Director of Law
Cleveland, OH 44106 By: Carolyn Downey, Esq. (0064371)
Phone: (216) 288-9587 Assistant Director of Law
Email: Lcyrocki@hotmail.com Cleveland City Hall - Room 106
601 Lakeside Avenue, E
Appellant, pro se
Cleveland, OH 44114-1077
Phone: (216) 664-3567
Email: cdowney@clevelandohio.gov
Charles E. Hoven
11301 Hessler Road Attorneysfor Appellees City of
Cleveland, OH 44106 Cleveland and City of Cleveland
Phone: (216) 631-4608 Board ofZoning Appeals
Email: plainpress@gmail.com
Appellant, pro se
Majeed G. Makhlouf, Esq. (0073853)
Berns, Ockner & Greenberger, LLC
3733 Park East Drive, Suite 200
Beachwood, Ohio 44122
Phone: (216) 831-8838
Email: mmakhlouf@bernsockner.com
Attorneyfor Appellee Ford-Hessler
Property Reorganization LLC
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ASSIGNMENTS OF ERROR
ASSIGNMENT OF ERROR NO. I:
The Board ofZoning Appeals (“BZA”) decision was fundamentally
unconstitutional, illegal, and unreasonable because the BZA violated the
Appellants’ Due Process rights by failing to conduct the administrative
hearing in an unbiased, fair and impartial manner and before an
unbiasedfactfinder.
ASSIGNMENT OF ERROR NO. II:
The Board ofZoning Appeals decision in Calendar No. 23-013 where it
failed to find the Notice of Non-conformance omitted a violation of CCO
349.02, was unconstitutional, illegal, arbitrary, capricious,
unreasonable, or unsupported by the preponderance ofsubstantial,
reliable, and probative evidence on the whole record.
ASSIGNMENT OF ERROR NO. III:
The Board ofZoning Appeals decision to grant a variance to CCO 349.08 in
Calendar No. 23-002 was unconstitutional, illegal, arbitrary, capricious,
unreasonable, or unsupported by the preponderance of substantial,
reliable, and probative evidence on the whole record.
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ASSIGNMENT OF ERROR NO. IV:
The Board ofZoning Appeals decision was unconstitutional, illegal,
arbitrary, capricious, unreasonable, or unsupported by the
preponderance of substantial, reliable, and probative evidence on the
whole record by notfinding error in the decision of the Zoning
Administrator not to include CCO 349.05(a) on the Notice of
Nonconformance.
ASSIGNMENT OF ERROR NO. V:
The Board ofZoning Appeals decision was unconstitutional, illegal,
arbitrary, capricious, unreasonable, or unsupported by the
preponderance of substantial, reliable, and probative evidence on the
whole record by notfinding error in the decision of the Zoning
Administrator not to include CCO 357.06(a) on the Notice of
Nonconformance.
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INTRODUCTION
The current proposed development, that is the subject of this administrative
appeal, is in the Hessler Court and Hessler Road Historic District, which was dedicated
as Cleveland’s first Historic District by the Cleveland Landmarks Commission. Hessler
Court, the only remaining street in Cleveland to have woodblock paving, is listed on the
National Register of Historic Places.
This entire case stems from a developer, Intervenor-Appellee, Ford-Hessler
Property Reorganization LLC (“FHPR”), who has been hell-bent on building as many
individually leased bedrooms as possible, on a site that cannot support the impact nor the
legal parking requirements, and in a district where the infrastructure cannot absorb the
deficiencies.
It was done by creating a scheme of multiple progressive approvals whereby FHPR
presented an overall development plan which included an agreement for offsite parking
in an effort to secure variances to eliminate all parking requirements for the existing
buildings, all while knowing the development would never be built. Then, FHRP
submitted a new development plan without an agreement for offsite parking, and tricked
the Appellee City of Cleveland, into reviewing that plan while maintaining the previous
variances of the abandoned project that eliminated the onsite parking requirements.
This effort to create plans that evade parking requirements is further evidenced by
the very reason for the design of the property. FHPR publicly acknowledged the real intent
of this development project is to add 18 individually leased bedrooms as student housing,
but again to circumvent parking requirements and zoning, they configured them as 6
three bedroom units. All while publicly acknowledging that 18 people will be leasing each
of these bedrooms under 18 individual leases.
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STATEMENT OF THE FACTS
On December 13, 2021, BZA heard the plan which was to cut away the backyards of both
1975 and 1981 Ford Drive to create a new parcel on Hessler Road, where a new stand
alone 12 unit, single bedroom each, residential building would be constructed. (Figure 1)
Figure 1
This development plan of 3 reconfigured parcels required the demolition of the
historic garage in the backyard at 1975 Ford Drive, along with numerous variances,
including the reduction of parking from 12 spaces to 5 spaces at the new 11300 Hessler
Road proposed backyard parcel, and elimination of all onsite parking from 1975 Ford
Drive (5 spaces) and 1981 Ford Drive (4 spaces).
On December 20, 2021, BZA granted the variances in Calendars Nos. 21-152, 21
173 & 21-174. In all of the resolutions, it was noted the variances were granted as
part of the comprehensive redevelopment and reconfiguration of the 2
parcels into 3. Furthermore, the parking variances were also granted because of a
parking arrangement for 20 spaces in the public parking garage across the street.
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However, since that time the public garage, where the arrangement was made, has been
slated for demolition.
At some point, all the parcels were put up for sale as a “shovel ready” development
project with all the required approvals secured. However, there was never a sale.
The comprehensive development project was never constructed, the
variances expired and instead a new development plan was proposed.
On November 21, 2022, a new development project proposed in the backyards of
1975 and 1981 Ford Drive was submitted to the City of Cleveland for zoning review.
This project calls for combining the backyard of 1981 Ford Drive with the parcel of
1975 Ford Drive (Figure 2) and to construct a 3 story addition onto the back of 1975 Ford
Drive, fronting Hessler Road, which would contain eighteen (18) individually rented
bedrooms in a configuration of six (6) units, each with three (3) bedrooms, but only a total
of six (6) parking spaces.
Figure 2
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On December 20, 2022, City of Cleveland Zoning Administrator Richard M.
Riccardi (“Administrator Riccardi”) reviewed the plans and issued a Notice of Non
Conformance which resulted in two appeals to the BZA.
In Calendar No. 23-002, FHPR filed an appeal to the BZA for relief from the strict
application of the Cleveland Codified Ordinance (“CCO”) Section 349.08 which required
the 6 parking spaces be screened from all adjoining lots.
In Calendar No. 23-013, Appellants filed an appeal to the BZA objecting to
Administrator Riccardi’s adjudication of the plan and subsequent Notice of Non
Conformance and raised the following errors in the determination:
1) The Zoning Administrator’s determination that Site/Zoning Application
B22030881 complied with CCO Section 349.02 which states that in all
use districts, existing off-street parking facilities shall not voluntarily be
reduced below the requirements of this chapter, and the subsequent failure
to state the same on the Notice of Non-Conformance.
2) The Zoning Administrator’s determination that Site/Zoning Application
B22030881 complied with CCO Sections 337.13 & 349.04 which states
that at least 11 parking spaces are required but only 6 are provided, and the
subsequent failure to state the same on the Notice of Non-Conformance.
3) The Zoning Administrator’s determination that Site/Zoning Application
B22030881 complied with CCO Section 349.05(a) which states no
parking space shall be located within ten (10) feet of any wall of a residential
building or structure if such wall contains a ground floor opening designed
to provide light or ventilation for such building or structure, and the
subsequent failure to state the same on the Notice of Non-Conformance.
4) The Zoning Administrator’s determination that Site/Zoning Application
B22030881 complied with CCO Section 357.06(a) which requires
alignment to existing building lines however the plans show the building is
aligned to the protruding bay window of the existing building on the east
side and not to the existing building itself, and the subsequent failure to
state the same on the Notice of Non-Conformance.
5) The Zoning Administrator’s determination that Site/Zoning Application
B22030881 complied with CCO Section 309 which requires Cleveland
Planning Commission’s approval, and the subsequent failure to state the
same on the Notice of Non-Conformance.
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Initially, BZA scheduled only Calendar 23-002 for a hearing on January 30, 2023.
Therefore, Appellants filed a Motion to Consolidate their appeal in Calendar 23-013 with
FHPR’s appeal in Calendar 23-002, which resulted in both appeals being hastily heard on
January 30, 2023 before the BZA. Appellants participated in both hearings. At the
conclusion of the hearings, BZA voted to grant the appeal in Calendar 23-002, and deny
the appeal in Calendar 23-013. These decisions were approved and adopted by the BZA
on February 6, 2023.
On February 13, 2023, Appellants administratively appealed these decisions which
are now before this Honorable Court.
LAW AND ARGUMENT
I. ASSIGNMENT OF ERROR I:
The Board of Zoning Appeals (“BZA”) violated the Appellants’ Due Process rights
by failing to conduct the administrative hearing in an unbiased, fair and impartial manner.
There is no doubt that due process requires administrative hearings to be
conducted in a fair and impartial manner. See 2 American Jurisprudence 2d (1994) 315,
Administrative Law, Section 302
“The 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.” Gibraltar Mausoleum Corp. v. Cincinnati
(1981), 1 Ohio App.3d 107, 109-110.
“In accordance with the decisions of various jurisdictions and the Supreme Court
of the United States, an unbiased tribunal is a constitutional necessity in a quasi-judicial
hearing, and a denial of the same is a denial of due process. The requirement of an
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impartial tribunal applies to administrative proceedings no less than criminal trials.”
Sorin v. Bd. of Edn. of Warrensville Hts. School Dist. (1974), 39 Ohio Misc. 108, 111, 315
N.E.2d 848, citinig Ward v. Village of Monroeville, 93 S. Ct. 80; Tumey v. Ohio, 273 U.
S. 510; In re Murchison, 349 U. S. 133, and Goldberg v. Kelly, 397 U. S. 254.
Moreover, “due process includes the right to a hearing before an unbiased and fair
and impartial tribunal." Frost v. Wilmington (Jan. 31, 1986), Clinton App. No. CA85-08-
014, at 7.
Here, the tribunal or rather the BZA was quite the opposite. Prior to getting into
the substance of the Appellants’ administrative appeal, the Chair of the BZA expressed
her personal opinions about Appellants’ administrative appeal indicating that she was
convinced the Appellants were not bringing their Administrative Appeal in good faith
when she stated “No. I understand you are essentially trying to preempt what the next
case is going to be about. So, I understand what’s going on. I was here since the beginning
of this.” Tr. 38 - BZA Calendar No. 23-013
The BZA Chair further made clear that she could not be unbiased when she went
on to say “So, I know what you’re trying to weave here.” Tr. 38 - BZA Calendar No. 23
013,
These prejudicial comments of the BZA were made before any evidence was
presented or the thrust of the Appellants’ arguments were heard, and capitulated
Appellant Laura Cyrocki into a state of confusion as to why the BZA would make such
terrible accusations, and out of the fear of reprisal from the BZA, Appellant Laura Cyrocki
simply agreed with the BZA. This affected the Appellants’ ability to present evidence and
arguments in support of their administration appeal.
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The bias of the BZA undermined the fairness and impartiality of the hearing. A fair
and impartial hearing must be one that is free from any personal bias or prejudice. In this
case, the Chair's comments demonstrated that the BZA had already judged the Appellants’
administrative appeal before hearing the evidence and arguments. This prejudiced the
BZA against the Appellants, influenced other members of the BZA, and tainted the entire
hearing by creating an atmosphere where the Appellants’ administrative appeal was
viewed unfavorably. Overall, it was a violation to the fundamental notion of Due Process
rights. Accordingly, this Honorable Court must reverse the BZA's decision.
II. ASSISNMENT OF ERROR II:
FHPR proposed a plan to demolish the residential garage in the backyard of 1975
Ford Road and presented an overall development plan which eliminated the existing off
street parking for two existing buildings (1975 & 1981 Ford) in the overall plan. Those
parking variances reduced the required parking spaces at 1975 Ford from 5 to ZERO and
at 1981 Ford from 4 to ZERO.
However, the parking variances on that plan were specifically granted under the
premise that the overall construction development proposed would be built on the newly
created parcel from the backyards of 1975 and 1981 Ford. Moreover, these parking
variances were granted because FHPR had a plan to address the parking requirements,
specifically that with parking spaces on site and an agreement for offsite parking for
additional spaces in a neighboring parking garage, which has since been scheduled for
demolition.
After receiving the variances, FHPR abandoned plans for the overall development
plan, and despite knowing that that the plans for the overall development were
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abandoned, they still attempted to use the parking variances to obtain new certificates of
occupancies for the 2 existing buildings at 1975 and 1981 Ford.
From there, they submitted a new development plan, which is the subject of this
matter, that calls for the consolidation of the previously split parcels and to build an
"addition" to 1975 Ford, rather than a new structure, so the developer can evade the
parking requirements of the code. However, the City of Cleveland is still permitting them
to use the parking variances issued in the previous plan that was never built.
The very subject of this administrative appeal is to show that the BZA decision
which affirmed the decision of Cleveland Zoning Administrator to not include the parking
requirements in the Notice of Non Conformance was illegal, arbitrary, capricious and not
supported, because at a minimum they did not count the existing units into the required
number of parking spaces.
The entire process, going back to 2021, can only be described as an elaborate ruse
by FHPR to present a never to be built overall development plan on split parcels to obtain
parking variances for 1975 and 1981 Ford, only to then consolidate the very same parcels
they split, so they could present the real development plan, an addition that they could
argue does not require parking variances, and thereby does not require FHPR to convince
the BZA that they have a plan to deal with at least 27 cars (9 for the existing units, totalling
19 bedrooms in 1975 & 1981 Ford, and the 18 new leases in the addition to 1975 ford) that
will need to be parked where only 6 spaces are provided, and in a district who's
infrastructure cannot absorb the additional parking needs of the 21 remaining cars.
Case Law Supports Chapter 349 is not applicable:
At the onset it should be noted that there is case law to support a finding that only
Chapter 337 of the Cleveland Codified Ordinances in applicable to this matter. In
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Cleveland v. City Rose, LTD., 2006 Ohio 4525 - Ohio: Court of Appeals, 8th Appellate
Dist. 2006 *13 Footnote 1, the Court held that Chapter 337 of the Codified Ordinances of
the City of Cleveland govern off street parking in residential districts, and Chapter 349
govern the off street parking requirements in industrial districts.
Should this Honorable Court concur, the arguments made on both sides of the
matter for Chapter 349 would be without merit, and dispositive of this administrative
appeal, as the decision of the BZA to uphold the Zoning Administrator’s Notice of
Nonconformance was based upon CCO 349.03, and this property is not located in an
industrial district, regardless of use. Therefore, the decision of the BZA was illegal and
must be reversed because not only was the Notice of Nonconformance inaccurate as to
the parking requirements, but also as to the screening requirements of Chapter 349.08
which would have been listed in error.
Should this Honorable Court find Chapter 349 applicable:
Alternatively, Appellants put forth the BZA decision in Calendar No. 23-013, where
the BZA failed to find the Notice of Non-conformance omitted violations of CCO 349.02,
CCO 337.13 & CCO 349.04, and did so by its misplaced reliance upon CCO 349.03, was
unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the
preponderance of substantial, reliable, and probative evidence on the whole record.
Appellants appealed the Notice of Nonconformance citing the Zoning
Administrator’s failure to include Nonconformance with CCO Section 349.02, CCO
Section 339.13, and CCO Section 349.04. (see record Appeal of the Determination of
Site/Zoning Application B22030881 and Notice ofNonconformance dated December 20,
2022)
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The BZA resolution for Calendar No. 23-013 states that they found Zoning
Administrator Richard Riccardi’s decision to rely solely on CCO Section 349.03. Mr.
Riccardi stated in the hearing “So, this 349.03 is the zoning code section that is controlling
in this case. Tr. 47 - BZA Calendar No. 23-013
However, CCO Section 349.03 cannot be read alone. It is part of Chapter 349 in its
entirety, where Chapter 349 begins in CCO 349.01(a) by stating: Except as provided in
Sections 329.04(b), 337.13 and 349.10 to 349.12, every use or structure, instituted,
constructed or erected after July 2, 1971, shall provide off-street parking facilities in
accordance with the requirements ofSection 349.04for the use of occupants, employees,
visitors or patrons.
It is from CCO 337.13 which is the residential zoning code which REQUIRES 1 off
street parking space per dwelling unit, and continuing in Chapter 349, CCO 349.02
specifically states: In all use districts, existing off-street parking facilities shall not
voluntarily be reduced below the requirements of this chapter.
Therefore, it was required the existing parking be kept in addition to the parking
required for the additional dwelling unit. Since the plan before the Zoning Administrator
only had six (6) off street parking spaces, and previously at least five (5) existed - one for
each dwelling unit at 1975 Ford - the plan effectively only provided for 1 (one) additional
unit for the addition. Even if the Appellees argue the six (6) additional units are for the
six (6) unit addition, the plans eliminate all existing off street parking at the site which
directly violates CCO 349.02 and the BZA should have reversed the decision of the Zoning
Administrator.
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III. ASSIGNMENT OF ERROR III:
The Board of Zoning Appeals decision to grant a variance to CCO 349.08 in
Calendar No. 23-002 was unconstitutional, illegal, arbitrary, capricious, unreasonable,
or unsupported by the preponderance of substantial, reliable, and probative evidence on
the whole record.
FHPR requested a variance to CCO 349.08 related to screening of off-street
parking spaces. The code states:
Where five (5) or more accessory off-street parking spaces are
provided, and are located on a lot that is adjacent to a
Residence District or that adjoins a building containing
dwelling units, such parking spaces shall be screened from all
adjoining lots in the Residence District or a building
containing dwelling units, by an opaque wall, a uniformly
painted fence of fire-resistant material or a strip of land at
least four (4) feet wide and densely planted with shrubs that
form a dense screen year-round. Such wall, fence or shrubs
shall be at least three (3) feet, but not more than six (6) feet
six (6) inches in height. However, such wall, fence or shrubs
located within twenty-five (25) feet of the intersection of two
(2) or more streets or the intersection of an access driveway
and a street, shall have a maximum height of three (3) feet and
a minimum height of two (2) feet.
The required screening shall be maintained in good condition
at all times.
No signs shall be permitted to be attached to or hung from the
required screening.
Prior to granting the requested variance, C.C.O. 329.03(c) mandates that the BZA
find that the FHPR presented evidence that establishes the three (3) conditions of CCO.
329.03(b):
"(1) The practical difficulty or unnecessary hardship inheres in and is peculiar to
the premises sought to be built upon or used because of physical size, shape or other
characteristics of the premises or adjoining premises which differentiate it from other
premises in the same district and create a difficulty or hardship caused by the strict
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application of the provisions of the Zoning Code not generally shared by other land or
buildings in the same district;
(2) Refusal of the variance appealed for will deprive the owner of substantial
property rights; and
(3) Granting of the variance appealed for will not be contrary to the purpose and
intent of the provisions of the zoning code."
City of Cleveland v. Patrick Realty, 8th Dist. No. 90349, 2Oo8-Ohio-4243, ^20-23
FHPR has the burden to establish these three conditions, and a failure to establish
even one of these requirements, the BZA should have denied its request for variance. City
of Cleveland v. Patrick Realty, supra, at ^24, and furthermore, the BZA was required to
make a finding on each of the three (3) conditions as they apply in each specific case as a
prerequisite for the granting of the variance. Zurow v. Cleveland, 61 Ohio App.2d 14, 20,
399 N.E.2d 92 (8th Dist. 1978
Caselaw instructs that property owners must establish that without the variance, it
would encounter "practical difficulties" such that application of the zoning ordinance to
the property is inequitable. Duncan, 23 Ohio St.3d at 86, 491 N.E.2d 692.
BZAs are instructed to "weigh the competing interests of the property owner and
the community, and the property owner would be required to show that the application
of an area zoning requirement was inequitable." CBS Outdoor, Inc. v. Cleveland Bd. of
Zoning Appeals, 8th Dist. Cuyahoga No. 98141, 2O13-Ohio-1173, 16,
citing Duncan at id.
The Duncan court lists seven factors that should be considered in determining
whether a property owner seeking a variance has encountered practical difficulties
warranting the variance. These include, but are not limited to:
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"(1) whether the property in question will yield a reasonable
return or whether there can be any beneficial use of the
property without the variance; (2) whether the variance is
substantial; (3) whether the essential character of the
neighborhood would be substantially altered or whether
adjoining properties would suffer a substantial detriment as a
result of the variance; (4) whether the variance would
adversely affect the delivery of governmental services (e.g.,
water, sewer, garbage); (5) whether the property owner
purchased the property with knowledge of the zoning
restriction; (6) whether the property owner's predicament
feasibly can be obviated through some method other than a
variance; (7) whether the spirit and intent behind the zoning
requirement would be observed and substantial justice done
by granting the variance."
CBS Outdoor, Inc. at 17, quoting Duncan at id.
Here, the BZA failed to apply both the required standards, those of the zoning code,
and also the Duncan factors. It must be noted that while the resolution points to letters of
supports from some property owners, it fails to weigh those against other neighbors who
objected to the variance to screening requirements. Furthermore, even in the letters of
support for the variance they indicate the wish for landscaped areas which is an
alternative permitted by CCO 349.08. Therefore, since there is the ability to include the
landscaped strip that's densely planted with shrubs, there was no practical difficulty that
required a variance. It must also be mentioned that the need for this screening is not only
for the adjoining properties, but also to stop the glare of headlights and brake lights,
pollution to the air, and to reduce the unsightliness of the parking spaces that affect
nearby property owners as well. Light and sound travels past only the directly adjoining
property. Since the BZA failed to comply with the requirements in order to grant the
variance, the decision should be reversed.
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IV. ASSIGNMEENT OF ERROR IV:
Is illegal because the BZA failed to determine that Zoning Administrator’s
determination that Site/Zoning Application B22030881 complied with CCO Section
349.05(a) which states no parking space shall be located within ten (10) feet of any wall
of a residential building or structure if such wall contains a ground floor opening designed
to provide light or ventilation for such building or structure and the subsequent failure to
state the same on the Notice of Non-Conformance.
A variance is needed to allow parking spaces to be located within ten feet of the
wall of the building and at the wall at the base of the porch behind 1981 Ford Drive, where
three parking spaces are proposed. Zoning Administrator stated “the spaces have to be
ten feet away from any wall or a residential building or structure, if the wall contains a
ground floor opening designed to provide light or ventilation for such building or
structure.if Appellant, the applicant for this making these errors is talking about the
spaces in the back, but it’s not relevant there because those spaces are not within ten feet
of these openings. They’re within ten feet of a porch.” Tr. 47 & 48 - BZA Calendar No. 23
013
Appellant, Laura Cyrocki replied to Zoning Administrator’s testimony “The
parking in the back of 1981 Ford Drive, it doesn’t appear to be ten feet away from the
building. It’s certainly not ten feet away from the porch and the base of the porch has a
wall of cinder blocks underneath it right at the front of that porch, so I think it sounds like
more clarification is needed.” Tr. 45 & 57 - BZA Calendar No. 23-013
The porch is at ground floor, is a structure and is designed to provide light and
ventilation for the building and therefore, the BZA was unconstitutional, illegal, arbitrary,
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capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,
and probative evidence on the whole record.
V. ASSIGNEMENT OF ERROR V:
The Zoning Administrator refutes that the proposed new addition’s frontage
along Hessler is a front yard, and rather, classifies it as a “side street yard and not a
front yard.” Tr. 48 - BZA Calendar No. 23-013. Appellants, based their assessment of
the Hessler Road frontage as a front yard as shown in renderings submitted with
Site/Zoning Application B220830881, which indicates that the frontage along Hessler is
the “front elevation” and describes the rear and side elevations facing south and east
respectively.
Additionally, the new proposed addition includes five (6) three-bedroom
apartments, two per floor served by a new enclosed stair. The existing rear porch of 1975
Ford Drive is proposed to be removed and rebuilt to create a common porch and
courtyard area between the new and existing buildings. The new enclosed stair is self
contained within the addition and is not accessible from inside the existing 1975 Ford
Drive Building. The primary way to access the new addition will be from Hessler Road
via the common porch and courtyard area on Hessler Road, and into the new enclosed
stair, only accessible via the shared porch. One unit will be accessed from grade level
near the rear of 1981 Ford Drive. It is possible for residents in the new addition to access
the addition fronting on Hessler Road via the front entrance of 1975 Ford Drive, but
only by exiting the rear of the existing Ford Drive building onto the common porch on
Hessler Road and entering the new stair in the addition fronting on Hessler Road.
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FHPR aligned the Hessler Road frontage with the side of the existing 1975 Ford
Drive building, and with the protruding bay windows of the existing buildings on the
east, and not the existing buildings on the east themselves, which sets the new addition
about two feet in front of the existing buildings to the east. This again demonstrates
FHPR's attempt to use the addition to circumvent zoning laws by calling the frontage on
Hessler Road a side street yard rather than a front yard where according to CCO
Section 357.06(a) alignment to existing building lines is required. The existing Ford
Drive building is 4280 square feet and the proposed new addition fronting on Hessler
Road is 8387 square feet.
CONCLUSION
For all the of the reasons stated above in this Merit Brief and Assignments of Error,
Appellants request this Honorable Court to find that the Board of Zoning Appeals
decisions in Calendar Nos. 23-002 and 23-013 were unconstitutional, illegal, arbitrary,
capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,
and probative evidence on the whole record
Respectfully submitted,
/s/ Laura Cyrocki____________
LAURA CYROCKI
11303 Hessler Road
Cleveland, OH 44106
Phone: (216) 288-9587
Email: Lcyrocki@hotmail.com
Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ
/s/ Charles E. Hoven_____
CHARLES E. HOVEN
11301 Hessler Road
Cleveland, OH 44106
Phone: (216) 631-4608
Email: plainpress@gmail.com
Appellant, pro se
CERTIFICATE OF SERVICE
I certify that the foregoing Assignments of Error and Merit Brief of Appellants was
filed electronically on this 1st day of May, 2023. Notice of this filing will be sent by
operation of the Court's electronic filing system to counsel of record for all parties. Parties
and their counsel may access this filing through the Court's system.
/s/ Laura Cyrocki____________
LAURA CYROCKI
Appellant, pro se
Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ
Preview
Motion No. 5087189 NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION FOR LEAVE TO FILE ANSWER INSTANTER May 1,2023 18:40 Confirmation Nbr. 2845065 LAURA CYROCKIET. AL., ET AL CV 23 975151 vs. Judge: JOAN SYNENBERG CITY OF CLEVELAND ET. AL., ET AL Pages Filed: 23 Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO LAURA CYROCKI, ET AL., Case No: CV-23-975151 Appellants, JUDGE JOAN SYNENBERG vs. CITY OF CLEVELAND, ET AL., MOTION FOR LEAVE TO FILE APPELLANTS’ ASSIGNMENTS OF Appellees. ERROR AND MERIT BRIEF INSTANTER NOW comes Laura Cyrocki and Charles E. Hoven, (“Appellants”), pro se, and moves this Honorable Court in the interests of justice, and pursuant to Local R. 39(H), to allow them leave to file the attached Appellants’ Assignments of Error and Merit Brief for the reasons set forth in the attached brief. The Appellants’ Assignments of Error and Merit Brief was intended to be filed on April 28, 2023. Respectfully submitted, /s/ Laura Cyrocki____________ LAURA CYROCKI 11303 Hessler Road Cleveland, OH 44106 Phone: (216) 288-9587 Email: Lcyrocki@hotmail.com Appellant, pro se /s/ Charles E. Hoven___________ CHARLES E. HOVEN 11301 Hessler Road Cleveland, OH 44106 Phone: (216) 631-4608 Email: plainpress@gmail.com Appellant, pro se Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ BRIEF IN SUPPORT Appellants attempted to file the Appellants’ Assignments ofError and Merit Brief via the Cuyahoga County Clerk of Courts electronic filing system on April 28th, 2023, however, Appellants’ were unable to do so because of an sudden error experienced with converting the Word document to PDF in order to upload it to the e-file system. The resulting technical difficulties caused a system error that was not rectified until today. Appellant respectfully asks this Honorable Court for leave to file the Appellants’ Assignments of Error and Merit Brief instanter due to the technical issues. Respectfully submitted, /s/ Laura Cyrocki_______ LAURA CYROCKI 11303 Hessler Road Cleveland, OH 44106 Phone: (216) 288-9587 Email: Lcyrocki@hotmail.com Appellant, pro se /s/ Charles E. Hoven_____ CHARLES E. HOVEN 11301 Hessler Road Cleveland, OH 44106 Phone: (216) 631-4608 Email: plainpress@gmail.com Appellant, pro se Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ CERTIFICATE OF SERVICE I certify that the foregoing Motion for Leave to file Appellants’ Assignments of Error and Merit Brief Instanter was filed electronically on this 1st day of May, 2023. Notice of this filing will be sent by operation of the Court's electronic filing system to counsel of record for all parties. Parties and their counsel may access this filing through the Court's system. /s/ Laura Cyrocki____________ LAURA CYROCKI Appellant, pro se Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO LAURA CYROCKI, ET AL., Case No: CV-23-975151 Appellants, JUDGE JOAN SYNENBERG vs. CITY OF CLEVELAND, ET AL., Appellees. ASSIGNMENTS OF ERROR AND MERIT BRIEF OF APPELLANTS LAURA CYROCKI AND CHARLES E. HOVEN Laura Cyrocki Mark D. Griffin, Esq. (0064141) 11303 Hessler Road Director of Law Cleveland, OH 44106 By: Carolyn Downey, Esq. (0064371) Phone: (216) 288-9587 Assistant Director of Law Email: Lcyrocki@hotmail.com Cleveland City Hall - Room 106 601 Lakeside Avenue, E Appellant, pro se Cleveland, OH 44114-1077 Phone: (216) 664-3567 Email: cdowney@clevelandohio.gov Charles E. Hoven 11301 Hessler Road Attorneysfor Appellees City of Cleveland, OH 44106 Cleveland and City of Cleveland Phone: (216) 631-4608 Board ofZoning Appeals Email: plainpress@gmail.com Appellant, pro se Majeed G. Makhlouf, Esq. (0073853) Berns, Ockner & Greenberger, LLC 3733 Park East Drive, Suite 200 Beachwood, Ohio 44122 Phone: (216) 831-8838 Email: mmakhlouf@bernsockner.com Attorneyfor Appellee Ford-Hessler Property Reorganization LLC Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ ASSIGNMENTS OF ERROR ASSIGNMENT OF ERROR NO. I: The Board ofZoning Appeals (“BZA”) decision was fundamentally unconstitutional, illegal, and unreasonable because the BZA violated the Appellants’ Due Process rights by failing to conduct the administrative hearing in an unbiased, fair and impartial manner and before an unbiasedfactfinder. ASSIGNMENT OF ERROR NO. II: The Board ofZoning Appeals decision in Calendar No. 23-013 where it failed to find the Notice of Non-conformance omitted a violation of CCO 349.02, was unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance ofsubstantial, reliable, and probative evidence on the whole record. ASSIGNMENT OF ERROR NO. III: The Board ofZoning Appeals decision to grant a variance to CCO 349.08 in Calendar No. 23-002 was unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record. Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ ASSIGNMENT OF ERROR NO. IV: The Board ofZoning Appeals decision was unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record by notfinding error in the decision of the Zoning Administrator not to include CCO 349.05(a) on the Notice of Nonconformance. ASSIGNMENT OF ERROR NO. V: The Board ofZoning Appeals decision was unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record by notfinding error in the decision of the Zoning Administrator not to include CCO 357.06(a) on the Notice of Nonconformance. Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ INTRODUCTION The current proposed development, that is the subject of this administrative appeal, is in the Hessler Court and Hessler Road Historic District, which was dedicated as Cleveland’s first Historic District by the Cleveland Landmarks Commission. Hessler Court, the only remaining street in Cleveland to have woodblock paving, is listed on the National Register of Historic Places. This entire case stems from a developer, Intervenor-Appellee, Ford-Hessler Property Reorganization LLC (“FHPR”), who has been hell-bent on building as many individually leased bedrooms as possible, on a site that cannot support the impact nor the legal parking requirements, and in a district where the infrastructure cannot absorb the deficiencies. It was done by creating a scheme of multiple progressive approvals whereby FHPR presented an overall development plan which included an agreement for offsite parking in an effort to secure variances to eliminate all parking requirements for the existing buildings, all while knowing the development would never be built. Then, FHRP submitted a new development plan without an agreement for offsite parking, and tricked the Appellee City of Cleveland, into reviewing that plan while maintaining the previous variances of the abandoned project that eliminated the onsite parking requirements. This effort to create plans that evade parking requirements is further evidenced by the very reason for the design of the property. FHPR publicly acknowledged the real intent of this development project is to add 18 individually leased bedrooms as student housing, but again to circumvent parking requirements and zoning, they configured them as 6 three bedroom units. All while publicly acknowledging that 18 people will be leasing each of these bedrooms under 18 individual leases. Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ STATEMENT OF THE FACTS On December 13, 2021, BZA heard the plan which was to cut away the backyards of both 1975 and 1981 Ford Drive to create a new parcel on Hessler Road, where a new stand alone 12 unit, single bedroom each, residential building would be constructed. (Figure 1) Figure 1 This development plan of 3 reconfigured parcels required the demolition of the historic garage in the backyard at 1975 Ford Drive, along with numerous variances, including the reduction of parking from 12 spaces to 5 spaces at the new 11300 Hessler Road proposed backyard parcel, and elimination of all onsite parking from 1975 Ford Drive (5 spaces) and 1981 Ford Drive (4 spaces). On December 20, 2021, BZA granted the variances in Calendars Nos. 21-152, 21 173 & 21-174. In all of the resolutions, it was noted the variances were granted as part of the comprehensive redevelopment and reconfiguration of the 2 parcels into 3. Furthermore, the parking variances were also granted because of a parking arrangement for 20 spaces in the public parking garage across the street. Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ However, since that time the public garage, where the arrangement was made, has been slated for demolition. At some point, all the parcels were put up for sale as a “shovel ready” development project with all the required approvals secured. However, there was never a sale. The comprehensive development project was never constructed, the variances expired and instead a new development plan was proposed. On November 21, 2022, a new development project proposed in the backyards of 1975 and 1981 Ford Drive was submitted to the City of Cleveland for zoning review. This project calls for combining the backyard of 1981 Ford Drive with the parcel of 1975 Ford Drive (Figure 2) and to construct a 3 story addition onto the back of 1975 Ford Drive, fronting Hessler Road, which would contain eighteen (18) individually rented bedrooms in a configuration of six (6) units, each with three (3) bedrooms, but only a total of six (6) parking spaces. Figure 2 Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ On December 20, 2022, City of Cleveland Zoning Administrator Richard M. Riccardi (“Administrator Riccardi”) reviewed the plans and issued a Notice of Non Conformance which resulted in two appeals to the BZA. In Calendar No. 23-002, FHPR filed an appeal to the BZA for relief from the strict application of the Cleveland Codified Ordinance (“CCO”) Section 349.08 which required the 6 parking spaces be screened from all adjoining lots. In Calendar No. 23-013, Appellants filed an appeal to the BZA objecting to Administrator Riccardi’s adjudication of the plan and subsequent Notice of Non Conformance and raised the following errors in the determination: 1) The Zoning Administrator’s determination that Site/Zoning Application B22030881 complied with CCO Section 349.02 which states that in all use districts, existing off-street parking facilities shall not voluntarily be reduced below the requirements of this chapter, and the subsequent failure to state the same on the Notice of Non-Conformance. 2) The Zoning Administrator’s determination that Site/Zoning Application B22030881 complied with CCO Sections 337.13 & 349.04 which states that at least 11 parking spaces are required but only 6 are provided, and the subsequent failure to state the same on the Notice of Non-Conformance. 3) The Zoning Administrator’s determination that Site/Zoning Application B22030881 complied with CCO Section 349.05(a) which states no parking space shall be located within ten (10) feet of any wall of a residential building or structure if such wall contains a ground floor opening designed to provide light or ventilation for such building or structure, and the subsequent failure to state the same on the Notice of Non-Conformance. 4) The Zoning Administrator’s determination that Site/Zoning Application B22030881 complied with CCO Section 357.06(a) which requires alignment to existing building lines however the plans show the building is aligned to the protruding bay window of the existing building on the east side and not to the existing building itself, and the subsequent failure to state the same on the Notice of Non-Conformance. 5) The Zoning Administrator’s determination that Site/Zoning Application B22030881 complied with CCO Section 309 which requires Cleveland Planning Commission’s approval, and the subsequent failure to state the same on the Notice of Non-Conformance. Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ Initially, BZA scheduled only Calendar 23-002 for a hearing on January 30, 2023. Therefore, Appellants filed a Motion to Consolidate their appeal in Calendar 23-013 with FHPR’s appeal in Calendar 23-002, which resulted in both appeals being hastily heard on January 30, 2023 before the BZA. Appellants participated in both hearings. At the conclusion of the hearings, BZA voted to grant the appeal in Calendar 23-002, and deny the appeal in Calendar 23-013. These decisions were approved and adopted by the BZA on February 6, 2023. On February 13, 2023, Appellants administratively appealed these decisions which are now before this Honorable Court. LAW AND ARGUMENT I. ASSIGNMENT OF ERROR I: The Board of Zoning Appeals (“BZA”) violated the Appellants’ Due Process rights by failing to conduct the administrative hearing in an unbiased, fair and impartial manner. There is no doubt that due process requires administrative hearings to be conducted in a fair and impartial manner. See 2 American Jurisprudence 2d (1994) 315, Administrative Law, Section 302 “The 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.” Gibraltar Mausoleum Corp. v. Cincinnati (1981), 1 Ohio App.3d 107, 109-110. “In accordance with the decisions of various jurisdictions and the Supreme Court of the United States, an unbiased tribunal is a constitutional necessity in a quasi-judicial hearing, and a denial of the same is a denial of due process. The requirement of an Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ impartial tribunal applies to administrative proceedings no less than criminal trials.” Sorin v. Bd. of Edn. of Warrensville Hts. School Dist. (1974), 39 Ohio Misc. 108, 111, 315 N.E.2d 848, citinig Ward v. Village of Monroeville, 93 S. Ct. 80; Tumey v. Ohio, 273 U. S. 510; In re Murchison, 349 U. S. 133, and Goldberg v. Kelly, 397 U. S. 254. Moreover, “due process includes the right to a hearing before an unbiased and fair and impartial tribunal." Frost v. Wilmington (Jan. 31, 1986), Clinton App. No. CA85-08- 014, at 7. Here, the tribunal or rather the BZA was quite the opposite. Prior to getting into the substance of the Appellants’ administrative appeal, the Chair of the BZA expressed her personal opinions about Appellants’ administrative appeal indicating that she was convinced the Appellants were not bringing their Administrative Appeal in good faith when she stated “No. I understand you are essentially trying to preempt what the next case is going to be about. So, I understand what’s going on. I was here since the beginning of this.” Tr. 38 - BZA Calendar No. 23-013 The BZA Chair further made clear that she could not be unbiased when she went on to say “So, I know what you’re trying to weave here.” Tr. 38 - BZA Calendar No. 23 013, These prejudicial comments of the BZA were made before any evidence was presented or the thrust of the Appellants’ arguments were heard, and capitulated Appellant Laura Cyrocki into a state of confusion as to why the BZA would make such terrible accusations, and out of the fear of reprisal from the BZA, Appellant Laura Cyrocki simply agreed with the BZA. This affected the Appellants’ ability to present evidence and arguments in support of their administration appeal. Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ The bias of the BZA undermined the fairness and impartiality of the hearing. A fair and impartial hearing must be one that is free from any personal bias or prejudice. In this case, the Chair's comments demonstrated that the BZA had already judged the Appellants’ administrative appeal before hearing the evidence and arguments. This prejudiced the BZA against the Appellants, influenced other members of the BZA, and tainted the entire hearing by creating an atmosphere where the Appellants’ administrative appeal was viewed unfavorably. Overall, it was a violation to the fundamental notion of Due Process rights. Accordingly, this Honorable Court must reverse the BZA's decision. II. ASSISNMENT OF ERROR II: FHPR proposed a plan to demolish the residential garage in the backyard of 1975 Ford Road and presented an overall development plan which eliminated the existing off street parking for two existing buildings (1975 & 1981 Ford) in the overall plan. Those parking variances reduced the required parking spaces at 1975 Ford from 5 to ZERO and at 1981 Ford from 4 to ZERO. However, the parking variances on that plan were specifically granted under the premise that the overall construction development proposed would be built on the newly created parcel from the backyards of 1975 and 1981 Ford. Moreover, these parking variances were granted because FHPR had a plan to address the parking requirements, specifically that with parking spaces on site and an agreement for offsite parking for additional spaces in a neighboring parking garage, which has since been scheduled for demolition. After receiving the variances, FHPR abandoned plans for the overall development plan, and despite knowing that that the plans for the overall development were Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ abandoned, they still attempted to use the parking variances to obtain new certificates of occupancies for the 2 existing buildings at 1975 and 1981 Ford. From there, they submitted a new development plan, which is the subject of this matter, that calls for the consolidation of the previously split parcels and to build an "addition" to 1975 Ford, rather than a new structure, so the developer can evade the parking requirements of the code. However, the City of Cleveland is still permitting them to use the parking variances issued in the previous plan that was never built. The very subject of this administrative appeal is to show that the BZA decision which affirmed the decision of Cleveland Zoning Administrator to not include the parking requirements in the Notice of Non Conformance was illegal, arbitrary, capricious and not supported, because at a minimum they did not count the existing units into the required number of parking spaces. The entire process, going back to 2021, can only be described as an elaborate ruse by FHPR to present a never to be built overall development plan on split parcels to obtain parking variances for 1975 and 1981 Ford, only to then consolidate the very same parcels they split, so they could present the real development plan, an addition that they could argue does not require parking variances, and thereby does not require FHPR to convince the BZA that they have a plan to deal with at least 27 cars (9 for the existing units, totalling 19 bedrooms in 1975 & 1981 Ford, and the 18 new leases in the addition to 1975 ford) that will need to be parked where only 6 spaces are provided, and in a district who's infrastructure cannot absorb the additional parking needs of the 21 remaining cars. Case Law Supports Chapter 349 is not applicable: At the onset it should be noted that there is case law to support a finding that only Chapter 337 of the Cleveland Codified Ordinances in applicable to this matter. In Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ Cleveland v. City Rose, LTD., 2006 Ohio 4525 - Ohio: Court of Appeals, 8th Appellate Dist. 2006 *13 Footnote 1, the Court held that Chapter 337 of the Codified Ordinances of the City of Cleveland govern off street parking in residential districts, and Chapter 349 govern the off street parking requirements in industrial districts. Should this Honorable Court concur, the arguments made on both sides of the matter for Chapter 349 would be without merit, and dispositive of this administrative appeal, as the decision of the BZA to uphold the Zoning Administrator’s Notice of Nonconformance was based upon CCO 349.03, and this property is not located in an industrial district, regardless of use. Therefore, the decision of the BZA was illegal and must be reversed because not only was the Notice of Nonconformance inaccurate as to the parking requirements, but also as to the screening requirements of Chapter 349.08 which would have been listed in error. Should this Honorable Court find Chapter 349 applicable: Alternatively, Appellants put forth the BZA decision in Calendar No. 23-013, where the BZA failed to find the Notice of Non-conformance omitted violations of CCO 349.02, CCO 337.13 & CCO 349.04, and did so by its misplaced reliance upon CCO 349.03, was unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record. Appellants appealed the Notice of Nonconformance citing the Zoning Administrator’s failure to include Nonconformance with CCO Section 349.02, CCO Section 339.13, and CCO Section 349.04. (see record Appeal of the Determination of Site/Zoning Application B22030881 and Notice ofNonconformance dated December 20, 2022) Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ The BZA resolution for Calendar No. 23-013 states that they found Zoning Administrator Richard Riccardi’s decision to rely solely on CCO Section 349.03. Mr. Riccardi stated in the hearing “So, this 349.03 is the zoning code section that is controlling in this case. Tr. 47 - BZA Calendar No. 23-013 However, CCO Section 349.03 cannot be read alone. It is part of Chapter 349 in its entirety, where Chapter 349 begins in CCO 349.01(a) by stating: Except as provided in Sections 329.04(b), 337.13 and 349.10 to 349.12, every use or structure, instituted, constructed or erected after July 2, 1971, shall provide off-street parking facilities in accordance with the requirements ofSection 349.04for the use of occupants, employees, visitors or patrons. It is from CCO 337.13 which is the residential zoning code which REQUIRES 1 off street parking space per dwelling unit, and continuing in Chapter 349, CCO 349.02 specifically states: In all use districts, existing off-street parking facilities shall not voluntarily be reduced below the requirements of this chapter. Therefore, it was required the existing parking be kept in addition to the parking required for the additional dwelling unit. Since the plan before the Zoning Administrator only had six (6) off street parking spaces, and previously at least five (5) existed - one for each dwelling unit at 1975 Ford - the plan effectively only provided for 1 (one) additional unit for the addition. Even if the Appellees argue the six (6) additional units are for the six (6) unit addition, the plans eliminate all existing off street parking at the site which directly violates CCO 349.02 and the BZA should have reversed the decision of the Zoning Administrator. Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ III. ASSIGNMENT OF ERROR III: The Board of Zoning Appeals decision to grant a variance to CCO 349.08 in Calendar No. 23-002 was unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record. FHPR requested a variance to CCO 349.08 related to screening of off-street parking spaces. The code states: Where five (5) or more accessory off-street parking spaces are provided, and are located on a lot that is adjacent to a Residence District or that adjoins a building containing dwelling units, such parking spaces shall be screened from all adjoining lots in the Residence District or a building containing dwelling units, by an opaque wall, a uniformly painted fence of fire-resistant material or a strip of land at least four (4) feet wide and densely planted with shrubs that form a dense screen year-round. Such wall, fence or shrubs shall be at least three (3) feet, but not more than six (6) feet six (6) inches in height. However, such wall, fence or shrubs located within twenty-five (25) feet of the intersection of two (2) or more streets or the intersection of an access driveway and a street, shall have a maximum height of three (3) feet and a minimum height of two (2) feet. The required screening shall be maintained in good condition at all times. No signs shall be permitted to be attached to or hung from the required screening. Prior to granting the requested variance, C.C.O. 329.03(c) mandates that the BZA find that the FHPR presented evidence that establishes the three (3) conditions of CCO. 329.03(b): "(1) The practical difficulty or unnecessary hardship inheres in and is peculiar to the premises sought to be built upon or used because of physical size, shape or other characteristics of the premises or adjoining premises which differentiate it from other premises in the same district and create a difficulty or hardship caused by the strict Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ application of the provisions of the Zoning Code not generally shared by other land or buildings in the same district; (2) Refusal of the variance appealed for will deprive the owner of substantial property rights; and (3) Granting of the variance appealed for will not be contrary to the purpose and intent of the provisions of the zoning code." City of Cleveland v. Patrick Realty, 8th Dist. No. 90349, 2Oo8-Ohio-4243, ^20-23 FHPR has the burden to establish these three conditions, and a failure to establish even one of these requirements, the BZA should have denied its request for variance. City of Cleveland v. Patrick Realty, supra, at ^24, and furthermore, the BZA was required to make a finding on each of the three (3) conditions as they apply in each specific case as a prerequisite for the granting of the variance. Zurow v. Cleveland, 61 Ohio App.2d 14, 20, 399 N.E.2d 92 (8th Dist. 1978 Caselaw instructs that property owners must establish that without the variance, it would encounter "practical difficulties" such that application of the zoning ordinance to the property is inequitable. Duncan, 23 Ohio St.3d at 86, 491 N.E.2d 692. BZAs are instructed to "weigh the competing interests of the property owner and the community, and the property owner would be required to show that the application of an area zoning requirement was inequitable." CBS Outdoor, Inc. v. Cleveland Bd. of Zoning Appeals, 8th Dist. Cuyahoga No. 98141, 2O13-Ohio-1173, 16, citing Duncan at id. The Duncan court lists seven factors that should be considered in determining whether a property owner seeking a variance has encountered practical difficulties warranting the variance. These include, but are not limited to: Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ "(1) whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance; (2) whether the variance is substantial; (3) whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance; (4) whether the variance would adversely affect the delivery of governmental services (e.g., water, sewer, garbage); (5) whether the property owner purchased the property with knowledge of the zoning restriction; (6) whether the property owner's predicament feasibly can be obviated through some method other than a variance; (7) whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance." CBS Outdoor, Inc. at 17, quoting Duncan at id. Here, the BZA failed to apply both the required standards, those of the zoning code, and also the Duncan factors. It must be noted that while the resolution points to letters of supports from some property owners, it fails to weigh those against other neighbors who objected to the variance to screening requirements. Furthermore, even in the letters of support for the variance they indicate the wish for landscaped areas which is an alternative permitted by CCO 349.08. Therefore, since there is the ability to include the landscaped strip that's densely planted with shrubs, there was no practical difficulty that required a variance. It must also be mentioned that the need for this screening is not only for the adjoining properties, but also to stop the glare of headlights and brake lights, pollution to the air, and to reduce the unsightliness of the parking spaces that affect nearby property owners as well. Light and sound travels past only the directly adjoining property. Since the BZA failed to comply with the requirements in order to grant the variance, the decision should be reversed. Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ IV. ASSIGNMEENT OF ERROR IV: Is illegal because the BZA failed to determine that Zoning Administrator’s determination that Site/Zoning Application B22030881 complied with CCO Section 349.05(a) which states no parking space shall be located within ten (10) feet of any wall of a residential building or structure if such wall contains a ground floor opening designed to provide light or ventilation for such building or structure and the subsequent failure to state the same on the Notice of Non-Conformance. A variance is needed to allow parking spaces to be located within ten feet of the wall of the building and at the wall at the base of the porch behind 1981 Ford Drive, where three parking spaces are proposed. Zoning Administrator stated “the spaces have to be ten feet away from any wall or a residential building or structure, if the wall contains a ground floor opening designed to provide light or ventilation for such building or structure.if Appellant, the applicant for this making these errors is talking about the spaces in the back, but it’s not relevant there because those spaces are not within ten feet of these openings. They’re within ten feet of a porch.” Tr. 47 & 48 - BZA Calendar No. 23 013 Appellant, Laura Cyrocki replied to Zoning Administrator’s testimony “The parking in the back of 1981 Ford Drive, it doesn’t appear to be ten feet away from the building. It’s certainly not ten feet away from the porch and the base of the porch has a wall of cinder blocks underneath it right at the front of that porch, so I think it sounds like more clarification is needed.” Tr. 45 & 57 - BZA Calendar No. 23-013 The porch is at ground floor, is a structure and is designed to provide light and ventilation for the building and therefore, the BZA was unconstitutional, illegal, arbitrary, Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record. V. ASSIGNEMENT OF ERROR V: The Zoning Administrator refutes that the proposed new addition’s frontage along Hessler is a front yard, and rather, classifies it as a “side street yard and not a front yard.” Tr. 48 - BZA Calendar No. 23-013. Appellants, based their assessment of the Hessler Road frontage as a front yard as shown in renderings submitted with Site/Zoning Application B220830881, which indicates that the frontage along Hessler is the “front elevation” and describes the rear and side elevations facing south and east respectively. Additionally, the new proposed addition includes five (6) three-bedroom apartments, two per floor served by a new enclosed stair. The existing rear porch of 1975 Ford Drive is proposed to be removed and rebuilt to create a common porch and courtyard area between the new and existing buildings. The new enclosed stair is self contained within the addition and is not accessible from inside the existing 1975 Ford Drive Building. The primary way to access the new addition will be from Hessler Road via the common porch and courtyard area on Hessler Road, and into the new enclosed stair, only accessible via the shared porch. One unit will be accessed from grade level near the rear of 1981 Ford Drive. It is possible for residents in the new addition to access the addition fronting on Hessler Road via the front entrance of 1975 Ford Drive, but only by exiting the rear of the existing Ford Drive building onto the common porch on Hessler Road and entering the new stair in the addition fronting on Hessler Road. Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ FHPR aligned the Hessler Road frontage with the side of the existing 1975 Ford Drive building, and with the protruding bay windows of the existing buildings on the east, and not the existing buildings on the east themselves, which sets the new addition about two feet in front of the existing buildings to the east. This again demonstrates FHPR's attempt to use the addition to circumvent zoning laws by calling the frontage on Hessler Road a side street yard rather than a front yard where according to CCO Section 357.06(a) alignment to existing building lines is required. The existing Ford Drive building is 4280 square feet and the proposed new addition fronting on Hessler Road is 8387 square feet. CONCLUSION For all the of the reasons stated above in this Merit Brief and Assignments of Error, Appellants request this Honorable Court to find that the Board of Zoning Appeals decisions in Calendar Nos. 23-002 and 23-013 were unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record Respectfully submitted, /s/ Laura Cyrocki____________ LAURA CYROCKI 11303 Hessler Road Cleveland, OH 44106 Phone: (216) 288-9587 Email: Lcyrocki@hotmail.com Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ /s/ Charles E. Hoven_____ CHARLES E. HOVEN 11301 Hessler Road Cleveland, OH 44106 Phone: (216) 631-4608 Email: plainpress@gmail.com Appellant, pro se CERTIFICATE OF SERVICE I certify that the foregoing Assignments of Error and Merit Brief of Appellants was filed electronically on this 1st day of May, 2023. Notice of this filing will be sent by operation of the Court's electronic filing system to counsel of record for all parties. Parties and their counsel may access this filing through the Court's system. /s/ Laura Cyrocki____________ LAURA CYROCKI Appellant, pro se Electronically Filed 05/01/2023 18:40 / MOTION / CV 23 975151 / Confirmation Nbr. 2845065 / CLDLJ