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Converting a residential home to Church: Do you still need to comply with zoning ordinances?

Written by Daniel P. Dalton on June 30, 2016 Category: RLUIPA, Substantial Burden

converting home to churchFaith Walk Fellowship Church (“Faith Walk”) owns a single-family residence in a single-family residential district of Cleveland, Ohio (“the City”). As churches are permitted uses in single-family residential districts, Faith Walk sought a variance to use the residence as a church, and to install a gravel parking lot for six vehicles on an adjacent, vacant lot. The City denied Faith Walk’s application on several grounds: (1) the proposed use did not conform to setback requirements; (2) accessory off-street parking spaces must be paved; and (3) Faith Walk failed to incorporate as a means of screening the proposed parking spaces. The Cleveland Board of Zoning Appeals (“the Board”) then conducted a hearing on Faith Walk’s appeal.

At the hearing, the Board reached several conclusions. First, that Faith Walk would not suffer an unreasonable hardship if refused a variance “since [it is] not denied any use of the property not also denied other owners in that district similarly situated[.]” Second, “[t]he proposed change to the one family house would be an adverse impact upon neighboring property owners with the limitations for parking and additional traffic that would accompany the assembly use.” Third, that to establish a use for a church in the midst of what are predominantly one-family homes “would be inconsistent with the character of the surrounding neighborhood.” Finally, the Board found that refusing the variance would not result in unreasonable hardship because Faith Walk would not be denied any use of the property not also denied to other similarly situated owners. Faith Walk subsequently filed suit, and the Court of Common Pleas affirmed the decision of the Board.

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On appeal, Faith Walk argued that the trial court erred by affirming decision of the Cleveland Zoning Board of Appeals. Specifically, it insisted that the board improperly focused on whether a church should be a permitted use. Rather, Faith Walk’s argument was that because a church is a permitted use for a one-family district, the only question the Board should have considered is whether Faith Walk would have practical difficulties in using the house as a church unless the variance was granted.

In its opinion, the appellate court noted that Cleveland Codified Ordinance 337.02(f)(1) permits “[t]he following buildings and uses, if not located less than fifteen (15) feet from any adjoining premises in a Residence District not used for a similar purpose: (1) churches and other places of worship, but nor including funeral chapels or mortuary chapels[.]” The court agreed that Faith Walk, had all other prerequisites been met, did not need permission from the City to convert an existing one-family house into a church. The court explained: “When a zoning code permits a certain use for a property, the property owner requires no further approval from the zoning authority to convert land to a permitted use.” However, Faith Walk did not satisfy the necessary prerequisites to establishing its right to convert the house into a church, because the house that Faith Walk sought to convert was less than 15 feet from the adjoining premises.

Nevertheless, Faith Walk maintained that the board should have construed the words “adjoining premises” to mean the house situated on the adjoining lot, located more than 15 feet from Faith Walk’s house, and not the adjoining lot itself. According to the court, the plain and ordinary meaning of the word “premises” is used in various statutes to mean both the land and the structures on the land. For example, R.C. 5739.01(K) defines the work “premises” for tax code purposes as including “any real property or portion thereof[.]” Similarly, R.C. 2925.01(P) states that an offense is committed within the vicinity of a school when “the offender commits the offense on school premises, in a school building, or within one thousand feet of the boundaries of any school premises . . . .” In both statutes, the word “premises” is used to indicate not only structures and dwellings, but the lands on which those structures and dwellings are located. Therefore, the appellate court held that the trial court did not err by finding that the house Faith Walk wished to use as a church was less than 15 feet from any adjoining premises.

Because Faith Walk did not satisfy the necessary prerequisites to establish its right to convert the house into a church, to proceed, it needed to obtain an area variance from the City. Unlike the more stringent “use” variance, an “area” variance will be granted upon a showing of “practical difficulties rather than unnecessary hardship.” Boice v. Ottawa Hills, 999 N.E.2d 649, 652 (Ohio 2013). In Cleveland, Codified Ordinance 329.03(b) limits the Board’s authority to grant an area variance to specific cases where the following conditions are shown:

  • 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 . . . which differentiate it from other premises in the same district and create difficulty or hardship cause by a strict application of the provisions of this Zoning Code not generally shared by other land or buildings in the same district;
  • Refusal of the variance appealed for will deprive the owner of substantial property rights; and
  • Granting of the variance appealed for will not be contrary to the purpose and intent of this Zoning Code.

The burden to prove the three conditions set forth in Cleveland Codified Ordinance 329.03(b) is on the party seeking the variance, and the failure to establish all three conditions require the board to deny the requested variance. See Consol. Mgt., Inc. v. Cleveland, 452 N.E.2d 1287 (Ohio 1983). Thus, the appellate court addressed two separate issues with regard to the area variance: first, whether Faith Walk would have practical difficulty in using the house as a church without the requested variance; and second, whether it would have practical difficulty operating a church without the addition of six, off-street parking spaces.

With regards to the first issue, Faith Walk argued the Board should have considered whether the denial of an area variance would have caused Faith Walk practical difficulty or unnecessary hardship in operating the house as a church, not whether it suffered any hardship because the house could continue to be used as a residence. In response, the court stated: “

A defining aspect of area variances is that the practical difficulties-undue hardship standard refers to the characteristics of the land, not conditions personal to the owner of the land. In other words, Faith Walk had to show that the 15-foot setback requirement does not refer to conditions personal to it as the owner of the land in question but rather refers to the conditions especially affecting the lot in question.

The court found no evidence that Faith Walk could not erect on the property a church that conformed to the setback requirements. The fact that it could not use the existing structure on the land for use as a church was a condition personal to Faith Walk, not the property. Moreover, the existing conforming use of the property as a single-family residence in a single-family residential district showed that the characteristics of the land did not demonstrate practical difficulty in complying with the zoning ordinance, as the land could be, and had long been, put to use as a single-family residence. Therefore, Faith Walk’s difficulties with the 15-foot setback requirement were personal to its preferred way to use the land, and not the property itself. Thus, the practical difficulties-undue hardship criteria were not met.

Because Faith Walk’s need to build an unpaved, off-street accessory parking lot was based on it being able to use the house as a church, the church concluded that Faith Walk’s need for a variance for this purpose was moot, as that need no longer existed. However, the court noted that, even if the matter of a variance for an unpaved, off-street accessory parking lot continued to exist, it found no error with respect to the board’s conclusions. In Duncan v. Middlefield, 491 N.E.2d 692 (Ohio 1986), the Ohio Supreme Court set forth the following, nonexclusive list of factors to be considered and weighed when determining whether a property owner has encountered practical difficulties in the use of property:

  • whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance;
  • whether the variance is substantial;
  • 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;
  • whether the variance would adversely affect the delivery of governmental services (e.g., water, sewer, garbage);
  • whether the property owner purchased the property with knowledge of the zoning restriction;
  • whether the property owner’s predicament feasibly can be obviated through some method other than a variance, and;
  • whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance.

However, the court ultimately found that Faith Walk’s argument that the Board’s application of the Duncan factors and its findings rejecting the claim of practical difficulties were erroneous, was factual in nature, and thus beyond the appellate court’s scope of review. Consequently, the court affirmed the decision of the trial court.

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