Real Estate Magnate Wolstein Unable to Obtain Zoning Variance for Wrought Iron Security Fence in the City of Pepper Pike, Ohio.

A Publication of Skidmore & Associates, A Legal Professional Association

By: Eric E. Skidmore, Esq.

In this country, we are taught that each citizen has certain inalienable rights of life, liberty and property. Usually, we do not experience the restrictive nature of these freedoms, until we attempt to exercise them. Nowhere is this more evident than in the restricted freedom to hold real property which is subject to certain local zoning ordinances. This was experienced by local real estate magnate, the late Bertram Wolstein1 (“Wolstein”) when he attempted to obtain a zoning variance to build a six-foot wrought iron fence around the perimeter of his residence located in the City of Pepper Pike (the “City”).

In September, 2002 Wolstein submitted to the City a written request for a variance from the requirements of the Codified Ordinances consisting of §1468.03, entitled “Fences in Front Yards” which permits decorative wooden split rail fences that are no higher than four feet.2 Wolstein intended to construct a six-foot high wrought iron security fence across the front of his property, for security purposes. The proposed fence would extend across the front of the parcel, then connect to chain link fencing in the rear of the parcel.3 Wolstein’s attorney argued that the wood split rail fences authorized by § 1468.03 did not offer any security protection. Wolstein’s attorney additionally argued that the Wolsteins were high profile individuals, who were concerned about personal safety and security of their property and that their vast frontage of the parcel prevented them from maintaining an adequate perimeter of security.4 The matter went to hearing before the City’s Planning and Zoning Commission and the City Council subsequently denied the variance because the six-foot high wrought iron security fence would be a substantial variance altering the character of the neighborhood.5 Council reasoned that Wolstein could obviate his concerns for security by investing in a security system at the house. Wolstein appealed City Council’s denial of the variance to the Court of Common Pleas, which confirmed the ruling, wherein Wolstein appealed to the Eighth District Court of Appeals (the “Eighth District Court”).6

Wolstein argued to the Eighth District Court that the lower court erred by failing to allow him to install the six-foot wrought iron security fence because of the practical difficulty of maintaining security to their home under the City’s unsecured split rail fence requirement, pursuant to §1468.03.7 Codified Ordinance §1468.03 dealt with the decorative wooden split rail fences, not security fences.8 The Eighth District Court divided Wolstein’s request into three separate variances, consisting of a variance to permit a fence of a greater height, variance for iron material, and variance for a security purpose.9

The Eighth District Court acknowledged that “[a] board of zoning appeals is given wide latitude in deciding whether to grant or deny an area variance.” 10 The Eighth District Court also acknowledged that Wolstein must demonstrate “practical difficulties” to satisfy the standard for an area variance.11

The Eighth District Court affirmed the City’s position, determining that “practical difficulty” had not been shown.12 The Eighth District Court agreed with the City’s determination that a six-foot high wrought iron security fence required three variances, and the record suggested that it was out of character with the rest of the neighborhood.13 In fact, a neighboring landowner testified that the fence would not conform with the open character of the neighborhood.14 It was specifically concluded that “[t]he property owners’ [Wolstein] concern for security could be obviated through means other than a security fence, such as a security system at the house” and could “continue to make beneficial use of their property without the fence variances”, which was affirmed by the Eighth District Court.

It’s likely that Wolstein received zoning variances on dozens of occasions throughout his years in real estate development. However, in this instance, Wolstein’s attempt to acquire a zoning variance to build a wrought iron security fence on his own personal real estate came up short. Wolstein’s inalienable right to hold real property was restricted as a result of his failure to demonstrate “practical difficulties” in an attempt to acquire a zoning variance. In this instance, the City’s interest in conformity and uniformity weighed heavily to restrict real property rights.

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Mr. Wolstein was a nationally renowned real estate developer and was the chairman and CEO of Developers Diversified, one of the nation’s largest and most successful retail property owners and operators, developing more than 125 shopping centers in 36 states. Mr. Wolstein died in his sleep in the spring of 2004.

1. Wolstein v. Pepper Pike City Council, 156 Ohio App.3d 20, 22 (8th Dist., 2004).
2. Id. at 23.
3. Id.
4. Id.
5. Id. at 24.
6. Id.
7. Id.
8. Id. at 24.
9. Id. (referencing Schomaeker v. First Nat’l. Bank, 66 Ohio St. 2d 304, 309 (1981); Kisil v. Sandusky, 12 Ohio St. 3d 30 (1984)).
10. Id. (referencing Kisil. 12 Ohio St. 3d at 30; Duncan v. Middlefield, 23 Ohio St. 3d 83 (1986)).
11. Id. at 26.
12. Id.
13. Id. at 23.
14. Id. at 26.
    

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