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North Fork Properties v. Bath Township

Court of Appeals of Ohio, Ninth District

January 14, 2004

NORTH FORK PROPERTIES, Appellee
v.
BATH TOWNSHIP, et al. Appellants

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2002-03-1635

ROBERT G. KONSTAND, Attorney at Law, for Appellant.

JAMES L. FISHER and JOHN P. SLAGTER, Attorneys at Law, for Appellee.

DECISION AND JOURNAL ENTRY

BETH WHITMORE, Judge.

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

{¶1} Defendants-Appellants Bath Township, Bath Township Deputy Zoning Inspector, and Bath Township Board of Zoning Appeals (collectively "Appellants") have appealed from a decision of the Summit County Court of Common Pleas that entered judgment in favor of Plaintiff-Appellee North Fork Properties. This Court affirms.

I

{¶2} The facts in the present case are as follows. On November 26, 2001, North Fork Properties ("North Fork") requested the issuance of a zoning certificate for an office building to be placed on its property, specifically parcels 04-05410, 04-06793, 04-06792, 04-06791, and 04-06790, located on the west side of North Cleveland-Massillon Road, directly west of the intersection of North Cleveland-Massillon and Ghent Hills Roads ("the property"). The Deputy Zoning Inspector denied the request on the ground that the property was located in an R-2 Residential District and North Fork intended to construct an office for business use.

{¶3} On December 4, 2001, North Fork filed a Zoning Variance Application requesting a variance to use the property for an office building and for other reasonable and necessary variances. The Deputy Zoning Inspector denied the application, stating that Article X, Section 1001-6(D) of the Bath Township Zoning Resolution provided that the Bath Township Board of Zoning Appeals ("BZA") did not have the authority to permit a use where such use was prohibited by the Resolution. North Fork again requested a use variance and the Deputy Zoning Inspector denied the request.

{¶4} North Fork appealed the decisions of the Deputy Zoning Inspector to the BZA on February 19, 2002. North Fork maintained that the Deputy Zoning Inspector's decision denying North Fork's application for use variance was unconstitutional and arbitrary, and that the BZA did, in fact, have the authority to grant use variances. North Fork argued that "R.C. 519.14(B) establishes the authority and [the] standard to be applied if a township authorizes its BZA to grant variances. Bath Township's variance from this standard by adding Section 1001-6(D) is contrary to R.C. 519.14(B) and is internally inconsistent with the authority and [the] standard set forth in [Section] 1001-6(B)." North Fork further argued that the "proposed office building is not a 'prohibited use' because it is not identified in 301-4(T) and is a permitted use in other zoning classifications within the zoning 'Resolution.' "

{¶5} The BZA, like the Deputy Zoning Inspector, found that the property was located in an R-2 Residential District, and that North Fork's "proposed use of the property [was] neither permitted nor conditionally permitted in such [a] district." The BZA also found that "although [R.C. 519.14] provides permission for a township board of zoning appeals to entertain use variances, Section 1001-6 D of the Zoning Resolution, as read in concert with Section 301-4 A of the Zoning Resolution prohibits the [BZA] from entertaining use variances." As such, the [BZA] held that "the decision of the Deputy Zoning Inspector denying acceptance of [North Fork's] use variance application was not erroneous and that [North Fork's] application be and the same is hereby denied."

{¶6} On March 19, 2002, North Fork appealed the decision of the BZA which affirmed the Deputy Zoning Inspector's decision denying acceptance of North Fork's variance application, the request for a variance, authority to grant a use variance and such other previous actions relating to the property located on the west side of Cleveland-Massillon Road. Upon review, the trial court noted that "the limited scope of [North Fork's] appeal [was] whether the BZA had the authority to grant a use variance based on Bath Township Resolution 1001-6(D)." Thus, "the limited issue before [the trial court was] whether the Bath Zoning Resolution [Section 1001-6(D)] and R.C. 519.14(B) [authorized] the BZA to hear use variances." The trial court found that Bath Township Zoning Resolution Section 1001-6(D) clearly limited the authority of the BZA to permit a use where such use was prohibited by the Resolution and that such a limitation "makes the Bath Township Zoning Resolution more stringent [than] the standards set forth in R.C. 519.14 and is therefore invalid and unenforceable." The trial court reversed the BZA's decision and remanded the matter to the BZA, holding that "[a]s a matter of law the BZA erred in denying North Fork's request for a hearing on the use variance since the denial is contrary to R.C. 2506.04, being unconstitutional, illegal, arbitrary, capricious, unreasonable and totally unsupported by the preponderance of reliable and probative evidence."

{¶7} Appellants have timely appealed, asserting one assignment ...


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