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Small's Sand and Gravel, Inc. v. Howard Township Board of Zoning Appeals

Court of Appeals of Ohio, Fifth District

May 17, 2006

SMALL'S SAND AND GRAVEL, INC. Plaintiff-Appellee
v.
HOWARD TOWNSHIP BOARD OF ZONING APPEALS, Defendant-Appellant

Appeal from the Knox County Court of Common Pleas, Case No. 04AP060223

For Plaintiff-Appellee: Brian P. Barger, Margaret G. Beck, Patricia J. Kleeberger

For Defendant-Appellant: John C. Thatcher, Jennifer Springer

Hon. John W. Wise, P.J. Hon. William B. Hoffman, J. Hon. John F. Boggins, J., JUDGES

OPINION

BOGGINS, J.

{¶1} This is an appeal from a decision of the Common Pleas Court of Knox County which reversed a denial of the Howard Township Board of Zoning Appeals as to Appellee's request for a conditional use permit.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellee is the operator of a sand and gravel business and owns 63.279 acres, of which 41.875 acres are in Howard Township and 21.404 acres in adjoining Harrison Township, both Townships being in Knox County, Ohio.

{¶3} Appellee had obtained a conditional use permit from the zoning authorities in Harrison Township to mine for sand and gravel and applied to the Board of Zoning Appeals of Appellant, Howard Township ("BZA") for a similar conditional use permit.

{¶4} After a hearing, at which cross examination was not allowed nor were the parties under oath, the BZA denied the conditional use permit. An appeal was taken to the Court of Common Pleas.

{¶5} The transcript of the BZA hearing was defective and, on motion, the court heard additional evidence after which it reversed the decision of the BZA.

{¶6} The sole Assignment of Error is:

ASSIGNMENT OF ERROR

{¶7} "I. THE TRIAL COURT ERRED BY REVERSING THE HOWARD TOWNSHIP BOARD OF ZONING APPEALS' DECISION TO DENY APPELLEE, SMALL'S SAND & GRAVEL'S APPLICATION FOR A CONDITIONAL USE PERMIT WHEN APPELLEE DID NOT PRODUCE SUFFICIENT EVIDENCE TO SATISFY ITS BURDEN OF PROOF THAT THE CONDITIONAL USE PERMIT SHOULD BE GRANTED."

I.

{¶8} Revised Code 2506.03 governs the courts relative to administrative appeals. It states:

{ΒΆ9} "(A) The hearing of such appeal shall proceed as in the trial of a civil action, but the court shall be confined to the transcript as filed pursuant to section 2506.02 of the Revised Code unless it appears, on the face of that transcript or by ...


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