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Howard v. Greenville Township Bd. of Zoning Appeals

Court of Appeals of Ohio, Second District

September 20, 2013

SHANA L. HOWARD, et al. Plaintiffs-Appellees

Civil appeal from Common Pleas Court T.C. NO. 12CV391

JONATHAN S. ZWEIZIG, Atty. Reg. No. 0069381 Attorney for Plaintiffs-Appellees

NICOLE L. POHLMAN, Atty. Reg. No. 0086301, Attorney for Defendant-Appellant



(¶ 1} The Greenville Township Board of Zoning Appeals ("the BZA") appeals from a May 31, 2012 judgment of the Darke County Court of Common Pleas, which "vacated" the BZA's approval of a conditional use permit for Doug Fellers to operate an automotive repair garage at 8560 U.S. Route 127 in Greenville Township. For the following reasons, the judgment of the trial court will be affirmed.

Facts & Procedural History

(¶ 2} Fellers has filed several requests for a conditional use permit for an auto repair garage on the property in question, and the BZA has addressed his applications each time. Interested landowners on nearby properties, including Shana L. Howard and Susan M. Howell, have opposed the proposed use of the property.

(¶ 3} The BZA's hearing on Fellers's first application was on July 5, 2011. The notice of the July meeting stated that Fellers had requested a conditional use of the property as an auto service garage and that the property was "currently zoned rural residential;" at that time, the application indicated (and the BZA believed) that the property in question was zoned "rural residential." Although an auto service garage is not a permitted conditional use of land that is zoned rural residential, the BZA approved the conditional use, with the requirement that Fellers install a privacy fence. It appears that Fellers began to operate his business on the premises shortly thereafter. However, due to its failure to give proper notice to all interested parties prior to the July 5 meeting, the BZA scheduled another meeting on Fellers's application on September 20, 2011.

(¶ 4} The notice of the September 20 meeting again stated that the BZA was to consider Fellers's application for a conditional use permit and that the property was zoned rural residential. At the meeting itself, however, the BZA stated that the issue of conditional use had been decided on July 5 and that the "tenet" for the September meeting was discussion of the need for a fence, which had not yet been built.

(¶ 5} The BZA also announced at the September meeting that Fellers's land was zoned "business" rather than "rural residential." The record showed that, in 1973, the BZA had changed the zoning of the property to "commercial." No evidence was presented as to what conditional uses were permitted under the "commercial" property designation, and by 2011, the designation of "commercial" property no longer existed in the zoning resolution. Sometime after 1973, the "commercial" designation had been abandoned in favor of "industrial" and "business" designations, but no information was presented about how this change was effectuated or what designation, if any, had been given to Fellers's property. The BZA voted at that September 20 meeting to declare that Fellers's property was zoned "business, " "leaving the conditional use in place."[1]

(¶ 6} The interested landowners appealed to the court of common pleas from the BZA's September 2011 decision to grant Fellers a conditional use permit (Darke C.P. No. 11 CV 00628). The court identified numerous problems with the BZA's actions. Specifically, the court found that: 1) Fellers's application was defective because it addressed only five of the nine requirements for such an application, as set forth in Part XII of the Greenville Township Zoning Resolution, 2) the notice of the July 2011 meeting was defective (apparently because it was not served on all interested parties), 3) the notice of the September 2011 meeting was ineffective because the issues addressed at that meeting "were significantly different" from those stated in the notice, particularly in that the BZA did not treat the issuance of the conditional use permit as if it were still open for discussion and voted to change the zoning of the property; and 4) an auto service garage is not a permitted conditional use of rural residential property (as Fellers's property was identified in the notices). On May 1, 2012, the court vacated the BZA's decisions at both the July and September 2011 meetings, finding them to be "null and void" due to the procedural errors and the failure of Fellers's application to address all of the requirements contained in the Greenville Township Zoning Resolution.

(¶ 7} On May 14, 2012, the interested landowners filed a motion in the trial court to enforce the May 1 judgment entry, because Fellers's automotive repair shop continued to operate as of that date. On May 16, the BZA opposed the motion, asserting that it had informed Fellers that he needed to cease operations and resubmit his application for a conditional use permit. The BZA's memorandum further stated that Fellers had resubmitted his application and that the application had been set for a hearing on May 31, 2012. On May 17, the trial court ordered the BZA "to take such action as is required to enforce the Greenville Township Zoning Code."

(¶ 8} On May 21, 2012, the BZA filed a notice of appeal from the trial court's May 1 judgment (Darke C.P. No. 2011 CV 00628).

(¶ 9} On May 31, 2012, the BZA conducted a hearing on Fellers's resubmitted application for a conditional use permit. Based on the transcript of the hearing, it appears that at least some of the BZA members were unaware, at that time, of the trial court's May 1 judgment with respect to the BZA's previous decisions and were unaware of and had not authorized the BZA's pending appeal of that judgment. After discussion of several issues, including questions from interested parties about Fellers's intended use of the property and information from the zoning officer about the ...

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