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Conrad v. City of Oxford

Court of Appeals of Ohio, Twelfth District, Butler

December 18, 2017

THOMAS CONRAD, et al., Plaintiffs-Appellants/Cross-Appellees,
v.
CITY OF OXFORD, OHIO, Defendant-Appellee/Cross-Appellant.

         CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2014-12-3197

          Jay C. Bennett, Oxford Professional Bldg., for appellants/cross-appellees.

          Stephen M. McHugh, Christopher R. Conrad, Jessica R. Brockman, for appellee/cross-appellant.

          OPINION

          RINGLAND, J.

         {¶ 1} Plaintiffs-appellants, Thomas Conrad and Sarah Conrad, appeal the decision of the Butler County Court of Common Pleas involving a zoning dispute between the Conrads and the City of Oxford ("City"). In addition, the City cross-appeals from the same decision. For the reasons detailed below, we affirm the decision of the trial court.

         {¶ 2} In November 2011, the Conrads purchased a single-family residence ("Property") at 316 East Vine Street, Oxford, Ohio. Shortly after purchasing the Property, the Conrads petitioned the Board of Zoning Appeals ("BZA") for a lot width variance in order to build an addition and convert the Property into a two-family residence. The Oxford Zoning Code requires 75 feet of lot width and 7, 500 square feet of lot area for a two-family dwelling. However, the Conrads' lot is 53 feet wide and approximately 9, 800 square feet in area.

         {¶ 3} The BZA denied the variance request and the Conrads appealed the decision to the Butler County Court of Common Pleas. During the first appeal, the common pleas court remanded the matter for a new hearing after finding that the BZA had improperly taken notice of and considered the outcome of a variance request for another property. In so doing, the court stated:

Finally, the BZA's eighth finding of fact indicates that it considered no other factor in reaching its decision. This finding is not supported by the record. At the hearing, one Board member expressly stated that the variance should be denied, in part, because the BZA previously denied a variance request submitted by a nearby fraternity house. That petition is not in the record, and there is no evidence that the variance request is in any way similar to the Conrads'. Even if it was, it is not relevant to this case, where the practical difficulties test requires the BZA to consider whether the lot width restriction is reasonable as applied to the Conrads, not another property owner.
The Court finds that the BZA's decision illegally strayed from the practical difficulties test by considering a previous ruling related to a different property. It is unclear whether the BZA would have actually denied the variance had it not done so. Having found that the BZA's decision was based upon a factor outside the scope of its authority, the Court remands this matter to the BZA for a new hearing. In light of this decision, it is not necessary to consider whether the BZA has disparately enforced the Oxford Zoning Code in similar situations.

         {¶ 4} On November 19, 2014, the BZA heard the variance request on remand from the common pleas court. The variance request was denied. The Conrads again appealed to the common pleas court, asserting three assignments of error. The court's entry reflects that its prior ruling may not have been clearly articulated to the BZA and therefore ordered a second remand. In so doing, the court stated:

Having reviewed the record and relevant case law, it is clear the Court's previous ruling unintentionally led the BZA astray on remand and caused a flawed application of the practical difficulties test. In its order remanding this matter, the Court determined the BZA improperly considered a past decision denying an area variance to a nearby fraternity house. The Court further held the BZA's past decision was not relevant to the variance requested by the Conrads because the practical difficulties test required the BZA to consider whether the zoning ordinance at issue was reasonable as applied to the Conrads alone. While it was improper for the BZA to take notice of and use its past decision as a basis to deny a variance to Conrads [sic], as there was no evidence introduced during the hearing supporting the past decision that the Conrads could examine or rebut, the Court erred in holding that the BZA's past decisions were irrelevant to a practical difficulties analysis. To the contrary, as part of a practical difficulties analysis Ohio Courts have examined a zoning authority's past decisions in determining whether it has reasonably enforced its zoning ordinances.
Here, the BZA received sworn testimony that nearby properties received area variances similar to the one sought by the Conrads, and that a majority of the properties permitted for two-family occupancy in the R2MS zoning district do not possess the 75 feet of lot width required by the Oxford Zoning Code. Understandably, in light of the Court's ruling, the BZA did not consider that evidence when it determined the Conrads had not encountered practical difficulties. It is not clear whether the BZA would have denied the variance had it done so.
The Court therefore remands this matter to the BZA with instructions to determine whether the Conrads have encountered practical difficulties in the use of their ...

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