ROBERT KRAUS, ET AL. Appellants/Cross-Appellees-Appellants
DALE RIGGENBACH, NIMISHILLEN TOWNSHIP ZONING INSPECTOR, ET AL. Appellees/Cross-Appellants-Appellees
from the Stark County Common Pleas Court, Case No.
Appellants JOHN L. JURGENSEN.
Appellee - Dale Riggenbach JOHN D. FERRERO Stark County
Prosecutor's Office JESSICA LOGOTHETIDES Assistant
Appellees - Joseph and Sherri Davide JAMES F. MATHEWS Baker,
Dublikar, Beck, Wiley, Matthews.
John W. Wise, P.J. Hon. W. Scott Gwin, J. Hon. William B.
Appellants Robert and Nancy Krause appeal a decision of the
Stark County Common Pleas Court affirming the decision of the
Nimishillen Township Board of Zoning Appeals (BZA) which
granted a conditional use permit and two variances to
Appellees Joseph and Sherri Davide. Dale Riggenbach,
Nimishillen Township Zoning Inspector, is also an appellee.
OF THE FACTS AND CASE
The Davides own a home in an area of Nimishillen Township
zoned rural residential. They own 5.65 acres and have two
garages on the property. The maximum size permitted for an
accessory building, without a variance, is 1280 square feet.
One of the Davides' garages is 1702 square feet. The
second garage had previously been granted a variance for 2400
square feet, but a 2976 square foot addition was added to the
Joseph Davide owns and operates a cement contracting
business. Two single-axle dump trucks and a one-ton pickup
truck used in the business are parked at the home in the two
garages. The garages are also used to store vehicles and
personal items for use by the family.
Employees of the cement business come to the home in the
morning to pick up the company's trucks and take them to
a customer's location. The vehicles are returned at the
end of the work day. It takes employees two to five minutes
to drive the vehicles up or down the driveway. The Davides
further conduct bookkeeping activities for the business
inside their home.
In 2016, the Davides filed an application for a "home
occupation" conditional use permit with the township in
order to continue their business activities within the home.
The application came before the BZA for a hearing on November
2, 2016. The permit was granted following the hearing. The
BZA later discovered due to an error in the notice
publication, notice of the hearing had not been given ten
days in advance. The BZA met again on November 23, 2016, to
conduct the hearing again with proper notice. Following this
hearing, the BZA moved for a continuance to consult with
legal counsel. On February 1, 2017, the BZA again voted to
grant the conditional use permit.
The Davides further sought variances for the two accessory
buildings. Following a hearing on January 4, 2017, the BZA
granted the variances.
Appellants filed an appeal of both decisions to the Stark
County Common Pleas Court. Appellees filed a cross-appeal.
The court found the decisions of the BZA were not
unconstitutional, illegal, arbitrary, capricious,
unreasonable, or unsupported by sufficient substantial,
reliable, and probative evidence on the record before it, and
affirmed the decision of the BZA.
It is from this judgment Appellants prosecute their appeal,
assigning as error:
I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT CONCLUDED
THAT THE NIMISHILLEN TOWNSHIP BOARD OF ZONING APPEALS