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Kraus v. Riggenbach

Court of Appeals of Ohio, Fifth District, Stark

May 21, 2018

ROBERT KRAUS, ET AL. Appellants/Cross-Appellees-Appellants
v.
DALE RIGGENBACH, NIMISHILLEN TOWNSHIP ZONING INSPECTOR, ET AL. Appellees/Cross-Appellants-Appellees

          Appeal from the Stark County Common Pleas Court, Case No. 2017CV00629

          For Appellants JOHN L. JURGENSEN.

          For Appellee - Dale Riggenbach JOHN D. FERRERO Stark County Prosecutor's Office JESSICA LOGOTHETIDES Assistant Prosecuting Attorney.

          For Appellees - Joseph and Sherri Davide JAMES F. MATHEWS Baker, Dublikar, Beck, Wiley, Matthews.

          Hon. John W. Wise, P.J. Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J.

          OPINION

          HOFFMAN, J.

         {¶1} 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.

         STATEMENT OF THE FACTS AND CASE

         {¶2} 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 building.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} The Davides further sought variances for the two accessory buildings. Following a hearing on January 4, 2017, the BZA granted the variances.

         {¶7} 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.

         {¶8} 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 PROPERLY ...

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