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Hindu Society of Greater Cincinnati v. Union Township Board of Zoning Appeals

Court of Appeals of Ohio, Twelfth District, Clermont

June 24, 2019

HINDU SOCIETY OF GREATER CINCINNATI, Appellee,
v.
UNION TOWNSHIP BOARD OF ZONING APPEALS, Appellant.

          APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2016 CVF 01548

          Aronoff, Rosen & Hunt, Richard A. Paolo, Edward P. Akin, for appellee.

          Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, for appellant.

          OPINION

          S. POWELL, J.

         {¶ 1} Appellant, Union Township Board of Zoning Appeals ("UTBZA"), appeals the decision of the Clermont County Court of Common Pleas reversing its decision in a case involving a conditional use application filed by appellee, Hindu Society of Greater Cincinnati, Inc. ("Hindu Society"). For the reasons outlined below, we affirm the common pleas court's decision.

         Facts and Procedural History

         {¶ 2} On September 7, 2016, the Hindu Society filed a conditional use application with the UTBZA. The Hindu Society's application requested permission to construct a new two-story addition onto its existing temple located on its 105-acre Union Township property. The addition was to provide an expanded worship area on the Hindu Society's property for the purpose of housing additional deities used as part of the Hindu religion. There is no dispute that at the time the Hindu Society filed its application that its property had two access points; one from Klatte Road and the other from Barg Salt Run Road.

         {¶ 3} A conditional use application like the one at issue in this case is governed by Section 442.1 of the Union Township Zoning Resolution ("UTZR"). Pursuant to that section of the UTZR:

In considering an application for a conditional use the Board of Zoning Appeals shall give due regard to the nature and condition of all adjacent uses and structures; and in authorizing a conditional use the Board may impose such requirements and conditions with respect to location, construction, maintenance and operation in addition to those expressly stipulated in this Resolution for the particular conditional use as the Board may deem necessary for the protection of adjacent properties and the public interest.

         {¶ 4} On October 6, 2016, the UTBZA held a hearing on the Hindu Society's conditional use application. During this hearing, the UTBZA heard testimony from five witnesses: William Fiedler, the architect of the proposed temple expansion project, Steven Hunt, one of the Hindu Society's attorneys representing it before the UTBZA, and three neighboring property owners to the Hindu Society's property. The following is a summary of the testimony and evidence provided at that hearing.

         {¶ 5} Fiedler testified regarding the proposed temple expansion project and the efforts made to construct the temple in accordance with the Hindu faith. This includes building the temple structure with consideration of the number nine, [1] as well as an eastern facing orientation to the property, the ability to enter the property from the east, and the capability of devotees to look eastward when praying to the on-site deities.[2] There is no dispute that the Klatte Road entrance allows the public to enter the Hindu Society's property from the east.

         {¶ 6} Hunt testified regarding the Klatte Road entrance and the UTBZA's concerns as it relates to the Klatte Road entrance. As part of his testimony, Hunt noted that once it became known that the Klatte Road entrance was a concern "a number of years ago" that the Hindu Society "spent $1, 300, 000 to buy additional ground and to build that additional access road" onto its property from Barg Salt Run Road. After the Barg Salt Road entrance was completed, Hunt testified the Hindu Society "agreed to limit the use [of the Klatte Road entrance] but they never agreed to close it." This has resulted in approximately 95% of the public entering onto the Hindu Society's property from the Barg Salt Run Road entrance, whereas there are "maybe 10, 14 vehicles a day" that still use the Klatte Road entrance. This includes a temple priest who "comes in the morning and opens up by coming in that way."

         {¶ 7} Despite the UTBZA's concerns regarding the Klatte Road entrance, Hunt noted that no traffic study had been conducted regarding the impact of the proposed temple expansion project would have on the surrounding roadways. Hunt also noted that there was no evidence indicating the number of vehicles using the Klatte Road entrance would increase due to the proposed temple expansion beyond those "maybe 10, 14 vehicles a day." But, in an effort to alleviate any potential conflict with its neighbors, Hunt testified the Hindu Society had nevertheless agreed to close the Klatte Road entrance when "major events take place, such as the festivals they have from time to time[.]"

         {¶ 8} Three neighboring property owners in opposition to the Hindu Society's conditional use application then testified. The first witness testified that he had "no problem with the addition at all," but that he did have a "major problem with Klatte Road." These issues were based on his belief that the motorists who used the Klatte Road entrance onto the Hindu Society's property "don't pay attention to what's going on. They don't care. It's very frustrating." This witness supported his testimony by alleging "[he] had, about three years ago, had to walk down the street in front of a Union Township ambulance so people would move over to let that ambulance get through with his lights flashing." The record is devoid of any evidence to support this testimony. The record is also devoid of any evidence indicating the motorists this witness was referring to were motorists attempting to enter the Hindu Society's property from the Klatte Road entrance.

         {¶ 9} The next witness testified that he too had "no problem" with the proposed temple expansion project. But, although having no problem with the Hindu Society expanding its temple, this witness nonetheless testified that the Hindu Society was the "worst neighbors you could possibly have." Seemingly unrelated to the Hindu Society itself, this witness based this opinion on the fact that Klatte Road was "only 14 feet wide." Therefore, according to this witness, Klatte Road "is not wide enough for two cars to pass without one going off the road," something this witness testified had "been a problem for 20 plus years."

         {¶ 10} Similar to the first witness's testimony above regarding the problems he purportedly witnessed regarding a Union Township ambulance, this witness supported his testimony by alleging the width of Klatte Road had caused problems for the school bus having to wait for other vehicles to back up so that it could pick up his grandchildren in the morning. The record is again devoid of any evidence to support this testimony. There was also no evidence that the vehicles this witness observed backing up for the school bus were driven by motorists entering the Hindu Society's property through the Klatte Road entrance.

         {¶ 11} Like the first two witnesses' testimony outlined above, the third witness testified she also had issues with the motorists who used the Klatte Road entrance to enter onto the Hindu Society's property. This was due, at least in part, to the fact those motorists "fly down our street, they go off your roads, they pull in your drive, * * * they never know where they're going." This witness also testified that "[t]hey're not very good drivers." This witness further testified that it was the "first time [she] ever heard them bring up this is a religious reason why the gate can't be closed." Therefore, ...


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