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Pro-Tow, Inc. v. Columbus Board of Zoning Adjustment

Court of Appeals of Ohio, Tenth District

August 27, 2019

Pro-Tow, Inc., Appellant-Appellant,
v.
Columbus Board of Zoning Adjustment, Appellee-Appellee.

          APPEAL from the Franklin County C.P.C. No. 15CV-7417 Court of Common Pleas

         On brief:

          Gordon P. Shuler, for appellant.

          Zach Klein, City Attorney, and Alexandra Pickerill, for appellee.

         Argued:

          Alexandra Pickerill.

          DECISION

          HANDWORK, J.

         {¶ 1} Plaintiff-appellant, Pro-Tow, Inc., appeals from a decision of the Franklin County Court of Common Pleas affirming an order of appellee, the City of Columbus Board of Zoning Adjustment ("BZA"). The BZA order denied appellant's application for a special use permit and variances. For the following reasons, we affirm the common pleas court judgment.

         I. Facts and Procedural History

         {¶ 2} On October 18, 2013, appellant purchased the real property located at 1669 Harmon Avenue. The property is approximately five acres, located on the west side of Harmon Avenue, approximately 700 feet north of Hart Road. (July 28, 2015 Tr. at 2; Exs.) The property's frontage which faces Harmon Avenue is 225 feet and zoned M-2, manufacturing. This includes a paved parking lot and an office building. The rest of the property is zoned M, manufacturing. Appellant began using the property as an impound lot on the M zoned area, surrounded by a fence. On December 18, 2014, a zoning code violation order containing several violations was issued.

         {¶ 3} On February 19, 2015, appellant applied to the BZA for a special permit to operate the impound lot and sought several variances from development standards. Appellant has since withdrawn all the variance requests. On June 23, 2015, the BZA conducted a public hearing on appellant's application for a special permit and variances. The city staff recommended approval of appellant's application, subject to certain conditions with which appellant was willing to comply. The Southwest Area Commission also recommended approval of appellant's application. However, the property owners of 1685 Harmon Avenue, Hubert and Diana West, which is the property immediately south and adjacent to appellant's property, testified in opposition to appellant's application during the hearing.

         {¶ 4} The West property is a single family home sitting on approximately one-half acre. The property is zoned M-2, but the Wests have lived there approximately 20 years. Currently, Hubert and Diana, their adult son, Hubert West, Jr., and young grandchildren live at the residence. The West property is the only residential property in the area.

         {¶ 5} The impound lot is required to be open 24 hours a day, seven days a week, because appellant has contracts to tow vehicles that have been seized by the city of Columbus, the city of Grove City, and the Ohio State Highway Patrol. The owners of towed vehicles attempt to retrieve their vehicles at any hour of the day and are frequently angry.

         {¶ 6} Hubert West, Sr. testified regarding the negative impact that the impound lot has had on his property and the area. He related that there is significant traffic at all hours, the smell of gasoline, racing on Harmon Avenue, people yelling, and car horns. (June 23, 2015 Tr. at 8.) He testified that people enter his yard to climb the fence between the two properties to retrieve their cars. (June 23, 2015 Tr. at 9.) He complained that people mistake his house for the impound lot office and knock on his door at all hours to demand the return of their cars.

         {¶ 7} Diana West testified that she did go over to the impound lot at one point at approximately 2:00 a.m. and complained about the trucks running and lights on during the night and was assured it would not happen any longer. However, it continues. (June 23, 2015 Tr. at 14.) Diana telephoned the police regarding the motorcycle racing along Harmon Avenue. However, when asked, Diana testified she was not sure the racing was related to the impound lot, but she had seen the motorcycles on the lot. (June 23, 2015 Tr. at 15.) She explained that she could not open her windows ...


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