Agenda - Planning Commission - 03/02/1999

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Page 8 -- February 10, 1999 Z.B. There was no question E.P.G. rented the house as a multiple residence; its lease clearly stated that it did. Moreover, the city showed during E.P.G.'s prosecu- tion that the company had converted the building to a multiple residence. The two units weren't separated into two distinct apa. rtm.e.n, ts~ and the basement wasn't used as a separate dwelling unit. In fact,, the bag~ment kitchen didn't even having a working stove. see also: Aboud v. Wallace,. 463 N.Y.S. 2d 572. Enforcement-- Can owner relitigate issues addressed in appeal of variance denial? Citation: Granger Township Board of Trustees v. Klubnik, Court of Appeals of Ohio, 9th Appellate Dist., Medina County, No. 2706-M (1999) Klubnik owned property in Granger Township, Ohio. He got permission to construct a building for his business. During construction, a z6ning inspector noticed the building's atrium win- dow would extend about three feet into the mandatory 100-foot setback. Ac- cording to Klubnik's daughter, who was supervising construction, the zoning inspector told her Klubnik could request a variance from the zoning board and said the variance "should not be a problem and ... would probably be approved." After the building was completed, Klubnik requested a variance for the window. The zoning board denied his request, finding he created the problem himself. Klubnik appealed to court, which reversed the board's decision. An appeals court, however, later determined the zoning board properly denied Klubnik's variance request. The township filed an enforcement action against Klubnik, apparently seek- ing a court order requiring him to remove the offending window. The'township asked the court for judgment without a trial, arguing it was entitled to the re- quested order based on the earlier lawsuit. Klubnik claimed the township should be barred from enforcing its setback requirements based on the zoning inspector's alleged statement that Klubnik should have no problem getting a variance for the atrium. The court awarded the township judgment and issued the requested order, and Klubnik appealed. DECISION: Affirmed. The trial court properly aWarded the township judgment without a trial. Klubnik wasn't entitled to a trial. He had a full and fair opportunity, in the previous lawsuit, to litigate his claim that the zoning inspector's assurances that he could get a variance barred the township from enforcing its setback requirements. The appeals court had already determined that the township could enforce its setback requirements against Klubnik, so he couldn't now claim again -- in the township's enforcement action -- that the township had no right to enforce its zoning regulations. see also: Grava v. Parkman Township, 653 N.E.2d 226 (1995).