Agenda - Planning Commission - 09/07/1999

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Page 6 .August 10, 1999 Z.B. Conditional Use Owner says city took property by denying permit for storage trailer OHIO (7/14/99) -- The Varholas owned a residence in Akron. For several years, they had stored construction materials in a large trailer next to a garage at the rear of their property. The lower portion of the trailer was partially hid- den by a fence. The Varholas' trailer, which was 8 feet by 27 feet, violated the city code. The property was in a retail business district, but it was also within 200 feet of a residential district and the city code prohibited parking trucks, tractors, or trailers on property that was within 200 feet of a residential district. The Varholas applied for a conditional use permit that would allow them to continue using the trailer for storage purposes. The city could grant a conditional permit if the proposed use was harmonious with the neighborhood and the city's comprehensive plan and wouldn't disturb existing or future neighboring uses. The city denied the Varholas' request, finding the proposed use violated the city code. The city also found the trailer was a potential safety hazard and was an eyesore to neighbors. The Varholas appealed to court, claiming the city'should have granted their request even though the trailer violated the code because several neighboring properties also housed trailers used for storage. According to the Varholas, the c!ty's decision amounted to an unconstitutional taking of their property be- cause their use of the trailer to store materials for their construction business was an "economically feasible" land use. The court affirmed the city's decision, and the Varholas appealed again. DECISION: Affirmed. The city properly denied the Varholas' permit request. The city didn't have to grant the Varholas a conditional use permit simply because other properties in the area had similar trailers. The Varholas weren't entitled to a permit. Their trailer violated the city code because the property xvas within 200 feet of a residential district. Moreover, their proposed use wouldn't be harmonious with the neighborhood; the city had determined the trailer was already an eyesore, as well as a safety hazard. Denying the Varholas a permit for the trailer didn't amount to an unconsti- tutional taking. Prohibiting one economically viable use of property wasn't an unconstitutional taking. To amount to-.a taking, the denial of a conditionaI use permit had to leave the owner with only uses that weren't economically fea- sible or that were "practically impossible under the circumstances." The Varholas couldn't prove there was no economically viable use of their property without the permit, because they already had a legaI residence on the property. Varhola v. City of Akron, Court of Appeals of Ohio, 9th Appellate Dist., Summit Count3; No. 19299 (1999). see also: ValleyA uto Lease of Chagrin Fails Inc. v. A ubur~ Tolw~ship Board of Zoning Appeals, 527 N.E. 2d 825 (]988).