Agenda - Planning Commission - 11/08/1999

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Z.B. September 25, 1999 Page 7 which was a prohibited use. Kotoch appealed to the zoning appeals board, which affirmed the commission's decision. The board found the storage facility might be allowed under the zoning ordinance's "similar use" provisions, but only if it didn't create a danger to health and safety. The board decided the storage facility shouldn't be allowed as a "similar use" because neighboring residents were concerned about burglaries, the storage of explosives, and other safety issues. Kotoch appealed to court, and the court eventually reversed the board's decision aftei' finding any safety risks were minimal or nonexistent. An ap- peals court later affirmed the trial court's decision. While its zoning appeal was pending, Kotoch filed another lawsuit against the city, alleging an unconstitutional taking, inverse condemnation, and due process violations. The court awarded the city judgment on all Kotoch's claims, and Kotoch appealed. DECISION: Affirmed. The zoning board's decision neither amounted to a taking of Kotoch's prop- erty nor violated his due process rights. The city didn't take Kotoch's pr. operty. To prove an unconstitutional tak- ing, Kotoch had to show the cify rendered his property devoid of any economi- cally viable use. At worst, Kotoch was prohibited from one use of his property, not all economically viable uses. Because there was no taking, Kotoch couldn't sue the city for inverse condemnation. In this case, the board had a rational basis for its decision -- citizens' con- cerns over theft and the storage of flammable materials. The board also found the leasing of the space would constitute retail sales, a prohibited use. Though a court later found there wasn't enough evidence to support these findings, the board's decision wasn't so irrational as to violate Kotoch's due process rights. Even though the zoning board's decision was eventually overturned, this didn't mean the board's decision was arbitrary and capricious. "Arbitrary and capri- cious'' meant there was no rational basis for the decision, and a zoning decision could have a rational basis even though a court later determined the reason wasn't supported by enough evidence. Even unfounded community viewpoints could be a rational basis for a zoning decision. Citation: Kotoch v. City of Highland Heights, Court of Appeals of Ohio, 8th Appellate Dist., Cuyahoga County, No. 74426 (1999). see also: Negin v. City of Mentor, 601 ESupp. 1502 (1985). Nonconforming Use -- Neighbors challenge site plan approval for Dunkin' Donuts CONNECTICUT (8/4/99) ~ Westbrook Donut Inc. (owner) wanted to open a Dunkin' Donuts franchise in Westbrook. The commercial property involved, which had a "litigious pedigree," was in a residential zoning district.