Agenda - Planning Commission - 09/01/1998

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Z.B. August 10, 1998 -- Page 5 The Wiltiamses were entitled to an order shutting down the kennel pending a trial. Because the town had denied the Hertzwigs a variance to continue to use their property as a commercial dog kennel, it was likely the Witliamses would win their lawsuit. They also showed they would be irreparably injured without a court order, because the nonstop barking prevented them from using and enjoying their house. see also: Little Joseph Realty v. Town of Babylon, 363 N.E. 2d 1163. see also: Matter of PariseIIa v. Town of FishkilI, 619 N. Y.S. 2d 169.' Home Business -- Owners want to run auto shop'as 'customary home occupation' Citation: Ober v. City of Deer Park, Court of Appeals of Ohio, lst Appellate Dist., Hamilton County, No. C~970742 (1998) The Obers owned a house in the city of Deer Park, Ohio. Their property was zoned residential, but for years they ran an automobile repair business from their garage. .~ The Obers got a permit to tear down their existing garage to build a larger garage with heat. They used the garage to repair cars, and kept expensive tools and equipment in the garage for the business. Customers brought their cars to the Obers' property for repairs, and the customers returned to the property to retrieve their cars and to pay their bills. The repair business was Mr. Ober's sole source of income. The city apparently tried to shut down the Obers' business after it denied them a variance allowing them to continue operating the auto shop. The Obers asked the city zoning board to determine that their repair shop was a "custom- ary home occupation." The city zoning code allowed home businesses in residential zones pro- vided alt work was done inside the building and not more than 50 percent of the area of any one story was devoted to the use. Also, the building could not have been altered in any way that would indicate it was anything other than a residence, and the business could not have attracted customers to the property. The code also prohibited using an accessory building, such as a garage, for gain. The board found the Obers' business didn't qualify as a home occupation. It relied on evidence they ran their business in an accessory building, which violated the zoning code. It also found they used more than 50 percent of the garage for the business and the business attracted customers to the property. The Obers appealed to court. They claimed they didn't do anything to the garage to make it look like a business and "nothing had been done" to attract customers to the property. They also claimed the city had always interpreted the prohibition against attracting customers to the premises to mean that no business signs were allowed and said the city unfairly singled them out be- cause it allowed other businesses that attracted customers to homes. The court affirmed the board's decision, and the Obers appealed.