Agenda - Planning Commission - 11/07/1996

Home

Z.B. September ~[5, 1996 -- Page 5 Rezoning Permit applicant tries to beat board on a technicality Mishr v. Board of Zoning Appeals of Village of Poland, 667 N.E.2d 365 (Ohio) ]996 The village of Poland, Ohio, had a comprehensive zoning ordinance that governed land use in the whole village. Mishr's property was in the professional office and service district. He asked the Village Council to rezone 'the land so it would be in the village center commercial district. The council adopted an ordinance that rezoned Mishr's property. Eight months later, the council adopted another ordinance to repeal the rezoning. However, the new ordinance did not state that the property was to once again become part of the professional office and service district. A little more than a year-and-a-half later, Mishr applied for a permit to build a professional and retail center. In the part of the application form that asked for the property's zoning district, Mishr wrote "Un,zoned District." The village zoning administrator wrote Mishr, saying the permit was de- nied and the property was in the professional office and service district -- it was not anzoned. Mishr appealed to the village Board of Zoning Appeals. He relied on a law that stated bylaws and ordinances could not be revived or amended "un- less the new bylaw or ordinance contains the entire bylaw, ... ordinance, or section revived or amended, and the bylaw, ordinance, or section so amended shall be repealed." Under the statute, said Mishr, the property did not return to its old zoning because the ordinance that repealed his rezoning didn't spe- cifically say it would. Since the newest ordinance also took the property out of the village center commercial district, Mishr concluded the land was unzoned. The board denied Mishr's appeal, finding the property was in the profes- sional office and service district. Mishr appealed to court. Based on the Village Council's failure to follow the statutory procedures in repealing the rezoning, the court ordered the board to issue Mishr the permit. The board appealed, and the appeals court affirmed. The court found the village had a statutory duty to state specifically that the property would return to its original zoning. The village had no choice but to fulfill that duty. Ab- sent doing so, the property became unzoned. The board appealed to the state Supreme Courts DECISION: Reversed. The appeals court improperly determined that the property was unzoned. Its decision would "yield an absurd result," so it was reversed. The board's decision was reinstated. To the court it was clear the Village Council intended to return the prop- erty to the professional office and service district. The council's failure to follow a technical requirement should not frustrate its comprehensive zoning plan. When an area was covered by comprehensive zoning, courts had to try