Agenda - Planning Commission - 08/07/2014

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May 10, 2014 I Volume 8 I Issue 9 Zoning Bulletin whether it was a permitted accessory use incidental to the peiiiiitted opera- tion of a dog kennel. The case involved the categorization and interpreta- tion of permitted and conditioned uses under town zoning regulations. The Background/Facts: Michael and Janet Artz (the "Artzs") owned two adjoining properties in Elizabeth Township (the "Township"). The Artzs resided on one of the properties, and on the other 11-acre property, which was in an agricultural district, they operated a dog kennel pursuant to a conditional use permit. The Artzs sought to also operate an animal crematorium on the 11-acre property. The Artzs noted that agricultural uses were exempt from Township Zoning Resolution (the "Resolution"), and that Ohio statutory law (R.C. § 519.21) limited the authority of the Board of Township's Trustees to regulate agricultural uses to lots of less than five acres. The Artzs argued that the proposed animal crematorium was an agricultural use exempt from regulation. The Artzs asserted that the "use of the property as a kennel [was] clearly . . . an agricultural use," and that it was therefore "logical and acceptable that the erection and use of an animal crematoriurn in conjunction with the kennel [was] an agricultural use and categorized under animal husbandry." The Township's Zoning Inspector disagreed. He determined that an animal crematorium did not fit under the definition of "Animal Husband- ry" —which was defined as the agricultural practice of breeding and rais- ing livestock —but rather fell under "Cemetery" —which included the disposing of deceased animals or humans. Since the Resolution required a cemetery to be on a site of "not less than forty (40) acres," the Zoning Inspector concluded that the Artzs would not be allowed to build their animal crematorium in the Township. The Artzs filed a declaratory judgment action in court, asking the court to determine if they were required to obtain a conditional use permit or a zoning certificate in order to erect and operate the animal crematorium. They asserted the same arguments as they had made to the Zoning Inspector. They also argued that an animal crematorium should be permit- ted in the agricultural district because there was nothing in the Zoning Resolution that expressly prohibited it. The court deteiiuined that a "crematory is no more ancillary to the operation of a kennel than it would be to the operation of a hospital, or even a motel." As such, the court concluded that the Artzs "failed to dem- onstrate that the operation of a crematory for animals was an agricultural use exempt from the Township's zoning authority." The Artzs had also argued that the operation of an animal crematoriurn did not fall within the definition of a cemetery, and therefore they did not have to apply for a conditional use permit. The court said that if an animal crematory was not listed as a potential conditional use, then it could only be operated if it fell within a "Permitted Principal Uses" for the agricul- tural district. However, the court found animal crematory was not listed as a principal permitted use in the agricultural district. Thus, concluded the court, if the proposed animal crematory did not fall within the opera- 10 ©2014 Thomson Reuters