Agenda - Planning Commission - 06/02/2016

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Zoning Bulletin April 25, 2016 I Volume 10 I Issue 8 The ZBA ultimately voted to deny the CUP but provided no further reasoning. Savon appealed. A magistrate reversed the decision of the ZBA. The magistrate found that the ZBA's denial of the CUP was "arbitrary, capricious and unreason- able," and "not supported by a preponderance of reliable, probative and substantial evidence." The magistrate found that the ZBA took no issue with Savon's proposed operation of a second-hand store at the premises, but rather was "solely concerned with [Savon's] proposed use of the premises as a retail facility." Thus, the magistrate found that the ZBA's de- cision "was motivated, not by a desire to prevent second-hand merchandise stores from operating upon the premises, but, rather, to prevent further retail establishments from being operated thereon." The magistrate found that was "entirely inconsistent with the commercial nature of [the] property and not supported by law." The Township appealed. The trial court reversed the decision of the magistrate, instead upholding the decision of the ZBA. Savon appealed. DECISION: Judgment of Court of Common Pleas reversed and matter remanded. The Court of Appeals of Ohio, Seventh District, Mahoning County, held that the ZBA's denial of Savon's requested CUP was "arbitrary and capri- cious," as it was "motivated not by a desire to prevent second-hand merchandise stores from operating upon the premises, but rather, to prevent further retail establishments from being operated thereon." The court explained that a board of zoning appeals "cannot deny a conditional use permit merely because that conditional use is no longer desired or that the use is different than the surrounding uses." The court noted that the Township, under its zoning regulations, had approved a second-hand store use as a conditional use. The ZBA then denying the conditional use "merely because the residents did not want it," then amounted to "a rezoning without legislative action," found the court. The ZBA could not deny the CUP on that basis, said the court. Furthermore, indicated the court, the property was zoned commercial, and allowing a second-hand store on the property would therefore not change the essential character of the area. The court concluded that, based upon the record, the preponderance of the reliable, probative, and substantial evidence before the ZBA supported granting Savon a CUP for its proposed second-hand store. See also: Cahill v. Board of Zoning Appeals of City of Dayton, 30 Ohio App. 3d 236, 507 N.E.2d 411 (2d Dist. Montgomery County 1986). See also: Angels for Animals, Inc. v. Beaver Twp. Bd. of Zoning Appeals, 2004-Ohio-7209, 2004 WI 3090174 (Ohio Ct. App. 7th Dist. Mahoning County 2004). Case Note: © 2016 Thomson Reuters 9