Agenda - Planning Commission - 10/06/2016

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Zoning Bulletin August 25, 2016 Volume 10 Issue 16 Ultimately,the Board granted the CUP but denied the variance. Manda filed an appeal. Manda pointed to the undisputed fact that the CUP application as submitted was defective and not in compliance with the Township's zoning regulations: the applica- tion did not list Brendel Corporation as the property owner or contain written approval of Brendel Corporation as the property owner, and Verizon was not the owner of the property as stated in the application. Manda argued that the Board therefore lacked jurisdiction to consider the CUP application as submitted. Manda further argued that the notice of the hearing on the application was defective because it failed to identify Brendel Corporation as the property owner. The trial court affirmed the Board's decision. Manda again appealed. DECISION: Affirmed. The Court of Appeal of Ohio first held that the Board did have jurisdiction to consider the CUP application. In rejecting Manda's argument that the Board did not have jurisdiction because the CUP application was not in compliance with zoning regulations, the court explained: "Despite the mandatory language of the [zoning] resolution, requiring that certain information be provided in a no- tice of appeal, the resolution does not make inclusion of such in- formation jurisdictional as to BZA." Applying a "prejudicial er- ror" standard of review, the court found that "appellants were not prejudiced by the defective notice of appeal, as all parties clearly understood the piece of property under consideration. ." The court found there were facts that relieved the prejudice caused by the errors in the defective application: Brendel Corporation was present at the hearing on the application and was presented to the Board as the owner of the property. The court found that presence "implied consent to the [CUP] application."Accordingly,because the defect in the application did not affect the "substantial rights" of Manda, the complaining party, the court concluded that the Board's decision was not reversible based on the defect. Similarly, the court found that the failure to list the Brendel Corporation as the property owner in the notice of the hearing on the application was not a defect that prejudiced Manda. Rather, all parties understood the nature of the proceedings, the scope of the CUP and the parcel of property involved, found the court. The no- tice was timely published in a newspaper of general circulation, and Manda attended the hearing and had the opportunity to speak. ©2016 Thomson Reuters 7