Agenda - Planning Commission - 11/03/2016

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i Zoning Bulletin September 25, 2016 1 Volume 10 1 Issue 18 Douglas resided in Wisconsin.James resided on the property.Charles lived on the property until 2005 when a physical disability(quadriplegia)forced him to leave. Charles later sought to build a handicap-accessible house on the prop- erty for himself. Charles filed an action to partition the property. While that action was pending, Charles applied to the City's Board of Zoning Appeals (the"Board")for an area variance. Under a proposed partitioning of the prop- erty, Charles would receive a lot with 231.55 feet of frontage and the zoning regulations required lots in the residential zoning district to have 250 feet of frontage. James opposed Charles' area variance request. James contended the parti- tion would cause him to lose part of his driveway and affect his ability to get to his barn. James favored selling the property as a whole, with Charles buy- ing it. The Board conditionally granted Charles' area variance, with the variance effective only if the partitioning action was to result in a lot split as specifi- cally identified on Charles'application. James appealed the Board's decision to grant the area variance to Charles. The Common Pleas court affirmed the Board's decision. James again appealed.Among other things, James argued that the granting of the conditional variance as to frontage was in error because it would influ- ence the trial court's decision in the partition action. James also argued that the grant of the variance was in error because Charles'Application was not in "proper form" since it did not provide the name of all owners of the property (it provided only Charles' name and not the names of James or Douglas). James argued that the area variance application required the consent of all of the cotenants of the property. DECISION:Affirmed. The Court of Appeals of Ohio, Eleventh District, Portage County, found that the Board properly granted the requested variance. Citing the applicable City ordinance,the court explained that in order to be entitled to a variance,Charles had to demonstrate that"practical difficulties in the use of the property will exist if the property is subject to the zoning regulations."The court noted that the City ordinance required the Board to consider and weigh certain factors in determining whether Charles would encounter practical difficulties in the use of the property.The court found that those factors were met. More specifically, the court found: "a variance of 18.45 feet when compared to the 250-foot frontage requirement is relatively minor and not substantial;" that there was "no compelling evidence that the variance would affect the character of the neighborhood;" and assuming the property was portioned,apart from using the property for some nonresidential j purpose,no feasible alternative to granting the variance was proposed. Addressing James'argument,in reaching its decision,the court held that al- though the granting of the conditional variance as to frontage would influence the trial court's decision in the partition action, the Board's grant of the vari- ance was proper. The court noted that what the trial court chose to do in the partition action was "not strictly relevant to whether the denial of an 18.45- foot variance in the frontage requirements would cause Charles practical dif- ficulties in the use of his property." ©2016 Thomson Reuters 5 r 4