Agenda - Planning Commission - 11/03/2005

Home

Page 4 -- October 10, 2005 Kitras sued the town, arguing an easement existed by necessity and that the commissioner accidentally omitted it when the land was divided. The court dismissed tlSe case, finding any easement would burden tribal lands and could not be adjudicated fairly by the court. Both parties appealed. DECISION: Reversed and returned, to the lower court. The case could be adjudicated, but the fact that certain lots were land- locked 'as a result of partition was not the definitive measure of intent. Necessity alone did not create an easement. In addition, there was no pub- lic policy favoring the creation of implied easements when needed to render land either accessible or productive. -. The contemporaneous plot map showed the vast majority of lots' had no frontage or obvious access to or from any public amenity. Also, the difficulty of routing easements from the corrmxon lands to public roads without traversing private lands was problematic. Finally, at the time it was divided, the land was hq poor quality. With the evident problems, the commissioner's failure t.o provide explicitly for easements could have been interpreted as a deliberate choice. Consequently, necessity alone did not prove an easement existed. see also: M. RM. Builders LLC v. Dwyer, 809 N.£.2d 1053 (2004).. see also: Bed~fbrd v. Ceras~tolo, 818 XE. 2d 561 (2004). Comprehensive Plan -- City denies permit based on comprehensive plan Plan never farmally added to zoning code Citation: Gross Builders v. City of Taltmadge, Cottrt of Appeals of Ohio, 9th App. Dist., Summit County, No. 22484 (2005) OHIO (08/17/05) -- Gross Builders £ded an application with the city of Tallmadge for a conditional use permit fora planned unit development in a residential district. After a hearing, the city council denied Gross Builders' application. It'found that the application did not conform with the city's comprehensive plan. Gross Builders sued, arguing the comprehensive plan had never been in- corporated into the zoning code. The court ruled in its favor. .. The city appealed, arguing Gross Builders was not entitled to a permit.' DECISION: Affirmed, The council's decision was clearly unsupported by substantial and reliable evidence. The council had no legal authority to deny Gross Builders' application based on its alleged lack of compliance with its comprehensive plan because- the plan was not incorporated into the city's zoning code. Under the zoning code as it stood, Gross Builders. clearly submitted a valid application for a 172 © 2005 Quinlan Publishing Group. Any reproduction is prohibited. For more:information please call (617) 542-0048,