Agenda - Planning Commission - 05/04/2006

Home

Page 4--April 10, 2006 right common to the general public. Public nuisances include interference with both public health and public morals. The city concluded that live sex act clubs would contribute to the spread of sexually transmitted diseases and were contrary to public morals..That the poten- tial spread of sexually transmitted diseases was a matter of substantial public concern was highlighted by the fact that Guys & Dolls had 7,000 members. Under the circumstances, even without addressing public morality, Mutschler's business clearly fell within the type of conduct that could legally be abated as a public health hazard. Thus, he had no right to compensation. see also: Recreational Developments of Phoenix Inc. v. City of Phoenix, 220 ESupp. 2d 1054 (2002). see alsoJ Lingle v. Chevron U.S.A. Inc., 125 &Ct. 2074 (2005). Variance -- Homeowner appeals ruling requiring him to move fence Claims denial of variance causes hardship Citation: Gonda v. Austintown Township Board of Zoning Appeals, Court of Appeals of Ohio, 7th App. Dist., No. 05 MA 14 (2006) OHIO (02708/06) -- Gonda lived in Austintown Township at the. intersection of two streets. In 2002, without obtaining a permit or zoning variance, he put a fence .,around his property. The township's zoning ordinances allowed fences around -comer lots, but they could not be over three feet h/gh unless they were set back from the road by 20 feet. Gonda's fence did not meet these requirements. In Septembe? 2002, the township notified Gonda of the violation and asked him to bring his property into compliance. In October 2002, Oonda applied to the board of zoning appeals for variance, asking to be allowed to leave the fence as it was constructed, but his request was denied. Gonda appealed the board's decision, and asked that he be able to 'intro- duce evidence showing that moving the fence would cause him hardship and practical difficulty. Because it was not created until after the initial hearing, the board refused to allow Gonda to introduce the evidence of hardship. The trial court ultimately sided with the board, and alfa'meal its decision to deny Gonda variance. Gonda appealed, arguing that the trial court erred when it did not allow him to introduce the additional evidence. In response, the board did not refute Gonda's ability to introduce new evidence, but stated that the evidence that he wanted to offer on appeal was improper since it had not been offered during the initial heating process. DECISION: Judgment reversed; case sent back to trial court- While the trial court was required in its review to examine whether the board's action was "unconstitutional, illegal, arbitrary, capricious, unreason- able, or unsupported by the preponderance of substantial ... evidence," the 56 © 2006 Quinlan Publis,lng Group. Any reproduction is prohibited. For mere information please call (617) 542-0048.