Agenda - Planning Commission - 05/04/2006

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Page2--Apri125,2006 Conditional Use Permit-- Neighboring property owner appeals use of land as campgroUnd Campground was not valid conditional use in residential zoning district Citation: Genovese v. Beckharn, Court of Appeals of Ohio, 9th Appellate District, No. C.A. 22814 (2006) O[-[[O (03/15/06) -- The Akron Yacht Club (club) leased a parcel of land on which it operated a campground, boat docks, and a clubhouse. The property was located in an R-1 residential zoning district, and its use of the property was not allowed under the Coventry Township Zoning Resolution. The club previ- ously had been granted conditional use permits to operate the facility. On March 22, 2004, the club applied for a co.ntinuation of its conditional use permit and a public hearing was scheduled. At the hearing, Genovese, a nearby property owner, objected to the continuation of the permit on the grounds that the campground produced excessive noise. The Board of Zoning Appeals (board) granted the continuation of the spe- cial permit over Genovese's objections. Genovese fried suit, arguing that the zoning resolution listed six conditionally permitted uses for which a conditional use permit could be =m-anted in an R-1 residential zoning district, and a camp- ground was not one of those uses. The court ruled in the board's favor. Genovese appealed, arguing that the Board abused its discretion and the ·--ial court erred in its application of the law. DECISION: Reversed. The appeals court ruled that the board abused its discretion. In this case, the zoning resolution specifically identified six "condidonally permit- ted uses" for an R-1 residential district. The uses included: publicly owned and operated facilities (police stations, town hall, etc.); schools; churches and houses of worship; golf courses and country clubs; accessory structures; and alcohol, drag, and mental-health =eatment facilities. The resolution did not specify campgrounds or yacht clubs. The resolution further stated that uses that were not specified in the regLtlation were prohibited unless the resolution was amended to include them. In its decision, the appeals court cited a statute that stated that zoning boards did not have the authority to grant conditional use permits independent of the zoning resolution; they only had the authority to grant conditional use permits as specifically authorized by the zoning resolution. The court also found that the lower court had erred by not conducting an analysis of Ohio law or of the zoning resolution, and that it had merely made a statement that the board did not violate any statutory provisions. The granting of the continuation of the conditional use permit was clearly an error that resulted from an abuse of the board's discretion. see also: Ge~eny v. Richfield Township, 405 N.E. 2d 1034 (1980). 62 © 2008 Quinlan Publishing Group. Any reproduction is pmniozted. For more information please call (617) 542-0048.