Agenda - Planning Commission - 10/05/2006

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Page 6 - September 10,2006 Z.B. (' erty was SlJbject to the regulations of the new code. Boisvert appealed the decision to the zoning board of appeals (ZBA). Boisvert claimed that he had relied on the assurances made by the two town officials that he had six months from the issuance of the building permit to begin construc- tion. The Z.BA voted to overturn the decision revoking the building permit, and granted Boisvert a variance from the conservation district provision. Thomas appealed the ZBA's decisions to court, and both decisions were reversed. . Boisvert appealed. DECISION: Affinned in part Boisvert argued that the trial court: 1) failed to apply the appropriate stan- dard of review; 2) substituted its decision for that of the,ZBA; and 3) erred by concluding that Thomas had standing to petition the ZBA for a rehearing. The issue of standing was determined on a case-by-case basis under which the court could consider a variety of factors, including: the proximity of the challenging party's property to the proposed development site, the nature of the change proposed, and the immediacy of the impending damage. Based on this Standard, Thomas had standing to appeal the ZBA's decision. The appeals court dismissed Boisvert' sargument that the town officials misled him. The court found that there was nothing in the record that indicated that either official knew of the actual expiration date of the permit, and their statements were not made to induce reliance. The court also ruled that to support the grant of a variance, the requesting party must demonstrate that the ordinance created a hardship by showing that: 1) the provision unduly restricted the use of the property; and 2) no substantial relationship existed between the purpose of the provision and the restriction on the property. Additionally, the granting of the variance could not injure the rights of neighboring landowners. The ZBA made no specific fmdings of fact, and there was evidence that indicated that the grant of the variance was based on the belief that the other chums in Boisvert's appeal were valid. But, since his claims had failed, the question of the variance was sent back to the lower court for further review. Restrictive Covenants - Property deed only allows development of five single-family residences Developer seeks to overturn covenant, build nine new homes Citation: MIW Enterprises Inc. v. Laing, Court of Appeals of Ohio, 2nd App. Dist., Montgomery County, No. 21253 (2006) , . OHIO (08/04/06) - In 1950, Mead establishedWingmead Farm, a 300-acre residential and working farm. In 1985, 30 acres of the farm were conveyed by deed to Fender with covenants restricting the use of the property to protect 82 @ 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. (" , ,