Agenda - Planning Commission - 05/03/2007

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February 15, 20071 Volume 11 No.4 she did not serve notice of her complaiJ."1t properly. Thus, het case was barred from being heard by the court on its merits. To appeal a decision of the board, "personal or abode" service of the complaint was required; Dutko had left all copies of her complaint with the court clerk. Interestingly, despite the court's inability to weigh the merits of her claim, the court did include in its decision language from the statute upon which this case centered that suggested Dutko's claim would have failed. The stat- ute in question provided that the city had to prepare or amend a develop- ment plan at least once .every ten years, and it allowed for amendments to an adopted development plan to be made at the board's discretion. Regardless, due to the procedural filing error, Dutko's claim was dismissed. See also: Vitale v. Zoning Ed. of Appeals of the Town of Montville, 279 Conn. 672, 904 A.2d 182 (2006). Variance - Board denies request to waive setback requirement to allow access to rear apartment Homeowner claims safety of elderly in-law justifies variance Citation: Jones v. City of Cleveland Heights, 2007-0hio-270, 2007 WL 178458 (Ohio Ct. App: 8th Dist. Cuyahoga County 2007) OHIO (01/25/07) - Jones :filed a variance application with the board of zoning appeals in Cleveland Heights. He requested the variance so that he could widen his existing driveway; widening the driveway would create less than the required three-foot setback from the side lot property line. The board conducted a hearing. Jones testified that the primary reason for the request was to provide access to the back of his house, where he had constructed a suite for his elderly mother-in-law. He stated that the proposed construction would enable his mother-in-law - who used a wheelchair - to safely and more easily get in and out of her apartment. Without the variance, she would have to use a walker and walk from her room to the end of the driveway. The board voted against the variance, and Jones sued the board in court. The trial court affirmed the board's decision, and Jones appealed. Decision: Affirmed. On appeal, Jones claimed that he had established sufficient proof of hard- ship to the board, and his request for variance should have been approved. He argued that the trial court had erred when it affirmed the board's decision because the record did not support the board's decision by a "preponderance of the reliable, probative, substantial evidence." However, the appeals court found that nothing in the record that supported Jones' claim. Generally, variances were granted under very limited circumstances. In Ohio, the considerations included, in part, whether: the requested variance was substantial; the property could be used reasonably without a variance; the character of the neighborhood would be altered or adjoining properties would suffer as a result of the variance; the variance would adversely affect the delivery of municipal services; and the situation leading to the variance request could be addressed by any other means. Additionally, in cases such as Jones', the burden was on the party request- ing the variance to show that some inequitable hardship existed. Jones failed to meet this burden. Further, the board determined that he could alleviate his problem without waiving the setback requirement, and the alternative solu- tion was included in the record. 4 34