Allen v. Miami County Board of Zoning Appeals

186 Ohio App. 3d 196, 2010 WL 406088
CourtOhio Court of Appeals
DecidedFebruary 5, 2010
DocketNo. 2009 CA 34
StatusPublished
Cited by5 cases

This text of 186 Ohio App. 3d 196 (Allen v. Miami County Board of Zoning Appeals) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Miami County Board of Zoning Appeals, 186 Ohio App. 3d 196, 2010 WL 406088 (Ohio Ct. App. 2010).

Opinion

Donovan, Presiding Judge.

{¶ 1} Plaintiff-appellant, Josette M. Allen, appeals a judgment of the Miami County Court of Common Pleas that affirmed the decision issued by defendantappellee, the Miami County Board of Zoning Appeals (“BZA”), in which the BZA [198]*198denied appellant residential-zoning permits for three lots of real property that she owns in Miami County.

I

{¶ 2} The relevant history of the property at issue began in 1995 when appellant hired M.L. Oxner, a registered professional surveyor, to survey a 185-acre tract of land in an unincorporated area of Miami County. Pursuant to the survey that Oxner performed, appellant recorded a survey plat with the Miami County Record óf Land Surveys, which divided the property into 16 individual lots.

{¶ 3} On January 5, 1996, David Allen, appellant’s husband, recorded a deed in the Miami County Recorder’s Office in which he transferred the 16 lots to appellant in order to make them “Lots of Record.” The first deed was approved by the Miami County Health Department, the County Engineer, and the County Auditor. Each of the 16 lots was in excess of ten acres and possessed at least 125 feet of road frontage along Horseshoe Bend Road in Miami County. On the same day she recorded the first deed, appellant made a second transfer of all 16 lots of record, this time to herself, as trustee.

{¶ 4} In late 2006, appellant began construction of a bridge and paved roadway that connected all 16 lots of record to Horse Shoe Bend Road.1 Construction was completed in 2007. Appellant applied for and was granted all of the requisite permits from Miami County in order to construct the bridge and roadway that connected all the properties. We note that since 1996, appellant has paid semiannual taxes on each of the 16 lots. Additionally, the record establishes that appellant paid taxes on each property at the residential tax rate in Miami County.

{¶ 5} In 2008, appellant hired Banah Development, L.L.C., to construct homes on three of the 16 lots, specifically lot No. 4, a 12.388-acre tract at 6828 Horseshoe Bend Road; lot No. 11, a 10.264-acre tract at 6756 Horseshoe Bend Road; and lot No. 14, a 10.309-acre tract at 6544 Horseshoe Bend Road. Kirk Schlecty, owner of Banah Development, testified that he met with representatives of the Miami County Zoning Department on numerous occasions regarding construction on the various lots. Schlecty testified that he provided all the necessary Health Department permits and driveway permits to the zoning department. Schlecty further testified that the zoning department informed him that it required no additional permits or other materials in regard to the lots.

[199]*199{¶ 6} Scott Dixon, another representative of appellant, testified that he spoke with Jacob Hoover, Miami County Planning Director, in regard to the grant of zoning permits to construct homes on the three lots. Dixon testified that he specifically asked Hoover at a meeting on December 11, 2008 (David Allen and Schlecty were also present) whether there would be any obstacles that would prevent the issuance of the zoning permits, once the driveway permits were obtained. Dixon testified that Hoover stated that with the exception of a change in state law, there were no existing impediments to the issuance of the zoning permits.

{¶ 7} On December 29, 2008, however, Hoover sent a letter to appellant in which he indicated that the zoning department had denied the requests for zoning permits. The reason provided as the basis for the denial of the zoning permits was that appellant had failed to register the 16 lots of record as a subdivision as required by Ohio law. Hoover further stated that until appellant’s apparent “subdivision” had been approved by the Miami County Planning Commission, the zoning department would not review appellant’s application for zoning permits.

{¶ 8} Appellant appealed the denial of the zoning permits to the BZA. After a hearing held on February 19, 2008, the BZA affirmed Hoover’s decision to deny the zoning permits. Appellant subsequently appealed the decision of the BZA to the Miami County Court of Common Pleas. In a judgment entry filed on July 27, 2009, the trial court affirmed the decision of the BZA denying the issuance of the zoning permits. Appellant filed a timely notice of appeal from the decision of the trial court on September 4, 2009.

II

{¶ 9} Appellant’s first assignment of error is as follows:

{¶ 10} “The trial court erred by upholding the BZA’s decision because the zoning department lacked authority to deny zoning permits based on subdivision regulations.”

{¶ 11} In her first assignment,- appellant contends that the trial court erred when it affirmed the BZA’s decision because the zoning department did not have the statutory authority to deny the zoning permits based on an alleged violation of the subdivision regulations. Appellant argues that she had complied with every applicable zoning regulation in order to obtain the appropriate zoning permits. Appellant asserts that the question of whether the properties in question qualify as a subdivision should be left to the planning commission, whose job it is to enforce the subdivision regulations, not the zoning department, whose job it is to enforce the zoning regulations.

[200]*200{¶ 12} In its merit brief, the BZA concedes that “neither the Miami County-Zoning Resolution nor the [Ohio] Revised Code grants the BZA, the Planning Director or the Zoning Inspector the authority to enforce the Miami County Subdivision Resolution.” The BZA, however, argues that when Hoover denied appellant the zoning permits, he was not trying to enforce the subdivision regulations. Rather, the BZA asserts that Hoover was merely enforcing zoning resolution Section 20.02(H), which states:

{¶ 13} “The Planning Director or authorized representative shall stamp ‘approved’ upon acceptance of the site plan for review, may waive certain requirements where information is deemed unnecessary and may require additional information not made referenced herein which may be necessary for proper review.” (Emphasis added.)

{¶ 14} The BZA interprets this section of the zoning regulations to allow the planning director to refuse to issue a zoning permit when an applicant has failed to provide evidence of compliance with other land-use regulations. Specifically, the BZA argues that pursuant to Section 20.02(H) of the zoning regulations, Hoover possessed the authority to deny zoning permits based on appellant’s failure to comply with the subdivision regulations.

{¶ 15} As we stated in BP Oil Co. v. Dayton Bd. of Zoning Appeals (1996), 109 Ohio App.3d 423, 432, 672 N.E.2d 256:

{¶ 16} “Ohio law is clear that in interpreting a zoning ordinance courts must strictly construe restrictions on the use of real property in favor of the property owner. Liberty Sav. Bank v. Kettering (1995), 101 Ohio App.3d 446, 655 N.E.2d 1322; Rotellini v. W. Carrollton Bd. of Zoning Appeals (1989), 64 Ohio App.3d 17, 580 N.E.2d 500; State ex rel. Moore Oil Co. v. Dauben (1919), 99 Ohio St. 406, 124 N.E.

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Cite This Page — Counsel Stack

Bluebook (online)
186 Ohio App. 3d 196, 2010 WL 406088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-miami-county-board-of-zoning-appeals-ohioctapp-2010.