Spencer v. Board of Zoning Appeals

170 N.E.2d 870, 85 Ohio Law. Abs. 361, 13 Ohio Op. 2d 467, 1959 Ohio Misc. LEXIS 259

• Court: Stark County Court of Common Pleas
• Decided: October 30, 1959
• Docket: No. 101168
• Status: Published

Opinion

Rossetti, J.

Tbe plaintiff, Loretta B. Spencer, seeks tc reverse tbe decision of tbe Perry Township Zoning Board oí Appeals, wherein she was denied a certificate to use tbe breeze way between tbe garage of her home and tbe residence as e beauty studio or parlor.

Tbe evidence discloses that plaintiff started a course in i beauty school in July, 1958, which continued for approximate!} nine (9) months. She required a total of 1250 hours of schooling and upon completion of tbe course, to take an examination giver by tbe State Board of Cosmetology. She passed her examination and was licensed to practice her profession in Ohio.

Tbe plaintiff lives at 223 Whipple Road, Northwest, Canton, Ohio, which is a very heavily travelled highway. There are a number of business places between Tuscarawas Avenue and 12th Street, Northwest, on Whipple Road; the Fisher Fooc Store is on the corner of West Tuscarawas Avenue and Whipple Road; a jewelry store in a former residence, which is being torr down; a dairy store; a barber shop; a dry cleaning establishment; a church and parking lot on the corner of Second anc Whipple Road, Northwest; also a site for a future church in the 400 block on Whipple Road; a large grocery store on the easi side of Whipple Road in the 400 block; and various other business establishments from Fourth Street to Twelfth Street Northwest.

The question arises in this case whether the Perry Town-hip Board of Zoning Appeals should have allowed a permit by xercising the power granted the Board under the section per-aining to ‘variance.’

Section 18 of the Perry Township Zoning Begulations pro-ides in part as follows:

“The Township Board of Zoning Appeals shall have the ollowing powers:

“2. To authorize, upon appeal, in specific cases, such vari-.nce from the terms of the zoning resolution as will not be ontrary to the public interest, where, owing to special condi-ions, a literal enforcement of the provisions of the resolution vill result in unnecessary hardship, and so that the spirit of he resolution shall be observed and substantial justice done.”

Therefore, the Board may take into consideration whether o authorize a ‘variance’ even though the plaintiff had not ipplied for such a ‘variance.’

This Court does not believe it was necessary for the plain-iff to file an application requesting a ‘variance.’ Bather, the joning Board of Appeals had the power granted to it and such i matter and all other matters could have and should have >een considered at the time of the hearing.

What can a Board take into consideration in determining vhether to grant a ‘variance’? It would seem to this Court that he following matters should be considered.

1. Character of the neighborhood.

2. Effect on other property.

3. Alter the character of the locality.

4. Objections from'property owners.

5. Whether neighborhood is exclusively residential when soning regulations became effective.

6. Unique circumstances of applicant.

7. Is public interest, safety, health and welfare involved.

There can be no question but what the character of the neighborhood has substantially changed, especially in recent years. No one will dispute that there has been a considerable change on Whipple Boad, Northwest, between Tuscarawas Avenue and Twelfth Street, Northwest. There has been a tremendous increase of traffic; many new homes have been built and many commercial businesses have been establishe in recent years and, in general, the Whipple Eoad area has bee built up.

It certainly cannot be contended that the neighborhood i exclusively residential at the time the zoning regulations b£ came effective. With the increase of population and with th rural areas being built up surrounding the City of Canton, o necessity, quite a few business places must be established i order to meet the needs of the residents of such area. Th facts disclose that there have been businesses established o: Whipple Eoad in recent years from Tuscarawas Avenue t Twelfth Street, Northwest.

The operation of a beauty salon at this location, in th opinion of this Court, would not alter the character of th neighborhood, nor would it have any effect on other propertie in the area.

In the first place, the beauty salon will be operated in th plaintiff’s breeze-way. There will be no commercial iron to the property, and the physical appearance of appellant’ residence will not change at all. Certainly, there will be n parking problem, as it will be unlikely that the plaintiff wil have more than one customer at a time in the beauty salon. Th parking, in all probability, will be on the side street of appel lant’s residence.

There is not one bit of evidence that anyone voiced an; objections to the granting of a permit to the plaintiff. How ever, it was pointed out that some of the neighbors approve< of the granting of such a permit.

The circumstances surrounding the applicant should als< be taken into consideration. We find that she started to tak< this course prior to the effective date of the zoning regulations She put in considerable hours to prepare herself for such ai occupation, then passed the examination and was given th< license. Perhaps there are other circumstances which woulc require the applicant to conduct such an occupation at he] residence.

In recent years there has been an increasing number o: beauty parlors conducted from a person’s home. No douh there are circumstances causing this change which should b( aken into consideration by a Board of Zoning Appeals. No ioubt a check of this community would result in a disclosure hat there are quite a number of beauty parlors conducted in )ersons homes and residences.

The zoning regulations will permit customary home occu->ation for gain carried on in the residence under certain con-litions.

Is it a home occupation? The word ‘occupation’ is most ¡omprehensive. It may embrace all gainful activities, profes-ional or business, and whether pursued as an employee or em-fioyer.

There is substantial evidence that a beauty salon may be i home occupation. The Small Business Administration of the Jnited States Department of Commerce in dealing with ‘home msinesses,’ includes ‘beauty parlors’ among them.

There are, many, many home occupations, and in my opinion i ‘beauty parlor’ is a home occupation.

It is contended by defendant that the plaintiff will require special equipment, such as dryers, sinks, chairs and so forth, [t is to be observed that a physician or dentist also must have special equipment. I do not feel that the question of ‘equip-nent’ should be a factor in the determination of this question.

Finally, there is no evidence that it would be ‘contrary to ;he public interest, safety, health and welfare,’ to grant a permit in this case. As a matter of fact, it would seem to me it would be beneficial to the residents to have a beauty parlor learby and, further, it wouldn’t be necessary to travel a great listance, and it wouldn’t be necessary to cope with the traffic problem as it exists today.

Ordinarily, the matter as to whether a ‘variance’ should 3r should not be authorized in a specific case by a Township Board of Zoning Appeals is a matter within the sound discretion of such Board.

In my opinion, the plaintiff’s application for a zoning certificate should have been approved by the Board of Zoning Appeals, and the decision of the Board of Zoning Appeals in refusing to approve it to that extent is unreasonable and is reversed. The cause is remanded to the Board of Zoning Appeals for further proceedings in accordance with this opinion.

Plaintiff prepare entry.