A charter school for high school students applied to the city for a special use permit to build a new school facility on an undeveloped 4.1 acre parcel. The proposed site is zoned for “office commercial” use, not for residential, and schools are permitted only subject to special use permit. The school submitted the permit application to the Toledo Plan Commission, whose staff report concluded that “The Toledo 20/20 Comprehensive Plan designates this area for regional and general commercial uses and noted that some office and multi-family uses may also be interspersed in areas with this designation. Schools are typically sited in areas designated for residential uses, rather than commercial uses, so the special use permit is not consistent with the Toledo 20/20 Plan.” The City’s Department of Development objected to issuing the permit finding that the site was more suitable for housing or the extension of the existing office complex, and that there were several vacant sites more suitable for a school. Despite these recommendations, following a public hearing the Toledo Plan Commission recommended that the City Council approve the special use permit subject to 34 conditions. The City Council’s Zoning and Planning Committee, following a hearing, recommended that the request be denied. The City Council subsequently denied the request and the school appealed. The trial court reversed the decision of the City Council and ordered that the permit be granted subject to the 34 conditions recommended by the Plan Commission.
In the granting of a special use permit, the city ordinance required the Council to determine whether the proposed use is consistent with the comprehensive plan and the impact of the proposed use on property values in the neighborhood. The Appeals Court concluded that the trial court’s determination that the proposed use was consistent with the comprehensive plan was not supported by a preponderance of reliable, probative and substantial evidence in the record, and that the trial court abused its discretion by failing to provide proper deference to the city’s administrative expertise. With respect to the second element, many property owners testified that they believed the value of their property would be negatively impacted by the proposed use. The Court noted that while in Ohio, the owner-opinion rule recognizes that owners of real or personal property are competent to testify as to their opinion of the fair market value of their property without qualifying them as experts, such rule does not extend to allow owners to testify as to future market values. However, the Court noted other competent evidence in the record demonstrating negative impacts on property values. Therefore, the Appeals Court reversed the order of the trial court and upheld the City Council’s denial of the special use permit.
Glass City Academy, Inc. v. City of Toledo, 2008 WL 5147988 (Ohio App. 6 Dist. 12/5/2008).
The opinion can be accessed at: http://www.sconet.state.oh.us/rod/docs/pdf/6/2008/2008-ohio-6391.pdf
