Posted by: Patricia Salkin | June 30, 2011

Ohio Appeals Court Holds Zoning Board Improperly Applied Their Own Standards of Morality and Appropriateness Regarding Permit Application for Adult Entertainment Club

The defendant, City of Athens Board of Zoning Appeals (Board) appealed a trial court’s ruling overturning the Board’s denial of Three Wide Entertainment’s (TWE) permit applications.  TWE filed several permit applications to open and operate an adult entertainment club.  In accordance with The City of Athens Zoning Code found in Title 23 of the Athens City Code, the office of zoning administrator exists to determine whether a proposed use of property is a principal permitted use.  After the zoning administrator denied TWE the proper permits, TWE appealed to the Board as allowed under the Athens City Code.  The Board affirmed the zoning administrator’s decision by a vote of 5-0.  After hearing TWE’s appeal, the trial court entered a judgment that did not demand the Board approve TWE’s permit applications, but rather returned the parties “to the starting point.” 

The property TWE wished to use for their business was located in a B-3 Zone, which is the second least restrictive zone behind the industrial zone.  According to the Athens City Code, a B-3 Zone allowed for entertainment night clubs, theaters, and similar enterprises as a principal permitted use.  Athens City Code 23.04.07(A)(12) also permitted B-3 Zones to include “Other uses, any other use which is determined by the Board to be of the same general character as the above permitted uses.”  Under the Athens City Code, the Board’s review was limited to deciding whether the proposed use was a principal permitted use.  The Board was not allowed to use their own judgment on whether or not an adult enterprise in the city was moral or appropriate.  According to the city code, the Board was only allowed to judge whether TWE’s proposal fell under the definition of a B-3 Zone. 

The Court of Appeals of Ohio affirmed the trial court’s decision to overturn the Board’s denial of TWE’s permit applications because they did not use the proper legal standards when making their decision.  Both courts found that the Board did not fully understand their roles and instead applied their own standards of morals and community appropriateness.  The trial court noted that moral and community appropriateness were concerns to be addressed by legislation of the city council, not the Board. 

Three Wide Entertainment v. City of Athens Board of Zoning Appeals, 2011 WL 1878743 (Ohio App. 4 Dist. 5/10/2011) 

The opinion can be accessed at: http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2011/2011-ohio-2304.pdf


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