Posted by: Patricia Salkin | February 4, 2014

OH Appeals Court Upholds Variance Denial for Massage Studio as a Home Occupation

Margaret Walsh-Cotton (“Walsh-Cotton”), a massage therapist, wanted to establish a home massage studio in an accessory structure where she resided in the City of Dayton, Ohio. The City Zoning Code did not allow accessory buildings to be used for home occupations, and set forth a minimum side setback of three feet. Walsh-Cotton sought to enlarge an existing accessory building on the property which would result in the proposed building being located less than three feet from the side property line. Her application was denied and Walsh-Cotton appealed to the Board of Zoning Appeals (“BZA”).

The BZA granted the area variance but denied the use variance. Walsh-Cotton appealed to the Common Pleas Court (“trial court”) asserting that the BZA made an illegal decision by denying the use variance after voting against its disapproval. The trial court determined that although the board voted 3-1 against the motion and in so doing literally inferred that there was a preponderance of reliable, probative and substantial evidence to make a finding it was clearly contrary to the board members’ intent. It was agreed upon by the board members that the use variance was to be denied. Walsh-Cotton also asserted that the hearing for her application for a use variance was not properly advertised, that the notice failed to indicate the subject matter of the hearing. The trial court determined that the notice did provide all the requirements including the time, place, date and subject matter of the hearing, a setback variance and the request for a use variance. Walsh-Cotton further asserted that the BZA’s decision was illegal because the board used the wrong standard of proof. The trial court determined that the ordinance sets forth a clear and convincing evidence standard of proof that an applicant must satisfy. Finally, Walsh-Cotton asserted that the BZA’s decision denying the use variance was not supported by the preponderance of substantial, reliable and probative evidence. Whether or not Walsh-Cotton satisfied the requirement of whether or not her variance request stemmed from a condition that was unique to her property and not ordinarily found in the same zone or district. The trial court concluded that the decision to deny the request for a use variance was supported by a preponderance of reliable, probative and substantial evidence.

On appeal, Walsh-Cotton first asserted that the trial court erred by not finding that the decision was illegal because a hearing on the request for a use variance was not properly advertised. The notice of hearing only indicated that there would be a hearing on the request for a setback variance, not the use variance. Thus, Walsh-Cotton was not able to adequately prepare. The court agreed with the trial court, in that Walsh-Cotton received appropriate notice of the hearing because it included both the use variance and the “side setback,” and it further indicated the proposed use. Second, it was asserted that the trial court erred by not finding the decision of the BZA, was illegal and/or arbitrary because the BZA voted 3-1 against a motion recommending that the request for a use variance be denied and the BZA in not granting the use variance did deny the use variance; and third, the trial court erred by not finding that the decision was unsupported by the preponderance of substantial, reliable and probative evidence on the whole record.

The ordinance at issue provides that, “ In order to grant a use variance, the BZA shall determine that strict compliance with the terms will result in an unnecessary hardship to the applicant. The applicant must demonstrate such a hardship by clear and convincing evidence, that the variance requested stems from a condition that is unique to the property at issue and not ordinarily found in the same zone or district.”

Here, the court reiterated that the Supreme Court of Ohio has determined that the mere fact that one’s property can be put to a more profitable use does not establish an unnecessary hardship where less profitable alternatives are available within the zoning classification. Further, applicants cannot obtain a variance based upon undue hardship where the applicant purchased the property with knowledge of the zoning restrictions. The Board did not find that strict compliance with Zoning Code would result in unnecessary hardship and that they could not find that the variance stemmed from a condition that was unique to the property at issue and not ordinarily found in the same zone or district.

The court agreed with the trial court that while the BZA “technically” voted against disapproving the use variance, the intention at the hearing to deny the use variance at the conclusion of the 3-1 vote was shown. Further, the BZA expressly declined to find that strict compliance with the zoning code would result in an unnecessary hardship to Walsh-Cotton to warrant a use variance.

Oregon Place Assn. v Walsh-Cotton, 2013 WL 6576769 (OH. App. 12/13/2013)

The opinion can be accessed at: http://www.sconet.state.oh.us/rod/docs/pdf/2/2013/2013-ohio-5461.pdf


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