Posted by: Patricia Salkin | February 5, 2016

OH Appeals Court Upholds Granting of Conditional Use Permit to Operate a Kennel for Dogs and Cats in Agricultural District

Timothy and Susan Kristjanson filed an application with the BZA requesting a conditional use permit to operate a kennel for dogs and cats on their 9.775–acre property, which was zoned as an Agricultural District. The application was denied by a zoning official for the BZA on the ground a kennel is a conditional use under the Union Township Zoning Regulation. Although the Kristjansons did not appeal the denial of their application, the BZA held a hearing on the application. Plaintiffs-appellants, Thomas and Melissa Queen, appealed the decision of the Fayette County Court of Common Pleas affirming the decision of defendant-appellee, the Union Township Board of Zoning Appeals (BZA), granting an application for a conditional use permit.

Appellants first argued the BZA erred in believing it had no authority to deny the Kristjansons’ application for a conditional use permit. However, the Zoning Resolution provided that the BZA “may grant conditional approval for use of the land,” and thus plainly stated that the granting of a conditional use permit is discretionary and not mandatory. Appellants next argued the common pleas court erred in affirming the BZA’s decision because the BZA “failed to make any findings, oral or written, that it considered all the requirements for conditional uses set forth in the zoning resolution.” Here, Section 9.03 of the Zoning Resolution, which governed standards for conditional uses, did not require the BZA to make specific or express findings as a prerequisite to granting a conditional use permit. Moreover, in its decision affirming the grant of the conditional use permit, the common pleas court found that the BZA’s findings pursuant to Section 9.03 were “implicit in its decision to grant the conditional use permit with supplemental conditions.”

Lastly, appellants argued that the BZA’s decision to grant the conditional use permit was not supported by the preponderance of reliable, probative, and substantial evidence because the BZA failed to consider and address the six factors in Section 9.03. The court found that there was ample evidence in the transcript and the minutes of the June 17, 2014 hearing, to show the BZA considered: Mrs. Kristjanson’s testimony with regard to her proposal for a kennel, the concerns raised by the area residents about the kennel, and evidence relating to the applicable factors listed in Section 9.03. Even though the BZA did not explicitly address each of the factors listed in Section 9.03, it clearly considered and addressed them in its general discussion of the merits of the application and in prescribing specific additional conditions on the conditional use permit granted to the Kristjansons. Accordingly, the court found that the common pleas court did not err in affirming the decision of the BZA to grant the Kristjansons’ application for a conditional use permit.

Queen v Union Townships Board of Zoning Appeals, 2016 WL 228268 (OH App. 1/19/2016)

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