Posted by: Patricia Salkin | August 5, 2016

OH Appeals Court Upholds Issuance of Building Permit for Swimming Pool

In July 2013, the Romaninis applied for and were issued a building permit to install a pool in the rear yard of their property in Highland Heights, Ohio. After construction was under way, the City’s building commissioner advised the Romaninis that a separate permit was required for the deck. Mr. Romanini then submitted a separate permit application for the pool deck, which was then issued by the City. Following issuance of the permit, a letter was written to Mr. Romanini by the building commissioner, which referenced a conversation informing Mr. Romanini that the deck was in violation of Highland Heights Codified Ordinance (“HHCO”) 1123.18(c) and stated the letter was “to confirm that you have agreed to remove the deck.” Despite this, the City never specifically mandated that the deck be torn down, and after the letter was issued, the Romaninis were advised that construction of the deck could proceed. The City never revoked or rescinded the permit, and construction of the pool deck was completed.

Appellants, who were residents in the neighboring area, appealed the issuance of the building permit for the pool deck. Appellants maintained that the deck was not in compliance with HHCO 1123.18(c), which imposes a minimum rear setback of 40 feet for certain ground features, including a “platform” or a “deck.” The Highland Heights Planning and Zoning Commission denied appellants’ appeal and upheld the issuance of the permit. The BZA then denied the appeal and reaffirmed the issuance of the permit. Appellants then filed an appeal in the Cuyahoga County Court of Common Pleas, which again affirmed the issuance of the permit.

The court found that when read as a whole and construed together, the swimming pool ordinances allowed for a pool deck as part of a swimming pool subject to the ten-foot setback of HHCO 1319 .05; because the deck would not exist without the pool, the court found that it would be illogical to read the ordinances as allowing a pool to be ten feet from the rear property line, while requiring an incidental deck providing safe access to a pool to be a minimum of 40 feet from the rear property line. Thus, the court held that the lower court did not err in its application or interpretation of the law or that its decision is unsupported by the preponderance of substantial, reliable, and probative evidence as a matter of law.

Mackat v Romani, 2016 WL 4141797 (OH App. 8/4/2016)

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