Posted by: Patricia Salkin | September 4, 2016

OH Appeals Court Holds Township Impermissibly Legislated when it Imposed Deed Restrictions on the Property as a Condition of a Permit

Appellants, Bart Pignatelli and Victoria Schafer, Trustees of the 1290 Preservation Trust Dated 2/10/2010, sought a conditional use permit issued by the Bath BZA in connection with the renovation of a guest house located on the their property in Bath Township, Ohio. The Trustees’ property was comprised of one lot with two residential structures consisting of a main house and the guest house on 4.8 acres. The property was located in the R–2 residential zoning district, which permitted one detached single-family residential dwelling on each lot. Under the zoning classification, a lot must consist of 2.5 acres. The Bath BZA’s concerns included that the guest house would be rented to non-family members or non-employees of the family and that the lot would be split. The Bath BZA voted on and approved the conditional use of the guest house, subject to the placement of several deed restrictions on the property. The Trustees appealed the Bath BZA’s grant of the conditional use permit with deed restrictions to the Summit County Court of Common Pleas. That court affirmed the Bath BZA’s imposition of deed restrictions as “not unlawful, unreasonable or against the manifest weight of the evidence.

On appeal the Trustees argued that the trial court erred in affirming the Bath BZA’s determination because the Bath BZA impermissibly promulgated new law when it conditioned the grant of the conditional use permit upon deed restrictions on the property. The Bath BZA contended that, because the Bath BZA imposed the deed restrictions in an effort to restrict future development of the property, the deed restrictions were permissible to “safeguard the health, safety and welfare of the community in the future.” Despite this, the Bath BZA’s imposed a condition to the permit, that all of the conditions be recorded in deed restrictions to run with the land, was not specifically authorized in the Bath Township zoning resolution. As such, the court held that the Bath BZA improperly created new law when it conditioned the grant of the conditional use permit upon deed restrictions on the property.

Additionally, because the court determined that the Bath BZA acted outside of the authority granted to it under the applicable zoning resolution, the Trustees’ concession to the deed restrictions did not supply the Bath BZA with the legal authority necessary to impose those restrictions. The court therefore reversed, finding it was an error of law for the trial court to affirm the Bath BZA’s grant of the conditional use permit subject to the condition of permanent deed restrictions.

Pignatelli v. Township of Bath, 2016 WL 4649483 (OH App. 9/7/2016)


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