Posted by: Patricia Salkin | September 6, 2018

OH Appeals Court Upholds Denial of Conditional Use Permits to Operate Private Club

This post was authored by Matthew Loeser, Esq.

This case arose from a cease and desist order issued by the Liberty Township Zoning Inspector after Mr. Ferrara submitted applications for three conditional use permits, seeking to operate a private club at three residential properties in Liberty Township, Trumbull County, Ohio. One residence was located on Logan Way, and the other two were located on West Liberty Street. The BZA voted unanimously to deny all three applications, and Ferrara filed an administrative appeal in the trial court. The trial court reversed the BZA’s decisions as to the two Liberty Street properties, and found they were arbitrary, capricious and not supported by a preponderance of substantial, reliable and probative evidence. As such, the trial court affirmed the BZA’s decision as to the Logan Way property, as there was competent and credible evidence in the record to rebut the evidence put forth by Ferrara.

On appeal, Mr. Ferrara claimed his proposed use of the properties was specifically authorized by the Liberty Township Zoning Ordinance (“LTZO”). Here, however, because Mr. Ferrara’s proposed use was that of a “private club,” it was subject to the BZA’s approval as a conditional use and was not specifically authorized. Ferrara further claimed the LTZR was unconstitutionally vague as applied to him because his proposed conditional use met or exceeded every test that the Township was required to follow by the express terms of its Ordinance. While Section 5:2 provided that the BZA “shall” consider the above criteria, it did not provide that a permit must be issued every time a proposed use satisfied that general criteria. Accordingly, the court found that the trial court did not err in failing to rule that the LTZR was unconstitutional as it was applied to Mr. Ferrara.

As to the two Liberty Street properties, the trial court held the BZA’s decision was arbitrary, capricious, unreasonable and not supported by a preponderance of substantial, reliable and probative evidence. The trial court’s finding that there was no testimony in opposition to the Liberty Street properties. The record reflected that the witness, Martin Hume, was speaking in opposition on behalf of his aunt, Eleanor Katz, who was a neighbor of “the Chalet,” which was one of the Liberty Street properties. Therefore, it was clear there was testimony in opposition to at least one of the Liberty Street properties. Accordingly, the judgment of the Trumbull County Court of Common Pleas was affirmed in part and reversed in part. The matter was remanded to the trial court to enter judgment affirming the BZA’s decisions for all three properties.

Ferra v Liberty Township Zoning Board of Appeals, 2018 WL 4204258 (OH App. 9/4/2018)


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