Posted by: Patricia Salkin | July 15, 2019

OH Appeals Court Finds Modification Imposed on Hindu Church with Condition Use Application was Arbitrary and Unreasonable

This post was authored by Matthew Loeser, Esq.

In 2016, the Hindu Society filed a conditional use application with the Union Township Board of Zoning Appeals (“UTBZA”) requesting permission to construct a new two-story addition onto its existing temple for the purpose of housing additional deities used as part of the Hindu religion. At the time the Hindu Society filed its application, its property had two access points: one from Klatte Road and the other from Barg Salt Run Road. The UTBZA conditioned its decision to grant the application on the Hindu Society agreeing to five additional modifications. One of these modifications was that he primary and principal access point for the Hindu Temple would be from Barg Salt Run Road, with the gate located along Klatte Road “permanently closed, secured through electronic gate mechanisms/codes and Knox Box lock, to be utilized only by fire and police emergency responders and designated on the plans as ‘Emergency Access Only.’ ” The Hindu Society appealed this specific modification in UTBZA’s decision to the common pleas court, which found the UTBZA’s decision constituted an unconstitutional taking and was arbitrary, unreasonable, and unsupported by the record.

On appeal, the UTBZA argued the common pleas court erred in finding that conditioning the approval of the Hindu Society’s conditional use application on the permanent closure of the Klatte Road entrance to the public was arbitrary, unreasonable, and unsupported by the record. While the court agreed with the UTBZA’s claim that it “has broad discretion under the Zoning resolution and the law to impose such conditions when granting a conditional use which will preserve the health, safety and welfare of the neighbors,” this discretion was not unfettered, unlimited, and insulated from review. Here, the court found it was improper to deny the public access onto an applicant’s property from a public roadway as a condition for granting a conditional use permit when there was no evidence indicating that decision was necessary for the protection of neighboring property owners or the general public as a whole. Furthermore, there was no evidence indicating the proposed temple expansion project would increase the traffic using the Klatte Road entrance beyond the current “maybe 10, 14 vehicles a day,” nor any evidence that the expansion project would have any impact on the neighboring property owners at all.

Since the common pleas court’s decision was supported by a preponderance of reliable, probative, and substantial evidence, the court affirmed the common pleas court’s decision.

Hindu Society of Greater Cincinnati v Union Township Board of Zoning Appeals, 2019 WL 2571366 (OH App. 6/24/2019)

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