Login | October 05, 2024
Appellate panel rules lower court must re-examine zoning decision
KEITH ARNOLD
Special to the Legal News
Published: October 3, 2024
A Franklin County appellate panel determined that the Franklin County Common Pleas Court must take another look at a zoning appeals board’s conclusion to grant multiple variances for the construction of a second single-family home on a residential lot in the Harrison West neighborhood of Columbus.
A three-judge panel of the Tenth District Court of Appeals found that the Columbus Board of Zoning Adjustment failed to explain how the majority arrived at its decision to approve nine zoning variances to Infiniti Enterprises LLC, the owner of the property at 1089 Perry Street.
“Because the record does not contain any of the conclusions of fact found by the (board) … , the trial court did not have a complete record to properly weigh the evidence and determine if the (board’s) denial of the variances was supported by substantial, reliable and probative evidence,” Tenth District Judge Michael Mentel wrote for the 3-0 panel.
According to a summary of the case, Infiniti proposed the splitting of the Perry Street lot to create a parcel for the existing single-family dwelling and a second parcel to build a new single-family dwelling.
At a zoning appeals board hearing in March 28, 2023, an attorney for Infiniti presented the variance application to the board.
Neighbors of an adjacent lot, Julia and Lydia Cumming, testified in opposition to the application along with other neighbors.
Summary noted that representatives of the Columbus Planning Division were generally supportive of the proposed variances.
The board voted 3-2 to approve all nine variances and certified the decision March 29, 2023.
The Cummings subsequently appealed the board ruling in common pleas court, which affirmed the board’s decision Oct. 6, 2023, on the basis that the decision was supported by the preponderance of substantial, reliable and probative evidence and was not unconstitutional, illegal, arbitrary, capricious or unreasonable.
Mentel noted in the appellate opinion that the common pleas court wrote that “there is nothing contained within the record to indicate that the (board) failed to properly assess the issues before it.”
The Cummings appealed the lower court ruling to the Tenth District Court of Appeals.
Mentel pointed out that testimony from the board’s chairperson during the hearing indicated her reluctance to grant the variances.
Eleanor Palmer-Bailey, as chairperson, noted that it appeared that the application was an overreach of zoning ordinances.
“This is not one thing … . We are tweaking every rule that we have here,” she said during the hearing. “I do not see double houses on lots. I see a lot of houses with garages in the back, but I don’t see that this is what this neighborhood has. So, I guess I am just reluctant to deviate from the character of the neighborhood as it appears to be.”
“Despite Chairperson Palmer-Bailey’s reservations, she proved to be the deciding vote in this case,” Mentel wrote. “However, there is nothing in the record to show that the (board) considered the factors or that it made a determination as to the ‘practical difficulties’ issue.”
Both the Columbus Code Ordinance and the state Supreme Court’s holding in Duncan v. Middlefield set forth factors to determine whether a property owner who seeks a variance has encountered practical difficulties, such as whether the property will yield a reasonable return or whether there is any beneficial use of the property without the variance, in use of the property.
“Accordingly, the trial court abused its discretion determining that the board’s decision was supported by a preponderance of evidence, as there was nothing in the record to explain the board’s examination of the relevant factors,” Mentel continued. “Thus, we reverse and remand this matter back to the trial court to hold a hearing … .”
Tenth District judges Laurel Beatty Blunt and David Leland joined Mentel’s opinion.
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