The Board of Zoning Appeals (BZA) functions as a quasi-judicial branch of the zoning administration, even though it is technically an administrative body. The board of zoning appeals is permitted to exercise four functions as identified in the Ohio Revised Code and Chapter 21 of the Clearcreek Township Zoning Resolution: Appeals, Variances, Conditional Uses, and Non-Conformance Hearings.

 

 

ACTION ON APPEALS       Any applicant has the right to appeal a decision of the zoning inspector.  A zoning resolution is complicated and often technical.  A property owner and the zoning inspector may read the same requirement of the zoning resolution and come to different conclusions on the way it applies to a particular piece of property.  The zoning inspector can only approve a zoning permit if the application conforms to all the requirements of the zoning resolution, as he understands them.  However, any applicant has the right to appeal his decision.

 

In many rural areas, lots often run to the center of township, county and state roads.  An applicant, who owns a 20,000 square foot lot in a residential district, applies for a zoning permit to build a house.  The lot conforms to all the requirements of the zoning resolution; however, a question arises as to the front yard setback requirement.  The front yard requirement for the district specifies that the house must be located no closer than 50 feet from the front lot line.  This is where the problem arises.  What is the front lot line?  In this case the front lot line is also the centerline of the road.  It seems logical that the house should be set back from the right-of-way line and not the center line, although the applicant desires to set back 50 feet from the center line.  The zoning inspector maintains that the 50 foot setback must be measured from the road right-of-way line.  Such a difference in understanding the zoning resolution should be referred to the board of zoning appeals for an interpretation.  This type of a problem should not arise because key terms like "front yard setback" should be adequately defined to avoid such problems.

 

It should also be pointed out that appeals can also be taken by others than those simply applying for permits.  For example, a neighbor may appeal the decision of the zoning inspector, claiming that the inspector issued a permit for a use not permitted by the zoning resolution, or that the approved permit did not conform with all the zoning requirements.

 

 

ACTION ON REQUEST FOR VARIANCES         A variance is a type of appeal, since zoning procedures require that the applicant must first go to the zoning inspector with an application for a zoning permit.  When an inspector disapproves an application, the applicant may then file a request with the board of zoning appeals for a variance from the strict application of the zoning resolution as it applies to his property.  Courts have often dismissed appeals from a board of zoning appeals decision where an application has not been first rejected by the inspector.  The board of zoning appeals has no authority to rule on variances except on an appeal basis.

 

Use Variance and Area Variance Distinguished

 

A use variance permits land uses for purposes other than those permitted in the district, for example, a commercial use in a residential district.  An area variance involves structural or lot restrictions; for example, the relaxation of setback lines.

 

Illustrations:  Where property owners sought to build 8 unit multifamily dwelling in district zoned for such dwellings, but the lot lacked the necessary frontage by 12 feet, the variance sought was an area variance rather than a use variance.

 

The standards for granting a variance differ based on whether the variance sought is a use variance or an area variance.

 

The standard for a variance that relates solely to area requirements should be a lesser standard than that applied to variances that relate to use.  An application for an area variance need not establish unnecessary hardship; it is sufficient that the application show practical difficulties.  The lesser, practical difficulties standard applies in all area variance cases, including township area variance cases.

 

Practical Difficulties

 

A property owner seeking an area variance must establish practical difficulties in the use of his property.  The factors to be considered and weighed in determining whether a property owner seeking an area variance has encountered practical difficulties in the use of his property include, but are not limited to:

 

1. Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance.

 

2. Whether the variance is substantial.

 

3. Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance.

 

4. Whether the variance would adversely affect the delivery of governmental services (for example, water, sewer, garbage).

 

5. Whether the property owner purchased the property with knowledge of the zoning restriction.

 

6. Whether the property owner’s predicament feasibly can be obviated through some method other than a variance.

 

7. Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance.

 

Illustrations:  Where property owners sought an area variance to build an 8-unit multifamily dwelling because the lot lacked the necessary frontage by 12 feet, the variance was properly denied because the owner could have made beneficial use of the property by building a 4-unit complex or duplexes, the variance would alter the essential mixture of the neighborhood which consisted mainly of one and two family dwellings, and the owner was not treated differently from others seeking variances.  However, denial of an area variance to build a duplex on land which lacked the necessary lot size was improper where there were many duplexes in the neighborhood, many of the duplexes were on lots insufficient in size, and the lot just north of the property owner’s was granted a variance for a multifamily dwelling.

 

Unnecessary Hardship

 

The township enabling act is specific in authorizing a variance only where, owing to special conditions, a literal enforcement of the zoning resolution will result in unnecessary hardship.  Under these acts, variance must be based upon evidence that literal application of zoning regulations on a specific parcel of property will result in an unnecessary hardship unique to that property, and that the granting of a variance would serve the spirit of the zoning regulation.

 

Through an extensive series of court cases, a set of tests has evolved to determine the presence of unnecessary hardships.  These are the kinds of standards that ought to be incorporated into any zoning resolution dealing with variances.

 

1.         The courts have ruled that the required use must remove all profitable use from the land, or in other words, the applicant’s supposed hardship cannot be one of economics alone.  For instance, a variance should not be granted to allow construction of a service station in order that the property owner can sell the land for a higher price than he could with the existing residential zoning.

 

2.         The hardship must result from circumstances affecting a particular and unique piece of land, and not from a general condition throughout the neighborhood.  For instance, the owner of a residentially zoned parcel adjacent to a commercial zone might apply for a variance to permit a service station on the grounds that a nearby commercial area made his parcel unfit for residential use.  The application should be denied on the basis that any hardship is common to the entire area and not just to the applicant’s property.  The hardship must be unique and not general.  In this case, proper remedy was a rezoning through the regular amendment procedure.

 

3.         A variance must not alter the essential character of a neighborhood.

 

4.         It is not enough to show that the effects of a variance would be harmless.  Real, unnecessary hardship must still be established by the applicant.

 

5.         Any hardship must result from the requirements of the zoning resolution and not from the applicant’s own actions.  For instance, a variance request is properly denied when the applicant knowingly bought a piece of land too small for his intended use of the land.

 

6.         A variance must not be contrary to the public interest, even if a hardship can be established.

 

ACTION ON CONDITIONAL USES         While appeals and variances come to the board of zoning appeals only after the zoning inspector has refused to issue a zoning permit, applications for conditional use permits come to the board of zoning appeals directly from the applicant.

 

Conditional uses possess unique or special characteristics relating to location, design, size, traffic generation, and method of operation.  Because of these characteristics, each use is considered on an individual basis.  The conditions, which dictate the issuance of the permit, are usually directed toward minimizing possible detrimental effects of the proposed use on the character, value, and development of the adjacent area.  It is necessary to have requirements for conditional uses that are an explicit part of the zoning resolution.

 

The conditions required to protect and preserve the character of the area and to promote the public health; safety and welfare can vary with each conditional use and its resulting effect on surrounding development.

 

Specific conditions may include requirements for a greater amount of open space, the location of entrance or exit drives, special lighting, noise control requirements, and fencing or landscaping.  A given conditional use is permitted only in those districts so specified.  The board of zoning appeals is responsible only for judging compliance with conditions established by the Township Trustees.  The board of zoning appeals does not determine what conditions must be met.  This is a legislative action, which is reserved for the Township Trustees.  If the applicant meets all conditions, the board of zoning appeals must issue a permit.  If the conditions are not met, the board may not issue the permit.

 

A zoning resolution should contain both general and specific standards for conditional uses.  General standards are largely statements of intent and should govern the general concerns of the board of zoning appeals in making all conditional use decisions.  General standards address such issues as the relationship of the proposed conditional use to the comprehensive plan and character of the area; the availability of essential public facilities and services; the economic welfare of the area; the likelihood that the use will generate excessive traffic, noise, or air pollution; and other similar characteristics.

 

In addition to the general standards for all conditional uses specified above, each zoning resolution should contain some specific criteria for each conditionally permitted use.  For example, a sand and gravel or limestone quarry operation may be a conditionally permitted use in an agricultural district and a manufacturing district.  In order to receive a conditional zoning permit, the applicant must conform to both the general standards applicable to all conditional uses and the more specific standards designed to apply to mineral extraction.  These specific criteria might include requiring the quarry to be enclosed by a fence, prohibiting operation within a certain distance of existing residential structures, requiring certain types of land restoration, and limiting hours of operation.

 

It is important to specify the design or performance standards of each individual conditional use.  Standards that are too general may allow the board of zoning appeals to exercise too much discretion.  The decision of the board of zoning appeals should be made within definable standards, and the more specific the drafters of the resolution are, the easier is the job for the board of zoning appeals.

 

 

NON-CONFORMANCE HEARINGS        As a function of updating the zoning resolution and zoning map, structures and uses that were legally occurring prior to the change may be reclassified as a legal non-conforming use due to an increase in required setback or change in permitted use. Ohio courts refer to the following collectively as non-conforming uses: (1) non-conforming buildings or structures, (2) conforming uses of non-conforming buildings, (3) non-conforming uses of conforming buildings, and (4) non-conforming uses of land.

 

Section 519.19 of the Ohio Revised Code is labeled “Non-conforming Use of Buildings and Land Not Affected by Zoning.” It states that the lawful use of any dwelling, building, or structure and of any land or premises, as existing and lawful at the time of enactment of a zoning resolution or amendment thereto, may be continued, although such use does not conform with such resolution or amendment, but if any such non-conforming use is voluntarily discontinued for two years or more, any future use of said land shall be in conformity with sections 519.02 to 519.25, inclusive, of the Revised Code. The board of township trustees shall provide in any zoning resolution for the completion, restoration, reconstruction, extension, or substitution of non-conforming uses upon such reasonable terms as are set forth in the zoning resolution. Section 21.01(D) of the Clearcreek Zoning Code addresses the requirement of ORC 519.19.

 

Thus, the BZA’s role is to pass judgment on non-conforming uses and decide on a case-by-case basis how the use will impact the Township as the Zoning Code works to eliminate such cases.

 

A property owner that requests a non-conformance hearing must respond to six points when requesting the BZA to authorize the completion, restoration, reconstruction, in whole or part, extension, or substitution of legal non-conforming uses.

1. Nature of such use in relationship to the character of adjacent uses.
2. Lot size.
3. Set back lines.
4. Traffic conditions.
5. Terrain.
6. Other factors the BZA considers important.

 

PROCEDURE

 

A citizen may take appeals to the board of zoning appeals.  The appeal must be filed within twenty days after the decision of the zoning inspector.  The inspector must send the board of zoning appeals all records relating to the case.

 

The procedure for hearing an appeal, variance or conditional use application is specified in the Ohio Revised Code (ORC 519.15). Following is a brief summary of the major steps required:

 

1.         The board of zoning appeals schedules a public hearing within a “reasonable time."  It is recommended the public hearing be held within 20 days from the date the application is filed.

 

2.         The board of zoning appeals sends a notice of public hearing to "parties in interest" at least 10 days before the public hearing.  All property owners in the general vicinity that might be affected by the decision should be notified.  It is always better to notify too many citizens than to omit anyone accidentally.

 

3.         The board of zoning appeals publishes a notice of public hearing in a newspaper of general circulation at least 10 days before the hearing.

 

4.         The board of zoning appeals makes a decision within a "reasonable time."  It is recommended the decision be made within 20 days of the date of the hearing.

 

It is important that these procedures be exactly followed.  If, for example, the board of zoning appeals refuses to approve a request for a variance, the applicant’s only recourse is to the Court of Common Pleas.  It is often assumed that an appeal from the board of zoning appeals may be taken to the Township Trustees.  This is not proper procedure.  The Township Trustees have no authority to hear appeals, variances or conditional uses.  They are solely a legislative body.  An appeal from the board of zoning appeals must be made to the Court of Common Pleas.

 

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