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Toledo, Ohio & Lake Erie

The Press Newspaper

The Press Newspaper

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A zoning case in Allen Township that twice went to the Sixth District Court of Appeals has been decided in favor of the township’s zoning board.

The appeals court last week upheld the zoning board’s decision to issue a conditional use permit to Charles Palmer, who sought the permit to open an auto repair shop in a building behind his township home.

During a July 2010 hearing, the zoning board of appeals heard testimony from Palmer and 10 neighboring property owners who were in favor of the application, and from Joseph and Susan Abraham, who opposed the use, suggesting the business would create traffic problems, be unsightly and lower property values, according to court documents.

The zoning board approved Palmer’s request on the condition Palmer maintain stipulated business hours, keep work inside the building as much as possible and install a privacy fence within a year.

The Abrahams then appealed to the Ottawa County Common Pleas Court, which initially ruled the zoning board violated state law covering open meetings by going into an executive session.

The court invalidated the board decision and directed it to hold another hearing but a few weeks later it reversed itself and issued an amended decision and affirmed the board’s decision.

The Abrahams appealed that decision but the district appeals court on its own accord found that the common pleas court lacked jurisdiction to vacate its own judgment.

When the case returned to the common pleas court, the zoning board’s decision to issue the conditional use was affirmed and the Abrahams appealed, contending there wasn’t a quorum of board members during the hearing, the board improperly went into executive session and a building inspector’s report was required prior to considering the application.

The appeals court, however, rejected their arguments, ruling that sunshine laws don’t apply to deliberations on such applications and the common pleas court must consider whether the zoning board’s decision to grant or deny a conditional use is “unconstitutional, illegal, capricious, unreasonable, or unsupported by the preponderance of…evidence.”

“Absent finding one or more of these conditions, the common pleas court must affirm the zoning board’s decision,” the decision says.

“Here the only evidence submitted in opposition to approval of conditional use was appellant’s (Abrahams) complaint of too many cars being parked at the Palmer’s home and an undocumented assertion that the home garage would reduce the property values,” the decision says. “This evidence had to be balanced with the testimony of numerous adjacent or nearby neighbors who unanimously supported the application. On consideration, we cannot say, as a matter of law, that the zoning board’s decision and, concomitantly, the common pleas court’s decision, were unsupported by reliable, probative, and substantial evidence.”

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