Cox v. Kiger, Unpublished Decision (12-22-1999) ( 1999 )

OPINION Plaintiff-appellant Robert P. Cox, Secretary of the Board of Zoning Appeals, Berne Township, Fairfield County, Ohio, appeals the June 3, 1999 Judgment Entry of the Fairfield County Court of Common Pleas which reversed the August 17, 1998 Decision of the Board of Zoning Appeals regarding appellees' request for a variance. Defendants-appellees are C. Robert Kiger and Marcia Kiger.

STATEMENT OF THE CASE AND FACTS, Appellees filed a request for a variance with the Berne Township Zoning Commission. They needed this variance to construct a single-family residence and attached garage on their property in the Bo-Ka Woods Subdivision. The property in question was specified as "Reserve D" and "Reserve E." This property, like all other property in the subdivision, was subject to the applicable zoning ordinances, but no specific restrictions were otherwise levied against the property. Appellants knew when they purchased the property they would be unable to place any building on the property without first obtaining variances. Specifically, the lot was almost half the size required, and any building would have been too close to the road under the existing zoning ordinances. On August 17, 1998, the Board denied appellees request for variances for their property Reserves D and E of Bo-Ka Woods Subdivision, in Berne Township, Fairfield County, Ohio. Appellees timely appealed that decision to the Fairfield County Court of Common Pleas pursuant to R.C. 2506. In a June 3, 1999 Memorandum of Decision, the trial court reversed the decision of the Board of Zoning Appeals. It is from that judgment appellant prosecutes this appeal, assigning as error the following:

THE COURT ERRED IN DETERMINING THAT THE DECISION OF THE BERNE TOWNSHIP BOARD OF ZONING APPEALS WAS NOT SUPPORTED BY A PREPONDERANCE OF RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE.

I. In its sole assignment of error, the Board maintains the trial court erred in finding the Board's decision was not supported by a preponderance of reliable, probative and substantial evidence. We do not agree. We have reviewed the record herein and find we agree with the well-reasoned and well-written Decision of the trial court. Accordingly, we incorporate said Decision by reference. For the reasons advanced in the trial court's decision, appellant's sole assignment of error is overruled. The June 3, 1999 Memorandum of Decision of the Fairfield County Court of Common Pleas is affirmed.

By: Hoffman, J. Gwin, P.J. and Farmer, J. concur.