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Neighbors appeal ruling for side-yard intrusions
(by Joseph Koziol Jr. - December 03, 2010)
Neighbors appeal ruling for side-yard intrusions
By JOSEPH KOZIOL JR.
A Chardon Township couple is challenging a ruling by the township board of zoning appeals, which approved variances for a neighboring property.
Dan and Lori Combs, of 9838 Mitchell Mills Road, filed an appeal of the zoning board's Nov. 11 decision on property at 9822 Mitchell Mills Road. Their Nov. 19 filing in Geauga County Common Pleas Court has been assigned to Judge David Fuhry.
The suit claims the variance approval was "unconstitutional, illegal, arbitrary, capricious, unreasonable and/or unsupported by the preponderance of substantial, reliable and probative evidence."
The variances approved for the property deal with the side-yard setbacks. Although the township zoning code requires 50-foot setbacks, variances were approved for 27-foot setbacks.
Township Zoning Inspector Donald Mohney said the lot was created in 1941, prior to the establishment of zoning in the township. As such, he said, the lot is buildable, although prospective builders must still apply for any variances needed.
During the Nov. 11 hearing on the matter, Mrs. Combs noted that the prospective owner had the opportunity to build a smaller home than the one proposed, which would be less of an intrusion into the side lots.
Another neighbor, Mark Fuerst, argued during the same hearing that the purchaser of the lot knew the zoning regulations and is creating his own hardship by trying to fit a larger home than the property will accommodate. He said rotating the house would allow him to avoid the variances.
Board member Richard Cryberg responded that the lot is "unusually long and narrow," which creates practical difficulty in building a normally size and shaped dwelling with a side setback variance no matter where the house is situated.
Zoning board member Joseph Banzer noted that, because the lot was created in 1941, it predates zoning. He said the lot to the immediate east is similarly nonconforming, and the current owners were granted side-yard and front-yard variances to build an addition.
Mr. Cryberg also noted that the proposed home of 2,492 square feet is not oversized for what is common in the area, and larger ones have been built in the area over the last decade.
Mr. Mohney said the house is 692 square feet above the minimum requirement for the R-1 residential district.
Although neighboring homeowners believe that trees on their property will be adversely affected by the removal of ones on the new lot, Mr. Cryberg said, the zoning board cannot take that into account in considering a variance.
The board voted 4-1 to approve the variance, with only board member Terry Dorsett dissenting.
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