AUBURN — The Township Board of Zoning Appeals has been served.
After the board’s unanimous denial of several variance requests from Redwood USA, LLC, attorney Bridey Matheney of Thrasher, Dinsmore & Dolan filed an appeal on behalf of the residential developer to the Geauga County Court of Common Pleas on Feb. 12, stating that the denial of said variances has resulted in the “unconstitutional taking” of the property in question.
During a Jan. 14 zoning appeals meeting, attorneys Dale Markowitz, also of Thrasher, Dinsmore & Dolan, and Ms. Matheney represented current property owner Robert Brosnan and Redwood in their request for variances on seven parcels of land, totaling about 31 acres, on the southeast corner of Ravenna Road (Route 44) and Route 422.
Redwood requested variances on prohibited uses of the B-3 and B-4 shopping and business zoning district to allow the development of 110 attached, single-family dwellings, on minimum dwelling unit areas to allow 3.5 units per acre and on building and riparian setbacks.
The appeal states that denial of the use variances “was illegal, unreasonable, unconstitutional, arbitrary, capricious and unsupported by the preponderance of substantial, reliable and probative evidence on the whole record, by the” board of zoning appeals.
The appeal states that the “use variance should have been granted to avoid unconstitutional taking of the property, and the appeal regarding the interpretation of the Auburn Township Zoning Resolution by the zoning inspector regarding riparian setbacks should have been granted based on the incorrect reading of the Auburn Township Zoning Resolution by the Zoning Inspector.”
During the Monday night trustees’ meeting, Auburn resident Larry Brown asked if there was any way the community could support the township in the appeals case.
Trustee Michael Troyan said that residents are welcome to write to the court about their support of the zoning board’s decision, but noted that emotions will play no role in the judge’s decision on the case and that resident approval or disapproval will likely be overlooked in the ruling.
Geauga County Common Pleas Judge David M. Ondrey has been assigned to the case.
Mr. Troyan added that as a property owner, Mr. Brosnan and the developer are entitled to their right to develop the land.
“The court isn’t going to be looking at the emotional issue,” Mr. Troyan said. “The court is going to be looking at the findings back from the [zoning board], and they’re just going to be applying law.
“Really, it’s up to the court right now,” he added.
“They’re (Redwood) arguing a very basic zoning issue, which is an illegal taking,” Fiscal Officer Fredrick May said. “They’re saying that by denying them a use of the property, we have taken part of the property from them; taking their use of the property.”
Mr. Troyan said that a “key weighing point” of zoning, however, is looking at whether there are other uses for the land in granting or denying a variance request. “You could use that one on 99 percent of your cases and deny a request for a variance,” he said, pointing out that Redwood can still develop the property, but would have to look to alternative uses that comply with the zoning district instead of the originally proposed housing plan.
During the hearing in January, a real estate appraiser, Emily Braman, said that a demand study indicated that light industrial development (B-4) is not in demand, which makes up 29.86 acres of the property.
Trustee Patrick J. Cavanagh said that the township would generally work with the township’s insurance provider in cases like this, but the case is still early in the stage and that the insurance company will be monitoring the suit if money is sought.
“One of the issues that we have currently at this stage of the case is they’re not seeking monetary damages at this point,” Mr. May said. “So our insurance is not going to kick in automatically.”
“There’s always somebody trying to break the zoning,” Mr. Troyan said. “Most of the companies like this, what they do is they look at a parcel and, well, they could look at the wants of the community or they can look at what their maximum profit would be. Most of them tend to look at how much money they’re going to make. I’m guessing they’re doing this because it’s the most profitable use for them for that parcel of land.”