# Dinardo v. Chester Township Board of Zoning Appeals

> Ohio Court of Appeals · January 11, 2010 · 186 Ohio App. 3d 111

URL: https://www.frixlaw.com/law-library/cases/6699367

## Case

- **Full name:** DINARDO v. CHESTER TOWNSHIP BOARD OF ZONING APPEALS
- **Court:** Ohio Court of Appeals
- **Decided:** January 11, 2010
- **Citations:** 186 Ohio App. 3d 111; 926 N.E.2d 675
- **Precedential status:** Published
- **Opinion:** Dissent by Grendell
- **Judges:** Cannon, Grendell, Rice
- **Cited by:** 3 later opinions in the Frix Law Library

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## Opinion text

Diane Y. Grendell, Judge,
dissenting.
{¶ 34} The majority concludes that “the denial of [Dinardo’s] application cannot be founded on the anticipation of offensive odors based on current and past conduct.” However, the issue in the instant case is not past conduct or present conduct per se. Rather, Dinardo had the burden to present credible evidence that his use would comply with Chester Township’s zoning resolution.
{¶ 35} “A zoning certificate shall not be issued unless the plans for the proposed building or structure fully comply with the zoning resolution in effect.” Barrett Paving Materials, Inc. v. Bd. of Zoning Appeals of Union Twp. (June 24, 1991), 12th Dist. No. CA90-07-066, 1991 WL 116344 , *2. While Barrett involves an application for a conditional-use permit, as opposed to a permitted-use zoning certificate in the instant case, the fundamental principle enunciated in Barrett is still applicable to the present situation. Barrett stands for the proposition that any type of zoning certificate should not be issued unless and until the applicant demonstrates compliance with all of the applicable zoning rules in effect. This sentiment is echoed in R.C. 519.17, which does not refer to any specific type of zoning certificate or permit. R.C. 519.17 states that “no such zoning certificate shall be issued unless the plans for the proposed building or structure fully comply with the zoning regulations then in effect.” (Emphasis added.) In appellant’s case, this includes evidence that Dinardo’s use would not create offensive odor, dust, air pollution, or other objectionable influences. See Chester Township Zoning Resolution 5.02.01. Dinardo’s mere promise of compliance, without evidence of a definitive plan, simply was not enough to warrant the granting of his application for a zoning certificate.
*120 {¶ 36} The Chester Township zoning regulations explicitly provide under the prohibited use section that “[n]o use shall be permitted or authorized to be established which * * * may become hazardous, noxious, or offensive due to emission of odor, smoke, fumes, cinders, dust, noise, gas, * * * or will interfere with adjacent landowners’ enjoyment of the use of their land.” Chester Township Zoning Resolution 5.00.01(J). Moreover, “ ‘[pjermitted uses are those allowed as of right, provided the landowner meets all other requirements * * *.’” Kipp v. Bd. of Zoning Appeals of Stonelick Twp, 12th Dist. No. CA2003-10-086, 2004-Ohio-5903, at ¶ 10 , quoting Meck & Pearlman, Ohio Planning and Zoning Law (2004) 387, Section 9:11. Uses specifically permitted under the Chester Township regulations are only allowed “provided such uses do not emit or create any danger to health and safety in the surrounding area, and do not create any offensive noise, vibration, smoke, dust, heat, glare, flame, air pollutants or other objectionable influences.” (Emphasis added.) Chester Township Zoning Resolution 5.02.01.
{¶ 37} Contrary to the majority’s assertions, there was sufficient evidence in the record to deny Dinardo’s request. Testimony demonstrated that the storing and selling of mulch and its impact on Dinardo’s neighbors constituted a “nuisance” and an “eyesore.” Additionally, testimony indicated that piles of mulch created offensive dust and dirt in the yards of Dinardo’s neighbors. Furthermore, the Chester Township zoning inspector had received numerous complaints about the odor from Dinardo’s similar mulch operations in the past. There was sufficient evidence to support the board’s determinations that the proposed use would have a negative impact on the values and enjoyment of the neighboring properties due to the dust and odor it would generate as well as its lack of aesthetic appeal. More importantly, Dinardo failed to provide any details as to how he would address the problem of the offensive odor and dust, such as containment structures. Evidence presented clearly demonstrated that Dinar-do’s proposed use would cause air pollution and other objectionable influences in the neighborhood adjacent to his property in violation of Chester Township Zoning Regulation 5.02.01 and 5.00.01(J).
{¶ 38} The testimony in the record, demonstrating that Dinardo’s use would cause air pollutants and other objectionable influences, in violation of the Chester Township zoning regulations, supports the denial of his application. Accordingly, the trial court did not err in affirming the denial of the zoning certificate.
{¶ 39} For the reasons stated above, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6699367. Public record. Not legal advice.