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Trumbull Cty. permits for private golf club should have been rejected
TRACEY BLAIR
Legal News Reporter
Published: September 24, 2018
A Trumbull County trial court erred by reversing a zoning board’s denial of a conditional use permit for a private golf club, the 11th District Court of Appeals recently ruled.
The Liberty Township Zoning Board of Appeals rejected J.V. Ferrara’s applications for three conditional use permits, seeking to operate a club at three residential properties – one on Logan Way and two on Liberty Street.
The properties, three historic mansions owned in trust by Ferrara, are zoned “single family.” Ferrara asked the zoning board to rent the mansions to members of Pine Lakes Club. A conditional use permit must be obtained to allow “private clubs and parks” in single-family districts, according to the township’s zoning resolution.
According to court records, the board held two public hearings. Ferrara and his attorney said club members have been able to use the properties since 2008. The mansions are not hotels or bed and breakfast facilities, but someone does check on the guests every day and gives them breakfast. The private club was formed in 2014. The wooded properties – which accommodate up to 32 guests at a time - are located on 10, 11.7 and 30 acres.
The 300 members must sign a contract and abide by the club’s “Stay and Play Mansion Policies and Procedures.”
Four people spoke in support of Ferrara’s applications, including an abutting property owner, a renter who lives in a small house on one of the properties, the executive director of the Trumbull County Tourism Bureau and a local hotel representative who said the club improves their economy during the golf season.
Seven opposed the applications, expressing concerns about a commercial enterprise in a residential area – including increased traffic and noise at all hours. Some questioned why Ferrara never applied for a conditional use permit in 2008 when he began operating the premises as guest lodging.
The board voted unanimously to deny all three applications. Ferrara argued the trial court should have found the ordinance is unconstitutional as applied to a membership-based club because the ordinance allows this use in a residential district.
The trial court later reversed the board’s decisions as to the two Liberty Street properties, finding they were “arbitrary, capricious and unreasonable as the decision was not supported by a preponderance of substantial, reliable and probative evidence.” The board appealed that decision.
The appellate panel found Ferrara’s Constitutionality argument lacks merit, noting the only permitted uses of single-family zoned properties are “one single-family dwelling unit per plotted lot” and “one-story attached garages that do not exceed the ground floor area of the residence to which it is attached.”
The matter was remanded to the trial court to enter judgment affirming the board’s decisions for all three properties.
“Because Mr. Ferrara’s proposed use is that of a ‘private club,’ it is subject to the BZA’s approval as a conditional use; it is not specifically authorized,” 11th District Judge Timothy P. Cannon wrote in his opinion.
The board found that the club is a “guise” or a pretext. The panel agreed, stating the trial court improperly substituted its judgment on that issue for the board’s.
“The evidence presented established that Mr. Ferrara actually uses the properties to provide temporary lodging to groups of people who are participating in golf travel packages that Mr. Ferrara organizes and sells,” Judge Cannon added. “Mr. Ferrara described the travel packages, which he organizes in conjunction with local golf courses; the lodging he provides is part of the package.
“Mr. Ferrara stated he has engaged in this ‘business’ since 2008. He stated the club was formed in 2014 to ‘fall in with the policies of the township,’ but that he did not apply for conditional use permits even at that time. Further support for pretext is that the annual membership dues are only $10, and the $10 is deducted from the entire cost of the purchased travel package. Additionally, Mr. Ferrara admitted that breakfast is prepared for the guests on-site every morning by paid staff, which is contrary to his assertion that these properties are not being used as bed and breakfast facilities.”
Appellate judges Thomas R. Wright and Colleen Mary O’Toole concurred.
The case is cited Ferrara v. Liberty Twp. Zoning Bd. of Appeals, 2018-Ohio-3537.