Neary v. Board of Zoning Appeals

In Neary v. Board of Zoning Appeals (June 30, 1999), Montgomery App. No. 17428, 1999 Ohio App, the appellant, after three of his permits for construction of a billboard were revoked and five other permits for construction of billboard signs were denied by a Zoning Inspector, filed an appeal with the Board of Zoning Appeals. The appellant, in his appeal, requested that if the Zoning Inspector's decision was upheld, he be granted variances for the eight proposed billboards. The BZA denied the appellant's applications for permits and refused his request for variances for them. The appellant, in Neary, then appealed to the Montgomery County Common Pleas Court pursuant to R.C. 2506.01. The appellant, in his brief to the trial court, asserted five assignments of error. The appellant argued that the BZA had acted in an arbitrary, capricious, and unreasonable manner by interpreting the zoning code as limiting billboards to no more than fifty square feet in size, that the code sections relevant to the BZA's decision were unconstitutional since they had the effect of banning all billboards within the city limits of Moraine., and that the zoning code contained an unconstitutional delegation of legislative authority inasmuch as the BZA enjoyed unfettered discretion in determining whether to grant or deny variance requests. The appellant, in Neary, also argued that the code was being arbitrarily enforced and that the BZA should be equitably estopped from revoking the three previously granted permits. The Common Pleas Court sustained Neary's first assignment of error and remanded the case to the BZA with instructions to "determine what restrictions or limitations apply to Neary's billboards." The court further found the appellant's second and fifth assignments of error to be moot and overruled his third and fourth assignments of error. On remand, the BZA, in Neary, denied the appellant's request for permits and his requests for variances. The appellant then appealed. In Neary, the Second District Court of Appeals, noted, as a preliminary matter, that it had to determine whether the trial court's decision following the appellant's first appeal to that tribunal constituted a final appealable order. In holding that such decision was not a final appealable order, the Second District Court of Appeals stated, in relevant part, as follows: "Since the trial court's first decision did not preclude the possibility of Neary's applications being granted on remand, we cannot say his substantial right to use the land, if existent, was affected by the decision. Therefore, we conclude that the sic neither R.C. 2505.02(B)(1) nor (2) provide a basis for finding the trial court's first decision to be a final appealable order."