Hamilton County Zoning Litigation Demonstrates Value of Expert Testimony

Sophia R. Holley

A recent decision out of Hamilton County highlights the importance of experts in zoning disputes. In Kinney v. Newtown Bd of Zoning Appeals, 2021-Ohio-4217 (1st Dist.), the property owner sought planning commission approval for a proposed soccer field, seeking a conditional use permit under the Newtown Zoning Code. Upon request of the planning commission, the property owner retained an expert to conduct a traffic study. Newtown’s engineer opposed the development, and challenged a number of the findings of the property owner’s traffic study. 

When the planning commission denied the request for the conditional use permit, the owner appealed to the Newtown Board of Zoning Appeals. To support the proposed zoning application, the property owner retained a second traffic engineer to provide a more in-depth study. This second engineer found that the traffic from the development was acceptable, and refuted the findings of the Newtown engineer. Notably, a number of neighborhood residents opposed the zoning request at the public hearing before the Newtown Board of Zoning Appeals.

When the Newtown Board of Zoning Appeals ultimately denied the application for conditional use approval, the property owner appealed to the Hamilton County Court of Common Pleas, and succeeded. The trial court found that the neighborhood opposition was “speculative,” and that only the property owner had presented expert testimony from a traffic engineer. The First District Court of Appeals upheld the decision of the trial court, affirming the finding that the Newtown Board of Zoning Appeals improperly determined that the proposed soccer field would create traffic hazards. The court also highlighted that the simple fact that residents “spoke out” against the proposed zoning was not an appropriate basis for denial. 

The Kinney decision is available here. As a result of this zoning decision, the court ordered the Newtown Board of Zoning Appeals to grant the property owner’s conditional use permit. The Kinney case highlights the importance of expert testimony in zoning matters, particularly where a challenge is made based upon traffic impact. An experienced attorney can help in identifying where witnesses can be helpful in zoning disputes, and where they are absolutely necessary. 

Should you have any questions or need assistance, please contact Sophia Holley.

Sophia R. Holley

KMK Law articles and blog posts are intended to bring attention to developments in the law and are not intended as legal advice for any particular client or any particular situation. The laws/regulations and interpretations thereof are evolving and subject to change. Although we will attempt to update articles/blog posts for material changes, the article/post may not reflect changes in laws/regulations or guidance issued after the date the article/post was published. Please consult with counsel of your choice regarding any specific questions you may have.


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