DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of the City of Vandalia, the City of Vandalia Board of Zoning Appeals, and the Council of the City of Vandalia ("the City"). The City appeals from the August 27, 2013 decision of theMontgomery County Court of Common Pleas, on the administrative appeal of BD Development ("BD"), in which the court found, after a hearing to adduce additional evidence, that a zoning ordinance requiring BD to pave its lot with a "hard surface" is not unconstitutionally vague, and that BD complied with the ordinance by paving the areas with compacted gravel.
{¶ 2} The record reflects that Robert Vann, the owner of BD Development, requested a parking lot variance for his property located at 1001 S. Brown School Road in March of 2009. The minutes of the meeting before the April 8, 2009 Vandalia Board of Zoning Appeals ("BZA") reflect as follows:
* * * Mr. Vann explained how he bought the property in 2007 and completely turned the property around. Towards the end of 2007, Mr. Vann constructed a new garage to the rear of the property, which he recently opened as a service garage to serve the public. Fire inspections were done at the property on the first of March, and it was questioned whether or not the city was aware of the new business. Mr. Vann and Mr. Anderson spoke about the new business and arranged for Ms. Vogel to come out and review zoning on the site. There was a substantial expansion of parking and maneuvering areas that were gravel. Ms. Vogel told Mr. Vann that gravel parking and maneuvering areas are not permitted and would have to be brought up to code.
Mr. Vann said that he received an occupancy permit from the City and he was never aware of this requirement. He called the City in June for an
occupancy permit and they told him the zoning had to be finalized. An occupancy permit for the building was issued in July. The applicant said that he had the gravel put down in May, spending $60,000, and planned to install the pavement in 10 years or so, once the economy turns around. The applicant added that in order to install pavement he would have to throw out the existing gravel. Mr. Herbst stated that some of the gravel could be used for a base under the pavement. The applicant stated that some of the gravel would be used, but some would have to be taken away to accommodate the new pavement.
Ms. Vogel stated for the record that there is false information in the application for the variance. Mr. Vann was granted a permit for the new building and there was no indication of expanded parking on the drawings. However, there was a note on the drawings that all parking/driveways were to be paved. Our inspectors were not aware of the gravel parking areas until the Fire Inspection was done last month. Ms. Vogel further added that this is a requirement of the Zoning Code, not the Building Code, and the new use associated with the property would make it necessary to assume compliance of any non-conforming issues associated with the site. Mr. Vann asked if he took away the new use, would gravel still be permitted, Ms. Vogel said that it was never approved as gravel parking, it would still be a violation of the Zoning Code.
Ms. Vogel added that either way the Board decides to vote on the
variance, the city would need to see a plan for the parking lot which addresses drainage on the property. This was stated in the memo from staff. The City Engineer will review the drainage plans when submitted.
A letter was received by the City from a business located in front of Mr. Vann's property (to the east on Brown School Rd.), they were not able to make the meeting, but they wanted to address their concerns. It states that since parking areas have been constructed, they have been experiencing severe water runoff from that property (the letter is attached). Mr. Vann said this is the first he was aware that the drainage was an issue and said the adjacent property has never addressed those concerns to him. Ms. Vogel said that we also just received the letter and were made aware of this, however, the zoning code requires that there are no adverse effects on adjacent properties and parking is designed for adequate drainage per Section 1280.08(g)(2).
{¶ 3} At the conclusion of the meeting the BZA voted to approve the variance, and subsequent correspondence to Vann from the City Council provides that "your variance request was granted as a temporary variance until October 1, 2012 during which the current property owner * * * * would not be required to pave the existing gravel parking areas," and an "application shall be re-submitted for the variance on or before the expiration of the temporary variance (October 1, 2012)."
{¶ 4} The record reflects that Vann applied for a "variance to allow gravel paving" on September 10, 2012. He attached his March, 2009 initial application. The recordreflects that the BZA unanimously recommended denial of the request on September 26, 2012 "because the Board found that the minimum variance to afford relief was not to indefinitely maintain gravel parking on the site." The minutes of the meeting reflect in part as follows:
Mr. Vann explained that he can't afford to pave the site. He said he already went through the expense of redirecting drainage on the site to address the complaint of a neighbor directly to the east. He said it would cost him an additional $24,000 to provide drainage retention for the site if he paved all of the gravel. He has received a total estimate for asphalt and engineering of $175,000, if he would have to pave the gravel areas.
Ms. Vogel said that Mr. Vann did hire an Engineer to address the drainage concerns on the site. The City Engineer, Mr. Galvin, worked with Mr. Vann's consultant and the drainage system has been installed effectively. Mr. Galvin indicated that the runoff rates are diminished presently with the gravel condition; however, the system was designed with the intention of it being paved in the future. Ms. Vogel said she would have to discuss with the City Engineer whether or nor detention/retention would be required on the site.
{¶ 5} The record contains "Workshop Minutes" reflecting meetings that the BZA held to discuss the variance request for a permanent gravel parking lot on October 15, 2012, October 22, 2012, and November 5, 2012.
{¶ 6} A hearing was held before the City Council on November 19, 2012.Counsel for BD argued as follows:
* * *
It is a unique property. And like all regulations I think the regulation has to be applied based on the uniqueness of how it will be applied on a particular business, particularly a commercial property like this. And the reason this particular property is unique, it is on a somewhat downhill slope, not a major downhill slope but it's downhill slope enough that when it does rain, there is a substantial amount of water runoff down the roadway.
It does not affect my client's property, but part of the reason it doesn't affect it is because the water is then running into the gravel parking lots and being absorbed and not going on downhill to Brown School.
Another thing that makes the property unique is it cannot be seen from the roadway except for that private drive so it doesn't affect anyone. The third thing is most of the parking here is not for employees. It's for trucks that simply come in there and park for long-term parking.
And as you're aware, they've divided the four areas into A, B, C, and D; and C and D are the two areas which has long-term parking where trucks generally just stay and really I cannot see any basis at all for paving those particular areas.
Miss Vogel has already acknowledged to the council that there is no dust problem out there and I believe it's already been acknowledged that there have been no complaints upon my client's property. So based upon theuniqueness of it we are requesting that you grant us at least a partial variance and to that extent we talked briefly I think at our meeting about paving various sections and the various alternatives.
My client has looked at his finances and that has been the major issue here. Because of the economy, he just cannot get the money to do all the necessary paving that he is not required to do. He would - - he's more than agreeable to paving section A by 2014, November, and we picked that day I think because Mr. Brusman indicated that that would be an appropriate time in terms of the weather and it should be completed by then. We find it should be completed by then. We find it somewhat difficult though * * * financially to do area B within this particular time frame.
And I think we all agree, area B was previously gravel to begin with. It's been grandfathered in, with the exception of the fact that my client added an additional ten feet beyond the end of the building. If that is an issue with the Council, my client has indicated to me that he is willing to do one of two things, either asphalt that last little ten feet or just to dig the gravel up and go back and plant grass seed there as it originally was when he purchased the property. Because the original gravel was there up to the edge of the building and as you can see from the photograph, it extends approximately ten feet now beyond the building.
Area C and D, again, they - - it would be just inappropriate because the water runoff is going to be tremendous if those particular areas are pavedand right now they are absorbing a lot of the
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