An Ohio appeals court ruled that a Central Ohio car collector's plan to build a garage capable of storing more than a half dozen autos, in addition to housing multiple car lifts, exceeds Genoa Township zoning regulation and, therefore, was rightfully denied.

The suburban area's regulations require accessory structures, such as a garage, to be "customarily incidental and subordinate" to an applicant's residence.

"... Based on our more limited standard of review as an appellate court in this type of case, we find no reversible error in the trial court's affirmance of the decision of the BZA (Delaware County Board of Zoning Appeals) and its finding that the garage would not comply with the zoning regulations," ," 5th District Court of Appeals Judge John Wise wrote for the 2-1 court.

Homeowner Kevin Clark's plan was to build a detached garage at his home for parking and storing his automobiles, according to summary included in the decision.

The proposed garage is 2,329 square feet gross, but under a zoning code formula for computing square footage, it is slightly less than 1,200 square feet. The garage was intended to store six to 10 automobiles and utilize two or three car lifts.

The property, zoned SR - suburban residential, consists of 1.04 acres and has a 2,725 foot home in which Clark and his family reside.

He requested the zoning permit in 2007, summary indicated. The zoning inspector refused to issue the permit on the basis of Section 203.01, finding the square footage of the proposed garage would be greater than the zoning code allows. Clark appealed the decision to the BZA, which reasoned the structure's square footage did not exceed the maximum allowed by the zoning code, but the building was not an accessory building as defined by regulation.

Clark appealed in Licking County Court of Common Pleas, which affirmed the BZA ruling. The lower court wrote in its entry July 9, 2008 that the purpose of a six- to 10-car garage is not "customarily incidental or subordinate in nature to a single family residence."

Clark appealed the lower court ruling Aug. 7, 2008, faulting it for finding the structure did not comply with the accessory use definition of the zoning regulation and for substituting its judgment for that of the BZA.

"We find, as a matter of law, that the afore cited Section 203.01, Section 209.01 (private garage), Section 505.04 (accessory structures), and 208.09 (floor area) must be read in the conjunctive," Wise continued.

"The Trustees of Genoa Township, via Section 203.01, have set forth a somewhat broad definition of the term accessory use or structure, providing the fact finder with room to interpret the phrase 'customarily incidental and subordinate in area, extent or purpose' under community standards.

"We herein reject the proposal that the general definition of accessory use or structure contained in 203.01 does not apply to garages that meet the definition of private garage and conform to the size requirements."

Section 209.01 of Genoa Township Zoning Code defines a private garage as "a detached accessory building or a portion of a main building, intended for the parking or storage of automobiles, motorized recreational vehicles or boats owned by the occupants of the premises."

Additionally, Section 505.04 provides that on a parcel of one acre or more but less than three, the number of accessory structures - excluding gazebos or picnic shelters - shall be limited to two. Maximum floor area of any single accessory building and the maximum of all accessory structures combined shall not exceed 1,200 square feet.

Floor area is defined in Section 208.09 as the gross horizontal area of all the floors of the building measured from the exterior faces of the exterior walls or from the centerline of walls separating two buildings. Automobile parking space in a basement or garage is not included in the formula, according to the code.

"Thus, under Section 208.09, the area for parking a vehicle is excluded in computing the square footage of a garage," Wise continued. "... The trial court drew a distinction between the area used to 'store' a vehicle as opposed to the area used to 'park' a vehicle, and found storage area should be included when computing square footage. Nevertheless, the trial court found appellant's proposed garage does not exceed 1,200 square feet.

"The court, however, applied Section 203.01, supra, and found the manner in which appellant intended to use the garage was not a customary use, and also found the garage was larger than the customary size. ... The court also noted the BZA testimony that an application for an accessory structure of this size and nature was unprecedented."

Clark's attorney, Nicholas Cavalaris of the Columbus firm Smith & Hale LLC, did not respond to an inquiry by press deadline.

Presiding Judge W. Scott Gwin offered sole dissent in which he faulted both the zoning board and the lower court for failing to make a finding that the proposed structure does not qualify as a private garage.

"Having found the proposed structure met all the specific requirements of the zoning code, the trial court should have stopped there and ruled in appellant's favor," Gwin wrote.

"Instead, the court also applied the requirements of the general ordinance, Section 203.01, and found the manner in which appellant intended to use the garage was not a customary use. The court also found the garage was larger than the customary size.

"I find that to be error. I find the general definition of accessory use or structure contained in 203.01 does not apply to structures that meet the specific definition of private garage and conform to the size requirements.'

Judge Patricia Delaney joined Wise to form the majority.

The case is cited as Clark v. Genoa Twp. Bd. of Trustees, 2009-Ohio-3159.

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