Daniel held the mortgage on the two properties in question that were owned by his son at the time of the BZA vote. If he had not participated in the vote it would not have passed for lack of a quorum on the board.
U.S. District Court Judge Susan Dlott in November denied a motion for a preliminary injunction.
“The court concludes that plaintiffs have not established a likelihood of success because they did not have a protected property interest in the discretionary variance approval vote by the Zoning Board sufficient to confer standing or create procedural due process rights...,” Dlott wrote.
“The actions of Alan Daniel and the Zoning Board to have allowed Daniel to vote in favor of the variances despite his conflict of interest are offensive. The citizens of Butler County, including plaintiffs, deserve better from their governmental representatives.”
She noted in her opinion that the plaintiffs were not at the February meeting when the vote was taken to object, although they were notified. They also did not timely file an appeal to the Butler County Common Pleas Court.
The 6th Circuit Court of Appeals sided with Dlott ruling the courts can’t second-guess a BZA decision and “the corrupt manner in which the decision was made does not change this analysis.”
“A more fundamental issue with the Residents’ assertion of a property interest in the outcome of the zoning variance decision is that variance decisions are discretionary. The Ohio Supreme Court has explained that zoning boards rule on variance applications ‘with a wide discretion with which the courts will not interfere unless that discretion is abused’,” the panel wrote.
“Determining whether practical difficulties justify a variance for a property is a factual question for the zoning board. Because ‘the law is clear that a party cannot have a property interest in a discretionary benefit,’ the Residents lack a protected property interest in this case.”
Technically the case is not over because only the injunction was appealed, but like Dlott, the three-judge appeals panel wrote “because the residents lack a property interest, they are unlikely to succeed on the merits.”
The neighbors’ attorney Matt Miller-Novak told the Journal-News they have not decided what their next step will be.
“We are disappointed with the decision as you can imagine. Although we must recognize and accept the court’s judgment, we still maintain that the actions of Mr. Allen were unlawful and disturbing,” he wrote. “He has harmed some of his constituents with his self-dealing, and he has no business in government in our opinion.”
Butler County Sheriff Richard Jones mentioned Daniel this week when discussing corruption in Butler County and said they are waiting to hear back from the Ohio Ethics Commission about this issue but “we’re looking at a criminal investigation” into several matters involving the township.
Trustees Brian McGuire and Jeff Willoughby said they didn’t want to discuss this matter, the township has no control over zoning matters.
Butler County Prosecutor Mike Gmoser was pleased the appeals court upheld Dlott’s decision.
“This case has been given extensive and thoughtful deliberation and consideration by the second highest court in the land, the court of appeals, and affirmed the likewise deliberative decision of Judge Dlott,” Gmoser said. “All of which I appreciate and it concludes this case.”
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