West Chester settles Liberty Tax lawsuit

Township will work to revise its zoning code to permit costumed advertising in certain circumstances.

It all started in early 2010, when Kyle Garth, owner of Liberty Tax Service, started battling a zoning code violation he received from the West Chester Twp. Board of Zoning Appeals after the business employed a woman to dress as Lady Liberty and stand near the road at 7743 Tylersville Road to attract customers to his business.

The board of zoning appeals said the use of a costumed advertising effort complete with portable sign violated multiple sections of zoning code, including: allowing the sign on property not owned by Liberty Tax; the sign being portable and not affixed to the ground; and exceeding the size limit, according to court records.

Liberty Tax in January 2011 appealed to the Butler County Court of Common Pleas the board’s decision to deny a request for a zoning variance that would have permitted the business to “exercise its principal advertising strategy” of employing someone to dress in a Statue of Liberty costume and wave to passersby.

In February 2012, the common pleas court affirmed the zoning board’s decision and divided into two parts the administrative appeal from the constitutional questions posted.

The Twelfth District Court of Appeals affirmed that decision in October 2012 and jurisdiction was denied by the Ohio Supreme Court in March 2013.

With the remaining constitutional issues raised by Liberty Tax pending before the trial court, the two sides agreed Tuesday to a settlement agreement.

As part of the agreement, West Chester will attempt to revise its zoning code so that an individual wearing a costume will be permitted in certain cases.

That means, if approved, the use of promotional costume devices, or PCDs, will be permitted for up to 70 total days per year and will not need to be on consecutive dates. Issuance of a permit will be required.

The minimum amount of days permitted in one block is seven days. Any words or numbers on the PCD or held by the costumed employee will still be regulated or prohibited by the township.

Only one PCD at a time will be allowed and only on the premises of the business being promoted.

During the time the township seeks to revise its zoning code, it agrees not to take any enforcement against Liberty Tax related to the use of a PCD, according to the settlement.

If the township cannot revise the zoning code, either side may revoke the settlement and resume litigation once it gives written notice to the the other party within 14 days of it becoming aware that the zoning code cannot be revised in this manner.

Barb Wilson, the township’s spokeswoman, said the process to change any part of the zoning code would need to be initiated by trustees, then the Butler County Planning Commission would need to have a public hearing and issue a recommendation.

After that, the West Chester Zoning Commission would need to do the same. The trustees would then need to have a public hearing, a first reading and then a second reading at a separate meeting before making a final decision.

Even after the final decision, a 30-day referendum period would be in place.

Officials with West Chester Twp. and Liberty Tax Service declined to comment on the settlement.

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