Court rejects bid to halt Dollar General construction

TOLEDO - The legal battle between residents and construction of a new Dollar General store in Catawba Island appears to be over after a Toledo court dismissed an appeal of the specifications in the project.

Richard Smetzer's court appeal claimed that Ohio Shore Development's application to build the store in Catawba Island Township failed to comply with provisions from the Catawba Island Township Zoning Resolution.

In his appeal, Smetzer took issue with the proposed placement of a fence, trash bin and three parking spaces along the east side of the property and asserted the zoning inspector did not have legal authority to place conditions on the zoning certificate. 

In a decision rendered Friday, Judge James Jensen of the Toledo-based Ohio Sixth District Court of Appeals denied Smetzer's appeal and cited previous case law where project construction had begun and previous stays in the legal proceedings were not granted in lower courts.

Judges Christine Mayle and  Mark Pietrykowski concurred with the ruling.

In a December 2016 decision, the board of zoning appeals affirmed the inspector's decision after finding the inspector acted appropriately in approving the application for the store, according to the judges decision.

"The Board of Zoning Appeals found that appellant’s arguments surrounding the fence and the trash bin were moot because these items were not within the scope of Ohio Shore’s application and were therefore not yet approved by the Zoning Inspector," Jensen opined. 

In January 2017, Smetzer appealed to the Ottawa County Common Pleas Court raising the same arguments, and in July, the trial court decided the application approval was affirmed.

Smetzer continued his appeal, asking for and being denied a stay in the trial court. He then filed a motion in June 2018 with the appeals court seeking a stay on the project, and the appeals court denied the request in an August decision.

In September 2018, Ohio Shore motioned to dismiss the appeal as moot and to continue oral arguments, but the appeals court denied the motion to continue.

Smetzer filed a motion for assignment of errors stating Ottawa County Common Pleas Court and Board of Zoning Appeals erred in failing to address his argument that three parking spaces on the site plan do not provide enough space to enter or exit the property.

In a second claim of error, Smetzer argued the court erred in upholding the zoning board's decision that his arguments that the fence and dumpster on the site plan were not properly presented before the zoning appeals board.

Jensen opined that Smetzer's appeal is moot, citing previous case examples where construction had begun on a property and Smetzer's previous denials in court to delay legal proceedings.

Jensen then granted Ohio Shore's motion to dismiss. 

Catawba residents had rallied against the discount store for more than two years, holding meetings and fundraisers to try to block the project, saying the chain store would not fit the quiet, "Mom and Pop" business-styled community.

cshoup@gannett.com

419-334-1035

Twitter: @CraigShoupNH