Sheila McLaughlin reports:
A controversial zoning case over West Chester’s refusal to allow the Liberty Tax Service waver to draw in business at Tylersville and Cox roads was back in court Thursday.
West Chester Township’s attorney Scott Phillips now claims that the costumed Liberty Tax waver is a “device” and is therefore considered a sign. Because it doesn’t meet certain requirements, it is banned by the township’s zoning resolution. The zoning code defines a sign as a “device, structure, fixture or placard.”
That drew criticism from business owner Kyle Garth’s lawyer, Bob Smith.
“A device is like a mechanical apparatus,” Smith said. “The resolution does not ban costumes. There is no merit to it. If they say a costume is a device … the judge’s robe is a device, the UPS uniform is a device, Halloween costumes are a device according to West Chester.”
The two sides have ping-ponged between two courts since 2011. Trouble started when Garth and his wife, Lorraine, opened the business in a small strip center off Tylersville Road in 2009 and was ticketed almost immediately by zoning officials.
Garth claims that the mascot, dressed like the Statue of Liberty, isn’t a sign and can’t be restricted by West Chester. He also contends that West Chester is violating his right to commercial free speech.
Wednesday’s hearing was about the definition of a sign. Judge Patricia Oney of Butler County Common Pleas Court didn’t rule immediately and promised a written decision in the future, but didn’t say when.
Garth said he’s lost about one-third of his tax season business because he isn’t allowed to have a waver. It’s considered the top marketing tool for the company, which franchises its businesses and operates nationwide.
“The bigger issue here is not being able to employ people who would love to have this position, said Garth, who lives in nearby Mason. “I went into this looking at just the fact that West Chester would be a nice place to have a business and it’s kind of been a different story at this point.”
Smith said Oney has the authority to decide the issue herself. She can also pass, at which point the case will go to a jury.
Phillips declined comment, referring reporters to the township’s media relations officer, who wasn’t immediately available.
Last October, the Ohio 12th District Court of Appeals sent the case back to Oney after ruling that the West Chester Board of Zoning Appeals properly handles hearings to decide whether the mascot was allowed under the township’s sign code.
Garth’s attorneys appealed again to the Ohio Supreme Court, which declined to consider the case.
Zoning code highlights
West Chester Township’s zoning code defines a sign as “any device, structure, fixture or placard using graphics, symbols and or written copy for the primary purpose of identifying, providing directions or advertising any establishment, product goods or services.”
Prohibited signs include: pennants, banners, streamers; signs that revolve, rotate, whirl or spin; all portable business advertising signs; beacons and searchlights; signs on parked motor vehicles or trailers; real estate signs anywhere except on private property for sale; promotional balloons affixed to a building, vehicle or the ground.
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