Appeals over ‘waver’ rules cost township $60K
Sheila McLaughlin reports:
Kyle Garth isn’t giving up his fight to put a costumed Lady Liberty on Tylersville Road to wave customers into his Liberty Tax Service.
After losing a decision in Ohio’s 12th District Court of Appeals, Garth is taking the case to the state’s highest court in a legal battle that’s already cost township taxpayers $60,000 in legal fees, according to records obtained by The Enquirer.
It will now cost even more given Garth’s appeals. And the township could wind up paying Garth’s legal fees if he wins.
The issue has created friction among township officials.
The controversy, triggered by a ticket from the township soon after Liberty Tax’s opening in 2009, prompted Trustee George Lang to set up a committee of residents and business owners to review the zoning ordinance and recommend changes.
He noted that he can put a political sign anywhere in the township all year, but the same doesn’t apply to people like Garth who are trying to do business in the township.
“I hope we lose. I hope the Supreme Court proves that what we are doing is unconstitutional,” Lang said. “On any nice day you can drive throughout the township and people are doing it. Why they singled this guy out for harassment, I don’t know.”
Garth’s attorneys asked the Ohio Supreme Court to take the case while they wait for an answer from the 12th District court about whether judges will reconsider their first appeal. Garth is still waiting on answers from both courts.
The township claims that Garth’s live costumed “waver” at the corner of Cox and Tylersville roads – his family business’ primary marketing tool – is a violation of the sign code. Liberty Tax Service sits back in an L-shaped shopping center anchored by Big Lots and Twin Dragon restaurant.
The case has been in one court or another since February 2011 after zoning officials rejected Garth’s request for a variance to allow the waiver.
Joel Frederic, one of two attorneys representing Garth, said the township’s sign regulations don’t address costumed figures.
He maintains that West Chester zoning officials are “overzealous” and trying to “over-regulate business.”
Zoning code highlights
West Chester Township’s zoning code defines signs 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 the private property for sale; promotional balloons affixed to a building, vehicle or the ground.
The township does allow businesses to put out temporary signs of a specific size three times a year for 14 days each.
Garth’s business neighbors don’t have a problem with Lady Liberty.
“I really don’t find that it is a distraction or anything. He’s not in anybody’s way,” said Erica Huntsman, who manages Tobacco Discounters in the same strip center.
Records obtained by The Enquirer show that West Chester has paid Frost Brown Todd law firm $57,392 in outside legal fees from February 2011 through October 2012.
Township officials say the figure has topped $60,000 by now.
Garth won’t say how much he’s spent on legal representation. But West Chester could be stuck paying his legal fees if he wins, Frederic said.
“They are wasting money on both sides,” Garth said, emphasizing that he’s running a family business with his wife and help from his parents. “It isn’t something that we have a big corporation that helps fund us and makes sure we are running.”
Township trustees Catherine Stoker and Lee Wong say tens of thousands in legal fees is money well spent.
“You have to defend your own regulations. You cannot opt to not enforce a particular regulation,” Stoker said. “The intent of the zoning board was to ensure that we don’t have so much visual clutter that it becomes unattractive and difficult for people to even find what commercial entities they are looking for.”
Wong says the township has no choice but to keep spending money on the case.
“They sued us,” he said. “We have to defend ourselves. If we don’t, we’ll have a shanty town (spring up) next to the nice downtown area.”
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