For now, Hilliard resident Tom Herlihy will be able to keep a cultivated garden and landscaped lot at 3540 Franklin St.
The Hilliard Board of Zoning Appeals on Sept. 19 overturned a city zoning officer's decision on the cultivation of the unimproved lot on Franklin Street in Old Hilliard.
Despite giving a presentation that BZA members were told to disregard, Herlihy successfully appealed a claim that he was in violation of city's property maintenance code concerning weeds and high grass.
Howver, during the 90-minute hearing, Chairman Brent Gilmore repeatedly advised Herlihy that his presentation was not germane to the case.
Law Director Tracy Bradford told BZA members to "disregard in their entirety" the documents Herlihy had submitted, in part because the information was not relative to the case and that it also included statements from individuals not present that amounted to hearsay.
Still, the BZA voted 6-0 to overturn the violation.
Following the verdict, Bradford had not decided whether city officials would appeal the BZA's decision in Franklin County Municipal Court, she said.
Bradford said the city has 30 days to decide.
Herlihy told BZA members during his presentation he would clear the undeveloped lot in about 30 to 45 days as winter is approaching.
At issue was the cultivation of the lot, including the planting of sunflowers, pumpkin plants, lamb's ears and other exotic plants that in the city's view are weeds because they exceed 6 inches in height.
Rocks also are part of the landscaping.
Bradford said the case was problematic because Herlihy is cultivating a vacant lot.
Typically, as part of a development plan, a landscaping plan is submitted for review, explained City Planner John Talentino.
But since Herlihy is not developing the lot, there was no opportunity to review the landscaping.
Herlihy said he believed a neighbor called his property to the attention of the zoning officers, a statement that drew a warning from Bradford and Gilmore.
"It doesn't matter where the complaint originated," Gilmore said.
Herlihy also told BZA members of places in the city that had weeds and other zoning offenses, but Gilmore told him the BZA was there to consider only his case.
The parcel he owns was the site of a single-family home from 1922 to 1995, according to Herlihy.
Herlihy, president of Herlihy Development on Main Street, told BZA members he desired to maintain the parcel in a manner that is beneficial to its ecology, citing letters from the Franklin Soil and Water Conservation District that say the plants he is using facilitate the recharging of groundwater.
Herlihy said he wanted to create something "enjoyable to all who view it" until he disposes of the property.
"I'm not convinced he is complying," said BZA member Chris Boshane, who suggested Herlihy work with city officials to craft a landscaping plan to address the situation.
BZA member Cornell Robertson also asked Herlihy if he would submit a plan.
Before he could reply, Bradford said the BZA was asking the administration to take action not in its purview.
"Compliance with the city code lies in the hands of the Planning and Zoning Commission or City Council," Bradford said.
BZA member Scott Movshin said Herlihy had "good intentions" but the garden was seemingly in violation of city statutes.
BZA members asked Bradford what would occur if the BZA upheld the zoning officer's decision and was advised it could be accepted or appealed, but the city could take necessary action to abate the violation.
At the conclusion of the case, Bradford aided BZA members in crafting an affirmative motion asking whether to uphold the decision of the zoning officer. All six members voted no.
"The city is disappointed by the board's decision," Bradford said after the meeting, adding that it "probably played in the applicant's favor" when he stated his intention to clear the lot within 45 days.
Bradford said city officials will review the case and decide whether to appeal the decision to Municipal Court.
"The city will also be taking a close look at our property maintenance code to determine if changes need to be made in order to avoid similar situations," Bradford said.