BEAVER TOWNSHIP Judge rules for B.J. Alan
The township can't outlaw something that state law allows, the judge ruled.
By BOB JACKSON
VINDICATOR COURTHOUSE REPORTER
YOUNGSTOWN -- A judge has ruled in favor of B.J. Alan Fireworks Co. in its dispute with Beaver Township over a zoning permit.
Judge Jack Durkin of Mahoning County Common Pleas Court ordered the township to issue a zoning permit so the company can build a retail store on Market Street.
The decision comes about a month after the township had already decided it could not prohibit in its zoning code something that is allowed by state law and agreed to grant the company a zoning permit.
The company applied for a permit in November 2003, but Zoning Inspector Michele Swope rejected it three days later because the township's zoning code did not allow the sale of fireworks.
Judge's reason
But Judge Durkin wrote in his four-page decision, issued Thursday, that the township cannot ban something that is allowed under Ohio law. He said the state allows the sale of commercial fireworks, so it must be legal in the township.
B.J. Alan's Phantom Fireworks operated a 3,000-square-foot showroom at state Routes 46 and 11 for years before it burned in September. That store had been operating long before the township's ban on fireworks went into effect.
The company sued in December, saying the township's ban on fireworks was unconstitutional.
Atty. Alan D. Wenger, who represents the township, said the sides had agreed to a settlement in mid-December, which led to the township's issuing the permit. He wasn't sure why it hadn't been signed until Thursday.
Complying with rules
In exchange, the company agreed to comply with new zoning regulations regarding the new building's proximity to a major highway and public water and sewer systems. Only certain types of fireworks may be sold, repackaged or stored there.
B.J. Alan's attorney, Edward Kancler of Cleveland, could not be reached to comment.
bjackson@vindy.com