Agenda - Planning Commission - 03/02/1999

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z.g. February 10, 1999- Page 5 Nonconforming Use -- City prohibits parking commercial vehicles in residential driveways Citation: State of Ohio v. Skilwies, Court of A~2pea(s .of Ohio, 2nd Appellate Dist., Montgomery County, No. 17077 (1999) . ,' '~ Skilwies owned a house in an area zoned residential' ektate in Riverside, Ohio. Sometime before June 1997, he began parking a dumptruck with com- mercial plates on his 4-acre lot. In June 1997, the city passed anlOrdinance that prohibited parking com- mercial vehicles or heavy equipment in residential driveways or yards. (The ordinance didn't apply to temporary parking for loading or unloading materi- als or passengers.) Anyone who violated the ordinance faced a fine of up to $100 for the first offense. Second offenders faced a fine of up to $250 and/or imprisonment for up to 30 days. The city cited Skilwies fo[ violating the ordinance. Skilwies asked the court to dismiss the charge, arguing the city couldn't enforce its new zoning regulation retroactively. According to Skilwies, the or- dinance was really an improper attempt to regulate aesthetics under the guise of regulating parking. He also claimed he had established a nonconforming use by legally parking his dumptruck on his property before the city prohibited him from doing so. The city claimed Skilwies didn't prove he was entitled to park his dumptruck on his property as a prior nonconforming use. According to the city, Skilwies failed to provide any proof he had a legal right to park his dumptruck on the property before the city passed the or. dinance. · The city also argued it had the power to apply the new ordinance retroac- tively because the purpose of the ordinance was to abate a nuisance. The city pointed out that the ordinance itself clearly stated the city planning council had concluded that the unrestricted parkin~ of commercial vehicles and heavy equip- ment in residential areas reduced th:b value of other residences in the area, increased air and noise pollution, and threatened the safety of children and other pedestrians. ' The court refused to dismiss the: charge, and Skilwies was found guilty. The court fined him $12 plus court costs, for a total fine of $74. Skilwies appealed. DECISION: Reversed. Skilwies' conviction was overturned. The city couldn't enforce the zoning ordinance retroactively. Even if it could, Skilwies' parking of his dumptruck on his property was a prior nonconforming use. The ordinance couldn't be enforced retroactively because its primary pur- pose was aesthetics, not nuisance abatement. There was nothing wrong with the city taking aesthetics into account when it enacted a zoning ordinance, so the ordinance itself was proper. But land use regulations could be applied retro- actively only if they were aimed at abating a nuisance, and the city's claim-