Agenda - Planning Commission - 02/06/2014

Home

January 10, 2014 Volume 8 I Issue 1 Zoning Bulletin Section 1280.05(a) of the Village Zoning Code (the "Code") addressed discontinuance or abandonment of a nonconforming use of property and provided: Whenever a nonconforming use has been discontinued for a period of six months or more, such discontinuance shall be considered conclusive evi- dence of an intention to legally abandon the nonconforming use. At the end of the six-month period of abandonment, the nonconforming use shall not be re-established, and any further use shall be in conformity with the provisions of this Zoning Code. In the case of nonconforming mobile homes, their absence or removal from the lot shall constitute discontinuance from the time of absence or removal. Because Sunset and Meadowview were unable to lease their mobile home lots which had been vacant for at least six months, they filed a com- plaint against the Village seeking, among other things, a declaration that § 1280.05(a) was unconstitutional on its face and as applied to them. Finding no material issues of fact in dispute, and deciding the matter on the law alone, the trial court granted suininary judgment in favor of the Village. It declared that § 1280.05 was not unconstitutional. It found that § 1280.05 was constitutional because it was "not arbitrary, capricious, un- reasonable, or unrelated to the public health, safety, welfare and morals." Sunset and Meadowview appealed. DECISION: Judgment of Court of Common Pleas reversed and matter remanded. The Court of Appeals of Ohio held that § 1280.05 was unconstitutional on its face as a violation of substantive due process. In so holding, the court explained that a zoning ordinance will be found to be unconstitutional on its face if it "has no rational relationship to a le- gitimate governmental purpose and . . . may not constitutionally be ap- plied under any circumstances." While an ordinance is presumed to be constitutional, the presumption of constitutionality may be overcome by proof "beyond a fair debate" that the ordinance is "arbitrary and unrea- sonable and without substantial relation to the public health, safety, mor- als, or general welfare of the community," said the court. The court noted that "[zjoning ordinances contemplate the gradual elimination of nonconforming uses within a zoned area, and where an ordinance accomplishes such a result without depriving a property owner of a vested property right, it is generally held to be constitutional." However, said the court, it is a constitutionally protected "right to continue to use one's property in a lawful business and in a manner which does not constitute a nuisance and which was lawful at the time such business was established." Consequently, in order for a lawful, nonconforming use to be extinguished, the use must be voluntarily abandoned, which requires "affirmative proof of the intent to abandon coupled with acts or omissions implementing intent." "Non-use alone is insufficient to establish abandon- ment," said the court. Here, among other things, the court found that § 1280.05 was drafted 2014 Thomson Reuters