Bell v. Rocky River Bd. of Zoning Appeals , 122 Ohio App. 3d 672 ( 1997 )

I respectfully dissent. The right to continued lawful nonconforming use of real property is a well-recognized constitutional and statutory restriction on the exercise of local zoning authority. The majority's opinion to the contrary is not supported by the law or facts, particularly under the exceptional circumstances of this case.

The record shows that the premises in this case were used for approximately fifty years as both a retail gasoline and automobile service station. The property owner's removal and cleanup of leaking underground gasoline storage tanks, deemed by the majority to be "voluntary" — although required by state law — does not establish abandonment of the other preexisting nonconforming use as an automotive service station.¹ As a result, the property owner should be permitted, at an absolute minimum, to continue, without substitution, commercial use of the existing premises as an automotive service station.²

Courts usually construe and apply zoning ordinances to nonconforming uses reasonably to avoid constitutional infirmities arising in these circumstances. E.g., Burt Realty Corp. v.Columbus (1970), 21 Ohio St. 2d 265, 269, 50 O.O.2d 491, 493 494,257 N.E.2d 355, 358. Although the trial court's opinion may not be flawless, its resolution of these issues is consistent not only with the prior unpublished opinion of this court in SupremeOil Corp. v. Lakewood (Apr. 29, 1976), Cuyahoga App. No. 34628, unreported, but also with substantial authority. See, e.g., SunOil Co. v. Upper Arlington (1977), 55 Ohio App. 2d 27,9 O.O.3d 196, 379 N.E.2d 266; Curtiss v. Cleveland (1957), 110 Ohio App. 139,12 O.O.2d 415, 146 N.E.2d 323, affirmed as modified (1959),170 Ohio St. 127, 10 O.O.2d 85, 163 N.E.2d 682. It also has the added virtue of ensuring simple justice and fairness to a citizen caught between two government bureaucracies.

It is both draconian to mandate the complete destruction of an existing commercial building and pure fiction to postulate residential use of the property given its contamination history. Application of the zoning ordinances in this Kafkaesque manner may constitute an unconstitutional taking of property without just compensation. See Akron v. Chapman (1953), 160 Ohio St. 382, 52 Ohio Op. 242,116 N.E.2d 697; State ex rel. Pitz v. Columbus (1988), 56 Ohio App. 3d 37, 564 N.E.2d 1081.

Compliance with state-mandated cleanup laws should not be used as a guise by local authorities to eradicate nonconforming uses by law-abiding property owners. I am, therefore, unwilling to join the majority.

¹ The majority states that sometime after April 1995, the premises were not used "as a gas station." The city simply proclaimed abandonment by November, only three months after removal of the last tank, and while the state-mandated cleanup was continuing. The building commissioner's January 12, 1996 letter erroneously contended in support that the tanks had been removed four years earlier "in 1992." (No one disputes that the correct date is 1995.) The state fire marshal, moreover, did nor even issue the property owner a "no action letter" indicating that the cleanup was completed satisfactorily until January 5, 1996.

The majority applies the R.C. 713.15 state law requirement that discontinuance of a nonconforming use be "voluntary" even though the local ordinance dispenses with this element. However, the majority holds that compliance with mandatory state law governing Underground Storage Tanks, in R.C. 3737.88 et seq and Ohio Adm. Code 1301:7-9, is "voluntary."

Even under the theory that the act of removing the underground gasoline tanks was "voluntary," the owner was "involuntarily" delayed from resuming complete use of the property by state-mandated compliance with these comprehensive plan approval, cleanup, and completion requirements. The majority fails to consider whether, in addition to any conflict with R.C. 713.15, the local ordinances also conflict with these comprehensive state UST laws, including time periods for required approvals. See, generally, Fairview Park v. Barefoot Grass Lawn Serv., Inc. (1996), 115 Ohio App. 3d 306, 685 N.E.2d 300, for a discussion of similar issues.

² It is not clear whether the property could lawfully be used for some other commercial use. The majority flatly asserts that it cannot. However, the cited cases are distinguishable, and the majority's own opinion dictates a contrary result.

The majority specifically holds that R.C. 713.15 controls when it conflicts with a local zoning ordinance. The final sentence of R.C. 713.15, omitted from the majority opinion, provides as follows:

"The legislative authority of a municipal corporation shall provide in any zoning ordinance for the completion, restoration, reconstruction, extension, or substitution of nonconforming usesupon such reasonable terms as are set forth in the zoningordinance." (Emphasis added.)

R.R.C.O. 1165.03 (a) and 1165.06 conflict with this statute because they absolutely prohibit these required changes to nonconforming uses.

The Ohio Supreme Court in Brown v. Cleveland (1981), 66 Ohio St. 2d 93,20 O.O.3d 88, 420 N.E.2d 103, immediately after the excerpt quoted by the majority, recognized that unlike the Rocky River ordinances, the Cleveland ordinances permitted such changes under specified conditions. Id. at 96, 20 O.O.3d at 89-90,420 N.E.2d at 105-106. In fact, this court, contrary to the majority opinion, previously invalidated a Cleveland zoning ordinance which left approval of such changes to the unfettered discretion of the zoning board. Curtiss v. Cleveland (1957), 110 Ohio App. 139,12 O.O.2d 415, 146 N.E.2d 323, affirmed as modified (1959),170 Ohio St. 127, 10 O.O.2d 85, 163 N.E.2d 682. The Rocky River ordinances do not even grant such discretion, and the city did not exercisc any, because the ordinances prohibit all commercial changes. Even if it had, the building commissioner believed wrongly that the use had terminated four years earlier. See fn. 1, supra.