Cicerella v. Board , 59 Ohio App. 2d 31 ( 1978 )

The majority opinion finds each issue or assignment of error well taken. I respectfully state that I am in disagreement on each finding.

The law of nonconforming use is one relative to the balancing of the equities of the landowner and of the general public. Since in most cases it would not be equitable to abolish a pre-existing use by the passage of a conflicting general zoning plan, provision is made for the continuance of nonconforming uses.

When the equity of the owner no longer exceeds that of the general public, then the use can be made to conform to a legal land use plan. I view the case sub judice in this posture.

As to the first assignment of error, the majority opinion turns on statutory construction principles, and here is the first area of my disagreement. While it may be true that zoning restrictions should be construed in favor of the property owner, this principle and the cases in support thereof cited by the majority are not relevant to the case of a nonconforming use. No one challenges the validity of the zoning classification or contends that plaintiff's use is an agricultural use. Cf. State,ex rel. Spiccia, v. Abate (1965), 2 Ohio St. 2d 129, cited by the majority, where the issue turned on a restaurant use as compared to a "drivein" restaurant use.

Nonconforming uses are not favored in the law. 82 American Jurisprudence 2d 687, Zoning and Planning, Section 179. It is the law's purpose to gradually and lawfully eliminate such uses. In the matter of construction of such provisions directed to this end, laws and zoning resolutions are strictly construed in some states with a view to limiting the continuation of the nonconforming use. In Ohio it has been said that, "* * * such legislation should be given a fair and reasonable construction with due regard for the conflicting interests involved." SeeDavis v. Miller (1955), 163 Ohio St. 91, paragraph one of the syllabus. Consistent with the aims of zoning and with the prospect of a proven dangerous use in an agricultural district, I cannot agree that provisions relating to nonconforming uses should be given a laissez faire approach. Once the equities are on balance, the nonconforming user is no different than any other person wishing to use a parcel of land contrary to zoning regulations. See Young, The Regulation and Removal ofNon-conforming Uses, 12 W. Reserve L. Rev. 681, 691 (1961).

Keeping in focus the principle that as to nonconforming uses, it is the objective to lawfully eliminate these uses, I turn to the matter of construction of the township resolution. Judge Franklin, in a detailed journal entry, made thoughtful observations and conclusions which I adopt and incorporate by reference. He could not separate the building from its use, nor can I, for it is the existence of the building on which the equities turn.

A nonconforming use has been defined as:

"A `nonconforming use' comprehends the physical characteristics, dismensions, or location of a structure as well as the functional use thereof or of the premises on which it is located, and is used as a generic term that includes nonconforming use of conforming structures and plots, nonconforming use of nonconforming structures and plots, and conforming use of nonconforming structures and plots." See 82 American Jurisprudence 2d 684, Zoning and Planning, Section 178.

Section 7.5-5 provides the scale on which the equities are balanced. If the structure housing the nonconforming use is damaged to the extent set forth in the resolution, the use may not continue. Plaintiff argues, in effect, that the degree of destruction of the building is of no importance, that his use is a land use. This is not the case, for he would use the building and, of course, needs a certificate of occupancy. I find assignment of error No. 1 not well taken.

As to assignments of error 2 and 3, this was an R. C. Chapter 2506 appeal and additional evidence was taken in the Common Pleas Court. I find that there was sufficient evidence before the Board and the trial judge to support their findings as to the degree of the damage. As to assignment of error 3, again this was an R. C. Chapter 2506 appeal with additional evidence submitted. I think this overcomes the issue of due process if there was such a question. From the record, it appears that assignment of error 3 was not argued either in the administrative hearing or in the Common Pleas Court appeal and, therefore, cannot be presented here. At best, the matter should be referred back to the Board as it presents no grounds for giving to the plaintiff the relief which he claims.

I would affirm the judgment of the Common Pleas Court.