June 24, 2014
Many of our clients have experienced the frustrations of dealing with the local zoning codes and zoning authorities. A recent case out of the Second District Court of Appeals in Montgomery County underscores the complexities of the zoning process and the importance of understanding how your local zoning code restricts the use of your commercial or residential property.
In Dayton Properties, LLC v. Jefferson Twp. Bd. Of Zoning Appeals, 2014-Ohio-2209, a property owner purchased an auto salvage business that had been in operation for over 60 years. At some point during the prior operation of the business, the township had changed the zoning classification of the property to “light industrial,” which did not permit the operation of an auto salvage business under the township’s zoning code. However, the business was permitted to continue as a nonconforming prior use.
When the owner purchased the property and business, he met with the township’s zoning director and disclosed his intent to add a scrap metal line of business to the auto salvage business already established at the property. The zoning officials told the property owner that his proposed line of business would comply with the zoning code based on the continuation of the property’s nonconforming use.
One year later, the property owner received a Legal Notice of Violation for operating the business outside the scope of allowable uses. The property owner appealed the Notice to the Board of Zoning Appeals, the Montgomery County Common Pleas Court, and finally to the Second District Court of Appeals, losing his case at each stop.
In reviewing the appeal, the Second District noted that the right to continue a nonconforming use is based upon the concept that one should not be deprived of a substantial investment which existed prior to the enactment of the zoning ordinance. However, the rights of a nonconforming user are limited, and the clear intent and purpose is to eliminate such uses as rapidly as possible. With respect to the subject property, the Second District found that the original nonconforming use of the property was only for the sale of parts from junked automobiles, and that to extend the nonconforming use to include the purchase of scrap metal is prohibited under the township’s zoning resolutions.
The Second District’s Decision highlights the importance of fully vetting any property you intend to purchase. It is imperative that you understand how the zoning resolutions will limit the use of your property. In the case discussed above, the property owner was found to be in violation of the zoning code despite the fact that the zoning officials advised him that his scrap metal business would be acceptable under the code.
The Finney Law Firm has years of experience advising clients on zoning issues. We represent clients in zoning hearings and we have appealed adverse decisions through the courts. Our firm has also been successful in defeating zoning provisions on both First and Fifth Amendment grounds. If you need help navigating the complexities of the zoning code or the appeals process, please do not hesitate to contact one of our qualified attorneys.