Introduction

The Supreme Court of Ohio has long held that land-use restrictions may not apply retroactively to preclude the lawful use of land unless such use creates a public nuisance.1 Accordingly, when a new zoning law restricts or outlaws existing uses that would otherwise be lawful, these “nonconforming uses” are “grandfathered in” and permitted to continue after the new law’s effective date.2 But only an actual use may be grandfathered in. The law generally does not protect the contemplated or expected use of land.

Or does it? In Boice v. Village of Ottawa Hills,3 the Supreme Court of Ohio upheld a challenge to the application of a zoning restriction, and in the process, may have upended the traditional rule that only land use may be protected against retroactive zoning restrictions.

I. Background

Willis and Annette Boice owned two adjoining lots of real property: a 57,000-square-foot lot that included their house, and a vacant 33,000-square-foot lot.4 When the Boices purchased these lots, the zoning code permitted structures to be built on any lot that was at least 15,000 square feet.5 An amendment to the zoning code, however, required that “buildable” lots be at least 35,000 square feet.6 The Boices later wanted to sell the vacant lot as a buildable lot and sought a variance to that effect.7 The variance, however, was denied.8

Following administrative challenges, the Ohio Court of Appeals affirmed the denial.9 According to the court, “to qualify as a valid preexisting nonconforming use, the use must be both existing and lawful at the time of the enactment of the zoning ordinance.”10 A nonconforming use does not arise simply because a property owner contemplated such use.11 Here, the Boices “never used the [vacant] parcel as a buildable lot and therefore never acquired a vested right to use the property as a buildable lot.”12

II. The Ohio Supreme Court’s Decision

The Boices appealed to the Ohio Supreme Court and argued that they had acquired a vested right in the “buildable” status of their vacant lot, and that therefore, the village should have granted the variance.13 The court, in a 4-to-3 decision, agreed—emphasizing traditional notions of individual property rights.

The court explained that zoning laws “are in derogation of the common law and deprive a property owner of certain uses of his land to which he would otherwise be lawfully entitled,” and therefore, zoning laws are “ordinarily” construed in favor of the property owner.14 Further, because zoning authority is a police power and “interferes with individual rights,” any use of the police power “must bear a substantial relationship to a legitimate government interest and must not be unreasonable or arbitrary.”15 With these precepts in mind, the court determined that the denial of the “area” variance had resulted in “practical difficulties,”16 including the greatly reduced value of the vacant lot, and concluded that the variance should have been granted.17

The majority identified “three pillars” supporting its conclusion: (1) the buildable status of the Boices’ vacant lot should have been grandfathered-in; (2) the difference between the 35,000-square-feet requirement and the vacant lot’s 33,000 square feet was de minimis; and (3) the Boices had been subject to disparate treatment, as they were the only property-owners who had been denied similar variances.18

Discussing the first factor, the majority returned to its earlier theme of individual property rights. Here, the majority relied on Norwood v. Horney,19 the Ohio Supreme Court’s landmark decision that prohibited the use of eminent domain for solely economic-development purposes.20 In particular, the Boice majority cited Norwood’s discussion of the “Lockean notions of property rights” that were incorporated into the Ohio Constitution, thereby demonstrating “the sacrosanct nature of the individual’s ‘inalienable’ property rights,” which are to be held “forever ‘inviolate.’ ”21

On these grounds, the majority rejected the argument that “until construction has begun on a lot, the lot has no legal ‘use,’ and the property owner can have no expectations about the future use of the property. . . .”22 Otherwise, property would be “subject to governmental regulations that can change overnight.”23 Such a result “would eliminate the constitutional protections that people must be afforded….”24 The appellate court’s decision to the contrary had thus “ignore[d] well-settled land-ownership rights in this country.”25

III. Dissenting Opinion

Had the appellate court ignored well-settled law? Not according to the dissent, which emphasized that (until now), a nonconforming use could be established only if “the property [was] actually . . . used in that [nonconforming] manner” at the time the zoning restriction was put in place.26 Here, the Boices had used the vacant lot only as a side yard to their residential lot; they had never begun construction, and they had not even requested a variance until 26 years after the zoning ordinance was enacted.27 The Boices’ expectation that their property would always remain buildable was just that—an expectation, not a vested right.28

IV. Conclusion

The crux of this dispute is the interpretation of “use.” As noted above, the majority rejected the notion that construction must begin before property owners may obtain a vested right in a “legal use.”29 The dissent disagreed with what it described as the “majority’s transformation of ‘expectations’ into a legally cognizable ‘use[,]’ ”30 and argued that the majority’s rationale marks a “drastic change” in Ohio’s zoning law.31 Perhaps it will.

 

*Oliver Dunford is an attorney at Hahn Loeser’s Cleveland office.

 

Endnotes

1 City of Akron v. Chapman, 116 N.E.2d 697 (Ohio 1953).

2  See, e.g., O.R.C. § 713.15 (“The lawful use of any dwelling, building, or structure and of any land or premises, as existing and lawful at the time of enacting a zoning ordinance or an amendment to the ordinance, may be continued, although such use does not conform with the provisions of such ordinance or amendment ….”).

3  Boice v. Vill. of Ottawa Hills, 999 N.E.2d 649 (Ohio 2013).

4  Id. at 650.

5  Id.

6  Id.

7  Id.

8  Id.

9  Boice v. Vill. of Ottawa Hills, 2011 Ohio 5681, at ¶¶7, 45.

10  Id. at ¶48.

11  Id.

12  Id. at ¶49 (emphasis sic).

13  Boice, 999 N.E.2d at 651.

14  Id. at 651-52 (internal quotation marks and citation omitted).

15  Id. at 652 (internal quotation marks and citation omitted).

16  See Kisil v. City of Sandusky, 465 N.E.2d 848 (Ohio 1984), syllabus (“The standard for granting a variance which relates solely to area requirements should be a lesser standard than that applied to variances which relate to use.” A successful application need show only “practical difficulties.”).

17  Boice, 999 N.E.2d at 652-53. See id. (“ ‘[T]he factors to be considered and weighed in determining whether a property owner seeking an area variance has encountered practical difficulties in the use of his property include, but are not limited to: (1) whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance; (2) whether the variance is substantial; (3) whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance; (4) whether the variance would adversely affect the delivery of governmental services (e.g., water, sewer, garbage); (5) whether the property owner purchased the property with knowledge of the zoning restriction; (6) whether the property owner’s predicament feasibly can be obviated through some method other than a variance; (7) whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance.’ ”) (quoting Duncan v. Middlefield, 491 N.E.2d 692 (Ohio 1986), syllabus).

18  Id. at 653-54.

19  110 Ohio St.3d 353, 2006 Ohio 3799, 853 N.E.2d 1115.

20  See Boice at 654, citing Norwood, 2006 Ohio 3799, at ¶¶34-38.

21  Norwood at ¶37, quoting Ohio Const., Art. I, §§ 1, 19.

22  Boice, 999 N.E.2d at 653.

23  Id. at 653-54.

24  Id. at 654.

25  Id.

26  Id. at 656 (Lanzinger, J., dissenting) (emphasis in the original) (citations omitted).

27  Id. at 657 (Lanzinger, J., dissenting).

28  Id. (Lanzinger, J., dissenting).

29  Id. at 653.

30  Id. at 657 (Lanzinger, J., dissenting).

31  Id. at 656 (Lanzinger, J., dissenting).