City of Marietta v. Bd. of Trs. for Wash. Cnty. Woman's Home
| Decision Date | 26 October 2020 |
| Docket Number | No. 19CA23,19CA23 |
| Citation | 161 N.E.3d 736,2020 Ohio 5144 |
| Parties | The CITY OF MARIETTA, Plaintiff-Appellee, v. BOARD OF TRUSTEES FOR WASHINGTON COUNTY WOMAN'S HOME, et al., Defendants-Appellants. |
| Court | Ohio Court of Appeals |
Stephen W. Funk and Emily Anglewicz, Akron, Ohio, for appellants.
Paul G. Bertram, III, Marietta City Law Director, Marietta, Ohio, for appellee.
DECISION & JUDGMENT ENTRY
{¶ 1} This is an appeal from a Washington County Common Pleas Court summary judgment entered in favor of the City of Marietta, plaintiff below and appellee herein. The Board of Trustees for the Washington County Woman's Home, Mary Antons, Oriana House, Inc., and James J. Lawrence, defendants below and appellants herein, assign the following errors for review:
{¶ 2} For nearly one hundred twenty-three years, the Washington County Woman's Home operated a nonprofit home for elderly women at 812 Third Street in Marietta, Ohio. During the Woman's Home's existence, the City of Marietta enacted zoning ordinances that placed the property in a zoning district designated as a single-family detached residential district (an R-2 district). After the city enacted its zoning ordinances, the Woman's Home continued operating as a lawful nonconforming use.
{¶ 3} In 2018, the Woman's Home placed the property for sale. Oriana House, Inc., a nonprofit organization, entered into a contract to purchase the property. Oriana House took possession of the property with the intent to operate a residential treatment facility.
{¶ 4} Oriana House representatives contacted the city to ask about zoning permits and later submitted and obtained a "Zoning Use Certification" from the Marietta City Engineer. Shortly thereafter, the Southeast Ohio Building Department issued Oriana House a certificate of occupancy.
{¶ 5} City representatives had some back-and-forth discussions with appellants regarding Oriana House's proposed use of the property and the city's zoning ordinances. The city ultimately took the position that Oriana House must seek and obtain a special use permit from the Planning Commission in order to operate a residential treatment facility on the property.
{¶ 6} Oriana House, however, did not agree. Oriana House believed that the city's zoning ordinances did not require it to obtain anything other than a use and occupancy permit.
{¶ 7} On April 17, 2019, the city filed a complaint against appellants and requested the court to enjoin appellants from operating a residential treatment facility without first obtaining a special use permit. Appellee alleged that, until the middle of 2018, the Woman's Home served as "a special kind of retirement home, basically a retreat from poverty and want, for elderly women who did not wish to live alone," and that it offered "a non-institutional, pleasant home-like atmosphere for its occupants." Appellee also asserted that the Woman's Home is located in an R-2 zoning district and the use of the property as a residential facility for elderly women is a nonconforming use.
{¶ 8} Appellee alleged that use of the property as a residential treatment facility constitutes a change in the Woman's Home's nonconforming use, not a mere continuation of the Woman's Home's nonconforming use. Appellee thus claimed that, because Oriana House sought to change one nonconforming use to another nonconforming use, the zoning ordinances require Oriana House to obtain a special use permit.
{¶ 9} Appellee further alleged that it notified Oriana House to apply for a special use permit, but Oriana House has not. Appellee thus asserted that the "Washington County Woman's Home is permitting an unlawful use" and "violating Marietta City zoning codes by allowing Oriana House, Inc. to continue with their renovations and plans to open a Residential Treatment Facility." Appellee additionally claimed that Oriana House is violating the zoning codes by renovating the property in anticipation of operating a residential treatment facility.
{¶ 10} Consequently, appellee requested an injunction to permanently enjoin appellants "from permitting to operate or operating a Residential Treatment Facility * * * without first obtaining a ‘Special Use Permit.’ "
{¶ 11} Appellants simultaneously filed an answer and a motion for summary judgment. Appellants asserted that they have obtained all required permits necessary to operate a residential treatment facility and they need not obtain a special use permit to lawfully operate a residential treatment facility. In particular, appellants raised two essential points to support their argument.
{¶ 12} First, appellants alleged that Marietta Codified Ordinances Section 1105.01 permits Oriana House to operate a residential treatment facility as a continuation of the Woman's Home's lawful nonconforming use. Appellants claimed that Section 1105.01, construed in light of the Ohio Supreme Court's decision in Akron v. Klein , 171 Ohio St. 207, 168 N.E.2d 564 (1960), gives Oriana House the right to operate a residential treatment facility as a continuing lawful nonconforming use. Appellants thus asserted that Oriana House's proposed use of the property as a residential treatment facility merely continues the same lawful nonconforming use of the Woman's Home's use as a residential facility for elderly women. Appellants noted that in Klein , the court held:
Where a zoning ordinance provides that the lawful use of any land or premises existing at the time of its enactment may be continued as a nonconforming use, such ordinance continues the right to use land or premises in a residential-use district in a business of the same kind as, although it does not represent any continuation or part of, the particular business that was being conducted on such land or premises.
Id. at paragraph six of the syllabus.
{¶ 13} Appellants asserted that Oriana House's proposed use of the property as a residential treatment facility is the "same kind" of use as the Woman's Home's use as a residential facility for elderly women. Appellants thus contended that Klein gives it the right to continue using the property as a lawful nonconforming use and that Oriana House need not obtain a special use permit.
{¶ 14} Appellants next argued that, even if Oriana House's nonconforming use is not the "same kind as" the Woman's Home's nonconforming use, then Section 1105.03 allows, as a matter of right, the substitution of one nonconforming use for another nonconforming use of the "same classification," so long as the party requesting the substitution obtains a use and occupancy permit. Appellants contended that: (1) Oriana House's use of the property falls within the same classification as the Woman's Home, and (2) Oriana House obtained a use and occupancy permit. Appellants further noted that appellee did not dispute either of the two foregoing points.
{¶ 15} Appellants disagreed with appellee that the zoning ordinances require Oriana House to obtain a special use permit from the Planning Commission before Oriana House can lawfully operate a residential treatment facility on the property. Appellants asserted that appellee's assertion that Oriana House must apply for, and obtain, a special use permit from the Planning Commission disregards the plain text of the zoning ordinances and results from a tortured construction of the zoning ordinances. Appellants further argued that, to the extent that the zoning ordinances are ambiguous, the court must construe them in their favor.
{¶ 16} Appellants therefore requested the trial court to conclude that appellants are not violating any zoning ordinances by proceeding with plans to operate a residential treatment facility on the property and that appellants are entitled to judgment as a matter of law.
{¶ 17} To support their summary judgment motion, appellants submitted the affidavit of James J. Lawrence, the President, Chief Executive Officer, and Executive Director of Oriana House, Inc. Lawrence stated that Oriana House is a "nonprofit corporation which provides substance abuse treatment programs, community corrections programs, and reentry and housing programs throughout Ohio." He asserted that Oriana House "operates a residential treatment facility at the former Woman's Home" and that this facility "provides sleeping accommodations to the residents and does not use more than 25% of the floor area for central office purposes."
{¶ 18} Appellee responded and also filed a cross-motion for summary judgment. Appellee agreed with appellants that the zoning ordinances "permit[ ] the substitution of a nonconforming use for another nonconforming use within the same classification so long as use and occupancy permits are obtained." Appellee further agreed that Oriana House and the Woman's Home fall within the "same classification." Appellee claimed, however, that appellants' right to substitute Oriana House's nonconforming use for the Woman's Home's nonconforming use is contingent upon not only obtaining a use and occupancy permit but also upon obtaining a special use permit.
{¶ 19} Appellee argued that Section 1113.02(g) requires appellants to obtain a special use permit before Oriana House may substitute its use as a residential treatment facility for the Woman's Home's use as a residential facility for elderly women. Appellee noted that Section 1113.02(g)(4) governs uses within an R-3 district and states:
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...precedent to such continuance to secure from the zoning authorities such a permit.’ " City of Marietta v. Bd. of Trustees for Washington Cty. Woman's Home , 2020-Ohio-5144, 161 N.E.3d 736, ¶ 70 (4th Dist.), quoting State v. Pierce , 164 Ohio St. 482, 132 N.E.2d 102 (1956), paragraph one of ......