State ex rel. Sunset Estate Props. v. Vill. of Lodi

• Decision Date: 10 March 2015
• Docket Number: No. 2013–1856.,2013–1856.
• Parties: The STATE ex rel. SUNSET ESTATE PROPERTIES, L.L.C., et al., Appellees, v. The VILLAGE OF LODI, Appellant.
• Court: Ohio Supreme Court

142 Ohio St.3d 351

30 N.E.3d 934

2015 Ohio 790

The STATE ex rel. SUNSET ESTATE PROPERTIES, L.L.C., et al., Appellees,

v.The VILLAGE OF LODI, Appellant.

No. 2013–1856.

Supreme Court of Ohio.

Submitted Sept. 10, 2014.

Decided March 10, 2015.

Mansour Gavin, L.P.A., John W. Monroe, and Tracey S. McGurk, Cleveland, for appellees.

Brouse McDowell, L.P.A., Irving B. Sugerman, Akron, Caroline L. Marks, and Alexandra V. Dattilo, Cleveland, for appellant.

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, Jeffrey Jarosh, Deputy Solicitor, and Hilary R. Damaser, Principal Assistant Attorney General, urging vacation of judgment for amicus curiae state of Ohio.

Elizabeth Birch, Dublin, urging affirmance for amicus curiae Ohio Manufactured Homes Association.

John Gotherman, Columbus, urging reversal for amicus curiae Ohio Municipal League.

O'NEILL

, J.

{¶ 1} In this case, we are asked to determine whether Section 1280.05(a) of the zoning code of the village of Lodi is unconstitutional on its face. We conclude that a portion of it is.

Facts and Procedural History

{¶ 2} The facts in this case are largely undisputed by the parties. Appellees, Sunset Estate Properties, L.L.C., and Meadowview Village, Inc., each own property in the village of Lodi on which they operate licensed manufactured-home parks (also called "mobile-home parks" herein). Both properties are in areas currently zoned as R–2 Districts, and R–2 Districts do not permit manufactured-home parks. Because the mobile-home parks in this case existed prior to the passage of the ordinance creating the R–2 Districts, the mobile-home parks are legal nonconforming uses under R.C. 713.15

.

{¶ 3} In 1987, appellant, the village of Lodi, passed an ordinance enacting Lodi Zoning Code 1280.05(a), a provision addressing discontinuation or abandonment of nonconforming uses. In general, the provision states that when a nonconforming use has been discontinued for six months, that discontinuance is conclusive evidence of the intention to legally abandon the nonconforming use. The final sentence of Lodi Zoning Code 1280.05(a) is specific to mobile homes. The provision states that the absence or removal of a mobile home from its lot constitutes discontinuance from the time of removal. In reliance on this provision, when a tenant left one of appellees' mobile-home-park lots and the lot was vacant for longer than six months, Lodi would refuse to reconnect water and electrical service when a new tenant wanted to rent the lot. As a result, appellees were not able to rent these lots and essentially lost a property right as to that portion of their property.

{¶ 4} Appellees filed a complaint against Lodi seeking a declaratory judgment, a mandatory injunction, and a writ of mandamus. They requested a declaration from the trial court that the ordinance is unconstitutional and that the ordinance constitutes a taking of their properties. They also sought a mandatory injunction and a writ of mandamus ordering Lodi to institute appropriation proceedings. The trial court granted summary judgment in favor of Lodi on all counts. The court concluded that the zoning ordinance is not unconstitutional on its face or as applied, that it does not constitute an unreasonable interference with appellees' property rights as guaranteed by the United States and Ohio Constitutions, and that the ordinance does not constitute a taking of appellees' property. Appellees appealed, asserting that the trial court erred in granting summary judgment in favor of Lodi. The Ninth District agreed and reversed the trial court's judgment. The court concluded that the zoning ordinance was unconstitutional on its face. The appellate court ordered the cause remanded to the trial court to determine the appropriate remedy for appellees.

{¶ 5} Lodi appeals to this court asserting the following proposition of law: "A municipal zoning ordinance which precludes a property owner from re-establishing a nonconforming use after a specified period of nonuse does not facially violate the due process clauses of the Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution

."

Analysis

{¶ 6} We review de novo a decision granting or denying summary judgment. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 24

.

{¶ 7} "In a facial challenge to a zoning ordinance, the challenger alleges that the overall ordinance, on its face, has no rational relationship to a legitimate governmental purpose and it may not constitutionally be applied under any circumstances." Jaylin Invests., Inc. v. Moreland Hills, 107 Ohio St.3d 339, 2006-Ohio-4, 839 N.E.2d 903, ¶ 11

, citing State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 137, 729 N.E.2d 359 (2000) (Cook, J., dissenting). See also

State v. Beckley, 5 Ohio St.3d 4, 7, 448 N.E.2d 1147 (1983).

{¶ 8} "This court has consistently approved the constitutionality of comprehensive zoning ordinances * * *." Akron v. Chapman, 160 Ohio St. 382, 385, 116 N.E.2d 697 (1953)

. "Zoning is a valid legislative function of a municipality's police powers." Jaylin Invests. at ¶ 10, citing Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926) ; Article I, Section 19, Ohio Constitution ("Private property shall ever be held inviolate, but subservient to the public welfare"). "[A] strong presumption exists in favor of the validity of [an] ordinance." Hudson v. Albrecht, Inc., 9 Ohio St.3d 69, 71, 458 N.E.2d 852 (1984), citing Downing v. Cook, 69 Ohio St.2d 149, 151, 431 N.E.2d 995 (1982).

"The basis for this presumption is that the local legislative body is familiar with local conditions and is therefore better able than the courts to determine the character and degree of regulation required." Id ., citing Wilson v. Cincinnati, 46 Ohio St.2d 138, 142, 346 N.E.2d 666 (1976)

.

{¶ 9} As this case demonstrates, there are occasions when a particular land use predates a zoning ordinance. In such cases, the property owner's use of the property remains legal but is considered a nonconforming use. The Ohio Revised Code has a general provision addressing nonconforming land use. R.C. 713.15

provides:

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, but if any such nonconforming use is voluntarily discontinued for two years or more, or for a period of not less than six months but not more than two years that a municipal corporation otherwise provides by ordinance, any future use of such land shall be in conformity with sections 713.01

to 713.15 of the Revised Code.

{¶ 10} "Zoning ordinances contemplate the gradual elimination of nonconforming uses within a zoned area, and, where an ordinance accomplishes such a result without depriving a property owner of a vested property right, it is generally held to be constitutional." (Emphasis deleted.) Chapman, 160 Ohio St. at 386, 116 N.E.2d 697

. Courts have upheld both the denial of the right to resume a nonconforming use after a period of nonuse and "[t]he denial of the right to substitute new buildings for those devoted to an existing nonconforming use and to add or extend such buildings * * *. See 58 American Jurisprudence, 1026 and 1029, Sections 156, 158 and 162 and [State ex rel. City Ice & Fuel Co. v. Stegner, 120 Ohio St. 418, 166 N.E. 226 (1929) ]." Chapman at 386–387, 116 N.E.2d 697. See also

Brown v. Cleveland, 66 Ohio St.2d 93, 96, 420 N.E.2d 103 (1981), quoting Chapman at paragraph one of the syllabus (" ‘Uses which do not conform to valid zoning legislation may be regulated, and even girded to the point that they wither and die’ "); Curtiss v. Cleveland, 170 Ohio St. 127, 163 N.E.2d 682 (1959) ; Davis v. Miller, 163 Ohio St. 91, 95–97, 126 N.E.2d 49 (1955) (Taft, J., concurring).

{¶ 11} The authority of state and local governments to regulate land use is vast but not unbounded:

The right to continue to use one's property in a lawful business and in a manner which does not constitute a nuisance and which was lawful at the time such business was established is within the protection of Section 1, Article XIV, Amendments, United States Constitution, and Section 16, Article I of the Ohio Constitution

, providing that no person shall be deprived of life, liberty or property without due process of law.

(Emphasis sic.) Chapman at paragraph two of the syllabus.

{¶ 12} In Chapman, this court recognized that the definition of "property" includes the unrestricted possession, use, enjoyment, and disposal of lands or chattels. And "[a]nything which destroys any of these elements of property, to that extent destroys the property itself. The substantial value of property lies in its use. If the right of use is denied, the value of the property is annihilated and ownership is rendered a barren right." Id. at 388, 116 N.E.2d 697

, citing Spann v. Dallas, 111 Tex. 350, 235 S.W. 513 (1921), and O'Connor v. Moscow, 69 Idaho 37, 202 P.2d 401 (1949).

{¶ 13} Here, the village of Lodi enacted the following zoning ordinance regarding nonconforming land use:

Whenever a nonconforming use has been discontinued for a period of six months or more, such discontinuance shall be considered conclusive evidence of an intention to legally abandon the nonconforming use. At the end of the six-month period of abandonment, the nonconforming use shall not be re-established, and any further use shall be in conformity with the provisions of this Zoning Code. In the case of nonconforming mobile homes, their absence or removal from the lot shall constitute discontinuance from the time of absence or removal.

Lodi Zoning Code 1280.05(a).

{¶ 14} Lodi argues that it enacted Lodi Zoning Code 1280.05(a) in order to protect property...