Build On This!

In Accent Group, Inc. v. Village of North Randall (October 6, 2005), 8th App. Dist. No. 85757, the Ohio Court of Appeals for the Eighth District held last week that a property owner’s failure to exhaust its administrative remedies precluded the trial court from granting relief in its declaratory judgment action challenging the constitutionality of a zoning ordinance. In Accent Group, Inc., a property owner (Accent Group) purchased land in 1996 in the Village of North Randall. It began operating an automobile electronics and customization business on the property, and spent $760,000 in improvements to convert a building on the property into a showroom and automobile accessory installation area. In 1999, the owner ceased its automobile electronics and customization business, and attempted to lease the building to three separate prospective tenants.

However, the tenants (an acupuncture clinic, check cashing business and an auto repair shop) never filed formal applications for zoning permits. On January 1, 2001, the Village of North Randall passed a new ordinance that prohibited auto repair on parcels similar to the owner’s property. On February 27, 2001, the owner filed suit seeking a declaration that the zoning ordinance was unconstitutional on its face, and that the ordinance, as applied to its property, amounted to a regulatory taking without just compensation.

The trial court granted summary judgment in favor of the Village of North Randall. The trial court held, citing to Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 17, that there was no “actual controversy” because Accent Group (and its prospective tenants) did not file a zoning application with the Village. Accent Group could have obtained a use variance (if it exhausted its administrative remedies), and thus, a determination of the constitutionality of the zoning ordinance would not have been necessary. Consequently, Accent Group’s declaratory judgment action was not “ripe for review.”

The Indiana Law Blog reports that the Catholic Worker of Michiana may file a lawsuit under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA”) to prevent the City of South Bend, Indiana from enforcing its residential zoning laws to shut down one of its shelters. The City of South Bend wants to prevent Catholic Worker of Michiana from operating a shelter in a residential area. RLUIPA is a federal statute that was passed in 2000 to provide protection for religious freedom in the land-use and prison contexts.

In Ohio, the Free Republic recently reported a similar story where the Ridgeville Township, Ohio Board of Zoning Appeals rejected a request for a permit that would have allowed a Toledo-area church to renovate its facilities to house Louisiana evacuees.

The constitutionality of RLUIPA was recently before the U.S. Supreme Court in Cutter v. Wilkinson which reversed a ruling by the Sixth Circuit Court of Appeals that held that the 2000 statute unconstitutionally advances religion by giving religious prisoners greater rights than their secular counterparts.

John Slagter of Buckingham, Doolittle & Burroughs, LLP filed one of the first cases in Ohio under RLUIPA.

Recently, a controversial bill, House Bill 23 (the "Community Defense Act of 2005"), was introduced in the Ohio legislature that proposes new restrictions on "strip clubs." However,the Ohio Senate recently postponed voting on House Bill 23.

The bill would prohibit dancers at the clubs from coming within six feet of patrons and gives townships more power to regulate the clubs. The bill was instead moved to the Senate Rules Committee for more study. A copy of the bill as re-referred to the Senate Rules Committee can be downloaded here.

On October 21, 2005, the 11th Appellate District rendered a decision in Brown v. Painesville Twp. Bd. of Zoning Appeals (Oct. 21, 2005), 11th App. Dist. No. 2004-L-047, 2005-Ohio-5608. In Brown, the 11th District rejected an appellant's self-imposed hardship argument on the basis that the Board of Zoning appeals did not specifically make a finding on that issue. Because "there was no finding by the BZA that [the applicant] was denied the use variance . . . on the basis of self-imposed hardship * * * we cannot address [her] issue of self-imposed hardship." Id. The Brown court went on to say that "any inferred finding of self-imposed hardship would be extraneous to the BZA's decision that [the applicant] failed to meet her burden of showing an unnecessary hardship." Id.

Another interesting aspect of Brown is the court’s treatment of takings and use variance law. In State ex rel Shemo v. Mayfield Heights (2002), 96 Ohio St. 3d 379, 496, the Ohio Supreme Court held that “a compensable regulatory taking could occur either if the application of the zoning ordinance to the particular property is constitutionally invalid, i.e., it does not substantially advance legitimate state interests, or denies the landowner all economically viable use of the land.” Similarly, in a use variance hearing, the “critical issue in the determination of whether to grant a requested use variance is whether a literal enforcement of the resolution will result in an unnecessary hardship to the party requesting the use variance.” In re Appeal of Dinardo Constr. Inc. (March 31, 1999), 11th App. Dist. No. 98-G-2138. Ohio courts have held that a zoning regulation imposes an unnecessary hardship sufficient to support the granting of a use variance if the only permitted uses are not economically feasible. Consequently, one could say that the legal standards in takings and use variance laws appear to be the same.

However, the 11th District held in Brown that a finding of economic infeasibility in a takings case does not prove economic infeasibility for a use variance. The Brown court noted that in a use variance request, an applicant must prove that the unique characteristics of the property render it economically infeasible to put the property to its legal use - - much like in a takings case. However, in addition, the applicant must prove that the proposed use is in the public interest. A takings, on the other hand, only seeks compensation. As such, a takings analysis only addresses the first requirement of a use variance (i.e., economic infeasibility) but does not address the second requirement, that the proposed use is in the “public interest."

Land Use and Zoning attorney John P. Slagter reports that the long awaited decision in the case of Jaylin Investments, Inc. v. Village of Moreland Hills, 107 Ohio St. 3d 339, was decided by the Ohio Supreme Court today, January 11, 2006. This decision outlines the approach necessary to prosecute an "as applied" constitutional challenge of a local zoning law. The decision was written by Justice Lundberg Stratton, with four other Justices joining in the majority. Justices Pfeifer and O'Donnell dissented. Attorney Slagter will provide further analysis of this case over the next few days.

In Gonda v. Austintown Twp. Bd. Of Zoning, 7th Dist. No. 05 MA 14, 2006 Ohio 670, Appellant had appealed an adverse ruling of the Board of Zoning Appeals to the court of common pleas. At the hearing before the trial court, appellant attempted to admit evidence that had not been admitted in the administrative hearing. The trial court refused to hear the new evidence and affirmed the decision of the board.