OHIO ZONING – THE CODE IN EXISTENCE AT THE TIME AN APPLICATION IS FILED GOVERNS

A little over 20 years ago, I represented a client in a zoning matter involving the development of a parcel of commercial property in southwestern Ohio.  The plans submitted to the local municipality included all of the pertinent aspects of the development, including the height and location of a pole sign advertising the client’s business to be operated on the parcel.  While a majority of the development plans were approved, the zoning director refused to permit the construction of the desired pole sign, stating that proposed changes to the zoning code currently under consideration by the municipality only permitted ground mounted signs, and those changes were likely to be passed and put into effect prior to the completion of the development and the installation of the sign.  We appealed the matter to the board of zoning appeals (BZA), arguing that, regardless of what the zoning code might say in the future, the current version of the code permitted pole signs in the district where the property was located, and the zoning director’s decision had to be based on that existing version of the code, and not some possible future version.  The BZA agreed with our position, and the matter was not pursued further by the zoning director, thus permitting my client to install the pole sign.

The recent Eighth District Court of Appeals case of TMS Enterprises Ltd. V. City of Cleveland Board of Zoning Appeals, 2024-Ohio-1888 (Cuyahoga CV-21-952074, May 16, 2024) confirmed the correctness of this decision.  In that case, TMS purchased certain property in April of 2020.  Although the property contained a dilapidated residence, the property was located in the C-2 General Retail district.  On September 22, 2020, TMS filed a change of use application to convert the property to a used car lot (a permitted use in the C-2 District) and also sought and received demolition permits, pursuant to which it demolished the residence.  Prior to the approval of the TMS change in use application, on October 7, 2020, the Cleveland City Council adopted a change in the zoning for the subject property to a multi-family zoning district (which does not permit used car lots), which change was to be effective November 6, 2020.  When TMS sought confirmation that its use of the property as a used car lot would be considered a preexisting, nonconforming use, it was informed that it would not, and its change in use application was denied.  The matter was appealed to both the Cleveland BZA and the court of common pleas, and both confirmed the denial.

In overturning these decisions, the Eighth District cited to the Ohio Supreme Court Case of State ex. rel. Fairmount Ctr. Co. v. Arnold, 138 Ohio St. 259 (1941) – which we also cited in our case before the BZA – in which the Supreme Court explained as follows:

[O]nce regulations are established, and so long as such regulations are in force, the state and its subdivisions are as much bound as the people to abide by such regulations. In other words, laws bind the state as well as the people.

Thus, where, as in the instant case, a property owner has complied with all the legislative requirements for the procurement of a building permit and his proposed structure falls within the use classification of the area in which he proposes to build it, he has a right to such permit, and there is a duty on the part of the officer charged therewith to issue it.  Subsequent legislation enacted pending applicant’s attempted enforcement of such right through administrative or legal channels cannot deprive him of that right.  The right became vested, under the law applicable thereto, upon the filing of the permit. (emphasis added)

Based on the foregoing, the Eighth District held that the court of common pleas erred as a matter of law in finding that TMS did not have a vested right in the preexisting, nonconforming use of the property as a used car lot, and remanded the case to the BZA to determine whether the change of use application should be approved in light of TMS’ vested right to use the property in accordance with the C-2 General Retail classification.