Milton v. Williamsburg Twp. Bd. of Zoning Appeals
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[Cite as Milton v. Williamsburg Twp. Bd. of Zoning Appeals, 2004-Ohio-1367.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY HUBERT D. MILTON, SR., et al., : : CASE NO. CA2003-04-030 : O P I N I O N 3/22/2004 Plaintiffs-Appellants, -vs- : : WILLIAMSBURG TOWNSHIP BOARD OF ZONING APPEALS, et al., Defendants-Appellees. : : CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2001-CVF-137 Burreson, Bradford & Hill, John C. Korfhagen, 40 S. Third Street, Batavia, OH 45103, for plaintiffs-appellants Kircher Law Office, LLC, Konrad Kircher, 4824 SocialvilleFoster Road, Suite 110, Mason, OH 45040, for defendantsappellees POWELL, P.J. {¶1} Plaintiffs-appellants, Hubert Milton, Sr., et al., appeal the decision of the Clermont County Court of Common Pleas upholding the decision of the Williamsburg Township Board of Zoning Appeals. We affirm the decision of the trial court. Clermont CA2003-04-030 {¶2} two acres In 1976, appellants became the owners of approximately of real property property is zoned A-1. in Williamsburg Township. The In 1976, appellants divided the property into five parcels, known as lots 101, 161, 162, 163, and 164. Hubert Milton, Sr. and Barbara Milton own Lot 101. Lots 161, 162, 163, and 164 are all approximately .57 acres and are owned by Hubert Milton, Sr. and Hubert Milton, Jr. At the time of their creation, all lots conformed to the requirements for development as single-family lots. {¶3} However, A residential house was constructed on lot 162 in 1978. appellants never applied for building permits constructed residences on lots 101, 161, 163, and 164. appellants had the properties surveyed again. or In 1990, Appellants intended to combine lot 162 with half of lot 101. Appellants then wanted to combine the other half of lot 101 with lot 164. However, appellants failed to file the deeds. Hubert Milton, Jr. testified the failure to file was "an error on my part." {¶4} In 1994, Williamsburg Township amended its zoning resolution to require a minimum lot size of 1.5 acres for lots to be used for single-family residential purposes. applied for a building permit in 2000 for lot 164. Williamsburg Township Zoning Inspector would Appellants However, the not issue the building permit. {¶5} As a result of the 1994 zoning resolution, the .57 acre lots, 161, 163, and 164, could no longer be used individually for single-family residential purposes, and the Williamsburg Township - 2 - Clermont CA2003-04-030 Zoning Inspector would not issue zoning certificates for the development of the lots. But, the Williamsburg Township Zoning Inspector stated lots 161, 163, and 164 have the same owners and could be combined to form a single, conforming lot. Furthermore, appellants are permitted to build on lot 101 since it is not in common ownership with any contiguous lots. {¶6} variance In December 2000, appellants filed an application for a with the Board Township ("Board"). application and of Zoning Appeals of Williamsburg On January 15, 2001, the Board heard the denied the variance. Appellants filed a complaint for declaratory judgment and an administrative appeal with the Clermont County Court of Common Pleas. The trial court entered judgment in favor of Williamsburg Township and dismissed appellants' case. Appellants appeal the decision arguing three assignments of error. {¶7} {¶8} OF Assignment of Error No. 1: "THE TRIAL COURT ERRED IN FINDING SECTION 912 AND 914 THE WILLIAMSBURG TOWNSHIP ZONING RESOLUTION LEGAL AND ENFORCEABLE." {¶9} Appellants argue that "a Township's Authority to enact zoning resolutions is limited to that authority granted to the Township by the General Assembly. Zoning regulations which exceed that authority are illegal and unenforceable." Appellants maintain that nothing in Chapter 519 of the Revised Code requires them to combine their nonconforming lots into a single lot. - 3 - Clermont CA2003-04-030 {¶10} The police power authority of townships to enact zoning ordinances, unlike municipalities, is not inherent, nor does it derive from a constitutional provision. Ohio St.3d 31, 32. power delegated Torok v. Jones (1983), 5 The zoning power of a township is a police to the township by the General Assembly. Yorkavitz v. Columbia Twp. Bd. of Trustees (1957), 166 Ohio St. 349, paragraph one of the syllabus. As such, "[t]he zoning authority possessed by townships in the state of Ohio is limited to that which is specifically conferred by the General Assembly." Bd. of Bainbridge Twp. Trustees v. Funtime, Inc. (1990), 55 Ohio St.3d 106, paragraph one of the syllabus. Accordingly, to the extent that a zoning regulation or rule violates an explicit statutory command of the General Assembly, it is preempted and is therefore invalid and unenforceable. Newbury Twp. Bd. of Trustees v. Lomak Petroleum (1992), 62 Ohio St.3d 387, paragraph one of the syllabus. See, also, Funtime at paragraph two of the syllabus; Crist v. True (1973), 39 Ohio App.2d 11, 12; Cole v. Bd. of Zoning Appeals for Marion Township (1973), 39 Ohio App.2d 177, 181. {¶11} R.C. authority. Chapter 519 grants townships limited zoning R.C. 519.19 specifically outlines the powers of a township board of zoning appeals with regard to the nonconforming use of land, and provides: "[t]he lawful use of any dwelling, building, or structure and of any land or premises, as existing and lawful at the time of enactment of a zoning resolution or amendment thereto, may be continued, although such use does not - 4 - Clermont CA2003-04-030 conform with such resolution or amendment, but if any such nonconforming use is voluntarily discontinued for two years or more, any future use of such land shall be in conformity with sections 519.02 to 519.25, inclusive, of the Revised Code." {¶12} A dwelling was constructed on lot 162 in 1978. Since the dwelling was existing and lawful when Williamsburg Township amended its zoning resolution to require 1.5 acres for singlefamily residential lots in 1994, the nonconforming use may be continued. However, lots 161, 163, and 164 have been vacant since appellants purchased them in 1976. There is no existing nonconforming use to continue on lots 161, 163, and 164. {¶13} A landowner has not been deprived of a pre-existing residential use of a lot where there has been no such use prior to enactment of the prohibition. Northhampton Building Co. v. Bd. of Zoning Appeals of Sharon Township (1996), 109 Ohio App.3d 193, 201. Since appellants voluntarily chose not to use the nonconforming lots for two years or more after the enactment of a zoning resolution, pursuant to R.C. 519.19, any future use of such land shall be in conformity with sections R.C. 519.02 to 519.25, inclusive. Consequently, the first assignment of error is overruled. {¶14} Assignment of Error No. 2: {¶15} "THE TRIAL COURT ERRED IN FINDING THAT THE EVIDENCE OF THE ECONOMIC VIABILITY OF THE LOTS IN THEIR CURRENT STATE IS SPECULATIVE AT BEST." - 5 - Clermont CA2003-04-030 {¶16} Appellants argue that the "opinions of a property owner and two expert witnesses that the lots have zero economic value as currently zoned establishes an unconstitutional taking beyond fair debate." Constitution property The Fifth provides for a public compensation is paid. that Amendment to governmental purpose are the United takings prohibited of States private unless just A "taking" may be a physical intrusion onto land, or it may be accomplished through a regulation that prohibits a use of land. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002), __ U.S. __, 122 S.Ct. 1465. {¶17} In order to constitute a "regulatory" taking, the measure involved must be permanent in nature and of such a character and effect that the owner is deprived of all or substantially all economic use of his land that is feasible. Id. However, "[a] landowner does not have a right to have his land zoned for its most advantageous economic use; the mere fact that the property would be substantially more valuable if used an alternate way is, in itself, insufficient to invalidate an existing zoning ordinance." Smythe v. Butler Township (1993), 85 Ohio App.3d 616, 621. {¶18} The property owner must demonstrate that the zoning restrictions render the property effectively valueless, without any economically beneficial use, such that the landowner should be compensated. 239, 245. Ketchel v. Bainbridge Twp. (1990), 52 Ohio St.3d "[S]omething more than loss of market value or loss of - 6 - Clermont CA2003-04-030 comfortable enjoyment of the property is needed to constitute a taking." State ex rel. BSW Dev. Group v. Dayton (1998), 83 Ohio St.3d 338, 345, quoting State ex rel. Pitz v. Columbus (1988), 56 Ohio App.3d 41. {¶19} The lots are zoned A-1 which allows buildings or premises for the following purposes: agriculture, churches, public elementary and high schools, public and private forests, cemeteries, golf courses, and hospitals. Hubert Milton, Jr. testified that he researched agriculture use and building a church on the property, and neither was economically feasible. {¶20} However, appellants concede that they may combine lots 161, 163, and 164 and make a profit by building a house on the combined lot. Additionally, Russell Canter, a real estate appraiser and broker, testified that such a lot would have a fair market value of $18,000. However, Hubert Milton, Jr. testified that while it would be economically feasible to build a house and make a profit on the combined lots, "it just wouldn't be as desirable" as building on the individual lots. Appellants believe building on the individual lots will "maximize" the value of the properties. {¶21} "Takings" jurisprudence does not favor claims that some more remunerative use is denied. Rather, the question is whether some economically feasible use remains. Feasibility refers to the reasonable availability of the use. Its economic character is its capacity to produce a material return. Both exist here, therefore, no "taking" has occurred for which compensation is - 7 - Clermont CA2003-04-030 required by the Fifth Amendment as a result of the Board's decision. The second assignment of error is overruled. {¶22} Assignment of Error No. 3: {¶23} "THE TRIAL COURT ERRED IN FINDING THAT SECTIONS 810, 912 AND 914 OF THE WILLIAMSBURG TOWNSHIP ZONING RESOLUTION SUBSTANTIALLY ADVANCES A LEGITIMATE GOVERNMENTAL INTEREST." {¶24} Appellant argues that there "is no legitimate governmental purpose advanced by prohibiting the owner of nonconforming lots of record from using those lots in accordance with their non-conforming status." {¶25} A zoning regulation is presumed to be constitutional unless determined by a court to be clearly arbitrary, unreasonable and without substantial relation to the public health, safety, morals, or general welfare of the community. Goldberg Cos., Inc. v. Council of the City of Richmond Heights, 81 Ohio St.3d 207, 214, 1998-Ohio-456. reluctant to responsible substitute for its applying judgment zoning A reviewing court must be for that ordinances. of the Ketchel body v. Bainbridge Twp. (1990), 52 Ohio St.3d 239, 246. {¶26} Timothy Hershner, an urban planner, testified that permitting a lot size smaller than 1.5 acres would increase population density and require greater costs and expense to the Township to provide public services from police, fire and emergency services, road maintenance, snow removal, water and sewer. Furthermore, Hershner testified that smaller lot sizes would compromise the character and nature of the Township and - 8 - Clermont CA2003-04-030 result in lower land values. Many of these concerns, including increased traffic congestion, maintenance of the single-family nature of a neighborhood and increased population density have been found to be legitimate governmental concerns justifying single-family classification. St.2d 488, 491. Leslie v. Toledo (1981), 66 Ohio See, also, Singer v. Troy (1990), 67 Ohio App.3d 507, 514. {¶27} Under these circumstances, the common pleas court could properly conclude that the zoning resolution served a legitimate public interest as a matter of law. error is overruled. {¶28} Judgment affirmed. WALSH and VALEN, JJ., concur. - 9 - The third assignment of
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