COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71666 : ACCELERATED DOCKET MARILYN J. BELL : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ROCKY RIVER BOARD OF ZONING APPEALS: : : Defendant-Appellant : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : JULY 31, 1997 CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court Case No. CV-304546 JUDGMENT : REVERSED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: MICHAEL BRUCE GARDNER DAVID J. MATTY 22132 Westchester Road Director of Law Cleveland, Ohio 44122 City of Rocky River c/o 55 Public Square Suite 1775 Cleveland, Ohio 44113 - 2 - PER CURIAM: This case came on for hearing upon the accelerated calendar of our court pursuant to App.R. 11.1 and Loc.R. 25, the records from the court of common pleas, and the briefs of counsel. The Rocky River Board of Zoning and Building Appeals prosecutes this appeal from a judgment of the Cuyahoga County Common Pleas Court which reversed the decision of the Board, thus allowing Marilyn Bell, the owner of property located on Hillard Boulevard in Rocky River, Ohio, to continue her nonconforming use as a gas station. The record in this case reveals that in 1946, the City of Rocky River issued a building permit to Bell's father, Frank DeMaris, for installation and operation of a gasoline service station on property located at 18545 Hillard Boulevard. Thereafter, he operated a gas station at that location for many years. The parties agree that Rocky River City Council rezoned this property for multi-family residential use subsequent to its authorized gasoline service station use, but permitted continuation of the nonconforming use in accordance with the city's codified ordinances. Sometime after April, 1995, Bell discontinued use of the property as a gas station and removed the underground gasoline storage tanks on two separate dates, June 29, 1995, and August 8, 1995. On August 10, 1995, the State Fire Marshall notified her - 3 - of unacceptable soil level contamination in the former location of the tanks which required her to undertake a process of closure, site assessment and remediation in accordance with R.C. 3737. During that time, on January 12, 1996, Rocky River Building Commissioner, Kevin Beirne, notified Bell that the existing service station building had to be demolished and that any future uses of the property had to comply with multifamily residential zoning. Thereafter, on January 17, 1996, Bell appealed to the Board of Zoning Appeals which affirmed Beirne's decision, and resulted in Bell's further appeal to Cuyahoga County Common Pleas Court. That court, relying on Supreme Oil Corp. v. City of Lakewood (April 29, 1978), Cuyahoga App. No. 34628, unreported, reversed the decision of the Board of Zoning Appeals and ruled that R.C. 713.15, not RRCO 1165.03(b), controlled the outcome of this case, and found that the Board had not shown that Bell intended to abandon the nonconforming use of the property as a gas station for two years. From that decision, the Rocky River Board of Zoning Appeals brings this appeal to our court and assigns two errors for our review which we shall consider together. They state: I. THE CITY OF ROCKY RIVER THROUGH ITS CHARTER AND ADOPTED ORDINANCE, CONTROLS THE DISCONTINUATION OF NONCONFORMING USES WITHIN ITS JURISDICTION. - 4 - II. APPELLEE VOLUNTARILY ABANDONED HER NONCONFORMING USE. Essentially, appellant asserts that the court erred in applying Supreme Oil Corp., supra, as precedent here because the legislature amended R.C. 713.15 after that decision to allow more local control over nonconforming uses, and also erred in failing to determine that Bell had voluntarily discontinued her nonconforming use. Bell acknowledges that the legislature amended R.C. 713.15 in 1987, but argues that these amendments do not affect the precedential value of Supreme Oil Corp., supra, because the evidence does not demonstrate her voluntary abandonment of the nonconforming use. She also argues that she has the ability to substitute a different nonconforming use at the site without municipal regulation or approval. The issue then presented for review is whether the trial court erred in relying on Supreme Oil Corp., supra, to determine the outcome of this case. Before considering this matter, it is incumbent to review the Ohio Supreme Court Rules for the Reporting of Opinions. Specifically, Rule 2(G) provides that unreported opinions may be cited but: (1) ***shall not be considered controlling authority in the judicial district***. and (2) ***shall be considered persuasive authority on a court***. Opinions reported in the Ohio - 5 - Official Reports, however, shall be considered controlling authority for all purposes in the judicial district***. In Supreme Oil Corp., supra, this court considered the conflict of laws question squaring the Lakewood ordinance providing for elimination of a nonconforming use after one year of discontinuance against the state statute which provided for elimination after a two year discontinuance. Our court found two significant conflicts: one, the term of use in years materially differed, and two, the ordinance used the term abandonment of the use while the statute required voluntary discontinuance. There, the court stated, "the zoning provisions in question involve a statewide interest and are not simply a matter of local self government; that there is a statewide due process interest in preventing local zoning ordinances from retroactively prohibiting nonconforming uses; and that municipal zoning is a police power which must defer to the general legislative enactments of the state." Concluding that the statute, not the ordinance, controlled the case, the court held that although the appellant showed non-use for more than one year, it had not shown voluntary discontinuation for two years. We note, however, that since that decision, the legislature has amended R.C. 713.15. It now states, in relevant part: ***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 - 6 - 713.01 to 713.15 of the Revised Code. (Emphasis added.) We are persuaded, and both counsel to this appeal agree, that R.C. 713.15 as now amended authorizes a municipal corporation by ordinance to reduce the voluntary discontinuance period of a nonconforming use to, " not less than six months but not more than two years." Here, RRCO 1165.03(b) provides in part: Whenever any nonconforming use is discontinued for a continuous period of six (6) months, any future use of such building, or portion thereof so discontinued, shall comply with this Zoning Code. Accordingly, we conclude that this six month period conforms with the statewide due process interest in preventing ordinances from retroactively prohibiting nonconforming uses. However, this ordinance does not incorporate the element that the discontinuation be voluntary as mandated by R.C. 713.15. Since a municipal ordinance may not conflict with a general law, to the extent of conflict, the latter is controlling. See Ohio Constitution, Article 18, Section 3. In conformity with the foregoing analysis and upon examination of the record, we believe that Bell acted voluntarily in removing gasoline storage tanks on two separate occasions from her property and our conclusion is fortified by the statement contained on p.6 of her brief filed in this court, which states, "Mrs Bell does not dispute that she intended to voluntarily discontinue selling gasoline forever." - 7 - As argued by her counsel before this court, Bell urges the city has not demonstrated her intent to abandon the nonconforming commercial use of her property and that her nonconforming gas station use could be changed to a different nonconforming use. RRCO 1165.03(a) states: Change or Expansion of Use. The nonconforming use of a building may only be changed to a conforming use, and the nonconforming use of a part of a building may be not be extended.*** In Brown v. Cleveland (1981), 66 Ohio St.2d 93, 96, where a property owner attempted to add a permitted use to a nonconforming use, the court stated: ***the nonconforming use can be regulated for the protection of the public health, safety and general welfare of the community, As we stated in Columbus v. Union Cemetery (1976), 45 Ohio St.2d 47, 49: "Uses which do not conform to valid zoning legislation may be regulated, and even girded to the point that they wither and die. Akron v. Chapman (1953), 160 Ohio St. 382, paragraph one of the syllabus; Curtiss v. Cleveland (1959), 170 Ohio St. 127; Davis v. Miller (1955), 163 Ohio St. 91, 95-97, Taft J. concurring." Further, in Beck v. Springfield Twp. Bd. of Zoning Appeals (1993), 88 Ohio App.3d 443, 446, the court stated: ***Owners are permitted to continue a nonconforming use based on the recognition that one should not be deprived of a substantial investment which existed prior to the enactment of the zoning resolution. Curtiss v. Cleveland (1959), 170 Ohio St. 127, 132. However, it is recognized that nonconforming uses are not favorites of the law. Kettering v. Lamar Outdoor Advertising, Inc. (1987), 38 Ohio App.3d 16, at 18, states: - 8 - "The reason for their [nonconforming uses] disfavored position is clear; if the segregation of buildings and uses, which is the function of zoning, is valid because of the beneficial results which this brings to the community, to the extent this segregation is not carried out, the value of zoning is diminished and the public is thereby harmed. Nonconforming uses are allowed to exist merely because of the harshness of and the constitutional prohibition against the immediate termination of a use which was legal when the zoning ordinance was enacted." Hence, in this case, no basis exists upon which to initiate a new nonconforming use without municipal authorization, controlled by RRCO 1165.03(a). In conclusion, the trial court applied the wrong legal standard in determining, "appellee did not show appellant intended to abandon the nonconforming use of the property as a gas station for two years;" incorrectly determined that R.C. 713.15, not RRCO 1165.03(b) controlled the outcome of the case; and erroneously relied upon an unreported opinion of this court. Accordingly, we reverse that judgment of the Common Pleas Court and reinstate the decision of the Rocky River Board of Zoning Appeals. Judgment accordingly. - 9 - This cause is reversed and the decision of the Rocky River Board of Zoning Appeals is reinstated. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE DIANE KARPINSKI, JUDGE, DISSENTS (See Dissenting Opinion attached) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(a). - 10 - COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71666 : MARILYN J. BELL : : : Plaintiff-Appellee : : DISSENTING v. : : OPINION ROCKY RIVER BOARD OF ZONING : APPEALS : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 31, 1997 KARPINSKI, J., DISSENTING: I respectfully dissent. The right to continued lawful nonconforming use of real property is a well recognized constitutional and statutory restriction on the exercise of local zoning authority. The majority's opinion to the contrary is not supported by the law or facts, particularly under the exceptional circumstances of this case. The record shows that the premises in this case were used for approximately fifty years as both a retail gasoline and automobile service station. The property owner's removal and cleanup of leaking underground gasoline storage tanks, deemed by the majority to be "voluntary"--although required by state law-- - 2 - does not establish abandonment of the other preexisting 1/ nonconforming use as an automotive service station. As a result, the property owner should be permitted, at an absolute minimum, to continue, without substitution, commercial use of the 2/ existing premises as an automotive service station. 1/ The majority states that sometime after April, 199 the premises were not used "as a gas station." Ante at 1. The City simply proclaimed abandonment by November, only three months after removal of the last tank, and while the state-mandated cleanup was continuing. The Building Commissioner's January 12, 1996, letter erroneously contended in support that the tanks had been removed 4 years earlier "in 1992." (No one disputes that the correct date is 1995.) The state fire marshall, moreover, did not even issue the property owner a "no action letter" indicating the cleanup was completed satisfactorily until January 8, 1996. The majority applies the R.C. 713.15 state law requirement that discontinuance of a nonconforming use be "voluntary" even though the local ordinance dispenses with this element. However, the majority holds that compliance with mandatory state law governing Underground Storage Tanks ("UST"), in R.C. 3737.88 et seq and O.A.C. 1301:7-9, is "voluntary." Even under the theory that the act of removing the underground gasoline tanks was "voluntary," the owner was "involuntarily" delayed from resuming complete use of the property by state-mandated compliance with these comprehensive plan approval, cleanup, and completion requirements. The majority fails to consider whether, in addition to any conflict with R.C. 713.15, the local ordinances also conflict with these comprehensive state UST laws, including time periods for required approvals. See generally Fairview Park v. Barefoot Grass Lawn Service, Inc. (Oct. 10, 1996), Cuyahoga App. No. 69947, unreported, for a discussion of similar issues. 2/ It is not clear whether the property could lawfully be used for some other commercial use. The majority flatly asserts that it cannot. However, the cited cases are distinguishable and the majority's own opinion dictates a contrary result. The majority specifically holds, ante at 6, that R.C. 713.15 controls when it conflicts with a local zoning ordinance. The final sentence of R.C. 713.15, omitted from the majority opinion, provides as follows: The legislative authority of a municipal corporation shall provide in any zoning ordinance for the completion, restoration, reconstruction, extension, or substitution of nonconforming uses upon such reasonable (continued...) - 3 - Courts usually construe and apply zoning ordinances to nonconforming uses reasonably to avoid constitutional infirmities arising in these circumstances. E.g., Burt Realty Corp. v. Columbus (1970), 21 Ohio St.2d 265, 269. Although the trial court's opinion may not be flawless, its resolution of these issues is consistent not only with the prior unpublished opinion of this court in Supreme Oil Corp. v. City of Lakewood (Apr. 29, 1978), Cuyahoga App. No. 34628, unreported, but also with substantial authority. See e.g., Sun Oil Co. v. Upper Arlington (1977), 55 Ohio App.2d 27; Curtiss v. Cleveland (1957), 110 Ohio App. 139, aff'd as modified (1959), 170 Ohio St. 127. It also has the added virtue of ensuring simple justice and fairness to a citizen caught between two government bureaucracies. It is both draconian to mandate the complete destruction of an existing commercial building and pure fiction to postulate residential use of the property given its contamination history. 2/ (...continued) terms as are set forth in the zoning ordinance. (Emphasis added). R.R.C.O. Sections 1165.03(a) and 1165.06 conflict with this statute because they absolutely prohibit these required changes to nonconforming uses. The Ohio Supreme Court in Brown v. Cleveland (1981), 66 Ohio St.2d 93, immediately after the excerpt quoted by the majority, recognized that unlike the Rocky River ordinances, the Cleveland ordinances permitted such changes under specified conditions. Id. at 96. In fact, this court, contrary to the majority opinion, previously invalidated a Cleveland zoning ordinance which left approval of such changes to the unfettered discretion of the zoning board. Curtiss v. Cleveland (1957), 110 Ohio App. 139, aff'd as modified (1959), 170 Ohio St. 127. The Rocky River ordinances do not even grant such discretion, and the City did not exercise any, because the ordinances prohibit all commercial changes. Even if it had, the building commissioner believed wrongly the use had terminated four years earlier. See n. 1, supra. - 4 - Application of the zoning ordinances in this Kafkaesque manner may constitute an unconstitutional taking of property without just compensation. See Akron v. Chapman (1953), 160 Ohio St. 382; State ex rel. Pitz v. Columbus (1988), 56 Ohio App.3d 37. Compliance with state-mandated cleanup laws should not be used as a guise by local authorities to eradicate nonconforming .