Petti v. City of Richmond Heights

449 N.E.2d 768, 5 Ohio St. 3d 129, 5 Ohio B. 263, 1983 Ohio LEXIS 723

• Court: Ohio Supreme Court
• Decided: June 8, 1983
• Docket: No. 82-1360
• Status: Published

Opinions

Celebrezze, C.J.

The issue presented is whether appellant has a right to use the premises, located in a residential zone, for private professional offices based upon the school board’s prior use as offices. For the following reasons, we conclude that appellant’s proposed use of the premises is illegal and should be denied.

Appellant contends that he has a right to use the building for private professional offices based upon a nonconforming use established by the school board. Although a nonconforming use may be established when the requirements are satisfied, zoning ordinances usually contemplate the gradual elimination of nonconforming uses in a zoned area. Akron v. Chapman (1953), 160 Ohio St. 382, 386 [52 O.O. 242]. This court recently held in the syllabus of Pschesang v. Terrace Park (1983), 5 Ohio St. 3d 47, that “[a] use of property must be lawful at the time the use was established in order to qualify as a nonconforming use. Therefore, a use not permitted by the applicable zoning ordinance when the use was established does not constitute a nonconforming use. * * *”

Accordingly, to qualify as a nonconforming use, the use must have been legal when the use as offices was commenced in 1967. Although the court of appeals concluded that the area had been zoned residential since 1929, the only evidence introduced was a zone map dated 1972 which does not denote the zoning prior to that date.¹ Therefore, any other information dehors the record cannot be the basis of a conclusion about the prior zoning. Because the zoning in 1967 was not in evidence, we are unable to conclude whether the use was lawful when it was commenced.

Even if the legality of the use in 1967 has not been established, the zone map in evidence clearly indicates that the area was zoned residential when the ordinance was amended in 1972. Thus, the school board’s use of the premises as offices was illegal in the residential zone.² The statute concerning nonconforming uses, R.C. 713.15, in pertinent part, provides that “[t]he 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 amendment thereto, may be continued, although such use does not conform with the provisions of such ordinance * * *.” Therefore, a nonconforming use cannot be established unless it is based upon a lawful use. We hold that in the event that the legality of a use at the time the use was established cannot be determined, the earliest applicable zoning, in evidence, subsequent to the establishment of the use, shall control. An illegal use cannot ripen into a nonconforming use. In this instance, the use as an office was illegal at the time of the zoning amendment. Therefore, appellant’s argument that he has a right to continue a nonconforming use fails because such a use was not established.³

Furthermore, as a purchaser, appellant had the responsibility to check the compatibility of the zoning restrictions and his intention to use the premises for professional offices.⁴ Appellant testified that he had read the ordinances. The legal notice of the auction for the sale of the premises stated that “the Board makes no representation as to the permitted uses of the property.” Therefore, appellant had notice of the zoning restrictions, which precluded the premises from being used for offices, and he purchased the property subject to the zoning restrictions.

Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

W. Brown, Resnick, Locher, Holmes and J. P. Celebrezze, JJ., concur. C. Brown, J., dissents. Resnick, J., of the Sixth Appellate District, sitting for Sweeney, J.

1 Because appellant argued that his property qualified for a nonconforming use, he had the burden of establishing that it met the requirements necessary to qualify for a nonconforming use. However, he failed to introduce the zoning ordinance in effect at the time the use was established.

2 The Richmond Heights zoning ordinance was amended in August 1972. According to Section 1135.02(d), a school was a permitted use in the residential zones after approval by the planning and zoning commission upon a finding that the use complied with the standards and criteria set forth in Section 1135.02 of the Richmond Heights zoning ordinance. However, the parties stipulated that the side yard requirement was not met and there is no evidence of the necessary approval by the commission. Although a school office could qualify as a permitted use, the requirements were not met in this instance. Furthermore, appellant concedes that a legal use was not established by the school.

3 The court of appeals concluded that the school board’s use violated the zoning, but because it was a state agency, it was exempt from the enforcement of local zoning laws. It is unnecessary for us to consider the application of zoning ordinances to a school board’s use of property because of our conclusion that a nonconforming use was not established.

4 Appellant can lawfully use the premises for his own dental office if he chooses to live in the building. Section 1135.02(h) of the Richmond Heights zoning ordinance permits a dental office as an accessory use in the residential district.