Torok v. Jones

448 N.E.2d 819, 5 Ohio St. 3d 31, 5 Ohio B. 90, 1983 Ohio LEXIS 708

• Court: Ohio Supreme Court
• Decided: May 18, 1983
• Docket: No. 82-567
• Status: Published

Opinions

Holmes, J.

Appellants present this court with three arguments why the judgments below should be reversed.

First, appellants argue that the six-month limitation contained in the zoning permits is invalid. Essentially, appellants assert that state enabling statutes do not authorize limitations such as that contained in Section 10.6 of the Green Township zoning ordinance.²

A township’s authority to enact zoning ordinances is not inherent, nor does it derive from a constitutional provision. Rather, this authority is dependent upon a grant by the General Assembly. Yorkavitz v. Bd. of Trustees (1957), 166 Ohio St. 349 [2 O.O.2d 255]. R.C. Chapter 519 does not specifically authorize townships to limit zoning permits to six-months’ duration. However, there is nothing in the Revised Code which could be reasonably construed as disapproving of such a provision. In fact, R.C. 519.16 provides that township zoning is to be regulated by a system of zoning certificates. In the absence of contrary direction from the General Assembly, a zoning ordinance provision, which limits the life of a zoning permit to six months, is a reasonable exercise of the power to zone contained in R.C. Chapter 519.

Appellants’ next assertion is that the courts below applied the incorrect standard to determine whether they had established a lawful nonconforming use.³ The courts below applied the common-law standard which requires a showing that a substantial nonconforming use of the property has been made. Smith v. Juillerat (1954), 161 Ohio St. 424 [53 O.O. 340]. Appellants argue that a less stringent test, contained in the Green Township zoning ordinance, should have been applied. Section 8.5⁴ of that ordinance allows the completion of any building, which would be a nonconforming use, when construction had been commenced prior to the effective date of the ordinance.

Even assuming Section 8.5 applies to amendments as well as the initial passage of the zoning ordinance, appellants have failed to prove that they are entitled to its protection. In order to fall under the coverage of Section 8.5, construction must have begun before the effective date of the amendment. Here, the amendment became effective May 24, 1980. Appellants did not begin construction at either site until November 10, 1980. Consequently, the courts below did not err in refusing to apply the standard in Section 8.5.

Lastly, appellants argue that an application of the amended version of the zoning deprives them of vested property rights. For the reasons that follow, we disagree.

In Smith v. Juillerat, supra, this court faced a similar situation. There, the property owner wished to strip mine his land. Prior to the adoption of the local zoning ordinance, which prohibited strip mining, the land owner had expended money in preparation for mining. Nevertheless, this court held that a nonconforming use had not been established, stating:

“Where no substantial nonconforming use is made of property, even though such use is contemplated and money is expended in preliminary work to that end, a property owner acquires no vested right to such use and is deprived of none by the operation of a valid zoning ordinance denying the right to proceed with his intended use of the property.”

Likewise, we hold that a property owner fails to acquire a vested right to complete construction and fails to establish a nonconforming use under a township zoning resolution where there has been no substantial change of position, or expenditures, or no significant incurrence of obligations in reliance upon the zoning permit. Here, appellants did not make a substantial nonconforming use of their property prior to the expiration of their zoning permits. At the Melanie Drive location, some work was done prior to the expiration of the permit; however, it was less than one-tenth of one percent of the total anticipated cost of construction at that location. At the Olean Avenue site, the only construction occurred after both the expiration of the zoning permits and the effective date of the amendments to the ordinance. This construction contravened the zoning ordinance and could not serve as a basis for establishing a nonconforming use. Accordingly, we agree with the courts below that here there was not shown to be a substantial nonconforming use of the property.

Additionally, appellants’ reliance upon Gibson v. Oberlin (1960), 171 Ohio St. 1 [12 O.O.2d 1], is misplaced. In Gibson, this court held that a building permit could not be denied because the pending enactment of a zoning ordinance would make the anticipated use unlawful. If the use was lawful at the time of an application for a building permit, then the applicant was entitled to one.

Nothing in the record here suggests that appellants were in any way denied a zoning permit because of the imminent amendment to the township zoning ordinance. On the contrary, appellants were granted zoning permits for each parcel. They had nearly five months for one parcel, and more for the other, to establish a valid nonconforming use. That they failed to do so is not evidence that they were somehow denied such an opportunity by the appellees.

Based upon the foregoing, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Sweeney, Locher and J. P. Celebrezze, JJ., concur. Celebrezze, C.J., and W. Brown, J., concur in judgment only. C. Brown, J., dissents.

2 Section 10.6 of the Green Township zoning ordinance reads:

“Zoning permits shall be effective for six (6) months. If construction is not started within that period, the permit is automatically cancelled. However, a permit holder may renew the permit without an additional fee by applying to the Zoning Inspector, provided the original application has not been invalidated by changes in the zoning regulations.”

3 According to R.C. 519.19, townships may not exclude valid nonconforming uses.

4 Section 8.5 of the Green Township zoning ordinance reads:

“Any partially completed building, the actual construction of which has commenced on or before the effective date of this Resolution, which building or its intended use when completed, would not conform with the provisions of this Resolution for the district in which it is located, may be completed and used as a non-conforming use only for the purpose for which it was originally designed, provided that the building is completed and/or put to use within two (2) years after adoption of this Resolution.”