Bingham v. Wilmington Bd. of Zoning Appeals
2013 Ohio 61
Ohio Ct. App.2013Background
- Bingham owned property in Wilmington zoned industrial where he operated a salvage/junk yard with 300–400 cars and derived about half of his income from the junk yard.
- The junk yard use began in 2005 after converting from an auto repair/towing business; it was not originally prohibited under the 1959 zoning regulations but required a conditional use permit to continue as a permissible use.
- A 2008 zoning revision prohibited junk yards in Wilmington; in 2011 a city official notified Bingham to cease and desist, stating he lacked a certificate of occupancy and that obtaining one might have allowed a nonconforming use.
- Bingham appealed the notice to the Wilmington Board of Zoning Appeals; after a hearing, the BZA denied the appeal, and the matter went to the Clinton County Common Pleas Court.
- The common pleas court found that Bingham’s junk yard was not a prior nonconforming use because he never obtained a conditional use permit in 2005, and thus not protected by nonconforming-use status.
- On appeal, the Twelfth District Court of Appeals affirmed, holding that the junk yard was not a lawful use at the time of the 2008 revision and therefore could not be a nonconforming use.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the junk yard was a nonconforming use after 2008. | Bingham argues the junk yard existed lawfully prior to 2008 and thus qualifies as a nonconforming use. | City contends no conditional use permit was obtained, so the use was not lawful at the time of the 2008 revision and cannot be nonconforming. | The junk yard was not a nonconforming use. |
Key Cases Cited
- Pschesang v. Village of Terrace Park, 5 Ohio St.3d 47 (Ohio 1983) (use must be lawful at establishment to qualify as nonconforming)
- Kreimer v. Board of Trustees Williamsburg Twp, 72 Ohio App.3d 608 (12th Dist.1991) (distinguishes continuity of use where original owner had permits)
- Shamrock Materials, Inc. v. Butler Cty. Bd. of Zoning, 172 Ohio App.3d 620 (2007-Ohio-3165) (appellate review standard in administrative appeals)
- Mills v. Union Twp. Bd. of Zoning Appeals, 2005-Ohio-6273 (12th Dist.2005) (scope of appellate review in zoning appeals)
- Hutchinson v. Wayne Twp. Bd. of Zoning Appeals, 2012-Ohio-4103 (12th Dist.2012) (standard of review: limited for appellate review of admin decisions)
- Key-Ads, Inc. v. Bd. of Cty. Commrs., 2008-Ohio-1474 (12th Dist.2008) (administrative-appeal review standard)