Boice v. Village of Ottawa Hills
999 N.E.2d 649
Ohio2013Background
- Willis and Annette Boice bought two adjacent platted lots in Ottawa Hills in 1974: a 57,000 sq ft lot with a house and a vacant 33,000 sq ft lot. Minimum buildable-lot size in 1974 was 15,000 sq ft.
- In 1978 the village raised the minimum lot size to 35,000 sq ft. Plaintiffs never built on the 33,000 sq ft lot but paid taxes treating it as buildable for decades.
- In 2004 plaintiffs sought administrative recognition/variance to have the 33,000 sq ft lot declared buildable; the village manager and zoning commission denied relief.
- Plaintiffs sued. Trial court and Sixth District held no taking occurred and denied grandfathering/nonconforming-use protection because plaintiffs had not used the lot as a building site or sought relief earlier.
- Ohio Supreme Court (majority O’Neill, J.) reversed: held plaintiffs were entitled to grandfathering/nonconforming treatment and that denial was arbitrary given disparate treatment, de minimis size difference, and an ordinance grandfathering preexisting uses. Case remanded. Dissent argued plaintiffs waived many arguments and no taking occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs had vested (grandfathered) rights to treat the 1974 lot as buildable after the 1978 ordinance | Boice: Lot was lawfully buildable when purchased; that status vested and should be grandfathered despite no construction | Ottawa Hills: A nonconforming or "lawful use" requires actual existing use; mere expectation to build is not a use, so no grandfathering | Court (majority): Lot should have been grandfathered; denying it was arbitrary and an abuse of discretion |
| Whether denial of variance and ordinance application constituted an unconstitutional regulatory taking | Boice: Retroactive application substantially reduced value and thus is a taking (claimed partial/total taking) | Ottawa Hills: No total taking; parcel retained economic value; plaintiffs never used lot for building and sought relief decades later | Court: Focused on grandfathering/variance issues and reversed administrative decision; majority did not treat as a compensable total taking here; dissent stressed takings analysis and waiver of total-taking claim |
| Whether a variance should have been granted under Ohio area-variance standards (Duncan factors) | Boice: Practical difficulties exist, difference is de minimis (33,000 v. 35,000), neighborhood character unaffected, purchase predated ordinance | Ottawa Hills: Denial appropriate based on ordinance and lack of existing nonconforming use | Court (majority): Applying Duncan factors, a variance should have been granted; factors favor relief |
| Whether plaintiffs were subject to disparate treatment compared with neighbors | Boice: Other owners with similar sub-35,000 lots were allowed to build; Boices were treated differently without rational basis | Ottawa Hills: Denial was justified by facts (e.g., lot adjustments in 1973) and procedural posture | Court (majority): Found disparate treatment unexplained and contributed to conclusion of arbitrariness; supported reversal |
Key Cases Cited
- Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142 (administrative appeal standard)
- Kisil v. Sandusky, 12 Ohio St.3d 30 (appellate review scope of administrative appeals)
- Saunders v. Clark Cty. Zoning Dept., 66 Ohio St.2d 259 (zoning construed in favor of property owner)
- Gerijo, Inc. v. Fairfield, 70 Ohio St.3d 223 (police power must bear substantial relationship to legitimate interest)
- Duncan v. Middlefield, 23 Ohio St.3d 83 (factors for area-variance/practical-difficulties analysis)
- Norwood v. Horney, 110 Ohio St.3d 353 (property-right protections under Ohio Constitution)
- Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (total regulatory-takings standard)
- Penn Central Transp. Co. v. New York City, 438 U.S. 104 (partial regulatory-takings balancing test)
- State ex rel. R.T.G., Inc. v. State, 98 Ohio St.3d 1 (Ohio discussion of regulatory takings types)
- Negin v. Mentor Bd. of Bldg. & Zoning Appeals, 69 Ohio St.2d 492 (substandard vacant lot and nonconforming-use discussion)
- Smith v. Juillerat, 161 Ohio St. 424 (no vested right from mere preliminary steps)
- C.D.S., Inc. v. Gates Mills, 26 Ohio St.3d 166 (definition of nonconforming use)