GORDON BINGHAM v. CITY OF WILMINGTON BOARD OF ZONING APPEALS, et al.
CASE NO. CA2012-05-012
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLINTON COUNTY
1/14/2013
[Cite as Bingham v. Wilmington Bd. of Zoning Appeals, 2013-Ohio-61.]
APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS Case No. CVF2011-0645
Brian A. Shidaker, 69 North South Street, Wilmington, Ohio 45177, for defendants-appellees
HENDRICKSON, P.J.
{1} Plaintiff-appellant, Gordon Bingham, appeals the judgment of the Clinton County Common Pleas Court upholding a decision of the City of Wilmington Board of Zoning Appeals (“BZA“) requiring appellant to cease and desist junk yard operations on his property.
{2} In 2002, appellant purchased a parcel of real estate zoned industrial (I1) in Wilmington, Clinton County, Ohio (the “Property“). The Property was previously used as a
{3} When appellant purchased the Property, a junk yard was not a prohibited use under the City of Wilmington‘s Planning and Zoning Code (the “1959 Zoning Regulations“), but the code did require a landowner to obtain a conditional use permit before operating a junk yard within city limits.2 In September 2008, a new zoning ordinance was passed prohibiting junk yards from operating within the city of Wilmington (the “2008 Zoning Regulations“). On July 25, 2011, Ernie Blankenship, code enforcement official for the Wilmington Building and Zoning Department (“Blankenship“), sent appellant a notice that appellant‘s use of his Property as a junk yard was in violation of the 2008 Zoning Regulations and that appellant must discontinue such use. The notice further stated that appellant had failed to obtain a “Certificate of Occupancy” from the city of Wilmington and that the obtainment of such certificate may have allowed appellant to continue using the Property as a junk yard as a nonconforming use.
{4} Appellant appealed Blankenship‘s notice to the Wilmington BZA and, on September 12, 2011, a public hearing was held. The BZA orally voted to deny appellant‘s appeal and, consequently, appellant appealed to the Clinton County Common Pleas Court. On March 21, 2012, a magistrate‘s decision was issued finding the actions of Blankenship
{5} THE COURT OF COMMON PLEAS COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT‘S APPEAL AND HOLDING [THAT] APPELLANT‘S MOTOR VEHICLE JUNK YARD USE IS NOT A NONCONFORMING USE.
{6} ”
{7} However, an appellate court‘s review of an administrative appeal is more limited in scope. Hutchinson at ¶ 15, citing Shamrock Materials, Inc. v. Butler Cty. Bd. of Zoning, 12th Dist. No. CA2007-07-172, 2008-Ohio-2906, ¶ 10. Unlike the common pleas court, the appellate court “does not weigh the evidence or determine questions of fact.” Id. Rather, “the appellate court must affirm the common pleas court‘s decision unless it finds, as a matter of law, that the decision is not supported by a preponderance of reliable, probative,
{8} Prior to turning to the merits of the case, we must first address a contention by appellant that the terms “certificate of occupancy,” “permit,” “zoning permit,” and “conditional use permit,” as used in this case, all mean the same thing. Specifically, appellant contends that each of these terms simply means “a certificate issued by the City [of Wilmington] permitting a business to operate.” We do not find this to be the case.
{9} A “certificate of occupancy” is a certificate issued by the building inspector without which land is not permitted to be occupied or used for any purpose. 2008 Zoning Regulations 1135.02. A “conditional use permit,” on the other hand, is a permit which may be issued when a specific land use is allowed only after certain requirements are met. 2008 Zoning Regulations 1163.01; 1163.02.
{10} Though these terms are clearly different in their meanings, appellant is not wrong in his assertion that the parties, as well as Blankenship, were under the impression that a “certificate of occupancy” had the same definition as a “conditional use permit.” During the hearing before the common pleas court, Wilmington‘s counsel referred to a “certificate of occupancy” and a “conditional use permit” as “permits” which are “the same thing.” Further, Blankenship‘s July 25, 2011 notice letter to appellant stated appellant had not obtained a “Certificate of Occupancy for [his] business” which “may have allowed [him] to have a nonconforming use.” Based upon our review of the record, we find that, though using different terms, the parties, courts, and BZA were continuously applying the definition of a conditional use permit. Therefore, we shall review the merits of this case with this definition in mind.
{11} The sole issue presented for our review is whether appellant‘s operation of a junk yard on the Property is a nonconforming use. In addressing this issue, we note that the parties do not dispute that (1) appellant was operating a junk yard on the Property prior to the
{12} Pursuant to the statute addressing nonconforming uses, “[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 wkith the provisions of such ordinance.”
{13} In reviewing the issue before us, we find the Ohio Supreme Court‘s decision in Pschesang v. Village of Terrace Park to be analogous. In Pschesang, a dentist began operating a dentist‘s office within a residential district, a use prohibited by the pertinent zoning regulations unless the office was also used as a residence. Id. at the syllabus. The pertinent zoning regulations were later revised, permitting the enlargement of nonconforming uses within the residential district. Id. The dentist applied for a permit to expand his dental office, but the permit was denied on the ground that the dentist‘s use of the premises was prohibited by the zoning regulations. Id. In reviewing the local zoning ordinances,
{14} In the case before us, appellant was required to obtain a conditional use permit in 2005 when he chose to open a junk yard on the Property. Appellant admits that he failed to do so. Thus, when zoning regulations were revised in 2008, appellant‘s junk yard was not a nonconforming use, as the Property‘s use as a junk yard was not lawful at the time its use as such was established.
{15} Appellant directs our attention to this court‘s decision in Board of Trustees of Williamsburg Twp v. Kriemer, 72 Ohio App.3d 608 (12th Dist.1991), for the proposition that we should look to the actual use being performed rather than whether the appropriate permits were secured in determining whether a use is lawful. In Kreimer, a parcel of property was used as a junk yard for some time prior to the enactment of a zoning resolution. Id. at 610. “Once the zoning resolution was adopted, the property became a nonconforming use, but was permitted to continue as a junk yard because it had lawfully existed at the time the regulation went into effect.” Id. However, in 1987, the property was sold from the original junk yard operator to a new owner, and the junk yard was not operated for two years. Id. The township sought a permanent injunction to prevent the new owner from operating a junk yard, arguing that the owner had voluntarily discontinued the nonconforming use and was, therefore, no longer entitled to nonconforming use status. Id. In support of its contention, the township pointed out that the original landowner had failed to maintain a junk yard license for the property. Id. at 612. Citing Pschesang, this court determined that the use of the property as a junk yard was lawfully in existence prior to the enactment of the zoning resolution and, therefore, maintained its nonconforming use status. Id.
{17} Based upon the foregoing, we cannot say that the decision of the common pleas court was not supported by a preponderance of reliable, probative, and substantial evidence. Consequently, appellant‘s sole assignment of error is overruled.
{18} Judgment affirmed.
PIPER and BRESSLER, JJ., concur.
Bressler, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.